The Issue The issue in this case is whether the bid specifications, together with other applicable authority, require that a bid, in order to be responsive, contain any written list of subcontractors.
Findings Of Fact On September 26, 1989, Respondent issued a document entitled, Specifications for Replacement of Air Conditioning, West Orange High School, Winter Garden, Florida, Engineers Project No. 89-016. As amended by three addenda, the above-described specifications shall be referred to as the "ITB." Respondent duly advertised for bids ore September 26, October 3, and October 10, 1989. The advertisement did not state that Respondent reserved the right to waive minor irregularities. In response to the ITB, Florida Mechanical, Inc. ("FMI") and B & I Contractors, Inc. ("B & I") timely submitted bids. For the base work and alternate 1, which Respondent ultimately decided to select, FMI bid $1,439,000, B & I bid $1,438,000, and a third bidder, S. I. Goldman, Company bid $1,621,000. These bids are recorded on a Bid Tabulation Sheet prepared by the engineer retained by Respondent for the project. The Bid Tabulation Sheet contains eight columns. Four columns record bid amounts for the base work and various alternates. The remaining columns are entitled, "Bidder," "Bid Bond," "Addenda," and "Subs." Each of the three bidders were named in one of the rows beneath the "Bidder," column. Each bidder had one "X" in its "Bid Bond" column and three "X"s in its "Addenda" column. However, only FMI and S. I. Goldman Company had "X"'s in their "Subs" columns. By resolution adopted on November 29, 1989, Respondent directed that all bids were rejected and that the Superintendent would correct any ambiguities and uncertainties in the ITB and solicit new bids. The resolution noted that Respondents staff had recommended that, if any bid were accepted, it should be that of B & I. However, [FMI] submitted with its bid a list of Major Sub-contractors of the form displayed in the [ITB], and B & I did not submit wish its aid a list of Major Sub-contractors[.] The resolution concluded that Respondent based on advice of staff and counsel, found that the [ITB is) ambiguous and/or uncertain as to whether or not a bidder must submit along with his bid a list of Major Sub-contractors, (b) that because of such ambiguity and/or uncertainty, it would be unfair and/or improper for [Respondent] to accept either of the bids received by it, and (c) that as a result thereof [Respondent] should reject all bids received by it for ,the Project and should solicit new bids for the Project as soon as is reasonably feasible after correction by [Respondents] staff of any ambiguity and uncertainty as aforesaid in the [ITB]. FMI and B & I each timely filed a notice of intent to protest and formal written protest of Respondent's decision to reject each company's respective bid. S. I. Goldman did not protest the decision and is not a party to the subject case. At a meeting on December 12, 1989, Respondent elected to refer the bid protests to the Division of Administrative Hearings for a formal hearing., At the beginning of the hearing, the parties filed a written stipulation, which stated that the only issue for determination was which Petitioner should be awarded the contract and not whether Respondent should seek further bids or award the contract to another bidder. The stipulation also stated that the Petitioners and Respondent agreed to abide by the recommendation of the hearing officer. At the hearing, the parties further stipulated that the sole issue for determination is whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. In addition, the parties stipulated that both Petitioners had standing and the protests were timely and sufficient. The ITB requires that each bidder familiarize itself with all federal, state, and "Local Laws, ordinances, rules, and regulations that in any manner affect the work." Under the section entitled, "Preparation and Submission of Bids," the ITB states: "Each bidder shall use the Bid Form that is inserted herein, and may copy or reproduce the form on this own letterhead." Among other requirements, the ITB requires two bonds. The first is a "bid guarantee" of at, least five percent of the amount of the bid. The form of this guarantee may be cash or a Bid Bond." The other bond described in the ITB a 100% public construction bond. The surety on this bond must have been admitted to do business in Florida, must have been in business and have a record of successful continuous operation for at least five years, and must have at least a Bests Financial Rating of "Class VI" and a Bests Policyholder Ration of "A." The Bid Form contained in the ITB is two pages. Among other things, the Bid Form requires that the bidder receiving written notice of acceptance of its bid must provide the prescribed payment and performance bond and execute the contract within ten days after notification. The next document in the ITB is a single page entitled, "Form of Bid Bond." The provisions on this page identify the A.I.A. document to use and state that the Bid Bond "shall be submitted with the Bid Proposal Form." The next document in the ITB is a single page entitled, "List of Major Subcontractors." The List of Major Subcontractors states: Bidders shall list all major subcontractors that will be used if a contract is awarded. Additionally, bidders shall identify in the appropriate box whether or not that trade specialty is minority owned. Another paragraph defines minority ownership. The remainder of the form consists of ten rows for the "bidder" and nine major subcontractors, such as concrete, electrical, HVAC, and controls, and blanks where the bidder can indicate which of these entities are minority owned. The next document in the ITB is the Owner-Contractor Agreement, which is followed by tie Form of Construction Bond, General Conditions, and Supplementary General Conditions. Section 7.11 of the Supplementary General Conditions establishes certain requirements to be performed after the submission of bids. This section provides: Pre-Award Submittals: Before the Contract is awarded the apparent low bidder shall provide the following information to the owner. A copy of the Contractors current State of Florida General Contractor's or Mechanical Contractors License. Pre-Construction Meeting. After the Notice to Proceed and within eight (8) business days of the Owner [sic], the Contractor shall meet with the Owner, Engineer and Subcontractors that the Owner may designate... The Contractor shall provide the following to the Owner. * * * 2. A written list of all Subcontractors, material men and suppliers with such information as requested by the Owner or Engineer. * * * The remaining documents in the ITB are the technical specifications for the job. The three addenda supply additional technical information not relevant to this case. Respondent has promulgated rules with respect to the bidding process ("Rules"). The ITB does not refer to the Rules, which define and use many terms that are found in the ITB. For instance, Rule 1.1.25 defines the phrases, "Performance and Payment Bond," which is the same phrase used in the Bid Form in the ITB. The Rules define several other capitalized terms that are also used in the ITB, such as Bid Bond, Bid Guarantee, Bidder, and Contractor. Rule 4.1 similarly states that the bidder is familiar with federal, state, and "Local Laws, Ordinances, Rules and Regulations that in any manner affect the Work." Rule 6.1 describes the process by which a bidder is to prepare and submit bids and the Bid Guarantee in language similar to that contained in the ITB. Rule 6.2 discusses the listing of subcontractors. Rules 6.2.1 and 6.2.2 state: General Contractor shall include as an integral part of his bid a List of Subcontractors he proposes to use. The Bidder shall enclose this list in a 4" x 9" envelope, sealed and marked "List of Subcontractors" and identified ... The Bidder shall enclose said envelope with his bid proposal in the mailing envelope. The List of Subcontractors enclosed with tee Proposal of each Bidder will be examined by the ... Engineer before the Proposal is opened and read. In the event that the form is not properly executed and signed, the Proposal of that Bidder will be returned to him unopened... Rule 6.3 requires a Statement of Surety as another "integral part" of each bid. Rule 6.3.3 states: The Statement of Surety will be opened examined by the ... Engineer prior to the opening of the Proposal.... Although similar to Rule 6.2, Rule 6.3 lacks the warming that if the Statement of Surety is not "properly executed and signed, the Proposal of that Bidder will be returned to him unopened." Rule 19.1 sets forth the requirements, for the surety. These requirements are different than those set forth in the ITB. Rules 19.1.1 and 19.1.2 require, as does the ITB, that the surety be admitted to do business in the State of Florida and shall have been in business and have a record of successful continuous operations for at least five years. However, Rule 19.1.1 requires that the surety be represented by a reputable and responsible surety bond agency licensed to do, business in the State of Florida and have a local representative in the Orlando area. Rule 19.1.3 requires minimum Bests ratings of "A" in "management," and, as to "strength and surplus," "AAA+" in financial rating and $12,500,000 minimum surplus. Rule 19.1.3.3 also requires that the surety be listed on the U.S. Treasury Departments Circular 570. The bids of FMI and S. I. Goldman Company contained a completed List of Major Subcontractors. The bid of B & I did not. No bidder included a Statement of Surety with its bid.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Orange County enter a Final Order awarding the subject contract to Florida Mechanical, Inc. ENTERED this 15th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of FMI All of FMI's proposed findings have been adopted or adopted in substance. Treatment Accorded Proposed Findings of B & I 1-4: adopted or adopted in substance. 5: adopted, except that the staff recommended that, if the bid was to be awarded, that it be awarded to B & I. 6: adopted in substance. 7: rejected as conclusion of law and, to the extent fact, subordinate. 8-12: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as subordinate. 18: rejected as unsupported by the greater height of the evidence. 19-21: rejected as subordinate. 22: rejected as beyond the scope of the issues and irrelevant in view of the stipulation. In the stipulation, the parties agreed that the issue to be addressed would not be whether the intended agency action of Respondent was lawful (i.e., not arbitrary, fraudulent, dishonest, or otherwise improper), but rather whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. COPIES FURNISHED: James L. Schott, Superintendent The School Board of Orange County, Florida P.O. Box 271 Orlando, FL 32802 Charles Robinson Fawsett, P. A. Shutts & Bowen 20 North Orange Avenue Suite 1000 Orlando, FL 32801 James F. Butler, III Smith, Currie & Hancock 2600 Peachtree Center Harris Tower 233 Peachtree Street, N.E. Atlanta, GA 30043-6601 William M. Rowland, Jr., Esq. Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue P.O. Box 305 Orlando, FL 32803
The Issue These proceedings arose as the result of a bid solicita- tion issued by Respondent, Division of Administrative Hearings (DOAH), whereby DOAH sought the lease of office space. DOAH disqualified two proposals submitted by Petitioner, Parkway- Oakland General Partnership (Parkway), and proposed to award the lease to Intervenor, American National Bank of Florida (American Bank). Parkway protested the disqualification of its proposals and the intended award. The Koger Company (Koger) also protested the intended award, but filed a voluntary dismissal prior to the final hearing in Case No. 88-3357BID. By separate order, this Hearing Officer has entered an order closing her file on Case No. 88-3357BID. The disputed issues are described as follows by the parties in their prehearing stipulation and at final hearing: 1. Whether Parkway bid an existing, dry and measurable building. 2. Whether American Bank bid an existing dry and measurable building. 3. Whether DOAH acted arbitrarily and capriciously by disqualifying Parkway's proposals and by evaluating American Bank's proposal. At final hearing, Parkway called Jack B. Tobin, Tony Benton, William M. Baldwin, and Al Rudolph as witnesses. Petitioner's Exhibits 1 through 3 were received into evidence. DOAH called Linda C. Spears, Mary V. Goodman, and Stephen F. Dean as witnesses. DOAH's Exhibits 1 through 2 were received into evidence and portions of the deposition of Marilyn Lawrence were read into the record. . American Bank called Donald L. Feather as a witness, The transcript of the hearing was filed on August ll, 1988, and the parties were to file Proposed recommended orders within ten days of the filing of the transcript. The parties’ Proposals have been addressed in the appendix to this recommended order.
Findings Of Fact Based on stipulations of the Parties, on the exhibits received in evidence and ‘on the testimony of the witnesses at the hearing, I make the following findings of fact: 1. DOAH issued a Request for Proposal (RFP) for over 2,000 square Feet of office space in Tallahassee, Florida. (Petitioner's Exhibits 1 and 2) ‘The RFP was prepared using the Department of General Services! (DGS) guidelines (TR 89) and DGS Porm BPM 4136, which is a solicitation format Prepared by DGS for use by all State agencies. (TR 123 and Rule 13M-1.015(3)(e)) 2. Parkway submitted three bid Proposals, two of which were disqualified by DOAH. American Bank submitted a proposal which was determined by the evaluation committee to be the lowest and best proposal. (Prehearing Stipulation) 3. One of the disqualified Proposals submitted by Parkway was known as the "Option Proposal." In this arrangement, DOAH was to continue occupying the space it was currently leasing until October, 1988 at which time, DOAH would move into Building "B" located at 2001 Old St. Augustine Road. (TR 18, 19, 86, and Pet. Exhibit 1) - 4. The other disqualified Proposal submitted by Parkway was known as the "Park Proposal." The Park Proposal was for 2001 Old St. Augustine Road, where two buildings called Building "a" and Building "B" were being constructed. Both buildings were identical in size, shape and total construction. (TR 28) ‘The Park Proposal submitted by Parkway contains two Photographs and four drawings. (Pet. Ex, 2) One of the Photographs depicts Building "A." (TR 34) Three of the four drawings relate to Building "B" and one of the drawings relates. to Building "A" and related site development. The Proposal never clearly identified a specific building at 2001 Old St. Augustine Road as being the building bid. However, during the evaluation committee's site visit at 2001 Old st, Augustine Road, a representative of the Parkway indicated Building "B" was the building proposed for lease by DOAH. (TR 98) 5. American Bank submitted a Proposal for the space located in a former bowling alley on Apalachee Parkway. This space is herein referred to as the old bowling alley. (TR 60) 6. Form BPM 4136, which is the bid solicitation document, contains the following requirement: The proposed space must be in an existing building. To be considered as existing, the space must be dry and capable of being physically measured to deter-— mine net rentable square footage at the time of bid 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, it (sic) carried out in accordance with prescribed Procedures. (Emphasis in original.) 7. DGS interprets the requirement of an existing building to mean that the building must be enclosed with flooring, a roof, and walls and that exterior doors and windows must be in Place or the building must be such that the exterior is enclosed so that it is dry in adverse weather. Additionally, the building must be capable of being measured by pulling a tape inside the building to determine the net rentable Square footage. (TR 116) The purpose of having the dry and measurable criteria is to distinguish between an existing building and one that is to be built or that is Partially complete. (TR 119) 8. On May 13, 1988, the date of the bid submittal, Building "B" was not an existing building. (Prehearing Stipulation) Building "A" had a roof, a Slab, and walls, which comprised 50 percent of the vertical Plane from the slab to the roof. The windows and exterior doors in Building "A" had not been installed on May 13, 1988, (TR 40-42, 96-97, 147) Building "a" had a four foot overhang but the testimony of Mr. Tobin that the Overhang prevented rain from entering the building is not credible, given the large amount of window space which was not enclosed. (TR 51) 9. On May 13, 1988, the old bowling alley had walls, a slab, and portions of the exterior walls were boarded over, possibly in the location of existing windows or window openings. (TR 63, 109, 133, 134) The roof did have a hole, which was approximately three feet in length and allowed water to leak into the building. (TR 118, 119) The interior of the old bowling alley was capable of being measured. (TR 67, 119) The old bowling alley is an existing building. (TR 118-119) 10. After the bid solicitation document was issued, representatives of the Parkway met with staff of DOAH, (TR 27, 91) A DOAH staff member advised Parkway representatives that Parkway could "bid the park," but it had to bid an existing building which was dry and measurable. (TR 46, 80, 93, 138, 139) ll. At the prebid conference, DOAH representatives advised a Prospective bidder, in the Presence of a Parkway representative, that in order for a building. to be considered for the contract, it must be existing and dry and measurable at the time the bids were submitted. (TR 94, 95) 12. At the time Parkway submitted its proposals, neither Building "A" nor Building "B" was an existing building as defined by the bid solicitation document. 13, At the time Parkway submitted its proposals, Parkway was negotiating with a Private company for the lease of Building "A" (TR 77,27) and Parkway entered into a lease for Building "A" with the Private company on dune 13, 1988. (TR 43, 45) Thus, even if Building "A" had -been an existing building at the time the bids were Submitted, it is not available for lease to DOAH. (TR 45)
Conclusions CASE NO. CASE NO. 88-3357BID 88-3358BID On September 1, 1988, the Hearing Officer who conducted a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, in the above-styled case submitted her Recommended Order to the undersigned and all parties of record. A copy of the Recommended Order is attached as Exhibit A. In ays accordance with Rule 28-5.404, all parties were allowed twenty days in which to. file..exceptions..to.. the. Recommended Order. °.To date, none of the parties have submitted exceptions. The Recommended Order came before me as agency head for final agency action.” Having considered the Recommended Order, the exhibits admitted into evidence at final hearing and the transcript of the final hearing conducted on August 1, 1988, it is ORDERED that.the Recommended Order, attached as Exhibit A, is adopted as the final order of the agency. Accordingly, the protest filed by Parkway-Oakland General Partnership in Case No. 88-3358BID is dismissed and Lease No. 510:0049 is awarded to American National Bank of Florida. DONE AND ORDERED this o%/~& day of September, 1988, in Tallahassee, Leon County, Florida. | Lh aap A ssi SHARYN SMITH Director 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 Qist day of September, 1988.
Recommendation SEE NVDATION Based on the foregoing, it recommended that the Division of Administrative Hearings enter a final order dismissing Case No. 88-3358BID ang awarding Lease No. 510:0049 to American National Bank of Florida. st : RECOMMENDED this /*~ day of September, 1988, in buce BK ghhad SUSAN B. KIRKLAND Hearing Officer Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 (904)487-1082 Tallahassee, Florida. Filed with the Clerk of the Department of General Services this /od day of September, 1988 Copies furnished to: Kim Cecile Rice Lobrano & Kincaid, P.A. Suite 810, 121 Forsyth Street Jacksonville, Florida 32202 William A. Bald, Esquire Dale & Bald 2900 Independent Square Jacksonville, Florida 32202 Robert D. Newell, Jr. Newell and Stahl, P.A. 817 North Gadsden Tallahassee, Florida 32303-6313 Mark Rubin, Esquire 777 Arthur Godfrey Road Suite 320 Miami Beach, Florida 33140 10 APPENDIX TO RECOMMENDED ORDER IN CASE NO. 68-3358B1D The following constitutes my specific rulings pursuant to section 120.59(2), Florida Statutes, on all of the Proposed findings of fact submitted by the parties in this case, ’ Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Parkway-Oakland General Partnership Proposed Finding of Fact No. 1 is incorporated in Finding of Fact Nos. 1 and 2. Proposed Finding of Fact No. 2 is incorporated in Finding of Fact Nos. 2, 3, and 4. Proposed Finding of Fact No. 3 is incorporated in Finding of Pact No. 8 and is covered in the Introduction and Issues, Proposed Finding of Fact Wo. 4 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 5 is covered in the Introduction and Issues. The first sentence in Proposed Finding of Fact No. 6 is subordinate and unnecessary. The remainder of the proposed finding of fact is rejected as not supported by the record as a whole, as conclusionary, and as mere recital of testimony. . The first sentence in Proposed Finding of Fact No. 7 is incorporated in Finding of Fact No. 8. The remainder of the proposed finding of fact is subordinate and unnecessary to the facts as found. The portion of Proposed Finding of Fact No. 8 which indicates that windows were not installed at the time of the bid submittal and that the building had a four foot overhang is incorporated in Finding of Fact No. 8. The remainder of the proposed finding of fact is rejected as mere recitation of testimony, conclusionary, speculative and not supported by the record as a whole. The first two sentences of Proposed Finding of Fact No. 9 are cumulative in part and subordinate and unnecessary to the facts aB found. ll 10. ll. 12, 13. 14, 15. 16. 17. 18. 19. 20. 2i. 22. 23. 24. In Proposed Finding of Fact No. 10, the fact that the building proposed by American Bank had a hole in the roof is incorporated in Finding of Fact No. 9. The remainder of the Proposed finding of fact is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 11 is cumulative. Proposed Finding of Fact No. 12 is incorporated in Finding of Fact No. 10. Proposed Finding of Fact No. 13 is rejected as not supported by the record as a whole. Proposed Finding of Fact No. 14 is rejected as not supported by the record as a whole. Proposed Finding of Fact No. 15 is subordinate and unnecessary as to the facts as found. The first paragraph in Proposed Finding of Fact No. 16 is mere recitation of testimony, subordinate, and unnecessary. The last paragraph is rejected as conclusionary and not supported by the record as a whole. Proposed Finding of Fact No. 17 is rejected as conclusionary and not supported by the record as a whole. Ms. Goodman's testimony did not contradict the testimony of Ms. Spears. Proposed Finding of Fact No. 18 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 19 is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 20 is subordinate and unnecessary to the facts as found. Proposed Finding of Fact No. 21 is mere recitation of testimony, subordinate, and unnecessary to the facts as found. Proposed Finding of Fact No. 22 is subordinate and unnecessary to the facts as found. . Proposed Finding of Fact No. 23 is subordinate and unneccessary to the facts as found. Proposed Finding of Fact No. 24 is cumulative and mere recitation of testimony. To the extent that the testimony indicates that Building "A" was not an existing building that is incorporated in Finding of Fact No. 12. 12 25. 10. Ti. 12. 13. Proposed Finding of Fact No. 25 is subordinate and unneccessay to the facts as found. Specific Rulings on Joint Proposed Findings of Fact Submitted By DOAH and American Bank Proposed Finding of Pact No. 1 is incorporated in Finding of Fact No. l. Proposed Finding of Fact No. 2 is incorporated in Finding of Fact No. 6. Proposed Finding of Fact No. 3 is incorporated in Finding of Pact Nos. 2, 3, and 4. To the extent not subordinate and unnecessary, Proposed Finding of Pact No. 4 is incorporated in Finding of Fact - Nos. 4 and 8. Proposed Finding of Fact No. 5 is incorporated in Finding of Fact No. 8. . Proposed Finding of Fact No. 6 is subordinate and unnecessary. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 7 is incorporated in Finding of Fact No. Proposed Finding of Fact No. 8 is subordinate and unnecessary. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 9 ig incorporated in Finding of Fact No. To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 10 is incorporated in Finding of Fact No. 13. Proposed Finding of Fact Nos. 11, 12, and 13 are subordinate and unnecessary. . To the extent not subordinate and unnecessary, Proposed Finding of Fact No. 14 is incorporated in Finding of Fact No. 4. : Proposed Finding of Fact No. 15 is subordinate and unnecessary to the facts as found. 13 Proposed Finding of Pact No. unnecessary. Proposed Finding of Fact No. unnecessary. Proposed Finding of Fact No. in Finding of Fact No. 7 Proposed Finding of Fact No. in Finding of Fact No. 9. Proposed Finding of Fact No. in Finding of Fact No. 9 To the extent not subordinat Finding of Fact No. Proposed Finding of Fact No. unnecessary. Proposed Finding of Fact No. in Finding of Fact No. 10, Proposed Finding of Fact No. in Finding of Fact No. 10. Proposed Finding of Fact No. of Fact Nos. 10 and 1l. 16 17 18 19 20 is is is is is subordinate and subordinate and modified and incorporated modified and incorporated modified and incorporated e and unnecessary, Proposed 21 is incorporated in Finding of Fact 22 is subordinate and 23 is is is modified and incorporated modified and incorporated incorporated in Finding oye STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS THE KOGER COMPANY, Petitioner, “Vs. DIVISION OF ADMINISTRATIVE HEARINGS, Respondent, and AMERICAN NATIONAL BANK OF FLORIDA, Intervenor. PARKWAY-—OAKLAND GENERAL PARTNERSHIP, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, Respondent, and AMERICAN NATIONAL” BANK OF ~ FLORIDA, Intervenor. ew
Other Judicial Opinions A...PARTY .WHO..IS.. ADVERSELY AFFECTED. BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF. ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO REVIEWED. Copies furnished: Kim Cecile Rice, Esquire LOBRANO & KINCAID, P.A. Suite 810, 121 Forsyth Street Jacksonville, Florida 32202 William A. Bald, Esquire DALE & BALD 2900 Independent Square Jacksonville, Florida 32202 Robert D. Newell, dr., Esquire NEWELL AND STAHL, P.A. 817 North Gadsden Street __ Se Tallahassee, Florida 32303-6313 Mark Rubin, Esquire 777 Arthur Godfrey Road Suite 320 Miami Beach, Florida 33140 Susan B. Kirkland, Esquire Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955
Findings Of Fact In May, 1987, the Department contracted with B.P. Associates, then owner of the Bay Plaza facility, to lease space at that facility located in Brandon, Florida. A part of the bid conditions required extensive physical renovations of the facility which were being supervised by Coldwell Banker, a real estate brokerage and management firm serving as property manager and construction supervisor. Construction was begun in December, 1987. Mr. Burrwood Yost was hired by the Department as its Facilities Services Manager for the Tampa Region in March, 1988. Mr. Yost soon became dissatisfied with the work being accomplished under Coldwell Banker's supervision and the company's responsiveness to maintenance problems arising at the facility, which the Department had asked to be corrected. As a result of this dissatisfaction with Coldwell Banker's demonstrated inability to properly perform, Mr. Yost recommended that the bid award to B.P. Associates be withdrawn and that the procurement be relet. On June 17, 1988, the bid award to B.P. Associates was withdrawn. On June 1, 1988, however, shortly before the withdrawal of the prior award, ownership of Bay Plaza was transferred to Northern which immediately substituted a new property manager and construction supervisor for Coldwell Banker. The new management firm was Grubb and Ellis, which took over on September 1, 1988. New bids were solicited by invitation to bid on July 15, 1988 which called for approximately 27,122 square feet of leased space to be available by April 1, 1989. The bid invitation clearly stated that "all bids will be evaluated based on the award factors enumerated in the bid submittal form." This form outlined the bid procedure, listing award factors to be considered and specifying the precise amount of weight each factor would be given. Past performance was not listed as a basis for evaluation on the bid invitation form and Mr. Yost admits that past performance was not to be considered as a factor. Five bids were received of which three were deemed responsive. These were Bidder C, Northern; Bidder D, Turner Development Corporation; and Bidder E, Alderwood B. Northern's bid was the lowest of the three responsive bids by more than $2.00 per square foot over the life of the lease. Alderwood was the second lowest. Each of the bids was evaluated by a bid evaluation committee consisting of seven representatives from the various Department program offices that were to occupy the leased space. The chairman of the committee, Ms. Chipman, was placed thereon at the request of Mr. Yost, and was actually a supernumerary since the committee a originally constituted by Mr. Akridge, the Department's Facilities Services Manager Assistant in Tampa, was made up of only six members. A 100 point bid evaluation scale, which was included in the bid package furnished to each bidder, was to be utilized by the committee to evaluate each bid. Prior to beginning their evaluation duties, the committee members were walked through each proposed site, and in the briefing given by Department authorities, specifically advised that prior performance was not a criteria and should not be considered. When the committee members' evaluations were computed, Northern's bid for Bay Plaza received a score of 83.5. Alderwood's bid for its property was given a score of 87.9. Each evaluator rated Alderwood highest and the evaluation committee concluded that, consistent with the overall criteria which called for the lease to be awarded to the lowest and best bid that met program needs, Alderwood's bid was lowest and best. Consequently, the committee recommended that Alderwood receive the award even though Northern's bid for Bay Plaza was lowest in terms of total dollars involved. The bids were evaluated based on three major evaluation criteria. These were Fiscal Costs, Location, and Facility. The Fiscal Cost element was further broken down into three subcategories; rental rates, renewal rates, and moving costs. Northern received 25 points of the 25 available for rental rates because it offered the lowest rental rate. When reduced to present value, Northern's bid for the entire term of the lease was more than $600,000.00 below the next lowest bid and for the first nine years of the lease alone, was $336,799.00 lower. Alderwood was awarded 21.5 points for its rental rate submission. In the area of renewal rates, Northern was awarded 7 of 7 possible points and Alderwood was awarded 2. These awards were not computed by the committee or assigned by them. Instead, the scores were computed on the basis of a present value analysis accomplished in Tallahassee and were entered on the score sheet by Mr. Akridge, the Department's local supervisor for this procurement. Considering the moving costs, however, Alderwood outscored Northern by 3 to 2.7 points. This difference was attributed to an additional moving cost for the Bay Plaza site as opposed to the one move cost if the Alderwood site were chosen. To have the rehabilitation work done at Bay Plaza would have required a move to another location while the work was being done and another move back when it was finished. In the Alderwood case, the Department would move only once. The "Location" criteria also had three subcategories for consideration. They were, general area, in which both bidders received the maximum 10 points; public transportation at 5 points, and environmental factors at 15 points. In the area of public transportation, Alderwood received the full 5 points with Northern receiving 1.1. Department personnel considered the fact that bus service was available through the site at Alderwood, the stop being within wheelchair and walking distance of the building, as being more significant and of higher value than the proposed bus service envisioned in 1989 for Northern's facility which, at the time of the bidding, was not served by a bus. Bus company officials stated an intention to provide bus service to the area in the future. The environmental factors subcategory related to the physical characteristics of the building and the surrounding area and the effect of these factors on the "efficient and economical conduct of Department operations." In this subcategory, Alderwood received a higher score than did Northern's building because the committee was of the opinion the Alderwood facility would be more energy efficient. Current Department occupants of Northern's facility at Bay Plaza contended that because of the large expanses of glass, there would be more heat generated in the building in the afternoon. No official energy efficiency assessment was done of either building because both occupied less than 20,000 square feet. Consequently, the committee analysis here was based on the experience of some committee members and was neither scientific nor professional. The committee was also concerned with the potential for theft because of the large amounts of glass and was of the opinion that the Bay Plaza layout was "confusing." Neither of these judgements carry much weight, however. Another environmental factor considered by the committee concerned the parking availability at each facility. The committee was of the opinion that the layout at Northern's facility was not good. It was long and extended. Staff also was concerned that the several access doors to the Northern facility could cause clients to become confused. More important, however, was their concern that due to the several entrances to the building, it would be difficult to control entry. Alderwood's facility, on the other hand, provided a central entrance for each building and it was felt this would allow tighter security control for the safety of the building occupants. The committee was also impressed by the fact that Alderwood's facility provided a play area for clients' children, and felt that Alderwood's landscaping was more appealing. The rating of Alderwood's handicap access as high, is important. Turning to the third major bid criterion, Facility, Northern's facility was awarded 16.3 points of a possible 20 for layout/utilization while Alderwood's was awarded 18.7 points. For the subcategory, single building, Northern's facility received 6.7 points out a possible 10 and Alderwood's facility was awarded 8.1. As for the final subcategory, street level, both facilities were awarded 5 points. As for layout/utilization, one committee member, Chipman, awarded Alderwood more points because it provided a separate entrance for each program, because it provided covered walkways for weather protection, and because there was less of a "maze" effect in that facility due to its square configuration. This last factor was of concern to other committee members who rejected the idea of clients having to walk through offices to get to the different programs. The wider hallways and better access for handicapped, as was stated previously, were also considered positive factors for Alderwood. Neither facility offered the single building which was a desired characteristic, Mr. Akridge, however, advised the committee in his preparatory briefing that since neither bidder offered a single building facility, the committee could award points on the layout of the multi-unit facility based on the relationship of the individual components to each other. At least two committee members, Chipman and Collins, rated Alderwood's facility better and awarded more points because they felt the layout of that facility allowed a more advantageous grouping of programs within the units. There is substantial evidence, however, that the information furnished the committee was neither complete nor in all cases accurate. Once the committee completed its evaluation, Mr. Akridge tabulated the scores and prepared a "request for bid award" letter dated September 21, 1988 for transmittal to Department officials in Tallahassee. The letter was prepared to report the committee recommendation for the award to Alderwood and to explain why the recommendation was made to award to that bidder as opposed to the low bidder. Review of this letter clearly reflects that Mr. Akridge and the committee were concerned with past performance at the Bay Plaza facility. When Mr. George Smith, a senior management analyst for the Department in Tallahassee received Mr. Akridge's letter, recognizing the possible appearance of consideration of an improper factor, he requested that Mr. Akridge seek and provide more justification for the committee's findings. While Mr. Smith contends he did this because of his concern over costs, the fact remains that Akridge's letter of September 21 did mention past performance which was an invalid consideration. Mr. Smith asked Mr. Akridge to prepare another memo giving additional information about such things as bus service, the difference in rental rates, the building layouts and locations and those factors which the users of the proposed facility, those individuals who were on the committee from the using organization, felt were important to them in the effective accomplishment of their jobs. Mr. Smith clearly indicated he recognized that past performance is not a valid point for consideration and that it would play no part in his analysis of the bids preparatory to making final recommendation for award. In response to Mr. Smith's direction, Mr. Akridge prepared another memorandum dated September 30, 1988. Though by far the greatest portion of this memo is a detailed comparison of the two facilities and the concerns of the committee regarding them, the first paragraph, (1 A) refers to the failure of the former leasing agent to obtain state fire marshal approval and a reference to concern that in light of the fact that Northern is an absentee owner, there might well be a return to slow response times experienced under the prior management contract. Though Mr. Smith recognized that the September 30 memorandum again made reference to prior performance, experienced as he was in the procurement of facilities, he also recognized that "that was not a part of the evaluation criteria" and "basically, just disregarded that." Thereafter, the award was made to Alderwood. Petitioner contends that whether consciously or unconsciously, past performance of Northern's predecessor in ownership influenced the evaluation and bid review process thereby placing Northern at a competitive disadvantage to Alderwood. There is evidence in the record to indicate this conclusion, may be justified. Mr. Yost, the Facilities Services Manager, admits that he was dissatisfied with the performance of the prior management of the Bay Plaza facility and it was because of this dissatisfaction that the decision was made to recommend withdrawal of the prior award and a new bid invitation. Though he claims he deliberately kept himself out of the re-bid process, the evidence indicates that he oversaw it from the beginning and was present and/or involved in almost every part of it. The invitation to bid utilized his name; he attended the pre-bid conference and injected himself into the process by answering questions of bidders; he personally reviewed each bid upon receipt with Mr. Akridge; and, though he turned the committee selection over to Mr. Akridge, specifically requested that a nominee of his own choosing, Ms. Chipman, be appointed. Ms. Chipman, to whom Mr. Yost had previously spoken regarding his dissatisfaction with the prior Bay Plaza operation, was appointed as the seventh member of a committee originally scheduled to have only six members and served as the chairperson thereof. It is also significant to note that while the committee was in session evaluating the bids, Mr. Yost came into the committee room and met with the members while the deliberation process was going on. This creates a definite appearance of impropriety. After the protest was filed by Northern's agent, on November 8, 1988, Mr. Akridge, on behalf of the Department, met with members of the evaluation committee and representatives of Alderwood. During this meeting, the Department representatives explained to Alderwood how they wanted the layout of the facility to be accomplished and directed the architect who was present to prepare preliminary design plans. This appears to have been in contravention of provisions of a Department rule, (10-13.011(2)(a), F.A.C) which calls for the contract award process to be stopped until the protest is resolved. The evaluation criteria, found on page 16 of 17 of the Bid Submittal Form at subparagraph 1A, states that rental rates for the basic term of the lease, evaluated testing a present value methodology at a discount rate of 8.31 percent, would constitute 25 percent of the total evaluation criteria. This requirement was not appropriately applied in this case. The points included on each committee member's evaluation form for this category do not correlate to the present value rates furnished by the Department. Whereas Alderwood's bid was 21 percent higher than Northern's when reduced to present value, Alderwood received 86 percent of the rental rate points given Northern instead of 79 percent of Northern's points as it should have received. As a result, Northern did not receive the appropriate weight for its rental rates points as compared to it's competitor, Alderwood. In addition to the above, there are several examples indicating that points given by the committee were awarded based on inaccurate assumptions, unreliable information, or speculation. These include a failure to recognize that the windows at Bay Plaza are tinted; an inaccurate belief by one committee member that Alderwood's buildings are closer together than Northern's; a failure to properly apportion points by a committee member in the area of public transportation on the mistaken belief that Northern's facility would not have bus service; a mistaken belief that hallways at the Northern facility could not be widened when, in fact, Northern had agreed to renovate the entire facility including the hallways to whatever design the Department requested, (in this regard, Mr. Akridge properly advised the committee it should assume for the purpose of evaluation, that Northern would widen the Hallways if requested) ; the possible improper award of points for moving costs when no information on actual costs was available; a failure by the committee to recognize that major construction planned for in front of the Alderwood facility would hinder what the committee considered that building's better access; a failure to recognize that bid specifications required a security system be installed in any facility leased which would minimize if not eliminate the theft risk; and a lack of information regarding crime rates, police patrols, night lighting, and the nearness of police facilities to the buildings in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the intent to award lease no. 590:1853 to, Alderwood B. Partners, Limited, be withdrawn; that a new evaluation committee be appointed to review the bids submitted by the responsive bidders; that this committee be properly briefed as to the requirements of their task and the appropriate standards to be applied thereto; and that the Department thereafter issue an award to the lowest and best bidder as determined by this evaluation committee. RECOMMENDED this is 15th day of March, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalpachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5325BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. BY PETITIONER; Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorporated herein. Balance accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but more in the form of argument than as Finding of Fact. The paragraph is redundant to other evidence already considered. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and as to substance, incorporated herein. BY THE RESPONDENT; & 2. Accepted and incorporated herein. Accepted. - 6. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. - 12. Accepted and incorporated herein with comment. Redundant to 12. Accepted and incorporated herein. Accepted and incorporated herein. & 17. Accepted and incorporated herein though 17 is redundant to 16. Accepted and incorporated herein as to the fact that bus service is planned for the Bay Plaza facility in 1989. Accepted with the exception of that portion dealing with Mr. Yost's having nothing to do with the evaluation of the bid which is rejected. Accepted but irrelevant. Accepted and incorporated herein. Accepted and incorporated herein. Accepted with the exception of the disclaimer of Mr. Yost's participation in the selection of committee members. Accepted and incorporated herein. Accepted. Accepted with the exception of the last sentence which is not a Finding of Fact but a recitation of testimony. First sentence rejected as a recitation of testimony. The second sentence is accepted. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a recitation of evidence contained in Mr. Smith's deposition. Not a Finding of Fact. Accepted and incorporated herein. COPIES FURNISHED: Mark A. Brown, Esquire Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, P.A. Post Office Box 3239 Tampa, Florida 33601 Richard Candelora, Esquire Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. Post Office Box 1102 Tampa, Florida 33601 Jack D. Farley, Esquire DHRS District Six Legal Office 400 West Buffalo Avenue, Room, 500 Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire DHRS General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue This proceeding concerns the Respondent's rejection of all bids for construction of its new middle school "FF". Petitioner has challenged that intended action, arguing that it was arbitrary and capricious and contrary to the law. The parties disagree as to the basis for the intended action. Initially the School Board considered rejecting all bids for failure to meet MBE/WBE goals, and Petitioner protested. Later, the Respondent determined that significant revisions to the construction documents were required, and the bids were all rejected on that basis. Petitioner protested again, but contends that the original basis for intended action is still at issue. For reasons set forth in the following recommended order, the MBE/WBE goal issue is moot. The central issue for determination, therefore, is whether Respondent properly rejected all bids based on its determination that substantial changes are required, and Petitioner's motion to consolidate its two protests is DENIED.
Findings Of Fact Petitioner, Mark C. Arnold Construction Co., (Arnold), is a commercial general contracting firm located in Orange County, Florida, but well-experienced in building public facilities throughout the state. Arnold currently is engaged in constructing school "EE" for Respondent, Orange County School Board (School Board, or Board). In January 1992, the school board promulgated an advertisement for bid soliciting bids for the construction of a new school project known as Middle School "FF". The advertisement for bid was published five (5) times in the Orlando Sentinel on January 7, 14 and 28 and on February 4 and 1, 1992. The board also compiled a project manual which among other things contained a copy of the advertisement for bid and instructions to bidders which governed the bidding process. The advertisement for bid reserved the school board's "right to reject any or all bids and to waive any informality or irregularity in any bid received". (Joint Exhibits 1 and 2) The instructions to bidders also reserved the school board's "right to reject any and all bids when such rejection is in the interest of the school board of Orange County, Florida...". (Joint Exhibit 5) The project manual also contained a bid form to be used by bidders. In it the bidder agrees "that the Owner reserves the right to reject this bid, or to waive informalities in any bid,...". Such language was contained in the bid submitted by Arnold. (Joint Exhibits 7 and 9) By addendum dated February 5, 1992 the school board amended and replaced Section A-12 of its project manual and instructions to bidders. Such amendment, among other things, established goals for minority/womens business enterprise (MBE/WBE) subcontractor and supplier participation in the project, and it required any bidder who failed to attain the goals to demonstrate a good faith effort to do so; otherwise, the bid of such bidder would be rejected. (Joint Exhibit 8) Arnold's bid showed that Arnold had no MBE/WBE subcontractor or supplier participation. (Joint Exhibit 9) Arnold's bid was the lowest of eleven bids received by the school board. Arnold's bid was in the amount of $10,977,000.00. The next lowest bid was in the amount of $11,075,000.00. After bids were opened, Arnold promptly contacted the MBE/WBE manager of the school board, and was advised by her to try to obtain MBE/WBE participation to meet the goals; within several days after bid opening Arnold was able to get a total of about 13.5% MBE/WBE subcontractor/supplier participation. Contrary to the MBE/WBE manager's instruction, the addendum to the project manual and bid instructions proscribed any effort after bid opening to attain the MBE/WBE goals and to thereby make a bid responsive. In spite of Arnold's attempt to demonstrate to the MBE/WBE manager that it had made a good faith effort to attain the goals prior to bid opening, the MBE/WBE Manager determined that no sufficient good faith effort was shown by Arnold. On March 5, 1992 the school board furnished to Arnold a written notice of its intended decision to reject all bids because of the failure of all contractors (bidders) to attain the MBE/WBE goals and/or to show compliance with the good faith effort requirement of the contract documents. (Joint Exhibit 11) On March 10, 1992 Arnold and its attorney attended a meeting of the school board for the purpose of appealing the MBE/WBE manager's decision that Arnold had not demonstrated a good faith effort to meet the goals. Mark C. Arnold spoke at length to the school board itemizing actions which Arnold contended showed its requisite good faith effort to solicit MBE/WBE participation. Arnold's attorney also made a presentation at the meeting. By a 6 to 1 vote, the board initially sustained the findings of the MBE/WBE manager that a good faith effort was not shown by Arnold, and rejected all bids because of the failure of all contractors (bidders) to meet the minority participation goal and/or to show compliance with the good faith effort requirements of the contract documents. (Joint Exhibits 12 and 15) Following a work session after its initial meeting on March 10, the board convened again in regular session on March 10, at which time it unanimously voted to reconsider its earlier action of rejecting all bids, and it voted to postpone action of the award of a contract for the construction of Middle School "FF". The effect of that action was to rescind its earlier action rejecting all bids and determining that Arnold had not shown a good faith effort to solicit MBE/WBE participation; and also to postpone action on the entire matter to a future time. (Joint Exhibit 13). On March 20, Arnold filed Formal Protest directed to the board's March 5th Notice of Intended Decision and directed to the March 10 action rejecting Arnold's bid. During or about the first week in April, engineers for the school board met with the school board's attorney, William M. Rowland, Jr., to inform him that significant revisions needed to be made in the site work and sewer plant plans for the Middle School "FF" project. The engineers recommended that because of the need to make such revisions all bids for the project should be rejected and the project should be rebid after the plans were revised. As a result of the early April meeting with the engineers, the board's attorney prepared and delivered a memorandum dated April 7th advising the school board of its engineers' recommendations. The attorney also submitted a resolution which, if adopted, would serve to reject all bids and require a rebidding of the project. (Joint Exhibit 16) On April 10th the school board furnished to Arnold an amended notice of intended decision, which by its express terms replaced, amended and superseded its prior notice of intended decision dated March 5th, and notified Arnold of its intent to reject all bids on the project because of the need to make significant revisions in the construction documents. (Joint Exhibit 17) Said amended notice rendered moot the March 20 formal protest filed by Arnold. At its meeting held on April 14th, the board considered the April 7th memorandum from its attorney. At that meeting, the board heard from its staff engineer, Chuck Greif, who pointed out the revisions needed to the site plans for the Project. (Joint Exhibit 20, pages 59-62, 77-78) Mark Arnold also spoke, contending that the site revisions could be handled by change orders if Arnold's bid were accepted. (Joint Exhibit 20, pages 76-77) Bob Gallardo, the school board Director of Facilities and Planning, advised of problems encountered in the site work and of the need to make significant revisions in the site plans. (Joint Exhibit 20, pages 87-92) As the geotechnical engineer on the job, Charles Cunningham stressed the significance of the site plan changes. (Joint Exhibit 20, pages 96-97) Derek Burke, engineer on the project, confirmed that major redesign needs to be done. (Joint Exhibit 20, page 64) Attorney Rowland advised that the prior intended decision to reject all bids because of failure of all bidders to comply with the MBE/WBE requirements of the bid documents, was moot and no longer before the board for action, and that the only resolution before the board for action was the resolution to reject all bids because of the need to make significant site plan revisions for the project. (Joint Exhibit 20, pages 72-76) The school board unanimously adopted that resolution. (Joint Exhibit 20, pages 97-99; Joint Exhibit 18) On April 23rd Arnold timely filed the written formal protest which is the subject of these proceedings. At the time of the meeting held by on April 14th, there was a need to make significant changes in the site work and sewer plant for the Middle School "FF" project. Such changes formed a valid and legitimate reason for the board to reject all bids. Even at the time of this administrative hearing, some details regarding the site work still needed to be worked out. For example, an outfall is needed for the percolation pond underdrain but it was not included in the project design. The site work and sewer plant changes and revisions could have been handled by change orders between Arnold and the school board, had the board accepted Arnold's bid, since any changes in a project can be accomplished by change orders; however, revising the nature and quantity of construction work by change orders involves the potential for excessive cost to the project owner and change orders always require agreement between the parties. Prudence dictates that when it is known that changes must be made, the bid advertisement should include those changes up front to remove the uncertainty of costs and to put all bidders on equal footing. There has been no showing of any illegality, fraud, oppression or misconduct in the actions of the school board in rejecting all bids on the Middle School "FF" Project and in opting to seek new bids for the project. There has been no showing in these proceedings that the school board's rejection of all bids had the purpose or effect of defeating the object and integrity of competitive bidding.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing the bid protests by Petitioner. DONE AND RECOMMENDED this 10th day of July, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Evans Davis, Esquire 170 East Washington Street Orlando, FL 32801 MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1992. William M. Rowland, Jr., Esquire 1786 North Mills Avenue Orlando, FL 32803 Dr. James L. Schott, Superintendent Orange County School Board P.O. Box 271 Orlando, FL 32802
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent should award a contract in accordance with an invitation to bid to the Petitioner, to some other bidder, or reject all bids and reissue an invitation. Petitioner contends that it was the low bidder in response to the invitation; that its bid was responsive; and to the extent that it was not responsive, any defects were of a minor sort which should be waived. Petitioner contends that the Respondent has previously waived irregularities such as existed in the Petitioner's bid and should therefore waive them in this case. The Respondent contends that the Petitioner's bid was not responsive, that the irregularities in Petitioner's bid are not minor, that any mistakes the Respondent has made in past acquisitions should not be repeated, and that the contract should be awarded to another company.
Findings Of Fact The Respondent issued an invitation to bid for a project known as the "Animal Science/Dairy Science Building" at the University of Florida. The project was given No. BR-108 by the Respondent. Petitioner was the lowest bidder in response to the invitation. The next lowest bidder, Charles R. Perry Construction Company, submitted a bid approximately $37,000 higher than Petitioner's bid. Perry has not filed any formal protest nor intervened in this proceeding. Petitioner is a responsible contractor and has in the past entered into construction contracts with the Respondent. Petitioner's bid was rejected by the Respondent. The Petitioner protested the rejection of its bid in a timely manner. Paragraph "B-15" of the bid specifications provides in pertinent part, as follows: In order that the Owner may be assured that only qualified and competent sub- contractors will be employed on the project, each Bidder shall submit with his Proposal a list of the subcontractors who would perform the work for each Divi- sion of the Specifications as indicated by the "List of Subcontractors" form contained in these Specifications... only one subcontractor shall be listed for each phase of the work. * * * No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section "B" of the invitation for bid provided space for the bidder to list the name and address of subcontractors for the roofing, masonry, plumbing, mechanical, electrical, meat processing equipment, and controls and instrumentation phases of the project. In Section "B" of its bid, Petitioner listed two subcontractors for the plumbing, mechanical, and controls and instrumentation phases of the project. Listing two subcontractors does not comport with the bid specification requiring that only one subcontractor be listed for each phase. Petitioner listed two subcontractors because one of the subcontractors submitted a proposal to Petitioner only fifteen minutes prior to the time when the bid had to be submitted, and Petitioner was unsure of whether the last-minute proposal included all of the work that the Petitioner anticipated would be required. In addition, Petitioner felt that one of the subcontractors may not have been acceptable to the Respondent. The requirement that bidders list only one subcontractor for each phase of a project helps to discourage "bid shopping." Bid shopping is a practice whereby a contractor who receives a bid from a subcontractor approaches another subcontractor with that bid and encourages the other subcontractor to reduce its price. If the other subcontractor responds, this reduced price can be taken back to the original subcontractor. The original subcontractor is then confronted with the choices of either lowering its bid or losing the project. Bid shopping that occurs after a bid has been accepted by the owner does not benefit the owner. It benefits only the bidder, who is able to reduce its costs and therefore increase its profit. Requiring that one subcontractor be listed for each phase cannot serve to completely eliminate bid shopping. A contractor could still bid shop by listing itself as the subcontractor, then after winning the contract shop between several subcontractors. A contractor could also bid shop by changing subcontractors after the bid award. In either case, however, the contractor would need to secure the approval of the owner. The practice is thus discouraged. If a bidder lists two subcontractors for a phase of the project, that bidder would have an advantage over those who listed only one subcontractor. Listing two subcontractors enables the bidder to make a choice as to the best subcontract bid at a time later than the choice is made by bidders who list only one subcontractor. In addition, listing two subcontractors makes it easier for the bidder to engage in bid shopping, which would be more difficult for bidders who listed only one subcontractor. Paragraph "B-24" of the bid specifications for this project provides in pertinent part: The Contract will be awarded . . . to the lowest qualified bidder pro- vided his bid is reasonable and it is in the best interest of the Owner to accept it. * * * The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The listing of two subcontractors for phases of the project is not a mere informality in the bid. It is directly contrary to Paragraph "B-15" of the bid specifications. It would not be in the interest of the owner to accept a bid in which two subcontractors are listed for phases of the project. The integrity of the acquisition process would be damaged by allowing such a deviation because a bidder who listed two subcontractors would have gained an advantage over bidders who complied with the bid specifications. It is not in the best interest of the Respondent to waive the defect in the Petitioner's bid. On at least two prior occasions, the Respondent awarded contracts to bidders who listed more than one subcontractor per phase of the work. One of these projects was for a gymnasium at Florida Atlantic University (Project No. BR-603). Another was for a window replacement project at Florida State University (Project No. BR-342). In at least three other projects, the Respondent awarded contracts where the bidder failed to list the name of any subcontractor for one or more phases of the work. These were for the cancer center at the University of South Florida (Project No. BR-569), the student housing facility at the University of South Florida (Project No. BR-576), and an expansion project at Florida A & M University (Project No. BR-343). The bid specifications for all of these projects were not offered into evidence; however, the Respondent had utilized the same specifications as required in this project at all pertinent times. Failing to list any subcontractor for a phase of a project constitutes approximately the same defect in a bid response as listing two subcontractors. It provides even greater opportunities for bid shopping and an advantage to the bidder over those who list subcontractors as required by the specifications. In several other projects, it appears that the Respondent has awarded contracts to bidders whose bids contained defects of the same magnitude, but a different sort than the listing of two subcontractors. It does not appear that the Respondent has awarded contracts where bidders have listed more than one subcontractor, no subcontractor, or otherwise violated bid specifications because of any policy or because of any expressed waiver of the defect. Rather, it appears that the Respondent has not adequately policed bids to determine responsiveness to the bid specifications. This is especially true with respect to the listing of subcontractors. It appears that no one on the Respondent's staff took the responsibility to consider whether one subcontractor was listed for each phase of a project as required in the specifications. The only policy that the Respondent established was a policy of being too lax in examining bids. The Petitioner did not list two subcontractors for various phases of this project because of any reliance on past conduct of the Respondent. Petitioner's agent overlooked the bid requirements in Preparing its bid response. In prior bids submitted by the Petitioner in response to bid invitations issued by Respondent, Petitioner listed only one subcontractor, as required. Generally, unless it is otherwise required, Petitioner prefers to list two subcontractors because of the flexibility it provides to the owner and to Petitioner. Petitioner was not aware that Respondent had previously awarded contracts to bidders who listed more than one subcontractor for a phase of the work when it submitted its bid in this instance.
The Issue Whether Respondent has reason to reject the bids submitted by Petitioner to provide landscape maintenance services at two schools (item number 3 and item number 43 of the Invitation To Bid numbered SB 96C-56Z) based on Petitioner's performance of similar contracts in prior years.
Findings Of Fact On June 15, 1995, Respondent issued its Invitation To Bid number SB 96C-56Z (ITB) for landscape maintenance services to be rendered at various schools in the Palm Beach County district school system. Item 3 of the ITB was for landscape maintenance services at Bears Lake Middle School and item number 43 was for landscape maintenance services at Santaluces High School. The contracts for the various schools are awarded for a term of one year through the bid process, with the contract for the subject ITB to be for a term beginning July 21, 1995, and ending July 20, 1996. Similar ITBs for similar services have been issued by Respondent for each prior year that is pertinent to this proceeding. After the bids were opened, it appeared that Petitioner was the low bidder for items 3 and 43. Respondent rejected the bids of Petitioner for these two items and asserted, based on Petitioner's prior performance of similar contracts, that it would not be in the best interest of the School District to award items 3 and 43 to Petitioner. Petitioner thereafter timely protested the bid process for items 3 and 43, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. The award of contracts by the Respondent for items 3 and 43 has been halted pending resolution of this proceeding. Petitioner has been in the landscape business for approximately ten years. For a number of years, Petitioner has been awarded contracts following an invitation to bid similar to the one at issue in this proceeding. The number of schools awarded to Petitioner has varied from "a few" to 22 in one year. Petitioner was awarded contracts for several schools for the 1994 contract term that the instant bid process is to replace. Petitioner was unable to perform the work at all the schools that it was awarded and surrendered its rights to some of those schools. Petitioner retained its contract for several other schools. The work Petitioner performed on the schools it retained was not acceptable to the Respondent. The record is replete with notices to the Petitioner stating its work was not acceptable and describing the noted deficiencies. Several of these letters threaten to terminate contracts that had been awarded to the Petitioner. Petitioner asserts that its problems with the Respondent are the product of unreasonable inspections of its work by Joe Lawson and Tom Williams, who were hired after Petitioner started working on schools. Petitioner has filed complaints against with the Respondent against Mr. Lawson and Mr. Williams on two separate occasions which purport to document the Petitioner's mistreatment by these two employees. Petitioner's assertions pertaining to these two inspectors are not based on persuasive, competent evidence and are, consequently, rejected. Petitioner also argues that it has received no more notices of complaints than other providers when the number of schools are considered. This is contrary to the more believable testimony, which established that Petitioner received more complaints. Lee Ziomek is a buyer employed by Respondent who has extensive experience in public procurement. Steve Zwirz is a landscape site technician whose duties include technical writing, supervising contracts, and supervising personnel. Joe Lawson is Mr. Zwirz's supervisor. Following the opening of bids, Mr. Ziomek, Mr. Zwirz, and Mr. Lawson met to review Petitioner's past performance. As a result of this meeting, it was decided to recommend that Petitioner had not performed its past contracts in an acceptable manner and that it was not in the best interest of the School District to award these two contracts to the Petitioner. The numerous notices of deficiencies that had been documented by Respondent provided a reasonable basis to conclude that awarding these bids to the Petitioner was not in the best interests of the School District. The first page of the ITB form used by Respondent contains the following: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that sustains the rejection of Petitioner's bids as to items 3 and 43 of ITB SB 96C-56Z and dismisses Petitioner's bid protest. Respondent's evaluation committee should resume the award process for items 3 and 43 of ITB SB 96C-56Z. DONE AND ENTERED this 23rd day of October, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1995. COPIES FURNISHED: J. Steven Reynolds, Esquire 2628 Forest Hill Boulevard West Palm Beach, Florida 33406 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Cynthia S. Prettyman, General Counsel Palm Beach County School District 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813
The Issue The issues are 1) Whether the Department of Health and Rehabilitative Services (HRS) properly rejected all bids on Lease Bid No. 590:2133, and 2) Whether either Petitioner is entitled to award of Lease Bid No. 590:2133 as the lowest and best responsive bidder.
Findings Of Fact On October 16, 1989, HRS issued an Invitation to Bid (ITB) on Lease Bid No. 590:2133 for 43,634 net square feet of office space in Ocala, Marion County, Florida. The bid package contained specifications, evaluation criteria, and numerical weight to be assigned to each criteria. The bid package indicated the area of emphasis placed on the facility by HRS which focused on client safety, public access, availability of public transportation, and parking. The emphasis on each area was indicated by the weighted points to be given in each area. On January 24, 1990, HRS received bids from both Wharton and Curtis. Both bids were responsive. Curtis submitted the apparent low bid and Wharton submitted the apparent second lowest bid. Curtis, as Trustee, is the owner of the property which is presently occupied by HRS in Ocala, Florida. The lease on these premises was awarded in 1980 and expires in 1990. Curtis purchased the leasehold in April of 1988 while HRS was a tenant and subject to the existing lease. Philip J. Procacci is the President of Procacci Development which is the general partner in Wharton Investment Group. The actual bids submitted were not offered into evidence by any party in this proceeding. Susanne Casey, the District Administrator of HRS District 3, is ultimately responsible for the leasing of all HRS facilities in the district, including facilities in Marion County. Casey appointed a bid evaluation committee to review and evaluate the responsive bids based on the criteria stated in the bid package. The committee was to make a recommendation regarding the lowest and best bidder. Before the bids were opened, the bid evaluation committee met and agreed upon objective parameters for each of the evaluation criteria. These parameters established standards against which each committee member could independently evaluate and award points on each bid. The evaluation criteria in the bid package assigned points in three major categories: associated fiscal costs, location, and facility. Associated fiscal coasts were further broken down into (a) rental rates for the basic lease term, (b) rental rates for optional renewal terms, and (c) associated moving costs. The maximum points available in each of these categories were fixed in the bid package and could not be altered by the committee. These criteria are standard in a lease procurement through out the state. State regulations require that all bids for lease space in the state evaluate rental rates using present value methodology. See Rule 13M-1.029, Florida Administrative Code. This means that the proposed rental rates in all bids are calculated to present value dollars for the purpose of comparison. The Department of General Services has a computer program, the sole function of which is to calculate the present value of the rental rates. The program has nothing to do with the assignment of points under the criteria, but is used as a tool to allow comparison of the bids. The present value of the Curtis bid was $662,464 lower than the present value of the Wharton bid. The rental rates were awarded points under criterion 1a of associated fiscal costs. The committee awarded the full 20 points to Curtis and awarded 5 points to Wharton. The committee members awarded these points in accordance with the standards and formula they had agreed on prior to the bid opening. The formula the committee used was not the more commonly used formula, but it was reasonable and rational and it was fairly applied to the bids in this case. There is no rule or policy of HRS or of the Department of General Services (DGS) that mandates that a particular formula be used in awarding points for the rental rate criterion 1a. There is a formula that HRS and DGS recommend as guidance of a methodology that is appropriate and reasonable, but the recommendation is not binding on the committee or on the District Administrator. There was another criterion of associated moving costs considered as part of the associated fiscal costs. Each committee member awarded 10 points to Wharton and 8 points to Curtis on this item. Wharton received 10 points because it sent a letter with its bid in which it offered to pay all moving costs incurred by HRS in a move to its building. Curtis received 8 points because HRS already occupied two of its buildings and would have limited moving costs in moving into the two additional buildings included in its bid. The bid specifications and bid package contained no indication that a bidder could offer to pay all moving costs as part of its bid. In fact, Wharton submitted its letter offering to pay all moving costs as a result of its discussion with one committee member, T.C. Little. Mr. Little is also the General Services Manager for HRS District 3 and is involved with all bids in the district. Mr. Little interpreted the bid specifications to permit such an offer even though the bid specifications were silent on the issue. At page 5 of the bid package, it is clearly stated that questions concerning the bid are to be directed to the project contact person. It further states: Any questions which might be prejudicial to other bidders will be answered in writing in the form of a clarification to the bid and will be sent to all prospective bidders. On that same page, the bid specifications address proposal of alternatives by stating: For evaluation purposes each bid submitted will be evaluated as to adherence to the specifications requested. If a bidder desires to propose alternatives to the specified specifications, he/she may do so by attaching a sheet to the bid submittal document titled Alternatives. However, these alternatives will not be presented to the bid evaluation committee for use in comparison of bids and can only be considered after an award of bid is made. The project contact person was Donald J. Cerlanek and any request for clarification should have been addressed to him and not to Mr. Little. Mr. Little's gratuitous advice and interpretation of the bid specifications made to Wharton and not to all bidders was incorrect, violated the terms of the bid specifications, and was improper. The bid specifications do not permit an offer to pay all moving costs to be considered in the award of points under the associated moving costs criteria. Such an offer can only be considered as an alternative proposal and cannot be considered by the bid evaluation committee in comparing the bids. Under the standards established by the committee, Wharton should have received 5 points on the associated moving costs criterion instead of 10 points. The committee members individually evaluated each bid and awarded points within the parameters they had established. Except for the incorrect award of points on the associated moving costs criteria, the scoring method and award of points by each committee member was rationally and reasonably related to the relative importance of each criterion as established in the bid package and was neither arbitrary nor capricious. Each committee member came to the conclusion that the Curtis bid was the lowest and best based on the award of points in each member's independent evaluation. On February 13, 1990, they recommended in writing that Curtis be awarded the bid. On February 19, 1990, the District Administrator adopted the committee's recommendation and reported the recommendation to Steven Gertel, the assistant staff director for HRS Facilities Services in the Office of General Services. On March 7, 1990, Mr. Gertel sent a memo to the District Administrator. The memo said: Review of the bid evaluation committee's recommendation has disclosed that the committee used a non-standard method of evaluating present value of rental rate for the lease term. Please provide an explanation of this variation to accepted practice. In fact, the committee used the established DGS formula to calculate the present value of rental rates. However, the committee used its own formula to award points based on the present value of rental rates. There was nothing impermissible about the committee's actions or formula. Because of a fear of a bid protest, Ms. Casey, the District Administrator, sent a notice rejecting all bids on the project. No other reason was articulated for rejecting all bids. The fear of a bid protest is not a legally sufficient reason to reject all bids, particularly because it is not stated in the bid specifications and is based on speculation about a future event which may never occur. HRS did reserve the right to reject all bids in the bid package, but it may not do so for an improper purpose. Fear of a bid protest is not a proper purpose. Wharton alleged and attempted to show some level of collusion between Curtis and Mr. Cerlanek of HRS. While Mr. Curtis had several contacts with Mr. Cerlanek about the project, such contacts are not per se inappropriate because Mr. Cerlanek is the District 3 Lease Coordinator and is the proper person to discuss future projects with potential bidders. No competent, substantial evidence was presented to show that Mr. Cerlanek discussed anything that was not public record or anything that gave Mr. Curtis any advantage in the bid process. Mr. Cerlanek did not tell Mr. Curtis what would be in the bid package or what would be needed to insure award of the bid to Curtis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order awarding the bid in Lease No. 590:5133 to Gail Curtis, as Trustee, as the lowest and best bidder. DONE and ENTERED this 27th day of September, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 90-2459BID AND 90-2666BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Wharton 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(5) and 19(27). 2. Proposed findings of fact 1, 5, 11-17, 20, 29, 30, 38, 39, 45, 46, 51, and 57 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 6, 8-10, 18, 21, 24, 25, 27, 31-34, 37, 40-44, 48- 50, 52, and 55 are irrelevant. Proposed findings of fact 7, 28, 56, 58, and 59 are unsupported by the competent, substantial evidence. Proposed findings of fact 22, 23, 26, 35, 36, 38, 47, 53, and 54 are mere summaries of testimony and are not appropriately framed as proposed findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Curtis, as Trustee Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(11), 7&8(13), 9(14), and 15(25). Proposed findings of fact 1-3, 5, 6, 10-12, and 16-26 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13, 14, and 27-29 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: Part I paragraphs 2(1&2), 3(4), 4(8), 5(30), Part II paragraphs 2(1&2), 3(3), 4(4), 5(8), 6(9), 8(10), 19(25), and 20(26). Proposed findings of fact Part I paragraphs 1 and 6 and Part II paragraphs 1, 7, 9, 10, 12-18, and 21-24 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 11 is irrelevant. Copies furnished to: Robert A. Sweetapple Attorney at Law 465 East Palmetto Park Road Boca Raton, FL 33432 Harry R. Detwiler, Jr. Attorney at Law Holland & Knight Post Office Drawer 810 Tallahassee, FL 32302 Gloria Fletcher Attorney at Law 515 North Main Street, Ste. 300 Gainesville, FL 32607 Frances S. Childers District Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue : The issue to be resolved in this proceeding concerns whether the agency action in recommending award of the contract for a renovation of a National Guard Armory to Concrete Services, Inc. (CSI) was "clearly erroneous, contrary to competition, arbitrary or capricious." More specifically, it must be determined whether a specification requiring that all general and subcontractors visit the project site and examine the existing site conditions prior to bid submittal, and certifying to that fact, was a waivable or minor irregularity, not affecting the price of the proposal by giving an unfair competitive advantage to any bidder or proposed vendor.
Findings Of Fact The Department of Military Affairs (Department) issued an invitation to bid for certain renovation work at the National Guard Armory in Tallahassee. The invitation to bid was issued on March 2, 2008. It was accompanied by an advertisement number 207005 and addenda No. 1-3. These were the documents that defined the scope of the work proposed to be constructed by the Department and the various specifications, conditions, and criteria which were to guide and be relied upon by prospective vendors or bidders. The invitation to bid stated that the contract would be awarded to the lowest responsive and responsible bidder. The invitation to bid notified prospective bidders that the Department reserved the right to waive minor irregularities in a bid where they did not affect the price of the proposal. Thus, the Department stated in the Invitation to Bid "the Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award with or without further discussion of the proposals submitted or accept minor informalities or irregularities in the best interest of the State of Florida, which are considered a matter of form and not substance and the correction or waiver of which is not prejudicial to other proposals." The reasons stated in the Invitation to Bid and Addenda for disqualification of a bidder did not include the failure of the contractor or subcontractors to visit the project site. Rather, the invitation to bid and advertisement list placed on the discriminatory business list, the submission of an electronic bid and employment of unauthorized aliens as irregularities that would result in disqualification of a bidder. The invitation to bid defines minor irregularities as "those that will not have an adverse effect on the DMA's interest and will not affect the price of the proposal by giving a proposer an advantage or benefit not enjoyed by all other proposers." The Department thus did not make failure of a contractor or subcontractor to visit the site of the project an event that would result in disqualification. The Department's intent rather was to place contractors on notice that failure to visit the site would be at the sole risk of the general contractor/bidder if failure to visit the site resulted in an unforeseen problem, cost, or risk. The Department stated at Addendum 1, D-9 the following: D-9 site examination by contractor: The general contractor and all subcontractors as listed on Exhibit Five, shall visit the project site and examine the existing conditions affected by this work prior to submitting a bid. Any bid submitted without prior examination of on-site existing conditions will be at the sole risk of the general contractor. The contractor shall submit on its letterhead the following at time of bid, certifying that he and his subs thoroughly examined the project site: 'I (name of general contractor), do hereby certify that all associated general and subcontractor entities have visited the project site and thoroughly examined the on- site existing conditions prior to the submittal of the bid.' Lt. Col. Keating is the contract officer and manager. His duties include reviewing the bids and making final determination on bid proposals submitted to the Department for projects such as this renovation project. He reviewed the entire package of bid submissions after the bid opening in Tallahassee. These are his duties concerning every bid opening of the Department. Lt. Col. Keating reviewed the failure of CSI to submit the Addendum D-9 letter and determined that the absence of the letter did not give CSI an unfair competitive advantage. He determined that this was a minor irregularity which was waivable. Mr. Hersey was the construction consultant for the Department for this project. Mr. Hersey reviewed the CSI file after the bids were submitted, noting that CSI's bid did not include all the verbiage required by Addendum One, D-9. He determined, however, that the proposed included the "Exhibit 4" document which stated that CSI had "visited the site of the proposed project and familiarized himself with the local conditions, nature, and extent of the work." Mr. Hersey brought this omission to Lt. Col. Keating's attention. Lt. Col. Keating considered the failure of CSI to submit the Addendum 1, D-9 letter language and determined that the omission did not give CSI an unfair competitive advantage over other bidders and therefore that it was a minor irregularity. He determined that the fact that there was language in the bid submittal of CSI to the effect that the contractor had visited the site and familiarized himself with conditions, nature, and scope of the work made the bid actually responsive. The failure to include the language required in Addendum 1, D-9 did not render the bid unqualified or non- responsive, but, instead, the failure to include that language would have the consequence of making CSI responsible for any loss caused by the failure to visit the project site or have the subcontractors visit the project site before bidding. If that omission caused any additional cost or unforeseen circumstances which had a cost attributable to them, CSI would have to bear the risk of paying for any such expense itself under the terms of the specifications. It was thus determined that the failure to visit the site had the consequence of making the contractor assume resulting risks but was considered by the Department to be a quality assurance measure in the specifications, instead of a determining or qualifying factor for award of the project. Lt. Col. Keating determined that the failure to submit the required language in the letter did not give CSI an unfair competitive advantage. CSI's bid was $1,866,212.00. The bid of the Petitioner, Warren Building Company, Inc., was $1,944,000.00. Thus, CSI's bid was $77,788.00 lower than the bid submitted by the Petitioner Warren. In preparing his bid submittal, the Petitioner had not been charged by his subcontractors for their visiting the Tallahassee project site. His entire cost of submitting the response to the invitation to bid on behalf of Warren, was $10,000.00 or less. Thus, the failure by CSI to have subcontractors visit the site and evaluate the work was clearly not shown to have saved CSI costs, in an amount anywhere approaching the total difference in the amounts of the two bids. Only if the avoidance of such costs represented by the visits of the contractor and subcontractors to the job site was greater than or at least approximately equal to the $77,788.00 difference between the two bids, would the failure of CSI to entirely comply with this specification result in a change in the relative competitive positions of the two bidders. Put another way, there was no evidence to show that had CSI completely complied with the disputed specification, that it would not still have much the lowest-priced responsible and responsive bid. It was thus determined by Lt. Col. Keating that the $1,866,212.00 bid submitted by CSI was the lowest responsible and responsive bid. He therefore determined that the award of the contract should be give to CSI and an Agency decision to that effect was posted on April 11, 2008. The subject protest and proceeding ensued.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Military Affairs, awarding the contract for renovation work at the National Guard Armory in Tallahassee, Florida (No. 207005) to Concrete Services, Incorporated. DONE AND ENTERED this 20th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 20th day of August, 2008. COPIES FURNISHED: Thayer M. Marts, Esquire 1105 Hays Street Post Office Box 1814 Tallahassee, Florida 32302 Kim F. Heller, II, Esquire Elizabeth C. Masters, Esquire Florida National Guard Post Office Box 1008 St. Augustine, Florida 32085-1008 Elizabeth C. Masters, Lt. Colonel Florida Army National Guard 82 Marine Street St. Augustine, Florida 32084
The Issue Whether Respondent's intended rejection of all bids submitted in response to Respondent's solicitation of bids for two separate painting projects (the painting of the exterior of Greenacres Elementary School and the painting of the exterior of South Olive Elementary School) is "arbitrary," as alleged by Petitioner, and if so, what alternative action should Respondent take with respect to these two projects.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a district school board responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida (including, among others, Greenacres Elementary School, South Olive Elementary School, and Belvedere Elementary School) and for otherwise providing public instruction to school-aged children in the county. In or around August 2009, Respondent, through its Construction Purchasing Department (Purchasing Department), issued a single Invitation to Bid (ITB) soliciting separate bids for three different painting projects: the painting of the exterior of Greenacres Elementary School; the painting of the exterior of South Olive Elementary School; and the painting of the exterior of Belvedere Elementary School. The bid package contained the following: an Invitation to Bid Bidder Acknowledgement form (PBSD 1186, Rev 2/2001); Special Conditions; Specifications; and Addenda, including a Bid Summary Sheet, a Drug-Free Workplace Certification (PBSD 0580, New 3/91), a Statement of No Bid, Inspection forms, and a Beneficial Interest and Disclosure of Ownership Affidavit. The Invitation to Bid Bidder Acknowledgement form contained the following provision entitled, "Awards": AWARDS: In the best interest of the District, the Purchasing Department reserves the right to reject any and all bids and to waive any irregularity or minor technicalities in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as result of this bid shall conform to applicable Florida Statutes. The Invitation to Bid Bidder Acknowledgement form also included "General Conditions, Instructions and Information for Bidders" (General Conditions), among which were the following: SEALED BIDS: One copy of this executed Invitation to Bid page and Bid Summary page(s) must be returned with the bid in order to be considered for award. All bids are subject to all the conditions specified herein; all General Conditions, Special Conditions on the attached bid documents; and any addenda issued thereto. Any failure on the part of the bidder to comply with the specifications, terms and conditions of this Invitation to Bid shall be reason for termination of contract. EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. All bids must be completed in ink or typewritten. Corrections must be initialed by the person signing the bid. Any corrections not initialed will not be tabulated. The original bid conditions and specifications cannot be changed or altered in any way. Altered bids may not be considered. Clarification of bids submitted shall be in letter form, signed by the bidders and attached to the bid. * * * 20. SIGNED BID CONSIDERED AN OFFER: This signed bid shall be considered an offer on the part of the bidder, which offer shall be deemed accepted upon approval by the Board. In case of a default on the part of the bidder after such acceptance, the District may take such action as it deems appropriate including legal action for damages or specific performance. * * * 25. SPECIAL CONDITIONS: Any and all Special Conditions that may vary from these General Conditions shall have precedence. Among the "Special Conditions" were the following: SCOPE: The purpose and intent of this invitation to bid is to secure firm pricing for Exterior Painting of Greenacres, South Olive, and Belvedere Elementary Schools. The rate shall include all materials and labor for preparation, sealing and painting. AWARD: Time of completion is of the essence. Contract will be awarded to the lowest responsive and responsible bidder(s) for each item as listed on the Bid Summary Sheet. The District reserves the right to use the next lowest bidder(s) in the event the original awardee of the bid cannot fulfill their contract. The next lowest bidder's price must remain the same as originally bid and must remain firm for the duration of the contract. The anticipated award will be approved by the superintendent designee. B. MANDATORY SITE INSPECTION: ALL BIDDERS MUST ATTEND PRE-BID WORKSITE WALK-THROUGH. THE WORK DETAILS ARE OUTLINED IN THIS BID AND ANY QUESTIONS WILL BE ANSWERED AT EACH WORKSITE INSPECTION. BIDS WILL NOT BE ACCEPTED FROM ANY BIDDERS THAT HAVE NOT ATTENDED THE SITE INSPECTION FOR THAT PARTICULAR WORKSITE. THIS MANDATORY SITE INSPECTION EXCLUDES ANY AND ALL PAINT MANUFACTURERS AND/OR PAINT DISTRIBUTORS. * * * BIDDERS RESPONSIBILITY: Before submitting their bid, each bidder is required to carefully examine the invitation to bid specifications and to completely familiarize themselves with all of the terms and conditions that are contained within this bid. Ignorance on the part of the bidder will in no way relieve them of any of the obligations and responsibilities that are part of this bid. SEALED BID REQUIREMENTS: The "INVITATION TO BID" bidder's acknowledgment sheet must be completed, signed, and returned. In addition, the Bid Summary Sheet page(s) on which the bidder actually submits a bid, needs to be executed and submitted with this bid. Bids received that fail to comply with these requirements shall not be considered for award.[2] CONTRACT: The submission of your bid constitutes an offer by the bidder. . . . * * * Q. USE OF OTHER CONTRACTS: The District reserves the right . . . to directly negotiate/purchase per School Board policy and/or State Board Rule 6A-1.012(6) in lieu of any offer received or award made as a result of this bid, if it is in its best interest to do so. The District also reserves the right to separately bid any single order or to purchase any item on this bid if it is in its best interest to do so. * * * HH. POSTING OF BID AND SPECIFICATIONS: Invitation to bid with specifications will be posted for review by interested parties in the Construction Purchasing Department on the date of bid electronic mailing and will remain posted for a period of 72 hours. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. II. POSTING OF BID RECOMMENDATION/ TABULATIONS: Bid recommendations and tabulations will be posted in the Construction Purchasing Department, within 10 days of the opening date, and will remain posted for a period of 72 hours. If the bid tabulation with recommended awards is not posted by said date and time, [a] "Notice of Delay of Posting" will be posted to inform all proposers of the new posting date and time. Any person adversely affected by the decision or intended decision must file a notice of protest, in writing, within 72 hours after the posting. The formal written protest shall state with particularity the facts and law upon which the protest is based. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. OO. BID PROTEST: If a bidder wishes to protest a bid, they must do so in strict accordance with the procedures outlined in F.S. 120.57(3), and Section FF., Lobbying Paragraph 3, of this proposal and School Board Policy 6.14. Any person who files an action protesting bid specifications, a decision or intended decision pertaining to this bid pursuant to F.S. 120.57(3)(b), shall post with the Purchasing Department, at the time of filing the formal written protest, a bond secured by an acceptable surety company in Florida payable to the School District of Palm Beach County in an amount equal to 1 percent (1%) of the total estimated contract value, but not less than $500 nor more than $5,000. Bond shall be conditioned upon the payment of all costs that may adjudged against the protester in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond, a cashier's check, certified bank check, bank certified company check or money order will be acceptable form of security. If, after completion of the administrative hearing process and any appellate court proceedings, the District prevails, it shall recover all costs and charges included in the final order of judgment, including charges by the Division of Administrative Hearings. Upon payment of such costs and charges by the protester, the protest security shall be returned. If the protest prevails, he or she shall recover from the District all costs and charges, which shall be included in the final order of judgment. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. * * * PP. INFORMATION: Any questions by the prospective bidders concerning this invitation to bid should be addressed to Helen R. Stokes, Purchasing Agent, Construction Purchasing . . . , who is authorized only to direct the attention of prospective bidders to various portions of the bid so they may read and interpret such for themselves. Neither Mrs. Stokes nor any employee of the District is authorized to interpret any portion of the bid or give information as the requirements of the bid in addition to that contained in the written bid document. Interpretations of the bid or additional information as to its requirements, where necessary, will be communicated to bidders by written addendum. Site visits to the three schools to be painted were made by prospective bidders on August 13, 2009, following which a First and Final Addendum, dated August 25, 2009, was issued by the School Board. This First and Final Addendum included the following Revised Bid Summary Sheet: REVISED BID SUMMARY SHEET THE SCHOOL DISTRICT OF PALM BEACH COUNTY Construction Purchasing Department 3661 Interstate Park Road North Building 200 Riviera Beach, FL 33404 Ph: 561-882-1952 Fax: 561-434-8655 EXTERIOR PAINTING OF GREENACRES, SOUTH OLIVE, AND BELVEDERE ELEMENTARY SCHOOLS SEALED BIDS ARE TO BE SUBMITTED ON AUGUST 27, 2009 NO LATER THAN 2:00 P.M. TO: Helen Stokes, Construction Purchasing Construction Purchasing Department 3661 Interstate Park Road North Building 200 Riviera Beach, FL 33404 Bids will only be accepted from those contractors in attendance at the Mandatory Site Visit and who are registered with the School District of Palm Beach County as a Small Business Enterprise. The rate shall include paint, preparation, sealing and painting per the attached specifications and detailed scope of work. EXTERIOR PAINTING AT GREENACRES, SOUTH OLIVE, AND BELVEDERE ELEMENTARY SCHOOLS ITEM 1: GREENACRES ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) ITEM 2: SOUTH OLIVE ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) ITEM 3: BELVEDERE ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) RE-TEXTURING TEXCOAT $ (Per Sq. Ft.) ADDENDUM ACKNOWLEDGEMENT: I HEREBY ACKNOWLEDGE RECEIPT OF ADDENDUMS CONTRACTOR: Name Date Address Current License # City, State, Email Address Zip Phone Fax There were no instructions on the Revised Bid Summary Sheet itself directing that an authorized representative sign the document, nor was there any signature line for such purpose. Bids were submitted by Austro Construction, Inc. (Austro); Dynamic Painting, Inc. (Dynamic); Fleischer's, Inc. (Fleischer's); JIJ Construction Corporation (JIJ); and Petitioner. Austro bid $83,900.00 on Item 1 (Greenacres Elementary School); $87,500.00 on Item 2 (South Olive Elementary School); and $105,500.00 and $3.50 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Dynamic bid $55,955.00 on Item 1 (Greenacres Elementary School); $74,800.00 on Item 2 (South Olive Elementary School); and $82,900.00 and $3.00 per square foot for re- texturing on Item 3 (Belvedere Elementary School). Fleischer's bid only on Item 3 (Belvedere Elementary School).3 Its bid was $73,000.00 and $1.25 for re-texturing. JIJ bid $80,000.00 on Item 1 (Greenacres Elementary School); $95,000.00 on Item 2 (South Olive Elementary School); and $95,000.00 and $1.15 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Petitioner bid $89,349.00 (or $33,394.00 more than did Dynamic, the lowest bidder) on Item 1 (Greenacres Elementary School); $93,885.00 (or $19,085.00 more than did Dynamic, the lowest bidder) on Item 2 (South Olive Elementary School); and $94,306.00 and $3.95 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Of the five Revised Bid Summary Sheets that were submitted in response to the ITB (one each by Austro, Dynamic, Fleischer's, JIJ, and Petitioner), only two, those submitted by Fleischer's and Petitioner, contained the signature of an authorized representative of the bidder. The other three had no signatures on them. All of the "blanks" on each of the five Revised Bid Summary Sheets submitted, including the three sheets without signatures, were filled in and completed, however.4 Furthermore, each Revised Bid Summary Sheet was accompanied by an appropriately signed Invitation to Bid Bidder Acknowledgement form. Bids were opened on August 27, 2009. As announced on the Bid Tabulation Form that was posted on August 28, 2009, the Purchasing Department recommended that Items 1 and 2 be awarded to Dynamic and Item 3 be awarded to Fleischer's. Petitioner, on or about September 8, 2009, protested the award of Items 1 and 2 to Dynamic on the ground that Dynamic's bids on these items were non-responsive because its Revised Bid Summary Sheet had not been signed by an authorized representative of the company. The award of Item 3 to Fleischer's was not protested by Petitioner or any other bidder. By letter dated September 15, 2009, Sharon Swan, Respondent's Director of Purchasing (and head of the Purchasing Department), advised Petitioner of the following: We have completed the review of your protest of Bid for "Exterior Painting of Greenacres, South Olive, and Belvedere Elementary Schools," specifically your protest of the recommendation for award for Greenacres and South Olive Elementary Schools, Items 1 & 2 of this bid. A revised recommendation will be posted later today reflecting a change in our recommendation for Items 1 & 2. The revised recommendation will be to reject all bids on these two items[5] and re-bid with revised bid documents which will clarify the ambiguity relating to the requirement to execute the Bid Summary Sheet when no signature line was indicated. Therefore, I am returning your bank check and closing the file on this protest. You are invited and welcome to compete on the re-bid of these projects. As promised, a second, revised bid tabulation form was posted that same day (September 15, 2009) containing the following "revised recommendation": Item[s] 1 & 2: Reject bid Item[] 1 (one) and Item 2 (two) due to an ambiguity in the bid language, SPECIAL CONDITIONS, paragraph E, Sealed Bid Requirements. Item 3: Fleischer's, Inc. The belatedly perceived "ambiguity" referred to in the Purchasing Department's revised bid tabulation form concerned the intended meaning of the term "executed" in Special Condition E. of the ITB. It had been the Purchasing Department's intent, in using this term in Special Condition E., to require that the Revised Bid Summary Sheet be signed by an authorized representative of the bidder; however, the Purchasing Department had not included a signature line on the Revised Bid Summary Sheet (such as the one appearing on the Invitation to Bid Bidder Acknowledgement form), nor had it specified anywhere in the ITB that the Revised Bid Summary Sheet had to be "signed" (in contrast to the instructions, given in the first sentence of Special Condition E., regarding the Invitation to Bid Bidder Acknowledgement form). Upon its consideration of Petitioner's protest, the Purchasing Department had come to the realization that it had not clearly communicated to prospective bidders its intent concerning the need for a bidder's "executed" Revised Bid Summary Sheet to bear an authorized representative's signature. Believing that its failure to have done so effected the outcome of the competitive bidding process in the case of both Item 1 and Item 2 (in that, with respect to each of these items, the lowest bidder, as well as all other bidders bidding on these two items with the exception of Petitioner, submitted an unsigned Revised Bid Summary Sheet, making these bidders, in the School Board's view, ineligible for an award), the Purchasing Department decided "to reject all bids [with respect to these two items] and rebid so [the Purchasing Department] could correct this ambiguity" concerning the need for a bidder's "executed" Revised Bid Summary Sheet to be signed.6 It is this intended action which is the subject of Petitioner's instant protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board take the action described in numbered paragraph 51 above. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2010.
The Issue The issue is whether the Department of Corrections (DOC) acted fraudulently, arbitrarily, illegally or dishonestly when it decided to award the contract under Bid Number 94-CO-6355, for Inmate Pay Telephones and Long Distance Service (the Contract), to the number two-ranked bidder, North American Intelecom, Inc. (NAI).
Findings Of Fact Background On or about August 12, 1994, the DOC issued Invitation to Bid Number 94-CO-5355, Inmate Pay Telephones and Long Distance Service. Michael H. Johnson, a General Services Specialist, prepared the ITB at the direction of Jim Morris, Chief of the DOC's Bureau of General Services. Johnson developed the evaluation criteria and point allocations in Section 8.0 of the ITB. The document was reviewed and approved by Morris, Jim Biddy, Chief of the DOC's Bureau of Finance and Accounting, and Max Denson of the DOC's Operations Office. Inmate pay telephone and long distance service requires more than just the installation of pay phones in correctional facilities. The service vendor must also provide a means of blocking inmate telephone calls and, when calls are authorized, preventing inmates from making harassing calls to members of the public. Additionally, the ITB includes a provision requiring some means for monitoring and automatically recording inmate telephone calls, and for deactivating the automatic recording function when an inmate calls his or her attorney. A requirement is also included in the ITB that the system limit the length of inmate calls and generate monthly call detail reports. Other mandatory, no cost features to be provided under the Contract include a Personal Identification Number ("PIN") system capability, a three-way call detection and cutoff feature, a pilot site to test the call monitoring/recording system, on-site administrators to free facility staff from all tasks associated with the inmate phone system, and a semi-annual audit to ensure that the provider is meeting all technical and service requirements. The specifications in the ITB for provision of inmate pay telephone and long distance service are some of the most comprehensive in the country, requiring state-of-the-art hardware, software, and service in order to implement specified mandatory system features. Security concerns are prominent among reasons for having adequate service and support for the inmate pay telephone and long distance service. PIN-Driven System One of the primary features specified in the ITB is a PIN-driven system for blocking inmate calls. The PIN system requires each inmate to be assigned his or her own personal identification number for use with the telephone system. An inmate must key in his or her personal identification number before dialing an outgoing call. The system must automatically screen the telephone number dialed to ensure it is one which has received prior authorization for accessibility by the PIN. A PIN-driven system is labor-intensive and requires on-site administration to facilitate assignment of inmate PIN numbers and constant input and modification of each inmate's list of numbers for authorized outgoing calls. Project Staffing The DOC specifically requested the inmate phone system vendor to provide sufficient on-site administrators for a number of reasons including, but not limited to, support for proper administration of the PIN system. Noting that on-site administrators are to relieve DOC staff of all responsibilities relating to the inmate phone system, the DOC stated in the ITB that it did not want its staff to be involved with time-consuming service and maintenance problems. The DOC expressed a preference in the ITB for one on-site administrator being assigned to each major facility, except in those circumstances in which a single individual may cover several facilities in close geographic proximity to one another. Support services are important to maintain the proper functioning of the type of inmate phone system requested by the DOC. The ITB, taken as a whole, is a solicitation for an integrated telecommunications system, encompassing not only hardware, but systems software, service and project support. The ITB did not simply solicit manufacturers and models for various pieces of hardware; it contained a comprehensive description of functional requirements that had to be met. As a consequence, any determination that one bidder's "equipment" is identical to that offered by any other bidder must take into consideration proposed support and service, as well as proposed hardware and software applications. Bid Evaluation Procedure Specified in the ITB As established at final hearing by the unrebutted testimony of MCI's expert in telecommunications service bid response preparation, DOC's ITB differed from those in many other states. Unlike the instant ITB, many ITBs from other jurisdictions provide for a determination that bids meet specified minimum requirements and then dictate the award of a contract to the responsive bid with the lowest price. Conversely, DOC's ITB specified a detailed procedure to be followed in evaluating the bids, including evaluation criteria, points to be assigned to each criterion, and an evaluation committee to conduct the evaluation of bids. Johnson, the DOC employee responsible for the preparation of the ITB, understood that the Contract would be awarded to the bidder with the highest number of points allocated in accordance with the evaluation scheme described in Section 8.0 of the ITB. The DOC includes in its ITB both general and special conditions and specifications. The ITB, by its own terms, provides that special conditions and specifications shall have precedence over general conditions. The ITB contains numerous special conditions and specifications, including the bid evaluation procedures under Section 8.0. The bid evaluation criteria which are described by these special conditions and specifications identify the areas of the state's interest which must be addressed by the bids, as well as the weight to be assigned to each. Section 8.3 of the ITB emphasizes that any information gleaned from post bid demonstrations will not be used to change bid responses. The bid evaluation scheme specified in the ITB provided for points to be awarded to each bid using the following weighted criteria: CRITERIA POINTS CORPORATE QUALIFICATIONS 15 REFERENCES 10 PROPOSED PROJECT STAFF 5 COMMISSION RATE 70 TOTAL POSSIBLE POINTS 100 The points awarded for "commission rate" were to be determined by using a formula specified in the ITB which initially gave 70 points to the bidder proposing the highest commission rate, with all other bidders receiving a lesser number of points, depending on how close they came to the highest proposed commission rate. The points awarded for all of the other criteria were to be determined by a seven-member Evaluation Committee, members of which were selected by Assistant Secretary Kronenberger for their experience with management and actual operation of inmate phone systems, both from the institutional perspective and the regional office perspective. Each bid was required to be independently evaluated. The DOC issued two addenda to the ITB. The first addendum was issued August 23, 1994, and advised potential bidders of a change in location for the pre-bid conference scheduled for September 7, 1994. At the pre-bid conference, the DOC explained the award process to potential bidders. Johnson, the DOC representative, advised potential bidders at the pre- bid conference that the contract award would not be determined solely on the strength of the commission rate quote. On September 22, 1994, the DOC issued Addendum Number Two to the ITB which, among other things, changed the evaluation procedure by adding a new criterion and re-allocating the weight among the expanded criteria as follows: CRITERIA POINTS CORPORATE QUALIFICATIONS 10 REFERENCES 10 PROPOSED PROJECT STAFF 5 TECHNOLOGICAL ENHANCEMENTS 10 COMMISSION RATE 65 TOTAL POSSIBLE POINTS 100 The addition of "technological enhancements" was made at the request of Deputy Secretary Thurber, who wanted to be sure that the DOC had an opportunity to see what features above and beyond the minimum features specified in the original ITB were available for an inmate pay telephone system. When technological enhancements were added as an evaluation criterion, the weight to be given the commission rate in the evaluation scheme was lowered from 70 to 65 points. The DOC officials who reviewed and approved Addendum Number Two determined that the reduced weight for proposed commission rates was appropriate. At 65 percent of the available points, the reduced weight for the proposed commission is still higher than the 45 percent to 50 percent weight typically given by the DOC to the revenue side of a bid. Bidder Preparation MCI relied on the representation in the ITB and assurances of DOC's representative, Michael H. Johnson, at the bid conference that DOC's decision would not be made solely on the basis of cost. As a consequence of DOC representations, MCI prepared its bid to address the specifications in the ITB and thereby maximize its overall points under the ITB's evaluation scheme, as opposed to submission of a bid package concerned solely with scoring the highest possible points for "commission rates." Bid Opening and Initial Review On October 21, 1994, bids were submitted to DOC by MCI, NAI, AT&T, TEI, Robert Cefail & Associates (RC&A), 21st Century, RC&A/21st Century, and LDDS Metromedia. At the Bid Opening, Johnson again explained the award process to bidders on behalf of the DOC, and advised bidders that the bid tabulation was strictly for the purpose of documenting responses and that nothing was to be inferred from the proposed commission rates. Bidders were again advised that commissions would be only one aspect of the award. Johnson's understanding at the time of the Bid Opening was that the Contract would be awarded based on points awarded pursuant to the bid evaluation scheme specified in the Section 8.0 of the ITB. Johnson participated in an initial review of the bids, reading each of the proposals to determine whether the mandatory requirements were satisfied. Of eight bids received, five, including the bids submitted by MCI and NAI were determined by the DOC to satisfy the mandatory requirements. The Evaluation Committee As required in the ITB, the DOC formed an Evaluation Committee to evaluate the bids. Selected by Assistant Secretary Kronenberger, members of the Evaluation Committee were: Jim Biddy, Chief of the Bureau of Finance and Accounting; Jerry Pilcher, Chief of Regional Administrative Services for Region II; Kermit Kerley, Superintendent of the Hardee Correctional Institution; Stan Czerniak, Superintendent of the North Florida Reception Center; Charles Mask, Superintendent of the Corrections Mental Health Institution; Charles Dennard, Business Manager for the Polk Correctional Institution; and Robert Sandal, General Services Manager for Region I. Members of the Evaluation Committee were selected from the DOC's business managers and superintendents on the basis that their participation would provide an overall perspective with respect to management and actual operation of the inmate phone system. Evaluation Committee's Recommendation All five of the bids determined by the DOC to be responsive were thoroughly reviewed by Evaluation Committee in accordance with the bid evaluation procedures specified in the ITB, including Addendum Number Two, in an almost day-long session in the DOC's Central Office on January 5, 1995. The total points awarded by each Committee member for all of the four evaluation criteria were averaged to establish each bidder's total Evaluation Points. Every member of the Evaluation Committee scored MCI's bid as their number one or number two choice. NAI was ranked no higher than third by anyone on the Committee and was ranked fourth by five of the Committee's members. No member of the Committee gave NAI a higher score than MCI on any of the evaluation criteria. Comments on a majority of the evaluation forms of the seven members of the Evaluation Committee reflect a general concern for the adequacy of NAI's proposed project support. Specifically, Mr. Biddy noted that "[p]roposed project staff consisted of only 17 people [and that it was] questionable whether this would be sufficient for site administration as well as contract management." Similarly, Mr. Kerley noted on the NAI bid evaluation form that "17 staff may not be enough to support [the] system." Mr. Pilcher's comments indicated that "[p]roject support was not as I expected or not explained very well." Mr. Dennard indicated that NAI's bid provided "no breakdown of [the] 17 staff to support [the] contract [and] no mention of site administrators." The NAI bid indicates that a total of 17 personnel will be made available to support the Contract with more to be "added if the schedule so indicates." NAI's bid does not specifically identify the number of persons to be involved in on-site administration. However, NAI has committed only 17 people in support the Contract as a whole, ten of whom are expressly identified as performing tasks other than on-site administration. While NAI's bid indicates provision of additional personnel if required by the schedule, ambiguity about whether NAI would expand the number of on-site administrators for the entire term of the contract is evident. The "installation requirements" described in the ITB refer to time-limited activities necessary to initiate operation of the inmate telephone system, as opposed to the ongoing nature of the commitment necessary for on-site administration. In its bid response, NAI also agreed to cooperate with the DOC "to insure the proper distribution of on-site administrators." This offer does not suggest, however, that the number of on-site administrators committed in support of the Contract will be augmented by NAI. Such assurance relates to location and not number of on-site administrators. Testimony of NAI presented at final hearing that additional on-site administrators will be provided is not credited, inasmuch as such testimony constitutes an impermissible attempt by NAI to modify its bid after the bid opening. Based upon the substantial disparity in the proposed levels of customer service, the MCI and NAI bids cannot be considered to be identical. NAI's assertion at hearing that its bid included other system features which do not appear on the face of its written proposal constitutes a prohibited post-bid-opening modification. Such modifications included PCs, keyboards, printers and color monitors at each facility. These items are included on the face of the MCI bid. MCI offered 28 personnel in support of the Contract, including an express commitment for 20 on-site administrators. MCI's proposal to provide 20 on-site administrators is one of the highest number of on-site administrators offered by any bidder and a very costly aspect of MCI's bid since all employee salary and benefits must be covered for each on-site administrator dedicated to the project. The assignment of points for each bidder's proposed commission rate (Commission Points) was based on a scale which assigned 65 points to the bid with the highest commission rate quote. A lesser number of points was assigned to all other bids pursuant to a formula specified in Section 8.2 of the ITB, as amended by Addendum Number Two. The highest commission rate quoted by any bidder was proposed by NAI at 56 percent. NAI was accordingly assigned 65 Commission Points. NAI was also awarded 22.143 Evaluation Points, which, when combined with NAI's 65 Commission Points, produced a total of 87.143 points. MCI proposed a 53 percent commission rate and, in accordance with the formula set forth in the ITB, earned 61.51 Commission Points. MCI was also awarded 30 Evaluation Points which, when combined with MCI's 61.51 Commission Points, produced a total of 91.51 points. When the Evaluation Committee's other scores were combined with the scores for commission rates obtained by applying the formula in the ITB, MCI's point total was higher than that received by any of the other bidders. The DOC officials later involved in the decision to award the Contract to NAI indicated that they had no reason to question the work of the Evaluation Committee. After reviewing the bid evaluation forms produced by the Evaluation Committee, and based on his continuing understanding that the Contract would be awarded to the bidder receiving the highest number of points under the evaluation scheme specified in the ITB, Michael H. Johnson prepared a memorandum for signature of his supervisor, Mr. Morris, to Assistant Secretary Kronenberger. Dated January 31, 1995, the memorandum recommended award of the Contract to MCI. Morris signed the January 31, 1995 memorandum and forwarded the same to Assistant Secretary Kronenberger. At prehearing deposition in this case on April 13, 1995, Kronenberger denied having received any recommendation from anyone regarding which company should be awarded the contract. Later at the final hearing following Johnson's testimony that he, Johnson, had been instructed to destroy the signed document by Morris (his supervisor), Kronenberger finally admitted that he had told Morris "we ought to pull that memo." These instructions were followed by Morris, who directed Mr. Johnson to destroy the January 31, 1995 memorandum recommending award of the Contract to MCI. Significantly, neither Morris, Kronenberger, nor Thurber--all DOC officials involved in the contract award decision--mentioned the existence of this document prior to Mr. Johnson's revelation on the witness stand that it had been destroyed. After-The-Fact Evaluation In a February 22, 1995 memorandum to Deputy Secretary Thurber, Kronenberger, after acknowledging that MCI received the highest number of points, formally recommended that the Contract be awarded to NAI. This memorandum was drafted by Morris at the direction of Kronenberger. Before making the recommendation to award the contract to NAI, Kronenberger had not read the ITB, the addenda to the ITB, or any portion of the bids. Morris was the only member of his staff with whom Kronenberger consulted. Kronenberger's decision was approved by Deputy Secretary William Thurber. Neither Kronenberger, Morris, nor Thurber read the bids at any time prior to the DOC's issuance of the notice of intended award to NAI. Kronenberger based his decision to recommend award of the Contract to NAI on his belief that NAI and MCI proposed to install "identical equipment," and that at least $1.1 million in additional revenue would be generated by the 3 percent higher commission rate offered by NAI over the three-year base term of the Contract. Although the February 22, 1995 Kronenberger memorandum states that the DOC could find no correlation between the proposed commission rates and equipment capabilities, the DOC officials who made the decision to award the Contract to NAI (Morris, Kronenberger and Thurber) performed no analysis of the proposals, did not complete a score sheet, did not talk with any of the members of the Evaluation Committee, and were unaware of the specific content of the bids and the proposed differences in staffing offered by the two bidders. In contrast to the assertion of the Kronenberger memorandum, the proof establishes a direct inverse correlation between the total average scores awarded by the Evaluation Committee to the top three bids and the commission rates offered in those bids. This inverse correlation proves that the bidders had to balance the cost of the hardware, software and support personnel aspects of their bids against the commission rate they could offer and that the cost of each hardware, software and support personnel aspect of a bid has a direct impact on the commission rate which could be offered. This balancing is precisely what is required by the ITB since all of these aspects of the bid were assigned specific weights in the specified evaluation scheme. Kronenberger's assumption, as set forth in his memorandum recommending award of the contract to NAI, that both NAI and MCI proposed to install identical "equipment" ignores the fundamental premise of the solicitation--that hardware, software and support were needed to provide a fully functioning, secure inmate phone system, as well as the fact that the vendors offered different approaches in responding to this requirement. System hardware proposed by MCI and NAI includes the Telequip System Automatic Call Processor ("ACP") 4000, a Dictaphone recording and monitoring system, and Philips & Brooks/Gladwin phone instruments. However, with regard to all aspects of the hardware offered, MCI's bid was more detailed and specific as compared with the NAI bid which generally identified system capabilities by referencing attached brochures. At best, NAI's bid is ambiguous as to whether it offered the same hardware component features. NAI's general references to the brochures in its bid failed to specify which features of a piece of equipment was being affirmatively offered. NAI's after-the-fact assertion at the final hearing regarding features to be provided cannot be credited since such constitutes an impermissible attempt to modify its bid after the bid opening. Software jointly developed by MCI and Telequip would permit operation of the attorney exception capability utilizing the Telequip ACP-4000 with the proposed Dictaphone recorder systems. Until MCI requested development of the necessary software, the attorney exception capability, which deactivates the automatic recording function when an inmate calls his or her attorney, was not available with the Telequip ACP-4000 when used in conjunction with the Dictaphone recorder. Software jointly developed by MCI and Telequip was also necessary to provide an international call capability because the standard Telequip ACP-4000 ordinarily utilizes a debit system to process international calls, and "the debit system is inherently incompatible with the PIN system and the allowed calling list feature that are requirements in the . . . ITB." The MCI bid offers more technological enhancements at no cost to the DOC, than does the NAI bid. Further, the items identified on MCI's list of technological enhancements do not appear anywhere on the face of the NAI bid. NAI's omission of the enhancements listed in the MCI bid adds further credence to the finding that the DOC had no reasonable basis to conclude that it would be getting those enhancements under the NAI bid at the time it was submitted. Moreover, the DOC's own synopsis of technological enhancements shows that it was aware of differences in the bids. Differences in the hardware, software and services offered in the MCI and NAI bids preclude a determination that the two bids offered "identical equipment." Monetary Considerations Revenue figures used by the DOC to project a $1.1 million difference in commissions were drawn from a period of time in late 1994 and early 1995 when the DOC's own summary reports indicate that NAI's billing exceptions range from 41 percent to 49 percent of all calls. Billing exceptions are the number of calls which exceed AT&T rates or could not otherwise be reviewed in monthly call detail reports. NAI's customer overcollections for telephone calls from inmates in the correctional facilities presently served by NAI provide an additional basis for uncertainty regarding the reliability of the projected $1.1 million difference in commissions. While the overcollections have not yet been quantified, NAI has admitted to the Florida Public Service Commission overcollections from customers receiving telephone calls from inmates under its current contract with the DOC in the amount of $394,318. Notwithstanding the ongoing PSC inquiry and reports of extensive billing exceptions under its existing contract with NAI, the DOC has no apparent incentive to closely scrutinize overcollections inasmuch as the more revenues billed by NAI, the greater the amount of commissions received by the DOC. Thus, while there is a 3 percent difference in the proposed commission rates between the two bidders, it cannot be determined from this record with any degree of certainty how that difference will translate into actual dollars to the DOC. In any event, the revenues generated by the contract for inmate pay telephones are placed in the Inmate Welfare Trust Fund, which does not support essential correctional facilities or services. Notice of Award and Protest On March 2, 1995, the DOC issued an intent to award the Contract to NAI. On March 8, 1995, within 72 hours of receipt of DOC's notice of intent, MCI timely filed a Notice of Protest. On March 20, 1995, within ten days of filing its Notice of Protest, MCI timely filed a Formal Written Protest pursuant to Section 120.53(5) and 120.57, Florida Statutes, and Rule 33-20.005, Florida Administrative Code. With its Formal Written Protest, MCI delivered to the DOC a cashier's check in the amount of $5,000. On April 10, 1995, the DOC served its Motion to Dismiss MCI's protest, alleging that MCI has no right to a formal administrative hearing on the award of the Contract. On April 12, 1995, the undersigned Hearing Officer, after consideration of the parties' pleadings and oral argument, ruled that MCI is entitled to a formal administrative hearing under Chapter 120, Florida Statutes, to determine whether the DOC's decision to award the contract to NAI was arbitrary, illegal, fraudulent, or dishonest. MCI has requested reasonable attorneys' fees and expenses pursuant to Section 120.57(1)(b)5, Florida Statutes, for costs incurred in responding to the DOC's Motion to Dismiss. The Hearing Officer has ruled on the motion by order issued concurrently with this recommended order.
Conclusions The Department adopts the Conclusions of Law contained in its Proposed Order, except for paragraph 189. The Hearing Officer's Conclusions of Law are also adopted, to the extent they do not conflict with the Department's. The following additional Conclusions of Law are now adopted into this Final Order. Service and personnel support were clearly part of the ITB, and were scored accordingly. Although Mr. Kronenberger considered service and support by recognizing the work already performed by Intervenor under its existing contract, sufficient consideration was not given for the $394,318 overcharge which Intervenor admitted to at the hearing. Since this overcharge was admitted to the Public Service Commission and not the Department, oversight is understandable. However, at this time the overcharge cannot be ignored. Certainly the significant amount of this overcharge has an impact on service provided. Although the Department still believes the equipment bid by Petitioner and Intervenor are "identical," service can no longer be considered the same due to the overcharge. Therefore, the award of the contract pursuant to the ITB should be made to Petitioner, MCI Telecommunications Corporation. RULING ON INTERVENOR'S EXCEPTIONS TO RECOMMENDED ORDER Intervenor's exceptions to paragraphs 46-50 of the Recommended Order are accepted by the Department and incorporated into this Final Order. Intervenor's exceptions to paragraph 51 are denied. Although the equipment are "identical," the Department does not, and did not at the hearing, maintain that the bids of Petitioner and Intervenor are identical in terms of support and service. Intervenor's exception to paragraph 70 of the Recommended Order is accepted by the Department and incorporated into this Final Order. Intervenor's exception to paragraph 71 of the Recommended Order is denied. The Hearing Officer is merely reciting the terms of the ITB, that service and support are also an important part of the bid. Mr. Kronenberger never denied the importance of service and support. Intervenor's exceptions to paragraphs 73-77 of the Recommended Order are accepted by the Department and incorporated into this Final Order. Intervenor's exceptions to paragraphs 79 and 81 of the Recommended Order are accepted by the Department and incorporated into this Final Order. Intervenor's exception to paragraph 80 of the Recommended Order is denied to the extent it rejects the finding of fact that Intervenor admitted to an overcharge of $394,318. Intervenor did admit this fact. Intervenor's exception to paragraph 82 of the Recommended Order is accepted by the Department and incorporated into this Final Order. RULINGS ON PETITIONER'S FILINGS No response is provided to the Petitioner's Response to Intervenor's Exceptions. There is no provision for filing such response under Chapter 120, and the Department is not required to respond to such pleadings. The Department has reviewed Petitioner's Request for Official Recognition and Enforcement of Ex Parte Communications Prohibitions. No Department employee who has testified or been deposed in this matter has discussed the merits of this action with the agency head. However, the Department does not agree with Petitioner's contention in its Request for Recognition that section 120.66, Florida Statutes, prohibits the agency head from conversing with the Department employees listed therein. This order may be appealed within thirty days by filing a notice of appeal with the agency and the district court of appeal. Except in cases of indigence, the court will require a filing fee and the agency will require payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.68, Florida Statutes, and the Florida Rules of Appellate Procedure. DONE AND ORDERED this 17 Day of July, 1995 in Tallahassee, Florida. HARRY K. SINGLETARY, JR, SECRETARY Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 (904) 488-2326 COPIES FURNISHED: Carloyn Raepple (via certified mail) Hopping Green Sams & Smith 123 South Calhoun Street Tallahassee, Florida 32314 Hume Coleman (via certified mail) Holland & Knight 315 South Calhoun Street Suite 600 Tallahassee, Florida 32302 Steven S. Ferst Department of Corrections Assistant General Counsel 2601 Blairstone Road Tallahassee, Florida 32399-2500 Mike Johnson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Don W. Davis, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed in the official records of the Department of Corrections on this 17th day of July, 1995. LORETTA L. LATSON, Agency Clerk
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered which declines the award to NAI and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of awarding the contract for hardware, software and support needed to provide a fully functioning, secure inmate telephone system. DONE AND ORDERED this 15th day of June, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-30. Adopted. 31.-32. Adopted in substance. 33.-49. Adopted. 50.-54. Adopted in substance. 55.-58. Adopted. 59-63. Adopted in substance. 64-70. Adopted. 71. Rejected, unnecessary to result reached. 72.-82. Adopted. 83. Rejected, unnecessary. 84.-85. Adopted. Adopted in substance. Rejected, unnecessary to result. 88-92. Adopted. 93. Incorporated. 94.-96. Subordinate to HO findings. Respondent's Proposed Findings: Adopted. Rejected, unnecessary. 3.-5. Adopted. Adopted, not verbatim. Adopted. Rejected, redundant. Adopted. 10.-12. Rejected, subordinate. 13.-17. Adopted. 18.-22. Rejected, argumentative and subordinate. 23. Rejected, unnecessary. 24.-25. Rejected, weight of the evidence. 26. Rejected, subordinate. 27.-35. Rejected, weight of the evidence. 36.-43. Rejected, argumentative, weight of the evidence. 44.-52. Rejected, redundant, argumentative, subordinate. 53.-54 Rejected, argumentative, subordinate to HO findings. 55.-58. Rejected,Relevancy, weight of the evidence. 59.-63. Rejected, subordinate, weight of the evidence. Accepted. Rejected,Relevance. Rejected, weight of the evidence. Rejected, stands for proposition that an agency is not bound by terms of ITB at all, argumentative. Rejected,Relevance. Rejected, argument. 70.-71. Rejected, weight of the evidence. 72.-76. Rejected, argument. 77.-78. Rejected, argument, weight of the evidence. Adopted. Rejected, subordinate, authority is to award within perimeters of legality and the ITB. Rejected, comment on testimony. 82.-83. Rejected, subordinate to HO findings. 84. Rejected, legal conclusion. 85.-89. Rejected, subordinate to HO findings. 90.-91. Rejected,Recitation of documents. 92.-95. Rejected, argumentative. Rejected, subordinate. Rejected, recitation of documents. Rejected, relevance. 99.-107. Rejected, subordinate to HO findings. Intervenor's Proposed Findings: 1.-10. Accepted, though not verbatim. 11. Rejected, no record citation. 12.-14. Rejected, subordinate to HO findings. 15. Adopted, not verbatim. 16.-21. Rejected, subordinate to HO findings. 22. Rejected, no record citation. 23.-24. Rejected, subordinate. 25. Rejected, no record citation. 26.-29. Rejected, subordinate to HO findings. Adopted by reference. Rejected, subordinate. 32.-40. Rejected, subordinate to HO findings. 41. Accepted except for last sentence which is rejected on basis of relevance. 42.-43. Rejected, subordinate to HO findings. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, FL 32301 Linda P. Armstrong, Esquire MCI Telecommunications Corporation 1133 19th Street, N.W. Washington, D.C. 20036 Steve Ferst, Esquire Florida Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Hume F. Coleman, Esquire Holland & Knight 315 South Calhoun Street Tallahassee, FL 32302 Harry K. Singletary, Jr., Sec. Dept. of Corrections 2601 Blairstone Rd. Tallahassee, FL 32399-2500 Louis A. Vargas, Esq. Dept. of Corrections 2601 Blairstone Rd. Tallahassee, FL 32399-2500
