The Issue The issue is whether the specifications in the request for qualifications advertised by Respondent on May 21, 2002, are inconsistent with the provisions of Section 287.055, Florida Statutes, arbitrary, or otherwise contrary to competition.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an engineering firm. Joe Robinson, a professional engineer, is the majority owner and president of Petitioner. Petitioner is a certified minority-owned business because Mr. Robinson and at least one of his partners are African-American males. Respondent is a local school district, and is responsible for the management and operation of the approximately 200 public schools in Hillsborough County. Respondent's annual budget for construction and renovation of schools is between $160 million and $200 million per year, with an unspecified but large portion of that amount attributable to the cost of competitively procured architectural, engineering and construction services. Petitioner has done very little engineering work for the School Board in the past. It worked on a study for the School Board in 1986, and worked on a warehouse project for the School Board in 1994. Over the past four years, Petitioner has applied for only one engineering project with the School Board. At the request of the School Board staff, Mr. Robinson provided comments to Ernst & Young, a consulting firm hired by the School Board to conduct "a forensic evaluation and analysis of the District's construction and maintenance policies, practices, and procedures” and to review the School Board's minority business enterprise program. The findings and recommendations in the report prepared by Ernst & Young (discussed below), along with Petitioner's "insights" and input, led to revisions in the School Board’s policies and procedures for procuring architectural and engineering services. Those revisions, adopted by the School Board on July 30, 2002, are not at issue in this proceeding; they are being challenged by Petitioner in DOAH Case No. 01- 3138RP. Ernst & Young Report On May 17, 2002, Ernst & Young submitted a 121-page report based upon its evaluation. The report was critical of many aspects of the School Board's procurement, construction, and maintenance policies, practices, and procedures. With respect to the procurement of architectural and engineering services, the report included the following assessment which is pertinent here: Our review of [the District's] vendor's [sic] selection process indicates, in many respects, that the process follows traditional requirements established by SREF and Florida Statute [sic]. Furthermore, in many instances, the procedures mirror those utilized by peer and contiguous school districts. However, we have identified significant shortcomings related to ranking the professional service providers that have submitted bids for either architectural design, engineering, or construction management services. * * * Interviews with the A/E/C [architectural/engineering/construction] community have indicated that the vendor selection process is generally understood by the professional community. However, the architects and construction managers within the community do not understand how vendors are evaluated or ultimately rank ordered [sic] by the District to arrive at a list of the three highest ranked respondents. As a matter of fact, the District has moved away from using a score sheet or "score card" with pre-established evaluation criteria and a weighted point structure, and toward a rather subjective process whereby a selection committee simply appoints professional service providers either based upon past performance on a similar type of project (i.e. replicate design) or based upon the District's desire to equitably distribute work amongst the A/E/C community. This type of evaluation and selection process, as currently utilized by the District, while effective at distributing work amongst the A/E/C community, does not ensure that the best or most qualified vendor will be selected for each of the proposed school district projects. The current vendor selection process could permit abuse and favoritism as the selection committee could be influenced by School Board input, personal relationship [sic] and lack of objective criteria. Although we found no evidence of undue influence, the subjective nature of the process offers the District little credibility. * * * E&Y [Ernst & Young] found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of prior performance, company financial condition, proposed project management team, etc. Moreover, the selection committees do not rotate sufficiently to eliminate the possible influence from senior [District] Administrators or Board Members. Ernst & Young Report, at 27-29 (emphasis supplied). On these points, the report concluded: Upon comparison to each of the peer and contiguous school districts, Ernst & Young found that only [the District] engages in a vendor selection process in the absence of pre-established or pre-determined evaluation criteria and a numerically-based scoring system which permits a numerical ranking of each interested professional service provider. E&Y found that the vendor selection process being utilized by [the District] lacks credibility in that it remains highly subjective as new projects are allocated without respect to numerical analysis of proper performance, company financial condition, proposed project management team, etc. . . . Ernst & Young Report, at 107 (emphasis supplied). The report's description of the School Board's current evaluation and selection process is consistent with the testimony at the hearing, as more fully discussed below. The report included the following recommendations relevant to the procurement of architectural and engineering services: The District's vendor selection process can be more objective and better understood within the A/E/C community by developing standard evaluation criteria and a numerically-based scoring system. Such a system will permit the District to numerically rank each interested professional service provider and thus eliminate bias and potential favoritism of the [District] selection committee. Evaluation criteria should include, among other things, prior performance, company financial condition, proposed project management team, etc. Moreover E&Y recommends that the District augment its vendor selection committees with community members, business leaders, school principals, and other external stakeholders as appropriate. In conjunction, [the District] should also increase its rotation of the selection committees [sic] members to eliminate possible influence from senior Administrators or Board Members. Ernst & Young Report, at 117. The Request for Qualifications The School Board has five in-house architects and six in-house inspectors who are responsible for overseeing all of the District's planning and construction projects. The primary function performed by the architects is project management, i.e., "rid[ing] herd" over construction schedules and overseeing the work of the project architects and construction managers. The primary functions of the inspectors are code enforcement, quality assurance management, and contract compliance. In addition to the recommendations quoted above, the Ernst & Young report recommended that the School Board augment its in-house staff to provide more on-site supervision and inspection of construction projects. Specifically, the report recommended: [T]o protect the District's interest, it would be beneficial to have a full-time on- site owner's representative, which could be either a District employee, a licensed architect, independent engineer or experienced construction manager with a demonstrated history of successfully completing quality construction projects. The result of the full time [sic] on-site representative is better control of the quality of the work being performed, a working knowledge of the project, the ability to identify and solve problems when they first arise, and promotes the accountability amount the parties involved to deliver the highest quality product. Since capital project expenditures are expected to peak within the next three years, E&Y recommends using either an outsourcing strategy or contract employee to serve this need. Ernst & Young Report, at 118-19. In an effort to implement this recommendation, the School Board published the following notice in the Tampa Tribune on May 21, 2002: THE SCHOOL BOARD OF HILLSBOROUGH COUNTY, Florida, announces that professional architectural and/or professional engineering services will be required. These services will consist of providing architectural and/or engineering project management personnel to supplement existing district staff. Duties may include design reviews, project coordination, administration, on-site observation and quality control. Applicants will be expected to provide personnel possessing recent relevant project management experience on K-12 educational facilities. Any applicant interested in providing services shall submit a completed G.S.A. Form 254. Said form shall be separate and apart from any accompanying materials. All material must be submitted to J. Thomas Blackwell, Director of Planning & Construction, 901 East Kennedy Boulevard, Tampa, Florida 33602 by 4:00 p.m. on May 31, 2002. Applicants are encouraged to submit electronically by emailing pdf documents to tom.blackwell@rossac2.sdhc.k12.fl.us. No additional information was made available to potential respondents regarding the nature or extent of the services sought to be procured by the RFQ. However, at the hearing, it was explained that the School Board expected to procure the services of five project coordinators or project managers through the RFQ. The five positions could be filled by different firms on a full-time or half-time basis or by a single firm, depending upon the submittals and the outcome of the evaluation process. The G.S.A. Form 254 referenced in the advertisement solicited general information about the applicant, including whether the applicant is a "small disadvantaged business." The form also required the applicant to provide a list of its projects over the past five years, including information relating to the type of project, cost of the project, and completion date. Neither the RFQ nor any other information provided to potential respondents in advance explains how the responses will be evaluated. Neither the RFQ nor any other information provided to potential respondents in advance identifies the factors that the School Board will consider in evaluating the response or the weight that the School Board will give to such factors. Petitioner's Protest Petitioner received notice of the RFQ on May 21, 2002, through the newspaper advertisement. The evidence does not establish the time of day that Petitioner received such notice. By letter dated May 24, 2002, Petitioner provided the School Board notice of its intent to protest the specifications in the RFQ. By letter dated June 3, 2002, Petitioner formally protested the "selection methods" for the RFQ. The record does not reflect when the School Board received the letters. However, Mr. Robinson testified that he "filed" the notice of protest letter on May 24, 2002, and "filed" the formal protest letter on June 3, 2002. Petitioner, as an engineering firm, is qualified to submit a response to the RFQ. However, Petitioner did not submit a response to the RFQ. The record does not reflect how many, if any, firms responded to the RFQ by the May 31, 2002, deadline. As a result of Petitioner's protest, the School Board put the RFQ "on hold." The School Board's Procurement Process At the time the RFQ was advertised, the School Board did not have an adopted policy prescribing the procedure by which it procured professional services in accordance with the Consultants' Competitive Negotiation Act (CCNA) in Section 287.055, Florida Statutes. Moreover, the policies and procedures that were in place (discussed below) did not explain to potential respondents how the responses to the RFQ will be evaluated, nor did they prescribe the factors that the School Board will consider in evaluating the responses or the weight that will be given to each factor. Section 7.14 of the Policy Manual simply authorizes the superintendent or his or her designee to "contract for professional or educational services to complete projects or activities authorized or approved by the school board." The only other document describing the School Board's procurement process is a document entitled "Capital Projects Standard Procedures." That document was presented to but never adopted by the School Board. The document references the CCNA in connection with the selection of architects and construction managers, but not engineers; and, it only provides a general outline of the selection process: Publish legal advertisement for Professional Services (CCNA) Screen (interview/presentation) applicants Present "Order of Priority" to School Board Negotiate contract terms and identify consultants Present compensation package to School Board Prepare contract documents Secure signature of Architect and Board Chair Despite the absence of an adopted policy, the selection process described by the School Board's witnesses at the hearing generally complies with the requirements of the CCNA. That process would be used to evaluate the responses to the RFQ. The process begins with publication of the RFQ in three local newspapers, the Tampa Tribune, the Florida Sentinel Bulliten, and La Gaceta. The RFQ is also posted on a website maintained by Tom Blackwell, the Director of Planning and Construction for the School Board. In the past, Mr. Blackwell also sent e-mails to firms which had previously applied for work from the School Board or which had shown interest in obtaining such work, but he no longer does so. All of the applications received in response to the RFQ are referred to a committee for evaluation and interviews. In the past, the School Board utilized a list of certified vendors and interviewed only those applicants which had been certified. However, the School Board now interviews every applicant and uses the interview process to verify the applicant's credentials. The committee is composed of five to seven members selected by Mr. Blackwell and Jack Davis, the School Board's Assistant Superintendent for Operations. The committee members include representatives of each of the District's administrative divisions, e.g., instructional, operations, and administrative. Mr. Blackwell acts as a facilitator for the committee, but typically does not function as a voting member. Mr. Blackwell provides the committee members a copy of the CCNA, and reviews with them the factors set forth therein. Mr. Blackwell also provides the committee members "tally sheets" which are used to evaluate the applicants in specified areas. The sample "tally sheet" introduced at the hearing (Exhibit R2), identified 10 different "topics" for evaluation and assigned points to each topic: Topic Points Experience in projects of similar size, scope and quality 15 History of adherence to budget constraints and cost control mechanisms 10 History of adherence to schedule constraints and delivery dates 10 References 10 Established quality control mechanisms 5 Established scheduling program 5 History of minority business participation 10 Qualifications of key personnel, support staff and resources 5 Organization of project team 5 Interview / Presentation 25 The committee members are not required to complete the "tally sheets" in any particular manner. Indeed, there are no written guidelines prescribing the manner in which the "tally sheets" must be completed by the committee members. Mr. Blackwell and Mr. Davis both testified that committee members are given discretion as to the manner in which they record their observations of the applicants. In this regard, some committee members assign points to each applicant (as the sample "tally sheet" seems to contemplate), others use anecdotal notes, grades (i.e., A, B, C, D, or F), pluses and minuses, or check marks. The committee reviews the materials submitted by the applicants in response to the RFQ (the completed G.S.A. Form 254) and formulates questions for the applicants based the criteria in the CCNA, e.g., the applicant's minority status or its minority participation history, its experience in completing projects on-time and within budget, its quality control and assurance measures. These questions are typically provided to the applicants in advance to enable them to prepare for their presentations and interviews. Each applicant is given an opportunity to make a presentation to the committee. No guidelines are provided for the presentations. The types of presentations range from computerized presentations to display boards to bound books of information. As part of the presentation, the committee asks questions and interviews the applicant. The committee is responsible for ranking the applicants based upon their qualifications. The committee does not consider compensation issues in formulating its ranking. The committee formulates its ranking through a "consensus or group decision making process" rather than through a compilation of individual numerical scores. The decision- making process includes a discussion of each applicant's strengths and weaknesses by the committee members based upon their individual evaluations, input from District staff who worked with the applicant in the past, and visits to prior projects in which the applicant has been involved. The committee's ranking is submitted to the School Board for approval. After the School Board approves the ranking, Mr. Blackwell and his staff begin negotiations with the top-ranked applicant. The negotiations include discussion of the parameters of the project in greater detail as well as the compensation package. If the negotiations with the top-ranked firm fail, then negotiations are commenced with next highest ranked firm. Typically, however, the negotiations with the top-ranked firm are successful. Once the negotiations are completed, a contract is presented to the School Board for approval. The Revised Procurement Policy On July 30, 2002, the School Board approved revisions to its procurement policy and procedure. The revisions will be codified in Sections 7.29 through 7.33 of the Policy Manual. The new Section 7.29 establishes the following policy for the acquisition of professional services: The acquisition of professional architecture, engineering, landscape architectural, land surveying, or construction management services shall be procured in accordance with Florida Statute 287.055 with the object of effecting an equitable distribution of contracts among qualified firms, provided such distribution does not violate the principle of selection of the most highly qualified firms. The other new sections establish the policies and procedures for the steps in the acquisition process, i.e., public announcement (Section 7.30), competitive selection (Section 7.31), competitive negotiation (Section 7.32), and standardized agreements (Section 7.33). As noted above, Petitioner has challenged the validity of the revised policies in DOAH Case No. 02-3138RP. However, both Mr. Robinson and the School Board's witnesses agree that the revised policy is an improvement on the School Board's existing policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order that rescinds the request for qualifications published May 21, 2002, and reformulates the specifications of the request in a manner that, at a minimum, advises potential respondents in advance of the factors upon which the responses will be evaluated and the weight that will be uniformly given to each factor by the selection committee. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 2002.
Findings Of Fact The Respondent entered into a contract with Anthony Cocco and his wife in August of 1977, to construct a single-family residence. By June of 1978, work on the project had virtually ceased, although Respondent caused some landscaping work to be done after that date. In October, 1978, Respondent gave notice to Cocco of a default on the contract. This led to civil litigation on the contract between the parties which was unresolved at the time of the subject hearing. Respondent was licensed as a residential contractor in 1970. See Petitioner's Exhibit #1. The Respondent was also licensed at the time of the hearing. See Petitioner's Exhibit #2. No evidence was received that the Respondent was licensed at any time between the date he entered into the contract with Cocco and the date that Respondent gave notice of default. Regarding the Respondent's licensure between August of 1977, and October, 1978, the only evidence received was the Petitioner's Exhibit #2, which states in pertinent part: ... Said licensee was licensed September 1970 and has been current for all years licensed.
Recommendation Therefore, based on the foregoing Findings of Fact and Conclusions of Law, the Respondent's Motion for Directed Verdict is granted, and it is recommended that this cause be dismissed. DONE and ORDERED this 19th day of April, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 19th day of April, 1982. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Jane E. Heerema, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 George E. Tragos, Esquire 487 Mandalay Avenue Clearwater Beach, Florida 33515 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Pursuant to Section 120.57(3)(f), Florida Statutes, the issue is whether Respondent's proposed rescission of an award of a design-build contract to Petitioner for the construction of additions to two high schools was contrary to the Respondent's governing statutes, rules or policies or contrary to the specifications of Respondent's request for qualifications.
Findings Of Fact On March 30, 2004, Respondent issued a Request for Qualifications (RFQ) for design-build firms to design and construct additions at Southwest Miami Senior High School and Miami Killian Senior High School. The RFQ invites parties to submit proposals, if they are interested in performing the design and construction of three-story additions at each school (the subject projects). Respondent had used the design-build approach for school construction for the past seven to ten years. In this process, the contractor assumes the responsibility for most of the project, as well as, of course, the project construction. For the subject projects, Respondent entered into a contract with a Design Criteria Professional (DCP) to represent Respondent, as the owner, in certain aspects of the construction project. The DCP for these projects is Santos/Raimundez Architects, P.A. The contract between Respondent and the DCP states that Respondent has selected the DCP based, in part, on its designation of specialists, including Fraga Engineers for the mechanical and electrical work. The contract provides that any such specialists that are subconsultants to, rather than employees of, the DCP will enter into subcontracts with the DCP, but not Respondent. The DCP and its designated specialists form the DCP Team, which performs various tasks in connection with each project. These tasks include site investigations to determine project feasibility, the production of project-specific Phase I or schematic drawings from the master specifications that Respondent maintains for school construction, and the issuance of a building permit for the schematic design. Once the contractor commences construction, the DCP Team visits the site to protect Respondent, as the owner, from deviations from the approved design. The DCP Team also approves draws based on the percentage of work completed and change orders, as appropriate. The DCP Team performs about 10-15 percent of the overall design for a project. For the subject projects, the DCP Team spent seven months in performing its responsibilities prior to Respondent's selection of a contractor. The only involvement of Fraga Engineers with the subject projects is for the mechanical and electrical work noted above, as well as plumbing and fire-suppression work of a similar nature for which the DCP also contracted. For the subject projects, Petitioner retained Silva Architects as its architect and primary team member, and Silva Architects entered into a subcontract with Louis Aguirre for the mechanical, electrical, plumbing, and fire-suppression design and construction. The principal of Silva Architects and the principal of Fraga Engineers are, respectively, husband and wife. There is no indication in this record of any improper communications between Mr. Silva and Ms. Fraga concerning the contents of the RFQ or the Phase I drawings, as prepared by Respondent, or the contents of the proposal, as prepared by Petitioner. However, at the time of this solicitation, Fraga Engineers was serving as the engineering firm on at least two of Petitioner's projects, although her firm probably was under contract with Silva Architects, not Petitioner. Except for the following provision, the RFQ does not address potential conflicts between an offeror and Respondent. RFQ Paragraph I.H provides: Any proposer desiring to participate in this process must not have as part of its team an A/E [architectural/engineering] firm presently under contract with the Board for a specific project for which the proposer, or any member thereof, is performing as the general contractor. The Board considers this a conflict of interest and such proposals will not be eligible for award under this RFQ. Petitioner and Intervenor submitted timely proposals to Respondent. Among several offerors submitting proposals, Petitioner submitted the lowest bid, at $17,536,000, followed closely by Intervenor's second-lowest bid, at $17,556,000. Finding Petitioner's proposal acceptable in all respects, Respondent's School Board awarded the contract to Petitioner at its meeting of June 16, 2004. On the same day, Intervenor filed a notice of protest, followed by a timely formal written protest. The formal written protest, which is in the form of an undated letter from Intervenor's counsel to Respondent and Respondent's counsel, states that Intervenor was not allowed to bid on projects where its architect/engineer was on Respondent's DCP Team for another project. The formal written protest argues that Ms. Fraga, or her company, is part of Petitioner's team on other pending projects while she, or her company, is part of Respondent's DCP Team. Respondent conducted an informal conference with Intervenor and later with Petitioner in an attempt to resolve the matter. Failing in that effort, Respondent's counsel issued a letter, dated August 25, 2004, in which he recommended that Respondent's School Board rescind the proposed award to Petitioner. In his letter, Respondent's counsel reasoned that the spousal relationship between Petitioner's architect and the engineering firm under contract with Respondent's architect "would create a continuing and unavoidable conflict of interest that will inure to the benefit of either of these parties in violation of the General Requirements of the Bid, or at a minimum, could create a perceived or potential conflict of interest." In his letter, Respondent's counsel stated that "we disagree" with the recommended order entered in SBR Joint Venture v. Miami-Dade County School Board, DOAH Case No. 03-1102BID (August 1, 2003), in which the Administrative Law Judge concluded, among other things, that a bidding contractor's team did not include subcontractors under contract with the contractor's architect, rather than directly with the contractor. Unless the pronoun refers to the legal counsel's office or a committee formed to resolve the bid dispute, the "we" in the letter of Respondent's counsel is unclear because Respondent's School Board entered a final order on August 20, 2003--one year and five days before the letter of Respondent's counsel--adopting the recommended order. Another confusing part of counsel's letter is an explanatory footnote, in which Respondent's counsel unsuccessfully distinguishes the present case, in which Silva Architects is directly under contract with Petitioner, from SBR Joint Venture, in which the third-tier subcontractor was under contract with the general contractor's architect, not the general contractor. (In SBR Joint Venture, as in the present case, the so-called "third tier" subcontractor has a contract with the "second tier" architect, but not the "first tier" contractor.) The question in this case is not whether the second-tier Silva Architects is part of Petitioner's team-- clearly, it is. A major question in this case is whether Fraga Engineers is part of Petitioner's team--clearly, it is not, unless Ms. Fraga and Mr. Silva are interchangeable due to their marriage or her company's third-tier participation in other projects of Petitioner is attributed to the subject projects. In any event, before Respondent's School Board could take up its counsel's recommendation, Petitioner protested the recommendation, and this case ensued.
Recommendation It is RECOMMENDED that Respondent enter a final order awarding the contract to Petitioner. DONE AND ENTERED this 14th day of December, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 14th day of December, 2004. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Ira Libanoff Ferencik Libanoff Brandt Bustamante and Williams, P.A. 150 South Pine Island Road, Suite 400 Fort Lauderdale, Florida 33324 Luis M. Garcia Miami-Dade County School Board 1450 Northeast 2nd Avenue, Suite 400 Miami, Florida 33132 J. Alfredo de Armas Alvarez, Armas & Borron, P.A. 3211 Ponce De Leon Boulevard, Suite 302 Coral Gables, Florida 33134
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, I hereby note the following findings of fact: Notice and Invitation to Bid on State Project Number 72001-3448 (the project) was extended to various contractors by the Respondent, Department of Transportation, on August 1, 1985. Sealed bids on the project were opened August 28, 1985. The scope of the project involved cleaning and painting the structural steel of the Buckman Bridge over the St. Johns River in Jacksonville, Florida. (State Bridge Numbers 720249 and 720343). The bids were opened and Petitioner was the apparent low bidder on the project with a bid amount of $193,000. The Department of Transportation, on October 2, 1985, rejected all bids "due to error in quantities in plans." According to the contract plans and specifications utilized by the Department of Transportation for the project, the beams, girders, bracing and trusses were composed of 2,540 tons of structural steel. The plans were in error and the tonnage of structural steel was less than 2,540 tons. Petitioner, upon visiting the job site as required, immediately recognized that there was less steel in the bridge than shown in the plans. In submitting and formulating his bid, the Petitioner considered the amount of work and materials which would actually be required to complete the project. 6 Prior to the bids being posted on the project, the Department of Transportation discovered that the amount of structural steel noted in the plans was grossly overestimated. On October 2, 1985, the Department of Transportation notified bidders in writing that all bids submitted on the project were rejected and that the plans would be revised and the project relet.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the petition of Industrial Enterprise Sandblast and Painting, Inc., protesting the rejection of all bids on State Project No. 72001- 3448, be dismissed. DONE AND ORDERED this 11th day of December 1985 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 11th day of December 1985. APPENDIX Respondent's Findings of Fact FINDING RULING Accepted; see Recommended Order paragraph 1. Accepted; see Recommended Order paragraph 2. Accepted, but not included because subordinate. Accepted; see Recommended Order paragraph 4. Accepted; see Recommended Order paragraphs 3 and 6. Accepted; see Recommended Order paragraphs 3 and 6. Accepted; see Recommended Order paragraph 6. COPIES FURNISHED: HONORABLE THOMAS E. DRAWDY, SECRETARY DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 A. J. SPALLA, ESQUIRE GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION 562 HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 LARRY D. SCOTT, ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301-8064 INDUSTRIAL ENTERPRISE SANDBLAST & PAINTING, INC. P. O. BOX 1547 1502 FOX RUN DRIVE TARPON SPRINGS, FLORIDA 32486-1547
Findings Of Fact On or about November 1, 1988, Respondent Board advertised for qualified bidders for the purpose of re-roofing Northwest Elementary School in St. Petersburg, Florida. The advertisement for bids which appeared in the St. Petersburg Times on November 2, 8, and 15, 1988, called for sealed bids to be submitted by qualified bidders to the Board office by November 29, 1988, on which date the bids were to be opened. The advertisement also called for a pre- bid conference to be held at the project site on November 17, 1988. The advertisement specifically provided that bids would only be accepted from "pre- qualified bidders who attend the pre-bid conference. Attendance at the pre-bid conference is mandatory to bid." Petitioner, A&S, is a pre-qualified bidder who attended the pre-bid conference. Also attending the conference was the Respondent, Southern, a licensed, certified roofing contractor in Florida with license expiring June 30, 1989. Bids were submitted by Petitioner, Southern, General Roofing Industries, Inc., and The Dean Company. The bids were opened as stated on November 29, 1988 at 2:30 PM, and evaluated according to the appropriate School Board provisions. Low bidder was Respondent, Southern, which submitted a bid of $152,772.00. Second low bidder was Petitioner, A&S, with a bid of $168,100.00. Thereafter, on December 15, 1988, Respondent, Board, issued a Notice of Intended Decision to award a contract for the re-roofing at Northwest Elementary School to the low bidder, Southern. Petitioner thereafter protested on the basis that Southern was not a pre-qualified bidder. Southern was not, at the time in issue, pre-qualified in the usual sense. It had been previously qualified with qualification to expire in September, 1988. It had, however, been notified of the Board's intention to revoke its qualification to bid in July, 1988, and this proposed action is presently under appeal, scheduled for hearing before this Division. Subsequent to the normal expiration date, however, Southern submitted a request for re- qualification but no action has been taken on that request. Southern was and is, however, as stated, certified by the Construction Industry Licensing Board as a roofing contractor. In 1986, Petitioner was not allowed to bid on a procurement with the Board because, at the time, it was not pre-qualified even though it held a license as a qualified contractor. Board Policy 6Gx52-2.22, PRE-QUALIFICATION OF CONTRACTORS, requires that contractors wishing to bid on Board projects estimated at over $50,000.00 must be properly pre-qualified in accordance with Board Procedures. Board Procedure 6Gx52-2.22, PRE-QUALIFICATION OF CONTRACTORS, and 6Gx52-2.23, REFUSAL TO ISSUE, SUSPENSION OF, OR REVOCATION OF A CONTRACTORS PRE- QUALIFICATION, provides for the pre-qualification of applicants whose submitted questionnaire indicates he meets all requirements prescribed by law and State Board of Education Rules. Pre-qualification status may be refused, suspended or revoked if review of the contractor's performance reveals that the contractor committed acts delineated as cause for such action. Subparagraph 4, PRE-QUALIFICATION OF BIDDERS, found at page 1B-6 and 1B-7 of the contract reiterates the Policy provision making mandatory that prime contractors on Board projects in excess of $50,000.00 valuation be currently pre-qualified on the date of opening of bids and subparagraph B of the bid package provides, "Contractors not presently qualified and/or whom the School Board Architect considers as having performed poorly or marginally ... should submit their application a minimum of 60 days prior to the date of scheduled bid opening in order that the School District staff can endeavor to determine the experience of other owners ... for whom such contractor has completed work. The School Board Policy 6Gx52-2.22 and 6Gx52-2.23 ... will be followed in pre- qualifying or refusal to pre-qualify contractors." At subparagraph c, the package also provides: Additionally, the apparent successful bidder for projects shall, at the time of bid opening, ... furnish documentation of the following: (5) This firms meets all requirements sets forth in the Board's Policy 6Gx52- 2.22, PRE-QUALIFICATION OF BIDDERS, subject to paragraph 4(a), above.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore: RECOMMENDED that the School Board's Notice of Intended Decision to award the roofing contract for Northwest Elementary School to Southern Roofing Company, Inc. be withdrawn. RECOMMENDED this 17th day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 17th day of January, 1989. COPIES FURNISHED: Bipin M. Shah, President Anderson & Shah Roofing, Inc. 4455 Ulmerton Road Post Office Box 17302 Clearwater, Florida 34622 Bruce P. Taylor, Esquire School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688 Dale M. Swope, Esquire Suite 850 777 South Harbour Island Blvd. Post Office Box 72009 Tampa, Florida 33602
The Issue The issue for determination is whether the Intervenor was properly qualified to complete the construction project contemplated by Invitation to Bid No. DCF-03211120 (ITB)
Findings Of Fact The Department issued the ITB for a construction project, involving the re-roofing of Buildings 1 and 2 at 12195 Quail Roost Drive, Miami, Florida. The ITB was published in the Florida Administrative Weekly on December 24, 2008. The ITB outlined the terms and conditions for responsive bids. The ITB indicated, among other things, that all sealed bids were required to be submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, by January 15, 2009, at 2:00 p.m. Leo Development submitted its sealed bid at the location and by the date and time, in accordance with the ITB. FBM submitted its sealed bid by the date and time, but at a different location—the offices of Russell Partnership— contrary to the ITB. All other bidders submitted their sealed bids at the location and by the date and time, in accordance with the ITB. The Department’s architect of record on the project, Russell Partnership, and one of its principals, Terry Holt, performed the examination and bid tabulation. Mr. Holt, a registered architect for approximately 36 years, was very familiar with the procurement process and had extensive experience in determining whether a bidder was licensed by DBPR in order to complete the work contemplated for a project. The sealed bids submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, on or before January 15, 2009, at 2:00 p.m. were as follows: All Time Roofing, with a bid of $73,400.00; Taylor Roofing, with a bid of $59,708.00; Leo Development, with a bid of $54,109.00; John W. Hunter Enterprises, with a bid of $75,000.00; and Trintec Construction, with a bid of $75,500.00. 9. FBM’s bid was $71,600.00. Mr. Holt determined that Leo Development was the lowest bidder. FBM’s bid was not considered as being non-responsive. Additionally, Mr. Holt reviewed Leo Development’s website to ascertain as to whether any factors existed to disqualify Leo Development. The website failed to reveal any basis for Mr. Holt to disqualify Leo Development. Having discovered no basis to disqualify Leo Development as the lowest bidder, Mr. Holt submitted the list of bidders, with their bids, to Bill Bridges, the Department’s senior architect and a registered architect for approximately 25 years. Mr. Bridges was the person responsible for oversight of the ITB process. As Leo Development was the lowest bidder, Mr. Bridges reviewed the website of the Florida Department of State, Division of Corporations (Division of Corporations) in order to ensure that Leo Development was registered with the Division of Corporations. His review revealed that Leo Development was a fictitious name properly registered to Leo Premier Homes, LLC. Further, Mr. Bridges performed a license background check on Leo Development in order to ensure that Leo Development was licensed by DBPR. Mr. Bridges reviewed DBPR’s website, which revealed that Frank Anthony Leo was the owner of Leo Development and that the following licenses were issued by DBPR: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Development; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Development; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Development. Mr. Bridges confirmed and was satisfied that Leo Development was properly licensed to complete the work contemplated by the ITB. Mr. Bridges recommended that Leo Development be awarded the ITB as the lowest responsive bidder. FBM filed a written protest (Initial Protest) of “its exclusion from the bid tabulation.” The Department issued a Final Order Rejecting Bid Protest (Final Order) on February 19, 2009. The Final Order provided in pertinent part: FBM was determined non-responsive because the bid was not presented at the time and place specified in the ITB. . . FBM’s formal written protest alleges that FBM, on the date of the bid submission/bid opening, was misdirected as to the location of the bid opening. . . . FBM’s protest must be rejected because it does not state a claim that could entitle it to relief. . . In the context of a bid protest proceeding . . . the protest must adequately allege that the protestor could obtain the contract award or otherwise benefit should the protest be successful. . . Assuming all of FBM’s factual allegations are true and that those facts entitle FBM to have its bid considered, FBM would still be entitled to no relief. Had FBM’s bid been accepted, FBM would have been the third lowest of six bidders. FBM’s formal protest does not allege that the lowest and second lowest bids were deficient in any manner. FBM was not injured in fact, because it still would not have received the contract award. Accordingly, FBM’s formal written protest is REJECTED. No appeal was taken by FBM of the Department’s Final Order rejecting FBM’s Initial Protest. Among other findings, the Department’s Final Order on FBM’s Initial Protest found that, taking FBM’s allegations as true, FBM would have been the third lowest bidder. FBM would not have been the second lowest bidder. The parties agree that the holder of a certified building contractor’s license and a certified roofing contractor license would be permitted to complete the work contemplated by the ITB. Subsequent to the opening of the sealed bids, Leo Premier Homes, LLC, registered the fictitious name of Leo Roofing & Construction with the Division of Corporations. After the registration with the Division of Corporations and after the Department’s Final Order, licenses were issued by DBPR. As to the licenses issued, the record of the instant case provides2: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Roofing & Construction; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Roofing & Construction; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Roofing & Construction. The licenses reflect the same license numbers, as before, and only the fictitious name is different on each license to indicate Leo Roofing & Construction.3 The contract for the ITB was entered into between the Department and Leo Development. In these proceedings, the Department incurred costs in the amount of $1,311.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing FBM General Contracting Corporation’s Protest and awarding costs in the amount of $1,311.05 to the Department of Children and Family Services. DONE AND ENTERED this 21st day of August 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 21st day of August, 2009.
The Issue The questions presented here concern the entitlement of the Petitioner or Intervenor to be awarded lease rights under the Respondent's proposed Lease No. 590:8026, in that Petitioner and Intervenor have claimed that entitlement to the exclusion of the other party.
Findings Of Fact Respondent invited bid proposals for the provision of approximately 32,000 square feet of office space for its District VIII operation in Fort Myers, Florida. Petitioner, Chuck Bundschu, Inc., and Intervenor, Walter Lee Johnson d/b/a Walco Leasing Company, responded to the bid proposal by offering to provide the office space. Those responses may be found as part of the Composite Hearing Officer's Exhibit. Following the October, 1981, submittal of bid proposals, a bid evaluation committee was appointed by the Subdistrict Administrator for District VIII to consider the bids. In turn, he afforded guidance to that committee on the subject of the evaluation of the proposed bids offered by Bundschu and Walco, the only bidders for the project. The evaluation committee performed the task of weighing the bid proposals, in keeping with evaluation criteria which are outlined in Respondent's "Facilities, Acquisition and Management Manual" dealing with the procurement of lease space, which criteria are set forth in a form referred to as "HRSM 70-1, page A1-4-8," which is attached to chapter four of the manual. All criteria used for the evaluation process were drawn from that form with the exception of criterion No. 7, related to staff and client marking which was a product of this bid evaluation effort. (A copy of the HRS manual and forms may be found as Respondent's Exhibit No. 1, admitted into evidence. The evaluation committee's summarization utilizing the form criteria and the additional parking criterion may be found as a part of the Hearing Officer's Composite Exhibit, which is a replication of the original.) The HRS manual for procuring leased space is a publication of February, 1980, and establishes uniform guidelines by which bid proposals are considered by local officials who are part of Respondent's organization. Nonetheless, the exact weight to be afforded each criterion outlined in the manual is determined by the local evaluation committee. Weighing concerns the subject of awarding numerical values for beach bidder related to the various criteria with a maximum possible score being 100 points. On the basis of the evaluation performed by the committee, the Bundschu total was 88.25 points and the The Walco point total was 82 out of the possible 100 points. Consequently, the evaluation committee recommended that Bundschu be awarded the lease. Mark Geisler, in his capacity as Subdistrict Administrator, for District VIII, concurred in this evaluation as may be seen in his November 6, 1981, transmittal of the bid materials and associated evaluation, which transmittal may be found as pert of the Hearing Officer's Composite Exhibit. The District Administrator, District VII, in the person of Frances Clendenin, who was acting for the District Administrator, Ivor D. Groves, Ph.D., also recommended acceptance of the Bundschu bid. This position was made known by a memorandum of November 16, 1981. A copy of that recommendation is found as a part of the Hearing Officer's Composite Exhibit. The recommendations spoken to thus far were made known to Lester C. Missman, an official within the Division of General Services of the Department of Health and Rehabilitative Services. This division was, at the time of the bid proposals, and is now, headed by Dr. Homer Ooten, whose function within Respondent's organization includes the responsibility to evaluate lease proposals involving the Respondent agency and to make a final decision on the question of the lease award, based upon a review of the local subordinate unit's recommendation. By this, it is meant that the lease by Health and Rehabilitative Services as "user agency" is signed by Ooten based upon a delegation of authority to him through the vehicle of correspondence signed by the agency head. Ooten, upon considering the recommendation of the District Administrator's office, the Subdistrict Administrator and the evaluation committee, did not find fault with the criteria nor the point weighing scheme used in the evaluation process. He did question the cost analysis performed by the evaluation committee on the subject of client mileage for those clients receiving services from Respondent in a move from the HRS office in the Bundschu building where they were located at the time, to the building where Walco intended to let property. This was a distance of seven/tenths (7/10) of a mile and based upon the number of clients receiving services, there would be an estimated $100,000.00 in client mileage cost increase. This item was not deemed to be an appropriate consideration by Ooten and was disregarded in his review of the cost analysis performed by the evaluation committee. That cost analysis may be found as part of Respondent's Composite Exhibit No. 2, and includes interlineations by Ooten in his opinion on the subject of the cost analysis. That analysis had indicated an overall advantage of approximately $11,000.00 in favor of Bundschu and was premised upon costs related to Item 12 in the criteria, which criterion is cost of moving. It assumed a difference of over $131,000.00 in moving costs, the majority of which costs pertained to client inconvenience ($100,000.00), discounting $120,000.00 plus dollars related to the difference in the bid amount between the Walco and Bundschu bids which bid estimate was in favor of Walco. Ooten's opinion on the subject of the priority of including $100,000.00 plus dollars in clients' travel costs, when considered in the context of point awards under Item 12 in the criteria, lead Ooten to believe that the differential in point awards would not result in a 9.25 value of Bundschu versus a zero value for Walco. In his mind, the differential would be much less. Ooten made his own evaluation of moving costs per se, and through that process determined that approximately $15,600.00 would be necessary for a move into the Walco facility whereas $5,600.00 would be involved in the Bundschu move, which required the expansion of existing space in the Bundschu facility. Based upon an evaluation of the point differential in the rental rate criterion which was a differential of 2, that is 30 points out of a possible 30 for Walco and 28 points out of a possible 30 for Bundschu, Ooten also opined the this was an unreasonable assessment in view of the fact that the Walco bid amount was more than $120,000.00 less than the Bundschu bid. This taken together with the fact that there only existed approximately a $9,000.00 difference on moving costs between Bundschu and Walco, which was in favor of Bundschu, and there having been indicated a 9.25 out of a possible 10 point difference in Item 12 on the question of costs related to moving, led Ooten to believe that the true factual status of criteria Nos. 1 and 12 was not as depicted by the evaluation committee. Per Ooten, with proper assessment Walco would have received a higher point count than Bundschu through the process of applying the bid criteria, as well as being the lower bidder from the point of view of rental rates alone. After several exchanges with the District level personnel of Respondent who had been involved in the lease evaluation process, in which, on two (2) occasions, the local officials continued to support their initial opinion of the propriety of the award to Bundschu, a decision was made at the District VIII level to support the award of the lease to Walco as may be seen in the January 6, 1982, correspondence from the District Administrator to Missman, a copy of which may be found as Respondent's Exhibit No. 4, admitted into evidence. On January 6, 1982, Ooten issued a letter to the District VIII Administrative Services Director indicating the authority to award Lease No. 590:8026, formerly referred to as No. 590:1472, for the benefit of Walter Lee Johnson d/b/a Walco Leasing Company. Having learned of this decision and in keeping with the provision Subsection 120.53(5), Florida Statutes, Bundschu, through counsel, indicated opposition to that award on January 12, 1982, followed by a formal petition letter setting forth grounds for the opposition, which petition was filed on January 19, 1982. This series of documents is part of the Hearing Officer's Composite Exhibit, through copies. Subsequently, Items 4 and 6 in the petition letter were resolved between the parties without the necessity of a hearing and this is borne out by a copy of the February 1, 1982, correspondence from counsel for the Respondent to counsel to the Petitioner, part of the Hearing Officer's Composite Exhibit. The matter was then referred to the Division of Administrative Hearings for a formal Subsection 120.57(1), Florida Statutes, hearing by correspondence from the Assistant General Counsel for Respondent, dated February 4, 1982, a copy of which may be found as a part of the Hearing Officer's Composite Exhibit. There followed the intervention of Walter Lee Johnson as a party of record and the hearing was held on April 27, 1982. Petitioner's first contention deals with the idea of discounting the lease value based on the value of the "stream of future lease payments." This theory is contended for through Robert Sizemore, C.P.A., expert witness of the Petitioner. He would call for the discount of lease payments on the theory that present dollars will have a discounted value in the future, as the lease period unfolds. Taking into account the method of payment by the Respondent and the vicissitudes involved in attempting to establish the value of today's dollar at a future time, this theory of discounted dollars at a 10 percent or 12 percent rate per annum in succeeding years is not indicated. Assessment through the legislative appropriations process of sufficient funds to meet lease payment demands is not contingent upon the value of the dollar at any given point in the history of the lease. Therefore, the "stream of future lease payments" concept is inapplicable here. Likewise, trying to project the value of today's dollar at some future date is so tenuous as to be an unacceptable method to evaluate the competing lease proposals. Finally, even if this method was used, a 10 percent discount rate for inflation would leave approximately a $67,000.00 difference in the bid proposals and a 12 percent per annum discount rate related to inflation would leave approximately $52,000.00 difference in the bid proposals, in favor of the Walco bid. Petitioner has contended that Respondent failed to properly account for direct moving expenses. In that regard, the calculations made by Ooten on the question of moving expenses as reported above are accepted as fact. As a third claim, Petitioner has alleged the agency s disregard for recommendation of its evaluation committee in making the lease award. While the initial recommendations of the evaluation committee and staff were disregarded, the District Administrator eventually accepted the point of view of the Division of General Services within the Respondent's Department. Moreover, even if the local officials within the Respondent's Department had not accepted Ooten's viewpoint, the initial evaluation committee's development of criteria was flawed and the Ooten perception was correct, leading to a decision in favor of Walco. Finally, the contention by Petitioner that the agency did not seek adequate input from third parties affected by the relocation of the facility was not demonstrated through testimony. The method for review of the proposed lease was acceptable and to the extent that it required an appreciation and response to the needs of others not directly involved in the lease process, it has been amply afforded. Evaluation was in keeping with Respondent's "Facilities, Acquisition and Management Manual, HRSM 70-1, fourth chapter" and the award is based upon concurrence of the Division Director of the General Services Division of HRS pursuant to that chapter. Through argument, counsel for the Petitioner has also referred to the fact that in the initial evaluation process set forth in the sixth criterion, superior points of 2.5 for Walco as opposed to 2.25 for Bundschu had been awarded, when in fact the narrative summary of the reasons for such awards indicate an advantage to Bundschu. Even if the .25 points were allowed in the favor of Bundschu, this would not change the result.
The Issue The issue addressed in this proceeding is whether Petitioner or Intervenor submitted the lowest and best bid on Project No. RS-40.
Findings Of Fact On June 4, 1993, Respondent issued an invitation to bid (ITB) for Project No. RS-40 to develop the site for the future construction of a work camp in Holmes County. The work under Project No. RS-40 specifically included site preparation, grading, electrical work, sewage, utilities and fencing. The bids were due to be opened on June 29, 1993. Ten bids were submitted to the Department, including Petitioner, Panhandle Grading and Paving, Inc., and Intervenor's, Hewitt Contracting Co., Inc., bids. Panhandle's bid total was $815,734.00, and was the lowest monetary bid. Hewitt's bid total was $847,554.00, and was the third lowest monetary bid. Baxter Asphalt had the second lowest monetary bid. However, both Baxter and Panhandle's bids were disqualified as nonresponsive because neither company complied with the Department's prequalification requirements. Baxter did not protest the Department's bid award to Hewitt and Baxter is not a party to this action. On the other hand, Hewitt's bid was accepted since Hewitt had complied with the Department's prequalification requirements and was otherwise responsive to the ITB. Therefore, the Department awarded Hewitt the contract for Project No. RS-40 since in its opinion Hewitt was the lowest responsive bid on the project. The ITB clearly notified potential bidders that they must prequalify with the Department. The ITB stated, in pertinent part: All bidders must submit evidence that they are qualified to perform the work in accordance with Section B, paragraph B-2 of the specifications. Evidence of eligibility must be submitted to the owner (defined in article B-1) not later than five (5) calendar days prior to bid date. Additionally, the cover sheet for the bid documents admonished all bidders to submit evidence of their eligibility to bid to Respondent at least five (5) days before the bid letting. The cover sheet stated: All bidders on this project must prequalify according to the provisions of section B, "Instructions to Bidders", article B-2. Evidence of eligibility must be submitted to the owner (defined in article B-1) not later than five (5) calendar days prior to bid date. Section B-1 of the bid documents defines the owner of Project RS-40 as the Department of Corrections. Section B-2 of the bid documents instructed all bidders to prequalify with Respondent to participate in the bid process. Section B-2 states: Prequalification: Each bidder whose field is governed by Chapter 399, 489, and 633 of the Florida Statutes for licensure will be prequalified by the Department to participate in the bid process for a specific field or area of construction based on the bidder's area of license or certification. Bidder qualification requirements and procedures are established by the State of Florida, Department of General Services rule (Chapter 13D-11, Florida Administrative Code) and by the bidding conditions and specifications. Failure of the bidder to strictly meet and follow all such requirements and procedures may result in bid rejection or disqualification for contract award. For the bidder's convenience, the provisions of Rule 13D-11.004 Bidder's Qualifications Requirements and Procedures are set forth below. Requirements: Each potential bidder must present, or have presented within this current biennium (July 1 through June 30) odd number years, evidence that: He is authorized to perform the work required by these documents in accordance with the applicable provisions of Florida Statutes governing contractors, as a general (Insert contractor designation) contractor. If the Bidder is a corporation, he must submit evidence that this corporation is properly registered with the State of Florida, Department of State, Division of Corporations, and holds a current State Corporation Charter Number in accordance with the Florida Statutes. (*This sentence to be deleted by Architect- Engineer if not applicable.) All interested firms who have NOT qualified within the current biennium (July 1 thru June 30) odd number years must submit evidence of their eligibility during the bidding period, not later than five (5) calendar days (received date) prior to the bid date. The Owner may, for good cause, allow a firm to correct any deficiencies in evidence submitted. Notice of qualification will be mailed to each bidder, but a Bidder may not receive the written notification prior to a bid opening. He may learn his status prior to the bid opening time by calling the Owner (Department of Corrections), Bureau of Facilities Services at 904-487-1330). The Bidder shall submit the required evidence of eligibility to the Department of Corrections, Bureau of Facilities Services, 2601 Blairstone Road, Tallahassee, Florida 32399-2500. (emphasis supplied) All information shall indicate the full name, address and telephone number of the individual, partnership, or corporation, and the name of the contact person. Include a self-addressed stamped envelope. The names of all bidders will be checked against the list of contractors who have prequalified in accordance with the requirements of Section B-2. Additionally, a careful reading of Rule 13D-11, Florida Administrative Code, reveals that the information required under the Rule should be submitted to the owner of the project involved in the bid process, i.e. the Department of Corrections in this case. A contractor is the person who is qualified and responsible for an entire project and includes the person who submits a bid for a given project. Section 489.105(3), Florida Statutes. A general contractor is a person who is unlimited as to the type of work they can do, unless a specific type of license is required by Chapter 489, Florida Statutes. Section 489.105(3)(a), Florida Statutes. See also Section 489.113, Florida Statutes. Under Chapter 489, Florida Statutes, a contractor can be a certified general contractor or a registered general contractor. A certified general contractor can contract in any jurisdiction in the state without fulfilling the competency requirements of the local jurisdiction. Section 489.105(8), Florida Statutes. On the other hand, a registered general contractor is required by Section 489.117(2), Florida Statutes, to comply with all local licensing requirements. Registration with the state is specific for a given local jurisdiction and cannot be used in another jurisdiction. Section 489.113(2), Florida Statutes. In fact, Section 489.113(1), Florida Statutes, requires a contractor to be registered for a specific jurisdiction prior to engaging in the business of contracting. Additionally, a contractor must subcontract electrical, mechanical and plumbing work unless the contractor is state certified or holds the specific trade license required by the appropriate local authority if such a local license is required. Section 489.113(3), Florida Statutes. Importantly, Chapter 489, Florida Statutes, permits a person to act as a prime contractor, including submitting a bid on a project, where the bulk of the work under the contract is covered by the contractor's specific license, as long as the parts of the project for which he is not licensed are subcontracted to persons holding an appropriate license. Section 489.113(9), Florida Statutes. Respondent requires prequalification of contractors in advance of its bid lettings to ensure that everyone who bids is legally or financially qualified to do the work required in the bid. The five (5) day deadline prior to the bid letting gives Respondent's staff an opportunity to resolve any irregularities in a bidder's prequalification materials prior to the letting. Indeed, if a contractor is state registered, as opposed to state certified, Respondent's staff, prior to the bid, routinely contacts the local government with jurisdiction over the building site to determine if there are any local licensing requirements and if there are, to determine if the bidder/contractor is locally licensed in that jurisdiction. This process avoids the waste of time involved in reviewing a bid package from a bidder who cannot ultimately perform the work called for in the bid. More importantly, this process prevents a locally unlicensed registered contractor from having the ability to void a contract at its will after the bids are opened since it would be unlawful for the contractor to have either bid on a project located in a jurisdiction where the contractor was not licensed or enter into such a contract. The ability to refuse an award of a bid clearly constitutes an unfair advantage to the locally unlicensed registered contractor and could not be waived as immaterial by an agency. In this case, Hewitt is a certified general contractor and is therefore automatically qualified to work in Holmes County. Panhandle is a registered general contractor and can only bid on Project RS-40 if it has met the requirements for general contracting in Holmes County. The prequalification process requires a bidder who has not prequalified with Respondent during the current biennium to submit to Respondent his current state contractor license certification or registration, as well as his current corporate charter registration (if a corporation). When Respondent opened the bids for the Project, Petitioner had neither prequalified with Respondent nor obtained a license or certification of competency to engage in contracting work in Holmes County. Petitioner thought it was already prequalified under its prequalification with the Department of Management Services. However, prequalification with the Department of Management Services does not meet the requirements of the ITB which requires prequalification with the Department of Corrections. Panhandle did obtain the necessary licensure after submitting its bid and after the bids were opened. However, such belated licensure does not negate the unfair advantage created by Panhandle's failure to prequalify and be properly licensed prior to the bid opening as required by the bid documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order in this case dismissing Petitioner's formal protest and awarding the contract for the Project to Intervenor. DONE AND ENTERED this 4th day of October, 1993, in Tallahassee, Florida. DIANE CLEAVINGER 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 4th day of October, 1993.
