Findings Of Fact Background The procurement of private legal services by the Department for child support enforcement is exempt from the competitive bidding requirements set forth in Chapter 287, Florida Statutes. In July 1992, the Department published notice that it was soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services in HRS District VI, including Hillsborough, Hardee, Highlands, and Polk Counties. These services were to be provided from October 1, 1992, through June 30, 1993. Separate proposals were solicited for each of the following: the Hillsborough County Interstate Contract, the Hillsborough Intrastate Contract, the Polk County Contract, and the contract for Hardee and Highland Counties. The solicitation package does not incorporate any of the Florida Statutes or the agency's own rules regarding solicitation and award procedures in competitive bidding situations. Instead, the solicitation purports to be a self contained package of reasonably definite specifications with its own evaluation criteria and award procedures. The Petitioners in all four of the consolidated cases timely filed written protests which challenge the contents and requirements of the package. Evaluation Criteria In addition to the evaluation criteria contained in the solicitation package, the Department adopted and distributed to its employees additional criteria to be used in evaluating the proposals submitted. The additional criteria are set forth in the following documents which were entered into evidence as Belveal Exhibit No. 7: Work Sheet for Evaluating Criteria and Determining Relative Value to be Applied to Technical Information, Evaluation Criteria, Scoring Matrix for Structured Interview of Offerers, Work sheet for Scoring Oral Interview, and Questions for Use at Interview. The additional criteria set forth in these documents were intended for use to award points in the evaluation of offers, and to make the award of the contracts. They were not revealed to potential offerers. Such a procedure affords opportunities for favoritism, whether or not any favoritism is actually practiced by the Department. Once the representation is made in a solicitation package that it contains the evaluation criteria, the offerers should not be subjected to an additional evaluation process. Anne Donovan, Assistant Secretary of the Department of Health and Rehabilitative Services, admitted during hearing that the additional criteria which was not included in the solicitation package are intentionally biased to give existing legal services contractors an advantage in obtaining renewal of their contracts. This is contrary to the representation made in the solicitation package which states, "Through this solicitation for offers to provide legal services, the department seeks to obtain the highest possible standard of legal representation... while ensuring free and open competition among prospective offerers." Specifications The proposed contract to be executed at the conclusion of the bid solicitation and contract award process was to provide for compensation to the contractor based on (a) the number of cases referred to the contractor during the contract term, and (b) the number of final orders obtained by the contractor in these cases referred for action. The solicitation package contains a document identified as Attachment VI, which sets fort numbers purporting to be the Department's estimates of the number and type of cases which would be referred to the successful bidder during the course of each of the contracts, the number of payable orders to be expected, and the maximum fees which would be paid for each type of order obtained pursuant to the contract. Separate estimates have been given for the following contracts: Hillsborough County Intrastate, Hillsborough County Interstate, Polk County, and Hardee and Highlands Counties. The actual numbers set forth in each of the four separate contract proposals were estimates made by the field office staff of the Department and compiled by the headquarters office. Rosemary O'Neil, the contract manager in District VI, estimated the number of functions for each of the four contracts in District VI. In identifying the direct cost amount for each individual contract, she used automated and manual statistics or the tracking of functional activities for the past year. During the preparation of her projections, Ms. O'Neil tracked only nine activities, as originally required by the Department. Later, she was required to break these down into twenty-two functions, which may have adversely affected the estimates. Ms. O'Neil and other Department personnel testified that the estimates for District VI might be too low based upon past estimates and current needs. Ms. O'Neil completed the estimates in good faith and in accordance with the Department's stated requirements. Attachment VI also contains a fee schedule based upon a functional cost survey devised and carried out by the Department between April 15, 1991 and March 31, 1992. The survey randomly selected 3,800 cases throughout the state for tracking to determine the average cost the Department paid over the stated time period for each legal activity represented in the survey. During the survey, only 2,100 of these cases were actually tracked. In October 1992, the functional cost survey was changed to include 22 instead of 10 categories of legal service activity. The implementation of the survey was faulty in that different districts tracked attorney time and paralegal time in different ways. In addition, the administrative procedures utilized by judges and hearing officers in different districts directly affected statistics in ways which were not contemplated in the survey. Without uniform procedures, the legal services performed and attorney fees charged in different counties cannot be effectively reviewed on a comparable basis to create a true average cost per function. Many of the fees allocated to different functions in the specifications were illogical. For example: Fees paid for stipulated matters were, in many cases, higher than the fees paid for contested matters of the same type. Fees paid for simple matters, such as contempt hearings, were substantially the same as fees paid for more complex litigation involving the establishment of paternity and support. Certain orders obtained by the attorney, such as bankruptcy matters, required the expenditure of time by the contractor, but did not pay any fee. The functional cost survey used to establish the terms in the solicitations for estimated number of cases, types of cases and the maximum fees to be paid is defective as it relates to District VI. Proposals cannot be comparatively reviewed because the data upon which the proposals are created is inaccurate. After the contract award, it is reasonably anticipated that the Department would be required to make modifications to the contract which would afford opportunities for favoritism.
Recommendation Based upon the foregoing, it is RECOMMENDED: The previously undisclosed evaluation criteria should be included in the solicitation package if the Department intends to use them in the evaluation process. The current specifications on the projected number of cases to be referred in each contract in District VI should be revised to more reasonably and accurately reflect potential referrals within the District. The designated attorney fee for each function should be revised so that the charges are reasonably related to the work expected by the specifications in the proposal. The contents of the functional cost survey should be reevaluated based upon the evidence presented during the protest proceedings. The current specifications should be rejected as they are so flawed as to be arbitrary, in violation of state standards regarding the competitive bidding process. DONE and ENTERED this 22nd day of December, 1992. VERONICAL E. DONNELLY 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 22nd day of December, 1992. APPENDIX Petitioner Carlton's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 5 Accepted. See HO No. 7 Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO No. 16. Accepted. See HO No. 19. Accepted. See HO No. 17. Accepted. See HO No. 18. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20 - No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. See HO No. 12. Accepted. See HO No. 12. Accepted. See HO No. 15. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 22. Accepted. Accepted. Accepted. Accepted. - 81. Rejected. Without jurisdiction to determine. 82. - 87. Rejected. Beyond the jurisdiction of the Hearing Officer under the Grove-Watkins review standards. 88. - 100. Rejected. Beyond the jurisdiction of the Hearing Officer. Petitioner Redman's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 3. Accepted. Accepted. Accepted. Accepted. See HO No. 7. Accepted. Accepted. See HO No. 8 - No. 9. Accepted. See HO No. 16. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. See HO No. 20 and No. 22. Accepted. Accepted. See HO No. 17. Accepted. See HO No. 18. Accepted. See HO No. 16. Accepted. Accepted. Accepted. Accepted. See HO No. 19. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. Accepted. See HO No. 20. The word "misleading" should be replaced by the "faulty". Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20 and No. 22. Accepted. Rejected. Speculative. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 22. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. See HO No. 21. Rejected, except for the determination that the specifications are arbitrary. All other allegations were not proved at hearing. Accepted. See HO No. 11. Accepted. See HO No. 12. Rejected. Contrary to fact. See HO No. 13. Accepted. See HO No. 13. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 13. Accepted. See HO No. 13. Accepted. Accepted. - 105. Rejected. Beyond the hearing officer's jurisdiction. Accepted. Rejected. Contrary to findings, except the determination that the specifications were arbitrary and unreliable. Rejected. Beyond subject matter jurisdiction. Rejected. Competency not determined. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20. Rejected. Contrary to fact. Accepted. Rejected. Contrary to fact. - 128. Rejected. Beyond subject matter jurisdiction. Petitioner Belveal's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Accepted. See HO No. 2. Accepted. Accepted. See Preliminary Statement & HO No. 4. Accepted. See HO No. 11. Accepted. See HO No. 3. Accepted. Accepted. See HO No. 5. Accepted. See HO No. 5 - No. 6. Accepted. See HO No. 7. Accepted. See HO No. 10. Accepted. See HO No. 12. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 16. Accepted. Rejected. Irrelevant. Accepted. See HO No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 21. Accepted. Accepted. See Preliminary Statement. COPIES FURNISHED: CHARLES L CARLTON ESQ 2120 LAKELAND HILLS BLVD LAKELAND FL 33805 CECELIA M REDMAN ESQ 2124 W KENNEDY BLVD - STE B TAMPA FL 33606 DONALD W BELVEAL ESQ 100 W KENNEDY BLVD - STE 600 TAMPA FL 33602 JACK EMORY FARLEY ESQ HRS DISTRICT VI LEGAL OFFICE 4000 W DR MARTIN LUTHER KING JR BLVD TAMPA FL 33614 JOHN DAVIS ESQ 1170 NE CAPITAL CIRCLE TALLAHASSEE FL 32308 JOHN SLYE ESQ GENERAL COUNSEL DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
The Issue The following issues were raised in the challenge of the award of the bid: Did Harris/3M fail to comply with Special Condition 28 of the Invitation to Bid, which required each bidder to provide references from two customers having similar equipment? Did the Department request a demonstration of the bid equipment under Special Condition 15? If such a demonstration was requested, did Harris/3M comply with the request? Were the machines bid by Harris/3M available under terms of General Condition 4(d)? Did the machines bid by Harris/3M comply with General Condition 4(f) requiring that the equipment bid carry the Underwriter's Laboratory listing? In response to Harris/3M's Motion for Directed Verdict on issue number 5, the Hearing Officer granted the motion on a finding that no evidence had been presented on this issue by the Petitioner. The Petitioner's compliance with the specifications was not at issue.
Findings Of Fact On or about December 15, 1986, the Department issued and advertised its Invitation to Bid 3162-86 related to the acquisition of 15 microfilm reader/printers for use in searching, reading and printing motor vehicle documents which had been microfilmed by the Department of Highway Safety. Microfilm reader/printers are essentially units of hardware into which cartridges of microfilm are inserted and the microfilm is passed through a camera which reflects the images of the microfilm onto a screen from which information can be read and copies printed. The Invitation to Bid required that the equipment must have a "controller," a device for automatically locating specific microfilm documents by the use of coded information or "blips" on the film. On or about January 5, 1987, responses to the Department's bid were submitted by Petitioner OSC and Intervenor, Harris/3M, together with bids from other bidders whose bids are not an issue in these proceedings. All bids were opened on January 5, 1987. The equipment bid by Harris/3M was the Model MFB1100 Reader/Printer with a "page search" kit or controller. Special Condition 28 of the Invitation to Bid states: "28. REFERENCES The bidder shall supply with his bid the names, addresses and telephone numbers of two references for whom the bidder has previously provided similar equipment being bid. If the bidder is unable to provide satisfactory references to the Department, the Department may, at its discretion, reject the bidder's bid if it determines that a responsive offer in full compliance with the bid speci- fications and conditions was not submitted. Failure to supply the references as required may result in rejection of the bid." (e.s.) Harris/3M provided two references in satisfaction of Special Condition Both of the references had versions of the Model MFB1100; however, neither of the references had the "controller" or page search kit, which was called for in the Invitation to Bid. Special Condition 28 was drafted by Merelyn Grubbs. According to Ms. Grubbs, the purpose of this requirement was to assure the Department that the bidder was responsible. "Similar" equipment is sufficient to assess the bidder's responsibility based upon machines made by the same manufacturer which performed essentially the same function. The MFB1100 without a page search kit is a "similar" machine. The two references provided were sufficient. Special Condition 15 states: DEMONSTRATIONS After opening of bid and prior to award of bid, the apparent low responsive bidder may be required to demonstrate to the Division of Administrative Services the equipment he proposes to furnish. If requested, a "working model" of the equipment bid and to be supplied in compliance with these specifications must be demonstrated in Tallahassee, Florida, within seven (7) calendar days from receipt of notification. If apparent low responsive bidder cannot successfully execute the demonstration, the Department shall revert to the next low responsive bidder and request demon- stration, continuing through the list of responsive bidders until a successful demonstration is achieved, the list of responsive bidders is exhausted or it is in the State's best interest to terminate the bid process. Demonstrations to be furnished at no expense to the Department." On January 7, 1987, Mr. Ray Boetch, the supervisor of the division within the Department of Highway Safety where the reader/printers would ultimately be used, wrote a memorandum to Merelyn Grubbs requesting that a demonstration be made on the Harris/3M Model MFB1100 Reader/Printer prior to the awarding of the bid. Mr. Boetch also discussed the matter with Ms. Grubbs indicating his primary concern was verifying the quality of the prints produced by the machine and whether it could print half pages. Ms. Grubbs spoke with Nick Vuillemot of Harris/3M about a demonstration of the equipment in Tallahassee. In these discussions, Harris/3M offered to fly representatives of the Department to St. Paul, Minnesota, the home office of the manufacturer, for a demonstration of the equipment. This was because Harris/3M had only two prototypes of the equipment and it was more economical for Harris/3M to fly Department personnel to Minnesota for purposes of the demonstration than to disassemble, ship to Tallahassee and reassemble the prototype for a demonstration. The Department declined to accept Harris/3M's offer. The Department accepted instead a demonstration of a Model MFB1100 without the controller or page search kit at the Division of Elections in Tallahassee, Florida. The MFB1100 without controller does not meet the specifications in the Invitation to Bid. The "controller" or page search kit is of modular construction in the MFB1100, which can be ordered with or without the controller or page search kit. However, the bid specifically calls for a reader/printer with a page search device. Following the demonstration of the MFB1100 without page search capability, the Department officially posted its bid tabulations on January 12, 1987, designating Harris/3M as the low and responsive bidder and OSC was the next low and responsive bidder. Item 4 (d). Conditions and Packaging of the General Conditions of the Invitation to Bid provides as follows: It is understood and agreed that any item offered or shipped as a result of this bid shall be new, current standard production model available at the time of bid. (e.s.) Item 18. Delivery Schedule of the special conditions required delivery of the items bid within 30 days of the bid award or, in the alternative, a substitute item acceptable to the Department at no cost to the Department. The bid submitted by Harris/3M certified that delivery of all 15 units would be delivered within 30 days after receipt of a purchase order. Although the Harris/3M Model MFB1100 Reader/ Printer without page search had been on the market for a number of months prior to the issuance of the Invitation to Bid, the Model MFB1100 with page search had not been authorized for sale by the manufacturer until late November 1986. At the time demonstration was requested, only two prototypes existed of the MFB1100 with page search capability. As of the date of the hearing on February 11, 1987, no Model MFB1100 Reader/Printers with page search capability had been installed in any customer location within the United States. The Petitioner did not present any evidence to support its claim that the MFB1100 Reader/Printer with page search did not have a UL listing.
The Issue Whether the Department acted illegally, arbitrarily, dishonestly, or fraudulently when it rejected all of the bids submitted in response to Invitation to Bid No. 97-023-OR. See Section 120.57(3), Florida Statutes (1997).
Findings Of Fact Petitioner ABS is an authorized dealer for Neopost, a manufacturer of mailing equipment. Petitioner is also a Certified Minority Business Enterprise, pursuant to Chapter 287, Florida Statutes. Prior to the subject Invitation to Bid, the Department issued a similar Invitation to Bid. That bid was initially awarded to Pitney Bowes, Inc., but Pitney Bowes, Inc., was unable to meet delivery requirements of that bid, and the Department decided to re-bid. The Department issued the subject ITB No. 97-023-OR on March 10, 1997. Pursuant to its terms, the bid opening was held on April 29, 1997. The subject ITB provides, in pertinent part, as follows: At page 3 of 11 MANDATORY REQUIREMENTS The state has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must", or "will" (except to indicate simple futurity) in this Invitation to Bid/Request for Purchase indicates a requirement or condition from which a material deviation may not be waived by the State. The words "should", or "may" in this /Request for Purchase to Bid [sic] indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (emphasis supplied) At page 6 of 11 MANUFACTURER REPRESENTATIVE Bidder must provide proof of authorized dealership for equipment specified and the beginning and ending term of authorization. (emphasis supplied) SERVICE . . . Service is to be provided direct from the manufacturer. Third party service is acceptable only if it may be demonstrated that the location that is to provide the service can demonstrate 36 months experience in servicing the model proposed. Failure to receive this certification will be sufficient cause for rejection of this bid. (emphasis supplied) The manual signature of Ms. Klusmeier on ABS's April 1997 Bid certified that the bid was in compliance with all requirements of the ITB, "including but not limited to, certification requirements." ABS is not a manufacturer of the mailing equipment it bid. In its Bid, ABS enclosed a certificate issued by the Department's Minority Business Advocacy and Assistance Office certifying that ABS was a Minority Business Enterprise (MBE) under the provisions of Chapter 287, Florida Statutes. However, ABS failed to specifically include proof of authorized dealership for the equipment specified with its bid. At all times material, the Department's MBE office had a copy of ABS' manufacturer-dealer agreement with Neopost (the manufacturer) and an ABS catalogue displaying all the Neopost bid items and stating that ABS is an authorized dealer for Neopost. However, this information was not part of the subject bid response package. Rather, it had been previously submitted by ABS to obtain MBE certification. It was not re-submitted as part of ABS' ITB response package. ABS has manufacturer's (Neopost's) authorized service centers in Florida. ABS intended that ABS and another authorized dealer would provide service in the State of Florida for the equipment it bid. However, ABS failed to include with its Bid a demonstration that either ABS or the other dealer had a minimum of 36 months' experience servicing the Neopost equipment. The November 1996 ITB had requested the same manufacturer and service information as the subject April 1997 ITB, and ABS responded in the same way to both ITB's. ABS was not ruled unresponsive in November 1996 on that basis. In April 1997, ABS also initially was treated as a responsive bidder. On May 1, 1997, the only two bids (ABS and Pitney Bowes, Inc.) were opened by one of the Department's Purchasing Specialists, Oradell Rollins. The Department posted its intent to award the bid to ABS. On May 5, 1997, Pitney Bowes, Inc., the only other bidder for the subject ITB, filed a timely Notice of Intent to Protest with the Department. Pitney Bowes, Inc., is a manufacturer and bidder which services its own products. The Department's Purchasing Office has never established a pattern of accepting an MBE Certificate in lieu of specified bid elements. The Department afforded Pitney Bowes, Inc., an informal protest procedure without notification to, or participation by, ABS. On May 16, 1997, upon request from the Department's Director of Purchasing, ABS immediately forwarded a letter to the Department from Neopost advising that ABS was an authorized Neopost dealer; that ABS and others had been certified by the manufacturer to service the mailing equipment ABS had bid for the subject ITB; and that ABS had been servicing Neopost equipment for more than 36 months. Ms. Rollins had previously requested this information just after bids were opened but had not indicated it was urgent. This type of information is not normally requested after bid opening. The Department's Purchasing Office considered waiving the missing information because its personnel had dealt satisfactorily with ABS on other contracts for a number of years, but such waiver is not the Department's usual procedure. On May 15, 1997, Pitney Bowes, Inc., timely filed with the Department its Formal Written Protest. Petitioner faults this letter's recitation that the Pitney Bowes, Inc., representative saw the alleged flaws in the ABS bid on the day that bids were opened. Petitioner proved that the Pitney Bowes, Inc., representative could not have seen ABS's bid on the day of the bid opening, but the same information could have been derived subsequently. Pitney Bowes' April 1997, Notice of Protest is not in evidence for comparison with its Formal Written Protest. No nefarious dealings or collusion necessarily flows from the foregoing findings of fact. Based upon a review of the Formal Written Protest of Pitney Bowes, Inc., and upon advice of the Department's General Counsel, the Department determined that ABS's bid on the subject 1997 ITB was, in fact, nonresponsive because, when opened, it had failed to contain "proof of authorized dealership," and also had failed to include the required "certification" on "Third Party Service." On May 22, 1997, the Department sent a letter to ABS advising ABS of the Department's decision and further advising that the Department intended to re-bid for the equipment. ABS received the Department's letter on May 27, 1997. The Department's decision to re-bid instead of to award to Pitney Bowes, Inc., was in part determined by its desire to avoid situations in which there is only one responsive bidder. It was also influenced by Departmental concerns that the Pitney Bowes, Inc., bid was much higher than the disqualified ABS bid. Departmental personnel believed that a re-bid would secure a lower cost to the Department. ABS timely filed its Notice of Intent to Protest and its Formal Written Protest. Pitney Bowes, Inc. was given notice of the referral of Petitioner's protest to the Division of Administrative Hearings and chose not to intervene. ABS established that it currently provides mailing equipment for the Department all over the State of Florida and that it coordinates service for that equipment through a Neopost network in all those locations. However, ABS did not establish that it has provided or serviced exactly the same type of equipment for the Department at each of these locations, as ABS bid in April 1997. Over time, ABS has dealt with Purchasing Specialist Oradell Rollins on these other Departmental Contracts. Prior to the subject 1997 bid opening, Mr. Bowls, ABS's "Neopost Government Specialist," had informed her that ABS covered the State of Florida for Neopost. Ms. Rollins had received an ABS catalogue and ABS's MBE Certificate in connection with ongoing business prior to the April 1997 bid opening. ABS does not perceive that ABS using other dealers certified by the manufacturer (Neopost) constitutes ABS using "Third Party" service agents, nor does ABS consider itself to be a "Third Party," as that term is used in the subject ITB. However, the Department has consistently interpreted "Third Parties" to include any dealers who are not simultaneously manufacturers and bidders, and its ITBs require bidders who are not also manufacturers to demonstrate within their Bid that each service location is certified and has 36 months' experience at the time of bid opening.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a Final Order dismissing the protest of American Business Systems and establishing a time frame in which its Invitation to Bid may be relet. RECOMMENDED this 24th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1997. COPIES FURNISHED: Linda Klusmeier, Qualified Representative American Business Systems 8638 Phillips Highway, Room 12 Jacksonville, Florida 32256 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, South East 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, South East 303 Hartman Building Tallahassee, Florida 32399-2152
Findings Of Fact Prior to June, 1988, HRS determined that it needed 23,871 square feet of office space to house some of its social services for indigents in Northern Escambia County. Since HRS desired more than 2,000 square feet of office space, it was required to bid lease number 590:1987 competitively. To that end, Respondent prepared an Invitation to Bid and a bid submittal package. The package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Specific areas of importance to Respondent in the selection of its office space were: client safety public access, ingress and egress availability of public transportation. The above areas were important to HRS since the agency would render indigent services to approximately 1000 people a month, many of whom are handicapped or lack good mobility due to age or infirmity. The majority of Respondent's clients are served within a 10 day period during each month. A great deal of pressure is placed on the surrounding area due to the in flux of people. Additionally, many of Respondent's clients utilize public transportation since they do not own or have access to personal vehicles. Because of servicing so many people the above factors received a great deal of weight under HRS's consideration of the property it desired to lease and occupy. All of the above areas were covered by Respondent's weighted bid evaluation criteria. Additionally, in order to submit a responsive bid, a prospective lessor was required to meet one of the following qualifications at the time the bid was submitted: (a) be the owner of record of the facility and parking areas; (b) be the lessee of the space being proposed and present with the bid a copy of the lease with documentation of authorization to sublease the facility and parking areas; (c) submit documentation of an option to purchase the facility and/or parking areas; or (d) submit documentation of an option to lease the facility with authorization to, in turn, sublease. The District Administrator of HRS, Chelene Schembera, is ultimately responsible for bidding, selection and leasing of all HRS facilities within District I, including Escambia County, Florida. In order to accomplish this task Ms. Schembera appointed a bid evaluation committee to review and grade the responsive bids under the criteria established in the bid package, and to recommend to her the committee's choice of the lowest and best bid. Ms. Schembera's purpose in establishing the bid evaluation committee was to secure input from a cross section of people who had a variety of backgrounds and knowledge that would be material in evaluating the office space, in light of the uses for which it was intended and the relative public worth of the work space. Ms. Schembera appointed individuals who were familiar with the type of work to be done in the proposed space, as well as persons familiar with the bid process. On July 21, 1988, HRS received five bids on the lease. Intervenors submitted the apparent low bid which Northside consisted of one building located at the Brentwood Shopping Center in Pensacola, Florida. At the time that the Intervenors submitted their bid, they included documentation which showed that they had a contract to purchase the subject facility; they have since closed on that transaction. This bid package did not include the four acres adjacent to the Brentwood Shopping Center property and no contract to purchase or other documentation was submitted as to the four acre parcel of property. Petitioner submitted the apparent second lowest bid which consisted of one building located at Fairfield Plaza in Pensacola, Florida. Petitioner's interest in Fairfield Plaza is that of a lessee under a Master Lease with rights to sublet the property. All appropriate documentation was submitted with the bid. This property was the subject of a semi-friendly foreclosure action at the time that the Petitioner's bid was submitted. Petitioner was still in possession and control of the property. Both Petitioner's and Intervenors' property were within the mandatory geographical area designated in the bid package. Both bids were responsive under the minimum bid specifications and bidder qualifications. The other three bids which were submitted by HRS are not in contention The committee members personally inspected the sites offered by the Petitioner and the Intervenors. While at the Intervenors' site, the committee's concern over the property's minimal parking (as compared to Fairfield) and limited safe public access, ingress and egress were raised. The only access to Intervenor's property was from a very busy multi-lane highway. Certain turns onto and off the property were extremely dangerous. In order to make its bid package more acceptable, Intervenors' representative orally amended the bid package to include the southerly four acres contiguous to the Brentwood property. The Inclusion of the southerly four acres would adequately increase Intervenors' parking. The amendment would also create additional and safer public ingress and egress since the four acres abutted on Murray Lane which intersects Highway 29. This amendment substantially worked to Intervenors' advantage and was a material change to the previously submitted bid. The improper amendment cannot be considered here. Following the on-site inspections, the committee members met and rated the properties submitted by Petitioner and Intervenors according to a Bid Synopsis evaluation sheet which they had been previously provided. The committee members' review of the Intervenors' property included the improper bid amendment. Even with the improper amendment, the unanimous recommendation of the evaluation committee was to award the lease to the Petitioner and Fairfield Plaza. The evaluation committee based its decision on the scores attributed to each property on the Bid Synopsis sheet by the individual committee members. The committee utilized all the weighted bid criteria. However, two factors were of primary importance. One was its determination that the property offered by the Intervenors presented greater problems for ingress and egress due to the congested nature the area. The other consideration was that service to Fairfield Plaza from public transportation was both more frequent and direct. The property offered by the Intervenors had less public transportation service. The stops were less frequent and a significant number of clients would be required to transfer buses to reach Brentwood when utilizing such public transportation. All bus passengers would be required to walk from the bus stop close to Brentwood and attempt at their peril to cross a very busy, dangerous and congested highway. The reasons given by the individual committee members for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. Each individual member gave a rational and reasonable basis for the scoring he or she used on the Bid synopsis score sheets. The scoring was done by each member after discussion of the two buildings and without influence from the other committee members. In essence, the committee felt that Petitioner's property was the better property for the money. Importantly, every committee member came to the conclusion that Petitioner's property was the lowest and best bid. There is no statutory or rule requirement that one scoring method be preferred over another. The only requirement is that the method be rational and reasonable especially where highly subjective, but legitimate criteria are involved in the selection of a piece of property. On these facts, the individual scoring methods used by the individual committee members were not arbitrary and capricious, but were very rational and reasonably related to the relative importance the committee members gave the above factors. The District Administrator initially adopted the committee's recommendation and reported that recommendation to King Davis, the Director of General Services for HRS. The Director of General Services later informed the District Administrator that he and his staff were concerned with the fact that the recommendation was to award the lease to the second lowest bidder. The staff's review considered the improper amendment as part of the Intervenors' bid. Over a ten year period the Petitioner's rental cost was $62,381.00 more than the Intervenors'. In addition, the estimated energy consumption for the first year for the Petitioner's property was approximately $4800 more than for Intervenors. King Davis and his staff did not believe that the justifications cited in the recommendation letter would be considered crucial enough to override awarding the lease to the lowest bidder, should the agency get involved in a bid protest over the award. He and his staff did not disagree that the reasons assigned by the committee and Ms. Schembera were legitimate considerations. Their ultimate concern was that the reasons given by the committee and Ms. Schembera would not be given as great a weight by a Division of Administrative Hearings' hearing officer; and therefore, fail to withstand a potential bid challenge. But the conclusion that the lack of ingress and egress and public transportation could not outweigh the cost differences assumed that Intervenors' bid included the four acres. Without the four acres, the problems with ingress and egress, congestion and public transportation become even more important and can outweigh minor price differences in rent and energy. This is especially true when one considers the impact that the influx of at least 1000 people would have on an already congested and unsafe area. Put simply, the conclusion that the above factors can and do outweigh price and cost considerations in these facts is not an arbitrary and capricious decision, even though others may disagree with that decision. Instead of reconvening the committee after receiving the recommendation from King Davis and discussing the same with him, the District Administrator made the determination that the lease should be awarded to the Intervenors. The District Administrator, acquiesced in Mr. Davis' assessment that HRS could not succeed in a bid challenge. She did not like his advice. In fact, even at the hearing Ms. Schembera still believed Petitioner's property was the lowest and best for HRS purposes. However, through circular reasoning she also concluded that Intervenors' property was the lowest and best bid because she chose it. The agency's ability to succeed in a bid challenge which may or may not happen is not covered by any of the weighted bid evaluation criteria contained in the bid package and is not an appropriate reason to prefer one bid over another. The foregoing is particularly true when the reason given (surviving a bid protest) is based on the occurrence of a future event which may not occur. To reject a bid for a reason outside the bid criteria and one based on an unknowable future event is an arbitrary and capricious act on the part of Respondent. A court-appointed receiver was ordered to take control of the property belonging to the Petitioner on September 28, 1988, after the bid award was announced. Petitioner still retains its right of redemption of the property, and such an interest is sufficient to confer standing on Petitioner to maintain this action. Moreover, the evidence was clear that Petitioner had both the ability and wherewithal to perform the lease should it receive the bid award. Perfected ownership or control is not required. With Petitioner's apparent ability to perform, the fact of the foreclosure action and the receiver should not work against the Petitioner in this bid protest.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order awarding lease number 590:1987 to Eccelston Properties, Ltd., as the lowest and best bidder. DONE and ORDERED this 10th day of January, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1989.
Findings Of Fact Respondent advertised for bids for work to be performed on the Statewide Regional Juvenile Detention Center located in Pasco County identified as Project Number HRS 85-300000. In response to this advertisements Petitioner and Intervenor timely submitted bids on January 23, 1966. According to calculations performed by Respondent, Petitioner was low bidder and Intervenor was the next lowest bidder. The construction budget for this job is $1.5 million, and both bids are considered by Respondent to be within budget. Depending on the alternatives chosen within each bid, Petitioner's bid is lower than Intervenor's by between approximately $6,000 and $40,000. Section B-14 of the advertisement for bids requires each bidder to submit a list of the subcontractors who will perform work on the job for him and specifies that only one subcontractor shall be listed for each phase of the work. Section D of the advertisement for bids specifies the work areas for which a subcontractor must be listed and states that said list is an integral part of each bid submitted. The subcontracting areas include electrical plumbing, mechanical, roofing security control systems, food service equipment and fire protection. Petitioner's bid was rejected on February 4, 1986, because its bid failed to include a roofing subcontractor's name as required in the advertisement for bids. Petitioner does not dispute that its bid was incomplete when submitted since it failed to identify a roofing subcontractor. However, Petitioner contends this omission was a result of clerical error in typing the bide and that, in fact, it had selected Republic Roofing as its subcontractor. John Breen, Petitioner's project manager, testified that it was his intent to use Republic Roofing when he submitted the bide that he had a firm bid from Republic Roofing, and that when this omission was brought to his attention after bids were opened, he identified Republic Roofing in writing on January 24 and 29, 1986, to Brian Seufert an intern architect working for Respondent's project architect. Seufert confirms Breen's testimony through affidavit jointly filed by the parties. Seufert indicates that the project architect has no reason to believe that Petitioner could not perform the work required by the project. By affidavit jointly filed by the parties, Joyce Kleja secretary for Petitioners also supports Breen's testimony about her clerical error in omitting the roofing subcontractor when she typed the bid. Ray Scerbo, an estimator for Republic Roofing, disputes the testimony of Breen through jointly filed affidavit. Scerbo indicates it was not until a couple of days after the bid opening that he was told by Petitioner that Republic Roofing "had the job" if Petitioner was awarded the contract. This conflicts with the first written notice from Breen to Seufert dated January 24, 1986, as well as Seufert's affidavit that Petitioner told Seufert on January 24, 1986, that Republic Roofing had been selected. Scerbo is no longer employed by Republic Roofing. After considering all of the evidence, it is specifically found that Petitioner's omission of Republic Roofing from its list of subcontractors was through clerical error and that Petitioner had firmly decided to use Republic Roofing for subcontracting work prior to submission of its bid. The advertisement for bid required all subcontractors to be listed in any bid in order to allow Respondent to review prior performance and licensure of subcontractors, and also to prevent "bid shopping". Bid shopping is a practice which inflates a general contractor's bid and therefore the actual award by encouraging subcontractors to initially submit high bids to the general contractor and then negotiate a lower price with the general contractor who has received the award. The general contractor's bid remains inflated however and in this way the cost to the state is increased.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order awarding Project Number HRS 85-300000 to Intervenor. DONE and ENTERED this 1st day of April 1986, at Tallahassee Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of April 1986. APPENDIX (DOAH CASE NO. 86-0495B1D) Petitioner has submitted a memorandum and a Proposed Recommended Order, both of which appear to set forth proposed findings of fact in unnumbered paragraphs. For purposes of ruling thereon, the unnumbered paragraphs which appear to set forth proposed findings have been consecutively numbered. Memorandum: Introductory material and not a proposed finding of fact. Adopted in part in Findings of Fact 1, 2, 3, 4, but otherwise rejected as cumulative and unnecessary. Adopted in Findings of Fact 5, 7. Rejected as simply a summary of testimony and evidence and not a proposed finding of fact. Rejected as irrelevant. Adopted in part in Findings of Fact 5, 6. Adopted in part in Finding of Fact 4, but rejected in part in Finding of Fact 2 and otherwise rejected as not based on competent substantial evidence. Proposed Recommended Order: Adopted in part in Findings of Fact 1, 3, but otherwise rejected as unnecessary and irrelevant. Rejected as irrelevant. Adopted in part in Finding of Fact 2, but otherwise rejected as contrary to Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 7. Adopted in Finding of Fact 4. Rulings on Respondent's and Intervenor's jointly filed Proposed Findings of Fact: Adopted in Findings of Fact 1, 3. Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 8. , 6. Adopted in Findings of Fact 6, 7. COPIES FURNISHED: Dennis R. Long Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Sam Powers Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 William Page; Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 John P. Fons Esquire Post Office Drawer 11307 Tallahassee, Florida 32302
The Issue Whether Respondent should sustain Petitioner's challenge to the preliminary determination to reject Petitioner's bid as not responsive to Respondent's Invitation to Bid No. SB 91C-284V and to award the contract to another bidder that submitted a higher bid?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: On March 12, 1991, Respondent issued Invitation to Bid No. SB 91C-284V (hereinafter referred to as the "ITB") through which Respondent solicited the submission of bids to supply Respondent with prestressed concrete poles for a one year period beginning May 16, 1991. The ITB was a multi-page document with various component parts. Bidders were instructed on the first page of the ITB to complete and "RETURN ONE COPY OF ALL BID SHEETS AND THIS [BIDDER ACKNOWLEDGMENT] FORM." They were advised elsewhere on the first page of the ITB that "[o]ne copy of all bid documents that ha[d] page numbers, and this executed Invitation to Bid [Bidder Acknowledgment] [F]orm [had to] be returned for the Bid to be considered." The advisement concerning the requirement that all numbered pages had to be returned for a bid to be considered was repeated at the bottom of each numbered page of the ITB. Directly beneath the Bidder Acknowledgment Form on the first page of the ITB was the following provision: This Invitation to Bid, General Conditions, Instructions to Bidders, Special Conditions, Specifications, Addenda and/or any other pertinent document form a part of this proposal and by reference are made a part thereof. The ITB further provided, among other things, that "[i]n the best interest of [Respondent], [Respondent] reserve[d] the right to reject any and all bids and to waive any irregularity in bids received." Petitioner and South Eastern Prestressed Concrete, Inc. (South Eastern) submitted the only bids in response to the ITB. In accordance with the ITB'S instructions, Petitioner completed and returned to Respondent the Bid Summary Sheet, on which it indicated its price offer. It also completed and executed the Bidder Acknowledgment Form and returned it, along with the entire first page of the ITB, to Respondent. Petitioner, however, failed to return, as part of its bid submittal, all of the numbered pages of the ITB. Omitted from Petitioner's submittal were numbered pages 3 and 4. These missing pages contained paragraphs A. through N. of the ITB's Special Conditions, which covered the following subjects: A. Scope; B. Delivery; C. Award; D. Term of Contract; E. Brand Name; F. Catalog Cuts; G. Estimated Quantities; H. Bid Exempt; I. Bidders Responsibility; J. Corrections; K. Joint Bidding, Cooperative Purchasing Agreement; L. Withdrawal; 1/ M. Minority Certification Application; and N. Public Entity Crimes. There was nothing on numbered pages 3 and 4 of the ITB that the bidder needed to fill out or sign. While paragraphs M. and N. of the ITB's Special Conditions did make reference to certain forms that the bidder had to complete and submit to Respondent, these forms did not appear on either numbered page 3 or numbered page 4. They were separate documents. Petitioner completed these forms and submitted them to Respondent pursuant to the requirements of the Special Conditions. Petitioner did not propose in its bid submittal any contract terms or conditions that were at variance with those set forth in paragraphs A. through N. of the ITB's Special Conditions. Petitioner did not intend to signify, by failing to return numbered pages 3 and 4, any unwillingness on its part to adhere to contract terms and conditions set forth on those pages. Of the two bids submitted in response to the ITB, Petitioner's was the lowest. A preliminary determination, though, was made to reject Petitioner's bid because Petitioner had not returned numbered pages 3 and 4 of the ITB and to award the contract to South Eastern as the lowest responsive bidder. It is this preliminary determination that is the subject of the instant bid protest filed by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner the contract advertised in Invitation to Bid No. SB 91C-284V. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991.
Findings Of Fact In August, 1975, the Department of General Services invited competitive bids for the purchase of supervisory and control equipment and revenue metering equipment for expansion of primary electric utilities in the Capitol Center, a project known as State Project No. DGS-6026/6424, AEP File No. 74288-003. Plans and specifications for the project were developed by the department's consulting architect/engineers Reynolds, Smith and Hills. The Department of General Services (hereinafter Department) and Reynolds, Smith and Hills (hereinafter Reynolds) conducted formal bid opening on September 25, 1975. Bid proposals were received from petitioner, Weston Instruments, Inc. (hereinafter Weston), and from Respondents, Harris Corporation (hereinafter Harris) and Hathaway Instruments, Inc. (hereinafter Hathaway). The amount of the bids were as follows: CONTRACTOR BASE BID ALTERNATE NO. 1-ADD TOTAL Harris 332,000.00 28,649.00 360,649.00 Weston 338,991.00 20,965.00 359,996.00 Hathaway 343,429.00 33,224.00 376,653.00 Hathaway's bid as submitted was responsive to the specifications and other requirements of the bid invitation. Weston's bid was responsive to the specifications and requirements of the bid invitation with the following exception. Specification B-2, in its second paragraph, states: "In order to facilitate the execution of the Agreement, the Bidder shall submit with his proposal a list of and brief description of similar work satisfactorily completed, with location, date of contracts, together with names and addresses of Owners." Weston did not submit that information with its bid but did submit that information on October 9, 1975. The Harris bid as submitted was not responsive to the specifications and requirements of the bid invitation. The material deviations from the specifications found in the Harris bid are as follows: Paragraph 16755-13(c) of the specifications states that data logger equipment by Teletype, Lear Siegler or General Electric will be considered. The Harris bid proposed a data logger manufactured by Practical Automation, Inc. and noted that if Harris was required to conform to the specifications by furnishing a data logger manufactured by one of the three specified manufacturers, its base bid would have to be increased by $635.00. Paragraph 16755-18 of the specifications requires a specific number of supervisory functions at each of the nineteen locations. The Harris bid met the requirements of the specifications at only one of the nineteen locations. At each of the other eighteen locations the Harris bid was from one to three supervisory points deficient. According to the evidence presented it would cost between $250 to $300 per location to furnish the supervisory points left out of Harris' bid. Paragraph 16755-13(d) of the specifications requires that the data logger shall log an uninitiated (alarm) change of status in red lettering. Harris' bid states that the equipment they have chosen is not available with red ribbon printout and that they therefore propose that all changes normally logged in red would instead have an asterisk in the first column. This specification requiring logging in red of an alarm change of status was included by the specifications writer of the architect/engineers as a safety feature. Paragraph 16755-13(e) of the specifications requires that the log shall contain time in a 24 hour format to a tenth of a minute. The Harris bid proposes that the log shall be in seconds rather than tenths of a minute. The specifications require equipment delivery to the job site and substantial completion within 180 calendar days after receipt of Notice To Proceed. The specifications further provide for liquidated damages of $100 per day for each day the contractor fails to meet the above completion date. The Harris bid requested that the liquidated damages clause and the required time for completion be modified to provice that the 180 day period would not commence until all drawings had been approved by the architect/engineers. The architect/engineers, Reynolds, Smith and Hills, calculated that the required drawing time was approximately 60 days. Therefore, the Harris bid proposes that Harris would have 240 days instead of 180 days in which to deliver the equipment to the site and substantially complete the contract. The Harris bid proposed a deviation from the warranty provision of the specifications. The specifications in paragraph E-17 placed the final determination of the need for repairs or changes under the guarantee clause of the specifications with the architect/engineers and the owner. Harris proposes to alter those specifications and place the right of final determination as to the existence and cause of any claim defect with Harris. Harris' bid contained information setting forth their experience with the Micro II System, which is the system they proposed in their bid. That information shows that the Micro II System had been in use no more than two and one-half years at the time of the bid letting. In its evaluation of the bidders' proposals, based upon the data contained in the original bid packages, Reynolds calculated that the deviation from the specifications by Harris gave Harris at least a $10,135 advantage in its bidding (See Petitioner's Exhibit 8). That evaluation did not include a dollar value for the deviation from the specification concerning the warranty. In that evaluation Reynolds noted the failure of Harris to meet the supervisory point requirements. They calculated that this would add $3,900 to Harris' bid based on twelve locations at $300 per location. In fact, Harris failed to meet the requirements at eighteen locations, which at $300 per location, would add $5,400 to Harris' bid. Thus, using the evaluation figures of Reynolds, it appears that Harris' deviations from the specifications gave them at least an $11,635 advantage in the bidding. On October 9, 1975, Reynolds held a conference with each of the three bidders. At that conference Weston provided a list of three names, with addresses of customers for whom Weston had completed work similar to that proposed in its bid. Reynolds did not receive any material information from these references until after October 31, 1975. At least two of the references commented favorably on Weston's performance in letters to Reynolds dated January 13, 1976 and January 20, 1976, respectively. By letter dated October 31, 1975, Reynolds' project manager for this project conveyed the architect/engineers' recommendation for award to the Department. That recommendation was that the contract be awarded to Hathaway Instruments, Inc., for the base bid item only. The recommendation noted that the alternate should be rejected because the bids for the alternate were excessively high. As stated in the letter of recommendation, Reynolds rejected Harris' bid because "there were several major exceptions taken to the specification (sic), the most serious of which was their not being able to meet the delivery schedule." Also, as stated in the letter of recommendation, Weston's bid was apparently rejected because they "could not meet the experience qualifications as specified." Harris, at the time of the bid letting, had five years experience with its Micro I equipment but had only two and one-half years experience with its Micro II equipment. The two lines of equipment constitute two generations of equipment. Neither Harris nor Weston had five years experience with the specific equipment proposed in their bids. Both, however, have had five years experience with the general type system and equipment proposed with Harris being the more experienced of the two. Based upon the evidence presented Weston and Harris are both responsible bidders. In November, 1975, the Department directed Reynolds to contact Harris and determine whether Harris would conform their bid to the specifications. The project manager for Reynolds so contacted Harris and by letter dated November 17, 1975 (Petitioner's Exhibit 4), notified the Department that Harris stated they would deliver the equipment within the time required by the specifications. That letter reiterated Reynolds' recommendation of Hathaway as contained in their letter of October 31, 1975. Reynolds did not retreat from their recommendation of Hathaway and at the final hearing again stated that recommendation. Thereafter, the Department proposed to award the contract to Harris and set the matter for final decision on December 2, 1975. Harris' bid was a responsible offer but was not in full compliance with the bid specifications and conditions. The bids of Weston and Hathaway were responsible offers and were in full compliance with the bid specifications and conditions except as noted in paragraphs 4, 7 and 19 herein. Paragraph B-18 of the Specifications and Contract Documents (Petitioner's Exhibit 1) states that "No bid modification will be accepted after the close of bidding has been announced." Section A of the same document states that bids would be received until 2:00 p.m. EDST, on September 25, 1975. No evidence was presented which would show that the time for receiving bids was extended beyond that set forth above. Therefore, the close of bidding appears to have been at 2:00 p.m., EDST, September 25, 1975. The agreement by Harris to conform their bid to the specifications and conditions constituted a material modification of their bid. This modification occurred in November, 1975, after the close of bidding, and was therefore not allowable under the terms of the Specifications and Contract Documents set forth above. The lowest base bid and alternate bid of those responsible offers received in full compliance with the bid specifications and conditions was that of Weston. No evidence was presented which would show that the Department submitted its complete File on this matter to the Division of Purchasing along with its reasons for recommending a bid other than the low bid meeting specifications, as required by Section 13A-1.02(a), F.A.C.
Findings Of Fact Both DOT and Weekley submitted proposed Recommended Orders. Their proposed findings of fact have generally been adopted here but are addressed in detail in Appendix A, attached and incorporated in this Recommended Order. On or before July 31, 1985, DOT received sealed bids from three bidders for State Project Nos. 86070-3492 and 93220-3403, involving landscaping of interchanges in Broward and Palm Beach counties. Marvin's Garden was the apparent low bidder, with a total of $389,112.19 shown on the face sheet of the bid blank form. Weekley was the next lowest bidder with a total of $419,899.56, and P. J. Constructors, Inc., was the highest bidder with a total of $458,805.90. After review of the bid documents for compliance with DOT bid procedures, a discrepancy was found in the Marvin's Garden bid and DOT notified the parties by letter dated August 20, 1985, that Weekley was the apparent low bidder on the project. The discrepancy was found on page 001 of the bid blank form submitted by Marvin's Garden. For item 570-11, "Water for Plant Establishment," under the column, unit price written in words, Marvin's Garden showed "fourteen thousand two hundred eighty two dollars and sixty six cents." The column, unit price in figures, showed "14,282.66," and the final column, headed "amounts" showed "14,282.16." The bid item was supposed to show the unit price for a thousand gallons of water (which price was to be written in both words and figures) and a total, or extension price for 3,743.125 thousand gallons of water. When the unit price on Marvin's Garden's bid was multiplied by 3,743.125 (number of units), the resulting total price for that bid item was $53,461,781.71. This figure was entered on the form in red ink and was initialled by Raymond Patrick Haverty, the DOT reviewer. Marvin's Garden's total bid for the project was then adjusted to $53,836,611.04, a figure far in excess of either Weekley's or P. J. Constructors' bids. Marvin Gross is the individual responsible for preparing and submitting bids for his corporation. He has been doing bid work for DOT for approximately 20 years and is thoroughly familiar with the bid procedures, forms and standard specifications. He attributes the irregularity on his submission to his "tunnel vision." Unit prices are significant because the quantity designated by DOT is merely an approximate, best guess by the Department engineers. For item 570-II, unpredictable weather conditions will ultimately dictate exactly how much water will be necessary to successfully complete the landscape project. That exact quantity times the unit price will be the basis of payment to the contractor. DOT found no violations of bid requirements in the bids of Weekley and P. J. Constructors, Inc., and none have been raised in this proceeding.
Recommendation For the foregoing reasons, a final order should be issued declaring Weekley the lowest responsible bidder on project Nos. 86070-3492 and 93220-3403, and the contract awarded accordingly. DONE and ORDERED this 2nd day of December 1985, in Tallahassee, Florida. Hearings Hearings MARY CLARK, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 2nd day of December 1985. APPENDIX In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of fact submitted by Respondent and Intervenor in this case. Respondent's Paragraph: Corresponding R. O. Paragraph or basis for rejection: The corporate status and the addresses of the bidders are not material. See Paragraph 1, R.O. See Paragraph 2, R.O. and Conclusion of law 2, R.O. See Paragraph 3, R.O. See Conclusion of law 2, R.O. See Paragraph 3, R.O. See Paragraph 6, R.O. See Paragraph 2, R.O. Intervenor's Paragraph: Corresponding R.O. Paragraph or basis for rejection: See Paragraphs 1 and 2, R.O. Facts which relate to the composition of bid packages are not material. See Paragraph 3, R.O. See Paragraph 3, R.O. See Conclusion of law 2, R.O. See Paragraph 3, R.0. See Conclusion of law 5, R.O., relating to the specifications of the department. The remainder of the paragraph proposed is immaterial. See Paragraph 5, R.O. COPIES FURNISHED: Thomas E. Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32301 Mr. Marvin Gross, President Marvin's Garden and Landscape Services, Inc. 37 North McIntosh Sarasota, Florida 33582 Mel L. Wilson, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Harry R. Detwiler, Jr., Esquire HOLLAND & KNIGHT Post Office Drawer 810 Tallahassee, Florida 32302
The Issue Whether the Barton-Malow Southern, Inc., deviated from the bid requirements, and if so, whether such deviation consists of a minor deviation which may be waived by the respondent, or whether Ron A. Royal, Inc., should be awarded the elementary school "C" project as the lowest responsive bidder.
Findings Of Fact On April 20, April 27, and May 4, 1986, the Board advertised its Notice of Call for Sealed Bids, soliciting bids for the construction of Elementary School "C". The notice advised that the contract to be awarded would require approval of subcontractors by the Board and stated that the Board "reserves the right to reject any and all bids received and to waive any and all informalities in regard thereto." A pre-bid conference was held on May 15, 1986, at which time the potential bidders were advised that page 14 of the bid documents entitled "List of Subcontractors" would be deleted and addendum #1 would include a more specific list of subcontractors to be completed by the bidder. The original list of subcontractors stated: The undersigned, hereinafter called "Bidder", list below the names of all the subcontractors who will perform under the Bidder. Any work item (Trade) not included will be assumed by the owner as being performed by the Bidder's own forces." A space was provided for the bidder to state the work item and the name of the subcontractor who would perform the work. Addendum #1 instructed the bidders to delete the original page C.14 and insert the enclosed sheet C.14 (addendum #1) "List of Subcontractors" for submission with the sealed bids. The substituted list of subcontractors provided as follows: The undersigned, hereinafter called "Bidder", lists below the names of the subcontractors who will perform under the Bidder. In the event the general contractor will perform one of the phases listed with his own personnel, he shall state by "general contractor". The form listed 20 specific areas of work, such as site work, iron and steel work, roof decks, and electrical, and provided a space for the bidder to fill in the firm name and address of the subcontractor for each specific area. Bids were submitted to the Board by nine (9) general contractors. The lowest bid by $310,000, was submitted by Barton-Malow; the second lowest bid was submitted by Royal. On the list of contractors submitted with Barton Malow's bid, Barton- Malow listed "G.C". (General Contractor) for the work areas described as site work, concrete work, masonry work iron and steel work, and lathing and plastering. Barton-Malow listed a subcontractor and "G.C." for phases described as hard tile and electrical. For the work areas described as "roof decks" and "roofing and sheet metal" three (3) subcontractors were listed for each of the areas. The list submitted by Royal with its bid provided that the concrete work would be performed by the general contractor and listed a single subcontractor for each of the other 19 areas of work specified. Barton-Malow was the only bidder who listed multiple subcontractors for a specified work area. In the blanks provided for the subcontractors' addresses, Royal listed the city where each subcontractor was located; Barton-Malow did not provide any addresses bout stated at the top of the column "will be advised upon request." None of the bidders provided street addresses for the subcontractors, however, only one bidder other than Barton Malow failed to provide the city in which the subcontractor was located. Immediately after the bids were opened and read, 1/ the meeting was adjourned and Mr. Derryberry, Mr. Collins, and two other people reviewed the bids. Mr. Derryberry concluded that the Barton-Malow bid was not in compliance with the bid requirements due to the manner in which Barton-Malow had filled out the subcontractor list. Mr. Derryberry therefore recommended to the Board that the Barton-Malow bid be rejected because of the perceived irregularities and the bid of Royal be accepted. The recommendation of the architect was adopted as the recommendation of the school administration and presented to the Board at a public meeting on June 3, 1986. The Board received the report of the architect and the administration, heard from the attorneys and representatives of Barton- Malow and Royal, and then voted to waive any irregularities and accept the Barton-Malow bid. The original page C.14 was approved by the Board in about 1980 and used since that time. However, there had been some difficulty with that form on two different jobs within the last six months, and therefore it was decided to clarify the purpose of the form by specifically listing all the major subcontracting areas. The intent was to require all bidders to list the primary subcontractor in each of the major work areas, and thus prevent bid shopping after the bids were opened. The architect, Mr. Derryberry, prepared and included the amended form C.14 as part of Addendum #1 to the bid documents. Although the Board never formally approved the amended form, Mr. Derryberry had the authority to clarify any of the bid documents by addendum. Page C.14 (Addendum #1) lists 20 major subcontracting areas; however, in almost all of the areas it would be possible for more than one subcontractor to perform the designated work, and in several areas it would be unlikely that one subcontractor would perform all the required work. For example, site work includes paving, earth moving, culvert work, fencing, and irrigation, and one subcontractor would not normally do the work in all those areas. The amended page C.14 does not state that only one subcontractor should be listed for each specified work area. The bidders were not advised at the pre-bid conferences or subsequent thereto, that only one subcontractor should be listed in each category. The only information the bidders received regarding the list of subcontractors was the information contained on the revised page C.14. In other words, the bidders were simply directed to list "the names of the subcontractors who will perform under the Bidder", and to list general contractor when "the general contractor will perform one of the phases listed with his own personnel." In the subcontractor list submitted with their bid, Barton-Malow listed "Batten Electric Co./G.C." for the subcontract "Electrical", and listed "Bauer & Assoc./G.C." for the "Hard Tile" subcontract. The listing of a subcontractor and the general contractor in these areas is not a deviation from the bid requirements. There is no indication on the list submitted by Barton- Malow that the listing of a subcontractor and the general contractor in the hard tile and electrical categories meant anything other than both the subcontractor and the general contractor would perform the work required in those areas, and there was no evidence presented at the hearing that would require a different conclusion. 2/ Categories 5 and 6 on the subcontractor list are "roof decks" and "roofing and sheet metal." Although listed as two separate categories, the same subcontractor would have to perform both due to the bid requirements. Further only one subcontractor can perform the roofing work; it is not an area that is divisible into subcategories that can be performed by different subcontractors. For categories 5 and 6, Barton-Malow listed "H. H. Robertson/Architectural Exteriors/Commercial Roof Decks." As admitted by Barton-Malow, that all three subcontractors "will perform" the subcontract is an impossibility. 3/ From the list submitted by Barton-Malow it cannot be determined who will perform and be responsible for the roofing work. When asked at the hearing who was going to perform the roofing work for Barton Malow, the vice-president of operations for Barton-Malow responded, "One of those three would have done it." He indicated that a submission would have been made to the Board designating the subcontractor. By listing three subcontractors for the two roofing categories, Barton-Malow deviated from the bid requirements. The subcontractor list contained one basic requirement, that the subcontractors listed "will perform." By listing three subcontractors for the roofing, when only one subcontractor could performs Barton-Malow would be able to bid shop for subcontractors after the bid submission. This would give Barton Malow a definite advantage over the other bidders who complied with the bid requirements and listed only the one contractor who would perform the work. The other bidders would be bound to use the subcontractor listed and therefore, would be unable to negotiate for a better price after obtaining the contract. However, by listing multiple subcontractors, Barton-Malow would be able to negotiate for a better price because it had not committed itself to any one subcontractor. In five categories, site work, concrete work, masonry work, iron and steel work, and lathing and plastering, Barton Malow listed general contractor. About an hour after bid opening, Mr. Derryberry called Mr. Polso, the Vice- President of Operations for Barton-Malow, to inquire about the bid because it was so much lower than the other bids. Mr. Polso assured Mr. Derryberry that there had been no mistake in the amount bid. Mr. Derryberry then asked about the listing of general contractor for the iron and steel work because he had never known of a general contractor doing that type of work. Mr. Polso stated that he had not had time to determine the low bidder in that category and was still getting prices. He also said that Barton-Malow would not be doing the lathing and plastering. However, when Mr. Derryberry advised that he was recommending that the bid be disqualified due to the incompleteness of the subcontractors form and asked whether Barton-Malow wished to withdraw its bid, Mr. Polso stated that Barton-Malow had no intention of withdrawing its bid. Subsequently, Mr. Polso met with Mr. Derryberry and Mr. Collins at the school offices and advised them that Barton-Malow had every intention of performing the work where general contractor had been listed. Barton-Malow is a wholly owned subsidiary of Barton Malow Company and has the resources of Barton-Malow Company available when necessary. In 1985, Barton-Malow did between 60 and 70 million dollars of construction work; Barton- Malow Company had a dollar volume of 600 million dollars. Barton-Malow has the capacity to perform work in the areas where it listed general contractor. Barton-Malow prepares its bid by estimating the value of the total project and the value of the majority of the specific trades involved. If Barton-Malow does not receive a bid from a subcontractor that it feels is competitive in a particular trade area, it performs that work itself. The C.14 (Addendum #1) form permitted a bidder to list "general contractor" in any or all subcontract areas in which it would perform the work with its own personnel. Once the bids are opened, the bidder cannot unilaterally substitute a subcontractor for the general contractor. The general contractor would be required to do the work unless it received authorization to substitute a subcontractor based upon a showing of good cause. The evidence does not support a finding that Barton-Malow was incapable of performing the work in the areas in which it listed "general contractor." Therefore Barton- Malow did not deviate from the bid requirements by listing "general contractor" in five of the twenty specified areas. Although Baron-Malow deviated from the bid requirements by failing to list any addresses on its subcontractor list, this was a minor irregularity which did not give Barton-Malow any competitive advantage over the other bidders. In Division C, Article 5, Section 5.3.1., the bid documents provide: It is the intent of the owner to award a Contract to the lowest responsible Bidder provided the Bid has been submitted in accordance with the requirements of the Bidding Documents....The Owner shall have the right to waive any informality or irregularity in any Bid or Bids received and accept the Bid or Bids which in his judgment, is in his own best interests.
The Issue The issues are whether the bids submitted by Daffin and Gulf Coast were responsive, and whether the failure by the Department of Corrections to evaluate each proposal at the time the proposals were opened to determine if the proposal was responsive is fatal to consideration of the bids under the terms of the ITB.
Findings Of Fact The Department issued Invitation to Bid No. 94-DC-6279 (the ITB) on May 27, 1994. The ITB requested bidders to submit proposals to provide receipt, storage and delivery of frozen and non-frozen food products. The bid was separated into five distinct regions and vendors could bid on any or all of the regions. Proposals had to be filed with the Department by July 20, 1994, and were opened on that date. The bid was divided into two parts for purposes of point distribution. Sixty (60) points were allotted for price criteria, and forty (40) points were allotted for additional, non-price criteria. [Joint Exhibit A.] The Additional Criteria, which related to non-costs issues and were not mandatory criteria, were listed in Section 4.8.2. of the ITB as follows: Additional Criteria 40 Points Prior experience and history of timely deliveries Condition of equipment/type - # (number of) trucks-conditions Location of contractor's facilities Personnel/staffing [Joint Exhibit A.] Addendum 2 to the ITB further provided that: 4. Direct your attention to the additional criteria used for evaluation. The low bid will be 60 points (Note: 4.3 states erroneously 50 percent; 60 is correct). Forty [40.] will be for additional criteria listed in the ITB. We suggest that you list the information in additional criteria for consideration and evaluation. Jim Morris, Bureau Chief of General Services for the Department of Corrections, was the individual responsible for monitoring the ITB. [R. pg. 66, line 14-16; pg. 75, line 5-12.] Bill Bowers, Chief of Food Services for the Department of Corrections, participated in defining the scope of the contract, and assembled the criteria for the ITB. [R. pg. 108, lines 10-25; pg. 117, lines 18-21.] The Department's evaluations were conducted by Howell L. Winfree, III, J.L. (Joe) Murphy; Fred J. Boyd; Robert Sandal and Chris Dennard. [Joint Exhibit M and N.] The criteria used by the Department's evaluator were as follows: Prior experience and history of timely deliveries (15) (Length of time in distribution business and any known complaints by customers) Condition of Equipment/type (10) Task- related experience (Age of trucks/with freezer) Location of Contractor's facilities (10) (Location of distribution points in relation to regions being served) Personnel/Staffing (5) (Is sufficient staff available) [Joint Exhibit L.] The criteria scoring sheet used by the Department in evaluating the bids submitted, specifically Joint Exhibit L, was not included in the ITB. [Joint Exhibit A.] Six vendors submitted bids on the Department's five regions. Pride submitted a bid for all five (5) regions requested by the Department's ITB. [Joint Exhibit D.] After the evaluation of the bids was conducted by the Department, the following awards were made: Region I - Daffin Region II - C & W Region III and V - Gulf Coast Region IV - Pride [Joint Exhibit F.] COMPETITIVE BID PROCEDURE At the time the bids were publicly opened the Department did not make a determination that the bids were responsive. [R. pg. 73, lines 4-8.] No one in the legal office made a determination that the bids were responsive to the ITB. [R. pg. 77, lines 2-6; pg. 85, lines 2-17.] No one made a determination, written or otherwise, that the bids submitted in response to Invitation to Bid No. 94-DC-6279 were responsive to the ITB. [R. pg. 76, lines 6-10; pg. 97, lines 13 The Department transmitted the bids and evaluation materials to the evaluators after the bids were opened. There is no evidence that any of the bids failed to meet technical qualifications. [R. pg. 78, lines 4-8; pg. 79, line 17 through pg. 80 line 2; pg. 83, lines 18-25; pg. 85, lines 2-17.] Paragraph 4.11 of the ITB permitted the Department to obtain from a vendor information by questioning the vendors if necessary to resolve questions which might arise about the vendors' responses. None of the vendors controverted this provision in the ITB. The Department did seek and consider such additional information from Daffin during a site visit. [R. pg. 141, line 21 through 147.] Daffin's bid response included the following documents: Signed Invitation to Bid Cover Sheet Signed Public Entity Crimes Form One page memo re: Requested Criteria Signed Addendum #1-4 to the Invitation to Bid Signed Price Quote Sheet [Joint Exhibit C.] Daffin Supply Company (Daffin) and Pride were the only vendors that submitted bids for Region I in response to the ITB. [Joint Exhibit F and H.] Daffin's price was $1.389 per case for receipt, storage and delivery of the food items, and Pride's price was $2.5296 per case for receipt, storage, and delivery of the food items. Daffin received a total of 69.26 on its evaluation, and Pride received 46.49 on its evaluation for Region I. Daffin received the highest point score for its bid for Region I, and Pride received the second highest point score for its bid for Region I. [Joint Exhibit H.] In response to the Additional Criteria requirements, Daffin included only the following information: As additional criteria, we have been in the Supply and Distribution business for over twenty Drive in Panama City, Fla. The warehouse has three receiving docks and a large enclosed staging area. [Joint Exhibit C.] Howell L. Winfree, III, indicated regarding Daffin's bid that no information was available regarding the condition or type of Daffin's equipment or its personnel. J.L. Murphy's evaluation of Daffin's bid states, "Insufficient detail to evaluate properly." Chris Dennard's evaluation of Daffin's bid states, "This bidder did not provide sufficient information about their experience, equipment, personnel to give this evaluator an indication they could handle this bid if awarded." Fred Boyd's evaluation of Daffins bid states, "This vendor did not supply information which shows qualification for this bid." [Joint Composite Exhibit L.] Only one of the five evaluators gave Daffin points for these criteria, and Daffin received only 9.26 points of the 40 available non-costs criteria points. Pride received a significant number of the total points awarded for the non-costs criteria. However, Pride trailed Daffin by 23 points overall because Pride's cost was almost a dollar more per case. Subsequent to the bid evaluations, Mr. Morris and Mr. Bowers made a site visit to Daffin Supply Company. The purpose of the visit was to become familiar with the vendor, and to determine the company's capacity to store and transport the food items. R. pg. 75-76, lines 22-25; 1-2; pg. 85, line 18 through pg. 86, line 7; pg. 118, lines 4-14.] Until Mr. Morris and Mr. Bowers spoke to Mr. Daffin, the Department was not certain whether Daffin had facilities, truck and staff to carry out the bid. [R. pg. 114, lines 19-23.] After the site visit, the Department determined that Daffin could provide the services required by the bid for Region I. [R. pg. 118, lines 4- 18.] On September 1, 1994, subsequent to the bid opening, the Department received a letter from Daffin evidencing that they had an agreement with Ryder Truck Leasing company to lease trucks to carry out the services requested in the ITB; the letter is dated September 1, 1994. The Department did not conduct a site visit of Pride or any other bidder's facilities. Pride had been providing the services being bid upon to the Department prior to the ITB. The Department awarded Gulf Coast Food Service (Gulf Coast) the highest point score for its bid for Regions III (90.60 points) and V (90.60), and awarded Pride the second highest point score for its bid for Regions III (59.56 points) and V (59.56 points). Gulf Coast bid $1.63 per case and Pride bid $2.5296 per case to receive, store, and deliver the food items in both Regions III and V. [Joint Exhibit H.] Gulf Coast's bid response included the following documents: Signed Invitation to Bid Cover Sheet Signed Public Entity Crimes Form One page Letter re: Company Criteria Signed Addendum #1-4 to the Invitation to Bid Signed Price Quote Sheet Annual Report - Suncoast [Joint Exhibit B.] Gulf Coast's bid included the following information relating to the non-cost criteria: The Condition of the Equipment. The Bid stated "15 fully equipped [sic] temperature controlled trucks." [Joint Exhibit B; R. pg. 129, lines 1-3.] Prior Experience/Timeliness of Deliveries. The bid stated "8 years of excellent service to Foodservice Industry." [Joint Exhibit B; R. pg. 59, lines 9-13; pg. 129, lines 7-21.] Personnel/staffing attributed to the bid. The bid stated "Fully trained delivery staff with 5 years no accident safety record," and "Fully trained senior staff of buyers with over 90 years combined experience." [Joint Exhibit B; R. pg. 129, lines 7-21.] Pride's bid response included the following documents: Signed Invitation to Bid Cover Sheet. Unsigned Public Entity Crimes Form (Pride exempt.) Signed Addendum #1-4 to the Invitation to Bid. Signed Price Quote Sheet 29 page attachment covering the requirements of the bid and the additional criteria listed in Section 4.8.2 of the ITB. [Joint Exhibit D.] Pride listed the type of equipment by model name, size, and the quantity, as well as the condition of such equipment utilized for transportation and for the other requirements of the project [Joint Exhibit D; R. pg. 59, lines 18-21]; listed information regarding its shipping and receiving procedures; customer surveys to indicate prior experience and history of timely deliveries [Joint Exhibit D]; the staff positions that would be dedicated to the project for each location, and the location of all its facilities. [Joint Exhibit D; R. pg. 59, line 25 through pg. 60, line 5.] Pride submitted information relating to each of the criteria listed in the ITB. The total savings on the award of these three contracts to Daffin and Gulf Coast as opposed to Pride is $228,548.09. Pride filed a timely challenge to the award of the contracts for Regions I, III and V.
Recommendation It is, accordingly, RECOMMENDED, That the Petition of Pride be dismissed, and the bids be awarded to Gulf Coast and Daffin. DONE and ENTERED this 8th day of February, 1995. 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 8th day of February, 1995. APPENDIX The parties submitted proposed findings of fact which were read and considered. The following states which of those facts were adopted and which were rejected and why: PETITIONER'S FINDINGS RECOMMENDED ORDER Paragraph 1 Paragraph 1 Paragraphs 2,3 Paragraphs 7,8 Paragraph 4 Paragraph 4 Paragraph 5 Rejected as contrary to facts Paragraphs 7,8 Paragraphs 5,6 Paragraphs 6,9 Subsumed in 5,6 Paragraphs 10-19 Paragraphs 9-17 Paragraphs 20,21,22 Conclusions of Law Paragraphs 23-26 Paragraphs 18-21 Paragraph 27 Conclusion of Law Paragraph 28 Subsumed in 22 Paragraph 29 Paragraph 22 Paragraph 30 Irrelevant, and subsumed in 15 Paragraphs 31,32,34 Paragraph 23 Paragraph 33 Irrelevant. Although information may have been provided about staff, the evaluations had already been completed and there is no evidence that this added information changed the already completed evaluations. Paragraphs 35-37,39-41 Paragraphs 24-29 Paragraph 38,42 Contrary to facts. Paragraph 43-47 Paragraphs 30-33 RESPONDENT'S FINDINGS RECOMMENDED ORDER Paragraphs 1-3 Paragraphs 1-3 Paragraphs 4,5 Paragraph 12 Paragraph 6 Subsumed in 12 Paragraph 7 Paragraph 19 Paragraph 8 Subsumed in 35 Paragraph 9 Paragraph 20 Paragraph 10 Paragraph 27 Paragraph 11 Paragraph 35 Paragraphs 12,13 Paragraph 27 Paragraph 14 Subsumed in 35 Paragraph 15 Paragraph 27 Paragraphs 16,17 Paragraphs 34,35 Paragraph 18,19 Respondent's order deleted 18,19 Paragraph 20 The evaluation was proper; however, the Department did not follow Rule 60A-1.001, F.A.C. Paragraph 21 There was no evidence of fraud or dishonesty. See comments to Paragraph 20, above, and Conclusions of Law. Paragraph 22 Paragraph 22 Paragraph 23 Subsumed in 22 Paragraph 24 Paragraph 23 Paragraphs 25,26 Paragraph 22 Paragraph 27 Subsumed in 22 Paragraph 28 Paragraph 33 Paragraph 29 Subsumed in 22 and 27 Paragraph 30 Conclusions of Law Paragraph 31 Paragraph 12 Paragraphs 32,33 Conclusions of Law Paragraphs 34,35 Paragraph 23 Paragraph 36 Paragraph 24 Paragraph 37 Conclusion of Law Paragraph 38 Argument Paragraph 39 Conclusion of Law Paragraph 40 Paragraph 23 Paragraph 41 Conclusion of Law COPIES FURNISHED: Wilbur E. Brewton, Esquire I. Ed Pantaleon, Esquire 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Louis A. Vargas, General Counsel Steven Ferst, Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
