The Issue The issue in this bid protest is whether Respondent acted arbitrarily when it decided to reject all of the bids it had received in response to a solicitation seeking bids on a contract for roof repairs.
Findings Of Fact On January 10, 2008, the Florida Department of Environmental Protection (the "Department" or "DEP") issued an Invitation to Bid (the "ITB"), the purpose of which was to solicit competitive bids from qualified contractors on a project whose scope of work envisioned repairs to the wind-damaged roofs of several buildings located on the grounds of the Hugh Taylor Birch State Park in Fort Lauderdale, Florida. Some of the buildings to be repaired were single-family residences. Work on these structures accordingly needed to conform to the requirements prescribed in the 2007 Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures (the "Manual"), which the Florida Building Commission (the "Commission"), following an explicit legislative directive, see Section 553.844(3), Florida Statutes,1 recently had adopted, by incorporative reference, as a rule. See Fla. Admin. Code R. 9B-3.0475 (2007).2 The Rule had taken effect on November 14, 2007, giving the Manual's contents the same status and force as the Florida Building Code. Id. Just before the Department issued the ITB, the Commission had approved, at a meeting on January 8, 2008, a modified version of the Manual, which it called the 2007 Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures, Version 2 (the "Revised Manual"). In consequence of the Commission's approval of the Revised Manual, the Florida Department of Community Affairs ("DCA") caused a Notice of Proposed Rule Development to be published on January 25, 2008, in the Florida Administrative Weekly. This official advertisement announced that the Commission intended to amend Rule 9B-3.0475, so that its incorporative reference would mention the Revision Manual instead of the Manual. See 34 Fla. Admin. W. 461-62 (Jan. 25, 2008).3 DCA caused a Notice of Proposed Rule respecting the intended revision of Rule 9B-3.0475 to be published on February 1, 2008, in the Florida Administrative Weekly. See 34 Fla. Admin. W. 605 (Feb. 1, 2008).4 On February 5, 2008, the Department issued Addendum No. 4 to the ITB (the "Addendum"). The Addendum provided in pertinent part as follows: Bidders shall bid the project as specified despite the recent change in Rule 9B-3.0475 relating to hurricane mitigation retrofits. Any additional water barrier will be accomplished by Change Order after award of the contract. (The foregoing provisions of the Addendum will be referred to hereinafter as the "Directive"). On February 12, 2008, the Department opened the bids it had received in response to the ITB. Ten (out of 12) of the bids submitted were deemed responsive. The bid of Petitioner Spinella Enterprises, Inc. ("Spinella") was one of the acceptable bids. On February 19, 2008, DEP posted notice of its intent to award a contract to the lowest bidder, namely Spinella, which had offered to perform the work for $94,150. The second lowest bidder was The Bookhardt Group ("Bookhardt"). Bookhardt timely protested the intended award, raising several objections, only one of which is relevant here. In its formal written protest, dated March 3, 2008, Bookhardt alleged that "[t]he new State of Florida law F.S. 553.844 was not part of the solicitation." On April 4, 2008, Rule 9B-3.0475, as amended to incorporate by reference the Revised Manual, took effect. See Fla. Admin. Code R. 9B-3.0475 (2008). On May 16, 2008, DEP posted notice of its intent to reject all bids received in response to the ITB. (Bookhardt's protest, which remained pending, had never been referred to DOAH for a formal hearing.) Spinella timely protested the Department's decision to reject all bids. In an email sent to Spinella on July 22, 2008, DEP's counsel explained the rationale behind the decision: The reason the Department rejected all bids follows. When the Department posted the notice of intent to award the contract to Spinella Enterprises, Inc., the second low bidder (Bookhardt Roofing) protested the intent to award. The second low bidder's basis for protesting the intended award was that Addendum 4 directed bidders to ignore certain rules of the Construction Industry Licensing Board [sic], which had become effective after the bid opening, which was not in accordance with the law. As a result, this may have caused confusion and the Department had no assurance that bidders were bidding the project correctly. In addition, the statement in Addendum 4 that the Department would add the required moisture barrier afterward by change order set up a situation where bidders had no idea how much the Department would be willing to pay for the change order. Further, the moisture barrier was not the only thing required by the new rules. Potential bidders may not have bid due to these uncertainties. The Department agreed with Bookhardt's assertions and rejected all bids . . . . Notwithstanding Spinella's protest, the Department issued a second invitation to bid on the project in question. As of the final hearing, the bids received in response to this second solicitation were scheduled to be opened on August 12, 2008. Ultimate Factual Determinations The Department's decision to reject all bids is premised, ultimately, on the notion that the Directive told prospective bidders to ignore an applicable rule in preparing their respective bids.5 If this were true, then the Directive could have been a source of potential confusion, as the Department argues, because a prudent bidder might reasonably hesitate to quote a price based on (possibly) legally deficient specifications. The Directive, however, did not instruct bidders to ignore an applicable, existing rule. Rather, under any reasonable interpretation, it instructed bidders to ignore a proposed rule and follow existing law. Such an instruction was neither confusing nor inappropriate. To be sure, the first sentence of the Directive——at least when read literally——misstated a fact. It did so by expressing an underlying assumption, i.e. that Rule 9B-3.0475 recently had been changed, which was incorrect. In fact, as of February 5, 2008, the Rule was exactly the same as it had always been. (It would remain that way for the next two months, until April 6, 2008).6 DEP's misstatement about the Rule might, conceivably, have confused a potential bidder, at least momentarily. But DEP did not factor the potential for such confusion into its decision to reject all bids, and no evidence of any confusion in this regard was offered at hearing.7 More important is that the unambiguous thrust of the Directive was to tell bidders to rely upon the "not recently changed" Rule 9B-3.0475, which could only have meant Florida Administrative Code Rule 9B-3.0475 (2007) as originally adopted, because that was the one and only version of the Rule which, to that point, had ever existed. Thus, even if the Department were operating under the mistaken belief, when it issued the Addendum, that Rule 9B-3.0475 recently had been amended; and even if, as a result, DEP thought it was telling prospective bidders to ignore an applicable, existing rule, DEP nevertheless made clear its intention that prospective bidders follow the original Rule 9B- 3.0475, which was in fact the operative Rule at the time, whether or not DEP knew it. Indeed, as any reasonable potential bidder knew or should have known at the time of the Addendum, (a) the Commission recently had approved the Revised Manual, but the contents thereof would not have the force and effect of law unless and until the Revised Manual were adopted as a rule, which had not yet happened; (b) the Commission had initiated rulemaking to amend Rule 9B-3.0475 so as to adopt the Revised Manual as a rule, but the process was pending, not complete; (c) Rule 9B-3.0475 had not been amended, ever; and, therefore, (d) the Manual still had the force and effect of law. See endnote 6. The Directive obviously could not alter or affect these objective facts. At bottom, then, a reasonable bidder, reviewing the Directive, would (or should) have concluded either (a) that the "recent change" which DEP had in mind was the Commission's approval of the Revised Manual (or the subsequent announcement of the proposed amendment to Rule 9B-3.0475) or (b) that DEP mistakenly believed the Rule had been changed, even though it had not been. Either way, a reasonable bidder would (or should) have known that the Department wanted bidders to prepare their respective bids based not on the Revised Manual, but the Manual. In other words, regardless of what DEP subjectively thought was the existing law, DEP clearly intended (and unambiguously expressed its intent) that bidders follow what was, in fact, existing law. This could not have confused a reasonable bidder because, absent an instruction to exceed the minimum required legal standards (which the Directive was not), a reasonable bidder would have followed existing law in preparing its bid, just as the Directive required. Once it is determined that the Directive did not, in fact, instruct bidders to ignore an applicable, existing law, but rather told them to rely upon the applicable, existing law (notwithstanding that such law might change in the foreseeable future), the logic underlying the Department's decision to reject all bids unravels. Simply put, there is no genuine basis in logic or fact for concluding that the Addendum caused confusion. The other grounds that DEP has put forward do not hold water either. Contrary to the Department's contention, the possibility that a Change Order would be necessary if an "additional water barrier" were required could not possibly have confused potential bidders or caused them to be uncertain about how much money the Department would be willing to pay for such extra work. This is because Article 27 of the Construction Contract prescribes the procedure for entering into a Change Order, and it specifies the method for determining the price of any extra work. See ITB at 102-05. The fact that the proposed amendment to Rule 9B-3.0475, if it were to be adopted and become applicable to the instant project, might require other additional work, besides a water barrier, likewise could not reasonably have caused potential bidders to refrain from bidding, for the same reason: The Construction Contract contains explicit provisions which deal with the contingency of extra work or changes in the work. Id. In sum, DEP's intended decision to reject all bids cannot be justified by any analysis that a reasonable person would use to reach a decision of similar importance. It is, therefore, arbitrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that its decision to reject all bids was arbitrary. Because the Department elected not to comply with the statutory directive to abate this procurement pending the outcome of Spinella's protest, with the result that the contract at issue possibly has been awarded already to another bidder; and because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation regarding the means by which DEP should rectify the harm to Spinella, but he urges that other appropriate relief be granted if Spinella cannot be awarded the contact. DONE AND ENTERED this 2nd day of October, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 2nd day of October, 2008.
The Issue The issue is whether Respondent Department of Corrections acted in a manner contrary to its governing statutes, rules or policies, or the bid specifications in giving notice of its intent to award the contract for Invitation to Bid No. 96-DC- 6847R to Intervenor Behring Diagnostics, Inc.
Findings Of Fact On February 19, 1996 the Department issued an ITB for the provision of automated drug testing equipment, an automated data management system, and drug assays for the analysis of urine specimens collected at the Department’s major institutions and community facilities. After receiving and reviewing bids from Roche, Behring, and Abbott Laboratories (Abbott), the Department issued a Notice of Intent to Reject All Bids on April 10, 1996. On April 30, 1996 the Department issued ITB 96-DC-6847R for the same services. The same three vendors, Roche, Behring and Abbott, submitted bids which were opened on June 5, 1996. On its face, Roche’s bid of $.60 per test was the lowest cost of the three bids. Behring submitted a bid of $.90 per test. The Department’s evaluation committee correctly determined that bids submitted by Roche and Abbott were not responsive to the bid specifications. Roche’s bid was not responsive because: (1) it failed to include the cost of a printer at each site as part of the equipment package; and (2) it failed to indicate the vendor’s unconditional willingness to provide litigation support at no cost to the Department in defense of a legal challenge to the vendor’s technology. The bid specifications clearly required that printers be included as part of the computer hardware. Roche did not list printers anywhere in the narrative portion of its bid response. Roche’s response stated that it covered all items pertaining to the system hardware portion of the bid. The response indicated that Roche would provide the Department with Antek-LabDAQ report management software and listed specific items of hardware that would be included. But Roche did not list a printer. Roche’s bid response stated that the LabDAQ system would print reports. Roche included copies of a sample report sheets. Roche submitted other information describing the LabDAQ system that contained pictures of a printer. It also submitted a magazine article reviewing the LabDAQ system which listed an “Okidata printer” as part of the required hardware. However, the article noted that the software could be purchased separately. Submittal of this information was insufficient to indicate that Roche’s bid included the cost of a printer. Roche’s failure to include a printer in its bid was a material deviation from the bid requirements. The ITB clearly required the vendor to provide unequivocal litigation support at no cost to the Department if someone challenged the provider’s technology in a court action. This was a material requirement in the ITB. Roche responded that “upon request from the State and if deemed necessary Roche will provide documentation, affidavits and sworn testimony to substantiate the performance of the technology incorporated in the OnLine system.” (Emphasis added.) This ambiguous response was not an absolute commitment for Roche to provide the litigation support required by the specifications. In one section of Roche’s response it stated that it was “not aware of any past or present lawsuits that have been filed in connection to the COBAS MIRA Plus or the OnLine reagents.” In another section, Roche responded that a federal district court upheld drug testing results provided from a COBAS/Online system. These inconsistent statements may have resulted in a minor deviation from the bid specification. However, they are sufficient to further undermine confidence in Roche’s bid as submitted. During the hearing, Roche presented testimony that it intended for its bid of $.60 per test to include both printers and unconditional litigation support. This testimony constitutes an inappropriate attempt to amend Roche’s bid response. It does not change the fact that Roche’s bid, on its face, was not responsive as submitted. On the other hand, Behring’s bid was responsive to the specifications. It contained only one minor irregularity that provided no advantage to Behring. Roche has presented no evidence to the contrary. The Department’s evaluation committee did not complete the scoring process to compare the three vendors’ scores. Such a comparison is unnecessary where there is only one responsive bidder. By letter dated August 26, 1996 the Department again informed the vendors that it intended to reject all bids and issue a new request for proposals in September. Even though the Department had determined that Behring was the only responsive bidder, the letter did not address the responsiveness of any of the bids. The letter stated that the Department anticipated making changes to the specifications that would require a more structured response, i.e. revise the ITB to include a checklist for every required item which the bidder would cross-reference in its bid response. There is no evidence that the Department anticipated making changes to the substance of the specifications. On or about September 5, 1996 Behring sent the Department a Notice of Intent to protest the rejection of all bids and subsequently filed a timely formal written protest. In its formal protest, Behring referred to the Department’s conclusions in a memorandum dated August 23, 1996 that Behring was the only bidder to submit a conforming bid. Roche did not file a protest of the decision to reject all bids. On or about September 26, 1996 the Department sent Roche notice of Behring’s protest and enclosed a copy of Behring’s formal protest in Division of Administrative Hearings Case Number 96-4475BID. Roche did not intervene in the bid protest. The final hearing in the bid protest was scheduled for final hearing on October 23, 1996. The day before the hearing, representatives of the Department and Behring met to discuss the possibility of settling the case. Shortly before the settlement conference, the Department’s counsel called a Roche representative, Betty Bennett, and informed her that Behring had requested a meeting to attempt to resolve the protest. He was unable to make contact with an Abbott representative. No one from Roche attended the meeting. The Department did not issue any formal written notice that it intended to settle the case with Behring. The Department did not know prior to the meeting what the parties would discuss. The Department did not attend the meeting expecting to “negotiate a contract.” At the meeting, Behring initially took the position that the Department should award the contract to Behring at $.90 per test and not seek further competitive bids. The Department took the position that the contract should be subject to additional competitive bidding to determine what the result would be with more than one competitive bid. After further discussion, Behring offered to lower its bid price. The Department’s representatives left the room to discuss the offer. Upon their return, Department representatives made Behring a lower counteroffer. Behring and the Department eventually arrived at an oral settlement under which the Department would award the contract to Behring at a price of $.77 per test and Behring would dismiss its protest. The Department based its decision to settle the bid protest with Behring on the following: (a) the risk of losing the bid protest and being required to pay Behring $.90 per test; (b) the desire not to further extend the existing contract at the current price of $1.07 per test; (c) the risk that a third attempt to solicit competitive bids would result in another protest and further delay; (d) the fact that Behring had submitted responsive bids to the two previous solicitations; (e) the assumption that subsequent bids by Roche and Abbott would be higher when they included the omitted items that caused their rejection. There is no persuasive evidence to indicate that the Department’s reasons for settling Behring’s bid protest were pretextual or otherwise invalid. The Department correctly concluded that it might have to pay Behring $.90 per test if it lost the bid protest regardless of the applicable standard of proof in that proceeding. The Department also was justified in assuming that Roche’s bid price would be higher when it included the previously omitted printers. For these and other reasons set forth above in the Findings of Fact, the Department’s decision to settle the case by negotiating a lower contract price with Behring was in the best interest of the state of Florida. On October 23, 1996 the Administrative Law Judge in Case No. 96-4475BID entered an order closing the file of the Division of Administrative Hearings and relinquishing jurisdiction to the Department. The Department did not issue a Final Order setting forth the final disposition of the case. By letter dated October 30, 1996 the Department informed Roche and Abbott that it had negotiated a satisfactory contract with Behring pursuant to Rule 60A-1.018(1)(b), Florida Administrative Code. This letter advised Roche that the Department intended to award the contract to Behring. In the letter, the Department gave Roche the opportunity to request a hearing pursuant to Chapter 120, Florida Statutes, to protest the intended agency action. By letter dated November 8, 1996, Roche protested the notice of intended award to Behring. Without objection, Roche submitted an amended petition on December 10, 1996. Behring filed a petition for leave to intervene on November 27, 1996. An order dated December 11, 1996 granted that motion.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order awarding the contract for ITB No. 96-DC-6847R to Behring Diagnostic, Inc., and dismissing the protest of Roche Diagnostic Systems. DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
Findings Of Fact Background On February 23, 1988, Respondent, Department of General Services (Department), issued an invitation to bid (ITB) numbered 218-285-400-6, whereby it sought to establish a 24-month term contract for the purchase of large lamps, photo lamps, and studio, theatre, television, and video lamps by all State of Florida agencies. By April l, 1988, the bid opening date, four bids had been filed with the Department. On April 12, 1988, the bid results were posted by the Department. The bid results revealed that Petitioner, Mercedes Lighting and Electrical Supply, Inc. (Mercedes), was the lowest bidder and that Intervenor, Marpan Supply Company, Inc. (Marpan), was the second lowest bidder. The bid results further revealed that the bid of Mercedes had been rejected because it did not include a list of in-state service representative(s) as required by the ITB, and that the Department proposed to award the contract to Marpan. On April 12, 1988, Mercedes timely filed its notice of protest with the Department. Along with its notice of protest, Mercedes submitted a list of its in-state service representatives, and noted on its letter of transmittal that this list was "not included at time of bid." The bid documents Pertinent to this case, the ITB contained the following special condition: Service Availability of in-state representation to assist in proper application and to resolve technical problems is a requirement of this bid and the resulting contract. Bidders must, therefore, include as part of the bid a list of in-state service representative(s) who will be responsible for providing these services during the term of the proposed contract. Failure to comply with this requirement will result in disqualification of bid. . . . The coordination effort will be handled by the specific individual designated on the ordering instruction sheet. The ITB also contained the following general condition: 7. INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the Invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A 1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120 Florida Statutes. Mercedes did not protest the bid specifications or conditions within 72 hours after receipt of the ITB, nor did it seek any interpretation of the conditions specifications. Notably, the only protest filed by Mercedes was after the bid opening. The bid protest At hearing, Mercedes contended that its bid complied with the ITB because it included a list of Mercedes' in-state service representative(s) or, alternatively, that its failure to include a list of its in-state representative(s) was a minor irregularity that the Department should waive. 1/ Mercedes contends that its bid included a list of in-state service representatives, and therefore was responsive to the ITB, because of its response to page 11 of the bid package entitled "Ordering Instructions", and because there appeared on the back of the manufacturer's catalogs and price list, submitted with its bid, a Florida sales office for the manufacturer at which sales and technical information could be obtained. Mercedes' contention and the proof offered to support it are not credible. The form included at page 11 of the ITB provided, and was responded to by Mercedes, as follows: ORDERING INSTRUCTIONS NOTE: ALL ORDERS SHOULD BE DIRECTED TO: FEDERAL EMPLOYER IDENTIFICATION NUMBER (FEID) : 59-1891811 VENDOR: Mercedes Lighting and Electrical Supply, Inc. STREET ADDRESS OR P.O. BOX: 7354 SW 48th St. CITY, STATE, ZIP: Miami, Florida 33155 TELEPHONE: (305) 665-5550 TOLL FREE NO: DELIVERY: DELIVERY WILL BE MADE WITHIN SEE PAGE 4 DAYS AFTER RECEIPT OF PURCHASE ORDER. DELIVERIES IN EXCESS OF SEE PAGE 4 DAYS WILL NOT BE CONSIDERED. TEAMS FOR PROMPT PAYMENT; NET percent 30 DAYS PRODUCT INFORMATION; DIRECT INQUIRY TO: (NAME, ADDRESS, AND TELEPHONE NUMBER OR INDIVIDUAL IN YOUR ORGANIZATION WHO MAY BE CONTACTED REGARDING CONTRACT WHICH MAY RESULT FROM THIS BID.) NAME AND TITLE: Victor J. LaPorta, Vice President ADDRESS: 7354 SW 48th St. CITY, STATE, ZIP: Miami, FL. 33155 TELEPHONE: (305) 665-5550 TOLL FREE NO.: Mercedes did not indicate in its response to the "Ordering Instructions" form that Mr. LaPorta was its in-state service representative, and its response could not reasonably be so construed. The individual a bidder designated on this form was, pursuant to the special condition of the ITB regarding "Service", the coordinator between a purchaser and the in-state service representative. Mercedes' contention that its bid included a list of its in-state service representatives, because the manufacturer's technical catalogs and price list submitted with its bid contained the location and phone number of the manufacturer's sales office in Florida, in addition to 23 other states, is incredible. The manufacture's technical literature and price list was, pursuant to the special conditions of the ITB, a required part of the bid. While the manufacturer may have listed its sales offices on the back of its literature, there is nothing in Mercedes' bid that remotely suggests it intended that listing to be considered its list of in-state service representatives, nor could its response reasonably be so construed. In rejecting Mercedes' contention that its bid was responsive to the ITB, and rejecting its proof as inherently improbable and unworthy of belief, I note that the Department has issued similar ITB's for a number of years. But for the language in this ITB advising bidders that failure to include a list of in-state service representatives would result in disqualification of the bid, the service provision has remained essentially the same, as has the "Ordering Instructions" form and the requirement that the manufacturer's technical literature and price list be included in the bid. When this same contract was let two years ago, Mercedes was a bidder. Included within its response to that ITB was a list of its in-state service representatives. A minor irregularity? While Mercedes did not protest the terms and conditions of the bid within 72 hours of receipt of the ITB, it offered proof at hearing which tended to demonstrate that the demand for technical assistance under the state contract was not frequent. Based on this premise, Mercedes contended that its failure to include a list of in-state service representatives with its bid was a minor irregularity that should be waived by the Department. Again, Mercedes' contentions are not persuasive. Whether the demand for technical assistance is frequent or infrequent may be germane to a timely challenge to the propriety of the ITB requirement that a list of in-state service representative included in the bid. However, where, as here, the bidder did not protest such condition in a timely manner, it has waived its right to a Chapter 120 proceeding to contest its propriety. Under such circumstances, the protest is limited to whether the failure to include such a list was a minor irregularity, and the frequency of demand for technical assistance is not relevant. 2/ Minor irregularity is defined by Rule 13A-1.002(10), Florida Administrative Code, as: ...a variation from the invitation to bid... which does not affect the price of the bid..., or give the bidder... an advantage or benefit not enjoyed by other bidders..., or does not adversely impact the interests of the agency. Variations which are not minor can not be waived. The ITB mandated that failure to include a list of in-state service representatives with the bid would result in the bid's disqualification. Under such circumstances, Mercedes cannot be permitted to correct the deficiency after bid opening, and the deficiency cannot be deemed minor, because it would accord Mercedes an advantage not enjoyed by other bidders. Succinctly, Mercedes could revisit its bid on bid opening, refuse to supply the required list, and thereby effectively disqualify itself and withdraw its bid. The other bidders who timely submitted their lists would not have an opportunity to revisit their bids or withdraw their bids, but would be held to the provision of the ITB that prohibited such withdrawal for 90 days after bid opening. A frivolous protest Mercedes' protest was frivolous. It presented no justifiable question for resolution, and was without basis In fact or in law. Mercedes knew when it submitted its bid that a list of in-state service representatives was required. It simply forgot to include that list. When this oversight was disclosed at bid opening, it tried to supplement its bid. This effort, for the reasons set forth in the conclusions of law, was ineffective. Now, Mercedes would have the hearing officer believe that it intended its response to the "Ordering Instructions" form, as well as the manufacturer's technical literature and price list included in the bid, as its list of in-state service representatives. Such proof is not credible, such was not Mercedes' intent, and its response cannot reasonably be so construed. Mercedes' contention that its failure to include such list should be waived as a minor irregularity is likewise factually and legally without merit. See Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982), wherein this issue was previously resolved adverse to the position advocated by Mercedes. The impact of the protest The current term contract for lamps expires June 9, 1988. Upon expiration of that contract, state agencies will not be accorded the savings generated by a term contract and will be required to competitively bid any lamp purchase over $3,000. Had Mercedes not protested the Marpan award, state agencies would have enjoyed continued savings under a term contract that would have provided them prices 50 percent lower than could be obtained through individual agency bids.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by Mercedes Lighting and Electrical Supply, Inc. DONE AND ENTERED In Tallahassee, Leon County, Florida, this 3rd day of June, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1988.
Findings Of Fact Respondent advertised for bids for work to be performed on the Statewide Regional Juvenile Detention Center located in Pasco County identified as Project Number HRS 85-300000. In response to this advertisements Petitioner and Intervenor timely submitted bids on January 23, 1966. According to calculations performed by Respondent, Petitioner was low bidder and Intervenor was the next lowest bidder. The construction budget for this job is $1.5 million, and both bids are considered by Respondent to be within budget. Depending on the alternatives chosen within each bid, Petitioner's bid is lower than Intervenor's by between approximately $6,000 and $40,000. Section B-14 of the advertisement for bids requires each bidder to submit a list of the subcontractors who will perform work on the job for him and specifies that only one subcontractor shall be listed for each phase of the work. Section D of the advertisement for bids specifies the work areas for which a subcontractor must be listed and states that said list is an integral part of each bid submitted. The subcontracting areas include electrical plumbing, mechanical, roofing security control systems, food service equipment and fire protection. Petitioner's bid was rejected on February 4, 1986, because its bid failed to include a roofing subcontractor's name as required in the advertisement for bids. Petitioner does not dispute that its bid was incomplete when submitted since it failed to identify a roofing subcontractor. However, Petitioner contends this omission was a result of clerical error in typing the bide and that, in fact, it had selected Republic Roofing as its subcontractor. John Breen, Petitioner's project manager, testified that it was his intent to use Republic Roofing when he submitted the bide that he had a firm bid from Republic Roofing, and that when this omission was brought to his attention after bids were opened, he identified Republic Roofing in writing on January 24 and 29, 1986, to Brian Seufert an intern architect working for Respondent's project architect. Seufert confirms Breen's testimony through affidavit jointly filed by the parties. Seufert indicates that the project architect has no reason to believe that Petitioner could not perform the work required by the project. By affidavit jointly filed by the parties, Joyce Kleja secretary for Petitioners also supports Breen's testimony about her clerical error in omitting the roofing subcontractor when she typed the bid. Ray Scerbo, an estimator for Republic Roofing, disputes the testimony of Breen through jointly filed affidavit. Scerbo indicates it was not until a couple of days after the bid opening that he was told by Petitioner that Republic Roofing "had the job" if Petitioner was awarded the contract. This conflicts with the first written notice from Breen to Seufert dated January 24, 1986, as well as Seufert's affidavit that Petitioner told Seufert on January 24, 1986, that Republic Roofing had been selected. Scerbo is no longer employed by Republic Roofing. After considering all of the evidence, it is specifically found that Petitioner's omission of Republic Roofing from its list of subcontractors was through clerical error and that Petitioner had firmly decided to use Republic Roofing for subcontracting work prior to submission of its bid. The advertisement for bid required all subcontractors to be listed in any bid in order to allow Respondent to review prior performance and licensure of subcontractors, and also to prevent "bid shopping". Bid shopping is a practice which inflates a general contractor's bid and therefore the actual award by encouraging subcontractors to initially submit high bids to the general contractor and then negotiate a lower price with the general contractor who has received the award. The general contractor's bid remains inflated however and in this way the cost to the state is increased.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order awarding Project Number HRS 85-300000 to Intervenor. DONE and ENTERED this 1st day of April 1986, at Tallahassee Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of April 1986. APPENDIX (DOAH CASE NO. 86-0495B1D) Petitioner has submitted a memorandum and a Proposed Recommended Order, both of which appear to set forth proposed findings of fact in unnumbered paragraphs. For purposes of ruling thereon, the unnumbered paragraphs which appear to set forth proposed findings have been consecutively numbered. Memorandum: Introductory material and not a proposed finding of fact. Adopted in part in Findings of Fact 1, 2, 3, 4, but otherwise rejected as cumulative and unnecessary. Adopted in Findings of Fact 5, 7. Rejected as simply a summary of testimony and evidence and not a proposed finding of fact. Rejected as irrelevant. Adopted in part in Findings of Fact 5, 6. Adopted in part in Finding of Fact 4, but rejected in part in Finding of Fact 2 and otherwise rejected as not based on competent substantial evidence. Proposed Recommended Order: Adopted in part in Findings of Fact 1, 3, but otherwise rejected as unnecessary and irrelevant. Rejected as irrelevant. Adopted in part in Finding of Fact 2, but otherwise rejected as contrary to Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 7. Adopted in Finding of Fact 4. Rulings on Respondent's and Intervenor's jointly filed Proposed Findings of Fact: Adopted in Findings of Fact 1, 3. Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 8. , 6. Adopted in Findings of Fact 6, 7. COPIES FURNISHED: Dennis R. Long Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Sam Powers Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 William Page; Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 John P. Fons Esquire Post Office Drawer 11307 Tallahassee, Florida 32302
The Issue Whether a bid dispute arising in connection with an emergency bid letting is an appropriate subject for formal administrative proceedings, in the absence of an administrative challenge to the fact of the emergency?
Findings Of Fact The parties stipulated that DOT had "received [Baxter's] notices of protest dated September 23, 1983, October 14, 1983, and December 16, 1983, protesting the Department of Transportation's determination that Baxter's Asphalt was not the lowest responsible bidder on this project and petitioning for formal administrative hearings." Baxter's bid was indeed the apparent low bid on Job No. 53030-3511, but DOT has taken the position that Baxter is not a responsible bidder, and has disregarded Baxter's bid on that account. The DOT has moved beyond proposed action and has actually awarded the contract to Gulf, the second low bidder. The parties stipulated: Pursuant to Section 120.53(5)(c) , Florida Statutes, the Department has decided to proceed with the award and execution of the contract with Gulf Asphalt Corporation in order to avoid what the Department perceived as an immediate and serious danger to the public health, safety, or welfare. DOT executed the contract with Gulf on January 6, 1984. As grounds for executing the contract, notwithstanding the pendency of formal administrative proceedings, the Secretary of the DOT stated: ...The conversion of this two lane roadway to a four lane facility is badly needed to increase the traffic capacity and improve the safety of the highway for the traveling public. This section of roadway has a structural rating of 35 which places it in the "Critical" range . . . [and] has an accident ratio of 1.244 which is almost 25 percent above the average rate. dditional funds were appropriated by the Florida Legislature so that work could proceed without delay. It is also imperative that these projects proceed in an orderly fashion to maximize the effective use of [DOT] construction in spection and supervisory personnel. Letter from Secretary Pappas to Baxter, December 23, 1983. Baxter does not concede that an emergency exists with respect to Job No. 53030- 3511, but did concede that the existence of an emergency was for the agency head to determine, subject only to judicial review. In its petition for formal administrative proceedings, Baxter did not raise the question whether an emergency exists. For purposes of the present administrative proceeding, there is no dispute or issue as to the existence of the emergency.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's formal written protest as moot. DONE and ENTERED this 9th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1984. COPIES FURNISHED: Frank A. Baker, Esquire Roberts and Baker P. O. Box 854 Marianna, Florida 32446 Robert I. Scanlan, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Request for Proposals Through the issuance and distribution of a Request for Proposal and/or Proposal Submittal Form (RFP), the Department's Region IV solicited the submission of proposals from prospective lessors interested in leasing to the Department office space in an area (more particularly described in the RFP) in Broward County. The RFP contained the following "General Specifications and Requirements," among others: Net square footage required: 9,196 (within plus 3 percent tolerance) measured in accordance with the Standard Method of Space Measurement (Attachment A). NOTE: restrooms and mechanical rooms are not to be included in calculating net rentable square footage. BIDDER RESPONSE: Net square feet available (Space offered must be within the +3 percent required) . . . Space to be located in the County of Broward, Florida depicted in the following boundaries: NORTH: N.W. 2nd Street, N.E. 2nd Street SOUTH: Davie Boulevard EAST: Federal Highway, U.S. 1 WEST: S.W. 4th Avenue, N.W. 7th Avenue (See attached map (Attachment B). ) Proposals (bids) shall be considered responsive if the space is within or abutting the specified boundaries. Space for purpose of this paragraph means the net square footage to be leased. BIDDER RESPONSE: (address of proposed location- mark location on Attachment B also). Include zip code. The offered space represents entire building. percent of the Space to be made available on July 1, 1997 or within 90 days after notification of award of proposal, whichever occurs last. . . . Term of lease: Five (5) years with an option to renew for an additional Five (5) Years. Services: Full Services to be provided by lessor, including utilities, interior and exterior maintenance, recycling services, garbage disposal, janitorial services and supplies as specified in Attachment C. . . . Photographs and Floor Plans: As part of the bidder's submittal, bidders are to provide: A clear photograph or prospectus showing exterior front, sides and rear of the proposed facility. A floor plan to scale . . . showing present configurations with measurements that equate to the net rentable square footage. The final floor plan will be as described in the specifications and as identified through consultation with the Department. BIDDER RESPONSE: Floor Plan and Photograph(s) are included as a part of this proposal. . . . Existing building. The proposed space must be an existing building. To be considered as existing the proposed space must be dry and measurable (capable of being physically measured). To be considered as "Dry and Measurable" the construction area of all floors of the building including bathrooms, basement, mechanical equip- ment rooms, stairways, penthouses, and the like must be enclosed with floor, finished roof and exterior walls with windows and doors installed, so that the interior of the building will remain dry during adverse weather conditions. The areas mentioned must be clearly defined within the building, but are not required to be completed, to allow the actual occupiable (rental) area of the building to be measured at the time of pro- posal submittal. Renovations to bring the facility into compliance with all applicable Federal, State and local codes and regulations and/or to meet the desired arrangements are permitted, if carried out in accordance with prescribed procedures. The facility must comply or be renovated to comply with the requirements for Accessibility by Handicapped Persons as mandated by Chapter 553, Sections 553.501-553.513, Florida Statutes, and the latest Accessibility Requirements manual published by the Department of Community Affairs, (DCA) Florida Board of Building Codes and Stan- dards, as well as the requirements of Public Law 101-336, July 26, 1990 known as the "Americans with Disabilities Act of 1990" Appendix A to Part 36, "Standards for Accessible Design." The Lessor agrees that the de[v]ised premises now conform, or that, prior to Lessee's occupancy, that said premise[s] shall, at the Lessor's expense, be brought into compliance with all specified requirements. (Attachment D). Successful bidder will provide a floor plan including a site plan of the parking areas for ADA review. . . . The RFP contained the following "Space Requirement Criteria," among others: Plans review fees for State leased buildings: Floor plans are to be a joint effort of departmental staff and the successful bidder. The successful bidder is to provide architectural services by a licensed architect to prepare renovation plans per the 1991 Edition of NFPA 101. The final floor plan is subject to department determination and State Fire Marshall review and approval. . . . See floor plan, Attachment H, for suggested configuration of offices and rooms. 5 Offices not to exceed 120 sq. ft. each- 600 net sq/ft 55 Offices not to exceed 64 sq. ft each- 3,520 net sq/ft File Areas- 84 net sq/ft Reception Areas- 300 net sq/ft Conference Room- 550 net sq/ft Storage Areas with floor to ceiling shelves- 180 net sq/ft Copy and Mail Distribution Room- 100 net sq/ft Employee Lounge with sink/cabinets/counter top- 90 net sq/ft Inactive File Room w/open shelves- 2,000 net sq/ft Drug Testing Room*- 100 net sq/ft MIS & Office Automation Terminals and Printers- 255 net sq/ft Firearm Storage- 40 net sq/ft Internal Circulation- 1,377 net sq/ft *Must include: Adjoining restroom, stainless steel sink, viewing window between testing room and restroom, storage shelves and cabinets, and dead bolt lock on testing room. This bathroom is additional to restrooms referenced under "Restrooms" . . . 8. Restrooms: (must meet requirements of Americans with Disability Act of 1990 and the requirements of the Accessibility by Handicapped Persons, Section 553.504(12-13), Florida Statutes- Attachment D): Waterclosets- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Urinals- 1 Men's (Public); 1 Men's (Staff) Lavatories w/mirrors- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Note: If space is offered on more than one floor, restroom facilities must be provided to code on each floor in conformance with occupancy and code requirements whichever is greater. . . . The RFP contained the following "General Provisions," among others: 2. All bids accepted by the State are subject to the State's terms and conditions and any and all additional terms and conditions submitted by bidders are rejected and shall have no force and effect. . . . 5. All Proposal sheets must be executed and submitted in a sealed and titled envelope, enclosed in an outer envelope. The face of the inner envelope shall contain, in addition to the Department's address . . ., the date and time of the bid opening and the lease number. PROPOSALS NOT SUBMITTED ON THIS PROPOSAL SUBMITTAL FORM SHALL BE REJECTED. All proposals are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. Each proposal shall be signed by the owner(s), corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). . . . The Department agrees to enter into a lease agreement based on submission and accep- tance of the proposal in the best interest of the Department and the State. The Department reserves the right to reject any and all proposals for reason which shall include, but not be limited to, the agency's budgetary constraints; waive any minor infor- mation or technicality in proposals, to accept the proposal deemed to be the lowest and in the best interest of the State, and if necessary, to reinstate procedures for soliciting competitive proposals. . . . Late proposals, modification of proposals, or withdrawal of proposals: Any proposal received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. A proposal may be withdrawn in person by a proposer or his/her authorized representative provided his/her identity is made known and he/she signs a receipt for the proposal, but only if the withdrawal is made prior to the exact time set for the receipt of proposals. . . . Sealed proposals will be received until 10:00 a.m. on August 21, 1996 by Maria L. Cortes at 3810 Inverrary Blvd., Bldg. C, Suite 101 Conference Room, Lauderhill, FL 33319, at which time all proposals will be publicly opened and read aloud. Notification of award will be made within 30 calendar days and shall be given either by posting the proposal tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. . . . A preproposal conference . . . will be held at 10:00 a.m. on July 17, 1996 at 3810 Inverrary Blvd., Bldg C, Suite 101, Conference Room, Lauder- hill, FL 33319 "Attachment A" to the RFP was the "Standard Method of Space Measurement," which was referenced in the "Net square footage required" provision of the RFP's "General Specifications and Requirements." "Attachment A" read as follows: STANDARD METHOD OF SPACE MEASUREMENT 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 variance 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 with 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, leased or State-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, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closet, electrical closets-- 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 necessary to the building. Pre-Proposal Conference A pre-proposal conference was held, as scheduled, to give prospective lessors the opportunity to receive from the Department answers to questions they had regarding the RFP. The Department emphasized to those prospective lessors who attended the pre-proposal conference that, as indicated in the "Net square footage required" provision of the RFP's "General Specifications and Requirements," it would not accept a proposal offering space with a "net square footage" of less than 9,196 square feet. Petitioner did not send a representative to the pre-proposal conference. Petitioner's Proposal Two proposals were submitted in response to the RFP. One of these proposals was submitted by Petitioner, which offered the Department the entire space in a two-story building located at 609 South Andrews Avenue in Fort Lauderdale, Florida (Petitioner's Building). In its proposal, Petitioner indicated that the "net square feet available" in its building was 9,370. Along with its proposal, Petitioner submitted to the Department existing and proposed floor plans. There are currently two restrooms on the first floor of Petitioner's Building and two restrooms on the second floor of the building. None of these restrooms meets the accessibility requirements prescribed in the RFP. It is Petitioner's intention, if it is awarded the lease by the Department, to eliminate these existing restrooms and replace them with restrooms to be constructed adjacent to the existing structure in space that is not now, nor was it at the time of the submission of Petitioner's proposal, "Dry and Measurable," as that term is defined in the "Existing building" provision of the RFP's "General Specifications and Requirements." These intentions of Petitioner's were reflected in the materials Petitioner submitted to the Department along with its proposal. The Department's Initial Evaluation of the Responsiveness of the Two Proposals Douglas Sweredoski is the Facilities Services Manager Assistant for the Department's Region IV. He is a certified real estate appraiser. On or about September 15, 1996, Sweredoski went to Petitioner's Building and measured the dimensions of the building (and certain of its component parts), using an electronic measuring device, to ascertain whether the building had the "net square footage required" by the RFP. Employing the "Standard Method of Space Measurement," Sweredoski reasonably determined that Petitioner's Building had less than the "net square footage required" by the RFP and that therefore Petitioner's proposal was not responsive to the RFP. The other proposal that the Department received was also deemed to be non-responsive (a determination that has not been challenged). The Department's Notice of Rejection of Proposals Having determined that both proposals it had received were materially non-responsive, the Department, by letter dated September 19, 1996, informed Petitioner of the following: This letter is to inform you that the Department of Corrections has determined that it is in the best interest of the State of Florida to reject all bids submitted for the above referenced lease [Lease No. 700:0754]. A new Request for Proposal will be issued soon. This letter constitutes agency action concerning the referenced bid. You have seventy-two (72) hours from receipt of this letter to file a written notice of protest to this action, and ten (10) days after filing such written notice of protest to file a formal written protest. All documents should be addressed to the undersigned at 3810 Inverrary Boulevard, Building C, Suite 101, Lauderhill, Florida 33319. Failure to file a protest within the times prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Protest Petitioner timely protested the Department's decision to reject Petitioner's proposal and to issue a new RFP. Sweredoski's Return to Petitioner's Building On or about October 1, 1996, Sweredoski returned to Petitioner's Building to verify the accuracy of the measurements that he had obtained (using an electronic device) during his earlier visit to the building. On this follow-up visit to the building, Sweredoski used a mechanical device (more specifically, a tape measure) to measure the dimensions of the building (and certain of its component parts). The measurements he obtained during this second visit were "very close" to the measurements he had obtained during his previous visit. Sweredoski, employing (as he had during his earlier visit) the "Standard Method of Space Measurement," reasonably determined that Petitioner's Building had a "net square footage" of 8,731 net square feet (a "gross square footage" of 9,369 square feet minus: 271 square feet for the existing stairway leading from the first to the second floor; 110 square feet for the existing telephone/mechanical closet on the second floor; and 257 square feet for the existing bathrooms on the first and second floors). Referral of Petitioner's Protest to the Division On October 10, 1996, the Department referred Petitioner's protest to the Division.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order denying Petitioner's protest of the Department's decision to reject all proposals (including Petitioner's) submitted in response to the Department's request for proposals for Lease No. 700:0754. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1996. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996.
The Issue Whether the Department’s intended award of contract E2K97 for Asset Maintenance of the Duval County Roadways is contrary to the agency’s governing statutes, the agency rules or policies or the bid or proposal specifications.
Findings Of Fact The following facts were agreed between the parties in their Joint Pre-Hearing statement: On June 18, 2007, FDOT posted the solicitation for asset maintenance of the Duval County Roadways through procurement E-2K97. The RFP requested technical proposals and bids for a five-year contract for maintenance of identified roads in Duval County. The RFP provides that the scoring of the technical proposals is to be weighted as follows: Administration Plan (20%), Management and Technical Plan (30%), Operation Plan (30%), and Plan for Compliance with Standards (20%). ESI did not file a protest of the RFP's terms, conditions, specifications, or provisions governing the method of ranking proposals within 72 hours of the posting of the solicitation. A mandatory pre-bid meeting was held on July 10, 2007. The technical and price proposals for this project were due by August 9, 2007. Four firms submitted timely proposals in response to the RFP. They were ESI, DBI, Infrastructure Corporation of America (ICA) and VMS. The proposals were evaluated by three registered civil engineers who are employed by FDOT: Jerry Ausher, Julius Rinosa, and Mark Kuhn. All four firms were determined to be responsive and received scores on their technical proposal and price proposal. DBI's average score on its technical proposal was 88, the highest of the four firms. ESI's average score on its technical proposal was 75.33, the lowest of the four firms. ESI's price proposal bid was $44,759,500.00, the lowest of the four firms. DBI's price proposal bid was $48,748,886.00, the second lowest of the four firms. After combining the technical scores and price proposal scores, the total proposal scores for the four firms were as follows: DBI = 89.14, VMS = 85.19, ESI = 82.73, and ICA = 82.68. On September 4, 2007, FDOT posted its notice of intended award to DBI as the winning bidder. ESI filed a notice of intent to protest on September 7, 2007, followed by a formal written protest on September 17, 2007. DBI filed a Petition to Intervene which was granted on November 7, 2007. As the intended awardee, DBI has a substantial interest in the outcome of this proceeding and thus, has standing to intervene.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner’s Amended Formal Written Bid Protest be dismissed. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 31st day of March, 2008. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Denise Johnson, Esquire Assistant General Counsel Florida Department of Transportation Office of the General Counsel Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire 2104 Delta Way, Suite 9 Tallahassee, Florida 32303 J. Reuben Hamlin, Esquire Post Office Box 1620 Newberry, Florida 32669 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Is the Department of Corrections' proposed award of Project SK-25-WW to Shaw Construction and Management Services, Inc., contrary to the Department's governing statutes, rules or policies, or the bid or proposal specifications?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: In April 1997, the Department advertised for bids for construction of wastewater treatment plant upgrades at Polk Correctional Institution (Project). The engineering firm of Hartman and Associates, Inc. (Hartman) was the Department's professional consultant on the Project and was responsible for designing, permitting, bidding, and construction supervision. Hartman's project manager was Timothy Hochuli. In April 1997, after the Project Manual was completed and ready for distribution, Hochuli furnished Clayton Campbell, the Department's project manager, a copy of the advertisement for publication in the Florida Administrative Weekly, the official publication for projects that are bid by the Department. The copy of the advertisement furnished to Campbell indicated that a pre-bid conference was mandatory. After some discussion between Hochuli and Campbell, it was decided that the advertisement would not contain the requirement for a mandatory pre-bid conference but only that there would be a pre-bid conference. Thereafter, the advertisement was placed in the Florida Administrative Weekly without the mandatory pre-bid conference requirement. Hochuli did not delete the requirement for a mandatory pre-bid conference in the Project Manual, notwithstanding the advertisement in the Florida Administrative Weekly to the contrary. However, Campbell assumed that the requirement for a mandatory pre-bid conference had been removed from the Project Manual, and acted on that assumption until advised otherwise by Beach after the bid opening. The Advertisement for Bids that was placed in the Florida Administrative Weekly included the following relevant paragraphs: PROPOSALS: Bids must be submitted in full accordance with the requirements of the Drawings, Specifications, Bidding Conditions and Contractual Conditions, which may be examined and obtained from the: ARCHITECT/ENGINEER: HARTMAN & ASSOCIATES, INC.,. . . . * * * PRE-BID CONFERENCE: A pre-bid conference will be held on April 15, 1997 at the Administrative Building Conference Room at the Polk Correctional Institution. The Bidding Conditions were included in the Project Manual which was issued by Hartman. Section A of the Project Manual entitled "Advertisement for Bid" includes the following paragraph: PRE-BID CONFERENCE: A mandatory pre-bid conference will be held on April 15, 1997, 10:30 a.m. at the Administrative Building Conference Room at the Polk Correctional Institution. There was no reference to a pre-bid conference in Section B of the Project Manual entitled "Instruction to Bidders" or any other part of the Project Manual. Shaw learned of the Project through the April 10, 1997, Dodge Reports, a trade journal that publishes construction projects, which did not list the pre-bid conference as being mandatory. However, at least one other trade journal listed the pre-bid conference as being mandatory. The pre-bid conference was held as scheduled on April 15, 1997. All bidders, with the exception of Shaw, were represented at the pre-bid conference. At the pre-bid conference, Campbell and Hochuli gave an overview of the project, discussed concerns specific to the project and prequalification requirements, and answered questions. Certain questions were answered in an addendum to the Project Manual. A site visit, a requirement specified in the Project Manual, was also conducted by Campbell and Hochuli. Although Shaw did not attend this site visit, Shaw did make a site visit prior to submitting its proposal in accordance with paragraph B-9 of the Project Manual. 12 Shaw ordered the Project Manual from Hartman on April 21, 1997. After receiving the Project Manual, Shaw noticed that the pre-bid conference was mandatory. Shaw then contacted Hartman to determine if Shaw could bid on the Project since it had not attended the pre-bid conference on April 15, 1997. Shaw was advised by Hartman that it could submit a bid. Shaw did not request, nor did the Department or Hartman make an addendum to the Project Manual concerning the mandatory pre-bid conference. Beach, Shaw, and four others submitted bids on the Project which were opened at 11:30 a.m. on April 25, 1997. Shaw was the lowest bidder at $279,000, with Beach being the second lowest bidder at $297,000. Hochuli reviewed Shaw's bid; and based on Shaw's familiarity with similar projects of similar size, work references, and financial information, determined that Shaw could do the work required by the Project Manual, and thus recommended that the Department award the Project to Shaw. On June 6, 1997, the Department issued notice that it intended to award the contract to Shaw as the lowest responsive bidder. Beach, the apparent second lowest responsive bidder, timely submitted a notice of protest and a formal written protest, contending that Shaw was not a responsive bidder, in that Shaw had not attended the pre-bid conference. There is no evidence that Shaw's failure to attend the pre-bid conference affected the price of the bid, or gave Shaw an advantage or benefit not enjoyed by other bidders, or adversely impacted the interest of the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the protest of Petitioner Beach Construction Company, Inc., be dismissed. DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997. COPIES FURNISHED: Harry K. Singletary, Jr. Secretary 2601 Blair Stone Road Tallahassee, Florida 3399-2500 Louis A. Vargas General Counsel 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Donna P. Beach Qualified Representative Beach Construction Company, Inc. 4554 Southwest 41st Boulevard Gainesville, Florida 32608 Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Terry L. Shaw Shaw Construction and Management Services, Inc. 386 Pine Tree Road Lake Mary, Florida 32746
Findings Of Fact In July, 1989 the District published its request for bids (number 8980) for an atomic absorption spetrophotometer in local newspapers and to prospective interested parties, as shown in joint Exhibit 1 in evidence. The specifications for the instrument were included in the bid package and were authored by Mark Rials, the District's Laboratory Supervisor. The District received two bids for the instrument in response to the request for bids, one from Varian for approximately $57,000 and one from Perkin-Elmer for approximately $59,900. Mark Rials evaluated the bids. Upon evaluation it was determined that the Varian instrument proposal did not meet bid specifications in three major areas. The specifications required a system capacity of 40 megabytes, hard drive capability. The capacity offered by Varian in its bid was for 20 megabytes. The specifications required a combination of a 5 1/4 inch disk drive for its computer system as well as a 3 1/2 inch disk drive. Varian only bid the 3 1/2 inch diskdrive. It did not offer the 5 1/4 inch disk drive which was required. Additionally, at item IX of the specifications, the District required that a list be submitted with the bid which stated, on an item-by-item basis, how the instrument met or exceeded the specifications. Each item in the specifications had been carefully selected to insure optimum performance for the laboratory so that exceptions to the specifications were required to be noted and attached in the bid response. Varian failed to conform to this item of the specifications. This item allowed a vendor to describe in its bid response how it could differently meet the specifications in a better manner or even exceed the specifications, but Varian failed to provide this itemized list. It was also determined that the Varian bid did not conform with the specifications of item IV page 4 of the invitation to bid document concerning the provision of service manuals, system and application software documentation, methods, manuals, parts catalogs, supplies, accessories, catalog, and training manuals. Conversely, it was determined that the Perkin-Elmer bid was responsive in all respects, met the bid specification in these major categories and was the most responsive bidder. After witness Rials conducted the evaluation of the bids, in terms of compliance with the specifications, he and the District determined that the Perkin-Elmer bid was the lowest, responsive bidder which met all specifications. It duly published the intended award and notified all bidders of the bid results. In this evaluation and award process it was demonstrated that the District followed all applicable procedures in its rules and policies concerning evaluation and award. Varian timely filed an objection to the award of the bid; and in accordance with its normal bid protest procedures, the District scheduled a conference between representatives of Varian and District representatives to review Varian's bid. Varian made several statements at that meeting which constituted a substantial deviation from the bid package it had earlier submitted and amounted to an attempted restructuring of its bid in an effort to meet bid specifications. The District declined to countenance this effort and adhered to its initial intent to reject the bid which was submitted by Varian and to not allow the attempted material deviations to be ascribed to Varian's bid, after the point of bid opening and announcement of award. In summary, based upon the bid specifications issued by the District the evaluator's determination concerning the specifications that the evaluator drafted was that the Varian instrument failed to meet bid specifications because of the major deficiencies in the areas found above, regarding systems capacity, computer disk drive availability, and specification response. It has clearly been demonstrated by competent substantial evidence that the District's decision to reject Varian's bid was a reasonable one. It was based solely on a fair comparison of the response of the two bids to the specifications contained in the invitation to bid and notice to all potential vendors. In consideration of the facts established by the evidence in this record, it is found that the bid by Perkin-Elmer substantially met all bid requirements or specifications, even though the Perkin-Elmer bid was the second low bidder in terms of dollar cost. Since the low-cost bidder, Varian, failed to meet major bid specifications, the facts demonstrate that the Perkin-Elmer bid was the most responsive of the two bids at issue and is, therefore, the best bid. Consequently, award should be given to the Perkin-Elmer bid for the instrument in question.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties it is therefore RECOMMENDED: That the Southwest Florida Water Management District issue a final order denying the petition filed by Varian Instrument Group and awarding bid number 8980 to Perkin-Elmer Corporation, as the lowest, responsive bidder. DONE and ENTERED this 6th day of February, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990. APPENDIX Respondent's Proposed Findings of Fact 1-9 are accepted. Petitioner Filed No Proposed Findings of Fact. COPIES FURNISHED: Mr. Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Mickey McAllister District Sales Manager Varian Instrument Group 505 Julie Rivers Road, Suite 150 Sugar Land, TX 77478 A. Wayne Alfieri, Esquire Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue The issue presented is whether Petitioner's bid should be rejected as non-responsive.
Findings Of Fact The Department issued an invitation to bid on State Project No. 93060-3256 for repair and painting of the Flagler Memorial Bridge in Palm Beach County. Since the bridge had tested positive for lead, the advertisement for the project was a standard format utilized by the Department in its District IV for lead-based paint projects requiring QP2 certification. QP2 certification is issued by the Steel Structures Painting Council. The certification demonstrates to the Department that the contractor or subcontractor performing the abatement of lead-based paint on a project has been properly trained to deal with hazardous materials affecting workers and will take the necessary precautions to protect the environment. Utilizing contractors with QP2 certification limits the Department's liability. The certification also ensures that the contractor is familiar with federal Occupational Safety and Health Administration standards. Petitioner is a closely-held corporation. Peter Ambachtsheer is the president and project engineer for the corporation. His sister, Victoria Lane, is the vice president in charge of administration. The advertisement for the project specified that attendance at the pre-bid conference was required in order for any contractor to submit a bid on the project. The mandatory pre-bid conference was held on January 30, 1998, at the District IV office in Fort Lauderdale. Bill Rosenbaum attended the pre- bid conference on behalf of Petitioner. An agenda listing the topics to be discussed and the speakers who would address each topic was distributed to the persons attending the pre-bid conference. The agenda advised that Paul Lampley would discuss "QP2 Certification--Submittal with bid proposal." During his remarks, Lampley specifically told those in attendance that a QP2, Category A, certificate must be submitted with any bid. He read to the persons in attendance the section of the Technical Special Provisions requiring that the QP2, Category A, certificate be submitted with the bid and the provision in the project plans requiring the certificate to be submitted with the bid. Ambachtsheer reviewed the Technical Special Provisions and the plans for the project when Petitioner received the bid package after the pre-bid conference. He understood that the portion of the work involving the lead-based paint must be performed by a contractor or subcontractor holding the required QP2, Category A, certification. Since Petitioner is not so certified, Ambachtsheer contacted Len Hazen Painters, Inc., a company which he knew was certified. Ambachtsheer obtained a quote from Hazen for that portion of the project requiring QP2 certification. He included that amount as part of Petitioner's bid. He told Hazen to fax a copy of its certification to Petitioner so it could be submitted to the Department with Petitioner's bid. Hazen did so, and Petitioner received that certificate before it submitted its bid. Ambachtsheer completed his calculations for the bid and gave his worksheets to Victoria Lane to use in filling in the bid submittal portion of the bid documents. He then left the office to supervise certain work that the company was performing. He did not tell her that the QP2 certificate must be submitted with the bid, and she did not look at the Technical Special Provisions or the project plans since she considers those documents beyond her expertise. Lane prepared the bid submittal sheets using Ambachtsheer's calculations. She submitted the bid so that it was timely received by the Department. She did not include Hazen's QP2 certificate with the bid she submitted on behalf of Petitioner. The Department received Petitioner's bid prior to the deadline. The Department opened the bids it received on Friday, March 13, 1998. Petitioner was the apparent low bidder. When Petitioner learned that it was the apparent low bidder, Ambachtsheer asked to see the bid so he could plan the work on the project. He saw that Hazen's certificate was still in the file and had not been included with Petitioner's bid. He caused the certificate to be faxed to the Department immediately, which occurred late in the morning on Monday, March 16. Upon the next level of review, the Department rejected Petitioner's bid as non-responsive since it failed to include the required QP2 certificate. It is the Department's practice and policy to require that lead-based paint work be performed by a QP2, Category A, certified contractor. The submission of evidence of certification is a material condition of the bid. Petitioner's bid failed to include the required certification. There is, however, some variation among the Department's Districts as to when the required certification should be submitted. That variation did not confuse Petitioner.
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 and rejecting Petitioner's bid. DONE AND ENTERED this 18th day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1998. COPIES FURNISHED: Peter Ambachtsheer, President Sieg & Ambachtsheer, Inc. Post Office Box 609 Orange City, Florida 32763 Brian F. McGrail, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas F. Barry Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 ATTN: Diedre Grubbs
