The Issue Whether the Department of Health and Rehabilitative Services (HRS) acted in an arbitrary and capricious manner in determining to award the bid for its district office to Koger Properties, Inc. (Koger) and whether the petitioner submitted the lowest and best bid under the terms of the bid specifications.
Findings Of Fact GENERAL BACKGROUND - STIPULATED FACTS Petitioners received a formal Invitation to Bid on Lease No. 590:1784 from HRS, District V. The purpose of the ITB was to obtain competitive proposals for the leasing of office space by HRS within a specifically defined area. Petitioners timely submitted their bid in response to the ITB. All timely received bids were first evaluated to determine technical responsiveness. Petitioners' bid was determined to be responsive to the technical requirements of the ITB. Responsive bids were then presented to a bid evaluation committee for comparison and formulation of a recommendation for award. In comparing the various responsive bids and formulating a recommendation for award, the members of the bid evaluation committee were required to visit each proposed facility and to apply the evaluation criteria as contained in the ITB package. By memorandum dated July 30, 1986, the bid evaluation committee recommended that the bid be awarded to Koger although petitioners submitted the lowest rental price. On or about August 5, 1986, petitioners received notice from HRS of its intent to award Lease No. 590:1784 to Koger. By letter dated August 6, 1986, petitioners notified HRS of their intent to protest the intended award of Lease No. 590:1784 to Koger. The Notice of Intent to Protest was timely filed pursuant to the provisions of Section 120.53(5), Florida Statutes, and Rule 10- 13.11, Florida Administrative Code. Thereafter, the petitioners timely filed their formal written protest. Petitioners are substantially affected by the decision of HRS to award the lease to Koger. THE BIDDING PROCESS The Department of Health and Rehabilitative Services issued an Invitation to Bid and Bid Submittal Form (ITB) seeking approximately 39,968 net rental square feet of office space in Pinellas County, Florida, to be used as the district administrative offices. The ITB set forth the method in which the bids would be evaluated as follows: EVALUATION OF BIDS Bids received are first evaluated to determine technical responsive- ness. This includes submittal on bid submittal form, inclusion of required information and data, bid signed and notarized, etc. Non responsive bids will be withdrawn from further consideration. Responsive bids are presented to a bid evaluation committee for com- parison and formulation of a recom- mendation for award. This is accomplished by a visit to each proposed facility and application of the evaluation criteria. The committees recommendation will be presented to the department's official having award authority for final evaluation and determin- ation of successful bidder. EVALUATION CRITERIA The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated in the bid submittal form. The ITB also provided that "the department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interests of the department and the state." In accordance with the ITB a pre-bid conference was held on April 29, 1986; however, neither petitioners nor any representative of petitioners attended the pre-bid conference. Further, petitioners made no oral or written inquiries concerning the ITB or the evaluation criteria to be utilized. Bids received from the following providers were determined to be responsive and presented to the bid evaluation committee for comparison and formulation of the recommendation for award: James P. & Margaret R. Gills (1100 Building) Koger Properties, Inc. (Koger) LTBCLH Partnership (Justice Building) Procacci Real Estate Management Co., Inc. (ICOT Building) Elizabethan Development, Inc. (Handy City Building). BID EVALUATION COMMITTEE The bid evaluation committee was composed of the following people who, along with their staffs, would occupy the leased property: Robert Withrow, Chairman of the Committee and District Administrative Services Director; Samuel Kinsey, Financial and Accounting Director for District V; Patricia Bell, Program Manager for Aging and Adult Services; Fredrick M. O'Brien, General Services, Manager for District V; and Pegi Hollingsworth, Personnel Officer. Each member of the evaluation committee received a bid package consisting of the bid specifications and the bids submitted. Each member also received a bid evaluation sheet which was used to rate each bidder. They received no other instructions with regard to the evaluation criteria. Although each specific evaluation criterion was weighted, i.e., given a comparative value, the committee members were not specifically instructed as to how points should be assigned for each category. The evaluation committee went to each of the proposed buildings for the purpose of making a comparative evaluation based on the evaluation criteria provided. However, the primary focus was on the Koger Building and the petitioners' 1100 Building because they had submitted the lowest rental rates of the five bidders considered. After the viewing process, the members of the committee, except Mr. Withrow, discussed the factors that should be considered in applying each of the evaluation criterion. Although the committee members had not formulated the evaluation criteria to be used, they were uniquely qualified to apply the evaluation criteria provided to the specific needs and requirements of the HRS offices that would occupy the building. Though the committee members were in agreement as to the various factors to be included in each of the criterion listed, they did not discuss the points that would be awarded to each facility. Each member independently assigned points to each facility based on his or her own evaluation of the facility's comparative value in each of the listed categories. Koger received the best evaluation from all five committee members with point totals of 98, 98, 98, 98 and 99 out of a possible 100 points. Petitioners' building was ranked last of the five buildings evaluated by four of the members, with point totals of 75, 77, 71 and 75, and fourth by Mr. Withrow with a total of 81 points. Based on the comparative evaluation of the buildings, the committee recommended that the bid be awarded to Koger. By letter dated July 30, 1986, the District V office received authorization from the HRS Director of General Services to award the bid to Koger as being in the best interest of the department and state. THE EVALUATION CRITERIA The ITB included the evaluation criteria list used by the committee to ascertain the relative value of each building. At the top of the page it is stated: The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated... The evaluation criteria are divided into three general areas: (1) Associated Fiscal Costs, (2) Location, and (3) Facility. Each general area includes subcategories, with each subcategory being given a total maximum value. Each of the criteria disputed by petitioners is discussed below. 1(a) Rental rates for basic term of lease. (Weighting: 45) All of the bids received by HRS were within the rental limits established by the Department of General Services and also much lower than expected. Even the highest bid was lower than anticipated, and Koger's and petitioners' bids were considered especially desirable. The bids received, listed at present value for the ton year basic lease period, are as follows: BIDDER TOTAL COST AMOUNT MORE THAN LOW BID 1100 BUILDING $1,881,690.1 KOGER 1,993,131.4 $111,441.3 JUSTICE 2,473,559.8 591,869.7 ICOT 2,655,306.1 773,616.0 HANDY CITY 3,223,202.0 1,341,511.9 Rental rates for the basic term of the lease were given a weighted value of 45. All of the committee members gave petitioners 45 points, as the low bidder, and all gave Koger 44 points as the next low bidder. However, four of the members simply agreed that the low bid would receive the maximum amount of points with each subsequent low bidder receiving one less point than the one before it, which resulted in the high bidder receiving 41 points even though its bid was 1.7 times greater than the low bid. Only Mr. Withrow made an attempt to prorate the points based on the differences in the amount bid, thus resulting in the high bidder receiving only 20 points. However, even Mr. Withrow awarded Koger 44 points based on the minimal difference between the Koger bid and the petitioners' bid. Both Mr. Withrow and Mr. Kinsey explained the award of 44 points to Koger by comparing the difference in the amounts bid to the HRS District V budget or the budgets of the entities using the facilities. However, the purpose of the evaluation was to compare each facility to the other facilities. Thus, the award of points for rental rates should have been based on a comparison of the rates offered. Although it was reasonable to assign the maximum number of points to petitioners, as the low bidders, the amount of points assigned to the remaining bidders should have been based on a comparison of the amount of each bid to the low bid. This would have made a significant difference in the points awarded to Justice, ICOT, and Handy City; however, even using a strict mathematical computation would not significantly affect the points awarded Koger due to the minimal difference in Koger's bid and petitioners' bid. Koger would receive no less than 42 points, only 2 points less than awarded, regardless of the method of mathematical computation used. 1/ 2(a) Proximity of offered space in central or preferred area of mad boundaries (Weighting: 5) All the members of the committee agreed that Koger is in the most preferred area because its location is more accessible to the employees and the persons who visit the office than any of the other buildings. Koger is in northeast St. Petersburg, minutes from the interstate. The 1100 Building is located in a more congested area in downtown Clearwater on the extreme northern boundary of the designated area. In making a comparison Of the building locations, all of which were located within the map boundary, the committee jusifiably determined that the building that was the most strategically located, in terms of accessibility, would be considered to be in the most preferred area. Thus, Koger was awarded five points by all committee members. The 1100 Building received 2, 0, 1, 3 and 1 points. Although all committee members awarded Koger the highest points, only one committee member resided closer to the Koger Building than the other buildings. Mr. Withrow, who lives closer to the 1100 Building than Koger, gave the 1100 Building only 1 point because it was more inaccessible to the district clients and employees. Further, the District Administrator, who approved the lease to Koger, resides closer to the 1100 Building. 2(b) Frequency and availability of satisfactory public transportation within proximity of the offered space (Weighting: 5) Both Koger and the 1100 Building received the maximum of five points in this category except from Mr. Withrow who gave the 1100 Building four points. The committee members felt that the bus transportation as about the same for each building. Although the 1100 Building had more buses passing the facility due to its location in downtown Clearwater, the committee considered the destination of the buses and concluded that a person would wait the same length of time for a bus to take him to his destination from either the Koger Building or the 1100 Building. Mr. Withrow differed on the points awarded because he considered the Koger location to be better due to its proximity to the airport. The district office has a large number of people that visit from Tallahassee and other districts in the state. 2(c) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of departmental operations planned for the requested space. (Weighting: 3) Koger received the maximum of 3 points from every committee member in this category; the 1100 Building received 0 points from every member. Although this category is listed within the general area of "Location", the committee members followed the category requirement and considered all environmental factors, including the physical characteristics of the building. In the 1100 Building, committee members noted problems with the air conditioning system and the elevators. The building was not maintained well, and the bathrooms were small and poorly ventilated. The HRS parking at the 1100 Building was not conveniently located. To get to the parking lot from the building an employee would have to cross a parking lot adjacent to the building, cross an intersection and then walk up to a block to get to his or her car. Many of the office employees work late and would be walking to their cars after dark, and there was concern expressed for employee safety considering the parking arrangement offered by petitioners. Koger had none of the problems observed at the 1100 Building. Further, Koger was better suited for the handicapped because there was no need to use a ramp as there was at the 1100 Building. 3(a) Conformance of space offered to the specific requirements contained in the Invitation to Bid. (Weighing: 10) 3(b) Susceptibility of the design of the space offered to efficient layout and good utilization. (Weighting: 10) 3(c) Provisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations...within 100 yards of each other. (Weighting: 10) Koger's bid is for a two-story building containing approximately 39,000 square feet. The 1100 Building is a 15-story building. It would provide approximately 39,000 square feet on the second, fourth, fifth, part of the eighth, part of the ninth, and twelfth floors. The space allocation in the 1100 Building, spread over 6 floors, would provide a major problem in efficiently locating the staff. Certain offices could not be placed on certain floors because of space restrictions, and related offices could not be placed in close proximity to each other. Offices that needed to be on the same floor could not be located on the same floor. Because the space offered by petitioners is spread over 12 floors, accessibility to related offices would be much more difficult. Further, the limited space per floor makes it more difficult for HRS to properly utilize the space provided. None of the testimony provided by the committee witnesses related the "conformance of the space offered to the specific requirements contained in the Invitation to Bid" (e.s.) The ITB lists the offices and rooms required, giving sizes for each. Other than the total square footage, which petitioners met, there were no other specific requirements contained in the ITB. None of the committee members compared the conformance of the space offered to the specific room and office requirements. Indeed, the testimony of the committee members indicate that accessibility of the space was considered under criteria 3(a) rather than the conformance of the space to the ITB. Since the space offered by petitioners apparently complied with the requirements of the ITB, petitioners should have received 10 points for that category. The points awarded under 3(b) and 3(c), however, were proper. The space offered by the 1100 Building is not susceptible to an efficient layout or good utilization of the space offered. Further, the committee legitimately differentiated between the single buildings offered by each bidder, under 3(c), by considering where the space was located within the building. Obviously, factor 3(c) reflects a concern that the space offered not be too separated. It clearly provides that proposals for space in two separate buildings will get fewer points than single building proposals, and there is no indication that all single building proposals should receive the same maximum points. This factor clearly relates to the proximity of the spaces offered to one another, with contiguous space getting the most points. 3(d) Offers providing street-level space (Weighting: 2) Approximately half of the space offered by Koger is street-level space. Koger received two points. The 1100 Building provides no street-level space; it received no points in this category. Petitioners do not contend that they should have gotten any points, but assert Koger should only have gotten one point because not all its space was street-level space. THE COMPARATIVE EVALUATION The evaluation committee members were very conscientious in comparing the relative values of the buildings offered based on the criteria provided and their observations. Their evaluations were not made arbitrarily, but based upon the factors set forth in the evaluation criteria. Although errors were made in calculating the values awarded for categories 1(a) and 3(a), these errors were not due to arbitrary action by the committee members. Further, should the appropriate points under 3(a) be added to petitioners evaluations and three points be subtracted from Koger's evaluations (two points for 1(a) and one point for 3(d)), petitioners evaluations would be 79, 80, 76, 80 and 84, and Koger's would be 95, 95, 95, 95 and 96. The strategic plan for HRS, 1986-1991, Goal 12, is to enhance employee morale and job satisfaction in several ways, one of which is to replace or upgrade 90 percent of substandard physical work environments by December 31, 1990. The testimony and evaluations show, and the committee members found, that the Koger Center would provide a better work environment than the petitioners' 1100 Building. Based on the criteria set forth in the ITB, the Koger bid is the "lowest and best" bid.
Findings Of Fact Nobles, Varnum and Hodges, Inc. (Nobles) is a Florida corporation headquartered in Tallahassee. It provides surveying, civil engineering and landscape architecture services and held a DNR certificate of qualification as a surveyor. The Bureau of Survey and Mapping of the Department of Natural Resources enters into contracts for surveying services on lands the State is considering purchasing, or already owns. The Department published on December 27, 1991, its request for proposal number BLA 92-06-395 in Volume 17, Number 52 of the Florida Administrative Weekly, at page 6206, seeking technical proposals for a five year contract for land surveying services for land acquisition and management in the four county area of Gadsden, Liberty, Calhoun and Franklin counties. The work to be done included the preparation of appraisal maps, boundary surveys, and related services. Proposals were due on January 12, 1992. Although Nobles implies that the Request for Proposals was published during the holiday season to minimize responses to it, I find no basis for the inference. This procurement was conducted under the Consultants' Competitive Negotiation Act. The parties to this litigation, Nobles and the successful bidder, Bannerman Surveyors, submitted timely written technical proposals. Under the Consultants' Competitive Negotiation Act a contract is awarded in a three step process. All written technical proposals are first evaluated, and those who submit the best proposals are then invited to an interview with the selection committee, after which the proposals are ranked in order of overall quality. The Department then attempts to negotiate a price with the best proposer, and if successful, a contract is awarded. If the highest ranked proposer and the Department cannot reach agreement on price, the Department then attempts to negotiate price with the next most highly ranked proposer, and continues in series as negotiations are unsuccessful until all those ranked have participated in price negotiations. The proposals here were rated by an evaluation committee consisting of three members, the section administrator for surveying, Bob Beck; the contract administrator for this surveying contract, Dave Kealy; and another Department surveyor, Steve Kellogg. They evaluated the written technical proposals according to a structured methodology and determined the three top contenders, which included the parties here and a third entity known as Baskerville-Donovan Engineers, Inc., which has not participated in this proceeding. Each of these three bidders was invited to give an oral presentation at an interview with the committee, which was evaluated in a less structured fashion than the written technical proposals. The interview invitation tells each bidder that the agenda for the interview will be: Discussion of who your consultants will be. Review of your proposal and discussion of any additions. Questions and discussion by Department of Natural Resources staff (DNR Exhibit 4). At the interview stage, the committee members evaluated the services offered on eight factors, which they rated on a scale of from 1 through 5. These are: approach to the project; adequacy; background; ability of personnel; location of the firm in relation to the project site; ability and willingness to meet time schedules; workload; and volume of work previously awarded to the firm by the Department. An additional factor can be considered for minority contractors, but none of the three firms interviewed here were minority owned and controlled. This was the first DNR project on which Mr. Nobles and the Nobles firm had bid. Before submitting the proposal, he had spoken with Bob Beck and another surveyor in the office, Scott Woolam, about how to put the written technical proposal together. Mr. Nobles got the impression that the technical proposal was merely a means to qualify for the interview stage, so Nobles put the greatest effort into his interview presentation. This is reflected in the fact that, at the first stage, where the technical proposals were reviewed, Nobles' firm ranked third, but after the interview, his firm was second overall. Although Mr. Nobles recanted the comment at hearing, he did acknowledge that Bannerman submitted a better technical proposal, which is consistent with his testimony that he focused the greater part of his energy on the interview process. One of the significant aspects of the contract was that the surveying area included the Forbes tract, a large Spanish land grant. This area had not been part of the general U.S. Government survey of Florida, which had divided almost all of the State into townships and ranges. That government survey was not done in areas of Spanish land grants. The absence of an underlying U.S. Government survey for large areas required a different approach to surveying in land grant areas than would be made in an ordinary survey. Bannerman and his group devoted a significant portion of their presentation to explaining how they would deal with this unusual aspect of the project, but Mr. Nobles did not address this significant aspect of the work at any length during his interview. The manner in which committee members assign points on the 1 to 5 scale at this stage is a matter of individual judgement. According to the evidence, all evaluators did not award points in the same manner. Mr. Beck awarded scores which were a composite of his evaluation of how well the proposer did in relation to a hypothetical perfect presentation, as well as how good the presentation was in comparison to the two other firms that made the cut for the interview. Mr. Kellogg would award a 5 if he considered that aspect of the presentation excellent, 4 if it were good, 3 if it were average, and so on. At the close of the evaluation, the scores for Bannerman on the committee's score sheets were 31, 27 and 31 (total 89 points); for Nobles they were 28, 25 and 27 (total 80 points). The testimony of all committee members was convincing at the final hearing that the proposal from Bannerman was the best proposal. While each of the evaluators was scoring on the same topics but not on precisely the same basis, and others assigned to the committee might have scored the performance of the three firms differently, each evaluator for this contract offered reasons for the overall score assigned (see the following Finding). None were arbitrary in their scoring. The factors they considered were derived from the applicable statute, and their use was appropriate. After receiving notification that his firm had not received the highest ranking, Mr. Nobles came to the Department's office to see the score sheets committee members had filled out after the interview. He spoke with Mr. Kealy and Mr. Beck, who gave him reasons why the Bannerman proposal was superior. Some of the reasons for the outcome were: Bannerman had an associate, Broward Davis, who is familiar with surveying the area from other surveying work he has already done in the project area. Bannerman's consultants included Buster Ratliff, who was already familiar with a major tract in the area to be surveyed, because Ratliff had been employed for 35 years by the prior owner of a large block of land (Buckeye Cellulose). During the interview Mr. Nobles had been equivocal on who his consultants would be. The committee members knew that he had only three field crews, which would not be sufficient to do all of the work required in-house. Bannerman had an in-house satellite global positioning system which is very useful in performing large surveys. While Nobles could contract for those services with a qualified subcontractor, Bannerman would have better control of scheduling its internal global positioning system. Nobles would have to work out the availability of the subcontractor to use its global positioning system. The committee members regard this as less desirable from the Department's point of view. Bannerman had made an effort to bring his subcontractors to the interview with him, and to integrate into his presentation their skills and experience in surveying in the area, which made a more effective overall presentation about how his group would accomplish work. Bannerman concentrated during the one hour allotted to his presentation on the issues of greatest interest to the committee. Nobles took more time to explain his firm to the committee members, since they had not done business with him before, they were not familiar with his firm's capabilities, or those of his employees or subcontractors and he made a less effective presentation on how he would accomplish the work. Mr. Nobles reviewed the score sheets. He was unable to understand why he received the scores assigned to his firm by each of the three interviewers; he could discern no logic to the scores. Mr. Nobles asked Mr. Kealy if it was worth competing against Bannerman for future work, and Kealy told him that it was, but when Nobles pressed him, Kealy was unable to identify a specific contract the Department would be letting in the near future, which he thought the Nobles firm would win. Mr. Nobles had also talked to Mr. Beck, and was not satisfied that Beck had a good rationale for the scores he had assigned to Nobles. Mr. Nobles alleges that Beck told him the committee members decide who they want to receive the contract and tailor their scores to reach that result. While it is not clear what Beck said to Mr. Nobles, Beck did not say what Mr. Nobles ascribed to him. The scoring had a logical basis, as set forth above in Finding 11. Already suspicious of the timing of the Department's publication of the announcement that it would receive proposals and of what Mr. Nobles viewed as their illogical scoring, Mr. Nobles was more upset when he found out that David Kealy had a social relationship with Mr. Bannerman. Kealy had known Bannerman for many years. At the time they were both members of a group known as the Chipola River Hunting Club. Mr. Nobles had received an invitation to join the club, but had not done so. That club leased hunting rights over 3,000 acres for hunting. It advertised for members in the publication of the Florida Society of Professional Land Surveyors, "PLUMB Lines," and the advertisement included a notice for those interested in joining to call any of three people: Mr. Bannerman, another member, Mr. Evers, or David Kealy. The ad included Kealy's work number at the Department of Natural Resources. Mr. Kealy had not placed the ad, an the person who did so included Kealy's work number without Mr. Kealy's consent. Mr. Nobles may believe that, out of friendship, Mr. Kealy gave Mr. Bannerman prior notice of the contract Nobles lost to Bannerman, which could have given Bannerman more time to prepare both his technical proposal and his interview presentation. There is no credible evidence that this occurred. Membership in the club is not an advantage in obtaining survey work. Mr. Kealy sat on the evaluation committees for other surveyors who are members of the Chipola Hunt Club, and on those occasions, the members who also belong to the hunt club were unsuccessful on three occasions, and successful on one. Mr. Nobles also contended that the scoring was arbitrary and unfair because Mr. Kealy and Mr. Bannerman have hunted together on two occasions, one a 10 day trip to Colorado, and another shorter trip to Alabama. They split expenses on both of these trips. On the Colorado trip, Bannerman procured the cabin, and Kealy paid to rent a car, paid for the gas, one-half of the food and three-quarters of the restaurant meals. On the Alabama trip, Bannerman again obtained the use of a hunting cabin through a friend, and Kealy bought the gas, and split the food costs. Mr. Bannerman did not make a gift of the trips to Mr. Kealy, they split expenses. The presence of Mr. Kealy on the evaluation committee was not unfair to Mr. Nobles. It is common for surveyors to know and socialize with other surveyors. Those sort of social contacts are not disqualifying. The evidence does not demonstrate that the evaluation process for the proposals at issue was arbitrary. The reasons given for the superior scores assigned to Mr. Bannerman by all evaluators are persuasive.
Recommendation It is recommended that the Department of Natural Resources enter a Final Order which dismisses the bid protest filed by Nobles, Varnum and Hodges, Inc. DONE and ORDERED this 2nd day of August, 1993, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4671BID The following constitute my rulings on specific findings of fact proposed by the parties. Findings proposed by Nobles, Varnum and Hodges, Inc.. Adopted in finding 1. Adopted in finding 2. Adopted in finding 2. Adopted in findings 5 and 10. Adopted in the preliminary statement, except for the final sentence, which is unnecessary. Adopted in the preliminary statement. Adopted in the preliminary statement. Adopted in the preliminary statement, except that the final sentence is rejected as unnecessary. Adopted in the preliminary statement. Adopted in the preliminary statement. Adopted in finding 2, except for the final sentence which is rejected in finding 2. Rejected as unnecessary. Rejected as unnecessary. Adopted in finding 5. Rejected as unnecessary and, to some extent, adopted in the first sentence of finding 10. Adopted in finding 4. The first sentence is adopted in finding 5. The remainder is rejected as irrelevant. Rejected as unnecessary. Sentence one adopted in finding 13. The remainder is adopted in finding 14. Rejected as unnecessary. From the evidence, it appears that the $800,000 in the survey contracts Bannerman has received in Levy County is a single contract. All members of the evaluation committee downgraded Bannerman on the factor dealing with volume of work previously awarded to the firm by the Department (factor 8) and gave Nobles, Varnum and Hodges a higher score, because they had not worked for the Department. The specific scores from each evaluator were not identical, but the trend is the same across all three evaluators. Even if the Hearing Officer had the authority to adjust the evaluators' scores, a change in the scoring of factor 8 would not shift the ultimate outcome of the rankings. Adopted in finding 13. Rejected as irrelevant. Generally adopted in finding 4, except for the last sentence which is unnecessary. Rejected as unnecessary, there is no dispute that the technical proposals were evaluated appropriately. Rejected because the scoring of the technical proposal is not at issue. Rejected as unnecessary. Adopted in finding 6. Rejected because it is not the role of the Hearing Officer to rescore the evaluations by committee members. The trend of the evaluation for factor 8, work previously granted to Bannerman by the Department, has already been discussed. All evaluators gave Nobles, Varnum and Hodges higher scores on this factor than they assigned to Bannerman, which is consistent with the intent behind that factor. Rejected because it essentially seeks to have the Hearing Officer rescore the evaluation. The assignment of points was judgemental, but not arbitrary. Addressed in Finding 10. Rejected because this objection was never raised in any of the pleadings bringing the subcontractors, and touting their abilities at the interview, is consistent with the first factor which the invitation to the interview states will be discussed: who the consultants will be on the project. Rejected. There is no inconsistency, it merely shows that when the subcontractors are known, the committee evaluates them. The reason for giving a higher score to Bannerman for having the in-house global positioning system is reasonable. See Finding 11. Rejected, Mr. Nobles only covered the Forbes purchase superficially at the interview. The decision whether to discuss the topic was Mr. Nobles'. Rejected as irrelevant. The consultants working with Bannerman were evaluated on their quality, not whether they were "joint venturers" or subcontractors. Rejected. This proposal seeks a rescoring of the interview applications. Good experience with Mr. Bannerman in the past obviously bears on such factors as background and ability and willingness to meet time schedules, which are factors derived from the statutory review criteria, and are appropriate considerations. The allegation that the score sheets are a means to justify a decision without regard to the evaluation factors is rejected in finding 12. Rejected as irrelevant. Rejected as seeking rescoring of Kealy's evaluations. Rejected as a conclusion. The proposal submitted by the Department: Adopted in finding 2. Rejected as unnecessary, but see finding 3. Adopted in finding 8. Rejected as unnecessary, the ranking of the technical proposals is not at issue. Adopted in Finding 8. Adopted in finding 5. Adopted in finding 6. Implicit in finding 7. Implicit in finding 6. Adopted in finding 10. Implicit in the preliminary statement and the description of the selection process under the Consultants' Competitive Negotiation Act found in finding 4. Discussed in the preliminary statement. Implicit in finding 7. Adopted in finding 7. Adopted in finding 7. Implicit in finding 10. Discussed in finding 10. Rejected as unnecessary. Adopted in finding 10. Adopted in finding 9. Implicit in finding 9. Adopted in finding 11. Adopted in finding 11. Adopted in finding 11. Adopted in finding 13. Adopted in finding 13. Adopted in finding 13. Rejected as unnecessary. Generally adopted in finding 13. Generally rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Harold F.X. Purnell, Esquire RUTLEDGE, ECENIA, UNDERWOOD & PURNELL, P.A. 315 South Calhoun Street, Suite 500 Tallahassee, Florida 32301 L. Kathryn Funchess, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire Acting General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this proceeding is whether the award of a bid for the sale of scrap metal to Cumbaa Enterprises, Inc. was arbitrary, capricious, clearly erroneous, or contrary to competition or the bid specifications.
Findings Of Fact On January 19, 2011, the Department issued Invitation to Bid (ITB) #10-Apalachee-8252. The ITB was a revenue- generating contract for the sale of scrap metal at Apalachee Correctional Institution in Sneads, Florida. Since the contract would generate revenue to the State, the Department’s purpose was to award the contract to the highest responsive bid and developed bid specifications and criteria to accomplish that goal. The specifications for the ITB stated in relevant part: Material Deviations: The Department has established certain requirements with respect to bids to be submitted by bidders. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition which may not be waived by the Department except where the deviation therefrom is not material.[emphasis added]. A deviation is material if, in the Department’s sole discretion, the deficient response is not in substantial accord with this ITB’s requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. Minor Irregularity: A variation from the ITB terms and conditions which does not affect the price of the bid or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the Department. 1.10 Responsive Bid: A bid submitted by a responsive and responsible vendor that conforms in all material respects to the solicitation. * * * 4.3.1 Submission of Bids Each bid shall be prepared simply and economically, providing a straightforward, concise delineation of the bidder’s capabilities to satisfy the requirements of this ITB, fancy bindings, colored displays, and promotional material are not desired. Emphasis in each bid must be on completeness and clarity of content. In order to expedite the review of bids, it is essential that bidders follow the format and instructions contained in the Bid Submission Requirements (Section 5), with particular emphasis on the Mandatory Responsiveness Requirements. Rejection of Bids The Department shall reject any and all bids containing material deviations. The following definitions are to be utilized in making these determinations. Material Deviations The Department has established certain requirements with respect to bids to be submitted by bidders. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition which may not be waived by the Department except where the deviation therefrom is not material. A deviation is material if, in the Department’s sole discretion, the deficient response is not in substantial accord with the ITB’s requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. Minor Irregularities A variation from the ITB terms and conditions which does not affect the price of the bid or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the Department. As indicated, Section 5 of the specifications outlined the contents of the bid. Section 5 stated in relevant part: SECTION 5 - CONTENTS OF BID This section contains instructions that describe the required format for the submitted bid. Bids shall be submitted in a sealed envelope, clearly marked “Bid - ITB#- Apalachee-8252”. . . . . [T]he following paragraphs contain instructions that describe the required format for bid responses. Responsiveness Requirements The following terms, conditions, or requirements must be met by the bidder to be considered responsive to this ITB. Failure to meet these responsiveness requirements may cause rejection of a bid. [emphasis added]. Bidder shall complete, sign and return the ITB Bidder Acknowledgement Form (page 1 & 2). The bidder must return either the original or a copy of both pages with an original signature on page one (1). The bidder shall complete, sign, date, and return (all) pricing pages, entitled Cost Information Sheet, which consists of page 28. By submitting a bid or bids under this ITB, each bidder warrants its agreement to the prices submitted. The Department objects to and shall not consider any additional terms or conditions submitted by a bidder, including any appearing in documents attached as part of a bidder’s response. In submitting its bid, a bidder agrees that any additional terms or conditions, whether submitted intentionally or inadvertently, shall have no force or effect. Any qualifications, counter-offers, deviations, or challenges may render the bid un-responsive . . . . * * * 5.3 Certificate of Insurance Bidders shall return a fully executed Certificate of Insurance . . . . In this case, Section 5.1 contains two bid specifications essential to a bid's responsiveness. Those two requirements were submission of a signed and completed, original or copy, of the bidder acknowledgement form and submission of a completed Cost Information Sheet. The Cost Information Sheet is not at issue here. The bidder acknowledgement form is a double-sided Department of Management Services form containing general boilerplate contractual language. The back of the form is a continuation of standard contractual terms from the front. Oddly, signatures acknowledging these terms and the terms of the ITB are on the front page (page 1) of the form. By signing the front page of the bidder acknowledgement form the bidder agrees to abide by all conditions of the bid. The remainder of Section 5 of the ITB contains bid specifications that are not considered essential to determine the initial responsiveness of the bid at the bid opening, but are to be returned at some later point in time after the bid's are opened. However, the language of Section 5 effecting that intent is unclear. In particular, the bid specification contained in Section 5.3 requires the bidder to "return" an "executed" Certificate of Insurance. The Certificate of Insurance provides the Department with proof of a variety of required insurance coverage of the vendor. However, later in the ITB Section 7.14 clarifies that the Certificate of Insurance need only be supplied with the later-signed contract documents. Section 7.14 states, in relevant part: 7.14 Contractor's Insurance The contractor shall not commence any work in connection with this ITB . . . until he has obtained all of the . . . types of insurance and such insurance has been approved by the Department. The Department shall be furnished proof of coverage of insurance by Certificates of Insurance . . . accompanying the contract documents and shall name the Department as an additional named insured [emphasis added]. Indeed, the evidence demonstrated that the Department has long interpreted these provisions to require a winning bidder to provide Certificates of Insurance at the time a contract is entered into and not as part of the essential requirements of the bid due at bid opening. While the Department could (and probably should) clarify this provision, its interpretation of its bid specifications is not unreasonable under these facts. In this case, five bids were timely submitted in response to the ITB, including those of K & M and Cumbaa. On March 8, 2011, the Department opened bids for the ITB. Cumbaa submitted the highest bid for the contract, at $22,197.48. K & M submitted the next highest bid at $20,001.00. At the bid opening, Cumbaa's bid included a Cost Information Sheet, a copy of the signed front page of the bidder acknowledgement form, and the Contact for Contract Administration form known as Attachment 1. However, the bid did not contain the second side of the bidder acknowledgement form or a Certificate of Insurance form at the time the bid was opened. K & M's bid contained the same documents as Cumbaa's bid, as well as the second side of the bidder acknowledgement form and a number of certificates of insurance for K & M. The evidence showed that Cumbaa did not include the Certificate of Insurance form in its sealed bid upon the advice of the Department that the form was not required at bid opening. However, Cumbaa had insurance coverage in place at the time of the bid opening and faxed its certificates of insurance to the Department on March 10, 2011. Given these facts and the Department's reasonable interpretation of its ITB, the omission of Cumbaa's certificate of insurance was neither required at the time of the bid opening, nor material to the award of the bid. The omission of the second page of the bidder's acknowledgement form was not noticed by anyone reviewing the bids until its omission was pointed out by K and M in this bid protest. Cumbaa faxed a copy of the back side of the document to the Department on April 11, 2011. Clearly, this lack of notice demonstrates the immateriality of the back side of the bidder's acknowledgement form. Additionally, since the signatures of both bidders were on the front page of the form submitted by them and those signatures bound the bidders to the terms of the ITB, there was no evidence that demonstrated why submission of a copy of the back side of the form was material to the award of this bid. Ultimately, the Department reviewed the bids for responsiveness and determined that Cumbaa was the highest responsive bid. On March 11, 2011, the Department posted its intent to award the bid to Cumbaa Enterprises, Inc. As indicated, there was no evidence that the omission of these two documents from the Cumbaa bid were material deviations from the bid specifications since neither omission impacted the ultimate contract requirements and did not materially impact the integrity of the bid process. Indeed, the insurance certification was not required for responsiveness under Section 5.1 of the bid under a long-standing and reasonable interpretation of that requirement by the Department. For these reasons, this bid protest should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Corrections, enter a final order dismissing the Protest of K & M Pine Straw. DONE AND ENTERED this 1st day of July, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 July, 2011. COPIES FURNISHED: Kurt Eldridge K and M Pine Straw 20583 John G Bryant Road Blountstown, Florida 32424 Edith McKay, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Edwin G. Buss, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Jennifer Parker, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Findings Of Fact Respondent (DHRS) published a Request for Proposals (RFP) for Medicaid transportation services on May 24, 1985. The RFP identified five transportation categories which would be the subject of the contract awarded the successful bidder. In response to the RFP, Petitioner (B & L Services) and Intervenor Friendly Checker Cab. Co. (Friendly) were the only entities to submit bid proposals. Friendly's response to the instant RFP was rated superior to the B & L proposal by the DHRS bid evaluation committee. The committee further recommended to the DHRS District Administrator that Friendly be awarded the contract. As noted, there were five categories of transportation involved in the current RFP. Friendly's bid was roughly equivalent to that of B & L Services' bid for both intracounty and intercounty non-emergency ambulance/stretcher service (one category) based on anticipated mileage. Because the RFP called for a "fixed price per unit of transportation" and because a "unit is defined as a one-way trip," (See RFP I.E.) it is questionable whether this portion of Friendly's bid was in compliance with the RFP. Friendly's bid was lowest for demand- responsive ambulatory transportation (more than 24 hour notice category) and demand- responsive ambulatory transportation (less than 24 hour notice category) whether or not the transportation to be provided was intercounty or intracounty. Friendly was lowest bidder for demand-responsive wheelchair transportation (more than 24 hour notice category) and for demand-responsive wheelchair transportation (less than 24 hour notice category) if the transportation was intracounty but B & L Services was low bidder for intercounty transportation in these last two categories. The RFP required that potential bidders possess a Medicaid Provider Number. B & L Services possessed such a number. Friendly also was an approved Medicaid provider and possessed a Medicaid Provider Number prior to submitting its proposal in response to the RFP, although Robert J. Siedlecki individually, did not. Robert J. Siedlecki purchased the entity known as Friendly Checker Cab and its trade name in 1978. At the time of the submission of the current bid proposals Siedlecki was operating Friendly as a sort-of one man show which he characterized as a "sole proprietorship" . There is only uncorroborated hearsay testimony that during the course of the preliminary informal bid resolution process, the Office of the Secretary of State verified to Vera Scharitt contract manager for DHRS; that Friendly Checker Cab Co. was "re-established" as a corporation on July 16, 1985. (After contract inception date). Accordingly there was established no limitation on Mr. Siedlecki's personal liability. Most of the bid evaluation committee members who testified erroneously believed they were rating a corporation when they rated the Friendly bid proposal because of the word/symbol "Co." Petitioner contended that this status of Friendly and interrelationship of Friendly to other business entities of which Robert J. Siedlecki is a principal constituted sufficient camouflaging of interests to render Friendly an unresponsive bidder. Prior to the RFP in question, both B & L Services and Friendly had provided transportation services to DHRS pursuant to contract. The preceding year; Friendly had submitted a proposal in response to an RFP similar to the RFP in question. Robert J. Siedlecki submitted that former bid as Friendly for the category of ambulatory transportation in the same manner in which he submitted his proposal for Friendly for the five category contract under consideration herein, except that the present Friendly bid title page utilizes the trade name "Friendly Checker Taxis Company", another trade name owned by Mr. Siedlecki and the document agreeing to contract specifications and requirements lists "Friendly Checker Taxicabs Co." The record is silent as to what "Friendly Checker Taxicabs Co." may bed but Mr. Siedlecki also owns it and the trade name of "Friendly Checker Cab. Co., Inc." which he stated is a corporation. The use of a different entity's name on the title page of the current Friendly bid proposal is characterized by Mr. Siedlecki as a "typographical error," because at his office they use these names interchangeably. In fact, although inadvertent and for no ulterior purpose; the interchangeable use of several different entity names throughout Friendly's bid proposal constitutes a material error which may have contributed to confusion of the bid evaluation committee over the identity and capability of the true bidder. The prior year; Friendly was awarded and provided the ambulatory transportation category of a similar contract. That award and the award of other categories to B & L Services in response to the prior year's RFP were apparently made category by category within the same five categories as were covered by the present RFP. B & L Services contends that the bid evaluation committee members were misled with regard to the present proposals by use of only one rating sheet per each bidder as opposed to one rating sheet per bidder per category bid on. The current RFP provided that: "III.D. . . .Proposers may submit a proposal for one or more types of services stated in this RFP" (RFP pp.2-3) and "V.C.4. . . .Proposers may submit a proposal for one or more types of service stated and must specify whether the cost is for countywide services, only, intercounty services only, or both." (RFP p.8) However, the current bid evaluation committee members who testified all erroneously believed a single contract for all five categories was intended. Only the non-voting contract manager testified otherwise. The rating sheet misled the committee in its established award procedure. Allegations of interrelationships between Intervenor Friendly and other business entities controlled by Mr. Siedlecki, such as "S & M," "Kinko Elevator," and "B & L Operating Co." (not to be confused with Petitioner B & L Services Inc.) were not established as camouflaging or confusing the identity of the true bidder. Paragraph L. of the RFP required that the original of all bid proposal responses be signed by an "official of the organization submitting the proposal who is authorized to bind the service operator to their proposal" (RFP page 6). Friendly's bid proposal title page indicates "Friendly Checker Taxi Company" with "Inquiries Coordinator Robert J. Siedlecki President," and "Project Director Karen Caputo." Robert J. Siedlecki testified that within Friendly's bid proposal response documents, he signed the page requiring acceptance of contract terms and conditions as Robert J. Siedlecki, individually. This document bears his signature with no title. He also testified that he signed the affidavit of non- involvement in any feasibility study of the implementation of the subject contract as Robert J. Siedlecki, individually. This document bears his signature with no title. He also testified that he signed the certificate of self-insurance as Taxi, Inc.'s self insurance fund administrator. This document refers to "Friendly Checker Taxi" with his signature as "administrator." The administrative assessment documents refer to "Friendly Checker Cab Co." with Robert J. Siedlecki as "director." He testified that he signed the financial statement as Robert J. Siedlecki as President of Friendly Checker Cab, Co. and this testimony is confirmed on the document itself. He testified that he signed the document agreeing to all specifications and requirements of the contract as Robert J. Siedlecki, individually. That document refers to "Friendly Checker Taxicab, Co." and is signed by Mr. Siedlecki with no title. All these documents were required by the RFP and their completion resulted in the higher rating for Friendly's proposal. However, rationalizations within the internal workings of Mr. Siedlecki's mind of when he is an official of different entities and when he is an individual is not easily discernible from the actual bid documents. These rationalizations affected full disclosure required by the RFP and contributed to confusion of the bid evaluation committee members as to the identity, nature, and capability of the true bidder. Concerning financial statements; the RFP required providers to: "V.D.4. Submit a copy of the most recent financial statement. A Certified Public Audit is preferred." (RFP p.8). B & L Services' financial statement in its current bid proposal was dated December 31, 1983. Its coversheet is dated March 12, 1984 and purports to be signed by a firm of certified public accountants. This coversheet is actually a statement that the March 12, 1984 compilation relies on representations of B & L Services' management. (Petitioner B & L Services). It may be B & L Services' "most recent" financial statement, but this "compilation" does not constitute a certified public accountant's unqualified opinion let alone a "certified statement" or "certified public audit" within certified public accounting standards. Friendly's financial statement submitted with its current bid proposal likewise was not a certified public audit but was dated May 15, 1985 and was verified by Robert J. Siedlecki as President of Friendly on June 19, 1985, and thus was more current than the financial statement of B & L Services. The Friendly financial statement seemingly contains all information associated with Friendly's operations, but does not contain all details of Robert J. Siedlecki's personal and individual assets and liabilities. As a result, the Friendly financial statement is substantially defective and misleading for a sole proprietorship. This defect is particularly significant in misstating Friendly's financial status in the instant case because Mr. Siedlecki individually is involved in other business dealings and litigation which could affect his personal liquidity and thus the capability of Friendly to perform the DHRS contract. B & L Services' response to the current RFP did not include an acceptance of responsibility statement nor a completed administrative assessment checklist, both of which were required by the RFP and failure of B & L Services to include each constituted a material and substantial noncompliance with the RFP. Friendly's response to the current RFP did include a completed administrative assessment. It also included an acceptance of responsibility statement which materially complied with the RFP in all other respects except concerning identity and capability of the true bidder as reflected in Finding of Fact 12, above. The current RFP called for five categories of transportation services. Intercounty transportation requirements (involving transportation portal to portal through three counties) and intracounty transportation requirements (involving transportation between any two points within Broward County) cross category lines. (See Findings of Fact 2 and 5 above). At least two categories of services to be performed under the current contract did not require a Broward County Non-Emergency Medical Transportation (NEMT) license. The RFP permitted the successful bidder to sub-contract for the provisions of services under the contract in question upon the following terms: "III.F. The proposer shall execute with the District X Medicaid Program Office a General Revenue Federal Funds Contract with appropriate attachments which complies with monitoring standards. Said provider may subcontract for provision of transportation services. The provider is responsible for assuring that the subcontractor meets all requirements for participation in the Medicaid Programs abides by the provisions of the contract and meets all state and local licensing requirements." (Emphasis supplied) (RFP pp. 3-4) Friendly, through Robert J. Siedlecki, made its decision to sub-contract the non-emergency transportation categories of the current contract some time around the time the bid was opened by DHRS. No information about subcontracting or subcontractors is apparent from Friendly's bid proposal documents. AAA Wheelchair Wagon Service had been issued a Broward County NEMT license on June 20, 1985, which was one day prior to the submission and opening of bid proposals and prior to the date set for inception of the contract. Prior to the start of the contract Friendly requested and received permission from DHRS to subcontract the wheelchair/stretcher portions of the contract to AAA Wheelchair Wagon Service. Petitioner's Exhibit 7, a 6/14/85 letter from Dr. Martin, Assistant Director Broward County Emergency Services Division, to Mrs. Nancy Porter, a bid evaluation committee member was submitted to the committee for informational purposes so the committee would know what entities were NEMT licensed by Broward County to do non-emergency medical transportation in Broward County. The letter, although vague; represents by elimination, that Friendly and AAA Wheelchair Wagon Service were not licensed on June 14, 1985 by Broward County but B & L Services, Inc. was so-licensed on that date. The RFP provides that: "I.D.6. List vehicles to be used, identifying number and licenses with proof of insurance, listing type and amount of coverage, attaching copies of all current applicable state and local licenses and permits," (RFP page 8) However, neither the DHRS contract manager nor any of the bid evaluation committee members who testified had any knowledge at all of what licenses were required to perform any of the contract's five categories, and none realized that certain licenses which were no longer necessary and/or which were issued to many other Siedlecki-owned entities or to Mr. Siedlecki personally had been attached to Friendly's proposal while B & L Services attached to its proposal its Broward County NEMT license but not its state NEMT license. Some of the 90 employees listed on Friendly's bid proposal should have been indicated as independent contractors instead. Additionally, the insurance compliance documents mention "Friendly Checker Taxi" and, according to Mr. Siedlecki's oral testimony, some of the vehicles listed as Friendly's property were apparently owned by independent dispatch drivers and some by Taxi, Inc., which is yet another entity owned and controlled by Robert J. Siedlecki. These errors result in a material noncompliance of Friendly's proposal with RFP requirement I.D. 6 (RFP page 8). However, the authority of Robert J. Siedlecki as administrator of the Taxi, Inc. Self- Insurance Fund in relation to the number of Taxi, Inc. vehicles listed in the Friendly bid proposal is less than clear from the record and since the burden of proof is upon Petitioner to demonstrate each element of non-compliance and the extent of this non-compliance by competent substantial evidence, no non- compliance arising from alleged criminal violations under Florida Statutes governing the requirements of self insurance funds and their administrators has been adequately demonstrated. The RFP required bidders to: "I.D.3. Submit evaluations of projects similar to the one proposed in the RFP (previous experience is desired but not required)" (RFP p.8). Friendly's bid proposal outlined 20 years of service to the community including service to and from the local airport. B & L Services contends this information is falsified due to Siedlecki's takeover of Friendly as sole proprietor of Friendly in 1978. The competent substantial evidence falls short of establishing deliberate falsification, but in light of the foregoing findings of fact and the sole proprietorship status of Friendly, this portion of the Friendly proposal is materially misleading of the overall experience of Friendly. B & L Services did not present any evidence to show that it was an eligible transportation provider under 10C- 7.45(3)(a) F.A.C. B & L Services presented no evidence to rehabilitate the deficiencies of its proposal and no evidence to show the superiority of its bid over that of Friendly. Pleadings of record indicate Petitioner and Respondent have entered into agreements concerning damages, if any, as part of their stipulations for continuance of the formal hearing but B & L Services presented no evidence of damages incurred by B & L Services as a result of the bid award to Friendly.
Findings Of Fact Respondent solicited contractors to replace a chiller in Building #45 at its Sunland facility located in Marianna, Florida. The project number for the replacement was HRS-95203000. The vendors were allowed until 10:00 a.m., Central Daylight Time, August 24, 1995, to submit responses to the request for bids. On August 24, 1995, Respondent received four responses. The responses were from Petitioner, Neel, JLS International and Smiths, Inc. On August 24, 1995, when the bids were opened JLS International and Smiths, Inc. were disqualified as nonresponsive bidders. On August 24, 1995, Respondent determined that Petitioner had submitted a base bid in the amount of $141,185.00 and as described on the tabulation form, an alternate bid in the amount of $14,750.00 for confined space compliance. The Neel bid as reflected on the tabulation was a base bid for $142,000.00. The forms upon which Petitioner and Neel had submitted their bid prices were forms identical in their format. The format was required by the Respondent. The Petitioner's bid stated: Base Bid: $141,185.00 With foregoing as a Base Bid the following costs of alternate proposals are submitted in accordance with the drawings and specifi- cations. Alternate No. 1 Add or Deduct $ N/A Alternate No. 2 Add of Deduct $ Alternate No. 3 Add or Deduct $ If more or less work is required than that qualified by the specifications and drawings the following unit prices shall be applicable. *If Required (not included in base bid) ITEM UNIT PRICE Compliance for confined space for refrigerants & equipment *Note: Base bid price is compiled costs for construction duration & equipment delivery of 18 weeks. When Petitioner submitted its response to the request for bids, it offered no further explanation concerning the $14,750.00 price for "compliance for confined space for refrigerants and equipment" than has already been described. The Neel bid stated: Base Bid: $142,000.00 With foregoing as a Base Bid the following costs of alternate proposals are submitted in accordance with the drawings and specifications. Alternate No. 1 Add or Deduct $ Alternate No. 2 Add of Deduct $ Alternate No. 3 Add or Deduct $ If more or less work is required than that qualified by the specifications and drawings the following unit prices shall be applicable. ITEM UNIT PRICE Respondent had provided written instructions to the bidders concerning execution of the bid proposal form to the effect: Omit mention of alternates entirely, if there are none. Unit prices are to be used only if unit prices are applicable and approved by the Project Director. This project did not call for alternate bids or unit prices. The request for bids did not contemplate a quotation other than the base bid for all items, to include any costs associated with implementation of a design that complies with all applicable codes associated with the installation and with any laws pertaining to refrigerant handling. Posting of the bid evaluation/tabulation and notice of contract award recommendation was given on September 8, 1995, indicating Respondent's intent to award to Petitioner in the amount of $141,185.00 as the base bid for the project. Prior to the posting of the bids on September 8, 1995, as was customary, Thomas McAuley, an account representative for Petitioner, who had submitted Petitioner's bid response had met with Respondent's project manager Glen Jenkins, a Professional Engineer III. The meeting was held to discuss Petitioner's bid response as the apparent responsive lowest and best bidder. In the conversation held between Messrs. McAuley and Jenkins, they did not discuss the $14,750.00 separate price quotation in the Petitioner's bid. They did discuss compliance with the codes that were going to be applicable to the project and whether the base price quotation took into account the code requirements. McAuley indicated his opinion that the base price quotation did account for compliance with code requirements contemplated by the terms in the request for bids. McAuley was specifically asked whether Petitioner was complete and thorough in its compliance with the bid specifications and in its prices, inclusive of all the items that were going to be mandated by the State of Florida, Department of Management Services. McAuley answered that question in the affirmative. In the specifications, under Article 7, Miscellaneous Provisions, within the request for bids is set forth Sections 7.2, 7.3 and 7.4 related to permit and code compliance issues, which state as follows: State Building Permit. Current DMS requirements for state building permit applications and for permit inspections are attached. It shall be the Contractor's responsibility to apply for and pay all costs associated with the state building permit (including the cost of preparing any permit documents on which the state building official may require the seal of a registered engineer). It shall further be the Contractor's responsi- bility to comply fully with all permit inspection requirements. Code Compliance. It is the Contractor's responsibility to implement a design complying with all codes applicable to this installation, and with all laws pertaining to refrigerant handling. Neither the Owner nor the Project Manager shall be held responsible for stating or setting forth (in this or any other document, or verbally) any code requirement which may be applicable to this project. By disseminating this "Statement of Work Scope and Contractual Conditions", the Owner merely sets forth minimum acceptance criteria for materials and workmanship, and neither the Owner nor the Project Manager shall thereby be held liable, in full or in part, for the Contractor's adherence or non-adherence to any governing code and/or legal requirement. Special Terms and Conditions for Cont- racts Under the National Energy Conservation Policy Act. Due to partial project funding under a federal NECPA grant, Contractor compliance with federal laws and regulations are a special requirement of this project. Special terms and conditions pertaining to wages and payrolls, records retention and access, apprenticeship and training, equal opportunity access, are set forth in the attached "Special Terms and Conditions for Contracts Under the National Energy Conserva- tion Policy Act". The contractor shall responsible for full compliance with the attached special terms and conditions. In the meeting between McAuley and Jenkins discussion was made concerning compliance with pertinent electrical codes. One question was asked about pipes in the system being installed in a manner to allow variable speed drives to be placed above the pipes. Jenkins considered that speed drive placement underneath the pipes would be contrary to code requirements. Related to the mechanical features in the project there was discussion about the provision of refrigerants in compliance with the mechanical code that pertained. In the meeting there was little discussion about code compliance within confined spaces, because the two individuals did not perceive that there would likely be a code requirement concerning confined spaces. Mention was made that some code inspector or code official who came to the job site might require attention to the confined spaces, even though that requirement was not found in the code. According to Jenkins, in his recount of the meeting with McAuley, if a code official required compliance for an item in the confined spaces that was not set forth in the code, that would constitute an item about which the Respondent had not requested information to be included in the base price quotation offered by the Petitioner. Further, Jenkins stated there would not be a problem for failing to offer a quotation for the features required by the inspector, because it was not sought by the Respondent in designing the bid requirements. As Jenkins describes, Petitioner's unit price for that work had been made known. This is taken to refer to the $14,750.00 quote for compliance for confined space for refrigerants and equipment. In that circumstance, Mr. Jenkins told Mr. McAuley that if a code official required something that was not contemplated by the code and the Respondent did not consider it worth fighting over, then Respondent would have to process a change order to install that equipment. This is taken to mean that Petitioner would be paid additional money under a change order for installing the equipment in the event that the Respondent did not choose to contest the decision of the code official. At the time that McAuley and Jenkins had the meeting, counsel for Neel had contacted Jenkins about protesting the decision to award the contract to Petitioner. That individual had stated the opinion to Respondent that Petitioner's discussion of confined space for refrigerants and the equipment at the additional cost of $14,750.00 might be perceived as potentially a code exclusion in violation of the requirements of Section 7.3 to the request for bids. Neel's counsel stated his belief that the vendors were expected to be in compliance with all codes and laws, even if it was not known to be a code requirement at the time the bid was submitted. He was concerned that someone might try and make it a requirement in the future. The Neel attorney explained that the reference to compliance for confined space for refrigerants and equipment set forth in Petitioner's bid response might be construed as a comment on code requirements through the contingency of someone's interpretation of the code. He believed that the responses to the request for bids needed to address that contingency as part of the basic quotation, not as a separate quotation. At the time McAuley and Jenkins had their meeting, Jenkins did not know of any requirement for compliance for confined space for refrigerants and equipment based upon his experience, but he had not researched the issue. Through information which Neel imparted to Mr. Jenkins before the meeting was held between Jenkins and McAuley, the Neel attorney expressed the opinion that there was not a present code requirement for compliance for confined space for refrigerants and equipment, a view held by McAuley and Jenkins. At the time the meeting was held between McAuley and Jenkins, Jenkins was of the opinion that the requirement for compliance for confined space for refrigerants and equipment was not foreseen to be a likely code requirement. As contrasted with Neel's view, as explained to Jenkins, that its base bid was intended to cover the eventuality that there might become a requirement for compliance for confined space for refrigerants and equipment, Neel's representative stated that Petitioner's bid had segregated that contingency for consideration by quoting the price of $14,750.00 separately. Neel did not appear at the hearing and there was no direct proof that the $142,000.00 base bid by Neel addressed the contingency that a future requirement might be imposed for compliance for confined space for refrigerants and equipment. However, it may properly be assumed the Neel bid met the requirement for a base bid quotation to cover all costs to Respondent absent proof to the contrary. Later, when Respondent decided to award the contract to Neel, Respondent implied that the $142,000.00 base bid would meet code requirements contemplated by Section 7.3. Concerning the responsibility to determine which code requirements pertained and when, Respondent expected the vendors to derive that answer. This case was unlike most projects by the Respondent in which design professionals, engineers or architects create design documents that are completed in view of code requirements and the vendors assume that the bid documents prepared would be in conformance with code requirements. At hearing Mr. Jenkins, as project manager, opined that Section 7.3 obligated the contractor to meet existing requirements of the permitting authorities, and if during the pendency of the contract there was some change to the codes or code requirements set forth by code inspectors, then the contractor must assume the risk. Moreover, when the bids were opened and tabulated initially and the preliminary decision was made to award the contract to Petitioner, Mr. Jenkins perceived the quotation of $14,750.00 set forth in the Petitioner's bid to be a unit price for a scope of work that was not expected to be required at any point and was not been asked for by Respondent. Jenkins considered this quote as an alternate that was being proffered, something that Respondent might opt for in the future. Although not set forth in exact terms, Mr. Jenkins perceived this information in the Petitioner's bid response to be related to an alarm system and breathing apparatuses. He held this belief based upon his experience in association with compliance for confined spaces. Mr. Jenkins surmised that what was being described by the Petitioner was the type of installation that you would put into a closed mechanical room where a refrigeration machine was located that contained toxic refrigerant, which if released might kill a serviceman. In that connection when discussing refrigerant compliance with Mr. McAuley in their meeting, Mr. Jenkins indicated that the discussion had been limited because the type of machine proposed by the Petitioner was a 134A machine which is "ozone friendly" and not restricted by clean air amendment regulations. Following the posting on September 8, 1995, which recommended that the contract be awarded to Petitioner, Neel had 72 hours to file a protest. That protest was filed. Having considered the remarks by Neel's attorney in support of that protest, Mr. Jenkins became persuaded that Petitioner might not have intended to describe an alternate (unsolicited) purchase when discussing the compliance for confined space for refrigerants and equipment for a price of $14,750.00; instead, Petitioner may have been describing how to comply with future code requirements. Consequently, Mr. Jenkins attempted to settle the issue by presenting the opportunity for the Petitioner to obtain a letter from the Department of Management Services permitting office establishing that the equipment described in the bid by Petitioner for compliance for confined space refrigerants and equipment was not then a code requirement. Mr. Jenkins wanted that information to be in writing. This opportunity to submit information was imparted to Stuart Zaritsky, Branch Manager for Petitioner in its Tallahassee office. Petitioner did not take the opportunity to send written information concerning the compliance for confined space for refrigerants and equipment as not being required by applicable codes. Instead, Mr. Zaritsky called Mr. Jenkins and told him that Petitioner had placed calls to the Department of Management Services permitting office and was unable to get a definitive response at that time. On September 26, 1995, Mr. Zaritsky wrote to Mr. Jenkins and stated: The confined space for refrigerants and equipment compliance is based on ASHRAE recommendations only. If any of these items are required by code, then we will install it at no cost. Our base bid of $141,185 is based on the specifications, including paragraph 7.3 on page 13 and all other portions of the contract documents without any qualifications. If it is determined by the owner, that they wish to upgrade the machine room to ASHRAE 15 standards, and it is not required by code, the $14,750 would be the price to add refrigerant monitors, refrigerant purge fans and self-contained breathing apparatus. Should the jurisdictional authority of code compliance determine that these items are required by code, they will be installed as part of our base bid of $141,185. On September 29, 1995, Respondent gave notice of an amended bid tabulation finding Neel to be the responsive lowest and best bidder for the project in its quotation of $142,000.00. The September 29, 1995 correspondence notified the Petitioner that: After further review of issues raised by responsive bidders on the above project, the Department has determined that the bid sub- mitted by Natkin Service Co. on the above referenced project either: is nonresponsive, because the bid was not in compliance with Section 7.3 of the Statement of Work Scope and Contractual Conditions, since it exempted its bid from certain refrigerant handling requirements; or if responsive, is in the amount of $155,935.00. In either case, the bid submitted by Neel Mechanical Contractors, Inc. in the amount of $142,000.00 is the lowest responsive bid. The September 29, 1995 determination that Petitioner was not responsive led to Petitioner's present protest. Sometime shortly before the amended posting of the bid tabulation on September 29, 1995, Mr. Jenkins spoke to Mr. McAuley concerning the opportunity to present information to address the question concerning whether compliance for confined spaces for refrigerants and equipment was a code requirement. To assist the Petitioner Mr. Jenkins provided information which had been received from the Department of Community Affairs related to code provisions under enforcement by the Department of Management Services. This information was not provided by Mr. Jenkins as a determination of code requirements; it was provided to inform Petitioner concerning what Mr. Jenkins understood to be the latest code requirements. The expectation was still held that Petitioner would submit separate information from the Department of Management Services that would settle the issue concerning the possible need to comply with code requirements for confined spaces for refrigerants and equipment. As Mr. Jenkins described at hearing, the basis for finding the Petitioner's bid unresponsive was alternatively stated. First, the Respondent believes that Petitioner tried to avoid the responsibility for complying with code requirements, whatever they may be during the contract pendency; or second, Petitioner split its bid into two parts. One in the amount of $141,185.00 for matters unrelated to code compliance for confined space for refrigerants and equipment and the second in an amount of $14,750.00 for such compliance. If the former view is taken, Petitioner's bid is unresponsive. If the latter view is taken Petitioner's bid is responsive but exceeds the quotation by the responsive bidder Neel. At hearing it was not proven by competent evidence whether there was any necessity to meet code requirements for compliance for confined space for refrigerants and equipment as described in Petitioner's bid response at any point in time. Other provisions within the request for bids that pertain to the manner in which the vender would address its price quotation are as follows: 1.5 The Contract Sum shall initially be that lump-sum amount which the Contractor shall have enclosed in his sealed bid proposal. Subject to additions and deduc- tions by Change Order, the Contract Sum shall be the amount which the Owner shall pay the Contractor for the performance of the work, subject to the terms and conditions as provided in the Contract Documents. 2.6 The Contractor shall apply for, and pay all costs associated with, any permit which may be required by the Department of Management Services. Such permitting costs for which the Contractor shall be responsible shall include the preparation of any permit documents on which the building official may require the seal of a registered engineer. B-9 Instruction for bidders; They (the bidders) are also required to examine carefully any drawings, specifications and other bidding documents to inform themselves thoroughly regarding any and all conditions and requirements that may in any manner effect the work.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's protest based upon the unresponsive of its bid and awards the contract for Project No. HRS- 95203000 to Neel. DONE and ENTERED this 20th day of December, 1995, in Tallahassee, Florida. CHARLES C. ADAMS 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 20th day of December, 1995. APPENDIX The following discussion is given concerning the proposed fact finding by the parties: Petitioner's Facts: Paragraph B1 is contrary to facts found. Paragraph B2 is rejected in the suggestion that Respondent should be bound by resort to extrinsic evidence to determine Petitioner responsive to the bid invitation. Paragraph B3 is contrary to facts found. Paragraph B4 is rejected in the suggestion that it was inappropriate to defer to the Neel protest as a means for Respondent to reconsider its position. Paragraph B5 is rejected in the suggestion that Neel has controlled the outcome in this case. Paragraph B6 is rejected in the suggestion that Petitioner has complied with the bid invitation requirements. Paragraph B7 is rejected in the suggestion that the contrary position stated by the Respondent in the informal review wherein Petitioner had been preliminarily determined to be the responsive bidder and the point of view at hearing would preclude a decision favoring the Respondent. Respondent's Facts: Paragraphs 1 through 9 are subordinate to facts found. COPIES FURNISHED: Tommy McAuley, Account Manager Natkin Service Company 3428 A. Garber Drive Tallahassee, FL 32303 Sam Chavers, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 200 Tallahassee, FL 32399-0700 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Informational Copies: JLS International, Inc. P. O. Box 490 Foley, AL 36536 Neel Mechanical Contractors, Inc. P. O. Box 1916 Thomasville, GA 31799 Smith's, Inc. of Dothan P. O. Box 1207 Dothan, AL 36302
The Issue The issues are whether the intended contract awarded to Intervenor, The Henry and Rilla White Foundation, Inc. (Intervenor or White), pursuant to Request for Proposals #P2062 (RFP) for an Intensive Delinquency Diversion Services (IDDS) program in Palm Beach County, Florida (Circuit 15), is contrary to Respondent’s governing statutes, policies and rules, and the RFP. Petitioner, Juvenile Services Program, Inc. (Petitioner or JSP), timely challenged the intended award, and alleged that the award to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency for this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. Intervenor is a not-for-profit corporation duly organized under the laws of the State of Florida. On November 23, 2009, Respondent issued the RFP to select a provider to operate IDDS programs in multiple counties, multiple circuits, within Florida. Petitioner did not protest the specifications of the RFP within 72 hours of the issuance of the RFP. Petitioner and White submitted timely responses to the RFP. Both sought the award for Circuit 15. On or about March 5, 2010, the Department posted its NOAA and informed all parties of its intent to award the contract at issue to Intervenor. The NOAA ranked White, first, with 1549.78 points; JSP, second, with 1451.34 points; and Urban League of Palm Beach, Inc., third, with 862.58 points. Petitioner filed a formal protest of the intended award to White on March 15, 2010. Thereafter, representatives from Petitioner and Respondent met to attempt resolution of the protest, but were unsuccessful. As the case moved forward to trial, White petitioned to intervene as the first ranked proposer. It is uncontested that White and JSP have standing in this matter. Throughout these proceedings, Petitioner maintained that Respondent scored the proposals contrary to the specifications of the RFP. Additionally, Petitioner claimed that the persons appointed to evaluate the proposals for the award did not have the requisite experience and knowledge in the program areas, and service requirements sufficient to score the proposals. Under the RFP, three components were to be scored by the evaluators: a technical section; a financial section; and a past performance section. A team of three evaluators independently scored the proposals submitted. Department program area managers selected the evaluators, who were then approved by the Department’s Deputy Secretary. All evaluators were trained in the evaluation process. In order to assure that appropriate employees are selected to serve as evaluators, Amy Johnson, Respondent’s chief of contracts, created a spreadsheet to identify those employees who are qualified to evaluate different types of procurements. The spreadsheet notes which program service area each employee is approved to serve. All of the evaluators in this case were chosen and deemed credentialed by Respondent to evaluate the subject RFP. In this case Karen McNeal, Jeffrey Balliet, and Cheryl Surls were selected and approved to evaluate the responses to the RFP. Ms. Johnson insured that the evaluators were trained to perform their duties. In this regard, Ms. Johnson reviewed the rules of the evaluation process and a generic evaluation with each of the evaluators. Training for the evaluators included how to score, along with sample scoring sheets. Although Ms. McNeal had not served as an evaluator prior to this case, she was appropriately trained and instructed in the methodology and guidelines for scoring proposals. Further, her job training and experience assured that she was familiar with IDDS program services. Mr. Balliet has served as an evaluator for proposals for approximately ten years. Mr. Balliet was appropriately trained and instructed in the scoring process. Additionally, Mr. Balliet’s work experience also qualified him to evaluate the IDDS proposals encompassed within the RFP responses. Finally, Ms. Surls has been familiar with the programs and services of IDDS for several years. She also completed RFP evaluation training prior to being placed on the spreadsheet list of potential evaluators. On January 11, 2010, Elaine Atwood, the procurement officer for the instant RFP, conducted a conference call with the evaluators for this case. All of the evaluators were familiar with the IDDS program and were provided an opportunity to ask Paul Hatcher, the author of the scope of services for this RFP, any program question regarding IDDS and/or the RFP. The Evaluation Team Ground Rules and Instruction specified that the evaluators were to read, evaluate, and score the proposals based upon the scoring sheet matrix. The evaluators were directed not to speak to other evaluators, nor to consider any information from any source other than the information provided within the proposal itself. If any evaluators were to require assistance, he or she was instructed to contact Ms. Atwood. All scoring was to be done based upon the solicitation document and the proposal submitted. The matrix for scoring assigned a score from 0 to 5 depending upon how well the proposal addressed the specification requirement. A score of 5 constituted the highest rating, and only those proposals that exceeded all technical specifications and requirements for the service component specified, with innovative, comprehensive, and complete detail were to receive that score. A score of 0 would be assigned when the proposal did not address the service component specified, or the evaluator could not locate the information in the proposal necessary to use another rating number. Petitioner maintained that one evaluator, Ms. McNeal, failed to follow the directions related to changes to scoring. It is concluded that Ms. McNeal adequately marked the score sheet, such that there was no confusion as to the score awarded, or the time of its entry. Contemporaneous with an initial score of “5” for the category “Management Capability,” Ms. McNeal re-marked the JSP score to a “4.” Similarly, Ms. McNeal re-marked the JSP score for the category “Consideration 1" from “5” to “4.” Any “change” occurred in the matter of moments that it took for Ms. McNeal to re-mark the score sheet, and did not indicate a reflection or after-thought of “change.” If anything, the “change” was to correct an error of marking. Ms. McNeal’s testimony as to the marking of the score sheet and her rationale for re-marking it has been deemed credible. Any deviation from the instructions as to a requirement that “change” must be documented is deemed minor or insignificant. Documenting a “change” is deemed minor and insignificant in this case, because the notation for the score of “4” was contemporaneous with the initial mark and not a later after- thought. Petitioner also challenged Ms. Surls’ award of the score “3” to all of JSP’s categories. Petitioner maintained that such an award demonstrated a lack of understanding regarding the subject matter addressed. To the contrary, Ms. Surls also awarded the score of “3” to White. The only category that exceeded “3” on Ms. Surls scoring of White was "Behavioral Management," for which Intervenor received a “4.” Ms. Surls was consistent and thorough in her review of the proposals and commented appropriately as to the basis for each score. The Technical Proposal narrative submitted by White did not exceed sixty pages. Petitioner did not contest scoring where an evaluator increased JSP’s score without comment. None of the alleged “changes” to scoring gave any proposal an unfair advantage. All proposals were given the same consideration and thoughtful review. The Department has used RFPs to cover multiple circuits in numerous instances. Petitioner did not timely challenge the process of providing for proposals for multiple circuits. Moreover, no evidence supports a finding that the process of covering multiple circuits within one RFP is inherently flawed or contrary to law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition filed by Juvenile Service Program. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2011. COPIES FURNISHED: Tonja White Mathews, Esquire Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Andrea V. Nelson, Esquire Walter Kelly, Esquire The Nelson Law Firm, PLC 1020 East Lafayette Street, Suite 214 Tallahassee, Florida 32301 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Secretary Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300 Jennifer Parker, General Counsel Department of Juvenile Justice The Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact DOT issued a request for proposals (RFP) entitled Business Area Analysis in the Functional Area of Production Management, with proposals due on November 15, 1991. Eight proposals were timely filed. The RFP contains criteria for evaluating the proposals, including factors to be considered and available points to be awarded. Evaluation of the proposals was broken down into two parts, a technical review and a price review. The technical part was further broken down into evaluation of the Management Plan, worth up to 30 points, and of the Technical Plan, also worth 30 points. The price or cost review was worth 40 points. The technical review was also broken down into sub-parts based on the criteria contained in the RFP. The technical portion of the proposals was performed by a five-member committee, comprised of William Conner, James Dolson, Jr., Rebecca Clemens, Mavis Georgalis, and Paul Benner. All eight proposals were accepted by DOT as responsive and were furnished to each committee member for independent review and evaluation as required by the RFP. Following the independent evaluations, the committee met and discussed the proposals. While there was no requirement to do so, some committee members changed scores based on considerations raised in this discussion. However the changes were minor and did not alter the final result of the committee's ranking and award of points to the various proposals. The committee ranked the Price Waterhouse proposal highest on the technical portion, giving it a total of 48.2 points out of a possible 60. It ranked Jorgensen second, giving it a total of 43.8 points out of that possible 60. The cost or price portion of the proposals was reviewed separately by Charles Johnson of the Contractual Services Office of DOT. Jorgensen was the lowest bidder and received the maximum available points of 40. Price bid the third highest price and received 29.50 points. When the points from the separate evaluations were totaled, Jorgensen received a total of 83.6 points and Price received a total of 77.7. Jorgensen was first and Price was second. On November 22, 1991, DOT posted the bid tabulations and indicated its intent to award the contract to Jorgensen. Price timely filed its initial protest and its formal protest. Read as a whole, the RFP requires that the proposed team members from each bidder have qualifications and substantial experience in the functional area of production management and also in the development of information systems. There is no requirement that all proposed team members have experience in both areas. A team which contains different members with expertise in each of the required areas is sufficient to be responsive to the RFP. The committee used solely the criteria in the RFP to evaluate the proposals. Petitioner singles out various sentences from the RFP to support its argument that each member of the team must have significant experience in development of business information systems, however in doing so it overlooks other requirements and it fails to read the RFP as a whole. Hence, all of Petitioner's proposed facts relating to this argument are rejected as irrelevant. Price also argues that the fact that Jorgensen's proposed team does not have a full-time member makes Jorgensen's proposal unresponsive, unworkable, and fatally flawed. This argument is also rejected along with those facts alleged in support of the argument. The RFP nowhere requires that one or more members of the proposed team be full-time. While the committee had some concerns about the lack of a full-time member on Jorgensen's proposed team, the points awarded reflect the extent of that concern. At no time did the committee intend that the points awarded on the proposals be contingent on Jorgensen changing its staffing pattern to include a full-time person. It was assumed by the committee, DOT, and both Price and Jorgensen that the actual staffing would be subject to adjustment after the contract was awarded and during the performance of the contract to reflect needs as they arose. Any negotiation of staffing patterns would occur after the bid award and the bid award would not be contingent on such negotiations. At no time prior to the posting of the bid tabulations and intent to award to Jorgensen did anyone from DOT contact Jorgensen to solicit a change in its proposed personnel allocation. Hence no unfair advantage was afforded to Jorgensen over Price.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order awarding the contract in RFP-DOT-91/92-9005 to Roy Jorgensen and Associates, Inc., and denying the protest filed by Price Waterhouse. DONE and ENTERED this 27th day of January, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-7998BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Price Waterhouse Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1), 3(11), 4(8), and 13(13). Proposed findings of fact 2, 5-8, 11, 12, 14-18, 56, 57, and 59 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 9, 10, 28-31, and 37-55 are unsupported by the competent and substantial evidence. For most of these proposals, the only record support is found in isolated words and statements which have been taken out of context or distorted. The greater weight of the credible evidence does not support these proposals. Proposed findings of fact 19-27, 32-36, and 58 are irrelevant. See Findings of Fact 16 and 17. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3), 4(3), 5(4), 4(5&6), 5(6), 6&7(8), 8-12(9-13), 13(15), 14&15(14), 16(18), and 17(21). [Note: there are two paragraphs 4 and 5.] COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Susan P. Stephens Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Steven W. Huss Attorney at Law 1017-C Thomasville Road Tallahassee, FL 32303 William C. Grenke Vice President Roy Jorgensen & Associates, Inc. 3735 Buckeystown Pike Buckeystown, MD 21717
The Issue Whether the Respondents' decision to rank the Intervenor, Turner Construction Company (Turner) first for purposes of entering into contract negotiations was clearly erroneous, arbitrary, capricious, or contrary to competition as alleged by the Petitioner, PCL/Centex Rooney, a joint venture comprised of PCL Civil Contractors, Inc. and Centex Rooney Construction Company, Inc. (PCL/Centex or Petitioner).
Findings Of Fact Prior to December of 2000, the Department of Transportation and the Department of Management Services entered into negotiations whereby DMS would assist the Department by providing project management services for a program known as the Miami Intermodal Center to be located in Miami, Florida. DMS was to assist the Department in securing a Construction Manager-at-Risk (CMAR) for the project. On December 26, 2000, the Department and DMS entered into an agreement that more fully detailed the terms of how DMS would assist in the procurement of the CMAR. Article 4 of the agreement specified that the Department would be considered the owner of the project and that all payments to any "architects, engineers, contractors, etc., will be paid under the control of The Florida Department of Transportation." Additionally, such section provided that all payments "under this contract, as prescribed hereinabove, will be made by The Florida Department of Transportation." The agreement authorized DMS to assist with agreements for architects, engineers, contractors, etc. and recognized DMS forms and procedures for the design, bidding and construction of the project. The complete agreement is identified as Exhibit 4 in this record. After entering the agreement, employees of DMS met with members of the Department's MIC Management Group to coordinate efforts on the procurement of a CMAR for the MIC project. DMS in concert with the Department developed the guidelines for the project, and on January 29, 2001, the Department of Management Services and the Department of Transportation issued a Corrected Legal Notice advertising a Request for Statements of Qualifications for the MIC CMAR. On February 14, 2001, the MIC management group held a meeting for prospective bidders to present information about the Statement of Qualifications. Seven firms responded to the invitation to submit Statements of Qualifications. Those entities were identified on or about March 6, 2001. Thereafter, the seven applicants were "short-listed" and four were selected to continue in the process. The short- listing review did not rank the applicants. The purpose of reviewing the qualifications at that time was to merely cull the group of applicants down to those most able to continue the process toward selection. Had only four applicants applied, most likely all would have proceeded to the next round of review. The Petitioner and Intervenor were two of the four entities that progressed to the next level. All four were invited to an information meeting on April 6, 2001. At that time the MIC management group made a Power Point presentation concerning the next phase of the selection process. The MIC management group explained the technical review process and were available to respond to any questions that the applicants might raise. Subsequently, each applicant was to provide a written technical proposal and was to give an oral presentation before the technical review committee (TRC). The written technical proposals from the four entities were due May 1, 2001. The Petitioner and Intervenor timely filed technical responses. The sufficiency of the Intervenor's technical response and oral presentation is not at issue. Instead, the Petitioner maintains that the score from the short-listing process should be averaged with the technical response score to achieve an overall ranking. That average was not done. Subsequent to the four oral presentations from the short-listed applicants, the TRC met for deliberations and ranked the entities based upon the technical responses and the oral presentations. The TRC did not have the authority to make the final selection. In fact, the TRC recommended their rankings to the selection committee. The selection committee met on May 31, 2001, to consider the recommendation of the TRC and selected the Intervenor as the first ranked applicant. Thereafter, the Petitioner timely filed the instant challenge to the selection. Turner Construction Company moved to intervene in the protest and by order entered June 22, 2001, was granted intervention in this case. When efforts to settle the dispute proved unsuccessful, the matter was forwarded to the Division of Administrative Hearings for formal proceedings on July 10, 2001. The RFQ in this case was developed by, and with the cooperation of, personnel from both the Department and DMS. It provided that the policies and procedures of DMS and the Department would apply in the selection process for the MIC CMAR. More specifically, the RFQ provided at page 1: Pursuant to policies and procedures of the State of Florida Department of Management Services and the Florida Department of Transportation statements of qualifications (SOQs) for Construction Management-At-Risk services for the Miami Intermodal Center (MIC) Program will be received at the Miami Intermodal Center Project Office 3910 NW22nd Street, Miami, Florida 33142, until 4:00 P.M. Eastern Standard Time, on Tuesday, March 6, 2001. * * * Beginning Monday, January 29, 2001, a "Request for Statements of Qualifications" will be available free of charge at the reception desk, Miami Intermodal Center Project Office 3910 NW22nd Street, Miami, Florida 33142. This package outlines the scope of the program, the SOQ format, evaluation criteria, submittal instructions, a description of the selection process and general project information. * * * Proposers are encouraged to bring all questions concerning this Request for Statements of Qualifications to the informational meeting. Page 2, Section 1.0 of the RFQ, provided, in pertinent part: The Florida Department of Transportation (FDOT) and State of Florida Department of Management Services (FDMS) jointly intend to select a construction manager-at-risk (Construction Manager) to provide pre- construction services and construction management-at-risk services for the construction of facilities and roadways constituting the Miami Intermodal Center Five Year Work Program. Pursuant to an agreement between FDOT and FDMS dated December 26, 2000, the selection process will be conducted pursuant to the policies and procedures of FDMS. FDOT may contract with the Construction Manager through FDMS and FDMS may provide certain owner representation on behalf of FDOT during the construction process. Therefore, references in this RFQ to FDOT shall also include FDMS when acting as a representative for FDOT. The selection process for the CMAR was set forth in Section 4, page 9 of the RFQ. That provision stated: The selection of the Construction Manager shall be based upon the qualifications and experience of Proposers as reflected in the statement of qualifications and the technical proposals and oral presentations of short-listed Proposers. The selection process will be a two-phase process. In the first phase, SOQs will be submitted for review and evaluated based on the evaluation criteria identified in Section 5. The most highly qualified Proposers will be short-listed and invited to submit technical proposals and provide oral presentations with the final ranking made in accordance with criteria generally described in Section 6. The Petitioner did not dispute the criteria to be used to evaluate the proposals. The Petitioner did not seek an explanation of the foregoing section of the RFQ and did not dispute the language of the section. Similarly, the Petitioner did not dispute the language of Section 5 that set forth the process to be used for short-listing the proposers. Section 6 was entitled "TECHNICAL PROPOSALS, ORAL PRESENTATIONS AND FINAL SELECTION." That section provided, in pertinent part: Upon completion of the short-listing, each of the Proposers selected on the shortlist will be invited to prepare a technical proposal and make an oral presentation to the Technical Review Committee. * * * All short-listed Proposers will be required to attend a presentation of the Program by the Program Manager on March 22, 2001. The presentation will provide detailed information regarding the design as generated to date and will answer any questions from short-listed firms. * * * FINAL SELECTION CRITERIA Following the technical proposals and oral presentations, the Proposers will be ranked by the Technical Review Committee based on the following criteria: Understanding of the Program and Requirements- * * * Approach and Method- * * * Ability to Provide Services- * * * The Technical Review Committee will rank short listed Proposers after all the presentations and interviews have been completed. The recommendations of the Technical Review Committee will be presented to the Selection Committee, which, will determine the official ranking of the Proposers. The RFQ did not require that scores from the short- listing process be averaged with the technical presentation phase. In fact, there were no scores from the short-listing process; the short-listed entities were identified in alphabetical order. If an averaging of scores was the Petitioner's understanding of the DMS policy or practice, the Petitioner did not request clarification to confirm such procedure during the time to pose questions to the MIC project manager. Neither the Intervenor nor the fourth ranked proposer understood the RFQ to require an averaging of scores. No one from DMS or the Department contemplated that the instant RFQ would be "scored" on a numerical basis. DMS and the Department had agreed that the recommendation of the TRC would be done on a consensus basis. To that end, members of the TRC rated the applicants using the terms "strong, average, fair, and poor." To provide more flexibility, the ratings were broken down into subgroups as follows: strong, strong/average, average/strong, average, average/fair, fair/average, fair, fair/poor, poor/fair, and poor. In this case, the Intervenor prevailed as the first-ranked proposer since it had one category noted as Strong/average, whereas the Petitioner had a category ranked Average/strong. Otherwise, the two proposals would have been rated identically. Recognizing this close evaluation, but still compelled to reach a consensus, the TRC recommended the Intervenor to the Selection Committee as the first-ranked proposer. No member of the TRC disputed the result of the consensus selection. No member of the TRC voiced any opposition to the final recommendation to the Selection Committee. Two employees of DMS participated on and with the TRC. The Selection Committee then considered the recommendation of the TRC. The Selection Committee asked questions to the TRC chairman as to how the consensus was reached, as to the ranking of the proposers, as to the considerations given to the proposers, and as to the final determination of the TRC. Had the Selection Committee chosen to disregard the TRC recommendation, it could have done so. Had the Selection Committee sought additional information based upon the closeness of the ranking for the top two proposers, it could have sent the matter back to the TRC for additional consideration and input. It did not. After considering the recommendation of the TRC, the Selection Committee adopted the consensus recommendation. The TRC consisted of eight individuals who independently ranked the technical proposals and the oral presentations of the short-listed applicants. They met as a group to discuss their individual findings and to compile the individual ratings they ascribed to each entity. All of the deliberations were done in an open meeting that was video-taped and made a part of this record. No one individual controlled the tone or ratings submitted by the TRC members. The TRC chairman compiled the individual ratings and reviewed all consensus rankings with the group. No TRC member was precluded from changing their individual rating. No TRC member was precluded from challenging the consensus reached on any category. The criteria used by the TRC were drafted by DMS and the Department staff to specifically address the needs of the MIC project. Such criteria took into consideration all policies and practices utilized by DMS. The criteria used to evaluate the proposals for the MIC CMAR project considered and addressed the criteria set forth in DMS form DBC-5033. There is no DMS practice, policy or procedure that mandates the use of form DBC-5033. When such form is typically to be used, it is included in the RFQ package. It was not included in the instant package, and no proposer sought clarification as to whether the form would be utilized in the instant case. DMS did not intend to combine the scores from the short-listing process and the technical review process in this case. When it does require a combination of the two scores, DBC form 5033 is typically used. Although referenced by the RFQ, the agreement between DMS and the Department regarding the MIC project was not made a part of the RFQ. Neither DMS or the Department advised the Petitioner that the scores from the short-listing process and the technical review phase would be combined. DMS does not require that all details of an evaluation or scoring method be disclosed in an RFQ. All parties were aware of the consensus recommendation to rank the Intervenor ahead of the Petitioner and were further cognizant that the Selection Committee would make the final decision in the matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation and the Department of Management Services enter a Final Order dismissing the Petitioner's Formal Protest. DONE AND ENTERED this 21st day of September, 2001, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2001. COPIES FURNISHED: O. Earl Black, Jr., Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Gregory S. Martin, Esquire Moye, O'Brien, O'Rourke, Hogan & Pickert 800 South Orlando Avenue Maitland, Florida 32751 Brian F. McGrail, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438 Paul Sexton, Esquire Thornton Williams & Associates 215 South Monroe Street South 600-A Tallahassee, Florida 32301 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Monesia Taylor, Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issues in dispute are those associated with the invitation to bid in Project No. 565 by the Respondent as responded to by Petitioner and Intervenor. Among the specific questions to be answered are those concerning Petitioner's allegation that the Respondent allowed the Intervenor to materially alter its bid response to clarify the line item associated with tear down and return delivery for the relocatable classrooms that were being leased under the terms of the bid invitation and that alteration was allowed for the provision of canopies or awnings associated with the entrances to the relocatable classrooms. Questions are raised, first whether the Intervenor's bid response is in compliance with the provisions of Chapter 6A-2, Florida Administrative Code and, second whether the bid response of the Intervenor provides sufficient detail to allow the Respondent to understand the nature of the item, in this instance, the relocatable classroom, which the Intervenor proposed to provide in response to the invitation to bid. Finally, the general question is raised whether the Petitioner or Intervenor is the lowest responsible qualified bidder.
Findings Of Fact On April 28, 1989, Respondent sent out an invitation to bid in Project No. 565. It sought responses from a number of vendors and asked that those vendors on or before July 1, 1989, be prepared to deliver 49 portable classroom units. The arrangement which Respondent contemplated in the invitation was rental of the portable classrooms under a lease for a period of one year. It was intended that the portable classroom units would be delivered to various locations throughout Lake County, Florida. The bid opening was to occur on May 8, 1989, at 2:30 p.m. The request for bids included a lead sheet and in the second paragraph of the instructions on that lead sheet it was stated: All terms and conditions below are a part of this bid request and no bids will be accepted unless all conditions have been complied with. Rights are reserved to reject any and all bids and to waive all technicalities. It was further stated: DIRECTIONS FOR SUBMITTING BIDS ARE AS FOLLOWS: * * * 5. Samples must be submitted with bid where required. On other items descriptive literature with complete manufacturer's specifications in sufficient detail to indicate clearly the item bidder proposes to furnish must accompany the bid. NO BID will be considered without this data. Equipment offered as equivalent to the specific brand must be equivalent in quality of materials, workmanship, effect and corresponding in function and performance When the requirements set out in the preceding paragraph to the Recommended Order are read in the context of all other requirements set forth in the bid invitation, they are found to be consistent with those additional requirements. On the second page of the instructions for the Invitation to Project No. 565 was found a section entitled "Lease/Rental of Portable Classrooms" which stated: The Lake County School Board is requesting bids for Lease/Rental of Portable Classroom units meeting 6A-2 requirements at various locations. Units must meet Florida Code, SBCC Code and 6A-2 Department of Education code for structures of this type. We are requesting prices for 49 units for one-year rental, to be set-up at various locations. Steps, ramps, electrical, water or sewer hooks are not required. This work will be done in- house by Lake County School Board staff. A minimum of three 4' x 8' melaminc marker boards, two 4' x 4' tackboards, one 8 lb. fire extinguisher (2A40 BC) and junction box with stub-out for F/A and pullbox must be installed in each unit. Other provisions within the bid invitation describe the nature of the bid performance security that was incumbent upon each bidder, the need for insurance, nature of the insurance coverage expected and information related to lease provisions, purchase provisions, parts warranties and prices. The bid invitation pointed out that each bid packet furnished by the vendors should provide proof of insurance, a sample lease/rental contract, brochures and specifications of construction materials and contents and a 5 percent bid bond in a separate sealed envelope attached to the outside of the bid. Four vendors offered their responses to this invitation, among them Petitioner and Intervenor. The additional bidders were Diamond Engineered Space and Williams Mobile Offices. The bid opening occurred on May 8, 1989, as advertised. That bid opening was under the auspices, Provisions 6.05(7) and 6.87, Lake County School Board Policies Manual, which describe school construction bid procedures and contemplate awarding contracts to the lowest responsible qualified bidder meeting specifications with regard for the quality of the product being offered by the bidder, its suitability for the needs of the school system, delivery terms, service and past performance of the vendor. Some consideration is given to local vendors, under the provisions, but this has no role to play in this dispute. Rule 6A-2.016, Florida Administrative Code, also speaks to the procedures to be followed by the Respondent in this bid invitation process. The bids were opened, announced and tabulated. It was revealed, in turn that Diamond Engineered Space's price quote was $299,292.92; Petitioner's was $246,563; Intervenor's was $236,166 and Williams Mobile Offices' was $367,420. All vendors had made a timely response to the invitation to bid. In the course of the examination of the bid materials, the price sheet of the Intervenor came into question. This price sheet may be found as part of the Petitioner's Exhibit No. 1 admitted into evidence. In particular, item 3 on the price sheet was debated. In that section, the Intervenor's response stated: 4(b) Tear Down, and Return Delivery $350.00 (50 mile average at $1.50 per side) 4(c) Other ($200.00 Mat'l & Labor)$ NONE Given the parenthetical remarks found within the response, Norma Hale who was the Purchasing Agent for the School Board and in charge of the bid opening asked of Mike Connolly, who was attending the bid opening for the Intervenor, whether the quoted price was a firm price. Herman Kicklighter, the Director of Facilities and Maintenance who attended the bid opening for Respondent also made inquiry concerning whether the tear down charge was a variable or fixed price. These questions were raised against a background circumstance in which some sites may have been further away than is contemplated by the 50 mile average set out in the parenthesis. It was not the intention of the Intervenor to leave the parenthetical information on the bid response and Connolly was caught off guard by this revelation. He had not prepared the bid submission by the Intervenor. Nonetheless, he informed the persons assembled that the price quotation of $350 was a firm price. This information was revealed after the Petitioner's bid had been opened. After some discussion, school officials at the bid opening were convinced that the $350 price was a firm price. Having considered the evidence, the $350 price is found to be a firm price. Moreover, this finding is made recognizing that the Intervenor was never allowed to remove the parenthetical remark from the bid response. That removal would have constituted an alteration of the bid response. If one examines the bid response and multiplies the 50 mile average times $1.50 per side, the amount is $150 plus $200 for material and labor for a total of $350 as reflected in the cost per unit designation. This is not considered to be a variable price quotation. Another topic that was brought up during the course of the bid opening concerned the question of whether the portable classroom units that were to be supplied by Intervenor included awnings or canopies over the door entrances. Petitioner was and is of the opinion that the awnings and canopies are required. It is not clear from a review of Petitioner's Exhibit No. 4 admitted into evidence, which is the Petitioner's bid material, whether Petitioner intended to supply awnings or not. It is clear that the bid material of the Intervenor did not include awnings. Kicklighter asked Connolly if the Intervenor's bid included awnings and the essence of Connolly's response would indicate that the bids did not include awnings. Connolly was allowed to leave the room to make a telephone call to his office to further inquire concerning the response of the Intervenor as it related to awnings. While he was gone, the School Board checked with the Department of Education in Tallahassee on the topic of whether Chapter 6A-2, Florida Administrative Code required awnings in this application. In a conversation with William Moncreath, a certified architect with the Department of Education, Kicklighter was lead to believe that awnings were not needed. Connolly then made this known to the persons in the bid room. Connolly was not present at that time. Connolly then returned and told Kicklighter that the Intervenor would furnish awnings. This comment was met by a remark by Mr. Kicklighter to the effect that it looked like that the Intervenor and the School Board would be doing business. To allow the Intervenor to alter its bid response to include awnings that were not shown in the bid response, would be a material alteration if awnings were required. They are not. Therefore, this discussion concerning the awnings is a moot point. On May 9, 1989, the School Board determined to award the contract to the Intervenor. This met with a timely notice of protest from the Petitioner on May 12, 1989, and in a Formal Written Protest on May 22, 1989. Having been unable to resolve the matter amicably, the case was forwarded to the Division of Administrative Hearings for resolution of the dispute. Notwithstanding the pendency of the case before the Division of Administrative Hearings, based upon a claim of emergency, the lease agreement was entered into between the Respondent and Intervenor on June 15, 1989. In addition to the assertions by the Petitioner concerning whether the quotation for tear down and return delivery was a firm price and whether awnings are required, Petitioner calls into question whether the Intervenor has complied with paragraph 5 on the lead page concerning directions for submitting bids and the third paragraph on the next to the last page of the bid invitation concerning the things that the bid packet must include. Petitioner also questions whether Intervenor has adequately established that it will meet applicable requirements of Chapter 6A-2, Florida Administrative Code. Contrary to the opinion held by the Respondent and Intervenor, paragraph 5 on the lead page to the invitation to bid is a requirement that must be complied with. It is not an item to be ignored, nor it is considered to be superceded by any of the more specific references to requirements that are announced in the subsequent pages to the invitation to bid. The bidders had to make proof of insurance and to offer a sample lease/rental contract and provide a 5 percent bid bond. All bidders complied with those requirements. Petitioner complied with all other requirements as announced in the bid invitation as well. The question is whether Intervenor as a general matter has provided descriptive literature with the complete manufacturer's specifications in sufficient detail to clearly point out what item the bidder is proposing to furnish and whether indeed the item does comply. This is also described as brochures and specifications of construction materials and contents. Additional items that must be provided by Intervenor are those contemplated under Chapter 6A-2, Florida Administrative Code associated with relocatable classroom space and related construction codes made mention in the instructions to bidders under that portion referred to as "Lease/Rental of Portable Classrooms" and the last paragraph of that set of instructions associated with melaminc markerboards. Instead of relying upon clearly delineated information within the response of the Intervenor by way of literature with complete manufacturer's specifications to merely show the nature of the product or item that the Intervenor was proposing to furnish, Respondent, and in particular its principal advisor, Mr. Kicklighter, chose to rely upon certain self-serving statements made by the Intervenor in the course of its bid materials. This refers to an attachment to the sample lease agreement which is a fourth page in that set of materials stating: FLORIDA CODED BUILDING; Built to Comply with the Florida Department of Education's 6" A" .2 Specifications. With prints certified as a Classroom Building which can be located anywhere in Florida. (Zoning permitting). To Kicklighter this means Intervenor'S promises to build the classroom space in accordance with Chapter 6A-2, Florida Administrative Code and to provide certified prints and that provision would overcome any infirmities or paucity of information about the product in his mind. Kicklighter took further solace from correspondence of October 17, 1988, from David Toner, Director of Facilities Planning/Operation of St. Johns County, school Board in Florida which praises the Intervenor's performance in the lease of 28 relocatable classrooms in that county and states that plans and specifications were sent to Tallahassee for approval and installation met Chapter 6A-2, Florida Administrative Code. This is hearsay information and does not establish anything relevant in the matter of whether Intervenor will do as well for the Respondent as it appears to have done for St. Johns County School Board, if Intervenor doesn't first show that it has complied with this invitation to bid. It has not. It is not so much that Kicklighter attached no significance to the substantive information provided by the Intervenor in its response to the invitation, it is the fact that a clear understanding of the impression of Kicklighter concerning that substantiative information is overshadowed by his reliance upon the promise to provide certified prints and the remarks of his counterpart in the St. Johns County School Board as a principal reason for believing that the Intervenor's response was sufficient. That reliance was ill advised. It would be different if certified plans had been provided. They were not. The promise to provide them is outside the bid experience and is unacceptable as a means of compliance with the bid invitation. Looking at what was provided, there is a single sheet entitled Proposed Classroom which gives basic dimensions and information about frame and floor, walls, windows and doors, exterior covering, roof, electrical, A/C and heat, and restrooms. Within this document are found references to a 2600 rpm fan which could well mean 2600 cfm fan, the latter of which would meet requirements and the former which would not. Correction of this item would not be a material alteration. Likewise, correction of the reference of 1" x 4" top plate to 2" x 4" top plate to meet specifications would not be a material correction. in that this 1" x 4" reference as opposed to 2" x 4" reference could well be a typographical error. Within the bid documents by Intervenor there is a sheet referred to as Typical H.C. Toilet Rooms. Toilet Room A relating to Florida and Toilet Room B relating to Georgia. The outside dimensions of the Florida toilet room do not coincide with the Proposed Classroom sheet that has been mentioned. While the outside dimensions of the Georgia toilet room on this document appears the same as in the Proposed Classroom sheet that has been referred to, the configuration in the proposed classroom sheet and that of the sheet related to toilet rooms most recently under discussion are different. Under the circumstances, it is difficult to know what the Intervenor intends by way of toilet room facilities and the response is inadequate to meet the requirements of the bid invitation. This is a material deviation. There are some partial sheets within the bid materials which appear to be the first half of the Classroom Sheet that has been referred to and being duplicates of that information no particular significance is seen in those matters. There is material referred to U.S.G Acoustical Finish. There are further materials related to interior fixture finishes. There is a brochure with pictures showing the outside of a building and the interior of a portable classroom building. This document does not give any specific information as to types of materials, dimensions, etc. There is a document of May 5, 1989, from Descom directed to Mr. Connolly promising to make available replacement parts for 49 classrooms if Descom manufacturers them. There is information provided on the fourth page which is the attachment to the Lease Agreement which makes reference to frames being provided "per code." This page gives certain dimensions and design information related to the floors, walls and petitions and roofs. There is another two page document that shows miscellaneous equipment such as exit signs, melaminc marker boards, tack boards, emergency light with battery and backup and fire extinguisher. These items do not show manufacturer's name. There are references to various provisions within Chapter 6A-2, Florida Administrative Code where Intervenor claims that these items will correspond to. There are comments made on this page about the foundation of the portable classroom that are unclear. On the second page of these materials are found references to plumbing to include plumbing, related to the bathroom dealing with vinyl covered gypsum wall covering, the commode, wall mounted lavoratory, 90 cfm ceiling vent fan and mirrors and accessories. Again, the manufacturer's names are not given. A reference is made under the ceiling vent fan to a rule provision of Chapter 6A-2, Florida Administrative Code. There is reference under electric to two 100 amp load centers with mains and 12/2 copper romex. There is a reference there to 15-440 fluorescent light fixtures. Again, there is the reference to the 2600 rpm through the wall ventilation fan and 2 adequate wall receptacles. HVAC references a three ton Bard wall mount with heat strips and a ceiling supply duct system with STD return air system and a timer for the air conditioner. There is a reference to exterior materials, windows and doors and insulation factors. Again, some of these items under the bathroom, electric and HVAC reference sections within Chapter 6A-2, Florida Administrative Code. Other than the fluorescent light fixtures and HVAC Bard unit, manufacturers names cannot be discerned from this information submitted. The bid invitation calls for buildings of 24' x 36'. The response by Intervenor provides for a building which is 23' x 36', a material deviation from the requirements of the specifications. The light fixture is a Metalux Manufacturing Company surface mounted fixture of four forty watt bulbs. According to Gareuth Eich, an architectural expert whose opinion testimony is accepted, this light fixture does not comply with Rule 6A-2.064, Florida Administrative Code. This is a material deviation. The statement of plans do not show compliance with Rule 6A-2.059, Florida Administrative Code, as to exterior lighting. This is a material deviation from the specifications. The electrical specifications information provided by the Intervenor in the Proposed Classroom sheet shows two 100 amp panels that are separated, whereas specifications shown on the two-page printed informational sheet under electric speak in terms of a 100 amp load center with main disconnect. Regardless, requirements of Lake County are such that a main disconnect panel is required on the exterior of the portable classroom, the installation of which would be the responsibility of the school board. Thus, if two panels were employed inside they would become subpanels and not in conflict with the national electric code as spoken to in Rule 6A-2.065, Florida Administrative Code. On the other hand, it is not clear which alternative in panel design and service Intervenor intends to offer and this is a material deviation from the bid requirements. The information provided concerning the nature of the foundation for the portable classroom units is inadequate. This is a material defect in the response to the bid specifications. Gareuth Eich, Hugh Stump, President of Southern Structure, a company that manufactures portable classroom units and a person who is familiar with bidding procedures associated with those units and Paul Crum, an architect testified on behalf of the Respondent. All questioned the quality of information submitted by the Intervenor in terms of specificity, to meet paragraph 5 on page one of the invitation to bid and particulars that relate to certain requirements of Chapter 6A-2, Florida Administrative Code to this bid invitation. Having considered the remarks and the testimony of others and the exhibits, the Intervenor's response cannot be seen as providing manufacturer's specifications in the necessary detail to indicate clearly the item that bidder proposes to furnish as called for in paragraph 5 of the lead page of the invitation to bid. The response has also failed to meet certain provisions of Chapter 6A-2, Florida Administrative Code in the manner described. The quoted size of the portable building is too small in overall dimension. These are material shortcomings sufficient to cause the rejection of the Intervenor's bid response. Therefore, the Petitioner is in fact the lowest responsible bidder. Although Respondent and Intervenor have contracted for the delivery of the portable classroom units and they are located at the various sites within Lake County, Florida called for in the contract, Petitioner is theoretically prepared to provide classroom units in accordance with the requirements of the specifications.
Recommendation Under authority of Section 120.57(1), Florida Statutes, a formal hearing was held in this case on July 10-11, 1989 in Tavares, Florida. Charles C. Adams was the Hearing Officer.
