The Issue Whether the Department of Health and Services acted fraudulently, arbitrarily, capriciously, illegally or dishonestly in issuing an award of bid or HRS Lease No. 590:2069 to Harpaul S. Ohri.
Findings Of Fact Sometime before March, 1989, the Department of Health and Rehabilitative Services (HRS) requested and received approval from the Department of General Services (DGS) for additional office space to provide social services in the western portion of Orlando, Orange County, Florida, including a food stamp distribution office. HRS was authorized to procure, through competitive bidding, a lease for 17,250 net rentable square feet of existing office space, plus or minus 3 percent. The said lease was to provide for a full service period of seven years and two options to renew for three years each at specified rates, with occupancy no later than December 1, 1989 or 175 days after the bid award is finalized. The geographic area designated in the bid package for the office space was limited to the following area of Orange County, Florida: Beginning at the intersection of Colonial Drive and Kirkman Road to the intersection of L.B. McLeod Road, then east on L.B. McLeod Road to the, intersection of Rio Grande Avenue then north on Rio Grande Avenue to the, intersection of Colombia Street,, then east on Colombia Street to Interstate 4, then north on Interstate 4 to the intersection of Colonial Drive, then west on Colonial Drive to the point of Beginning. Public notice that HRS was seeking competitive bids was given and HRS prepared a document entitled Invitation to Bid for Existing Office Space (ITB), which set forth in detail all of HRS requirements. The purpose of the ITB was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. Specific areas of importance to Respondent as reflected in the ITB and addressed by the evidence herein were as follows: 17,250 net rentable square feet (plus or minus 3 percent) of existing office space. General office use for use, as a client service center. Seven year term with two options to renew of three years each. 120 off-street, on-site, full size parking spots designated exclusively for use of Department employees and clients, suitably paved and lined, with a minimum of two for the handicapped. Availability of public transportation within reasonable proximity. Availability to adequate dining facilities within two miles. Photographs of the exterior front of the facility, along with documentation of present facility configuration and parking areas including access and egress to public roadways. Availability of elevator for multi-story use. i). Space requirement criteria: Minimum telephone requirements. Back-up interior emergency lighting. Three separate sets of rest rooms, male and female, one meeting the needs of the handicapped General security requirements. Specific security requirements for food stamp distribution center. Window covering over exterior widows to allow both sunlight and energy control; if bidded space without existing windows, then all rooms comprising the exterior of the building would require windows measuring approximately 24 x 36, all secured and inoperable. Full Service including all utilities and janitorial. The evaluation factors and their relative weights were stated in the ITB as follows: Evaluation Criteria The successful bid will be that one determined to be the lowest and best. All bids will be evaluated on the award factors enumerated below: Associated Fiscal Costs Rental rates for basic term of lease Evaluated using present value methodology by application of the present value discount rate of 8.69 percent. (Weighting: 25) Rental rates for optional renewal of terms of lease. Rates proposed are within projected budgeting restraints of the department. (Weighting: 10) Associated moving costs, i.e., furniture, equipment, telephone systems, etc,. (Weighting: 5) Location Proximity of offered space in central or preferred area of map boundaries. (Weighting: 10) Frequency and availability of satisfactory public transportation within proximity of the offered space. (Weighting: 10) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of the departmental operations planned for the requested space. (Weighting: 10) Facility Susceptibility of design of the space offered to efficient layout and good utilization. (Weighting 15) Provision of the aggregate square footage in a single building. Proposals will be con- sidered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. (Weighting: 10) TOTAL POSSIBLE 100 percent The bid package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Sealed bids were submitted by three bidders, Petitioner, Harpaul S. Ohri and Kensington Gardens Builders Corp. The bids were opened on April 25, 1989, and Ernie Wilson, HRS District 7 Facilities Services Manager, determined that all three bids were responsive, and within the mandatory geographical area designated in the bid package. The District Administrator appointed a bid evaluation committee to review and grade, the responsive bids under the criteria established in the bid package, and to recommend to him the committees choice of the lowest and best bid. Four individuals who were familiar with the type of work to be done in the proposed space and familiar with the bid process were appointed to the Committee. On or about May 1, 1990 the bid evaluation committee determined that the bid of Harpaul S. Ohri was the "lowest and best bid" and submitted its determination, in writing, to the District Administrator who, subsequently approved the selection. On or about June 26, 1989, on behalf of the Department, Ernie Wilson, Facilities Services Manager, notified the bidders of the Departments intent to award the bid to Harpaul S. Ohri, as being in the best interest of the Department. The bid evaluation committee consisted of four representatives of the Department who visited two of the three bidders sites and questioned the bidders representatives. The members of the committee were familiar with the Petitioners site from previous experience. They choose not to make an on-site visit prior to completing the bid evaluation sheet, although instructed to do so on the Evaluation Committee Duties and Responsibilities/Real Property, Leasing instruction sheet. Each committee member completed an evaluation sheet and gave a higher total score to Mr. Ohri. The three major bid evaluation criteria were Fiscal Cost, Location and Facility. Under the Fiscal Cost criterion were three sub-categories: Rental Rates, Renewal Rates, and Moving Costs. For Rental Rates, Petitioner received an average of 22.7 points out of 30 possible,, while Ohri received 21.7, and Kensington Gardens received 23.7 points. The points were individually assessed by the evaluation committee, after the rental rates were compared by Ernie Wilson based on the present value analysis of bidders proposed rates. For Renewal Rates, each of the bidders, including Petitioner, received 5 points out of 10 possible. The present value analysis was not applied, as was noted in the ITB. However, even a cursory examination of the renewal rates submitted by the bidders shows that there is a 15 percent to 33 percent yearly differential in the rates, with the Petitioners rates as the lowest and Kensington Gardens as the highest. Although the committee assigned all three bidders an equal rating, the renewal rates submitted by the bidders were not equal should the Department wish to exercise its options, the rates submitted by Petitioner were substantially lower than the other two bidders and would result in a cost savings to the Department of several hundred thousand of dollars. The award factor points should not have been awarded equally. For Moving Costs, Petitioner received 5 points on each of the committee members sheets, while Ohri received 4 points and Kensington Gardens received, an average of 3.7 points. The maximum points possible was 5 points. Petitioner was awarded the maximum points because HRS is presently in the same building and no moving costs would be experienced. The other two bidders were awarded 4 points each by committee members. That determination was based on each members personal experiences. No cost or time lost data was provided or requested. The LOCATION criterion also had three sub-categories: Proximity to other governmental agencies - 10 points - with all three bidders receiving the same rating; Public Transportation -10 points - with all three ,bidders, receiving the same rating; and Environmental Factors - 10 points - out of which Petitioner received an average of 5.7 points; Ohri - 9.7 points and Kensington Gardens - 6.5 points. In considering the proximity to other governmental agencies of each of the facilities being considered, the committee relied on their own knowledge of the area. They determined that since each was within the geographical area designated in the ITB, each was equally distant from the most frequently visited government agencies in the vicinity. However, Petitioners facility is the most centrally located of the three facilities offered, while the two other facilities were considerably distant from other government agencies. The award factor points should not have been awarded equally. For Public Transportation, the committee determined that local bus service went near each of the three facilities. They were neither provided, nor did they request, route maps, schedules or passenger capacity for buses servicing each facility. Petitioners facility is centralized in the area served within the bid district, and serviced by, numerous bus lines which pass near the facility ten times per hour. The bus service to the other two facilities are limited to four buses per hour, with buses having a smaller capacity. In addition, most clients would be required to travel to the central bus terminal and transfer to a different route in order, to reach the Ohri or Kensington Gardens facilities, making bus transportation a very time-consuming process. No other form of transportation is available, except for taxi service. In addition, in order for a client to walk from the nearest bus stop to the Ohri facility, a person would cross two heavily traveled six lane streets and then walk across an open shopping center parking lot. This would require approximately a fifteen minute walk. In order to reach Petitioners facility, a client would require approximately a five minute walk utilizing public sidewalks. The committee did not consider these facts in its evaluation. The award factor points should not have been awarded equally. (c)(1). For Environmental Factors, the committee considered each buildings physical characteristics and the surrounding area. The committee, in their letter to the District Administrator, dated May 1, 1989, identified this category as "a very critical area for the new lease." The letter also stated: "The committee took the following into account when evaluating this section: Cleanliness of the building aid surrounding areas. Lack of traffic congestion by motorized vehicles close to the facility. Easiness of getting to and from the facility by vehicle. Safety for clients and staff walking to and from the facility. Upkeep of the surrounding buildings or other sections of the bidders building." The following was also taken into account when evaluating this section, but was not so stated in the letter. At least one committee member believed the lack of window space in Petitioners facility was disabling to his bid, and that the willingness of the Ohri representative to install windows on exterior walls was a significant factor in her determination of award. At least one committee member indicated that future expansion was a substantial factor in her favoring the Ohri bid, and that there was janitorial and security problems at Petitioners facility. The committee received no other information other than the committee members opinion regarding the same. The committee as a whole erroneously believed that the extra square footage visible at the Ohri facility at the time of their inspection would necessarily be available to HRS if and when it might expand its offices. Future expansion was specifically removed from the ITB at the pre-bid conference and it was clearly erroneous for them to have included this factor in their bid evaluation. The ITB specifically calls for the installation of exterior windows by the winning bid prior to occupancy. However, none of the committee members reviewed the ITB or the actual bids submitted. They relied primarily on the synopsis of the bids prepared by Ernie Wilson. The ITB states substantial general and specific security requirements in detail; however, the evaluation criteria forms do not provide a category for evaluating security other than generally under the sub-category of environmental factors. The ITB, under General Specifications and Requirements, called for the availability of adequate dining facilities within two miles of the proposed facility. The evaluation criteria did not provide a category for the committee to rate dining facility availability. In consideration of the environmental factors, the committee overlooked or failed to consider a hazardous unfenced high voltage transmission station adjacent to the Ohri facility. In addition, the photographs submitted by Ohri as the front of the building (as required by the ITB) are in fact the rear of the building which was not offered as part of the proposed leased facility. Of the three sub-categories under FACILITY, out of 15 possible points, Petitioner received an average rating of 9.5, Ohri received an average of 13.7 and Kensington Gardens received 11.2 for Layout/Utilization. Ohri received the most points because his building configuration was a, shell and was more flexible and could be reconfigured for more efficient layout to suit the Departments needs. All three bidders submitted proposals wherein the total square footage of rentable space was to be contained in a Single Building. Therefore, all three bidders received the maximum 10 points. A maximum 5 points was provided for facilities with Street-level space. All three bidders were awarded the maximum 5 points. However, a portion of Petitioners space was offered on the second floor, a fact which the committee overlooked. The Petitioner should not have received the full 5 points for having street-level space. The unanimous recommendation of the evaluation was to award the lease to Ohri. In reaching that conclusion, the committee did not properly utilize the weighted bid criteria and, in addition, included improper bid considerations in their evaluation of the three facilities. Some of the reasons given by the committee for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. However, others were erroneous and improper.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for lease number 590:2069 and issue a new invitation to bid. DONE AND ENTERED this 12th day of February, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 12th day of February, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by the Petitioner: Accepted: paragraphs 1, 2, 3, 5, 6, 7, 9 (in substance, except for subparagraphs f, g, j and k which are not relevant), 10 (in substance), 12(a), (b), (f-in substance), (g-in substance), (h-in substance), (j), (k-in substance), (l-in substance), (p-in substance). Rejected: Not relevant: paragraphs 4, 12(c), (d), (e), (m), (n), (o), (p- the proposed future location of the Greyhound Station; insure wooded area nearby), (q), (r). Argument: paragraphs 11 and 13. Procedural matters, covered in the preliminary statement: paragraphs 8 and 14. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Terrence W. Ackert, Esquire 201 East Pine Street Suite 1402 Orlando, Florida James Sawyer, Jr., Esquire District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The first issue to be determined is whether the BOARD can reject all bids, with or without cause. The second issue is to determine if the BOARD is required to have cause, was there a sufficient basis for the rejection of all bids in Bid NO. 3996?
Findings Of Fact On December 14, 1987, the BOARD sent invitations to bid to a list of approved vendors in Bid NO. 3996. The purpose of the invitation was to obtain the lowest responsible bid on a purchase of one hundred and fifty typewriters. The bids were to be submitted prior to January 11, 1988 at 2:00 P.M.. They were opened by the BOARD on the same day. OFFICE did not receive an invitation to bid despite its request to be placed on the approved vendor's list in November of 1987. When OFFICE learned of the outstanding invitation to bid, its representative, Mr. Richard Foss, went to the BOARD's Purchasing Department and requested a bid package. The bid documents given to OFFICE mistakenly gave January 14, 1988 at 2:00 P.M. as the deadline for the bid submission. Because of the later date given by the BOARD to OFFICE, the company's bid was received after the opening of the bids. When the results of the bidding were made known at the public bid opening, NAPLES bid was the lowest received. On January 14, 1988, after 10:42 A.M., it was discovered by the BOARD that OFFICE's bid price was lower than the price submitted by NAPLES. At this time, NAPLES bid had not yet been accepted by the BOARD, and no formal announcement had been made awarding the contract to NAPLES. During the BOARD's Purchasing Department's bid analysis, a request was made to reject all bids in Bid NO. 3996. The reason given by Purchasing for the request for rejection was that the specifications were being revised. The bids were rejected on the same date. The written reason sent to the vendors on January 14, 1988 for the bid rejection was that one vendor had been given an incorrect opening date. Attached to the written notice to the vendors was a new bid invitation for Bid NO. 4013. The BOARD explained its mistake was unfair to the one vendor. A new bid opening date was given of February 1, 1988. On January 14, 1988, in addition to the required bid documents, OFFICE submitted a letter which listed additional offerings or incentives that OFFICE would give the BOARD if OFFICE was awarded the contract. These additional purchasing incentives were: wall charts and teacher/student manuals for each typing classroom in the county. OFFICE also informed the BOARD that one of the BOARD's own service personnel was already trained in the servicing of Swintec typewriters. The bid submitted by OFFICE did not meet either the weight or the print wheel specifications as set forth in Bid NO. 3996. The specifications as written in Bid NO. 3996 were not written to eliminate all other typewriters but the Brothers 511-11. Weight specifications required were below the Brother's minimum weight, and at least two other manufacturers provide protected drop-in cassette print wheels in electronic typewriters. The Invitation to Bid contained specific provisions which encouraged the bidding of typewriters other than the Brother 511-11, and set up procedures under which other typewriters, which substantially meet the specifications, could be reviewed on their merits. NAPLES was the lowest responsible bidder for the electronic typewriter contract in the prior school year. The BOARD had rejected all bids at that time because of the decision to consider a different brand of typewriter once bids were opened. A notice of protest was filed by NAPLES, and the BOARD agreed to honor NAPLES bid and award the company the contract. The BOARD revised its bid specifications from last year prior to its solicitations for bids in Bid NO. 3996. The protected drop-in cassette print wheel and the weight requirements were two new technical specifications. During the hearing, the BOARD was unable to determine whether the weight factor or the protected drop-in cassette print wheel requirement will continue to be included in future revisions of the specifications.
Recommendation Based on the foregoing, it is RECOMMENDED: That the BOARD reject the bid submitted by OFFICE as it was nonconforming and sought an advantage not enjoyed by the other bidders. Reinstate the bids which were rejected in Bid NO. 3996, consider the bids, and make an award of the contract to NAPLES. DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida. VERONICA D. DONNELLY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988. COPIES FURNISHED: Stephen Emens, President Naples Business Equipment and Systems, Inc. 859 4th Avenue South Naples, Florida 33940 Harry A. Blair, Esquire 2138-40 Hoople Street Ft. Myers, Florida 33901 Richard Foss, Typewriter Sales Manager 8A-Del Prado Boulevard Cape Coral, Florida 33904 Karl Engel, Superintendent Lee County Public Schools The School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901
Findings Of Fact Respondent issued an invitation to bid on March 13, 1992. Bid number SB 92-244I involved the disassembly and removal of an existing walk-in freezer and the furnishing and installation of a new walk-in freezer at Coral Sunset Elementary School. The invitations to bid provided in paragraph Y of the Special Conditions: Failure to file a specification protest within the time prescribed in Florida Statutes 120.53 3.(b) shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (sic) Bid specifications were included in the invitations to bid issued on March 13, 1992. Twenty-three bids were solicited. There were five responses. One of the responses was submitted by Choice Restaurant Equipment, Inc. ("Choice"). Choice is a vendor for equipment manufactured by Petitioner, Nor-Lake, Inc. ("Nor-Lake"). Nor-Lake is an out-of-state corporation with manufacturer's representatives in numerous states including Florida. 4, Petitioner, CHD Marketing Group ("CHD"), is the manufacturer's representative for Nor-Lake in Florida. CHD represents no other manufacturer of the product included in the bid response. Choice is a sales agent for CHD and other manufacturer's representatives in Florida. Choice sells the products of a variety of manufacturers but is the exclusive sales agent for CHD pursuant to a verbal agency agreement. Choice timely submitted a bid for bid number SB 92-244I on April 8, 1992, prior to the bid deadline of 2:00 p.m. on the same day. The successful bidder submitted its bid by Federal Express at 4:51 p.m on April 8, 1992. Respondent's Department of Purchasing and Stores (the "Department") had stated on March 13, 1992, when the invitations to bid were issued, that bid responses must be received by the Department no later than 2:00 p.m. on April 8, 1992, at the Department's address at 3980 RCA Boulevard/Suite 8044, Palm Beach Gardens, Florida, 33410-4276. Prior to April 8, 1992, the Department relocated to a new facility at 3326 Forest Hill Boulevard, West Palm Beach, Florida. The new address was posted at the old location and Department representatives were present at the old address to accept walk-in bids. Federal Express first attempted to deliver the successful bid at the Department's old address at 10:30 a.m. on April 8, 1992. Federal Express delivered the successful bid to the Department's new address at 4:51 p.m. At 2:00 p.m. on the same day, The Department announced that all bids were in and opened the bids that had been delivered. The successful bid and one other bid were delivered on April 8, 1992, after the public opening conducted at 2:00 p.m. on the same day. Bids were tabulated on April 9, 1992. Bid tabulations were posted on April 13, 1992, and the successful bid was announced. The successful bid was for $8,174.00. Three bids were lower than the successful bid. Choice's bid was for $7,742.56. The other two lower bids were for $8,020.00 and $6,620.00. All three lower bids were rejected as non- responsive. Choice's bid was rejected because it did not meet bid specifications for 22 gauge steel, thermostatically controlled door heaters, and reinforced steel door panels. CHD filed a Notice of Protest on April 14, 1992, and a Formal Written Protest on April 24, 1992. CHD's protest alleges that: Choice's bid was lower than that of the successful bidder; the successful bid was not timely made; the bids were not opened publicly in violation of bidding procedure requirements; and the bid specifications were arbitrary and capricious, favored one bidder, and that Choice's bid was responsive. Neither a notice of protest nor a formal written protest was submitted by Choice or Nor-Lake. Neither Choice nor Nor-Lake attended the informal protest conference conducted on April 30, 1992. On May 7, 1992, Respondent's Office of General Counsel issued its written notice of proposed agency action. The written notice recommended that the bid be awarded to the successful bidder and that CHD's protest be dismissed for lack of standing. CHD requested a formal hearing on May 14, 1992, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 15, 1992. The bid submitted by Choice was prepared by CHD but signed by the president of Choice. Neither Nor-Lake nor CHD signed a bid or were otherwise bidders of record for bid number SB 92-244I. Neither Choice, CHD, nor Nor-Lake, filed a notice of protest concerning the bid specifications within 72 hours after Choice received the notice of the project plans and specifications on March 13, 1992. The sole basis upon which CHD claims it is substantially affected is the adverse economic impact caused to it by the proposed agency action. The proposed agency action will result in lost sales from this and future transactions. CHD will lose commissions from this and future transactions. The dealer relationship between CHD and Choice will be damaged because Choice will not want to sell a freezer that is not acceptable to Respondent. The marketing strategy developed between CHD and Nor-Lake will be damaged because it is conditioned upon the award of public contracts.
The Issue The issues presented for determination at the hearing are as follows: 1/ Whether respondent Department of Transportation (D.O.T.) abused its discretion or acted in bad faith, arbitrarily, capriciously, or under a misconception of law in rejecting all bids received on the subject project on December 21, 1977. Whether the decision of the respondent D.O.T. to reject all bids was made in violation of Florida's Government in the Sunshine Law, F.S. s286.011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By a "notice to contractors" dated November 24, 1977, the respondent D.O.T. advertised that it would receive bids on December 21, 1977, from qualified contractors for various construction and maintenance programs. The project which is the subject of this proceeding was contained in this notice, identified as "Gadsden County: Federal Aid Project No. I-10-3(31)157 Contract II (Job No. 50001-3423) SR 8 (I-10)." This project involved the paving of a certain stretch of Interstate Highway 10 in Gadsden County, which stretch was the last remaining unopen portion of I-10. In addition to a short summary of the contents of the project the notice on this project contained the following language which was underlined and capitalized in the notice: NOTE: A PRE-BID CONFERENCE ON THIS PROJECT WILL BE HELD ON WEDNESDAY, DECEMBER 14, 1977, AT 10:00 A.M. IN ROOM 301 OF THE HAYDON BURNS BUILDING, 605 SUWANNEE STREET, TALLAHASSEE, FLORIDA. ALL POTENTIAL BIDDERS WILL BE RE- QUIRED TO ATTEND. NOTE: ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT. Mr. Henry Eugene Cowger, deputy state construction engineer for the D.O.T., made the initial decision to require attendance at a prebid conference for this project, although he himself did not draft the language used in the notice. Cowger felt that a prebid conference would be valuable to bidders and the Department due to the uniqueness of this particular project with regard to the requirements concerning maintenance of traffic and work progress. More specifically, the contract called for a close working relationship and cooperation with the first stage contractor on this stretch of road. The first stage contractor is respondent/intervenor White. Also, it was anticipated that the project would be opened in sections with unusual traffic requirements so that the entire project could be utilized in a limited fashion. Mr. Cowger instructed William F. Ray, the Department's area construction engineer, to arrange for and conduct the prebid conference. No specific instructions were given to Mr. Ray as to which provisions of the contract were to be discussed at the conference. Cowger felt that Ray was knowledgeable with the project and therefore that he needed no instructions. The prebid conference was held as scheduled on December 14, 1977. Representatives of six different construction companies attended, including a representative from respondent White Construction Company. Through neglect or oversight, petitioner Couch did not attend the conference. A memorandum to the file from Mr. Ray indicates that the following occurred at the conference: A statement was made at the beginning of the meeting by W. F. Ray that nothing said by any person at the meeting would change or modify any part of the contract documents. Certain portions of the special Provisions per- taining to maintenance of traffic and limitations of work areas were read and discussed. It was agreed by those present that the intent of these Specials Provisions was clear and under- standable. Mr. McRae of H.D.W. stated that the unknown delay times built into this project would result in much higher than normal bids and his company would probably not enter a bid. After a short discussion of the terms of the contract, the meeting was adjourned. The conference lasted from thirty to forty-five minutes. At the hearing, Mr. Ray related the questions he could remember which were asked by the contractors. It was admitted that virtually all of the provisions and expectations, unique or otherwise, were fully spelled out in the contract documents. Most of the inquiries at the conference related to the absorption of certain maintenance and traffic costs and responsibilities between the contractor and the D.O.T. In each instance, it was disclosed that the D.O.T. would be responsible for these unless the contract specifically provided otherwise. Questions regarding the sequence of operations and the phasing of the work with the first stage contractor were not specifically answered by D.O.T. representatives. Of the three contractors who submitted bids on the subject project on December 21, 1977, only respondent/intervenor White had attended the December 14th rebid conference. Joseph F. Villadsen, petitioner's engineering division vice president, had visited the site of the project and had studied the contract provisions, which appeared clear to him. In numerical order, the bids submitted on December 21, 1977, were as follows: $1,410,730.72 - - petitioner Couch $1,514,272.63 - - respondent/intervenor White $1,579,168.72 - - Contee Sand and Gravel Company, Inc. The respondent has an Awards Committee composed of five executives from the D.O.T. This Committee generally meets once a month to review bids and make a recommendation to respondent's Secretary on the award of contracts for some thirty-five to fifty projects per month. Although Secretary Webb has the authority to make an independent decision and/or to reject the recommendations of the Awards Committee with regard to the acceptance of bids, he could not recall ever having done so. On the afternoon of December 21, 1977, the same day as the bids were received, Mr. Jay Brown, respondent's director of road operations and chairman of the Awards Committee, learned from two representatives of White that the apparent low bidder, petitioner Couch, had not attended the prebid conference. He thereupon called together those members of the Awards Committee who were in the building at that time to discuss what should be done. Brown also counseled with P.E. Carpenter, the division administrator for the Federal Highway Administration, to determine the extent of the federal participation in funding if a bid other than the low bid were accepted. Awards Committee members Brown, Sill Ekey, Peter J. White and Willis Armstrong met on December 21 and 22, 1977. In reaching a determination as to their recommendation to the Secretary, the committee members considered three alternatives -- awarding the contract to Couch as the apparent low bidder, awarding the contract to White as the next lowest bidder and as the only bidder who attended the prebid conference or rejecting all bids received and readvertising for new bids. Each alternative was considered a viable one by the committee members. Although the members felt that the requirement of attendance at a prebid conference was a reasonable requirement due to the uniqueness of the project, no inquiry was made as to what actually transpired at the conference. Nor was any inquiry made as to a reason for petitioner's nonattendance. It was the unanimous decision of those Committee members present that it would best serve the interests of the State to reject all bids and proceed to readvertise. This decision to recommend rejection and readvertisement was based upon several reasons. The prime consideration was that this project involved the last remaining unopen link in Interstate Highway 10 and time was of the essence. It was felt that if the contract were awarded to Couch or to White, there would be litigation causing delay to the completion of Interstate 10. The Committee members were also concerned with the significant amount of difference between the bids of Couch and White. Rejecting all bids appeared to the Committee members to be the "cleaner" way to go. Mr. Brown testified that the D.O.T. does not generally accept the bid where only one bid is received. Here the apparent low bidder and the highest bidder were considered irregular for failure to attend the prebid conference. Thus, the Department was left with only one bid. Through Mr. Brown, Secretary Thomas Webb, Jr., was telephonically notified of the recommendation of the Awards Committee. Mr. Webb concurred with the Committee's recommendation because he was concerned with a possible delay to the project due to litigation were the bid to be awarded to either Couch or to White. Thereafter, the bidders were notified by telegram that all bids on the project had been rejected due to the failure of the low bidder to attend the prebid conference, and that the project would be readvertised. On December 29, 1977, Couch filed a "complaint" with the D.O.T. requesting a hearing pursuant to F.S. s120.57 on the issue of whether the D.O.T. lawfully rejected Couch's bid on the subject project. By Order dated January 9, 1978, Secretary Webb denied Couch's request for a hearing. This denial was appealed by Couch to the District Court of Appeal, First District, and White Construction Company was made a party to that proceeding. After numerous motions were filed and oral argument was had, the District Court, by Order dated February 24, 1978, relinquished jurisdiction for a period of sixty days and remanded the case to the D.O.T. for the purpose of providing Couch a s120.57(1) hearing. The District Court stayed the D.O.T. from awarding the contract for the subject project. Prior to the Orders of the District Court, the D.O.T. readvertised the project, calling for a prebid conference on January 11, 1978, and the receipt of bids on January 12, 1978. This time, attendance at the conference was announced to be "expected," rather than "required." At the hearing, the D.O.T. divulged that attendance at prebid conferences would no longer be required or mandatory in order to avoid the problem inherent in the instant proceeding. Both Couch and White attended the January 11th prebid conference and submitted bids on January 12th. Couch's bid was identical to its December 21, 1977, bid. White submitted a bid approximately $40,000.00 below the bid of Couch. The D.O.T. receives bids on approximately 420 to 550 construction projects a year. During the past ten years, only seven other prebid conferences with required attendance have been held. In those instances, the language contained in the notice was different from the language used in the subject notice. On three occasions the language used was: "ALL PROSPECTIVE BIDDERS MUST ATTEND THIS PRE-BID CONFERENCE AS BIDDING DOCUMENTS WILL NOT BE ISSUED TO CONTRACTORS WHO HAVE NOT BEEN PROPERLY REPRESENTED AT THIS MEETING." On three occasions the language was: "ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO BID ON THIS PROJECT.? On one occasion the language was: "ATTENDANCE WILL BE MANDATORY FOR THOSE INTENDING TO SUBMIT A BID ON THIS PROJECT." The situation where the apparent low bidder has not attended a required prebid conference has never before arisen.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the D.O.T.`s decision to reject all bids and readvertise the subject project be affirmed and upheld. Respectfully submitted and entered this 24th of April, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact During March 1988, the Respondent issued an Invitation to Bid by which it sought to lease 17,973 net usable square feet of office space to be located within a specified geographic area in Tampa, Florida, under a nine year lease with two additional three year option periods. This Invitation to Bid is referred to as Lease Number 590:1927. Three bids were received in response to the Invitation to Bid, and they were opened on May 13, 1988. Bids were received from the Petitioner, 8900 Centre, Ltd., and the Allen Morris Management Company. All bidders were determined to be responsive to the Invitation to Bid. Despite the fact that petitioner submitted the lowest bid, Respondent notified Petitioner by letter dated June 10, 1988, of its intent to award Lease Number 590:1927 to 8900 Centre, Ltd., as the lowest and best bidder. Petitioner has timely filed its protest seeking review of that decision. It is undisputed that Petitioner submitted the lowest bid. For the first year of the lease, Petitioner bid $7.85 per square foot, while 8900 Centre bid $7.95 per square foot. Thereafter, Petitioner proposed a yearly increase of 50 cents per square foot, reaching $11.85 per square foot in the ninth year of the lease, while 8900 Centre proposed annual increases of approximately 75 cents, reaching $14.00 per square foot in the ninth year. This equates to an actual dollar difference over the nine year term of approximately 185,000. However, using a present value methodology and a present value discount rate of 8.81 percent referred to on page 17 of the bid submittal form, the present value difference in these two bids is approximately $1,000 per month, which would result in a present value difference between Petitioner and 8900 Centre of approximately $108,000 over the nine year period. Neither the Invitation to Bid, bid specifications, nor the actual bids were offered into evidence. One page of the bid submittal form, designated as page 17 of 18, was offered and received in evidence. This portion of the bid submittal form states that the "successful bid will be that one determined to be the lowest and best." It also sets forth evaluation criteria, and assigns weights to each criteria. The evaluation criteria include associated fiscal costs (35 points), location (40 points) and facility factors (25 points) . A synopsis of bids was also offered and received in evidence showing the points awarded to each bidder by the Respondent's bid evaluation committed. Out of a possible 100 points, 8900 Centre received 95.17 points, while Petitioner received 82.25 points and the Allen Morris Management Company received 70.67 points. Petitioner asserts that the members of the evaluation committee were not qualified or knowledgeable in basic construction, design and engineering principles, and therefore could not competently evaluate the bids submitted. However, Petitioner did not offer competent substantial evidence to support this contention. Only the chairperson of the committee, Susan Jennings, was called to testify, and she appeared thoroughly knowledgeable in the bid process, the needs of the agency, the bid requirements and the representations made to the committee members by each bidder, including Petitioner, when the committee made its site visit to each location. Since the actual Invitation to Bid, bid specifications, and evidence about the other committee members were not introduced, it is not possible to know what the specific duties of the committee were, how they were to carry out their duties their qualifications and training, and whether they failed to competently carry out these duties, as alleged by Petitioner. Despite Petitioner's lower bid, Respondent awarded this lease to 8900 Centre, Ltd., based upon the evaluation committee's determination assigning 8900 Centre the highest number of evaluation points. Out of a possible 35 points for fiscal costs, Petitioner received 34 and 8900 Centre received 31.5. Thus, Petitioner's status as low bidder is reflected in the points awarded by the committee. Since neither the bid invitation or specifications were introduced, no finding can be made as to whether the difference between these two bidders comports with any instructions or directions provided by the agency to potential bidders, or whether this difference of 2.5 points on this criteria reasonably reflects and accounts for the dollar difference in these two bids. Petitioner received 34.75 points out of a possible 40 points on the general evaluation criteria "location," while 8900 Centre received the full 40 points. Within this criteria, there were three subcategories, and on the first two subcategories (central area and public transportation) there was an insignificant difference of less than one-half point between Petitioner and 8900 Centre. The major difference between these two bidders which accounts for their significant difference on the location criteria, was in the subcategory of environmental factors, in which Petitioner received 15.17 points and 8900 Centre received the full 20 points. Petitioner did not present competent substantial evidence to discredit or refute the committee's evaluation in the subcategory of environmental factors. To the contrary, the only testimony from a committee member was that of Susan Jennings, and according to her, Petitioner failed to explain the availability of individual air conditioning and heating controls, or the possibility of separate program entrances, which could be made available under its bid. Although Petitioner sought to explain at hearing that these desires of the agency could be accommodated in its bid, there is no evidence that such an explanation was provided in its bid or during the bid process when the evaluation committee visited the Petitioner's site. The committee was aware, however, that 8900 Centre would provide individual heating and air conditioning controls, as well as separate outside entrances for the three programs which would occupy the leased space. Additionally, the committee was concerned, according to Jennings, that parking areas at Petitioner's facility were more remote and removed from the building entrance than at 8900 Centre, and were somewhat obscured by trees and shrubbery, thereby presenting a potential safety concern for employees working after dark. Finally, every employee would either have a window or window access at 8900 Centre, while it was not explained that Petitioner's site would offer a similar feature. Thus, Petitioner failed to establish that the evaluation committee erred in assigning a significantly greater number of points for environmental factors to 8900 Centre than to Petitioner. The evidence reflects a reasonable basis for this difference. The other significant difference between these two bidders was in the subcategory for layout and utilization under the evaluation criteria "facility." Petitioner received 13.67 points while 8900 Centre received a full 20 points. Jennings explained that the separate outside entrances leading directly into the three programs that would occupy this space was preferred to a single reception area for all three programs. Petitioner offered the single reception area in its bid and site visit presentation, while 8900 Centre made it clear that each program would have its own entrance. Since these programs do not have a receptionist position, and none wanted to give up a secretarial position to serve as receptionist for all three programs, the committee did not consider the single reception area entrance to be desirable. Additionally, Petitioner's facility was a two-story building, while 8900 Centre is a single story facility. Jennings explained that the committee considered a ground level facility to be preferable to a two story building, particularly since the Medicaid program was to occupy the major portion of this space. The Medicaid program would have to be split up at Petitioner's facility, either in two separate buildings or on two levels of the same building, while at 8900 Centre, Medicaid could be accommodated in one, single story building, with the other two programs in a second, single story building. Finally, parking at 8900 Centre was directly next to, and outside the entrance of the building, while Petitioner offered to make assigned spaces available in a general parking area which serves its entire 100,000 square foot complex. The parking offered by Petitioner is more remote than that offered by 8900 Centre, and would be less secure at night due to a greater distance from the building entrances and the parking lot. Thus, Petitioner failed to establish that the committee erred in assigning a significantly greater number of points for layout and utilization to 8900 Centre than to Petitioner. There is a reasonable basis for this difference, according to the evidence in the record.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's protest to Lease Number 590:1927. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of December 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December 1988. APPENDIX (DOAH Case Number 88-3765 BID) Rulings on Petitioner's Proposed Findings of Fact: Adopted, in part, in Finding of Fact 1, but Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Adopted in Finding of Fact 5. 3-5. Adopted in Finding of Fact 4, but Rejected in 7. 6-7. Rejected in Finding of Fact 8. Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Rejected in Findings of Fact 9 and 10, and otherwise as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact: Adopted in part in Finding of Fact 1, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 4. 3-4. Adopted in part in Findings of Fact 5 and 6, but otherwise rejected as not based on competent substantial evidence in the record of this case. Adopted In Findings of Fact 5, 7-10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary since the point difference in this subcategory is insignificant. Adopted in Finding of Fact 9. 11-12. Adopted in Finding of fact 10. COPIES FURNISHED: Michael V. Giordano, Esquire 7821 North Dale Mabry Suite 100 Tampa, Florida 33614 Jack Farley, Esquire W. T. Edwards Facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Introduction In February, 1988 respondent, Department of Revenue (DOR), issued a Request for Proposal and Bid Proposal Submittal Form (RFP) inviting qualified and interested vendors to submit proposals for providing approximately 19,300 square fee of office space in the central area of Broward County for DOR's district office. The contract was identified as Lease Bid No. 730-0083. The space was to be made available on July 1, 1988 or 30 days after the bid was awarded, whichever was later. According to the RFP, the term of the lease was five years with an option to renew for a second five year period. Sealed bids were to be filed in Tallahassee no later than 2:00 p.m. on May 2, 1988. The RFP scheduled a "preproposal conference" on April 4, 1988 at DOR's district office. It stated further, that any questions concerning the specifications should be directed to Thomas D. Cooper, DOR's assistant director of administration. Under DOR's bidding process, a four person evaluation committee made up of DOR district employees was assigned the responsibility of reviewing all bids and inspecting the proposed office sites. Using twelve prescribed evaluation criteria, one of which was the rental rate, the committee assigned numerical scores to the top seven bids. Its report was then forwarded to Tallahassee as a nonbinding recommendation. There, the assistant director of administration was charged with the responsibility of reviewing the committee's recommendations and to make a further recommendation to the executive director. As always, the final decision rested with DOR's then acting executive director, Sam D. Alexander. It was DOR's intention to ultimately award the contract to the vendor submitting the lowest and best proposal. Fifteen proposals were timely filed by various vendors, including petitioners, Intercontinental Properties, Inc. (Intercontinental) and Nu-West Florida, Inc. (Nu-West) , and intervenor, 241 East 76th Street Company d/b/a Fountains of Plantation (Plantation). After reviewing the proposals and office sites, the DOR evaluation committee assigned the following numerical scores to the top three bidders: Intercontinental-87 percent; Nu-West - 87 percent, and Plantation - 85 percent. However, it recommended that the bid not be awarded to Intercontinental because of its unfavorable site location and because no local government permits had been obtained to construct a drive-through facility. The committee characterized Nu-West's proposal as a "class operation" and noted that 1the committee is unanimous in it's (sic) recommendation that Nu-West Florida Inc.'s bid offers more for the Department when all factors are considered." Finally, the committee criticized Plantation's site location and anticipated delays in remodeling its building. This evaluation was forwarded to DOR's acting executive director on May 17, 1988. On Wednesday, June 1, 1988 DOR's assistant purchasing director, Barbie Foster, gave telephonic notice to all bidders that the contract would be awarded to Intercontinental and that other bidders had 72 hours in which to file a protest. At 11:30 a.m. that same day, DOR posted a "bid tabulation sheet" reflecting the unit cost (per square foot) of office space submitted by twelve vendors and recommending that the contract be awarded to Intercontinental. The tabulation sheet indicated also that unless the parties "file(d) a protest within the time prescribed in section 120.53(5), Florida Statutes," they waived their right to a hearing under chapter 120. Nu-West filed its protest on June 3, 1988. By June 6, two other protests had been filed, including that of Plantation. On June 9, 1988 DOR issued its first written advice on the subject to the parties. The advice, which was in the form of a letter from Foster to the president of Intercontinental, read as follows: This letter is to notify you that as of 11:30 A.M., June 6, 1988, the Department has received three (3) letters of Intent to protest the recommended contract submitted for office space in Ft. Lauderdale, Bid No.: 87/88-238. Enclosed please find copies of the (3) letters submitted. As you are aware, the awarding process on this lease is now at a stand still until the protests are resolved. The Department's legal counsel will be in touch with you in the very near future. Should you wish to contact Mr. Bill Townsend, Director of Technical Assistance, please feel free to do so, he can be reached at (904) 488-0712. A settlement conference was held in Fort Lauderdale on June 17 in an effort to informally resolve the matter. At that time, or shortly thereafter, DOR learned that the proposals of Intercontinental and Nu-West allegedly did not conform to specifications. On June 22, 1988 DOR issued its second notice of intent to award the contract and advised all vendors that the contract was being awarded to Plantation, the third ranked vendor, and that the proposals of Intercontinental and Nu-West were rejected as being nonresponsive. Such notice was in the form of a letter to each bidder advising the name of the successful bidder, giving a short summation of the reason why a particular vendor had been rejected and offering a clear point of entry to a formal hearing. In the case of Intercontinental, DOR advised that Intercontinental's bid was "non- responsive" since it failed "to comply with paragraph D4A, p. 14," it was "not the owner of record of the subject project," and it had not furnished its "authority to offer the facility." As to Nu-West, DOR found its bid "nonresponsive in the requirement of two drive-in stations as set forth in paragraph B14D, p. 14 of the Request for Proposal" because Nu-West had "indicated (it) would provide only one window and a drop box." These letters prompted the filing of formal protests by petitioners. Bid Requirements Pertinent to this controversy are two items in the RFP which formed the basis for DOR's rejection of petitioners' bids. First, Item B14 sets forth various miscellaneous requirements imposed on the bidder. Paragraph D. of that item provided as follows: The Department requires a drive-through teller facility similar to banking and savings and loan institutions. This may be located within the office or may be connected to the office by a pneumatic tube system (minimum of two stations required) (Emphasis added) This item was required because of a recently instituted DOR policy that all district offices have drive-in facilities for taxpayers. As old office buildings are vacated and new ones occupied, DOR requires that the new landlord provide teller facilities. At present, only three district offices in the state (Miami, Tampa and Tallahassee) have teller facilities but DOR plans eventually to install such facilities at all district offices. In this case, DOR envisioned a facility that would be similar to a small banking facility with two work stations that could handle two taxpayers simultaneously. It was necessary that teller facilities be provided since taxpayers often submit money and documentation and pose questions that must be answered by the tellers. As an alternative to two teller stations, DOR considered accepting one teller station and a drop box connected by a pneumatic tube to the main building. However, the use of a drop box without a pneumatic tube was unacceptable since DOR would "lose control" over deposits and lack the necessary security for handling taxpayer money. This item was considered to be material by the agency. Secondly, Item D.4.A. provided that: 4.A. Each proposal shall be signed by the owner(s) , corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility; i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids. If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submittal. (Emphasis added) The purpose of this item was to give DOR proof that the bidder was authorized to act for the property owner, or, if the bidder was not an agent, to give DOR written assurance that the bidder had an option to purchase, leasehold interest or some other form of interest in the subject property. This was because DOR could not be expected to sign a lease if it was unsure whether it would have the legal right to occupy the property. DOR considered this item to be a material item within the specifications. The first page of the RFP contained the following admonition to bidders: It is the bidder's responsibility to be familiar with all aspects of the bid package outlined below and attached hereto. Finally, page 14 of the RFP contained the following certification to be executed by the bidder when the bid was filed: I hereby certify as owner, officer, or authorized agent, that I have read the request for proposal package and all its attachments and acknowledge my understanding of and agreement to abide by all requirements and conditions contained therein. Intercontinental's Bid Intercontinental was not the owner of the property that was offered to DOR in Intercontinental's bid submission. This was confirmed at hearing by Intercontinental's leasing agent, Nestor Mendoza. According to Mendoza, the property was owned by a partnership using the name "441 South Partnership" but was leased to Intercontinental prior to the bid being submitted. Intercontinental filed its bid in Tallahassee on May 2, 1988. The certification on page 14 of Intercontinental's submission was signed in the following manner: Intercontinental Properties, Inc. Bidder's Name (typewritten) 59-1508950 Bidder's F.E.I.D. or S.S. Number (Illegible) Authorized Signature (manual)(Seal) Caroline Weiss Authorized Signature (typewritten) President Title (typewritten) Notwithstanding the requirement in item D.4.A., there was no documentation attached to Intercontinental's proposal reflecting that Intercontinental had authorization from the true owner to submit a bid or that it had a legal interest in the property. Therefore, DOR assumed that Intercontinental was the legal owner of the property. According to Mendoza, he carried documentation to Tallahassee on May 2 confirming Intercontinental's interest in the property but did not attach it to the proposal because he was under the impression that such documentation was necessary only if Intercontinental was "acting as an agent." Even though this "impression" was contrary to the requirements of the specifications, Mendoza maintained that he understood all RFP requirements. Mendoza was elated after receiving a telephone call on June 1, 1988 from Foster, who advised that Intercontinental had received the award. He was told also that, unless protests were filed within 72 hours, the firm would win the contract. In giving its preliminary intent to award the bid to Intercontinental, DOR overrode its committee's contrary recommendation. After a closer examination of Intercontinental's submission was made, DOR learned that, while Caroline Weiss, Intercontinental's president, had executed the bid submission, Intercontinental was not the legal owner of the property that was described in the proposal. DOR noted also that there was no documentation attached to the proposal, as required by item D.4.A. At a settlement conference held on June 17, 1988 Intercontinental maintained it had a leasehold interest in the property but declined, for whatever reason, to give DOR representatives any proof of this assertion. Because of this, DOR concluded properly that Intercontinental's bid was nonresponsive. During final hearing, Mendoza pointed out that, prior to the bid being submitted, DOR representatives had never questioned him concerning who was the true owner of the property and that he never made representations that Intercontinental owned the property. Intercontinental twice attempted to offer into evidence at hearing what purported to be a copy of a lease agreement in which Intercontinental had leased the property in question from another party. However, the document was never properly authenticated. Even if it had been authenticated, it was too late for Intercontinental to modify its bid submission since the documentation was required with Intercontinental's original submission filed on May 2, 1988. Nu-West's Bid Nu-West first learned of DOR's interest in new office space in February, 1988. After obtaining an RFP, Philip Saia, Nu-West's director of marketing and leasing, telephoned DOR's assistant director of administration to get clarification on several items in the specifications. Saia was told by Cooper to attend a prebid conference on April 4, 1988 in Fort Lauderdale. Also, he was told to telephone John Driggers, the author of the RFP and a district employee. Saia telephoned Driggers and was advised that all questions would be answered at the conference on April 4. Early on the morning of April 4, Saia met with Driggers and Bernard Fox, DOR district administrator, to discuss the item relating to the drive-through tellers and to show them Nu-West's facility. Saia's concern was that, due to space limitations and the cost of a pneumatic tube system, Nu-West would be priced "out of the ballpark" and would be unable to submit a bid. The three discussed other alternatives but reached no agreement. Driggers denied telling Saia that his proposal would comply with specifications but conceded he "probably led them to believe" that Saia's proposal would be "acceptable." Fox's principal concern was whether sufficient security could be provided for an unattached drop box. He voiced this concern to Saia. At the prebid conference later that day, another vendor queried the two DOR representatives (Driggers and Fox) about the drive-through teller requirement. Saia asked no questions. However, Saia contended that, in response to the other vendor's question, DOR representatives were "vague" and left the matter "very open." The actual dialogue between the vendor and Driggers is reflected in the transcript of the meeting received in evidence as DOR exhibit 1. According to the transcript the following exchange on the subject took place: (by unidentified vendor) On the drive through facility you asked about the pneumatic . . . you have a requirement for pneumatic tubes. (by John Driggers) Okay. On the drive through facility what we are trying to reflect there is we would prefer a facility for security purposes that would be contiguous with the office so that it would not be located away from the office. We would entertain a remote type facility that was connected with the office by pneumatic tubes or something that would be feasible. We don't necessarily kick out the possibility that we might use a facility that would not be contiguous to the office itself. However, we would look at that very carefully to make sure that it did meet requirements and that we could feel that it would be a secure place to use for the employees and for the . . . We do accept cash in these offices. What I'm trying to do is to give you some options there because there is no telling what kind of facility that you could come up with that would be acceptable. (Emphasis added) Driggers also advised vendors that if they had any further questions, they should be addressed to Fox. Saia concluded that, given the space limitations in Nu-West's building and the need for a local government site approval plan, the most cost-effective way to meet the requirement was to have one drive-through teller "adjacent to the building" and a drop-box in a separate location not contiguous to or connected with the main building. The use of a drop box was based on Saia's impression that DOR wanted the capability of receiving customer deposits after regular business hours and that a "facility" was not necessarily a teller window. He reasoned that this was comparable to the type of facilities used by banks and would be "a good solution to the problem." To reinforce his idea, Saia met with Fox a second time on April 19, 1988 and showed Fox his proposed plans. According to Saia, Fox told him the plans were "very acceptable." However, Fox's recollection of the conversation was different, and he remembered making no such commitment that the plans were acceptable. Instead, Fox told Saia that a drop-box with one window was better than only one window but that his overall concern was with security. In any event, Saia relied on this meeting to formalize the drop box plan in his bid submission. He went so far as to submit the plans to the City of Lauderdale Lakes for site review approval. Nu-West's submission was timely received by DOR. On page 8 of 14 of the RFP, Nu-West responded to the drive-through teller requirement with the following statement: Drive through teller window and one outside drop box will be provided in the manner shown on the enclosed site plan, subject to final approval by the City of Lauderdale Lakes, which has been applied for. (Preliminary approval has been obtained). The attached site plan is depicted on Joint Exhibit 3A and reflects a single drive-through teller facility. The drop box did not have a pneumatic tube system connecting the box to the main facility. This constituted a material deviation from the specifications. It is noted that of the fifteen vendors filing proposals, only Nu-West failed to provide for two drive-through tellers. A week or so after Nu-West's bid was submitted, the DOR evaluation committee visited Nu-West's office site. The team stayed on the premises for two hours. Saia recalled that even though the team discussed the proposed single drive-in teller facility idea and was shown its proposed location, he heard no objections. In its written evaluation report of Nu- West's bid dated May 17, the committee made no mention of any deficiency in the drive-through teller proposal and described Nu- West's proposed site as "a class operation." Nu-West was also given a grade of 87 and unanimously recommended for award of the contract. On June 2 Saia was advised by telephone that Intercontinental had been awarded the bid. Thereafter, Nu-West timely filed its protest. At the settlement conference held on June 17, Saia was not told his bid had been rejected because it was nonresponsive. He did not learn this until he received a telephone call a few days later from DOR's acting executive director. This was followed by DOR's letter of June 22 advising that Plantation had been awarded the bid and that Nu-West's bid had been rejected on the ground the proposal did not provide for two drive-through tellers. When this final decision was made by DOR, neither Cooper or Alexander were aware of any representations that might have been made to Saia by Fox or Driggers. Nu-West is willing to modify its proposal to provide a second drive- through teller. According to Saia, it can be accomplished with a $72,000 allowance Nu-West set aside to cover any deficiencies incurred during renovation. However, these modifications should have been filed with the original bid package in order to conform to specifications. Plantation's Bid Plantation was ranked number three numerically by the evaluation committee but, after the disqualification of Intercontinental and Nu-West, it had the highest numerical score and was considered the lowest and most responsive bid. Although Nu-West's proposed location in Plantation was questioned by another vendor as being in an inaccessible area of the county, DOR representatives concluded the office site was satisfactory. All material specifications were met by this bidder. 2/ Using a present value of lease payments, Plantation's bid was $1.23 per square feet cheaper than Nu-West's bid proposal but was slightly higher than Intercontinental's proposal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding Lease Bid No. 730-0083 to 241 East 76th Street Company d/b/a Fountains of Plantation. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings 5th day of October, 1988.
The Issue Whether Respondent's rejection of all bids submitted in response to ITB-05-23-12, relating to a contract for annual elevator maintenance and repair services, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Respondent Florida School for the Deaf and the Blind is a state-supported residential public school for hearing-impaired and visually-impaired students in preschool through 12th grade. Access to the School is restricted for the protection of the students that are enrolled there. Visitors to the School campus must obtain credentials through a visitor identification badging system maintained by the Campus Police Department before they are permitted to enter. There are only two locations from which access badges may be obtained. The first is the Campus Police Department Communications Center and the second is the Campus Police Department Guardhouse at the Genoply Street gate. There are no off-campus locations from which badges may be obtained. Petitioner Traveler is a corporation registered with the Department of Business and Professional Regulation under the provisions of chapter 399, Florida Statutes, to construct, install, inspect, maintain, and repair elevators. Mr. Mark DeWitt is an owner of Traveler. Otis was the incumbent contractor providing service to the School's elevators, a position it had held for the last three years. On May 23, 2012, in Invitation to Bid 05-23-12 (the ITB), the School solicited competitive bids for the award of a contract to provide elevator maintenance, inspection, and repair services for elevators at various locations on the School campus (contract). The ITB was a one page document which stated: The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084 will receive bids in the Purchasing Department June 14, 2012, until 2:00 p.m. for the purpose of selecting an Elevator contractor for supplying all labor, material, and ancillary services required for the scope listed below. Scope of Project: The purpose and intent of this invitation to bid is to select Elevator contractor who is OEM certified and OEM trained to provide preventative maintenance (PM) services to elevators on a monthly schedule at various campus locations and who will deliver and install parts and provide emergency repair service for a period of (1) year with the option to renew additional years contingent upon availability of funding and satisfactory performance by the contractor. Licensing Requirements: All contractors must possess any applicable licenses required for this type of work per the State of Florida Department of Business and Professional Regulation. Mandatory Pre Bid Conference: A mandatory pre bid conference will be held at The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084, Hogel Building #27, Conference Room on June 7, 2012 at 10:00 a.m. All attendees will be checked through Campus Security, so allow ample time. Attendance at this pre bid conference is mandatory in order for all potential bidders to receive the benefit of answers to theirs and other's technical questions first hand. It is imperative that all the information be disseminated in a public forum with all potential bidders present to minimize confusion or misunderstandings. Additions or changes to the original bid documents resulting from this conference of a material nature will be documented in the form of written addenda and distributed to all attendees. Please note that if you are late to this mandatory pre bid conference you will not be eligible to sign the attendance roster and therefore may not submit a bid. Any person with a qualified disability requiring special accommodations at the pre bid conference and/or bid opening shall contact the Purchasing Office at 904-827- 2356 at least (5) working days prior to this event. If you are hearing or speech impaired, please contact this office by using the Florida Relay Services which can be reached at 1-800-955-8772. The Florida School for the Deaf and the Blind reserves the right to reject any and all bids and accept minor irregularities in the best interest of the State of Florida. Neither Traveler nor any other bidder filed a notice of protest to the terms, conditions, or specifications contained in the solicitation within 72 hours of the posting of this solicitation. As provided in the ITB, a pre-bid conference was held regarding the contract at 10:00 a.m. on June 7, 2012, in the Hogel Maintenance Building Conference Room. Mr. DeWitt and Mr. Jim Halstead, another owner of Traveler, arrived at the conference room about 9:40 a.m. They had taken about two minutes to pass through the security gate at the front of the campus, and about ten minutes more to then navigate the speed bumps, stop signs, and crosswalks to arrive at the Hogel Maintenance Building area and make their way to the conference room. Prior to 10:00 a.m. two cars, containing Mr. Joe Ramos and Mr. Max Stanley of Kone Elevators and Mr. David Baskin of Otis, were at the Campus Police Department Communications Center attempting to get access badges. Security Officer Victoria Cannon attempted to scan their identification cards to process them through the electronic visitor identification manager software, but the program was "frozen" on her computer screen and she was unable to do so. She attempted to "tinker" with the computer to get it to work, but was unsuccessful. She instead checked the visitors' identification and prepared the old handwritten badges that had been used prior to the electronic scan system. These were self-adhesive badges with a red background that the occupants of the vehicles put on their clothes. The old badges had not been used for about seven years, because the School had put in the electronic system to enhance security. A stock of the old badges had been maintained to use as a temporary backup if the electronic system went down. Officer Cannon testified that the men were "delayed a little" but provided no more specific estimate as to the length of time. When the three men left the Campus Police Department Communications Center, Officer Cannon then communicated with Security Officer Bruce Hardy in the guardhouse to let him know that the visitors had been approved for entry onto the campus, so they would not have to be run through the system at the guardhouse. Campus Police Chief Jerry Chandlee was at the police guardhouse on Genoply Avenue with Officer Hardy when the call to Officer Hardy from Officer Cannon came in. When the first vehicle arrived, Chief Chandlee saw the red temporary visitor ID badge. It was about 9:55 a.m. He decided that he wanted to issue the standard electronic visitor ID badge so that identification information would be collected electronically, as the system had been set up to do. The electronic information allows a check with the Florida Crime Information System and the National Crime Information System. Chief Chandlee then called Officer Cannon to find out why the men had been given the old red manual badges and learned that her computer had not been working correctly. The second vehicle arrived at the gate about 9:58 a.m. Chief Chandlee directed Officer Hardy to request driver's licenses again from all three men and to process them through the electronic system. Chief Chandlee said it only took about a minute to process each electronic identification card. Chief Chandlee learned when talking with the occupants of the second vehicle that the men were seeking entry to the campus to attend the pre-bid conference. Chief Chandlee was requested to make a courtesy call to the location of the bid meeting informing them that the men had been detained by security and might be late. Chief Chandlee apologized for the delay and asked Officer Hardy to make the call. When Officer Hardy called Administrative Assistant Donna Thompson to explain that bidders had been held up by the Campus Police Department, she replied, "Well, it's ten o'clock. So they need to hustle." Ms. Thompson was sitting inside her office. She did not immediately inform Ms. Laura Bowden, who was in charge of the pre-bid conference and was already inside the conference room with the door closed. Ms. Thompson decided to go to the building entrance to make sure that the men found the building without a problem. At about 10:00 a.m., the pre-bid conference was convened by Ms. Laura Bowden. She began by reading the contract. Also present at this time, in addition to Ms. Bowden, Mr. DeWitt, and Mr. Halstead, were several others: Mr. Harper Smith, representing ThyssenKrupp Elevators; Mr. Cliff Vaughn, Representing First Coast Elevators; Mr. Noel Fossette, representing Schindler Elevator; Mr. Jerry Arsenault, Facilities Superintendent for the School; and Mr. Dennis Baker, a Project Manager for the School. At the conference, bidders were provided a copy of a "pre-bid packet" containing additional information about the elevator contract. When the three men arrived at the Hogel Maintenance Building, Ms. Thompson was waiting for them. She opened up the building entrance door and waved, because they were about to pass by it, brought them inside the building, and escorted them over to the conference room door. Ms. Thompson then returned to her office. Ms. Bowden had read a couple of pages of the contract, when Mr. Ramos, Mr. Stanley, and Mr. Baskin came into the meeting. Ms. Bowden said, "You're late." As soon as she did so, Mr. Arsenault instinctively looked at the clock on the wall. He testified that it read 10:07 a.m. Mr. Baker also testified that it was seven or eight minutes past 10:00 when the men arrived. One of the men responded to Ms. Bowden's comment with the statement that police security had already called the secretary. Ms. Bowden left the conference room and went to Ms. Thompson's office. Ms. Bowden asked Ms. Thompson if she knew why the bidders had been late. Ms. Thompson explained that she had received a call from Officer Hardy, stating that the Campus Police had held them up there. Ms. Bowden thanked her and returned to the conference room. Once back in the conference room, Ms. Bowden restarted the meeting. She began reading the contract again from the beginning. No questions had been asked before the late arrivals, and there was no information that had been given earlier that was not repeated when the meeting was restarted. The late-bidders were allowed to sign the attendance roster. No one protested that late-bidders were allowed to attend the meeting, that the meeting was restarted, or that the late- bidders were allowed to sign the attendance roster. Ms. Bowden was aware that the ITB stated that any bidder late to the pre-bid conference would not be eligible to sign the attendance roster and could not submit a bid. However, based on the information she had from Ms. Thompson, Ms. Bowden decided that it had been the School's fault, and not their own, that the late bidders had not arrived at the conference room on time. She allowed the late-bidders from Kone and Otis to attend the pre-bid conference because under the circumstances she thought their late arrival was a minor irregularity. As indicated in the ITB, attendance at the pre-bid conference was mandatory to allow all potential bidders to receive the benefit of answers to their own and others' technical questions firsthand. Ms. Bowden had received no questions prior to the entry of the Kone and Otis representatives, and she started the meeting over to ensure that all bidders received the same information. On June 14, there was a public bid opening, which was attended by Mr. DeWitt of Traveler as well as Mr. Baskin and another representative of Otis, among others. Traveler could hear who the bidders were, and was aware that Otis had been allowed to submit a bid. At that time, Traveler made no objection that Otis had been permitted to bid. The School applied the same criterion to all bids when evaluating them. Rankings in various categories were combined pursuant to a weighted formula to arrive at a total weight for each bidder. In the overall ranking of the bids, Otis ranked first, while Traveler came in second. On June 18, 2012, at 9:30 a.m., the Bid Tabulation and Notice of Award Recommendation was posted. The School prepared and disseminated it to each of the bidders. It indicated that the School was recommending that the contract be awarded to Otis as the lowest responsive bidder. Traveler was listed as the second lowest bidder. Traveler e-mailed a Notice of Protest in response to the School's recommendation about 10:49 a.m. on June 18, 2012, followed the same day by a formal protest. As grounds for its protest, Traveler contended that Otis had been late to the pre- bid conference, and pursuant to the procedures set forth in the ITB should not have been allowed to sign the attendance roster or submit a bid. Ms. Bowden still believed the late arrival of Otis was a minor irregularity, but she could not know if an administrative law judge would necessarily agree. Traveler was contesting that conclusion, claiming that the failure of Otis was a material deviation from the explicit bid specifications and that the School was required to reject the Otis bid and award the contract to Traveler. She testified that if she had determined that the late arrival to the pre-bid conference by Otis had been a material deviation, and awarded the contract to Traveler, that she believed that Otis would surely have protested. After careful consideration and discussions with counsel, Ms. Bowden decided to reject all bids. On June 21, 2012, the School notified Traveler and the other bidders that it was exercising its right to reject all bids and re-bid the contract, at a yet undetermined date in the future. On June 22, 2012, Traveler e-mailed the School, objecting to FSDB's rejection of all bids and requesting that the matter be referred to the Division of Administrative Hearings. On July 10, 2012, Respondent filed a Notice of Compliance with Paragraphs 2 and 3 of the Order of Pre-Hearing Instructions, indicating that it had notified all bidders that if they wished to intervene they must file a Petition to Intervene at the earliest practicable date. No Petition to Intervene was received from any person prior to hearing. At hearing on July 26, 2012, Mr. Cliff Vaughn appeared and asked that he be allowed to participate, or in the alternative that a continuance be granted. Mr. Vaughn was a corporate officer of First Coast Elevator, the third-place bidder. Mr. Vaughn stated he supported the School's action in rejecting all bids. Mr. Vaughn admitted that he had received the notice requiring him to file a Petition if he wished to Intervene. No Petition had been filed by Mr. Vaughn and his appearance at hearing was the first time either party was aware of his interest. He was not eligible to represent his corporation in a "pro se" capacity. Given the statutory policy in favor of expedited hearings in bid protests, the granting of a continuance after the hearing had begun would not serve the public interest and would be unfair to the parties. His requests were denied. The School's rejection of all bids does not have the purpose or effect of defeating the object and integrity of the competitive bidding process and does not give an unfair competitive advantage to any bidder. The School's rejection of all bids is not illegal, arbitrary, dishonest, or fraudulent.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida School for the Deaf and the Blind enter a final order finding that the rejection of all bids submitted in response to Invitation to Bid 05-23-12 is not illegal, arbitrary, dishonest, or fraudulent, and dismissing Petitioner's protest. DONE AND ENTERED this 14th day of September, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2012. COPIES FURNISHED: Frank Damon Kitchen, Esquire Constangy, Brooks and Smith, LLC Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 dkitchen@constangy.com William David Talbert, Esquire Talbert Law Firm, P.A. Suite 202 1930 San Marco Boulevard Jacksonville, Florida 32207 talbertlawfirm@bellsouth.net Dr. Jeanne G. Prickett President of Florida School For the Deaf and Blind 207 San Marco Avenue St. Augustine, Florida 32084
Findings Of Fact Respondent, through its Invitation to Bid (ITB) No. 123-395-98-C Rebid, seeks to award a 12-month contract for, the purchase of electronic data processing cards. Bids were opened on November 10, 1981, at which time Petitioner was the apparent low bidder. However, Respondent disqualified Petitioner's bid because Data Specialties Mart did not have a corporate charter number and had no manufacturing capability on the bid opening date. S. F. Holdings, Inc., is a Florida corporation, Charter No. 637983. Data Specialties Mart is a division of this corporation and has been assigned Vendor No. 00417 by Respondent. Confusion over Petitioner's identity arose from the section on Respondent's ITB where the vendor name is to be entered. Petitioner placed the name "Data Specialties Mart, Inc.," (non-existent as a corporation) in this block. Petitioner did, however, enter the S. F. Holdings, Inc., charter number and the Data Specialties Mart vendor number in adjacent blocks. A letter attached to the bid describes Data Specialties Mart as a marketing division of S. F. Holdings, Inc. Although this letter did not have as its purpose correction of the above error, it did provide the clarification Respondent should have sought. Furthermore, this relatively minor discrepancy could have been resolved through contact with the Petitioner. Petitioner stated by letter dated November 9, 1981, (attached to its bid) that "The cards will be produced through our Lakeland, Florida manufacturing facilities (formally [sic] known as National Electronics Computing Supplies, Inc.)." Respondent investigated the claimed ownership and determined that Petitioner did not possess the manufacturing facility on the bid opening date, November 10, 1981, as represented. Petitioner's president, who signed the letter, believed he would acquire the facility at a November 16, 1981, bankruptcy proceeding and thus claimed the facility for bid purposes. Although Petitioner did acquire the factory as anticipated, it possessed no manufacturing capability on the bid opening date.
Recommendation From the foregoing, it is RECOMMENDED that Respondent enter a final order dismissing the petition. DONE and ENTERED this 11th day of February, 1982, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1982. COPIES FURNISHED: Dean Bunch, Esquire Ervin, Varn, Jacobs, Odom and Kitchen Post Office Box 1170 Tallahassee, Florida 32302 William P. Beck, Esquire Department of General Services 457 Larson Building Tallahassee, Florida 32301 Thomas R. Brown, Executive Director Department of General Services Room 115, Larson Building Tallahassee, Florida 32301
The Issue The issue in this case is whether the bid of Kimball International Marketing, Inc., and Corporate Interiors, Inc., (Petitioners) is the lowest responsible bid which was received by the Pinellas County School Board (Respondent) for systems furniture (partitions) for the New District Administration Building, or in the alternative, whether all bids should be rejected as urged by The Harter Group (Intervenor).
Findings Of Fact On or about February 27, 1990, the Respondent sought competitive bids for systems furniture (partitions) for the New District Administration Building. In response thereto, Respondent timely received three bids, including those of the Petitioners and Intervenor, and one no bid. The bid opening occurred on April 17, 1990, and neither Petitioners nor Intervenor were determined to be the lowest responsible bidder. However, the Petitioners' bid was lower than that of the bidder to whom the Respondent proposes to award this contract. Petitioners' bid was $932,502.39, Intervenor's bid was highest at $1,101,509.90, and the bid of lowest responsible bidder, Haworth, Inc., was $1,072,286.50. The first reason given by Respondent for its determination that Petitioners' bid was not responsive to the bid specifications is that it did not include an amount for sales tax. Intervenor also did not include sales tax in its bid, but Haworth, Inc., which was determined by Respondent to be the lowest responsible bidder, did include sales tax. However, there was no dispute at hearing that the Respondent does not pay sales tax on transactions involving the acquisition of furnishings for the Pinellas County School System, and that Section 9.2.2 of the bid specifications erroneously stated that this contract would not be exempt from sales tax. The second reason given by Respondent for rejecting Petitioners' bid was that it omitted a required page from the approved form which was to be used to list those items in the bid proposal that were not in strict compliance with the Respondent's specifications. Petitioners admit that the required page numbered 00310-7 was not included in their bid, but maintain that it was not necessary to include this exact page since all items in their bid do meet specifications, and since a statement to this effect was included elsewhere in the bid. The lowest responsible bidder, as determined by the Respondent, did include this required page with a statement thereon that "all items comply". Intervenor also included this page listing 11 items in its bid which differed from the specifications. The purpose of this required page is to allow the Respondent to have a uniform, clearly identifiable place in each bid proposal where it can look to determine if the items in that bid meet specifications, without having to check every page of each bid. The third reason given by Respondent for rejecting Petitioners' bid was that it included numerous pages of unit costs which were not called for in the specifications, without any explanation as to their meaning or the purpose for which they were included in the bid. Section 4.1.1 of the bid specifications, found at page 00100-11, makes it clear that no bid form other than that which is set forth in the specifications will be accepted, and specifically states that bidders are not even to retype the form on their letterhead, but are to simply fill-in a copy made from the form in the specifications. The Petitioners admit that their bid includes additional, unexplained information that was not called for in the specifications. A final reason given by Respondent at hearing for rejecting Petitioners' bid was that it was accompanied by a bid bond, required by Section 4.2.4 of the specifications, in the name of Kimball International Marketing, Inc., while the public entity crime affidavit, required by Section 2.1.5, was subscribed to by Corporate Interiors, Inc. Petitioners' bid did not include a resolution or other evidence of authority that Corporate Interiors, Inc., had authority to submit a public entity crime affidavit on behalf of Kimball International Marketing, Inc., or that the affidavit submitted was valid as to Kimball. Thus, while Petitioners maintain that their bid was jointly filed on behalf of the manufacturer, Kimball, and the vendor, Corporate Interiors, their bid includes a bond from the manufacturer only, and a crime affidavit from the vendor only. Section 1.8 of the specifications, found at page 00100-2, specifies that the bidder is the person or entity that submits a bid. Petitioners urge that theirs is a joint bid, but they have failed to submit a joint bond or affidavit. Section 5.2.1 of the specifications allows the Respondent to reject any bid which fails to include a required security, or other required data. The bid which was determined by the Respondent to be the lowest responsible bid contains no technical flaws, errors or omissions, and the proposal meets all specifications for this project. The Respondent properly posted notice of its intent to award this contract to Haworth, Inc., the lowest responsible bidder. Under Section 5.3.1 of its bid instructions, the Respondent has the right to waive "any informality or irregularity in any Bid or Bids received and to accept the Bid or Bids which, in (its) judgment, is in (its) own best interest." Respondent chose not to waive any of the irregularities in the Petitioners' bid. This decision was made, in part, because of Respondent's previous experience with Petitioners in their installation of similar systems for Respondent at the Walter Pownall Service Centers in which there had been problems involving service during installation, coordination of the installation work, and verification that invoices received from Corporate Interiors did not exceed the bid base price, and that all items being paid had actually been received.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioners' and Intervenor's protests of its intent to award a contract for systems furniture (partitions) for the New District Administration Building to Haworth, Inc., as the lowest responsible bidder. DONE AND ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 6th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2863BID Petitioner and Intervenor filed letters, but no proposed findings of fact upon which rulings could be made. Rulings on Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 3. 3. Adopted in Findings 4-6. 4. Adopted in Finding 6. 5. Adopted in Findings 4-6. 6. Adopted in Finding 6. 7. Adopted in Findings 6, 8. 8. Adopted in Finding 1. 9. Adopted in Findings 2, 3. 10-12. Adopted in Finding 6. 13. Adopted in Finding 4. 14. Adopted in Finding 3. 15. Adopted in Finding 5. 16-17. Adopted in Finding 7. 18. Adopted in Finding 1. 19. Adopted in Finding 8. COPIES FURNISHED: Allen D. Zimmerman, President Corporate Interiors, Inc. 1090 Kapp Drive Clearwater, FL 34625 Bruce P. Taylor, Esquire P. O. Box 4688 Clearwater, FL 34618-4688 Sue Olinger 1284 West Fairbanks Avenue Winter Park, FL 32789 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618
Findings Of Fact On or about February 9, 1983, the State of Florida, Department of General Services, Division of Construction and Property Management, Bureau of Property Management ("DGS"), received a certification of need from the Department of Corrections ("DOC") requesting authority for DOC to advertise for competitive bids from private persons interested in providing leased office space needed to house DOC's Bureau of Industries. The Bureau of Industries was then located in leased space with leases which were scheduled to expire June 30, 1983. The Bureau of Industries has been located in DOC's central office area since its creation in 1957. The DOC central office includes the Secretary and Deputy Secretary; the Assistant Secretaries for Operations, Programs, Management, and Budget. All these officials, together with subsidiary bureaus, staff, and other subordinates are located in two adjacent buildings of the Winewood Office Complex on Blair Stone Road in Tallahassee. The prison industry program is under the supervision of the industries administrator who reports directly to the Assistant Secretary for Operations. DOC sought approval from DGS to enter into a lease for privately owned office space because of its perceived need to locate within walking distance of its central office. Programs administered by the Bureau of Industries work closely with other DOC personnel and functions located in the central office in the Winewood Office Complex. Moving any distance from the central office would create problems for the DOC mailing system and would require extra time spent traveling to and from the central office. Personnel in the Bureau of Industries utilize central office files, and confer often with staff located in the central office. Locating outside the general area of the central office would require additional expenses with regard to availability of vehicles, pick up of mail and supplies, and duplication of support services. Accordingly, DGS and DOC determined, and the record in this cause establishes, that it would not be in the state's best interest to require DOC to locate its Bureau of Industries program either in state-owned buildings in the Capitol Center, or in any area beyond walking distance of the central office location. On March 21 and 31, 1983, respectively, DOC published an advertisement in the Tallahassee Democrat inviting all interested persons to submit sealed bids at or before 2:00 p.m. on April 19, 1983, in accordance with the Invitation to Bid and Specifications prepared by DOC for the office space needed to house the Bureau of Industries. A portion of the bid specifications required that office space to be leased be located within a circle drawn on a city map of the City of Tallahassee, Florida, which could roughly be described as the southeastern portion of the city, in the vicinity of the Winewood Office Complex. There were four possible bidders in the area within the circle on the map attached to the bid specifications. Of these four possible bidders, two within the area actually submitted bids--Blairstone Center Partners and Washington Square, Ltd. One of the general provisions of the bid specifications provided as follows: The Department of Corrections reserves the right to reject any and all bids, waive any minor informality or technicality in bids received and to accept that bid deemed to be the lowest and best. . . At or before 11:00 a.m. on April 19, 1983, DOC received sealed bids from Petitioner and Intervenors in response to the aforesaid advertisement, and at 11:00 a.m. on April 19, 1983, DOC opened, tabulated, and published each of the bids. The bid submitted by Petitioner was not responsive to the requirements of the Invitation to Bid and Specifications because the property offered by Petitioner in its response was outside the area indicated on the map annexed to the Invitation to Bid. The bid submitted by Intervenor, Blairstone Center Partners, failed to offer the full services specified in paragraph six of DOC's Bid Submittal Form; failed to offer the exclusive parking specified in the paragraph seven of the Bid Submittal Form; failed to supply the photographs specified in paragraph ten of Respondent's Bid Submittal Form; and failed to supply the information specified in paragraphs one through eight of the Bid Submittal Form. Accordingly, the record in this cause fully establishes that the bids submitted by Petitioner and by Intervenors Blairstone Center Partners, failed to comply with the requirements of the Invitation to Bid and Bid Submittal Form, and that the deficiencies in the bids of Petitioner and Intervenor, Blairstone Center Partners, were so material as to require their rejection. The Invitation to Bid and Bid Submittal Form required that bidders offer for lease 2,683 square feet, plus or minus three percent. The bid submitted by Intervenor, Washington Square, Ltd., offered 2,797 square feet, which is approximately 34 square feet more than allowed in the Invitation to Bid. After this fact was discovered upon opening the bid, DOC personnel contacted a representative of Washington Square, Ltd., and advised the net square footage offered in the bid submitted by Washington Square, Ltd., exceeded the net square footage of space that DOC was authorized to lease and pay for under the Invitation to Bid. Washington Square, Ltd., subsequently agreed to modify its proposal by relieving DOC from any obligation to pay for the extra 34 square feet, and reducing the annual rental for the first year from $26,012.10 to $25,695.90, and for the second year from $27,576.60 to $27,243.18. The record in this cause does not establish any misconduct or collusion between Washington Square, Ltd., and DOC personnel obtaining this modification, nor does the record in this cause establish that any actual or prospective bidders suffered any competitive disadvantage as a result of this modification. The effect of Washington Square, Ltd.'s modification of its proposal rendered that proposal the only bid which was responsive to the Invitation to Bid. On August 18, 1983, Washington Square, Ltd., executed a deed to the property which was the subject matter of its bid to Ben Grace. Washington Square also executed an assignment of the proposed bid award to Grace.
