The Issue Whether Respondent should sustain Petitioners' challenge to the preliminary determination to reject their bid as not responsive to Respondent's Invitation to Bid for Lease No. 590: 2286? 1/
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: Earlier this year, Respondent issued an Invitation to Bid for Lease No. 590: 2286 (hereinafter referred to as the "ITB"). The first page of the ITB contained the Bid Advertisement, which read as follows: The State of Florida, Department of Health and Rehabilitative Services is seeking an existing facility in Dade County to lease for use as office space containing approximately 30,086 net rentable square feet. The space proposed must be an office environment. Converted factories/warehouses in industrial areas are not acceptable. The facility shall be located within the following boundaries: North By S.W. 8th Street, South By S.W. 88th Street, East By S.W. 37th Avenue, Southeast By South Dixie Highway, and West By S.W. 87th Avenue. Any facility located on a parcel of land which abuts any of the street boundaries is consider[ed] within the boundaries. Occupancy date of 8/01/91. Desire a Ten (10) year lease with three (3)- two (2) year renewal options. Information and specifications may be obtained from Mr. Philip A. Davis, Facilities Services Manager, 401 N.W. 2nd Avenue, Suite S721, Miami, Florida 3312, (305) 377-5710. Please reference lease number 590: 2286. Program requirements will be discussed at a pre-proposal conference to be held at 10:00 a.m. on 4/22/91 at 401 N.W. 2nd Avenue, Suite S721 Miami, Florida 33128. Bid opening date will be on 5/30/91 at 10:00 a.m. at the above mentioned address. Minority business enterprises are encouraged to attend the pre-proposal conference and participate in the bid process. The Florida Department of Health and Rehabilitative Services reserves the right to reject any and all bids and award to the bid judged to be in the best interest of the state. The second page of the ITB contained the definitions of various terms used in the ITB. Among the terms defined were "dry and measurable" and "existing building." "Dry and measurable" was defined as follows: These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measurable" the proposed space must be enclosed with finished roof and exterior walls in place. Interior floors need not be completed. Exterior windows and doors need not be installed. The proposed area is not required to be completed. These characteristics conform to standard lessor construction practices. This definition is identical to the definition of this term found on page 1-5 of Respondent's leasing manual, HRSM 70-1. "Existing building" was defined as follows: To be considered as existing the entire space being bid must be dry and capable of being physically measured to determine net rentable square footage. at the time of bid submittal. On the ninth page of the ITB, the following advisements, among others, were given: The department reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida. Such rejec- tion shall not be arbitrary, but be based on strong justification which shall be communi- cated to each rejected bidder by certified mail. * * * The department reserves the right to waive any minor informalities or technicality and seek clarification of bids received when such is in the best interest of the state, but not limited to the correction of simple mistakes or typo- graphical errors. Such corrections will be initiated [sic] and dated on the original bid submittal by the bidder. Attached to the ITB and incorporated therein was a document entitled "Standard Method of Space Measurement." It read as follows: The purpose of this standard is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). It should also be noted that this standard can and should be used in measuring office space in old as well as new buildings, leased office space as well as State-owned office space. It is applicable to any architectural design or type of construction because it is based on the premise that the area being measured is that which the agency may occupy and use for its furnishings and its people. This standard method of measuring office space measures only occupiable space, undistorted by variances in design from one building to another. It measures the area of office building that actually has usable (rental) value and, therefore, as a standard can be used by all parties with confidence and a clear understanding of what is being measured. Area Measurement in office buildings is based in all cases upon the typical floor plans, and barring structural changes which affect materially the typical floor, such measurements stand for the life of the building, regardless of readjustments incident to agency layouts. All usable (rentable) office space, private sector leased, State-owned, or other publicly owned shall be computed by: Measuring to the inside finish of permanent outer building walls to the office side of corridors and/or other permanent partitions, and to the center of partitions that separate the premises from adjoining usable areas. This usable (rentable) area shall EXCLUDE: bathrooms, public corridors, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closets, electrical closets, telephone equipment rooms, - - and such other rooms not actually available to the tenant for his furnishings and personnel - - and their enclosing walls. No deductions shall be made for columns and projections structurally necessary to the building. The attached typical floor plan illustrates the application of this standard. 3/ Petitioners submitted a bid in response to the ITB. 4/ In their bid they proposed to lease to Respondent space on the first and second floors of a building located at 8500 S.W. 8th Street in Miami, Florida. The space offered by Petitioners is currently occupied. At the time of bid submittal, all of the proposed space on the second floor was "dry and measurable," as that term is defined in the ITB. It encompassed a total of 26,540 square feet. At the time of bid submittal, only a portion of the proposed space on the first floor, amounting to 4,400 square feet, was "dry and measurable," as that term is defined in the ITB, inasmuch as the proposed space on this floor included a breezeway area that did not have either a front or back exterior wall in place. 5/ Subsequent to the submission and opening of bids, Petitioners enclosed this breezeway area by erecting exterior walls. Accordingly, the entire space offered by Petitioners was not "dry and measurable" at the time of bid submittal as required by the ITB. Bids were opened by Respondent on May 30, 1991. By letter dated June 18, 1991, Respondent notified Petitioners that their bid had been deemed non-responsive. The letter read as follows: The bid you submitted for lease No. 590: 2286 has been determined to be non-responsive because the proposed space is not dry and measurable. The breezeway area proposed on the ground level of your premises at 8500 S.W. 8 Street, Miami, does not have exterior walls in place. The invitation to bid on lease No. 590: 2286 provides on page 2: "Dry and Measurable- These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measur- able," the proposed space must be enclosed with finished roof and exterior walls in place. You have the right to file a protest. The protest must be filed in accordance with S.120.53(5), Florida Statutes and Chapter 10-13.11 Florida Administrative Code. Failure to file a protest within the time prescribed in S.120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. To comply with the referenced statute, a written notice of intent to protest must be filed with the contact person listed on the Invitation to Bid for lease No. 590: 2286 within 72 hours after receipt of this notice. Within ten calendar days after the notice of protest is filed, a formal written protest and protest bond must be filed with the contact person. The bond must be payable to the department in an amount equal to one percent of the total lease payments over the term of the lease or $5,000, whichever is less. This determination was the product of, not any unlawful bias or prejudice against Petitioners, but rather the honest exercise of the agency's discretion. Petitioners subsequently filed a protest of this preliminary determination to find their bid non-responsive. It is this preliminary determination that is the subject of the instant bid protest proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health and Rehabilitative Services enter a final order rejecting Petitioners' bid for Lease No. 590: 2286 on the ground that said bid is non-responsive. RECOMMENDED in Tallahassee, Leon County, Florida, this 25th day of September, 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 25th day of September, 1991.
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent should award a contract in accordance with an invitation to bid to the Petitioner, to some other bidder, or reject all bids and reissue an invitation. Petitioner contends that it was the low bidder in response to the invitation; that its bid was responsive; and to the extent that it was not responsive, any defects were of a minor sort which should be waived. Petitioner contends that the Respondent has previously waived irregularities such as existed in the Petitioner's bid and should therefore waive them in this case. The Respondent contends that the Petitioner's bid was not responsive, that the irregularities in Petitioner's bid are not minor, that any mistakes the Respondent has made in past acquisitions should not be repeated, and that the contract should be awarded to another company.
Findings Of Fact The Respondent issued an invitation to bid for a project known as the "Animal Science/Dairy Science Building" at the University of Florida. The project was given No. BR-108 by the Respondent. Petitioner was the lowest bidder in response to the invitation. The next lowest bidder, Charles R. Perry Construction Company, submitted a bid approximately $37,000 higher than Petitioner's bid. Perry has not filed any formal protest nor intervened in this proceeding. Petitioner is a responsible contractor and has in the past entered into construction contracts with the Respondent. Petitioner's bid was rejected by the Respondent. The Petitioner protested the rejection of its bid in a timely manner. Paragraph "B-15" of the bid specifications provides in pertinent part, as follows: In order that the Owner may be assured that only qualified and competent sub- contractors will be employed on the project, each Bidder shall submit with his Proposal a list of the subcontractors who would perform the work for each Divi- sion of the Specifications as indicated by the "List of Subcontractors" form contained in these Specifications... only one subcontractor shall be listed for each phase of the work. * * * No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section "B" of the invitation for bid provided space for the bidder to list the name and address of subcontractors for the roofing, masonry, plumbing, mechanical, electrical, meat processing equipment, and controls and instrumentation phases of the project. In Section "B" of its bid, Petitioner listed two subcontractors for the plumbing, mechanical, and controls and instrumentation phases of the project. Listing two subcontractors does not comport with the bid specification requiring that only one subcontractor be listed for each phase. Petitioner listed two subcontractors because one of the subcontractors submitted a proposal to Petitioner only fifteen minutes prior to the time when the bid had to be submitted, and Petitioner was unsure of whether the last-minute proposal included all of the work that the Petitioner anticipated would be required. In addition, Petitioner felt that one of the subcontractors may not have been acceptable to the Respondent. The requirement that bidders list only one subcontractor for each phase of a project helps to discourage "bid shopping." Bid shopping is a practice whereby a contractor who receives a bid from a subcontractor approaches another subcontractor with that bid and encourages the other subcontractor to reduce its price. If the other subcontractor responds, this reduced price can be taken back to the original subcontractor. The original subcontractor is then confronted with the choices of either lowering its bid or losing the project. Bid shopping that occurs after a bid has been accepted by the owner does not benefit the owner. It benefits only the bidder, who is able to reduce its costs and therefore increase its profit. Requiring that one subcontractor be listed for each phase cannot serve to completely eliminate bid shopping. A contractor could still bid shop by listing itself as the subcontractor, then after winning the contract shop between several subcontractors. A contractor could also bid shop by changing subcontractors after the bid award. In either case, however, the contractor would need to secure the approval of the owner. The practice is thus discouraged. If a bidder lists two subcontractors for a phase of the project, that bidder would have an advantage over those who listed only one subcontractor. Listing two subcontractors enables the bidder to make a choice as to the best subcontract bid at a time later than the choice is made by bidders who list only one subcontractor. In addition, listing two subcontractors makes it easier for the bidder to engage in bid shopping, which would be more difficult for bidders who listed only one subcontractor. Paragraph "B-24" of the bid specifications for this project provides in pertinent part: The Contract will be awarded . . . to the lowest qualified bidder pro- vided his bid is reasonable and it is in the best interest of the Owner to accept it. * * * The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The listing of two subcontractors for phases of the project is not a mere informality in the bid. It is directly contrary to Paragraph "B-15" of the bid specifications. It would not be in the interest of the owner to accept a bid in which two subcontractors are listed for phases of the project. The integrity of the acquisition process would be damaged by allowing such a deviation because a bidder who listed two subcontractors would have gained an advantage over bidders who complied with the bid specifications. It is not in the best interest of the Respondent to waive the defect in the Petitioner's bid. On at least two prior occasions, the Respondent awarded contracts to bidders who listed more than one subcontractor per phase of the work. One of these projects was for a gymnasium at Florida Atlantic University (Project No. BR-603). Another was for a window replacement project at Florida State University (Project No. BR-342). In at least three other projects, the Respondent awarded contracts where the bidder failed to list the name of any subcontractor for one or more phases of the work. These were for the cancer center at the University of South Florida (Project No. BR-569), the student housing facility at the University of South Florida (Project No. BR-576), and an expansion project at Florida A & M University (Project No. BR-343). The bid specifications for all of these projects were not offered into evidence; however, the Respondent had utilized the same specifications as required in this project at all pertinent times. Failing to list any subcontractor for a phase of a project constitutes approximately the same defect in a bid response as listing two subcontractors. It provides even greater opportunities for bid shopping and an advantage to the bidder over those who list subcontractors as required by the specifications. In several other projects, it appears that the Respondent has awarded contracts to bidders whose bids contained defects of the same magnitude, but a different sort than the listing of two subcontractors. It does not appear that the Respondent has awarded contracts where bidders have listed more than one subcontractor, no subcontractor, or otherwise violated bid specifications because of any policy or because of any expressed waiver of the defect. Rather, it appears that the Respondent has not adequately policed bids to determine responsiveness to the bid specifications. This is especially true with respect to the listing of subcontractors. It appears that no one on the Respondent's staff took the responsibility to consider whether one subcontractor was listed for each phase of a project as required in the specifications. The only policy that the Respondent established was a policy of being too lax in examining bids. The Petitioner did not list two subcontractors for various phases of this project because of any reliance on past conduct of the Respondent. Petitioner's agent overlooked the bid requirements in Preparing its bid response. In prior bids submitted by the Petitioner in response to bid invitations issued by Respondent, Petitioner listed only one subcontractor, as required. Generally, unless it is otherwise required, Petitioner prefers to list two subcontractors because of the flexibility it provides to the owner and to Petitioner. Petitioner was not aware that Respondent had previously awarded contracts to bidders who listed more than one subcontractor for a phase of the work when it submitted its bid in this instance.
Findings Of Fact On five dates in June and July, 1988, Respondent advertised in The Orlando Sentinel newspaper its Invitation to Bid for the project known as High School "BB." The advertisement announced that bids would be received at 2:00 p.m. on August 4, 1988, at which time all bids would be publicly opened. The advertisement stated that Respondent reserved the right to waive irregularities. The Invitation to Bid stated that bids received after the deadline "will be returned unopened" and bids "received on time" will be opened publicly. The Invitation to Bid also stated: "The Owner reserves the right to waive any informality or irregularity in any bid received when such a waiver is in the best interest of the Owner. The contract would be awarded, according to the Invitation to Bid, within 45 days after the opening of bids. The location designated for the opening of the bids was the Facilities Services building located at 6200 Chancellor Drive, Orlando, Florida. The bids were opened in a conference room within the building. Robert Gallardo, who is Respondent's Director of School Planning and Construction, was in charge of the bidding process. Mr. Gallardo has been in this position for six years. During this time, he has been responsible for the majority of school construction bids for Respondent. He estimates that he has supervised ten such bids. On August 4, 1988, Mr. Gallardo worked in his office in the Facilities Services building until 1:55 p.m. At that time, he asked his secretary if the bid tabulation forms had been prepared, and, with the forms, he left his office for the conference room where the bids were to be opened. Mr. Gallardo entered the conference room, which was occupied by a number of bidders' representatives, at 1:58 p.m., according to the clock on the wall. At a few seconds before 2:00 p.m., he first spoke, asking that all bids be handed in. He then asked his secretary to call the front desk to see if any bids had been turned in there and needed to be brought down the hall into the conference room. This was a normal procedure. In past bids, some bidders left their bids with the receptionist at the front desk. Prior to obtaining any response from his secretary who was talking on a phone in the conference room, Mr. Gallardo announced his name and position and announced that he was going to open bids. He then picked up a sealed bid from the pile of sealed bids in front of him. As he was about to open the envelope, at or about 30 seconds past 2:00 p.m., a man entered the conference room and said that he had a bid to deliver. The man disclosed the bidder which he represented, but Mr. Gallardo did not clearly hear the name and did not know whose bid was being offered to him. Mr. Gallardo accepted the bid and placed it at the bottom of the pile. The late bid was from Intervenor. A few seconds after it was accepted Mr. Gallardo opened the first bid. A few seconds after that, another man entered the conference room and attempted to deliver a bid. Mr. Gallardo refused to accept the bid because, as he explained, the first bid had already been opened. Mr. Gallardo's practice has consistently been to accept late bids, provided they are delivered prior to the opening of the first bid. Mr. Gallardo had not previously known of Intervenor, which had never previously even submitted a bid on a school job being let for bid by Respondent. Mr. Gallardo's only prior contact with Intervenor's representative who delivered the bid was seeing the man in the building, along with other bidders' representatives, prior to the opening of the bids; however, Mr. Gallardo did not know who the man represented. There was no fraud or collusion in the acceptance of the late bid. There was no evidence that, under the facts of this case, Respondent abused its discretion in accepting Intervenor's late bid. Petitioner's bid was lowest among the bids delivered prior to 2:00 p.m. However, Intervenor's bid was over $500,000 lower than Petitioner's bid on a project costing in excess of $25 million. Respondent has confirmed Mr. Gallardo's decision not to reject Intervenor's bid as late. On August 16, 1988, Respondent published the agenda for the next school board meeting, which was scheduled for August 23, 1988. One of the items to be taken up was the award of the contract for High School "BB." By letter dated August 18, 1988, Petitioner declined Respondent's invitation to participate in what the parties referred to as an informal hearing at the August 23 school board meeting. Threatening unspecified sanctions under state and federal law if Respondent awarded the contract at the August 23 meeting, Petitioner demanded a formal hearing and asserted that the bidding process should be stayed until resolution of the protest, under Section 120.5361 [sic -- apparently referring to Section 120.53(5)(c)]. By memorandum dated August 23, 1988, Respondent's attorney opined that Rule 6A-2.016(7) did not require Respondent to utilize the Section 120.53(5) bid protest procedures, but, out of an abundance of caution and in the interest of expediting resolution of the dispute, recommended the referral of Petitioner's protest to the Division of Administrative Hearings. By letter dated August 23, 1988, Respondent referred the protest to the Division of Administrative Hearings for a formal hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the bid protest of Petitioner. DONE and RECOMMENDED this 15th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4078BID Treatment Accorded Petitioner's Proposed Findings of Fact 1. Adopted except to the extent that "timely" implies that Intervenor's bid was improperly accepted. Such an implication is rejected as legal argument. 2 and 4. Adopted in substance. 3. Rejected as irrelevant. 5-7. Rejected as not findings of fact except that the inference of Intervenor's efficient utilization of time following the deadline is rejected as unsupported by the evidence and irrelevant. 8-9. Adopted to the extent relevant. 10-11. Rejected as irrelevant. 12-15. Rejected as subordinate to the procedures set forth in the Invitation to Bid and advertisement, especially concerning the waiver of irregularities. First sentence adopted. Second sentence rejected as recitation of testimony through semicolon and irrelevant as to remainder except that the basis for Mr. Gallardo's decision is adopted and modified to add that he accepted the late bid in accordance win his past practice. Petitioner proved all of the facts in this proposed finding except that it could have used effectively any additional time. In any event, all of the facts in this paragraph are irrelevant and are rejected for this reason. The theory of Petitioner's case, as well as the evidence that it offered, was that in this and every other major bid, the last minutes before the deadline are critical due to the unwillingness or inability of subcontractors to supply critical numbers substantially before the deadline. This theory proves too much because, if true, the Hewitt court would have been constrained to consider such a universal fact and thereby would have prevented the agency in that case from accepting the late bid. The Hewitt case stands for the proposition that, in general, an agency may accept late bids before the first bid is opened. It is incumbent upon a frustrated bidder to show that the agency abused its discretion, under the circumstances of the individual case. Petitioner has in essence suggested that the burden is upon the agency to show that it did not abuse its discretion, at least once the frustrated bidder shows that it spent a lot of time and money in preparing its bid and could have used more time. To the contrary, Hewitt tells the frustrated bidder that it must find evidence of impropriety, such as fraud or collusion, in the agency's acceptance of the late bid. This mandate is especially clear in light of the recent Groves-Watkins decision. 18-19 and 22. Rejected as irrelevant. See Paragraph 17. Adopted. 20A-20F. Rejected as legal argument. First sentence rejected as subordinate and recitation of testimony. Second sentence rejected as speculative. Rejected as speculative and unsupported by the evidence. Rejected as irrelevant and unsupported by the evidence. 24A-27. Rejected as legal argument. Adopted in substance. Rejected as not finding of fact. Treatment Accorded Respondent/Intervenor's Joint Proposed Findings of Fact 1-2. Adopted. 3-4. Rejected as not finding of fact. 5-6. Adopted in substance. Rejected as irrelevant. 8. Adopted in substance. 9-12. Adopted in substance except that Mr. Gallardo did not arrive in the conference room "several minutes" before 2:00 p.m. and Intervenor's representative arrived about 30 seconds after 2:00 p.m. 13. Rejected as irrelevant. 14-15. Adopted in substance. Rejected as unnecessary. Adopted. Rejected as irrelevant. See Paragraph 17 in Petitioner's proposed findings. COPIES FURNISHED: Joseph G. Thresher, Esquire Dykema Gossett Ashley Tower Suite 1400 100 South Ashley Drive Post Office Box 1050 Tampa, Florida 33601-1050 William M. Rowland, Jr., Esquire Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue Orlando, Florida 32803 Scott H. Johnson, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, Florida 32801 James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 North Tampa Avenue Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue Whether Respondent's rejection of all bids submitted in response to ITB-05-23-12, relating to a contract for annual elevator maintenance and repair services, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Respondent Florida School for the Deaf and the Blind is a state-supported residential public school for hearing-impaired and visually-impaired students in preschool through 12th grade. Access to the School is restricted for the protection of the students that are enrolled there. Visitors to the School campus must obtain credentials through a visitor identification badging system maintained by the Campus Police Department before they are permitted to enter. There are only two locations from which access badges may be obtained. The first is the Campus Police Department Communications Center and the second is the Campus Police Department Guardhouse at the Genoply Street gate. There are no off-campus locations from which badges may be obtained. Petitioner Traveler is a corporation registered with the Department of Business and Professional Regulation under the provisions of chapter 399, Florida Statutes, to construct, install, inspect, maintain, and repair elevators. Mr. Mark DeWitt is an owner of Traveler. Otis was the incumbent contractor providing service to the School's elevators, a position it had held for the last three years. On May 23, 2012, in Invitation to Bid 05-23-12 (the ITB), the School solicited competitive bids for the award of a contract to provide elevator maintenance, inspection, and repair services for elevators at various locations on the School campus (contract). The ITB was a one page document which stated: The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084 will receive bids in the Purchasing Department June 14, 2012, until 2:00 p.m. for the purpose of selecting an Elevator contractor for supplying all labor, material, and ancillary services required for the scope listed below. Scope of Project: The purpose and intent of this invitation to bid is to select Elevator contractor who is OEM certified and OEM trained to provide preventative maintenance (PM) services to elevators on a monthly schedule at various campus locations and who will deliver and install parts and provide emergency repair service for a period of (1) year with the option to renew additional years contingent upon availability of funding and satisfactory performance by the contractor. Licensing Requirements: All contractors must possess any applicable licenses required for this type of work per the State of Florida Department of Business and Professional Regulation. Mandatory Pre Bid Conference: A mandatory pre bid conference will be held at The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084, Hogel Building #27, Conference Room on June 7, 2012 at 10:00 a.m. All attendees will be checked through Campus Security, so allow ample time. Attendance at this pre bid conference is mandatory in order for all potential bidders to receive the benefit of answers to theirs and other's technical questions first hand. It is imperative that all the information be disseminated in a public forum with all potential bidders present to minimize confusion or misunderstandings. Additions or changes to the original bid documents resulting from this conference of a material nature will be documented in the form of written addenda and distributed to all attendees. Please note that if you are late to this mandatory pre bid conference you will not be eligible to sign the attendance roster and therefore may not submit a bid. Any person with a qualified disability requiring special accommodations at the pre bid conference and/or bid opening shall contact the Purchasing Office at 904-827- 2356 at least (5) working days prior to this event. If you are hearing or speech impaired, please contact this office by using the Florida Relay Services which can be reached at 1-800-955-8772. The Florida School for the Deaf and the Blind reserves the right to reject any and all bids and accept minor irregularities in the best interest of the State of Florida. Neither Traveler nor any other bidder filed a notice of protest to the terms, conditions, or specifications contained in the solicitation within 72 hours of the posting of this solicitation. As provided in the ITB, a pre-bid conference was held regarding the contract at 10:00 a.m. on June 7, 2012, in the Hogel Maintenance Building Conference Room. Mr. DeWitt and Mr. Jim Halstead, another owner of Traveler, arrived at the conference room about 9:40 a.m. They had taken about two minutes to pass through the security gate at the front of the campus, and about ten minutes more to then navigate the speed bumps, stop signs, and crosswalks to arrive at the Hogel Maintenance Building area and make their way to the conference room. Prior to 10:00 a.m. two cars, containing Mr. Joe Ramos and Mr. Max Stanley of Kone Elevators and Mr. David Baskin of Otis, were at the Campus Police Department Communications Center attempting to get access badges. Security Officer Victoria Cannon attempted to scan their identification cards to process them through the electronic visitor identification manager software, but the program was "frozen" on her computer screen and she was unable to do so. She attempted to "tinker" with the computer to get it to work, but was unsuccessful. She instead checked the visitors' identification and prepared the old handwritten badges that had been used prior to the electronic scan system. These were self-adhesive badges with a red background that the occupants of the vehicles put on their clothes. The old badges had not been used for about seven years, because the School had put in the electronic system to enhance security. A stock of the old badges had been maintained to use as a temporary backup if the electronic system went down. Officer Cannon testified that the men were "delayed a little" but provided no more specific estimate as to the length of time. When the three men left the Campus Police Department Communications Center, Officer Cannon then communicated with Security Officer Bruce Hardy in the guardhouse to let him know that the visitors had been approved for entry onto the campus, so they would not have to be run through the system at the guardhouse. Campus Police Chief Jerry Chandlee was at the police guardhouse on Genoply Avenue with Officer Hardy when the call to Officer Hardy from Officer Cannon came in. When the first vehicle arrived, Chief Chandlee saw the red temporary visitor ID badge. It was about 9:55 a.m. He decided that he wanted to issue the standard electronic visitor ID badge so that identification information would be collected electronically, as the system had been set up to do. The electronic information allows a check with the Florida Crime Information System and the National Crime Information System. Chief Chandlee then called Officer Cannon to find out why the men had been given the old red manual badges and learned that her computer had not been working correctly. The second vehicle arrived at the gate about 9:58 a.m. Chief Chandlee directed Officer Hardy to request driver's licenses again from all three men and to process them through the electronic system. Chief Chandlee said it only took about a minute to process each electronic identification card. Chief Chandlee learned when talking with the occupants of the second vehicle that the men were seeking entry to the campus to attend the pre-bid conference. Chief Chandlee was requested to make a courtesy call to the location of the bid meeting informing them that the men had been detained by security and might be late. Chief Chandlee apologized for the delay and asked Officer Hardy to make the call. When Officer Hardy called Administrative Assistant Donna Thompson to explain that bidders had been held up by the Campus Police Department, she replied, "Well, it's ten o'clock. So they need to hustle." Ms. Thompson was sitting inside her office. She did not immediately inform Ms. Laura Bowden, who was in charge of the pre-bid conference and was already inside the conference room with the door closed. Ms. Thompson decided to go to the building entrance to make sure that the men found the building without a problem. At about 10:00 a.m., the pre-bid conference was convened by Ms. Laura Bowden. She began by reading the contract. Also present at this time, in addition to Ms. Bowden, Mr. DeWitt, and Mr. Halstead, were several others: Mr. Harper Smith, representing ThyssenKrupp Elevators; Mr. Cliff Vaughn, Representing First Coast Elevators; Mr. Noel Fossette, representing Schindler Elevator; Mr. Jerry Arsenault, Facilities Superintendent for the School; and Mr. Dennis Baker, a Project Manager for the School. At the conference, bidders were provided a copy of a "pre-bid packet" containing additional information about the elevator contract. When the three men arrived at the Hogel Maintenance Building, Ms. Thompson was waiting for them. She opened up the building entrance door and waved, because they were about to pass by it, brought them inside the building, and escorted them over to the conference room door. Ms. Thompson then returned to her office. Ms. Bowden had read a couple of pages of the contract, when Mr. Ramos, Mr. Stanley, and Mr. Baskin came into the meeting. Ms. Bowden said, "You're late." As soon as she did so, Mr. Arsenault instinctively looked at the clock on the wall. He testified that it read 10:07 a.m. Mr. Baker also testified that it was seven or eight minutes past 10:00 when the men arrived. One of the men responded to Ms. Bowden's comment with the statement that police security had already called the secretary. Ms. Bowden left the conference room and went to Ms. Thompson's office. Ms. Bowden asked Ms. Thompson if she knew why the bidders had been late. Ms. Thompson explained that she had received a call from Officer Hardy, stating that the Campus Police had held them up there. Ms. Bowden thanked her and returned to the conference room. Once back in the conference room, Ms. Bowden restarted the meeting. She began reading the contract again from the beginning. No questions had been asked before the late arrivals, and there was no information that had been given earlier that was not repeated when the meeting was restarted. The late-bidders were allowed to sign the attendance roster. No one protested that late-bidders were allowed to attend the meeting, that the meeting was restarted, or that the late- bidders were allowed to sign the attendance roster. Ms. Bowden was aware that the ITB stated that any bidder late to the pre-bid conference would not be eligible to sign the attendance roster and could not submit a bid. However, based on the information she had from Ms. Thompson, Ms. Bowden decided that it had been the School's fault, and not their own, that the late bidders had not arrived at the conference room on time. She allowed the late-bidders from Kone and Otis to attend the pre-bid conference because under the circumstances she thought their late arrival was a minor irregularity. As indicated in the ITB, attendance at the pre-bid conference was mandatory to allow all potential bidders to receive the benefit of answers to their own and others' technical questions firsthand. Ms. Bowden had received no questions prior to the entry of the Kone and Otis representatives, and she started the meeting over to ensure that all bidders received the same information. On June 14, there was a public bid opening, which was attended by Mr. DeWitt of Traveler as well as Mr. Baskin and another representative of Otis, among others. Traveler could hear who the bidders were, and was aware that Otis had been allowed to submit a bid. At that time, Traveler made no objection that Otis had been permitted to bid. The School applied the same criterion to all bids when evaluating them. Rankings in various categories were combined pursuant to a weighted formula to arrive at a total weight for each bidder. In the overall ranking of the bids, Otis ranked first, while Traveler came in second. On June 18, 2012, at 9:30 a.m., the Bid Tabulation and Notice of Award Recommendation was posted. The School prepared and disseminated it to each of the bidders. It indicated that the School was recommending that the contract be awarded to Otis as the lowest responsive bidder. Traveler was listed as the second lowest bidder. Traveler e-mailed a Notice of Protest in response to the School's recommendation about 10:49 a.m. on June 18, 2012, followed the same day by a formal protest. As grounds for its protest, Traveler contended that Otis had been late to the pre- bid conference, and pursuant to the procedures set forth in the ITB should not have been allowed to sign the attendance roster or submit a bid. Ms. Bowden still believed the late arrival of Otis was a minor irregularity, but she could not know if an administrative law judge would necessarily agree. Traveler was contesting that conclusion, claiming that the failure of Otis was a material deviation from the explicit bid specifications and that the School was required to reject the Otis bid and award the contract to Traveler. She testified that if she had determined that the late arrival to the pre-bid conference by Otis had been a material deviation, and awarded the contract to Traveler, that she believed that Otis would surely have protested. After careful consideration and discussions with counsel, Ms. Bowden decided to reject all bids. On June 21, 2012, the School notified Traveler and the other bidders that it was exercising its right to reject all bids and re-bid the contract, at a yet undetermined date in the future. On June 22, 2012, Traveler e-mailed the School, objecting to FSDB's rejection of all bids and requesting that the matter be referred to the Division of Administrative Hearings. On July 10, 2012, Respondent filed a Notice of Compliance with Paragraphs 2 and 3 of the Order of Pre-Hearing Instructions, indicating that it had notified all bidders that if they wished to intervene they must file a Petition to Intervene at the earliest practicable date. No Petition to Intervene was received from any person prior to hearing. At hearing on July 26, 2012, Mr. Cliff Vaughn appeared and asked that he be allowed to participate, or in the alternative that a continuance be granted. Mr. Vaughn was a corporate officer of First Coast Elevator, the third-place bidder. Mr. Vaughn stated he supported the School's action in rejecting all bids. Mr. Vaughn admitted that he had received the notice requiring him to file a Petition if he wished to Intervene. No Petition had been filed by Mr. Vaughn and his appearance at hearing was the first time either party was aware of his interest. He was not eligible to represent his corporation in a "pro se" capacity. Given the statutory policy in favor of expedited hearings in bid protests, the granting of a continuance after the hearing had begun would not serve the public interest and would be unfair to the parties. His requests were denied. The School's rejection of all bids does not have the purpose or effect of defeating the object and integrity of the competitive bidding process and does not give an unfair competitive advantage to any bidder. The School's rejection of all bids is not illegal, arbitrary, dishonest, or fraudulent.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida School for the Deaf and the Blind enter a final order finding that the rejection of all bids submitted in response to Invitation to Bid 05-23-12 is not illegal, arbitrary, dishonest, or fraudulent, and dismissing Petitioner's protest. DONE AND ENTERED this 14th day of September, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2012. COPIES FURNISHED: Frank Damon Kitchen, Esquire Constangy, Brooks and Smith, LLC Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 dkitchen@constangy.com William David Talbert, Esquire Talbert Law Firm, P.A. Suite 202 1930 San Marco Boulevard Jacksonville, Florida 32207 talbertlawfirm@bellsouth.net Dr. Jeanne G. Prickett President of Florida School For the Deaf and Blind 207 San Marco Avenue St. Augustine, Florida 32084
Findings Of Fact On February 28, 1990, Respondent issued an invitation to bid (ITB) on a construction project referred to as Florida Atlantic University Modulars. The ITB required a base bid and bids on five alternates to the base project. Each bidder was instructed that it must bid on the base project and on each alternate for its bid proposal to be considered responsive. On March 19, 1990, Addendum 1 to the ITB was issued to all prospective bidders. This was an informational addendum and advised the date, time, and location of the posting of the award recommendation. Addendum 1 was not required to be returned by the bidder as a part of the response to the ITB. On March 21, 1990, Addendum 2 to the ITB was issued to all prospective bidders. This was also an informational addendum and advised as to a non- mandatory, pre-bid conference to be held March 27, 1990. Addendum 2 was not required to be returned by the bidder as a part of the response to the ITB. On March 30, 1990, Addendum 3 to the ITB was issued to all prospective bidders. This addendum advised that the date and time for the bid opening had been changed to April 9, 1990, at 2:00 p.m. Addendum 3 also contained modifications, explanations and corrections to the original drawings and specifications which impacted the cost and scope of the project. Immediately above the signature line on the cover page of Addendum 3 was the following: This document must be returned in it's [sic] entirety with the bid. Please sign below to verify that you have read and understand all the changes. Item 2 on page ADD-1 of Addendum 3 required each bidder to submit its per unit price structure with its response to the ITB and provided, in pertinent part, as follows: ... The unit price shall not be included in Base Bid. Submit a separate sheet with bid package. The following instructions are given in Paragraph 1(c) of the Instructions to Bidder: NO ERASURES ARE PERMITTED. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids or corrections not initialed will not be tabulated. The instructions are repeated in Paragraph 1 of the General Conditions of the ITB: EXECUTION OF BID: ... No erasures are permitted. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids, or corrections not initialed will not be tabulated. The following is contained as part of the Instructions to Bidder: Failure to complete, sign, seal and return the required documents will result in rejection of your bid. Any questions should be directed to Susan Kuzenka, (305) 761-7460, Purchasing Department, Broward Community College. (Emphasis in the original.) Paragraph 8 of the General Conditions portion of the bid package provided, in pertinent part, as follows: 8. AWARDS. As the best interest of Broward Community College may require, the right is reserved to reject any and all bids and to waive any irregularity in bids received ... On April 9, 1990, Petitioner submitted a bid to Respondent in response to the ITB. Petitioner had received the complete bid package, including all instructions and addenda to the bid package. At the pre-bid conference held March 27, 1990, an employee of Respondent emphasized to the attendees that it was necessary for the bidders to return Addendum 3 in its entirety. Petitioner did not attend the non-mandatory, pre-bid conference. The base bid submitted by Petitioner was $1,085,790.00. The base bid of Double E Construction Co., the next low bidder and the bidder to whom Respondent intends to award the contract, was $1,113,300.00. Petitioner's bid for each of the alternates was lower than that of Double E Construction Co. Petitioner failed to return the entire Addendum 3 as instructed. On page four of the bid package Petitioner acknowledged that it had received Addendum 3, and it signed and returned the cover sheet to Addendum 3 under the language quoted in the foregoing Paragraph 4. Respondent considered this an important requirement because it wanted to prevent a bidder from later claiming that it had not received Addendum 3 or that it had received information different than that contained in Addendum 3. Petitioner made a correction to its bid for Alternate Number 3 found on page 5 of 13 of Petitioner's bid. Petitioner's bid for this alternate was $88,000. In the space for the written amount of the bid, Petitioner's president inserted by hand the words "Eighty-eight Thousand". In the space for the numerical insertion of the bid he initially wrote the sum $125,000 (which was the amount of Petitioner's bid for Alternate 4). He struck through the figure $125,000 and wrote above the stricken figure the figure $88,000. He did not initial his change. Respondent has never accepted changes to price quotations which were not initialed because it is concerned that uninitialed corrections on bids may result in challenges to the integrity of the bid process and may expose its staff to charges of collusion from a disgruntled bidder. Pioneer did not include a unit price structure in its bid as required by Addendum 3. The unit price structure is an informational item that is not separately considered by Respondent to determine the lowest bidder on this project. On April 6, 1990, Petitioner's estimator on this bid telephoned Susan Kuzenka regarding the unit price structure sheet to inquire as to the format that should be followed in submitting the unit price structure. Ms. Kuzenka is named in the Instructions to Bidder as the person in Respondent's purchasing department to whom questions about the bid process should be directed. Petitioner's estimator was told that the unit prices would be required to be submitted by the successful bidder at the pre-construction meeting after the bids were opened, but that the unit price structure need not be submitted with the bid. Petitioner's president verified this information on April 9, 1990, prior to the bid opening, during a telephone conference with the project engineer employed by Respondent for this project. In reliance on the information that was supplied by Respondent's agents, Petitioner did not submit its unit price structure sheet with its bid. Following its examination of all bids, the bid of Petitioner was disqualified on three grounds. The first reason cited by Respondent was that Petitioner failed to return the entire Addendum (3) as required. The second reason was that Petitioner did not initial a correction to a quoted price figure. The third reason was that Petitioner did not include the unit price structure as required in Addendum (3). Petitioner thereafter timely protested its disqualification and the intended award of the contract to Double E Construction Co. Petitioner contends that the reasons cited by Respondent for its disqualification are minor irregularities that should be waived by Respondent. Additionally, Petitioner contends that the third reason should not disqualify it because Petitioner acted in reliance upon the instructions of Respondent's agents in not submitting the unit price structure along with its bid package. This proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Broward Community College, enter a final order which denies the bid protest of Petitioner, Pioneer Contracting, Inc. DONE AND ENTERED this 29th day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1, 2. 6 and 7 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 10. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings in the last sentence of paragraph 4 are rejected as being unnecessary to the conclusions reached because of the clear instructions contained in Addendum 3. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order. The proposed findings in the last two sentences of paragraph 5 are supported by the evidence, but are not adopted as findings of fact because they are unnecessary to the conclusions reached. All proposed findings of fact submitted on behalf of the Respondent are adopted in material part. Copies furnished: Eric L. Dauber, Esquire Beyer & Dauber Suite 5300 2101 W. Commercial Boulevard Ft. Lauderdale, Florida 33309 James D. Camp III, Counsel Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301 Janet Rickenbacker Director of Purchasing Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301
The Issue The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.
Findings Of Fact State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items. Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows: Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project. The prospective bidders were also given this information in the pre-bid meetings. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows: Bidder Total Bid D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500. Rovel Construction, Inc. $1,559,000. Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows: Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work. When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Robert A. Hingston, Esquire Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P. 901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134 Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health Miami-Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125 William G. Christopher, Esquire Brown Clark, A Professional Association 1819 Main Street, Suite 1100 Sarasota, Florida 34236
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.
Findings Of Fact The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close. No requests were made to the Department to place its explanation in writing and no written interpretation was provided. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not.. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.
The Issue Whether, in issuing the Revised Recommendation/Tabulation for contracts for Items 1 and 3 for Invitation to Bid No. 15- 048E, Multifunctional Devices, Cost-Per-Copy, Respondent acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact On June 3, 2014, SBBC issued ITB No. 15-048E (the ITB) entitled "Multifunctional Devices, Cost-Per-Copy" for the provision and maintenance of copying devices during the contract term. The listed Submittal Requirements were: Manufacturer's Authorization Special Condition 8; Descriptive Literature Special Condition 6; and Material Safety Data Sheets Special Condition 16. A Bidder's Preference Statement was not identified as a Submittal Requirement. Section 4, Paragraph 2, of the ITB was entitled "TERM" and notified bidders that SBBC sought through the award of this bid to "establish a contract for the period beginning from the date of award and continuing through June 30, 2017." The Bid Summary Sheet found at Section 5 of the ITB requested bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months and for 36 months. Page 1 of the ITB contained a certification to be executed by each bidder's authorized representative which stated in pertinent part as follows: Bidder agrees to be bound to any and all specifications, terms and conditions contained in the ITB, and any released Addenda and understand that the following are requirements of this ITB and failure to comply will result in disqualification of bid submitted. All bidders submitted a signed bidder certification. Section 3, Paragraph 1(a), of the General Conditions of the ITB provided as follows: SEALED BID REQUIREMENTS: The "Bidder Acknowledgment Section" must be completed, signed and returned with the bid. The Bid Summary Sheet pages on which the Bidder actually submits a bid, and any pages, upon which information is required to be inserted, must be completed and submitted with the bid. The School Board of Broward County (SBBC) reserves the right to reject any bid that fails to comply with these submittal requirements. BIDDER'S RESPONSIBILITY: It is the responsibility of the Bidder to be certain that all numbered pages of the bid and all attachments thereto are received and all Addendum released are received prior to submitting a bid without regard to how a copy of this ITB was obtained. All bids are subject to the conditions specified herein on the attached bid documents and on any Addenda issued thereto. Section 3, Paragraph 6, of the General Conditions of the ITB provided as follows: AWARDS: In the best interest of SBBC, the Board reserves the right to: 1) withdraw this bid at any time prior to the time and date specified for the bid opening; 2) to reject any or all bids received when there are sound documented business reasons that serve the best interest of SBBC; 3) to accept any item or group of items unless qualified by Bidder; and 4) to acquire additional quantities at prices quoted on this ITB unless additional quantities are not acceptable, in which case, the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." On June 18, 2014, SBBC issued Addendum Number 1 for the ITB which replaced a number of pages within the bidding documents and contained responses to questions posed by prospective bidders. Addendum Number 1 included Question No. 6 in which Xerox inquired whether SBBC "would . . . consider a change to the contract term of the contract to 48 or 60-month term?" SBBC responded through Addendum Number 1 that it had amended the bid "to include additional pricing for 48 or 60-months term[s]," and SBBC continued to request proposals for a 36-month contract term. Addendum Number 1 revised Section 4, Paragraph 2, of the Special Conditions of the ITB to state as follows: TERM: The award of this bid shall establish a contract for the period beginning from the date of award and continuing through an award for a term of 36, 48 or 60 months. Bids will not be considered for a shorter period of time. All prices quoted must be firm throughout the contract period. Items will be ordered on an as needed basis. Addendum Number 1 included an Appendix A–Summary Cost Sheet which required bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months, 36 months, 48 months, and 60 months. On June 20, 2014, SBBC issued Addendum Number 2 for the ITB. The first page of Addendum Number 2 advised prospective bidders, "This Addendum amends the above referenced bid in the following particulars only: 1. DELETE: Appendix A–Cost Summary Sheet INSERT: Revised Appendix A–Cost Summary Sheet." The first page of Addendum Number 2 further cautioned bidders that "[i]t is important to include the REVISED page when submitting your response." Addendum Number 2 went on to provide a Revised- Appendix A-Summary Cost Sheet which stated "A Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months" and included a cost summary sheet for each of those three options. The ITB and addenda numbers 1 and 2 were released by SBBC via Onvia DemandStar, with email notices thereof to prospective vendors who subscribed to its bid notification service. Toshiba downloaded the ITB, Addendum Number 1, and at least the first page of Addendum Number 2 from DemandStar prior to the submission of its bid to SBBC. Again, the first page of Addendum Number 2 cautioned bidders that Appendix A–Summary Cost Sheet had been deleted and replaced and that it was "important to include the REVISED page when submitting your response." No bid specifications protest was filed by any person or entity concerning the ITB or addenda numbers 1 or 2. On July 3, 2014, SBBC opened bids timely submitted in response to the ITB by: Toshiba; ImageNet; Innovative; Lexmark International, Inc.; and Ricoh. Konica had also presented a bid to SBBC in the bid opening room prior to the opening of bids but after the announced time for submittal of bids. The Konica bid was delivered to SBBC but was not opened at the time of the bid opening. Toshiba, the incumbent, was the only bidder that violated the pricing requirements of the ITB. The bid submitted by Toshiba utilized the version of Appendix A-Summary Cost Sheet that was released under Addendum Number 1 and only offered cost- per-copy pricing for the 60-month term option. Toshiba's bid did not submit the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, nor did it contain any bids offering cost per copy pricing to SBBC for the 36 or 48-month term options. Although Toshiba's bid was not rejected as non-responsive for failing to bid on the 36 and 48-month term options and for failing to utilize and complete the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, SBBC's staff later concluded in hindsight that it should have been rejected for such non-compliance. Toshiba's bid included a "Pricing" note immediately prior to its Appendix A–Summary Cost Sheet that stated: [Toshiba] is proposing a 60 month CPC as a response to the [ITB]. Based on the fact the [ITB] has no minimum, cancellation for convenience, ability to upgrade and downgrade with no penalty, it is in the best interest of our organization to bid a term of 60 months. This term allows us to provide the most aggressive price to the [SBBC] and maintain the excellent service and support level in place. SBBC's staff recommended that an award be made under the ITB for pricing offered for a 36-month contract term for Items 1, 2, and 3 for a contract period of August 6, 2014, through September 30, 2017. On July 10, 2014, SBBC posted its initial ITB Recommendation/Tabulation which did not consider the Konica bid. The initial posted Recommendation/Tabulation notified bidders of SBBC's intended award of contracts for Items 1 and 2 to ImageNet as the primary awardee and to Innovative as the alternate awardee for a contract period of August 6, 2014, through September 30, 2017, and recommended the award of contracts for Item 3 to Ricoh as primary awardee and to ImageNet as alternate awardee for a contract period of August 6, 2014, through September 30, 2017. Timely bid protests and bid protest bonds were filed by Konica and by Toshiba concerning SBBC's initial Recommendation/Tabulation of July 10, 2014. SBBC's Bid Protest Committee conducted a meeting with the protestors on August 26, 2014, and determined that Konica's bid had been timely submitted and directed SBBC's Procurement and Warehousing Services Department (the Department) to evaluate Konica's bid for responsiveness. It also directed the Department to revise its recommendation on the ITB to reject Toshiba's bid for Item 2 as the device offered by Toshiba for that item did not meet the ITB's specifications which called for a single device capable of performing 95 copies per minute (cpm) and Toshiba instead offered two devices that performed at 85 cpm. After reviewing Konica's bid for responsiveness, SBBC posted a Revised Recommendation/Tabulation for the ITB on August 29, 2014, which (a) recommended award of Item 1 to ImageNet for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to Innovative as the alternate awardee; (b) recommended award of Item 3 to Ricoh for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to ImageNet as the alternate awardee; and (c) recommended the rejection of Toshiba's bid for Item 2 for its failure to meet the specifications for that Item. On September 4, 2014, Toshiba timely filed its notice of intent to protest the August 29, 2014, posted Revised Recommendation/Tabulation. On September 15, 2014, Toshiba timely filed its Amended Formal Petition Protesting Proposed Revised Recommendation/Tabulation. SBBC's Bid Protest Committee conducted a meeting with Toshiba on November 5, 2014, pursuant to section 120.57(3), SBBC Purchasing Policy 3320, and the ITB, and rejected Toshiba's bid protest. On November 10, 2014, Toshiba timely requested that SBBC forward its bid protest to DOAH for a formal hearing. Toshiba has presented a number of arguments in these proceedings seeking to avoid the circumstances Toshiba created for itself when it failed to comply with Addendum Number 2 and violated the ITB's pricing requirements and the ITB's requirement as to the term of the contract to be awarded, when Toshiba only submitted a single bid and restricted the contract term for which it would be considered to 60 months. First, Toshiba attempts to divest SBBC of its express authority to select proposals for any contract duration for which it solicited bids other than for a month term. Second, Toshiba argues that SBBC was somehow obligated to specify within the bid specifications those business considerations that would inform SBBC's selection of the duration of the contract term to be awarded under the ITB. Third, Toshiba argues that ImageNet was non-responsive regarding the ITB's specifications concerning manufacturer's certifications. Toshiba also argues that all bidders, including itself, were non- responsive with regard to the ITB's specifications regarding bidding preference laws. None of the arguments presented by Toshiba in opposition to SBBC's intended award of Items 1 and 3 are persuasive. The Selection of the 36-Month Term SBBC's recommended award for a 36-month contract period from October 7, 2014, through November 30, 2017, is consistent with the terms and conditions of the ITB and its addenda. At the very start of this competitive solicitation, SBBC informed bidders through Section 4, Paragraph 2, of the ITB and the Bid Summary Sheet at Section 5 of the ITB that it was seeking a contract through June 30, 2017-–i.e., a 36-month contract. SBBC also made it clear in its response to Question No. 6 of Addendum Number 1 that "[t]he contract will be for a full 36 months." Although SBBC revised the bid specifications through Addendum Number 1 to allow bidders to submit "additional pricing for 48 and 60 months term[s]," "to allow the School District to consider a 48 and/or 60 months term contract," and revised Section 4, Paragraph 2, of the ITB to provide for "an award for a term of 36, 48 or 60 months," it was clear under the ITB that SBBC contemplated that a 36-month contract could serve its needs. Addendum Number 2 further revised the bid specifications by providing the Revised–Appendix A–Summary Cost Sheet which informed bidders that "a Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months." SBBC intended to review the additional pricing offered for 48 and 60- month contract terms to determine whether those particular options were a better business decision for SBBC. Several factors were considered by SBBC in selecting the contract duration for the award under the ITB. The selection of the shorter 36-month contract term was consistent with the expressed terms of the ITB and addenda and the expressed preference of SBBC's governing board to refrain from entering into long-term contracts and enabled SBBC to be flexible in finding solutions to its copying needs and to take advantage of changes that may arise in technology; avoided problems the school district was currently experiencing with a long-term cost-per- copy contract which ranged from equipment performance issues to the long-term placement of technology in schools; and enabled the school district to conduct research to determine whether future implementation of a managed print solution would provide the school district with additional cost savings or financial benefits in contrast to the cost-per-copy services being procured through the ITB. Clearly, this selection was neither arbitrary nor capricious. SBBC's elected governing board has made it known by its actions taken at public meetings that it disfavors long-term contracts for the procurement of goods and services and has gone so far as to reduce the term of contracts from the dais. SBBC's staff determined that the pricing offered to SBBC for a 60-month contract term was not significant enough to recommend a contract longer than the 36-month term SBBC had been requesting since the release of the ITB. Any cost advantages offered by Toshiba's bids for Items 1, 2, and 3 were reduced by $525,000 per year due to the disqualification of its bid for Item 2, which failed to meet the ITB's specifications. Consideration of Managed Print Services Xerox Corporation informed SBBC that a managed print services (MPS) program could save millions of dollars per year and later submitted a no bid response to SBBC regarding the ITB because SBBC was not implementing a MPS program under the ITB. SBBC had also received proposals from vendors in October 2013 concerning a MPS program and concluded that there existed a potential annual savings of millions of dollars if such a program could be implemented. All of which were additional reasonable, rational reasons for SBBC to remain consistent with its decision to award the contracts for a term of 36 months and not something longer. The ITB contains standard terms and conditions which enable SBBC to terminate an awarded contract regardless of reason and with or without cause upon 30 days written notice to the other party. Toshiba wants SBBC to rescue Toshiba from its failure to submit required bids for 36-month and 48-month periods by forcing SBBC to award a contract obligating the agency for a longer duration under the ITB than desired by the agency and then have SBBC terminate the 60-month contract award for convenience after 36 months. SBBC includes termination for convenience provisions within its contracts for goods and services due to section 1011.14, Florida Statutes, which restricts the ability of district school boards to obligate public funds for a period beyond one year. The inclusion of the standard termination for convenience clauses in its ITBs enables SBBC to enter into contracts exceeding one year which affords the school district opportunities to obtain continuity of service and price advantages that would not be available under shorter contracts. While SBBC has the ability under the ITB to terminate contracts for convenience upon 30 days' notice, it rarely does so. SBBC has never exercised its right to terminate its two prior contracts for the services sought under this ITB. Any such termination requires action by SBBC's governing board during a public meeting. SBBC's staff would not engage in the sham of recommending a contract to its governing board for a contract term longer than the period for which it intends to procure services from a vendor. SBBC's procurement staff believes that using the termination for convenience clause in the manner Toshiba recommends can have an adverse effect upon the school district's ability to encourage bidders to participate in its competitive solicitations or to offer it their best pricing. Questions 1 and 59 of Addendum Number 1 of the ITB provide evidence of concern within the bidding marketplace that SBBC might exercise its termination for convenience clauses with regard to the services being procured under the ITB and support the perception of SBBC's that it should avoid a reputation for exercising such termination authority. Toshiba argues that SBBC somehow materially misled bidders through the ITB by stating in response to Question No. 3 concerning MPS of Addendum Number 1 that: The School District is not planning to implement a Managed Print Services at this time. The School District would like to receive Additional information regarding other districts that have implemented a Managed Print Services. There are no evaluation points associated with this ITB. SBBC's responses to Question No. 3 of Addendum Number 1 were accurate and did not mislead bidders. Toshiba is the only bidder to claim to have been misled. Section 6, Paragraph 10, of the ITB requested bidders provide SBBC with information about how the awardee could transition SBBC to a MPS model from the cost-per-copy model being offered under its bid. While SBBC requested such information from vendors within the bidding marketplace, there is no evidence that any bidder's provision or omission of such information within its bid submission was considered in the selection of the recommended awardees. In fact, ImageNet was recommended for award even though it did not provide this ancillary information about transition to a MPS delivery model. Rather, the recommended awardees for a 36-month contract term for Items 1 and 3 were determined solely on the basis of cost submitted for those items by the bidders, all in accordance with the ITB. A MPS program was a possible initiative being considered by SBBC's former Chief Information Officer prior to his departure from SBBC in February 2014, at which time the school district's current cost-per-copy contract was nearing its expiration. Although SBBC still had an interest in the possibility of a MPS program, it was not going in that direction at the time it needed to release a bid for copying services to replace its current expiring contract. Toshiba contends that SBBC was somehow required to disclose to bidders whether the potential future implementation of a MPS program might impact the contract award period that SBBC might choose under the ITB. A myriad of business considerations may inform an agency in selecting the length of its contracts for goods and services, and there is no law or rule that requires an agency to specify those factors within an ITB. Responsiveness of the Bidders Toshiba has attempted to argue that ImageNet, the recommended awardee for Item 1 and the alternate awardee for Item 3, was somehow non-responsive under the ITB and ineligible for award. In support of this argument, Toshiba has referenced Section 4, Paragraph 8, of the Special Conditions of the ITB which state as follows: MANUFACTURER'S CERTIFICATION: Bidder must submit with their ITB a notarized letter from manufacturer certifying that bidder is authorized to sell, service and warrant the multifunctional devices offered within this ITB. Failure of the bidder to provide this letter with their submitted bid or upon request shall result in disqualification of entire bid. If the bidder is the manufacturer, then bidder should state that their company is the manufacturer of the equipment provided in this bid (the letter does not need to be notarized). A bid is only disqualified under Section 4, Paragraph 8, of the ITB if (1) a notarized manufacturer's letter is omitted from the bid; and (2) the bidder fails to comply with a subsequent request from SBBC to provide the letter. No bidder, including Toshiba and ImageNet, included a notarized letter from a manufacturer with its bid. SBBC did not request any of the bidders to submit a notarized manufacturer's letter at any time after the submission of bids. As a result, none of the bids, including that of ImageNet, was non-responsive for a failure to satisfy Paragraph 8 of Section 4 of the ITB. Toshiba has also argued that all bids should be rejected due to Section 3, Paragraph 1(d), of the General Conditions of the ITB which concerns bidders' preference laws and states as follows: d) BIDDING PREFERENCE LAWS: ALL BIDDERS MUST COMPLETE AND SUBMIT THE LEGAL OPINION OF BIDDER'S PREFERENCE FORM IN ORDER TO BE CONSIDERED [sic] FOR AWARD. The State of Florida provides a Bidder's preference for Florida vendors for the purchase of personal property. The local preference is five (5) percent. Bidders outside the State of Florida must have an Attorney, licensed to practice law in the out-of-state jurisdiction, as required by Florida Statute 287.084(2), execute the "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form and must submit this form with the submitted bid. Such opinion should permit SBBC's reliance on such attorney's opinion for purposes of complying with Florida Statute 287.084. Florida Bidders must also complete its portion of the form. Failure to submit and execute this form, with the bid, shall result in bid being considered "non-responsive" and bid rejected. No bidder, including Toshiba, included an "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form with its bid. Each bidder's omission of that form was for good reason. Section 3, Paragraph 1(d), of the General Conditions of the ITB is a boilerplate provision within SBBC's standard bidding documents that is included pursuant to section 297.084(2), Florida Statutes, for any competitive solicitations in which personal property is to be purchased by SBBC. In instances in which it solicits bids to purchase personal property, SBBC includes a "Bidder's Preference Statement" form and includes that form among the checked "Submittal Requirements" listed in Section 2, Page 1, of the ITB. This ITB did not include a "Bidders Preference Statement" form among the bidding documents or list it as one of the required submittals. The state law and the boilerplate provision at Section 3, Paragraph 1(d), of the General Conditions of the ITB are only applicable to competitive solicitations for the purchase of personal property and do not extend to competitive solicitations for the purchase of services. As Section 4, Paragraph 12, of the Special Conditions of the ITB makes it clear that the multi-functional devices to be provided by the awardee under the ITB will "remain the property of the vendor," the standard bidder's preference provision contained within the ITB is plainly inapplicable to this procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by Toshiba Business Solutions (USA), Inc., and upholds the awards of contracts under the procurement for a 36-month term from October 7, 2014, through November 30, 2017, to ImageNet Consulting of Miami, Inc., as the primary awardee for Item 1 and to Innovative Software Solution, Inc., as the alternate awardee for Item 1, and to Ricoh USA, Inc., as the primary awardee for Item 3 and to ImageNet Consulting of Miami, Inc., as the alternate awardee for Item 3. DONE AND ENTERED this 15th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2015. COPIES FURNISHED: Robert Paul Vignola, Esquire Office of the General Counsel Eleventh Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) William G. Salim, Jr., Esquire Moskowitz, Mandell, Salim and Simowitz, P.A. 800 Corporate Drive, Suite 500 Fort Lauderdale, Florida 33334 (eServed) Eric J. Rayman, Esquire Genovese, Joblove and Battista, P.A. PNC Center, Suite 1110 200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed) Albert E. Dotson, Esquire Wendy Francois, Esquire Bilzin, Sumberg, Baena, Price and Axelrod, LLP 1450 Brickell Avenue, Suite 2300 Miami, Florida 33131 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Robert W. Runcie, Superintendent Broward County School Board Tenth Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) Pam Stewart Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact The Palm Beach County School Board (Respondent) issued an invitation to bid (ITB) on February 16, 1993, requesting bids for the removal, preparation, and installation of carpet-glue down on project SB93C-216T. The ITB provided that all bids were to be submitted by March 31, 1993, at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent sections of the ITB to the case at hand include a section entitled "Invitation To Bid" which provides in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as a result of this bid shall conform to applicable Florida Statutes. Another section entitled "General Conditions, Instructions and Information for Bidders" provides in pertinent part: 26. Any and all Special Conditions that may vary from these General Conditions shall have precedence. The section entitled "Special Conditions" provides in pertinent part: C. AWARD: Bid will be awarded to the lowest and best bidder meeting specifications, terms and conditions . . . The School Board shall elect to award to a primary and a secondary vendor . . . . * * * N. CONTRACTOR QUALIFICATIONS: The contractor must have at least three years of verifiable experience in the floor covering contracting business. The contractor must have in force the required occupational licenses from Palm Beach County and it's municipalities. All documentation of the above requirements must be submitted with the proposed bid by each bidding contractor. The contractor shall not sub-contract any portion of their work, outlined in this contract, to any person(s) or company, without advance written permission from the Carpentry Supervisor of the Department of Maintenance & Plant Operations. Another section of the ITB entitled "Additional Information" provides in pertinent part: Additional information will not be a determining part of the award of this bid except in the instance where the per square yard prices are too close to determine a clear awardee. In that instance we will look at the optional items in this section as the determining factor. (This usage is also based upon all other factors being equal.) . . . Cost of heavy patching. $ per sq. ft. . . . Cost of heavy patching. $ per sq. ft. . . . By March 31, 1993, eight bids were received. However, only seven bids were considered. Respondent's Department of Contracting & Procurement reviewed the bids. On April 12, 1993, the Department of Contracting & Procurement (Department) posted the bid tabulations, which showed, inter alia, that the apparent lowest bidder was Carpetech at $28,029.61, that the apparent second lowest bidder was Buy the Square Yard (Petitioner) at $32,107.32, and that the apparent highest bidder was Acousti Engineering of Florida (Intervenor). Additionally, the recommendation was that the bid be awarded to the "lowest and best bidder meeting specifications, terms, and conditions" with Carpetech being the "Primary" bidder and Petitioner being the "Secondary" bidder. Moreover, the bid tabulation sheet noted that the "price" of each bid was determined by using a "hypothetical" that was typical of a School Board project. This was the first time that the bidders were aware of a hypothetical being used. Respondent had not used a hypothetical in past bids for this type of work, and it was not included in the bid specifications At first, after the bids were opened, Respondent's Department used the base bid, which excluded any alternate work, to determine the apparent lowest bidder. The calculation showed Intervenor as the apparent lowest bidder at $11.03 sq. yd. and Petitioner as the apparent second lowest bidder at $11.08 sq. yd. Carpetech's base bid was $11.295 sq. yd. A discussion ensued as to whether the bids were "too close"; but, there was no consensus as to the meaning of "too close." However, the Department determined that, taking into consideration the alternate work which would have to be done, Intervenor was not the best bidder. The Department first considered recommending the rejection of all bids and readvertising, but decided upon using a hypothetical which included the base bid and the alternates in the calculations. As a result of using the hypothetical, Carpetech, not Intervenor, was the apparent lowest bidder. However, Carpetech, unlike any other bidder, changed one of the specifications in its bid from the "cost of heavy patching" to the "cost of light patching." Respondent admits that a clerical error had occurred and that particular specification should have been "light" patching, instead of "heavy" patching. Also, Carpetech failed to submit an occupational license with its bid. However, subsequent to the bid opening, Carpetech submitted an occupational license. Like Carpetech, Intervenor also failed to submit an occupational license with its bid. 2/ To the contrary, Petitioner submitted an occupational license with its bid. The occupational license forbade Petitioner to have employees at its location but allowed it to hire outside employees, which meant that it could hire contract labor to perform under the contract of the bid. 3/ Out of the three bidders--Carpetech, Petitioner and Intervenor--only Petitioner is a minority owned business. Initially, when Petitioner began its business in December 1991, it was owned by a minority female and a minority male. Subsequently, for financial purposes, the minority female became the sole shareholder/owner and the minority male became the business consultant (consultant), receiving consulting fees. On or about March 24, 1992, Petitioner was certified as a Minority Business Enterprise (MBE) by Palm Beach County, and on or about March 19, 1992, it was certified as a MBE by Respondent, with the certification effective from May 1992 to May 1993. Petitioner became incorporated in or around April 1992 and again in July 1992 when the minority female became the sole owner. Prior to Petitioner's formation, its consultant had his own flooring business (carpet and tile sales and insulation) for several years. The prior business had financial difficulties which resulted in court judgements against it. Petitioner's sole owner was never involved in the consultant's prior business. She provides Petitioner's financial security, and there have been no court judgments against Petitioner. Respondent's Department was familiar with flooring work of Petitioner's consultant before he became associated with Petitioner. He had performed flooring work for Respondent in the past, which was very satisfied with his work. The Department was not aware of the court judgements against the prior business of Petitioner's consultant. However, even if it was, the judgments would not have had a negative effect on Petitioner in the award process of the current contract. On or about April 14, 1993, Intervenor filed its written protest, which was timely. On or about April 22, 1993, Petitioner filed its written protest, which was timely. On April 28, 1993, Respondent held an informal meeting on the written protests. On May 3, 1993, Respondent's counsel issued its recommendation on the protests, which was to "reject all bids and rebid with new terms and conditions and specifications" in order for all bidders to be given "a fair playing field."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on project SB93C-216T and readvertise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of December 1993. ERROL H. POWELL 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 2nd day of December 1993.
The Issue The issues in this bid protest proceeding are whether the bid of Professional Leasing & Development Corporation on state project, job number 48020-3543, was properly rejected for failure to prequalify to bid on the project; and whether the Department properly rejected the bid failure to: meet disadvantaged business enterprise ("DBE") requirements in soliciting minority subcontractors to work on the project, or make a good faith effort to meet the DBE goals set for this project?
Findings Of Fact Professional Leasing & Development Corporation ("Professional") filed a bid on state project, job number 4802 0-3543, which was opened on January 22, 1986 for work on an intersection in Escambia County. The only other bidder was Edward M. Chadbourne, Inc., which the Department declared the lowest responsible bidder, and which declined to participate in these proceedings after notice. The parties stipulated at the hearing that the bids submitted by both bidders were in due form and were submitted in a timely fashion. The parties also stipulated that the Department posted its bid tabulation on March 3, 1986, designating Chadbourne as the lowest responsible bidder, and a timely protest was filed by Professional following that posting. This job is the first Department of Transportation job on which Professional has submitted a bid. It had not prequalified to bid on the job. Warnings appear on pages one and seven of the bid blank that if the bid amount is greater than $150,000, the contractor must be prequalified. The bid blank clearly states in large print on page 7 that if the contractor is not prequalified and the bid is in excess of $150,000, the bid will be rejected. The bid package submitted by Professional was for a total contract amount of $149,973.68. This amount contained errors in the prices for certain items in the bid. These resulted from Professional's errors in the extension of the unit price for items 300 1 3, tack coat; 5331 2, type s asphaltic concrete; and 5337 1 5, asphaltic concrete friction course. The errors are small, aggregating $76.32. The total amount of the bid, as corrected by the unit prices given by Professional in its bid blank, is $150,050. The bid was rejected by the Department for failure to prequalify. When preparing its bid, Professional made efforts to meet the DBE goal set by the Department of Transportation of 8 percent of the contract amount. It sought bids from two minority businesses for striping, and for guardrail and paved ditches,the second of which was a bid from a women's business enterprise which is not considered in meeting the DBE goal. Additional efforts might have been made to obtain DBE subcontract bids by the other principal in the corporation, William Stubstad, but the testimony at the final hearing did not indicate what those efforts may have been. Neither are they reflected in the bid documents. On the DBE/WBE utilization form number 1 submitted with the bid, Professional listed eight potential subcontractors; the striping subcontractor had been certified by the Department of Transportation as a DBE. Written by hand at the bottom of the form was the statement "no other local DBEs in area." Professional's bid reflected only a 3.2 percent utilization of DBE subcontractors, while the goal set by the Department was 8 percent of the contract amount. Based on this submittal, the Department found inadequate documentation of a good faith effort to meet the DBE goal and rejected the bid. Many other subcontractors are certified as DBEs by the Department for work such as signs, guardrails, landscaping and paved ditches. Professional's bid documents give no evidence that these other firms had been solicited to submit bids.
Recommendation It is recommended that the protest of Professional Leasing and Development Corporation be rejected, and the contract be awarded to Edward M. Chadbourne, Inc. DONE AND ORDERED this 2nd day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 2nd day of April, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0788BID The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner: No proposed findings of fact were submitted. Rulings on Proposed Findings of Fact Submitted by Respondent: Covered in Findings of Fact 1 and 5. First sentence is covered in Findings of Fact 3 and 5; the remainder of the proposed finding is covered in Conclusion of Law 1. Generally covered in Finding of Fact 4. The portion of the proposal dealing with Standard Specifi- cation 2-1, 1986 Edition, is rejected because that section was not placed in evidence at the hearing, nor was leave requested to file that specification after the hearing. Covered in Finding of Fact 5. Covered generally in Conclusions of Law 2 and 3. Covered in Conclusion of Law 6. Rejected on the grounds that Section 2-5.3.2 of the Supplemental Special Provision of the Bid Specifications was not proven at the final hearing, nor was leave requested to file them as an exhibit after the hearing. Covered in Finding of Fact 7. Covered in Finding of Fact 7. The portion of proposal 10 found on page 4 is covered in Finding of Fact 7; the remainder is rejected as cumulative. Covered in Finding of Fact 7. Rejected because there is no evidence in the record concerning the consistency with which the Department requires full compliance with DBE goals, and because no issue was raised in this proceeding by Professional with respect to inconsistency in Department policy, making the finding irrelevant. COPIES FURNISHED: Thomas E. Drawdy Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Larry D. Scott, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Harold Pridgen President Professional Leasing & Development Corp. 25 East Nine Mile Road Pensacola, Florida 32514 Edward M. Chadbourne, Inc. 4375 McCoy Drive Pensacola, Florida 32503
