The Issue This cause has been resolved upon Intervenor's Motion to Dismiss for Petitioner's failure to timely file the formal written protest required by Section 120.53(5) F.S. [1990 Supp.] to protest award of Respondent Alachua County School Board's BID 341 "Bid Proposal For Furnishing Monitoring Security Systems" to Intervenor.
Findings Of Fact Request for Bid 341 "Bid Proposal For Furnishing Monitoring Security Systems" dated June 14, 1991 was issued by Respondent Alachua County School Board and received by Petitioner/protestant Universal Network, Inc. on or about that date. The bid-closing date was 1:30 p.m. July 2, 1991. No one challenged or protested the specifications prior to the bid submittal date. Universal Network, Inc. and Crime Prevention Security Systems were the only bidders who timely filed bids on or before June 2, 1991. The request for bid accompanied by bid specifications had notified all potential bidders that School Board personnel also intended to open the bids on July 2, 1991, and stated that "Bid tabulations with recommended awards will be posted . . . on or about the Monday following bid opening, . . ." The request for bid also provided "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." (HO Exhibit 6) The bids were opened July 2, 1991, and oral communications were made by Respondent's personnel to the effect that Crime Prevention Security Systems would probably be successful since it was low bidder. However, Respondent's personnel delayed posting a formal intent to award on Monday, July 8, 1991 because Petitioner orally announced itself aggrieved by the process. Eight days after the bid opening, on July 10, 1991, Respondent's personnel met with both bidders in an effort to resolve any issue that could result in a formal protest. This meeting was tape recorded by the Petitioner. After this meeting, Petitioner filed a letter dated July 11, 1991 stating that Petitioner "learned" through "verbal notification" as of the July 10 meeting that it would not be awarded the bid, outlining its own prior contract work for the Respondent School Board, attacking the bid specifications, and notifying the Respondent that Petitioner would cease to monitor security under the existing contract at midnight on July 31, 1991. At hearing, Petitioner acknowledged that it did not rely on this July 11, 1991 letter (HO Exhibit 1) as its notice of protest. Nothing was formally decided until, on July 16, 1991, Respondent, through its employee, David C. Hotary, formally posted its intent to award Bid 341 to Crime Prevention Security Systems. On that date, Respondent also wrote and hand-delivered a formal letter-notice of intent to Petitioner's president. That letter provided, in pertinent part: As follow-up to our meeting of July 10, and your letter of July 11, this is to advise that posting of the recommended bid award to crime prevention security systems occurred as of this date and will remain posted for a three day period. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. (Emphasis supplied) (HO Exhibit 2) There is no dispute that Petitioner actually received this written notice of decision or intended decision on July 16, 1991. This procedure complied with Respondent's obligations to provide notice of the award and a window for Petitioner's bid protest under the provisions of Section 120.53(5)(a). F.S. [1990 Supp.] and Respondent's rule (HO Exhibit 5). On July 17, 1991, the Petitioner's president filed with the Respondent a letter bearing that date which provided, in pertinent part, This letter is to inform you that Universal Network, Inc. is now formally protesting BID 341 "Bid Proposal For Furnishing Monitoring Security Systems." We base our protest on unpublished bid variances. (HO Exhibit 3) There is no dispute that this letter was filed with the Respondent within 72 hours "after the posting of the bid tabulation or after receipt of the notice of agency decision or intended decision." It clearly constituted the "notice of protest" contemplated by Section 120.53(5)(b) F.S. [1990 Supp.] and is timely under that statute. Under that statute and pursuant to Respondent's rule, the 10 days for filing the required formal written protest would have run out on July 29, 1991, a Monday, allowing for Saturday and Sunday. On July 24, 1991, five days before the formal written protest was due, Respondent's personnel telephoned the Petitioner's president and a conversation ensued. Upon the representations at formal hearing of Petitioner's president Daniel Boudreau, it is found that this conversation encouraged him to file another letter to the Respondent on July 31, 1991. (HO Exhibit 4) Petitioner's president asserted that Respondent's July 24, 1991 phone call was only to urge him to file a letter setting out his grounds for protest more fully so that the issues between Petitioner and Respondent could be resolved informally. Filing a letter which sets out the grounds for a notice of protest is a fair description of what a formal written protest is supposed to do, and it was Respondent's position that the phone call was to urge Petitioner to file its formal written protest. Whether or not the filing of this July 31, 1991 letter could constitute a means of informal resolution of the bid dispute as asserted by Petitioner is a legal issue and is discussed in the Conclusions of Law, infra, but it is undisputed that Respondent's telephone call of July 24, 1991 actually encouraged Mr. Boudreau to file a more detailed letter and did nothing to discourage filing a formal written protest, which formal written protest is mandatory under the applicable statute and rule. Nonetheless, Petitioner filed nothing whatsoever in writing with the Respondent between July 17, 1991 (the date of the notice of protest) and July 31, 1991. On July 31, 1991, Petitioner filed with the Respondent its letter which provided, in pertinent part: This letter is to inform you that Universal Network, Inc. has formally protested BID 341 "Bid Proposal for Furnishing Monitoring Security Systems." We base our protest on unpublished bid variances. Universal Network, Inc. is now asking for a formal hearing and also will be willing to submit a new bid with the SBAC corrected bid specification. Petitioner's July 31, 1991 letter goes on to compare how Petitioner's bid would be altered as of July 31, 1991 if the original bid specifications had specified or clarified certain items or terms and to show that Petitioner's July 2, 1991 bid price would have been lower if that had been the case. (HO Exhibit 4) Petitioner's July 31, 1991 letter clearly constituted Petitioner's "formal written protest" as contemplated by Section 120.53(5)(b) F.S. [1990 Supp.] and the rule and is untimely under that statute and rule.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Alachua County enter a Final Order dismissing the protest/petition of Universal Network, Inc. RECOMMENDED this 19th day of September, 1991, 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 19th day of September, 1991. COPIES FURNISHED: Dale A. Boudreau, President Universal Network, Inc. 1031 NW 6 Street, Suite A-3 Gainesville, FL 32601 Thomas L. Wittmer, Staff Attorney School Board of Alachua County 620 E. University Avenue Gainesville, FL 32601 Robert E. Roundtree, Jr., Esquire 111 SE 1st Avenue Gainesville, FL 32602 Dr. Douglas Magann, Superintendent Alachua County School Board 620 East University Avenue Gainesville, FL 32601
The Issue Whether, in issuing the Revised Recommendation/Tabulation for contracts for Items 1 and 3 for Invitation to Bid No. 15- 048E, Multifunctional Devices, Cost-Per-Copy, Respondent 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 On June 3, 2014, SBBC issued ITB No. 15-048E (the ITB) entitled "Multifunctional Devices, Cost-Per-Copy" for the provision and maintenance of copying devices during the contract term. The listed Submittal Requirements were: Manufacturer's Authorization Special Condition 8; Descriptive Literature Special Condition 6; and Material Safety Data Sheets Special Condition 16. A Bidder's Preference Statement was not identified as a Submittal Requirement. Section 4, Paragraph 2, of the ITB was entitled "TERM" and notified bidders that SBBC sought through the award of this bid to "establish a contract for the period beginning from the date of award and continuing through June 30, 2017." The Bid Summary Sheet found at Section 5 of the ITB requested bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months and for 36 months. Page 1 of the ITB contained a certification to be executed by each bidder's authorized representative which stated in pertinent part as follows: Bidder agrees to be bound to any and all specifications, terms and conditions contained in the ITB, and any released Addenda and understand that the following are requirements of this ITB and failure to comply will result in disqualification of bid submitted. All bidders submitted a signed bidder certification. Section 3, Paragraph 1(a), of the General Conditions of the ITB provided as follows: SEALED BID REQUIREMENTS: The "Bidder Acknowledgment Section" must be completed, signed and returned with the bid. The Bid Summary Sheet pages on which the Bidder actually submits a bid, and any pages, upon which information is required to be inserted, must be completed and submitted with the bid. The School Board of Broward County (SBBC) reserves the right to reject any bid that fails to comply with these submittal requirements. BIDDER'S RESPONSIBILITY: It is the responsibility of the Bidder to be certain that all numbered pages of the bid and all attachments thereto are received and all Addendum released are received prior to submitting a bid without regard to how a copy of this ITB was obtained. All bids are subject to the conditions specified herein on the attached bid documents and on any Addenda issued thereto. Section 3, Paragraph 6, of the General Conditions of the ITB provided as follows: AWARDS: In the best interest of SBBC, the Board reserves the right to: 1) withdraw this bid at any time prior to the time and date specified for the bid opening; 2) to reject any or all bids received when there are sound documented business reasons that serve the best interest of SBBC; 3) to accept any item or group of items unless qualified by Bidder; and 4) to acquire additional quantities at prices quoted on this ITB unless additional quantities are not acceptable, in which case, the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." On June 18, 2014, SBBC issued Addendum Number 1 for the ITB which replaced a number of pages within the bidding documents and contained responses to questions posed by prospective bidders. Addendum Number 1 included Question No. 6 in which Xerox inquired whether SBBC "would . . . consider a change to the contract term of the contract to 48 or 60-month term?" SBBC responded through Addendum Number 1 that it had amended the bid "to include additional pricing for 48 or 60-months term[s]," and SBBC continued to request proposals for a 36-month contract term. Addendum Number 1 revised Section 4, Paragraph 2, of the Special Conditions of the ITB to state as follows: TERM: The award of this bid shall establish a contract for the period beginning from the date of award and continuing through an award for a term of 36, 48 or 60 months. Bids will not be considered for a shorter period of time. All prices quoted must be firm throughout the contract period. Items will be ordered on an as needed basis. Addendum Number 1 included an Appendix A–Summary Cost Sheet which required bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months, 36 months, 48 months, and 60 months. On June 20, 2014, SBBC issued Addendum Number 2 for the ITB. The first page of Addendum Number 2 advised prospective bidders, "This Addendum amends the above referenced bid in the following particulars only: 1. DELETE: Appendix A–Cost Summary Sheet INSERT: Revised Appendix A–Cost Summary Sheet." The first page of Addendum Number 2 further cautioned bidders that "[i]t is important to include the REVISED page when submitting your response." Addendum Number 2 went on to provide a Revised- Appendix A-Summary Cost Sheet which stated "A Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months" and included a cost summary sheet for each of those three options. The ITB and addenda numbers 1 and 2 were released by SBBC via Onvia DemandStar, with email notices thereof to prospective vendors who subscribed to its bid notification service. Toshiba downloaded the ITB, Addendum Number 1, and at least the first page of Addendum Number 2 from DemandStar prior to the submission of its bid to SBBC. Again, the first page of Addendum Number 2 cautioned bidders that Appendix A–Summary Cost Sheet had been deleted and replaced and that it was "important to include the REVISED page when submitting your response." No bid specifications protest was filed by any person or entity concerning the ITB or addenda numbers 1 or 2. On July 3, 2014, SBBC opened bids timely submitted in response to the ITB by: Toshiba; ImageNet; Innovative; Lexmark International, Inc.; and Ricoh. Konica had also presented a bid to SBBC in the bid opening room prior to the opening of bids but after the announced time for submittal of bids. The Konica bid was delivered to SBBC but was not opened at the time of the bid opening. Toshiba, the incumbent, was the only bidder that violated the pricing requirements of the ITB. The bid submitted by Toshiba utilized the version of Appendix A-Summary Cost Sheet that was released under Addendum Number 1 and only offered cost- per-copy pricing for the 60-month term option. Toshiba's bid did not submit the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, nor did it contain any bids offering cost per copy pricing to SBBC for the 36 or 48-month term options. Although Toshiba's bid was not rejected as non-responsive for failing to bid on the 36 and 48-month term options and for failing to utilize and complete the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, SBBC's staff later concluded in hindsight that it should have been rejected for such non-compliance. Toshiba's bid included a "Pricing" note immediately prior to its Appendix A–Summary Cost Sheet that stated: [Toshiba] is proposing a 60 month CPC as a response to the [ITB]. Based on the fact the [ITB] has no minimum, cancellation for convenience, ability to upgrade and downgrade with no penalty, it is in the best interest of our organization to bid a term of 60 months. This term allows us to provide the most aggressive price to the [SBBC] and maintain the excellent service and support level in place. SBBC's staff recommended that an award be made under the ITB for pricing offered for a 36-month contract term for Items 1, 2, and 3 for a contract period of August 6, 2014, through September 30, 2017. On July 10, 2014, SBBC posted its initial ITB Recommendation/Tabulation which did not consider the Konica bid. The initial posted Recommendation/Tabulation notified bidders of SBBC's intended award of contracts for Items 1 and 2 to ImageNet as the primary awardee and to Innovative as the alternate awardee for a contract period of August 6, 2014, through September 30, 2017, and recommended the award of contracts for Item 3 to Ricoh as primary awardee and to ImageNet as alternate awardee for a contract period of August 6, 2014, through September 30, 2017. Timely bid protests and bid protest bonds were filed by Konica and by Toshiba concerning SBBC's initial Recommendation/Tabulation of July 10, 2014. SBBC's Bid Protest Committee conducted a meeting with the protestors on August 26, 2014, and determined that Konica's bid had been timely submitted and directed SBBC's Procurement and Warehousing Services Department (the Department) to evaluate Konica's bid for responsiveness. It also directed the Department to revise its recommendation on the ITB to reject Toshiba's bid for Item 2 as the device offered by Toshiba for that item did not meet the ITB's specifications which called for a single device capable of performing 95 copies per minute (cpm) and Toshiba instead offered two devices that performed at 85 cpm. After reviewing Konica's bid for responsiveness, SBBC posted a Revised Recommendation/Tabulation for the ITB on August 29, 2014, which (a) recommended award of Item 1 to ImageNet for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to Innovative as the alternate awardee; (b) recommended award of Item 3 to Ricoh for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to ImageNet as the alternate awardee; and (c) recommended the rejection of Toshiba's bid for Item 2 for its failure to meet the specifications for that Item. On September 4, 2014, Toshiba timely filed its notice of intent to protest the August 29, 2014, posted Revised Recommendation/Tabulation. On September 15, 2014, Toshiba timely filed its Amended Formal Petition Protesting Proposed Revised Recommendation/Tabulation. SBBC's Bid Protest Committee conducted a meeting with Toshiba on November 5, 2014, pursuant to section 120.57(3), SBBC Purchasing Policy 3320, and the ITB, and rejected Toshiba's bid protest. On November 10, 2014, Toshiba timely requested that SBBC forward its bid protest to DOAH for a formal hearing. Toshiba has presented a number of arguments in these proceedings seeking to avoid the circumstances Toshiba created for itself when it failed to comply with Addendum Number 2 and violated the ITB's pricing requirements and the ITB's requirement as to the term of the contract to be awarded, when Toshiba only submitted a single bid and restricted the contract term for which it would be considered to 60 months. First, Toshiba attempts to divest SBBC of its express authority to select proposals for any contract duration for which it solicited bids other than for a month term. Second, Toshiba argues that SBBC was somehow obligated to specify within the bid specifications those business considerations that would inform SBBC's selection of the duration of the contract term to be awarded under the ITB. Third, Toshiba argues that ImageNet was non-responsive regarding the ITB's specifications concerning manufacturer's certifications. Toshiba also argues that all bidders, including itself, were non- responsive with regard to the ITB's specifications regarding bidding preference laws. None of the arguments presented by Toshiba in opposition to SBBC's intended award of Items 1 and 3 are persuasive. The Selection of the 36-Month Term SBBC's recommended award for a 36-month contract period from October 7, 2014, through November 30, 2017, is consistent with the terms and conditions of the ITB and its addenda. At the very start of this competitive solicitation, SBBC informed bidders through Section 4, Paragraph 2, of the ITB and the Bid Summary Sheet at Section 5 of the ITB that it was seeking a contract through June 30, 2017-–i.e., a 36-month contract. SBBC also made it clear in its response to Question No. 6 of Addendum Number 1 that "[t]he contract will be for a full 36 months." Although SBBC revised the bid specifications through Addendum Number 1 to allow bidders to submit "additional pricing for 48 and 60 months term[s]," "to allow the School District to consider a 48 and/or 60 months term contract," and revised Section 4, Paragraph 2, of the ITB to provide for "an award for a term of 36, 48 or 60 months," it was clear under the ITB that SBBC contemplated that a 36-month contract could serve its needs. Addendum Number 2 further revised the bid specifications by providing the Revised–Appendix A–Summary Cost Sheet which informed bidders that "a Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months." SBBC intended to review the additional pricing offered for 48 and 60- month contract terms to determine whether those particular options were a better business decision for SBBC. Several factors were considered by SBBC in selecting the contract duration for the award under the ITB. The selection of the shorter 36-month contract term was consistent with the expressed terms of the ITB and addenda and the expressed preference of SBBC's governing board to refrain from entering into long-term contracts and enabled SBBC to be flexible in finding solutions to its copying needs and to take advantage of changes that may arise in technology; avoided problems the school district was currently experiencing with a long-term cost-per- copy contract which ranged from equipment performance issues to the long-term placement of technology in schools; and enabled the school district to conduct research to determine whether future implementation of a managed print solution would provide the school district with additional cost savings or financial benefits in contrast to the cost-per-copy services being procured through the ITB. Clearly, this selection was neither arbitrary nor capricious. SBBC's elected governing board has made it known by its actions taken at public meetings that it disfavors long-term contracts for the procurement of goods and services and has gone so far as to reduce the term of contracts from the dais. SBBC's staff determined that the pricing offered to SBBC for a 60-month contract term was not significant enough to recommend a contract longer than the 36-month term SBBC had been requesting since the release of the ITB. Any cost advantages offered by Toshiba's bids for Items 1, 2, and 3 were reduced by $525,000 per year due to the disqualification of its bid for Item 2, which failed to meet the ITB's specifications. Consideration of Managed Print Services Xerox Corporation informed SBBC that a managed print services (MPS) program could save millions of dollars per year and later submitted a no bid response to SBBC regarding the ITB because SBBC was not implementing a MPS program under the ITB. SBBC had also received proposals from vendors in October 2013 concerning a MPS program and concluded that there existed a potential annual savings of millions of dollars if such a program could be implemented. All of which were additional reasonable, rational reasons for SBBC to remain consistent with its decision to award the contracts for a term of 36 months and not something longer. The ITB contains standard terms and conditions which enable SBBC to terminate an awarded contract regardless of reason and with or without cause upon 30 days written notice to the other party. Toshiba wants SBBC to rescue Toshiba from its failure to submit required bids for 36-month and 48-month periods by forcing SBBC to award a contract obligating the agency for a longer duration under the ITB than desired by the agency and then have SBBC terminate the 60-month contract award for convenience after 36 months. SBBC includes termination for convenience provisions within its contracts for goods and services due to section 1011.14, Florida Statutes, which restricts the ability of district school boards to obligate public funds for a period beyond one year. The inclusion of the standard termination for convenience clauses in its ITBs enables SBBC to enter into contracts exceeding one year which affords the school district opportunities to obtain continuity of service and price advantages that would not be available under shorter contracts. While SBBC has the ability under the ITB to terminate contracts for convenience upon 30 days' notice, it rarely does so. SBBC has never exercised its right to terminate its two prior contracts for the services sought under this ITB. Any such termination requires action by SBBC's governing board during a public meeting. SBBC's staff would not engage in the sham of recommending a contract to its governing board for a contract term longer than the period for which it intends to procure services from a vendor. SBBC's procurement staff believes that using the termination for convenience clause in the manner Toshiba recommends can have an adverse effect upon the school district's ability to encourage bidders to participate in its competitive solicitations or to offer it their best pricing. Questions 1 and 59 of Addendum Number 1 of the ITB provide evidence of concern within the bidding marketplace that SBBC might exercise its termination for convenience clauses with regard to the services being procured under the ITB and support the perception of SBBC's that it should avoid a reputation for exercising such termination authority. Toshiba argues that SBBC somehow materially misled bidders through the ITB by stating in response to Question No. 3 concerning MPS of Addendum Number 1 that: The School District is not planning to implement a Managed Print Services at this time. The School District would like to receive Additional information regarding other districts that have implemented a Managed Print Services. There are no evaluation points associated with this ITB. SBBC's responses to Question No. 3 of Addendum Number 1 were accurate and did not mislead bidders. Toshiba is the only bidder to claim to have been misled. Section 6, Paragraph 10, of the ITB requested bidders provide SBBC with information about how the awardee could transition SBBC to a MPS model from the cost-per-copy model being offered under its bid. While SBBC requested such information from vendors within the bidding marketplace, there is no evidence that any bidder's provision or omission of such information within its bid submission was considered in the selection of the recommended awardees. In fact, ImageNet was recommended for award even though it did not provide this ancillary information about transition to a MPS delivery model. Rather, the recommended awardees for a 36-month contract term for Items 1 and 3 were determined solely on the basis of cost submitted for those items by the bidders, all in accordance with the ITB. A MPS program was a possible initiative being considered by SBBC's former Chief Information Officer prior to his departure from SBBC in February 2014, at which time the school district's current cost-per-copy contract was nearing its expiration. Although SBBC still had an interest in the possibility of a MPS program, it was not going in that direction at the time it needed to release a bid for copying services to replace its current expiring contract. Toshiba contends that SBBC was somehow required to disclose to bidders whether the potential future implementation of a MPS program might impact the contract award period that SBBC might choose under the ITB. A myriad of business considerations may inform an agency in selecting the length of its contracts for goods and services, and there is no law or rule that requires an agency to specify those factors within an ITB. Responsiveness of the Bidders Toshiba has attempted to argue that ImageNet, the recommended awardee for Item 1 and the alternate awardee for Item 3, was somehow non-responsive under the ITB and ineligible for award. In support of this argument, Toshiba has referenced Section 4, Paragraph 8, of the Special Conditions of the ITB which state as follows: MANUFACTURER'S CERTIFICATION: Bidder must submit with their ITB a notarized letter from manufacturer certifying that bidder is authorized to sell, service and warrant the multifunctional devices offered within this ITB. Failure of the bidder to provide this letter with their submitted bid or upon request shall result in disqualification of entire bid. If the bidder is the manufacturer, then bidder should state that their company is the manufacturer of the equipment provided in this bid (the letter does not need to be notarized). A bid is only disqualified under Section 4, Paragraph 8, of the ITB if (1) a notarized manufacturer's letter is omitted from the bid; and (2) the bidder fails to comply with a subsequent request from SBBC to provide the letter. No bidder, including Toshiba and ImageNet, included a notarized letter from a manufacturer with its bid. SBBC did not request any of the bidders to submit a notarized manufacturer's letter at any time after the submission of bids. As a result, none of the bids, including that of ImageNet, was non-responsive for a failure to satisfy Paragraph 8 of Section 4 of the ITB. Toshiba has also argued that all bids should be rejected due to Section 3, Paragraph 1(d), of the General Conditions of the ITB which concerns bidders' preference laws and states as follows: d) BIDDING PREFERENCE LAWS: ALL BIDDERS MUST COMPLETE AND SUBMIT THE LEGAL OPINION OF BIDDER'S PREFERENCE FORM IN ORDER TO BE CONSIDERED [sic] FOR AWARD. The State of Florida provides a Bidder's preference for Florida vendors for the purchase of personal property. The local preference is five (5) percent. Bidders outside the State of Florida must have an Attorney, licensed to practice law in the out-of-state jurisdiction, as required by Florida Statute 287.084(2), execute the "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form and must submit this form with the submitted bid. Such opinion should permit SBBC's reliance on such attorney's opinion for purposes of complying with Florida Statute 287.084. Florida Bidders must also complete its portion of the form. Failure to submit and execute this form, with the bid, shall result in bid being considered "non-responsive" and bid rejected. No bidder, including Toshiba, included an "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form with its bid. Each bidder's omission of that form was for good reason. Section 3, Paragraph 1(d), of the General Conditions of the ITB is a boilerplate provision within SBBC's standard bidding documents that is included pursuant to section 297.084(2), Florida Statutes, for any competitive solicitations in which personal property is to be purchased by SBBC. In instances in which it solicits bids to purchase personal property, SBBC includes a "Bidder's Preference Statement" form and includes that form among the checked "Submittal Requirements" listed in Section 2, Page 1, of the ITB. This ITB did not include a "Bidders Preference Statement" form among the bidding documents or list it as one of the required submittals. The state law and the boilerplate provision at Section 3, Paragraph 1(d), of the General Conditions of the ITB are only applicable to competitive solicitations for the purchase of personal property and do not extend to competitive solicitations for the purchase of services. As Section 4, Paragraph 12, of the Special Conditions of the ITB makes it clear that the multi-functional devices to be provided by the awardee under the ITB will "remain the property of the vendor," the standard bidder's preference provision contained within the ITB is plainly inapplicable to this procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by Toshiba Business Solutions (USA), Inc., and upholds the awards of contracts under the procurement for a 36-month term from October 7, 2014, through November 30, 2017, to ImageNet Consulting of Miami, Inc., as the primary awardee for Item 1 and to Innovative Software Solution, Inc., as the alternate awardee for Item 1, and to Ricoh USA, Inc., as the primary awardee for Item 3 and to ImageNet Consulting of Miami, Inc., as the alternate awardee for Item 3. DONE AND ENTERED this 15th day of June, 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 15th day of June, 2015. COPIES FURNISHED: Robert Paul Vignola, Esquire Office of the General Counsel Eleventh Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) William G. Salim, Jr., Esquire Moskowitz, Mandell, Salim and Simowitz, P.A. 800 Corporate Drive, Suite 500 Fort Lauderdale, Florida 33334 (eServed) Eric J. Rayman, Esquire Genovese, Joblove and Battista, P.A. PNC Center, Suite 1110 200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed) Albert E. Dotson, Esquire Wendy Francois, Esquire Bilzin, Sumberg, Baena, Price and Axelrod, LLP 1450 Brickell Avenue, Suite 2300 Miami, Florida 33131 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Robert W. Runcie, Superintendent Broward County School Board Tenth Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) Pam Stewart Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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.
The Issue Whether, in making a preliminary decision to award a contract for the subject services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner challenges the evaluation of the past performance section of the responses to the procurement document. Also at issue is whether Respondent violated the Sunshine Law in deciding to reject Petitioner’s bid protest.
Findings Of Fact Stipulated Facts Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. On September 21, 2009, the Department issued the subject RFP. The RFP sets forth the purpose of the procurement (on Page 1 of the RFP) as follows: Request for Proposals (RFP): A 36-slot Facility-Based Day Treatment Program as described in the Services to be Provided (Attachment I) in a Provider owner/leased facility in Circuit 11, Miami-Dade County. The provider shall provide the day treatment program for youth placed on probation, and youth transitioning back into the community who are referred for conditional release or post-commitment probation services. The provider shall design, develop, implement and operate an evidence-based, facility- based day treatment program with the capability to provide an after- school/evening component. Petitioner submitted a timely response to the RFP. On December 18, 2009, Respondent posted its Notice of Agency Action which indicated its intent to award the contract to PSF. On December 28, 2009, Petitioner filed a Formal Written Protest and Petition for Administrative Hearing (Petition) pursuant to Section 120.57(3), Florida Statutes (2009), and Florida Administrative Code Rule 28-110.004. Pursuant to the provisions of Section 120.57(3)(d), Florida Statutes (2009), representatives from Petitioner and Respondent met in an attempt to settle or to resolve the formal bid protest filed by Petitioner. Respondent's representatives at the January 13, 2010, meeting included Tonja W. Matthews, Amy Johnson, Paul Hatcher, and Shahin Iranpour. Petitioner's representatives at the January 13, 2010, meeting were Thomas Petersen and Jennifer Fiorenza. No public notice was given ahead of, and no minutes were taken at, the meeting between Petitioner's representatives and Respondent's representatives on January 13, 2010. Respondent's representatives briefly met separately after hearing from Petitioner to determine whether or not any further questions or information was needed from Petitioner.1 After January 13, 2010, and before January 21, 2010, Respondent's representatives Amy Johnson, Rex Uberman, and Paul Hatcher individually or collectively discussed Petitioner's Bid Award Protest with some or all of the Respondent's personnel present at the January 13, 2010, meeting with Mr. Petersen and Ms. Fiorenza. They ultimately decided to uphold Respondent's Notice of Agency Action (issued December 18, 2009) as to the subject RFP. No public notice was given of the proposed agency action, i.e., Respondent's intended decision to uphold its Notice of Agency Action as to the subject RFP, nor were minutes taken which recorded this intended action. In a letter dated January 21, 2010, Respondent notified Petitioner of its decision to uphold its decision to award to PSF and inquired as to whether Petitioner wished to proceed with a formal hearing before DOAH. Petitioner responded in the affirmative, Respondent forwarded the Petition to DOAH, and this proceeding followed. Past Performance Section XIX of Attachment B sets forth "General Instructions for Preparation of the Proposal." Subparagraph F of Section XIX (found at page 17 of 73 of Joint Exhibit 1) provides, in part, as follows: F. Past Performance - (Volume 3) The purpose of this section is for the prospective Provider to demonstrate its knowledge and experience in operating similar programs by providing information requested on Attachment C, part I, II, and/or III. Each prospective Provider shall limit the Past Performance section to no more than 15 pages. These pages shall include the information requested on Attachment C, Parts I, II, and/or III and all required supporting documentation. . . . Attachment C, Part 1, is a form styled "Data Sheet: Past Performance of Non-Residential Programs" (page 21 of 73 of Joint Exhibit 1). That form has column headings for the vendor to insert the required information as follows: "Program Name," "Contract Number," "Program Type," "Contract Begin Date," "Contract End Date," "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," "Failure to Report," "Number of Completions during FY 2006-2007," "2006-2007 Recidivism Rate," QA Deemed Status." Each column heading has a footnote that clarifies the type information required. For example, a footnote explains that QA is a reference to Quality Assurance. The column headed "Program Type" contains a footnote (footnote 3) which sets forth the non-residential programs that qualify for evaluation under the category "Past Performance of Non-Residential Programs" as follows: 3. During the past year from the date of the RFP issuance, the program type (Supervision, Day Treatment, Conditional Release, Respite, Independent Living, Diversion, Juvenile Assessment Centers) for the majority of the time the Vendor operated the program. Footnote 3 explicitly sets forth Diversion Programs and Juvenile Assessment Centers (JAC) as programs that will qualify for evaluation under the category "Past Performance of Non-Residential Programs." Petitioner did not file a challenge to the specifications of the procurement document within 72 hours of its posting as required by Section 120.57(3)(b), Florida Statutes. The scoring criteria and methodology for Past Performance are set forth in the RFP. Petitioner and PSF only operate programs in Florida. The scoring at issue in this proceeding is that of "Part I - Evaluation for Past Performance in Florida". Under that category, a vendor could receive a maximum of 420 points. Paul Hatcher is Respondent's employee who evaluated the responses to the Past Performance section of the RFP. Petitioner is the current provider of the services being solicited by the subject RFP. In its response to Attachment C, Petitioner listed that program in the appropriate columns of Attachment C. The program operated by Petitioner was appropriately listed because it is categorized by Respondent as being a non-residential program. There is no contention that Mr. Hatcher failed to appropriately evaluate Petitioner's Past Performance. Petitioner was awarded a total of 268 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. In its response to Attachment C, PSF listed one diversion program and two juvenile assessment centers (JAC) as non-residential programs it operated in the State of Florida. One JAC did not qualify for evaluation because it had not been in operation for a sufficient period of time. Mr. Hatcher evaluated PSF's Past Performance on the basis of the diversion program and one of the two JACs. PSF was awarded a total of 312 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. Mr. Hatcher appropriately included the diversion program and the JAC program in his evaluation of PSF's Past Performance for Non-Residential Programs because Footnote 3 explicitly includes those programs as programs non-residential programs that qualify for evaluation.2 There is no contention that Mr. Hatcher failed to score PSF's Past Performance in accordance with the scoring criteria and methodology set forth in the RFP. The RFP provides that vendors who operate DJJ contracted non-residential programs in Florida can be awarded a maximum of 1905 points. Respondent awarded PSF the higher overall score of 1422.27 points. Respondent awarded Petitioner a score of 1327.34 points. Petitioner failed to establish that Respondent incorrectly scored the two responses to the RFP, and it failed to establish that Respondent incorrectly determined to award the procurement to PSF. Sunshine Law Section 120.57(3)(d)1., Florida Statutes, provides the following after a bid protest is filed: (d)1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest. The purpose of the meeting on January 13, 2010, between the employees of Respondent and the representatives of Petitioner identified above, was to provide Petitioner an opportunity to argue why PSF should not be awarded the procurement. The group of employees represented Respondent's legal counsel and representatives from Respondent's Probation Programs (headed by Mr. Uberman) and its Bureau of Contracts (headed by Ms. Johnson). The purpose of the meeting was to determine the factual and legal basis for Petitioner's bid protest. The group of Respondent's employees who met with Petitioner's representatives on January 13, 2010, did not vote either during the meeting or after the meeting's conclusion. A day or two before she wrote her letter of January 21, 2010, Ms. Matthews contacted by telephone Ms. Johnson to determine whether the Bureau of Contracts thought some action other than the award of the procurement to PSF should be taken. Ms. Matthews also contacted by telephone Mr. Hatcher, who represented the Probation Programs, with the same inquiry. Ms. Johnson made the decision that the position of the Contract division was to uphold the award to PSF. Mr. Hatcher, after consulting with Mr. Uberman, made the decision that the position of the Probation Programs was to uphold the award to PSF. In separate telephone calls the Contract division and the Probation division advised Ms. Matthews that the award to PSF should be upheld. Ms. Matthews thereafter prepared and sent the letter that advised the vendors of the DJJ's decision.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order that denies Petitioner's bid protest and upholds the award of the procurement to PSF. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 1st day of December, 2010.
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 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
The Issue Whether the Department’s intended award of contract E2K97 for Asset Maintenance of the Duval County Roadways is contrary to the agency’s governing statutes, the agency rules or policies or the bid or proposal specifications.
Findings Of Fact The following facts were agreed between the parties in their Joint Pre-Hearing statement: On June 18, 2007, FDOT posted the solicitation for asset maintenance of the Duval County Roadways through procurement E-2K97. The RFP requested technical proposals and bids for a five-year contract for maintenance of identified roads in Duval County. The RFP provides that the scoring of the technical proposals is to be weighted as follows: Administration Plan (20%), Management and Technical Plan (30%), Operation Plan (30%), and Plan for Compliance with Standards (20%). ESI did not file a protest of the RFP's terms, conditions, specifications, or provisions governing the method of ranking proposals within 72 hours of the posting of the solicitation. A mandatory pre-bid meeting was held on July 10, 2007. The technical and price proposals for this project were due by August 9, 2007. Four firms submitted timely proposals in response to the RFP. They were ESI, DBI, Infrastructure Corporation of America (ICA) and VMS. The proposals were evaluated by three registered civil engineers who are employed by FDOT: Jerry Ausher, Julius Rinosa, and Mark Kuhn. All four firms were determined to be responsive and received scores on their technical proposal and price proposal. DBI's average score on its technical proposal was 88, the highest of the four firms. ESI's average score on its technical proposal was 75.33, the lowest of the four firms. ESI's price proposal bid was $44,759,500.00, the lowest of the four firms. DBI's price proposal bid was $48,748,886.00, the second lowest of the four firms. After combining the technical scores and price proposal scores, the total proposal scores for the four firms were as follows: DBI = 89.14, VMS = 85.19, ESI = 82.73, and ICA = 82.68. On September 4, 2007, FDOT posted its notice of intended award to DBI as the winning bidder. ESI filed a notice of intent to protest on September 7, 2007, followed by a formal written protest on September 17, 2007. DBI filed a Petition to Intervene which was granted on November 7, 2007. As the intended awardee, DBI has a substantial interest in the outcome of this proceeding and thus, has standing to intervene.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner’s Amended Formal Written Bid Protest be dismissed. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2008. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Denise Johnson, Esquire Assistant General Counsel Florida Department of Transportation Office of the General Counsel Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire 2104 Delta Way, Suite 9 Tallahassee, Florida 32303 J. Reuben Hamlin, Esquire Post Office Box 1620 Newberry, Florida 32669 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450
Findings Of Fact The Palm Beach County School Board (Respondent) issued an invitation to bid (ITB) on February 16, 1993, requesting bids for the removal, preparation, and installation of carpet-glue down on project SB93C-216T. The ITB provided that all bids were to be submitted by March 31, 1993, at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent sections of the ITB to the case at hand include a section entitled "Invitation To Bid" which provides in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as a result of this bid shall conform to applicable Florida Statutes. Another section entitled "General Conditions, Instructions and Information for Bidders" provides in pertinent part: 26. Any and all Special Conditions that may vary from these General Conditions shall have precedence. The section entitled "Special Conditions" provides in pertinent part: C. AWARD: Bid will be awarded to the lowest and best bidder meeting specifications, terms and conditions . . . The School Board shall elect to award to a primary and a secondary vendor . . . . * * * N. CONTRACTOR QUALIFICATIONS: The contractor must have at least three years of verifiable experience in the floor covering contracting business. The contractor must have in force the required occupational licenses from Palm Beach County and it's municipalities. All documentation of the above requirements must be submitted with the proposed bid by each bidding contractor. The contractor shall not sub-contract any portion of their work, outlined in this contract, to any person(s) or company, without advance written permission from the Carpentry Supervisor of the Department of Maintenance & Plant Operations. Another section of the ITB entitled "Additional Information" provides in pertinent part: Additional information will not be a determining part of the award of this bid except in the instance where the per square yard prices are too close to determine a clear awardee. In that instance we will look at the optional items in this section as the determining factor. (This usage is also based upon all other factors being equal.) . . . Cost of heavy patching. $ per sq. ft. . . . Cost of heavy patching. $ per sq. ft. . . . By March 31, 1993, eight bids were received. However, only seven bids were considered. Respondent's Department of Contracting & Procurement reviewed the bids. On April 12, 1993, the Department of Contracting & Procurement (Department) posted the bid tabulations, which showed, inter alia, that the apparent lowest bidder was Carpetech at $28,029.61, that the apparent second lowest bidder was Buy the Square Yard (Petitioner) at $32,107.32, and that the apparent highest bidder was Acousti Engineering of Florida (Intervenor). Additionally, the recommendation was that the bid be awarded to the "lowest and best bidder meeting specifications, terms, and conditions" with Carpetech being the "Primary" bidder and Petitioner being the "Secondary" bidder. Moreover, the bid tabulation sheet noted that the "price" of each bid was determined by using a "hypothetical" that was typical of a School Board project. This was the first time that the bidders were aware of a hypothetical being used. Respondent had not used a hypothetical in past bids for this type of work, and it was not included in the bid specifications At first, after the bids were opened, Respondent's Department used the base bid, which excluded any alternate work, to determine the apparent lowest bidder. The calculation showed Intervenor as the apparent lowest bidder at $11.03 sq. yd. and Petitioner as the apparent second lowest bidder at $11.08 sq. yd. Carpetech's base bid was $11.295 sq. yd. A discussion ensued as to whether the bids were "too close"; but, there was no consensus as to the meaning of "too close." However, the Department determined that, taking into consideration the alternate work which would have to be done, Intervenor was not the best bidder. The Department first considered recommending the rejection of all bids and readvertising, but decided upon using a hypothetical which included the base bid and the alternates in the calculations. As a result of using the hypothetical, Carpetech, not Intervenor, was the apparent lowest bidder. However, Carpetech, unlike any other bidder, changed one of the specifications in its bid from the "cost of heavy patching" to the "cost of light patching." Respondent admits that a clerical error had occurred and that particular specification should have been "light" patching, instead of "heavy" patching. Also, Carpetech failed to submit an occupational license with its bid. However, subsequent to the bid opening, Carpetech submitted an occupational license. Like Carpetech, Intervenor also failed to submit an occupational license with its bid. 2/ To the contrary, Petitioner submitted an occupational license with its bid. The occupational license forbade Petitioner to have employees at its location but allowed it to hire outside employees, which meant that it could hire contract labor to perform under the contract of the bid. 3/ Out of the three bidders--Carpetech, Petitioner and Intervenor--only Petitioner is a minority owned business. Initially, when Petitioner began its business in December 1991, it was owned by a minority female and a minority male. Subsequently, for financial purposes, the minority female became the sole shareholder/owner and the minority male became the business consultant (consultant), receiving consulting fees. On or about March 24, 1992, Petitioner was certified as a Minority Business Enterprise (MBE) by Palm Beach County, and on or about March 19, 1992, it was certified as a MBE by Respondent, with the certification effective from May 1992 to May 1993. Petitioner became incorporated in or around April 1992 and again in July 1992 when the minority female became the sole owner. Prior to Petitioner's formation, its consultant had his own flooring business (carpet and tile sales and insulation) for several years. The prior business had financial difficulties which resulted in court judgements against it. Petitioner's sole owner was never involved in the consultant's prior business. She provides Petitioner's financial security, and there have been no court judgments against Petitioner. Respondent's Department was familiar with flooring work of Petitioner's consultant before he became associated with Petitioner. He had performed flooring work for Respondent in the past, which was very satisfied with his work. The Department was not aware of the court judgements against the prior business of Petitioner's consultant. However, even if it was, the judgments would not have had a negative effect on Petitioner in the award process of the current contract. On or about April 14, 1993, Intervenor filed its written protest, which was timely. On or about April 22, 1993, Petitioner filed its written protest, which was timely. On April 28, 1993, Respondent held an informal meeting on the written protests. On May 3, 1993, Respondent's counsel issued its recommendation on the protests, which was to "reject all bids and rebid with new terms and conditions and specifications" in order for all bidders to be given "a fair playing field."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on project SB93C-216T and readvertise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of December 1993. ERROL H. POWELL 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 December 1993.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Request for Proposals Through the issuance and distribution of a Request for Proposal and/or Proposal Submittal Form (RFP), the Department's Region IV solicited the submission of proposals from prospective lessors interested in leasing to the Department office space in an area (more particularly described in the RFP) in Broward County. The RFP contained the following "General Specifications and Requirements," among others: Net square footage required: 9,196 (within plus 3 percent tolerance) measured in accordance with the Standard Method of Space Measurement (Attachment A). NOTE: restrooms and mechanical rooms are not to be included in calculating net rentable square footage. BIDDER RESPONSE: Net square feet available (Space offered must be within the +3 percent required) . . . Space to be located in the County of Broward, Florida depicted in the following boundaries: NORTH: N.W. 2nd Street, N.E. 2nd Street SOUTH: Davie Boulevard EAST: Federal Highway, U.S. 1 WEST: S.W. 4th Avenue, N.W. 7th Avenue (See attached map (Attachment B). ) Proposals (bids) shall be considered responsive if the space is within or abutting the specified boundaries. Space for purpose of this paragraph means the net square footage to be leased. BIDDER RESPONSE: (address of proposed location- mark location on Attachment B also). Include zip code. The offered space represents entire building. percent of the Space to be made available on July 1, 1997 or within 90 days after notification of award of proposal, whichever occurs last. . . . Term of lease: Five (5) years with an option to renew for an additional Five (5) Years. Services: Full Services to be provided by lessor, including utilities, interior and exterior maintenance, recycling services, garbage disposal, janitorial services and supplies as specified in Attachment C. . . . Photographs and Floor Plans: As part of the bidder's submittal, bidders are to provide: A clear photograph or prospectus showing exterior front, sides and rear of the proposed facility. A floor plan to scale . . . showing present configurations with measurements that equate to the net rentable square footage. The final floor plan will be as described in the specifications and as identified through consultation with the Department. BIDDER RESPONSE: Floor Plan and Photograph(s) are included as a part of this proposal. . . . Existing building. The proposed space must be an existing building. To be considered as existing the proposed space must be dry and measurable (capable of being physically measured). To be considered as "Dry and Measurable" the construction area of all floors of the building including bathrooms, basement, mechanical equip- ment rooms, stairways, penthouses, and the like must be enclosed with floor, finished roof and exterior walls with windows and doors installed, so that the interior of the building will remain dry during adverse weather conditions. The areas mentioned must be clearly defined within the building, but are not required to be completed, to allow the actual occupiable (rental) area of the building to be measured at the time of pro- posal submittal. Renovations to bring the facility into compliance with all applicable Federal, State and local codes and regulations and/or to meet the desired arrangements are permitted, if carried out in accordance with prescribed procedures. The facility must comply or be renovated to comply with the requirements for Accessibility by Handicapped Persons as mandated by Chapter 553, Sections 553.501-553.513, Florida Statutes, and the latest Accessibility Requirements manual published by the Department of Community Affairs, (DCA) Florida Board of Building Codes and Stan- dards, as well as the requirements of Public Law 101-336, July 26, 1990 known as the "Americans with Disabilities Act of 1990" Appendix A to Part 36, "Standards for Accessible Design." The Lessor agrees that the de[v]ised premises now conform, or that, prior to Lessee's occupancy, that said premise[s] shall, at the Lessor's expense, be brought into compliance with all specified requirements. (Attachment D). Successful bidder will provide a floor plan including a site plan of the parking areas for ADA review. . . . The RFP contained the following "Space Requirement Criteria," among others: Plans review fees for State leased buildings: Floor plans are to be a joint effort of departmental staff and the successful bidder. The successful bidder is to provide architectural services by a licensed architect to prepare renovation plans per the 1991 Edition of NFPA 101. The final floor plan is subject to department determination and State Fire Marshall review and approval. . . . See floor plan, Attachment H, for suggested configuration of offices and rooms. 5 Offices not to exceed 120 sq. ft. each- 600 net sq/ft 55 Offices not to exceed 64 sq. ft each- 3,520 net sq/ft File Areas- 84 net sq/ft Reception Areas- 300 net sq/ft Conference Room- 550 net sq/ft Storage Areas with floor to ceiling shelves- 180 net sq/ft Copy and Mail Distribution Room- 100 net sq/ft Employee Lounge with sink/cabinets/counter top- 90 net sq/ft Inactive File Room w/open shelves- 2,000 net sq/ft Drug Testing Room*- 100 net sq/ft MIS & Office Automation Terminals and Printers- 255 net sq/ft Firearm Storage- 40 net sq/ft Internal Circulation- 1,377 net sq/ft *Must include: Adjoining restroom, stainless steel sink, viewing window between testing room and restroom, storage shelves and cabinets, and dead bolt lock on testing room. This bathroom is additional to restrooms referenced under "Restrooms" . . . 8. Restrooms: (must meet requirements of Americans with Disability Act of 1990 and the requirements of the Accessibility by Handicapped Persons, Section 553.504(12-13), Florida Statutes- Attachment D): Waterclosets- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Urinals- 1 Men's (Public); 1 Men's (Staff) Lavatories w/mirrors- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Note: If space is offered on more than one floor, restroom facilities must be provided to code on each floor in conformance with occupancy and code requirements whichever is greater. . . . The RFP contained the following "General Provisions," among others: 2. All bids accepted by the State are subject to the State's terms and conditions and any and all additional terms and conditions submitted by bidders are rejected and shall have no force and effect. . . . 5. All Proposal sheets must be executed and submitted in a sealed and titled envelope, enclosed in an outer envelope. The face of the inner envelope shall contain, in addition to the Department's address . . ., the date and time of the bid opening and the lease number. PROPOSALS NOT SUBMITTED ON THIS PROPOSAL SUBMITTAL FORM SHALL BE REJECTED. All proposals are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. Each proposal shall be signed by the owner(s), corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). . . . The Department agrees to enter into a lease agreement based on submission and accep- tance of the proposal in the best interest of the Department and the State. The Department reserves the right to reject any and all proposals for reason which shall include, but not be limited to, the agency's budgetary constraints; waive any minor infor- mation or technicality in proposals, to accept the proposal deemed to be the lowest and in the best interest of the State, and if necessary, to reinstate procedures for soliciting competitive proposals. . . . Late proposals, modification of proposals, or withdrawal of proposals: Any proposal received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. A proposal may be withdrawn in person by a proposer or his/her authorized representative provided his/her identity is made known and he/she signs a receipt for the proposal, but only if the withdrawal is made prior to the exact time set for the receipt of proposals. . . . Sealed proposals will be received until 10:00 a.m. on August 21, 1996 by Maria L. Cortes at 3810 Inverrary Blvd., Bldg. C, Suite 101 Conference Room, Lauderhill, FL 33319, at which time all proposals will be publicly opened and read aloud. Notification of award will be made within 30 calendar days and shall be given either by posting the proposal tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. . . . A preproposal conference . . . will be held at 10:00 a.m. on July 17, 1996 at 3810 Inverrary Blvd., Bldg C, Suite 101, Conference Room, Lauder- hill, FL 33319 "Attachment A" to the RFP was the "Standard Method of Space Measurement," which was referenced in the "Net square footage required" provision of the RFP's "General Specifications and Requirements." "Attachment A" read as follows: STANDARD METHOD OF SPACE MEASUREMENT The purpose of this standard is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). It should also be noted that this standard can and should be used in measuring office space in old as well as new buildings, leased office space as well as State-owned office space. It is applicable to any architectural design or type of construction because it is based on the premise that the area being measured is that which the agency may occupy and use for its furnishings and its people. This standard method of measuring office space measures only occupiable space, undistorted by variance in design from one building to another. It measures the area of office building that actually has usable (rental) value and, therefore, as a standard can be used by all parties with confidence and with a clear understanding of what is being measured. Area measurement in office buildings is based in all cases upon the typical floor plans, and barring structural changes which affect materially the typical floor, such measurements stand for the life of the building, regardless of readjustments incident to agency layouts. All usable (rentable) office space, leased or State-owned, shall be computed by: Measuring to the inside finish of permanent outer building walls to the office side of corridors and/or other permanent partitions, and to the center of partitions that separate the premises from adjoining usable areas. This usable (rentable) area shall EXCLUDE: bathrooms, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closet, electrical closets-- and such other rooms not actually available to the tenant for his furnishings and personnel--- and their enclosing walls. No deductions shall be made for columns and projections necessary to the building. Pre-Proposal Conference A pre-proposal conference was held, as scheduled, to give prospective lessors the opportunity to receive from the Department answers to questions they had regarding the RFP. The Department emphasized to those prospective lessors who attended the pre-proposal conference that, as indicated in the "Net square footage required" provision of the RFP's "General Specifications and Requirements," it would not accept a proposal offering space with a "net square footage" of less than 9,196 square feet. Petitioner did not send a representative to the pre-proposal conference. Petitioner's Proposal Two proposals were submitted in response to the RFP. One of these proposals was submitted by Petitioner, which offered the Department the entire space in a two-story building located at 609 South Andrews Avenue in Fort Lauderdale, Florida (Petitioner's Building). In its proposal, Petitioner indicated that the "net square feet available" in its building was 9,370. Along with its proposal, Petitioner submitted to the Department existing and proposed floor plans. There are currently two restrooms on the first floor of Petitioner's Building and two restrooms on the second floor of the building. None of these restrooms meets the accessibility requirements prescribed in the RFP. It is Petitioner's intention, if it is awarded the lease by the Department, to eliminate these existing restrooms and replace them with restrooms to be constructed adjacent to the existing structure in space that is not now, nor was it at the time of the submission of Petitioner's proposal, "Dry and Measurable," as that term is defined in the "Existing building" provision of the RFP's "General Specifications and Requirements." These intentions of Petitioner's were reflected in the materials Petitioner submitted to the Department along with its proposal. The Department's Initial Evaluation of the Responsiveness of the Two Proposals Douglas Sweredoski is the Facilities Services Manager Assistant for the Department's Region IV. He is a certified real estate appraiser. On or about September 15, 1996, Sweredoski went to Petitioner's Building and measured the dimensions of the building (and certain of its component parts), using an electronic measuring device, to ascertain whether the building had the "net square footage required" by the RFP. Employing the "Standard Method of Space Measurement," Sweredoski reasonably determined that Petitioner's Building had less than the "net square footage required" by the RFP and that therefore Petitioner's proposal was not responsive to the RFP. The other proposal that the Department received was also deemed to be non-responsive (a determination that has not been challenged). The Department's Notice of Rejection of Proposals Having determined that both proposals it had received were materially non-responsive, the Department, by letter dated September 19, 1996, informed Petitioner of the following: This letter is to inform you that the Department of Corrections has determined that it is in the best interest of the State of Florida to reject all bids submitted for the above referenced lease [Lease No. 700:0754]. A new Request for Proposal will be issued soon. This letter constitutes agency action concerning the referenced bid. You have seventy-two (72) hours from receipt of this letter to file a written notice of protest to this action, and ten (10) days after filing such written notice of protest to file a formal written protest. All documents should be addressed to the undersigned at 3810 Inverrary Boulevard, Building C, Suite 101, Lauderhill, Florida 33319. Failure to file a protest within the times prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Protest Petitioner timely protested the Department's decision to reject Petitioner's proposal and to issue a new RFP. Sweredoski's Return to Petitioner's Building On or about October 1, 1996, Sweredoski returned to Petitioner's Building to verify the accuracy of the measurements that he had obtained (using an electronic device) during his earlier visit to the building. On this follow-up visit to the building, Sweredoski used a mechanical device (more specifically, a tape measure) to measure the dimensions of the building (and certain of its component parts). The measurements he obtained during this second visit were "very close" to the measurements he had obtained during his previous visit. Sweredoski, employing (as he had during his earlier visit) the "Standard Method of Space Measurement," reasonably determined that Petitioner's Building had a "net square footage" of 8,731 net square feet (a "gross square footage" of 9,369 square feet minus: 271 square feet for the existing stairway leading from the first to the second floor; 110 square feet for the existing telephone/mechanical closet on the second floor; and 257 square feet for the existing bathrooms on the first and second floors). Referral of Petitioner's Protest to the Division On October 10, 1996, the Department referred Petitioner's protest to the Division.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order denying Petitioner's protest of the Department's decision to reject all proposals (including Petitioner's) submitted in response to the Department's request for proposals for Lease No. 700:0754. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1996. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996.
The Issue Whether Petitioner's protest challenging the Department of Transportation's Notice of Intent to Award Contract No. E-6A14, FIN Project No. 251999-1-32-01/251999-1-52-01, to A-1 Duran Roofing, Inc., should be sustained in whole or in part.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement the stipulations of fact set forth in the parties' Joint Pre-Hearing Stipulation: 3/ The District VI Warehouse. The District VI (District) warehouse is used to store archived records, paper supplies, and surplus equipment. In addition, it houses the District's divers and their gear. The District Warehouse Roof Since at least the time of the first solicitation, the District warehouse roof has had a ponding problem and been in disrepair. The condition of the roof has deteriorated to such an extent that there is now an urgent need to replace it. The current roof has five overflow drains or scuppers. The Department has determined that additional scuppers are necessary to provide adequate drainage. The List of Interested and Prequalified Contractors When the District warehouse roof replacement project was originally advertised in 1997, 25 contractors, including Petitioner, A-1, Zurqui, Grace, ART, and Southern Coast Enterprises, requested that the Department send them information about the project. The Department compiled a list containing these 25 contractors' names, addresses, and telephone and fax numbers. The Department subsequently prequalified each of these 25 contractors. Petitioner Pedro Glaria is Petitioner's president. He is now, and has been since 1981, licensed in the State of Florida as both a general contractor and a professional engineer. Petitioner currently has two contracts with the Department, the dollar values of which are $140,000.00 and $110.00.00. Both contracts were awarded during the summer of 2000. They each require Petitioner to provide "roadside mowing" and "roadside litter pickup" services. Since its incorporation in 1989, Petitioner has had a total of 10 to 12 contracts with the Department, at least one of which involved roofing work. At no time has the Department indicated to Mr. Glaria that it has been dissatisfied with Petitioner's work. The Third Solicitation In the third solicitation, as in the first two solicitations, the District warehouse roof replacement project was advertised as a design-build project (involving both design and construction services). The Notice of Informal Bid (No. 6012DS) that the Department used to solicit bids contained the following "work description," "evaluation criteria," and "project information": Work Description Sealed written bids are requested from licensed roofing contractors, general building contractors, professional architectural engineers or professional consultant services for the purpose of a design-build project consisting of roof replacement for the District warehouse building located at the District office complex, 1000 Northwest 111th Avenue, Miami, Florida. The bidder shall provide all labor, materials, supplies, travel, consultant inspection services, shop drawing reviews to design, and furnish plans and specifications necessary to perform all work required for this project. Evaluation Criteria The Florida Department of Transportation (FDOT) will evaluate the technical bid along with the price bid at the same time. The Department may award this contract to the firm whose proposal meets the needs of the Department as outlined in the technical bid criteria, and to the responsible, responsive bidder submitting the lowest total bid. Technical Bid Will Consist of the Following Experience and qualifications of personnel Plans and specifications. 3). Design Warranty Contract time Price Bid 3). Certified Minority Business Enterprise (CMBE) Participation . . . Project Information ESTIMATED BUDGET AMOUNT: N/A With respect to a protest of the specifications contained in an Invitation to Bid or in a Request for Proposals, the Notice of Protest shall be filed in writing within seventy two (72) hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an Invitation to Bid or Request for Proposals." A formal written protest stating with particularity the facts and law upon which the protest is based and in substantially the same form as a petition in accordance with Rule 60-4.012, F.A.C., shall be filed within ten (10) days after filing of the notice of protest. The ten (10) day period includes Saturdays, Sundays and Legal Holidays; provided, however, if the last day is a Saturday, Sunday or Legal Holiday the period shall run until the end of the next day which is neither a Saturday, Sunday or Legal Holiday. Any person who files an action protesting an award shall post with the Department, at the time of filing the formal written protest, a bond payable to the Department in the amount equal to one percent (1%) of the Department's estimate of the contract amount for the purchase requested or five thousand dollars ($5,000.00), whichever is less, which bond shall be conditioned upon the payment of all costs which may be adjudged against him in the Administrative hearing in which the action is brought and in any subsequent Appellate Court Proceedings. In lieu of a bond, the Department may accept a cashier's check or money order in the amount of the bond. The protest must be filed with The Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee Street, Tallahassee, Florida 32399-0450 THE DEPARTMENT RESERVES THE RIGHT TO REJECT ANY OR ALL PROPOSALS RECEIVED. Exhibit "A" (Attachment V) to the Notice of Informal Bid was the "Scope of Services for Design Build of Replacement Roof at the District Warehouse Building," Section 2.5(a) of which provided as follows: Bidder shall furnish plans and specifications that comply with the South Florida Building Code, Permits Office of the Department of Management Services, and the State Fire Marshall's Office, including but not limited to the following: The design of the roof shall provide for the installation of overflow drains or scuppers in addition to the existing scuppers to prevent an accumulation of water. Petitioner's technical bid, which was prepared by Mr. Glaria, contained a roof design that did not provide for the installation of the additional scuppers required by Section 2.5(a) of Exhibit "A." In Mr. Glaria's professional opinion, these additional scuppers were unnecessary for the design of the roof to comply with the South Florida Building Code. (Petitioner, however, did not file a protest challenging the bid specifications.) By not incorporating the additional scuppers in its design of the roof, Petitioner was able to submit a price bid lower than it could have offered had its design been in compliance with the requirements of Section 2.5(a) of Exhibit "A." All three members of the Department's Technical Review and Awards Committee found Petitioner's technical bid to be non- responsive because it deviated from the requirements of Section 2.5(a) of Exhibit "A.". Had the Department not rejected the Department's technical bid on the grounds that it was non-responsive, Petitioner would have had an unfair competitive advantage over those bidders whose design of the roof included the additional scuppers required by Section 2.5(a) of Exhibit "A." Petitioner's Formal Protest of the Department's announced intention to contract with A-1 contained the following argument concerning the Department's determination that Petitioner's technical bid did not "comply with design criteria for overflow scuppers": FDOT's Technical Panel determined that SPEC failed to comply with the design criteria for overflow scuppers because SPEC did not provide for additional scuppers. . . . The roof already contains five scuppers. As engineer of this design- build project, SPEC determined that additional scuppers were not necessary for proper drainage of the roof. Rather, the roof only necessitated the installation of crickets between the existing scuppers to facilitate drainage of water between the scuppers. The drawing submitted with SPEC's bid reflects the location of the existing scuppers and the use of the crickets to drain any water on the roof. A-1's drawing reflects the use of additional scuppers, but the location of these additional scuppers cannot assist water drainage as the scuppers are located above the crickets, and therefore above roof level, thereby losing any effectiveness. . . . The additional scuppers provided by A-1 will not prevent the accumulation of water as required by section 2.5 and will only create unnecessary expenditure for FDOT. SPEC's design for the drainage of water from the roof is superior to that of A-1, complies with the requirements of the bidding documents and does not require unnecessary expenditure of funds. Accordingly, SPEC should be awarded the project. The Department's December 17, 1998, Notice of Intent Not to Award (Re: Informal Bid No. 6012DS) stated, in pertinent part, as follows: It is the intent of the Department of Transportation to not award the above Contract. This contract will be re- advertised at a later date. . . . ALL BIDS HAVE BEEN REJECTED On January 4, 1999, Petitioner's attorney, Alejandro Espino, Esquire, sent a letter to Department Assistant General Counsel Brian McGrail, which read as follows: This letter confirms our telephone conversation today wherein you stated that the Florida Department of Transportation ("FDOT") rejected all bids on the above referenced project because FDOT intends to rewrite the specification for the mansard roof wood replacement and because FDOT has no available funding for the project. However, you stated that FDOT will not provide a written explanation to SPEC Incorporated or any other bidder for the rejection of the bids for the project. If you believe that the above is not an accurate summary of our conversation, please contact me at your earliest convenience. Best regards. Mr. McGrail responded to Mr. Espino by letter dated January 4, 1999, which read as follows: I am in receipt of your letter this morning regarding our telephone conversation concerning the captioned matter. In response to your rendition of our conversation, I must clarify that I expressed my understanding that the specifications for the project will be reviewed, which may include the issues raised in the protest about the bid specifications, before any further action will be taken by the Department. However, the Department's decision to reject all bids is due to the unavailability of funding for this contract at the present time. I cannot speak to the future of the project with any degree of certainty, nor represent any to you or your client. This is a matter strictly for District VI to decide, and I am not involved in that decision making process. The Department will defend the decision to reject all bids based on the lack of available funding. I refer your attention to Attachment II of Informal Bid #6012DS, Contractual Obligation, Section 1.10 through 1.13. In particular, Cancellation Privileges, regarding the Department's obligations under the Notice of Informal Bid and subsequent agreement shall be subject to and contingent upon the availability of monies appropriated for this contract. Additionally, I am sure that you are aware that the bid documents clearly and repeatedly state the Department's reservation of rights to reject any and all bids for this bid letting. Based on the foregoing, it is clear that the Department's action in rejecting all bids is appropriate under Florida law, if not required, due to the lack of available funds at the present time. If Spec Inc. intends to p[rotest] the Department's decision to reject all bids, I feel it is my responsibility to advise you that the Department will seek any and all costs and attorney fees to which it may be entitled against the protest bond filed in this case. If however, Spec Inc. decides to withdraw the current protests against the intent to award filed on September 28, 1998, and the rejection of all bids filed on December 22, 1998, the Department will agree to return the protest bond in full. After you have had an opportunity to review this matter with your client, please advise at your earliest convenience how Spec Inc., wishes to proceed. Thank you for your cooperation in this matter. I look forward to a prompt response, as the hearing date is approaching rapidly. Mr. Glaria "realized that [Petitioner was] going to have a hard time [in its bid protest] to overcome the issue of lack of funding." In addition, he had the "hope that [Petitioner] would [have the opportunity to] bid the project again for the fourth time." Accordingly, he authorized Mr. Espino to file, on behalf of Petitioner, the following Notice of Voluntary of Dismissal of Formal Protest, dated January 11, 1999: Petitioner, SPEC Incorporated, hereby withdraws its formal protest, dated October 18, 1998, of the Florida Department of Transportation's notice of intent to award Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, to A-1 Duran Roofing, Inc. Upon agreement of counsel for the parties, SPEC Incorporated's bid protest bond will be returned to it. Mr. Espino, in addition, sent the following letter, dated January 11, 1999, to Mr. McGrail: Based on the Florida Department of Transportation's ("FDOT") representation that it rejected all bids for Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, because of the unavailability of funds and because of necessary amendments to the project specifications, SPEC Incorporated hereby withdraws its formal protest of FDOT's notice of intent to reject all bids. As we discussed earlier, FDOT will return SPEC Incorporated's protest bond thirty days after FDOT files . . . the final order in this matter. If you have any questions or comments, please do not hesitate to contact me. Fourth Solicitation The Project is funded through appropriations made by the Legislature in the fixed capital outlay category. 4/ Fixed capital outlay funds are subject to reversion if not obligated (through the execution of a contact or the issuance of a notice of intent to award a contract) within 19 months of their appropriation by the Legislature. In mid-January of 2001, Brenda Garner, the manager of the Department's Fixed Capital Outlay Program, advised Ms. Lyons that, if not obligated by February 1, 2001, a portion of the funds ($45,000.00) appropriated for the Project would revert. Ms. Lyons (who had not been involved, as the District's contract administrator, in the first three solicitations) quickly proceeded (in a day's time) to assemble the documents needed to solicit bids for the Project. These documents included detailed plans and specifications that the District's senior structural engineer and senior project manager had prepared, at Ms. Lyons' request, following the third solicitation, as well as "boilerplate" that the Department uses for non-design-build fixed capital outlay projects like the Project. Ms. Lyons determined that it was unnecessary to advertise for bids and that the Department only needed to solicit bids from three contractors. She selected these three contractors from the list of interested and prequalified contractors that the Department had compiled in the first solicitation. As Ms. Lyons was aware, each of the three contractors she selected (A-1, Zurqui, and Grace) was a Certified Minority Business Enterprise (MBE). She intentionally selected MBE contractors because the District was "trying to meet an MBE goal." Ms. Lyons had some professional familiarity with the three MBE contractors she selected. A-1 had just completed another roofing project for the District, and Zurqui and Grace were performing construction work at the District office complex. Ms. Lyons' decision to not include Petitioner among the three contractors asked to submit bids was not made in bad faith. Inasmuch as the Department was "in a big hurry to get that project done" she did not ask more than three contractors to submit bids. Ms. Lyons required each of the three contractors to first provide proof that it was a licensed general contractor qualified to work on the Project. After receiving such proof, Ms. Lyons then asked the three contractors to bid on the Project. A-1, Zurqui, and Grace submitted their bids on January 25, 2001. The Technical Review and Awards Committee met on January 26, 2001, to review the bids. All three bids were deemed to be responsive. A-1's bid of $58,300.00 was the lowest of the three bids. Neither Zurqui nor Grace protested the Department's proposed decision, announced in its January 26, 2001, Notice of Intent to Award, to award the contract for the Project to A-1. Only Petitioner, which had not been invited to submit a bid and had first learned of the fourth solicitation when Mr. Glaria saw the Notice of Intent to Award while at the District office complex on January 26, 2001, filed a protest.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order rejecting in its entirety Petitioner's protest of the Department's announced intention to award Contract E-6A14 to A-1. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001.
