The Issue The issues in this bid protest proceeding are whether the bid of Professional Leasing & Development Corporation on state project, job number 48020-3543, was properly rejected for failure to prequalify to bid on the project; and whether the Department properly rejected the bid failure to: meet disadvantaged business enterprise ("DBE") requirements in soliciting minority subcontractors to work on the project, or make a good faith effort to meet the DBE goals set for this project?
Findings Of Fact Professional Leasing & Development Corporation ("Professional") filed a bid on state project, job number 4802 0-3543, which was opened on January 22, 1986 for work on an intersection in Escambia County. The only other bidder was Edward M. Chadbourne, Inc., which the Department declared the lowest responsible bidder, and which declined to participate in these proceedings after notice. The parties stipulated at the hearing that the bids submitted by both bidders were in due form and were submitted in a timely fashion. The parties also stipulated that the Department posted its bid tabulation on March 3, 1986, designating Chadbourne as the lowest responsible bidder, and a timely protest was filed by Professional following that posting. This job is the first Department of Transportation job on which Professional has submitted a bid. It had not prequalified to bid on the job. Warnings appear on pages one and seven of the bid blank that if the bid amount is greater than $150,000, the contractor must be prequalified. The bid blank clearly states in large print on page 7 that if the contractor is not prequalified and the bid is in excess of $150,000, the bid will be rejected. The bid package submitted by Professional was for a total contract amount of $149,973.68. This amount contained errors in the prices for certain items in the bid. These resulted from Professional's errors in the extension of the unit price for items 300 1 3, tack coat; 5331 2, type s asphaltic concrete; and 5337 1 5, asphaltic concrete friction course. The errors are small, aggregating $76.32. The total amount of the bid, as corrected by the unit prices given by Professional in its bid blank, is $150,050. The bid was rejected by the Department for failure to prequalify. When preparing its bid, Professional made efforts to meet the DBE goal set by the Department of Transportation of 8 percent of the contract amount. It sought bids from two minority businesses for striping, and for guardrail and paved ditches,the second of which was a bid from a women's business enterprise which is not considered in meeting the DBE goal. Additional efforts might have been made to obtain DBE subcontract bids by the other principal in the corporation, William Stubstad, but the testimony at the final hearing did not indicate what those efforts may have been. Neither are they reflected in the bid documents. On the DBE/WBE utilization form number 1 submitted with the bid, Professional listed eight potential subcontractors; the striping subcontractor had been certified by the Department of Transportation as a DBE. Written by hand at the bottom of the form was the statement "no other local DBEs in area." Professional's bid reflected only a 3.2 percent utilization of DBE subcontractors, while the goal set by the Department was 8 percent of the contract amount. Based on this submittal, the Department found inadequate documentation of a good faith effort to meet the DBE goal and rejected the bid. Many other subcontractors are certified as DBEs by the Department for work such as signs, guardrails, landscaping and paved ditches. Professional's bid documents give no evidence that these other firms had been solicited to submit bids.
Recommendation It is recommended that the protest of Professional Leasing and Development Corporation be rejected, and the contract be awarded to Edward M. Chadbourne, Inc. DONE AND ORDERED this 2nd day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0788BID The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner: No proposed findings of fact were submitted. Rulings on Proposed Findings of Fact Submitted by Respondent: Covered in Findings of Fact 1 and 5. First sentence is covered in Findings of Fact 3 and 5; the remainder of the proposed finding is covered in Conclusion of Law 1. Generally covered in Finding of Fact 4. The portion of the proposal dealing with Standard Specifi- cation 2-1, 1986 Edition, is rejected because that section was not placed in evidence at the hearing, nor was leave requested to file that specification after the hearing. Covered in Finding of Fact 5. Covered generally in Conclusions of Law 2 and 3. Covered in Conclusion of Law 6. Rejected on the grounds that Section 2-5.3.2 of the Supplemental Special Provision of the Bid Specifications was not proven at the final hearing, nor was leave requested to file them as an exhibit after the hearing. Covered in Finding of Fact 7. Covered in Finding of Fact 7. The portion of proposal 10 found on page 4 is covered in Finding of Fact 7; the remainder is rejected as cumulative. Covered in Finding of Fact 7. Rejected because there is no evidence in the record concerning the consistency with which the Department requires full compliance with DBE goals, and because no issue was raised in this proceeding by Professional with respect to inconsistency in Department policy, making the finding irrelevant. COPIES FURNISHED: Thomas E. Drawdy Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Larry D. Scott, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Harold Pridgen President Professional Leasing & Development Corp. 25 East Nine Mile Road Pensacola, Florida 32514 Edward M. Chadbourne, Inc. 4375 McCoy Drive Pensacola, Florida 32503
The Issue The issues in this proceeding are: 1) whether either of the Petitioners' bids were responsive to the Invitation to Bid #298-730-310-W; 2) whether either Petitioner should be awarded portions of the bid; and 3) whether DGS should reject all bids. The parties' positions on these issues are summarized: DGS argues that its intended action to reject all bids is compelled by its rules governing the competitive bid process. It contends that Tel Plus was initially considered non-responsive but was deemed the responsive low bidder on some portions of the bid after it agreed to substitute equipment. DGS contends now that substitution is improper. Inter-tel was consistently considered non- responsive by DGS because of alleged non-compliant data in its technical literature. DGS concedes that, but for this non-compliance, Inter-Tel would be lowest responsive bidder in various categories. Tel Plus argues that its bid was responsive as it proposed to provide equipment previously required in DGS' specifications for other bids. Tel Plus claims that its equipment is equivalent to the equipment now required in the DGS specifications and DGS should have known that. Tel Plus argues that the transposition of numbers in the model number of the equipment was a typographical error which can be corrected after the bid opening. In the alternative, Tel Plus argues that it should be able to substitute equipment as DGS has allowed substitution in the past. Further, the equipment in issue is a small component of the overall system and, comparing its price to the price of the whole, it is a non-material change in the bid. Inter-Tel claims that its bid was responsive as the technical literature it submitted was merely an installation manual providing an optimum range of temperatures provided. Its equipment allegedly meets the specifications, and the company should have been permitted to explain its bid as the prior practice of DGS was to allow such explanations.
Findings Of Fact The Invitation to Bid (ITB) On May 7, 1986, the Department of General Services (DGS) mailed ITB No. 298-370-310W to approximately 100 vendors. The ITB sought bids for various sizes of electronic key telephone systems that would then be available for purchase by state agencies and others entitled or required to participate in the state purchasing system administered by DGS. The ITB specified technical requirements for seven sizes or configurations of systems. An addendum to the ITB divided the state into four geographical service areas. The vendors were invited to bid on any or all of the configurations for each of the service areas; a total of twenty-eight separate awards was, therefore, possible. Specifications in the ITB required a powerline surge protector, a small device which plugs into an electrical outlet and protects the electronic system against voltage surges through a powerline. In the past, DGS bid specifications for similar equipment required a model TII 428 surge protector or equivalent. However, agencies were experiencing extensive and expensive damage to electronic equipment, so DGS' Division of Communications investigated other equipment and determined that a model PTS-120 HP was more efficient. The technical specifications in the ITB here at issue required a PTS-120 HP "or an approved equivalent". (Joint exhibit #1, p. 68, paragraph 3.6) Another requirement of the technical specifications related to the environment for the key service unit (KSU), the heart of the electronic key telephone system. Paragraph 3.7 required that the KSU "... shall be fully operable during the following environmental conditions: Temperature 40 degrees F to 100 degrees F (4 degrees C to 38 degrees C) Relative Humidity 20 percent to 80 percent (Joint Exhibit #1, p. 69) These environmental conditions are significant because the KSU is heat sensitive and the equipment is commonly installed in closets or equipment rooms that are neither vented nor climate-controlled. The ITB included at least two provisions relating to the bidder's responsibility to provide technical literature. Paragraph 5 of the General Conditions provides: MANUFACTURERS' NAME AND APPROVED EQUIVALENTS: Any Manufacturers' names, trade names, brand names, information and/or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative, which meets or exceeds the specifications for any item(s). If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. Bidder shall submit with his bid, cuts, sketches and descriptive literature and/or complete specifications. Reference to literature submitted with a previous bid will not satisfy this provision. The bidder shall also explain in detail the reason(s) why the proposed equivalent will meet the specifications and not be considered an exception thereto. The State of Florida reserves the right to determine acceptance of item(s) as an approved equivalent. Bids which do not comply with these requirements are subject to rejection. (emphasis added) Included in the Special Conditions, page 6, is this provision: Technical Literature Technical literature is a requirement of this bid to accommodate an evaluation to assure products offered meet or exceed the specification attached hereto. Bidder shall furnish with his bid, for all equipment offered, technical information consisting of two sets of manufacturers specifications, graphs, charts, sketches, photographs, circuit diagrams, instruction manuals, station user guide and attendant user guide pamphlets and equipment lists. Failure to provide such data with the bid may result in rejection of the bid. (Joint Exhibit #1) There were no questions or protests from the vendor community regarding the change in specifications related to the powerline surge protector. (transcript, p. 82) Approximately fifteen bids were received and were opened by DOS on July 7, 1986. (transcript, p. 20) Tel Plus Bid Tel Plus Florida, Inc. (Tel Plus) bid on each of the seven configurations for the four service areas. The equipment list provided for each configuration in its bid consistently listed "T11248 Surge Protector", rather than the PTS 120 HP called for in the ITB specifications. Although Tel Plus submitted some technical literature, (its general description, installation and service manual for "Tel Plus 816 Electronic Key Telephone System"), no technical literature nor explanation was submitted for the surge protector. (Joint exhibit #2, Inter-Tel Exhibit #1) Tel Plus intended to include the TII 428 surge protector throughout its bid; the model designation "248", was a typographical error. (Transcript, p. 129-133) Inter-Tel Bid Like Tel Plus, Inter-Tel bid each of the seven configurations, state- wide in all four service areas. (Joint Exhibit #3) Inter-Tel's technical response to ITB specification 3.7 relating to KSU operating temperatures stated: Comply. Environmental conditions listed are assumed to be for KSU interior. Installation manuals list ambient conditions with free air circulation. (Joint Exhibit #3, Technical response, p. 2.) Inter-Tel does not have a document containing full systems specifications. For its technical literature back-up it submitted several pages from an installation manual and several volumes of its installation and field maintenance manual. (Transcript, p. 187-188; Joint Exhibits #3 and 9). Those submittals provide in pertinent part: Environmental Requirements 3.05 The environmental requirements for the KSU are as follows: Requirements In Operation Temperature 32 to 80 F 0 to 26.5 C The manuals are guides to service personnel and contain recommendations to installers for climate conditions. The manuals do not include specifications of the temperature limits to which the equipment can be subjected and still operate. While some testimony was provided at the hearing that the equipment could operate at the extremes described in ITS specification 3.7, that information was not included anywhere in Inter-Tel's bid. (Transcript pp. 182-183, Joint Exhibits #3 and 8). Review and Disposition of Bids by DOS After opening, the bids were reviewed by the staff of the Division of Purchasing, Bureau of Procurement, and were then sent to the Division of Communications for a technical evaluation. The Division of Communications had prepared the technical specifications for the ITB in this case. (Transcript pp. 18, 24.) In his review of the bids, Roger Fisher, a communications engineer in the Division of Communications, found a problem with some of the vendors who submitted other than the designated PTS 120 HP surge protector on their equipment list and failed to provide technical literature to verify that it was "equivalent". He called approximately ten vendors and gave them the option of sending the technical literature or sending a letter stating that the specified equipment would be provided at no additional cost. (Transcript pp. 42, 43.) In response to the phone call, Jim Begue of Tel Plus sent a letter dated August 28, 1986, stating that the PTS powerline surge protector would be provided at the same prices quoted in his company's bid. (Joint Exhibit #2B) Inter-Tel was not contacted with regard to the discrepancy between its response, "comply", and its technical literature addressing temperature ranges for operation of the KSU. Inter-Tel's bid was determined to be non-compliant. On September 23, 1986, the bid tabulations were posted and Tel Plus was designated the lowest responsive bidder in eighteen of the twenty-eight configurations. Inter-Tel was the lowest bidder on eighteen of the twenty-eight configurations, but as indicated above, was considered non-responsive. (Joint Exhibit #6) The posting was withdrawn on September 24, 1986, because of some question with regard to the compliance of Tel Plus and other bidders' description of the "hands-free" features of their systems. It was determined that the systems were in compliance with the ITB. (Joint Exhibit #6 and #7) On October 3, 1986, a second list was posted indicating that Tel Plus was the lowest responsive bidder in twenty-one of the twenty-eight configurations. Inter-Tel was still the lowest bidder in eighteen configurations and was still deemed non-responsive in all configurations. (Joint Exhibit #8) Once more, DGS purchasing and communications' staff evaluated the process, and after meeting with the department attorney, decided that the contacts resulting in change of bid response were inappropriate. (Inter-Tel Exhibit #3, pp 12-13). The re-evaluation eliminated all but one responsive bidder. The bid was deemed non-competitive. On October 28, 1986, certified letters were sent to the bidders from William Monroe, Director of the Division of Purchasing, advising that all bids in response to Bid No. 298-730-310-W were being rejected pursuant to General Condition #8 of the ITB (reserving the right to reject all bids or waive minor irregularities or technicalities in bids received). The letter states, in pertinent part: .... Bidder confusion regarding ITB Protection, has resulted in non-responsive bids and unintentional procedural irregularities (Tel Plus Exhibit #1) Both Tel Plus and Inter-Tel filed timely protests of that intended action. Were the Bids Responsive? A small, inexpensive component in comparison to the entire electronic telephone system, the surge protector is nonetheless a highly significant piece of equipment, as it reduces the incidence of expensive damage to the larger system. Assuming that the inadvertent transposition of model numbers could be ignored, Tel Plus failed to provide with its bid any technical literature to substantiate that the surge protector it proposed was equivalent to the PTS 120 HP specified in the ITB. The company was unjustifiably presumptuous in its expectation that DGS would consider the two as equivalent since the TII 428 had been the specified model in the past. On the contrary, the change should have alerted bidders to some problem with the previous model. Reason dictates that if the two models were deemed "equivalent" by DGS the change in specifications would not have been necessary. The ITS General Conditions, paragraph 6. provides access prior to bid opening by vendors with questions regarding conditions and specifications: 6. INTERPRETATIONS: Any questions concerning the conditions and specifications shall be directed in writing to this office for receipt no later than 10 days prior to bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. This provision was not utilized by Tel Plus. The range of operating temperatures for the KSU is also significant, given the unit's sensitivity to heat and the adverse conditions sometimes existing at the installation site. Inter-Tel apparently also did not avail itself of the Interpretation's clause but rather attempted to clarify what it perceived as an unclear use of the specification terms, "environmental conditions". Its bid response qualifying its system's compliance only created additional confusion. Within the special conditions of the ITB, the purpose for requiring technical literature is unambiguous. See paragraph 5, above. The literature provided by Inter-Tel was in clear conflict with the ITB specification. Both the Inter-Tel and Tel Plus bids suffered from the same basic infirmities: both bids included facially obvious material conflicts with the specifications; both bids failed to explain why those conflicts did not exist. Tel Plus was initially an opportunity to correct its bid.
The Issue The issue is whether Respondent Department of Corrections acted in a manner contrary to its governing statutes, rules or policies, or the bid specifications in giving notice of its intent to award the contract for Invitation to Bid No. 96-DC- 6847R to Intervenor Behring Diagnostics, Inc.
Findings Of Fact On February 19, 1996 the Department issued an ITB for the provision of automated drug testing equipment, an automated data management system, and drug assays for the analysis of urine specimens collected at the Department’s major institutions and community facilities. After receiving and reviewing bids from Roche, Behring, and Abbott Laboratories (Abbott), the Department issued a Notice of Intent to Reject All Bids on April 10, 1996. On April 30, 1996 the Department issued ITB 96-DC-6847R for the same services. The same three vendors, Roche, Behring and Abbott, submitted bids which were opened on June 5, 1996. On its face, Roche’s bid of $.60 per test was the lowest cost of the three bids. Behring submitted a bid of $.90 per test. The Department’s evaluation committee correctly determined that bids submitted by Roche and Abbott were not responsive to the bid specifications. Roche’s bid was not responsive because: (1) it failed to include the cost of a printer at each site as part of the equipment package; and (2) it failed to indicate the vendor’s unconditional willingness to provide litigation support at no cost to the Department in defense of a legal challenge to the vendor’s technology. The bid specifications clearly required that printers be included as part of the computer hardware. Roche did not list printers anywhere in the narrative portion of its bid response. Roche’s response stated that it covered all items pertaining to the system hardware portion of the bid. The response indicated that Roche would provide the Department with Antek-LabDAQ report management software and listed specific items of hardware that would be included. But Roche did not list a printer. Roche’s bid response stated that the LabDAQ system would print reports. Roche included copies of a sample report sheets. Roche submitted other information describing the LabDAQ system that contained pictures of a printer. It also submitted a magazine article reviewing the LabDAQ system which listed an “Okidata printer” as part of the required hardware. However, the article noted that the software could be purchased separately. Submittal of this information was insufficient to indicate that Roche’s bid included the cost of a printer. Roche’s failure to include a printer in its bid was a material deviation from the bid requirements. The ITB clearly required the vendor to provide unequivocal litigation support at no cost to the Department if someone challenged the provider’s technology in a court action. This was a material requirement in the ITB. Roche responded that “upon request from the State and if deemed necessary Roche will provide documentation, affidavits and sworn testimony to substantiate the performance of the technology incorporated in the OnLine system.” (Emphasis added.) This ambiguous response was not an absolute commitment for Roche to provide the litigation support required by the specifications. In one section of Roche’s response it stated that it was “not aware of any past or present lawsuits that have been filed in connection to the COBAS MIRA Plus or the OnLine reagents.” In another section, Roche responded that a federal district court upheld drug testing results provided from a COBAS/Online system. These inconsistent statements may have resulted in a minor deviation from the bid specification. However, they are sufficient to further undermine confidence in Roche’s bid as submitted. During the hearing, Roche presented testimony that it intended for its bid of $.60 per test to include both printers and unconditional litigation support. This testimony constitutes an inappropriate attempt to amend Roche’s bid response. It does not change the fact that Roche’s bid, on its face, was not responsive as submitted. On the other hand, Behring’s bid was responsive to the specifications. It contained only one minor irregularity that provided no advantage to Behring. Roche has presented no evidence to the contrary. The Department’s evaluation committee did not complete the scoring process to compare the three vendors’ scores. Such a comparison is unnecessary where there is only one responsive bidder. By letter dated August 26, 1996 the Department again informed the vendors that it intended to reject all bids and issue a new request for proposals in September. Even though the Department had determined that Behring was the only responsive bidder, the letter did not address the responsiveness of any of the bids. The letter stated that the Department anticipated making changes to the specifications that would require a more structured response, i.e. revise the ITB to include a checklist for every required item which the bidder would cross-reference in its bid response. There is no evidence that the Department anticipated making changes to the substance of the specifications. On or about September 5, 1996 Behring sent the Department a Notice of Intent to protest the rejection of all bids and subsequently filed a timely formal written protest. In its formal protest, Behring referred to the Department’s conclusions in a memorandum dated August 23, 1996 that Behring was the only bidder to submit a conforming bid. Roche did not file a protest of the decision to reject all bids. On or about September 26, 1996 the Department sent Roche notice of Behring’s protest and enclosed a copy of Behring’s formal protest in Division of Administrative Hearings Case Number 96-4475BID. Roche did not intervene in the bid protest. The final hearing in the bid protest was scheduled for final hearing on October 23, 1996. The day before the hearing, representatives of the Department and Behring met to discuss the possibility of settling the case. Shortly before the settlement conference, the Department’s counsel called a Roche representative, Betty Bennett, and informed her that Behring had requested a meeting to attempt to resolve the protest. He was unable to make contact with an Abbott representative. No one from Roche attended the meeting. The Department did not issue any formal written notice that it intended to settle the case with Behring. The Department did not know prior to the meeting what the parties would discuss. The Department did not attend the meeting expecting to “negotiate a contract.” At the meeting, Behring initially took the position that the Department should award the contract to Behring at $.90 per test and not seek further competitive bids. The Department took the position that the contract should be subject to additional competitive bidding to determine what the result would be with more than one competitive bid. After further discussion, Behring offered to lower its bid price. The Department’s representatives left the room to discuss the offer. Upon their return, Department representatives made Behring a lower counteroffer. Behring and the Department eventually arrived at an oral settlement under which the Department would award the contract to Behring at a price of $.77 per test and Behring would dismiss its protest. The Department based its decision to settle the bid protest with Behring on the following: (a) the risk of losing the bid protest and being required to pay Behring $.90 per test; (b) the desire not to further extend the existing contract at the current price of $1.07 per test; (c) the risk that a third attempt to solicit competitive bids would result in another protest and further delay; (d) the fact that Behring had submitted responsive bids to the two previous solicitations; (e) the assumption that subsequent bids by Roche and Abbott would be higher when they included the omitted items that caused their rejection. There is no persuasive evidence to indicate that the Department’s reasons for settling Behring’s bid protest were pretextual or otherwise invalid. The Department correctly concluded that it might have to pay Behring $.90 per test if it lost the bid protest regardless of the applicable standard of proof in that proceeding. The Department also was justified in assuming that Roche’s bid price would be higher when it included the previously omitted printers. For these and other reasons set forth above in the Findings of Fact, the Department’s decision to settle the case by negotiating a lower contract price with Behring was in the best interest of the state of Florida. On October 23, 1996 the Administrative Law Judge in Case No. 96-4475BID entered an order closing the file of the Division of Administrative Hearings and relinquishing jurisdiction to the Department. The Department did not issue a Final Order setting forth the final disposition of the case. By letter dated October 30, 1996 the Department informed Roche and Abbott that it had negotiated a satisfactory contract with Behring pursuant to Rule 60A-1.018(1)(b), Florida Administrative Code. This letter advised Roche that the Department intended to award the contract to Behring. In the letter, the Department gave Roche the opportunity to request a hearing pursuant to Chapter 120, Florida Statutes, to protest the intended agency action. By letter dated November 8, 1996, Roche protested the notice of intended award to Behring. Without objection, Roche submitted an amended petition on December 10, 1996. Behring filed a petition for leave to intervene on November 27, 1996. An order dated December 11, 1996 granted that motion.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order awarding the contract for ITB No. 96-DC-6847R to Behring Diagnostic, Inc., and dismissing the protest of Roche Diagnostic Systems. DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In or about the fall of 1993, the Department issued a Request for Proposal and Bid Proposal Submittal Form (hereinafter referred to as the "RFP") for Lease No. 700:0674. Through the RFP, the Department solicited the submission of proposals to lease to the Department 5,748 square feet + 3 percent of office space in St. Lucie County for use as a probation and parole office commencing "5/1/94 or within 105 days after notification of award of bid whichever occurs last." According to the RFP, the term of the lease would be "[f]ive (5) years with an option to renew for an additional five (5) years." The probation and parole office in question is currently located in space leased to the Department by Petitioners.2 It has been at this location, which is in close proximity to the City of Fort Pierce police station, for approximately the last six years. Section A. of the RFP contained the "General Specifications and Requirements." The subject of "parking" was addressed in paragraph 7. of Section A., which provided as follows: Parking: Approximately 30 off-street spaces for the exclusive use of the employees and clients at no additional charge to the lessee. Parking space must be under the control of the bidder and be suitably paved, lined, and bumper pads installed. A minimum of two spaces must meet the requirements of the Standards for Special Facilities for physically disabled, Attachment D. BIDDER RESPONSE: a) exclusive spaces available on-site at no cost to the lessee; b) exclusive spaces available off-site at no cost to lessee. Spaces located from proposed facility. (distance) As An Option c) non-exclusive spaces available at no cost to lessee. Space located from proposed facility. (distance) Bidder's Initials Paragraph 12. of Section A. provided, in pertinent part, that "[t]he proposed space must be an existing building" and that the "[p]roposed use of this building must meet required zoning." Section B. of the RFP contained the "Space Requirement Criteria." Paragraphs 2. and 3. of Section B., which provided as follows, set forth the "Electrical requirements" and the "Telephone requirements," respectively: Electrical requirements Minimum of two duplex electrical outlets and one fourplex in each room or office including adequate additional fourplex outlets in each open clerical/file area. Facility complies with the National Electrical Code. BIDDER ACKNOWLEDGMENT Bidder's Initials Telephone requirements Minimum of one telephone outlet in each room or office including additional outlets in each open clerical/file area. All wiring, existing or to be installed, complies with the National Electrical Code, Section 8000-3, Paragraph d. BIDDER ACKNOWLEDGMENT Bidder's Initials The subject of "security" was addressed in paragraph 10. of Section B., which provided as follows: Security requirements: Security shall include but not be limited to the following: Locks on all outside doors and outside windows. Night lights on all outside doors. Night lights in parking area nearest building. Parking lot must be fully illuminated and create no dark shadows. Dead bolt locks on storage space doors. Convex detection mirrors in the lobby. Solid core doors swinging out into the lobby to separate lobby from secure areas. Electric pass-through buzzer locks (with keys) to be installed on solid core doors. Pass-through ports (similar to the Le Febure Model #BK-4431 walk up design window unit) to be used between the lobby and reception area. A two-way intercom system between reception area and the receptionist BIDDER ACKNOWLEDGMENT Bidder's Initials Paragraph 14. of Section B. listed certain "Miscellaneous requirements," including the following: PROTECTIVE ALARM SYSTEM The lessor shall, at his own expense, install or cause to be installed, maintain and arrange for 24 hours monitoring with a Certified Security Company during the term of this lease agreement the following equipment in regard to the alarm protective system: Burglar Alarm and Fire Alarm Door bugs and Window Tape Dual-Tech Motion Sensors for Computer and Typing areas Panic button with Silent Alarm Two 1/2" Bullet proof glass (lexan) in Reception and Cashier's windows . . . Staff of both sexes will be required to work in this facility during both daylight and evening hours. An environment in which staff can expect to be safe is essential. BIDDER ACKNOWLEDGMENT Bidder's Initials The "Evaluation Criteria (Award Factors)" were enumerated in Section of the RFP, which provided as follows: The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Rental, using Total Present Value methodology for basic term of lease (See #D, General Provisions Items 1 and 2) applying the preset value discount rate of 5.22 percent (Weighting: 40) Option period- rental rate proposed is within projected budgetary restraints of the department. (Weighting: 10) Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid. (Weighting: 15) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space. Building should be located in a professional business neighborhood.3 (Weighting: 7) Offers providing space all on the same floor. (Weighting: 5) Frequency and availability of satisfactory public transportation within one block of the offered space. (Weighting: 3) Availability of adequate dining facilities within two blocks of the offered space. (Weighting: 2) Proximity of offered space to the clients to be served by the Department at this facility. (Weighting: 5) Proximity of offered space to other Department activities as well as other public services. (Weighting: 3) Proximity of adequate parking area to the building. Must be well-lighted. (Weighting: 10) Total award factors= 100 The RFP's "General Provisions" were set forth in Section D. of the RFP. Among these "General Provisions" were the following: Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. . . . The Department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interest of the Department and the State. The Department reserves the right to reject any and all bid proposals for reasons which shall include but not be limited to the agency's budgetary constraints; waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals. . . . 10. Late bids, modification of bids, or withdrawal of bids: (a) Any bid received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. . . . Sealed bids will be received until 11:00 a.m. on November 23, 1993 . . . at which time all bids will be publicly opened and read aloud. Notification of award will be made within 30 calendar days, and shall be given either by posting the bid tabulation at the location where bids were opened or by certified United States mail, return receipt requested. . . . Failure to file a protest within the time prescribed in Subsection 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Protests not filed within the prescribed time limit will not be considered. To comply with this statute, a written notice of protest must be filed with the contact person listed in the request for proposal within 72 hours after receipt of this notice. Within ten days after the notice of protest is filed, a formal written notice of protest must be filed with the contact person listed in the Request for Proposal. Any questions concerning the specifications should be directed in writing to David Smith. . . Petitioners, Gulf and Hoyt C. Murphy submitted bid proposals in response to the RFP using the form provided by the Department. At no time prior to the submission of their bids did any of them protest to the Department concerning any of the provisions of the RFP. Gulf offered the Department 5,820 net square feet of office space in a shopping plaza it owns in the City of Fort Pierce (hereinafter referred to as "Gulf's plaza"). Petitioners offered the Department the same space they currently lease to the Department. Gulf's plaza consists of several buildings which, together, take up approximately 32,000 gross square feet of space. These buildings are not fully occupied. Vacancies exist. The plaza presently has approximately 117 on-site parking spaces.4 Adjacent to the plaza, on an out-parcel, is a Wendy's restaurant which also offers off-street parking. On the completed forms that they submitted, Petitioners and Gulf agreed to meet all of the specifications and requirements set forth in the RFP, including those relating to zoning,5 off-street parking,6 security, and electrical and telephone wiring, and, in addition, proposed the following per square foot rates for the basic lease and option periods: -BASIC LEASE Petitioners Gulf First Year $13.90 $14.35 Second Year 14.65 14.35 Third Year 14.90 14.35 Fourth Year 15.20 14.70 Fifth Year 15.50 14.70 Option PERIOD First Year $15.75 $15.05 Second Year 16.00 15.05 Third Year 16.25 15.05 Fourth Year 16.50 15.40 Fifth Year 16.75 15.40 The Department, through its bid evaluation committee, evaluated each of the bid proposals in accordance with "Evaluation Criteria (Award Factors)" set forth in the RFP. As part of the evaluation process, members of the bid evaluation committee visited each of the properties offered for lease. It appeared to the committee members, upon their visit, to the Gulf property, that Gulf would be able to provide the Department with "30 exclusive [parking] spaces available on-site," as it had promised it would in the RFP. On December 16, 1993, the chairman of the bid evaluation committee sent the following interoffice memorandum to Maria Cortes, the Department's Region IV General Services Manager, concerning the results of the evaluation process: The Lease Evaluation Committee has completed its review of the bid proposals and has conducted an on-site inspection of each subject building being offered for the above referenced lease [Lease #700:0674]. The average score for each evaluation criteria is listed below by bidder number for each bid. #1 [Petitioners] #2 [Gulf] #3 [Murphy] 1. 39.20 40 34.8 2. 9.40 10 7.70 3. 15 15 15 4. 6.3 7 6.3 5. 5 5 5 6. 1 1 1 7. 1.3 2 1.3 8. 5 5 5 9. 3 3 3 10. 9.6 10 9.6 TOTAL 94.8 98 88.7 It is the recommendation of the Lease Evaluation Committee that it would be in the best interest of the Department of Correction and the State of Florida to award this bid to bid number two (2), C.G. Gulf Property Associates, L.P., a Delaware Limited Partnership. This bidder received the highest evaluation score and was the lowest bid. In evaluating the three bids that were submitted, the committee members did not take into consideration the costs that the Department would incur if the Department moved the probation and parole office from its present location to either Gulf's property or Murphy's property, inasmuch as such moving costs were not among the "Evaluation Criteria (Award Factors)" set forth in the RFP. In any event, these costs would be minimal because the Department would utilize free inmate labor to accomplish the move. By letter dated December 22, 1993, the Department advised Petitioners of its intention to award Lease No. 700:0674 to Gulf. Thereafter, Petitioners filed the protest that is the subject of the instant proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order awarding Lease No. 700:0674 to Gulf over the protest of Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1994.
The Issue Whether the protest herein is premature under the terms of the Request for Proposals and Section 120.53(5) F.S.
Findings Of Fact This proceeding concerns a protest by Amdahl regarding DHSMV's "notice of intent to benchmark" with Unisys pursuant to RFP 046-95 REBID. The RFP was issued on April 5, 1995. Meetings concerning the specifications were held on April 14 and 18, 1995. No protests were timely filed with regard to the specifications. On May 4, 1995, the agency issued its notice of intent to benchmark as more specifically described below. The RFP is divided into three sections: the technical proposal, the price proposal, and the benchmark. So far, all proposals have been evaluated and ranked by DHSMV based on technical and price criteria. At this stage, Unisys is ranked first, and Amdahl is ranked second. When it had determined that Unisys had received the highest combined score on the technical and price proposals, DHSMV posted the tabulated scores of all proposers and notified them of the agency's intent to proceed to the benchmark evaluation phase of the RFP with Unisys. In an abundance of caution, the agency included in its notice of intent to benchmark, to which was attached the final point tabulation for all competing vendors, the notice of a right to protest within 72 hours pursuant to Section 120.53 (5) F.S. Amdahl timely filed its notice of protest and its formal protest. Without unnecessary elaboration, the thrust of Amdahl's protest is directed to Sections 3.23 and 6.0 of the RFP and DHSMV's scoring of the technical and price proposals. That protest includes, but may not be limited to, an accusation that the agency improperly permitted Unisys to manipulate its certified minority business enterprise compliance after the submittal of its response to the RFP. Amdahl further asserted that since a tabulation was attached to the notice of intent to benchmark and due to the wording of Section 120.53(5)(b) F.S., DHSMV Rule 15-2.003(2), and RFP General Condition 5 and Special Condition 3.5, Amdahl was required to challenge the DHSMV scoring and tabulation at this point in time or be presumed to have waived its right to protest. Pursuant to Sections 4.1 and 4.2 of the RFP, the highest ranked proposer (as determined by the scoring system thus far) next must participate in a month-long benchmark designed to demonstrate the highest ranked proposer's ability to perform. If the highest ranked proposer fails the benchmark, DHSMV will eliminate the highest ranked proposer and the next ranked proposer will be given the opportunity to perform the benchmark. If the second ranked proposer fails, the third can try benchmarking, and so on. Once some proposer passes the benchmark tier of evaluation, the recommendation to award will be posted. Specifically, RFP specifications 4.1 and 4.2 which were not challenged by a protest within 72 hours of the last explanatory meeting thereon, read as follows: CONTRACT AWARD It is the intent of the DHSMV to require the qualified proposer scoring the highest number of points after the Technical evaluation, and Costs evaluation of the proposals to benchmark all proposed hardware and software on the configurations proposed . The Benchmark will be performed at the DHSMV, Kirkman Data Center, Tallahassee, Florida. Upon successful completion of the Benchmark described in ATTACHMENT-B , a recommendation to award the contract resulting from RFP 046-95-REBID will be submitted to the Governor and Cabinet of the State of Florida. Final award of a contract for this RFP will be contingent upon the agency obtaining third party financing. MANDATORY BENCHMARK REQUIREMENT The hardware and software proposed in this RFP shall be benchmarked using the performance criteria set forth in ATTACHMENT-B. This benchmark shall be performed utilizing ORACLE asw the DHSMV data- base standard. It is the responsibility of the proposer to insure that all hardware and software proposed meet this requirement. In the event any non conformity or noncompatibility is encountered at any time, the proposer will be eliminated from further consideration and the next highest points scoring proposer will be given the opportunity to perform the benchmark. (Emphasis in the original) DHSMV asserted unequivocally that in the present case, if Unisys does not pass the benchmark, then Unisys will be eliminated and Amdahl will be permitted to benchmark. It is equally clear that if Unisys passes the benchmark, then a recommendation to award will be issued. All concerned seem to recognize the foregoing as the natural flow of the RFP award procedure as contemplated by the RFP. Even the prayer for relief contained in Amdahl's petition states, in pertinent part, ". . . Amdahl requests that DHSMV suspend further action with respect to the contract award process until this protest is resolved by final agency action; . . . That a DOAH recommended order and a DHSMV final order be entered selecting Amdahl as the winning proposal for benchmarking and ultimate award of the contract; . . . . Amdahl asserts that it is both fairer and more efficient to score the competing proposals and resolve all scoring issues pertaining to the technical and price portions before benchmarking the interim winner, rather than providing an opportunity for the interim winner to negotiate the manner in which its products can be integrated to achieve conformance and compatibility with the agency's purposes; that the benchmarking procedure directed to Unisys cannot be monitored by Amdahl for possible protest purposes at a later stage; and that benchmarking permits Unisys to make further adjustments towards qualifying a minority enterprise that was not certified at the time Unisys submitted its proposal. Amdahl did not raise any of these issues prior to submitting its own bid.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the current petition without prejudice to its appropriate issues being raised within the statutory time frame after the agency's recommendation to award contract described in Section 4.1 of the RFP is issued and prior to that recommendation to award being sumitted to the Governor and Cabinet. DONE and RECOMMENDED this 6th day of June, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1995 COPIES FURNISHED: David K. Miller M. Stephen Turner Jay Adams BROAD AND CASSEL P.O. DRAWER 11300 215 South Monroe St. Ste 400 Tallahassee, Florida 32302 Enoch J. Whitney Judson Chapman Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 Mary Piccard W. Robert Vezina III Cummings, Lawrence & Vezina, P.A. 1004 De Soto Park Drive PO Box 589 Tallahassee, Florida 32302 Charles J. Brantley Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.
Findings Of Fact The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close. No requests were made to the Department to place its explanation in writing and no written interpretation was provided. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not.. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.
The Issue Whether, when making a recommendation to award ITB No. 15C-26K (Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment, and Uniforms) to (1) Matty's Sports (Matty's), (2) Simmons Team Sports (Simmons), (3) D&J Commerce Solutions, Inc., d/b/a OLC Team Solutions (D&J), and (4) Palm Beach Sports (PB Sports), Respondent, School Board of Palm Beach County (School Board), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact ITB No. 15C-26K and the Bid Process On November 4, 2015, the School Board issued Invitation to Bid (ITB) No. 15C-26K entitled "Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment and Uniforms" for the provision of athletic equipment (hard goods) and athletic clothing, including uniforms (soft goods). The ITB offered prospective vendors the opportunity to bid on 26 items but did not require that a vendor offer a bid for each of the 26 identified items. The odd-numbered items were for hard goods and the even-numbered items were soft goods. Paragraph G,
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by BSN Sports, LLC, and upholds the awards of contracts ITB No. 15C-26K to Matty's Sports, Simmons Team Sports, D&J Commerce Solutions, Inc., and Palm Beach Sports. DONE AND ENTERED this 22nd day of July, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2015.
The Issue The issues in this bid protest are whether Intervenor's bid materially deviated from the project specifications and, if so, whether Respondent's preliminary decision to award Intervenor the construction contract at issue was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Pursuant to an Invitation to Bid (the "ITB"), Respondent Department of Management Services ("DMS") solicited bids on a project known as the ICARE Baypoint School Classroom Addition (the "Project").3 Bids were due on September 22, 2005. As a condition of submitting a bid, interested contractors needed first to be "prequalified" by DMS. DMS prequalified Petitioner Merkury Corporation ("Merkury") and Intervenor E.L.C.I. Construction Group, Inc., ("ELCI"), among several others. Each bidder was required to submit a "Base Bid" (i.e. the total price for all work, including labor and materials, specified in the ITB), together with a price for each of six numbered "Alternates."4 The contract would be awarded to the responsive bidder offering the lowest bid, the latter being defined as, generally speaking, the bid proposing the lowest aggregate price on the Base Bid plus the cost(s) of any Alternate(s) chosen by DMS.5 Of interest in this case is Alternate No. 1, which, in the ITB as originally issued, appeared as follows: Alternate No. 1 — Allowance for Owner [=DMS] contribution for buried feeder conduit to the electrical transformer (Owner will provide number). Alternate No. 1 referred to the work——described in the Electrical Site Plan (which was part of the ITB)——that would be necessary to bring electricity to the Project (hereafter, the "electric service connection"). In brief, establishing the electric service connection entailed installing the wiring between the electrical panel in the new building and the nearest transformer, which latter belonged to the local electric company, Florida Power & Light ("FP&L"). DMS knew that the Project would need power. Thus, Alternate No. 1 was not optional, as the nomenclature might suggest. But the cost of establishing the electric service connection would be largely dependent on factors exclusively within FP&L's control. And as of the time the ITB was issued, DMS had been unable to obtain from FP&L sufficient information to allow bidders accurately to estimate the cost of this particular item. The purpose of Alternate No. 1, therefore, was to make the electric service connection a non-competitive item. This would be accomplished by DMS's providing prospective bidders with a cost estimate based on information to be obtained from FP&L. DMS expected that each competing contractor would bid the same amount on Alternate No. 1, namely, the amount that DMS had provided. As initially defined, however, Alternate No. 1 was somewhat confusing, and at the pre-bid meeting in early September 2005, an issue was raised about DMS's intent regarding this item. As a result, Addendum No. 1 to the ITB, which was issued on September 8, 2005, to address questions raised at the pre-bid meeting, included the following: ADDENDUM NO. 1 — ITEM NO. 5: An allowance shall be carried for the cost of new service connection from new transformer to nearest FP & L point of service. Owner will provide budget number to be carried for this allowance. This addendum amended the description of Alternate No. 1, making clearer (it was believed) DMS's intent that the electric service connection not be a point of competition between the bidders, as each would carry, as an allowance, the Owner-provided budget number for this item. Unfortunately for everyone concerned, DMS never provided the interested contractors the budget number reflecting the estimated cost of establishing the electric service connection.6 Consequently, none of the bidders proposed a dollar figure for Alternate No. 1. Instead, each responded to Alternate No. 1 by stating, in effect, that the requested allowance could not be provided according to the specifications (which unambiguously instructed that DMS would provide the number to be carried for this allowance). To be sure, the bidders' respective responses to Alternate No. 1 were not identical. Merkury, for example, wrote "N/A," which is commonly understood to mean "not applicable." ELCI's bid proposal, on the other hand, stated, "By Owner." Merkury argues that the phrase "By Owner" means that DMS, rather than ELCI, should be responsible for establishing——at DMS's expense——the electric service connection. The undersigned rejects this interpretation of ELCI's bid as unpersuasive and unsupported by the greater weight of the evidence. In the instant context, the phrase "By Owner" is most readily and reasonably understood, objectively, as being functionally the equivalent of "N/A." ELCI was simply expressing the idea that the budget number (not the work) would be provided by DMS——a reasonable response, given the language of Alternate No. 1. In sum, despite some differences in wording, every one of the responses to Alternate No. 1, including ELCI's, was the product of the bidder's inability, in the absence of the Owner-provided budget number, to carry as an allowance the Owner-provided budget number. Of the five contractors who timely submitted a bid proposal, Merkury's Base Bid of $2,874,597 was the lowest, followed closely by ELCI's Base Bid of $2,877,000. DMS decided to take all six Alternates, however, and after the additional costs were added, ELCI was deemed the lowest responsive bidder, Merkury the second lowest. Accordingly, on October 17, 2005, DMS announced its intent to accept ELCI's bid in toto and award ELCI the contract for the Project. Protesting the intended award, Merkury takes the position that DMS's failure to provide the budget number for Alternate No. 1 effectively rendered this item a nullity, compelling the bidders to include in their respective Base Bids the cost of the electric service connection, which work remained a part of the Project, by virtue of the bid specifications, notwithstanding the loss of Alternate No. 1. Consistent with this understanding of the effect of DMS's silence regarding the budget figure, Merkury took into account the anticipated cost of establishing the electric service connection when working up its Base Bid, ultimately adding $33,388 to the bottom line as a result. ELCI, in contrast, assuming that DMS eventually would provide the figure for the allowance, did not factor into its Base Bid calculation the cost of the electric service connection. ELCI guessed correctly, for in choosing Alternate No. 1, DMS decided that it would provide the successful bidder with the budget number when such became available and thereafter pay the cost of establishing the electric service connection via a change order. Merkury maintains that DMS should have rejected ELCI's bid as materially non-responsive (because the costs that were used in preparing ELCI's Base Bid did not include the cost of establishing the electric service connection) and awarded the contract to Merkury as the lowest responsive bidder. In light of Merkury's argument, it is relevant to note that the ITB called for the Base Bid to be given as a lump sum, without breaking out individual costs; that is, in fact, how each of the six responding contractors presented their respective Base Bids. Thus, there was no way for DMS to know, upon opening the bids, that Merkury's Base Bid included a cost component relating to the electric service connections, while ELCI's did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered directing that the proposed award to ELCI be implemented in accordance with DMS's intentions. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2006.
The Issue Whether Cubic Western has standing to bring the bid challenge involved in these proceedings.
Findings Of Fact On or about March 31, 1989, CUBIC submitted a Proposal in response to DOT RFP-DOT-88-01 for a toll collection system for Florida's Turnpike. After reviewing this proposal, DOT determined CUBIC's proposal was nonresponsive to the RFP, and on May 18, 1989, advised CUBIC of the rejection of its proposal and of CUBIC's right to challenge this determination by filing a petition for administrative hearing. CUBIC timely filed a Formal Written Protest dated June 5, 1989 requesting an administrative hearing challenging this agency action. This protest was forwarded to the Division of Administrative Hearings by DOT order of July 20, 1989, and the case was scheduled to be heard August 4, 1989. On July 31, 1989, CUBIC filed a Notice of Voluntary Dismissal. The Division of Administrative Hearings entered an ORDER OF DISMISSAL closing the DOAH file and returning the matter to DOT for final disposition. DOT entered a Final Order dismissing CUBIC's bid protest. On October 5, 1989, CUBIC filed an Amended Complaint in the Circuit Court, Second Judicial Circuit, in and for Leon County, against DOT, which had been consolidated with an action filed by PRC against DOT as both cases stemmed from action taken by DOT on RFP-DOT-88-01. In this civil action, CUBIC seeks return of the RFP it submitted to DOT. In this civil complaint CUBIC asserts that since its proposal had been rejected by DOT as nonresponsive to the RFP, at that point in time "DOT and the public had no further interest in CUBIC's Proposal, and there is no public interest to be served by disclosing the CUBIC Proposal at this time." On November 21, 1989, DOT posted notice of its intended award of the contract based on the RFP to PRC. On December 6, 1989, CUBIC timely filed the Formal Written Protest that is the subject of this Motion.
Recommendation It is recommended that the Formal Written Protest dated December 6, 1989, submitted by Cubic Western Data, be dismissed. ENTERED this 2nd day of January 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1990. COPIES FURNISHED: Frank A. Shepherd, Esquire Gernard M. Kouri, Esquire Thomas H. Bateman, 111 Kimbrell and Hamann General Counsel Suite 900, Brickell Center Department of Transportation 799 Brickell Plaza 562 Haydon Burns Building Miami, FL 33131-2805 Tallahassee, FL 32399-0450 Robert Daniti, Esquire Ben G. Watts Department of Transportation Secretary Haydon Burns Building, MS 58 Department of Transportation Tallahassee, FL 32399-0458 Haydon Burns Building 605 Suwannee Street Deborah A. Getzoff, Esquire Tallahassee, FL 32399-0450 David Bressler, Esquire Fowler, White, et al. 101 N. Monroe Street Tallahassee, FL 32301
