Findings Of Fact Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City, Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and M.D. Stewart Plumbing Company. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board. Respondent has never refunded any of the contract price to Mrs. Thames.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine in the amount of $1,000.00 be levied against Respondent. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489 The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Tectonics Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark O. Holland Route A, Box 366 Youngstown, Florida 32466 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Facts based on stipulation These proceedings concern Petitioner's Bid Protest in connection with that certain project known as Chiller Installation, Glades Campus, Project NO. 9237, PBCC No. 6812. Petitioner has taken all steps necessary to perfect its bid protest in a timely manner and has standing to bring this bid protest. Petitioner and Respondent met and were unsuccessful in an attempt to resolve the bid protest as required by Section 120.53(5), Florida Statutes. M. K. Mechanical, Inc., a Florida corporation, is a State of Florida Certified Mechanical Contractor and as such was a "Qualified Bidder." The original specifications for the subject project contained few electrical specifications and were silent as to how an electrical contractor was to be licensed. The bid was due on Tuesday, January 12, 1993, at 2:00 p.m. On Friday, January 8, 1993, at 3:42 p.m., via facsimile transmission, M. K. Mechanical, Inc., received supplementary electrical specifications, thirty (30) pages in length. Contained in these supplementary specifications, for the first time, was a requirement that the electrical subcontractor had to be "locally" licensed. M. K. Mechanical, Inc.'s, primary place of business is in Edgewater, Volusia County, Florida. M. K. Mechanical, Inc.'s, submitted bid was proper in all respects other than an electrical subcontractor's name was not given, instead "to be determined" was inserted. M. K. Mechanical, Inc., submitted the lowest bid. Electrical subcontractor is a "major" subcontractor on this project. The sole basis for the decision by Respondent that Petitioner's bid was "non-responsive" was the failure to list an electrical subcontractor. Additional facts regarding bid specifications The bid specifications include the requirement that bidders list all "major subcontractors" and that the category of "major subcontractors" includes electrical subcontractors. Section 5.2.1 of the Contract Documents within the Bid Specifications provides as follows: Unless otherwise required by the Contract Documents or the Bidding Documents the Contractor at the bid opening shall furnish to the Owner and Architect Form 00420, a written list of the major Subcontractors; Site Utilities, Structural Concrete, Masonry, Structural Steel & Steel Joists, Plumbing, HVAC, Electrical and Roofing, who he proposes to use on this work.
Recommendation On the basis of all the foregoing, it is RECOMMENDED that Palm Beach Community College enter a Final Order in this case denying the protest of the Petitioner, M. K. Mechanical, Inc., and awarding the contract in Project No. 9237, PBCC No. 6812 to the Intervenor, Hill York Corporation. DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1993. COPIES FURNISHED: Sid C. Peterson, Jr., Esquire DeLoach & Peterson, P.A. Post Office Box 428 New Smyrna Beach, Florida 33170 James M. Adams, Esquire Gibson & Adams, P.A. Post Office Box 1629 West Palm Beach, Florida 33402 Herbert L. Dell, President Hill York Corporation Post Office Box 350155 Fort Lauderdale, Florida 33335 The District Board of Trustees Palm Beach Community College 4200 Congress Avenue Administration Building Lake Worth, Florida 33461 Attention: Mr. Dick Jones
Findings Of Fact On or about December 29, 1981, the College solicited sealed bids for construction of alterations and additions to the Technical and Gymnasium Buildings located on its campus in Madison, Florida. In response, seven general contractors submitted bids. (P-1, P-2, P-3.) Bids were publicly opened on February 9, 1982. Griffin Construction, with a bid of $536,575, was the apparent low bidder; the second lowest bidder was Long Contractors, with a bid of $539,512. (Testimony of Griffin, Sims, Rutherford; P-3, P-4, P-5.) After the low bid was identified, Tom McClanahan, representing Long Contractors, asked that the subcontractor list accompanying the low bid be opened. Griffin Construction's subcontractor list was then opened. McClanahan asked if the license and charter numbers of the subcontractors were listed. 2/ Upon learning that these numbers were not included on Griffin Construction's subcontractor list, McClanahan protested. (Testimony of Sims, Rutherford, Griffin.) At its February 15, 1982, meeting, the College District Board of Trustees ("Board") rejected the low bid of Griffin Construction on the sole ground that the omission of subcontractor license and charter numbers constituted a failure to comply with the conditions of the bid documents. 3/ The Board then voted to award the contract to Long Contractors, the second lowest bidder, on the ground that it was the lowest bid conforming to the bid documents. In so doing, the Board followed the College president's recommendation--a recommendation based on his belief that the non-complying bid must be rejected, that it did not involve a matter of Board discretion. (Testimony of Sims, Rutherford, Griffin; Stipulation of Parties; P-41.) The bid specifications contain instructions to bidders requiring "each Bidder . . . [to] submit with his proposal a list of the subcontractors who will perform the work . . . as indicated by the `List of Subcontractors' form." (P-1, P-2.) The instructions further provide: The applicable subcontractor license registration or certification number must be noted on the bid opposite his name, and in the event that the subcontractor is a corporation, his State Corporate Charter number shall also be noted. If the subcontractor is an out of state firm, their Charter number with the Secretary of State to do business in the State of Florida should also be noted. The "Listing of Subcontractors" form provided with the specifications contains column headings for the names and addresses of the subcontractors but does not contain a separate heading for the requested license or corporate charter numbers. 4/ The form states that the subcontractor list "is an integral part of the bid." (P-1, P-2.) The bid instructions further require bidders to evaluate and determine the qualifications of their listed subcontractors. The bidder shall have determined to his own complete satisfaction that a listed subcontractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this agreement and is qualified both technically and financially to perform that pertinent phase of the work for which he is listed. (P-1, P-2.) The bid documents expressly reserve to the College the right "to reject any or all bids, and to waive informalities." (P-1 P-2.) No bidder correctly listed the required license and corporate charter numbers on its "Listing of Subcontractors" form. Griffin Construction. Griffin failed to include any license or corporate charter numbers. However, by subsequent letters dated February 9 and February 18, 1982, and at hearing, it supplied the required subcontractor license and charter numbers. Long Contractors. Long listed for its roofing subcontractor a sheet metal registration number, not the required roofing license number. [A sheet metal registration does not qualify a contractor for roofing work. See, 489.105, 489.113, Fla. Stat. (1981).] For its electrical subcontractor, Long omitted the prefix, "ER" from the listed number. For its plumbing subcontractor, Long listed a mechanical registration number instead of the required plumbing certification or registration number. [A mechanical registration does not qualify a contractor to perform plumbing work. See, 489.105, 489.113, supra.] Of the four areas requiring state licenses--roofing, heating and air conditioning, electrical, and plumbing--Long listed correctly only the registration number for its heating and air conditioning subcontractor. Long incorrectly listed No. FO6962 as the corporate number of Gandy Enterprises, its painting subcontractor. This is the number of a related corporation, Industrial Coatings, Inc. Remaining Bidders. Of the five other general contractors submitting bids, two-- Richard Walker Construction Company and GRC Contracting, Inc.--omitted all subcontractor license and charter numbers. The other three bidders failed to completely list all the required numbers. (Testimony of Rutherford; P-11, P-12, P-13, P-14, P-15, P-16, P-17, P-34, P-37, R-1, R-5.) The project architect testified that the submittal of incorrect or incomplete subcontractor license and charter numbers was a deficiency which a bidder should be allowed to cure after bid opening. But the failure to submit any required "number" was a deficiency which, in his opinion, could not be similarly corrected. He failed, however, to supply a reasonable basis for drawing such a distinction. Therefore, his opinion on this question is given little weight. 5/ (Testimony of Rutherford.) Subcontractor license and charter numbers are readily obtainable and can be verified by contacting the pertinent state agency--the Florida Department of Professional Regulation, Construction Industry Licensing Board, or the Florida Department of State. (Testimony of Griffin, Rutherford; P-32, P-33, P- 34, P-35, P-36, P-37.) The project architect, William Rutherford, routinely requires the listing of subcontractor license and charter numbers on bids for public construction projects. The main purpose it serves is that it would enable him to identify the listed contractor, since sometimes subcontractors have similar business names. Although if he was uncertain about the qualifications of a subcontractor, he would ordinarily question the general contractor. (Testimony of Rutherford.) Although Mr. Rutherford has customarily required the listing of subcontractor "numbers" on public projects, he has never made any use of those numbers in the past. (Testimony of Rutherford.) The general contractor who is awarded the contract is responsible to Mr. Rutherford and the College for construction of the project in accordance with the bid specifications. If, after bid opening, a listed subcontractor is unable to perform, Mr. Rutherford would ordinarily arrange for substitution of a new subcontractor acceptable to the general contractor and owner. (Testimony of Rutherford.) Griffin Construction's failure to list the license and charter numbers of its listed subcontractors, and its subsequent curing of that failure, did not affect the amount of its bid 6/ by giving it an advantage or benefit not enjoyed by other bidders. The bid omission did not allow Griffin Construction the opportunity to change any material element of its bid after bid opening. The inclusion or exclusion of subcontractor "numbers" at bid opening does not affect the ability of a contractors to obtain the required bond, the quality of bidding general contractors, the quality of listed subcontractors, the quality of work performed, or any material feature of the competitive bidding process. (Testimony of Griffin, Rutherford.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the construction contract in question be awarded to Vick Griffin Construction Company, the lowest responsible bidder. DONE AND RECOMMENDED this 29th day of April, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1982.
Findings Of Fact Prior to May 26, 1993, FDOT issued an invitation to bid (ITB) on a contract for landscaping approximately 3.6 miles of roadway in St. Lucie County, State Project No. 94030-3502. The ITB required bidders to submit unit prices for 31 items of work. Bidders were to multiply the unit price by the estimated quantity of the item to arrive at a total quote for each item. The item totals were to be added together to arrive at the total bid. FDOT provided the estimated quantities upon which the bids were to be based. In preparing its ITBs, FDOT utilizes standard unit price designations. These standard unit price designations are not altered on a job-by-job basis and are not altered after bids are opened. The ITB herein included two bid items for mulch work: item no. 580-173 for bed preparation and mulching, and item no. 580-326-3 for shredded cypress bark mulch. The two mulching items result in one task: spreading the mulch under the landscaping plants. FDOT always designates item no. 580-326-3, mulch shredded cypress bark, to be paid on a square yard basis. This is not an uncommon procedure. FDOT never pays contractors on this item in other than square yard computations. FDOT's Basis of Estimates Manual (FDOT Exhibit 3) contains all the measurement units for all bid items and lists shredded cypress bark mulch as being measured and paid for in square yards. None of the mulch items are paid for in cubic yards. FDOT considers itself bound by this Manual as to method of payment (unit of measure). See Findings of Fact 17 and 24-25 infra. Project plans, typically prepared by consultants, may designate units of measurement differently from FDOT's standard unit price designations. It is not unusual for a unit of measurement to be expressed one way on the project plans and another way on the ITB. It is not unusual for a bidder to be required to adjust a plan quantity in order to arrive at a different unit price. Bidders are expected to convert measurements of items to correlate with how the item will be paid. With regard to ITB 94030-3502, four certified landscape contractors submitted bids. Among them were Intervenor Hayslip, Weekly Asphalt, Inc. (Weekly), Central Florida Landscaping of Tampa, Inc. (Central), and Petitioner Vila. Bids were opened on May 26, 1993. After the bids were opened, each bid was reviewed by FDOT's Technical Review Committee to determine whether the bid was mathematically and materially unbalanced, contained all appropriate signatures, contained all appropriate documents, and otherwise met the technical requirements of the ITB. In essence, the Technical Review Committee reviews each bid to determine whether it is responsive to the ITB and, if not responsive, whether the bid's lack of responsiveness is immaterial and waiveable by FDOT. Only after reaching that determination does the Technical Review Committee make a recommendation to FDOT's Contract Awards Committee as to whether or not a bid should be rejected for material nonresponsiveness to the ITB. As a result of the responsiveness review, Central's bid was declared irregular due to an altered bid bond and was rejected. Central filed no protest and no petition and has not moved to intervene herein. The thrust of the instant proceeding involves item no. 580-326-3, mulch shredded cypress bark, stated in the ITB as "500 square yards." All the bidders utilized the consultant's plans which specified the correct quantity of mulch contrary to the ITB. Hayslip's bid for item no. 580-326-3 was $2.50 per square yard. Weekly's bid for that item was $2.25 per square yard. Central's bid for that item was $2.12 per square yard. Petitioner's bid for that item was $8.50 per square yard. Clearly, Petitioner's bid on this item was mathematically unbalanced since Petitioner's unit price bid of $8.50 per square yard far exceeded each of the other bidders' responses on that item on this ITB. Petitioner's bid was also exceptionally high in comparison with its own usual bid price in square yards of mulch, averaging $1.95 to $2.50 per square yard and unaccountably low in comparison with its own usual bid price in cubic yards of mulch, averaging $20.00 to $30.00. Mr. Ricardo Leal, Petitioner's General Manager and Chief Estimator, prepared Petitioner's bid herein and testified with regard to how its mathematical imbalancing occurred. When Mr. Leal received the ITB package approximately fourteen days before the May 26, 1993 bid date, he performed some preliminary work on the bid, such as getting prices from subcontractors, obtaining a bond for the job, and making copies of the plans. He then did nothing with the bid until approximately two days before the May 26 bid letting. Despite Mr. Leal's testimony that crucial discrepancies between the consultant's plans and the ITB could not have been discovered within 72 hours of receiving the ITB, it is clear that his decision to delay concentrated work on this bid was based on extensive experience with a constant cycle of bidding. In preparing Petitioner's bid during the last two days before the letting, Mr. Leal formed the opinion that the plans' 500 cubic yard requirement for cypress bark mulch was correct and the ITB's 500 square yard requirement was a typographical error and that the project would probably require 6,000 square yards of cypress bark mulch. He based his calculations on 6,000 square yards (which equals 500 cubic yards from the plans) but expressed the unit price on Petitioner's bid according to the square yard unit FDOT had used in the ITB. Despite testimony concerning confusion arising from the ITB and plans, Mr. Leal candidly stated that he consciously bid in that manner to protect Petitioner in case FDOT required the successful bidder to provide 500 cubic yards (6,000 square yards) instead of 500 square yards, and he then split the final number he came up with between the two items so as to bid $.95 per square yard on item 580-173 and $8.50 per square yard on item 580-326-3. In so doing, he relied on his own judgment. The ITB also contained other questionable items including meter fees and contradictory specifications on plant size and color. Despite testimony that Vilma Croft, FDOT Project Manager was not helpful, it appears that in preparing Petitioner's bid, Mr. Leal asked Vilma Croft to clarify a concern about local meter fees, which she did late on the day before bid letting. He also asked her three additional questions about plant list specification discrepancies, and she told him he must use his own judgment. However, he then did not ever pose his prepared question with regard to the mulch discrepancy (TR-47-54). Unbalancing to some extent is discernible in virtually all bids. FDOT does not, therefore, reject all bids that are unbalanced. Only when unbalancing results in reasonable doubt that an award to the mathematically unbalanced bidder will result in the lowest ultimate cost to the state does FDOT consider the unbalancing "material." Unbalancing in a bid is determined by computerized program. The FDOT computer program figures in the bids on every item, does a bell curve distribution, keeping a center of 1 and 1/2 deviations and then discards the high and low bids. It then re-averages the remaining bids to determine a reasonable cost for any particular pay item. Any bids falling outside a certain tolerance window, either above or under, are flagged as mathematically unbalanced. FDOT's computer assessment identified as mathematically unbalanced five items in Petitioner's bid, among them the mulch item already referenced, and three items in the Intervenor's bid. FDOT's computer for purposes of determining imbalancing is programmed according to FDOT's interpretation of its Basis of Estimates Manual and its Standard Specifications for Roadway and Bridge Construction, which interpretation is to the effect that the agency may not alter the method of payment (unit of measure) without letting a new ITB/contract but may alter quantities without such a new bid letting procedure. (TR 159-160; 271-272. FDOT Exhibits 3 and 4). The square yard pay unit is entered in the computer program for these reasons and is standard FDOT practice. (See Findings of Fact 5 and 24-25.) When a mathematical unbalancing is discovered, FDOT analyzes the bid further for purposes of discovering whether the bid is materially unbalanced. FDOT personnel conducted further investigation to determine whether there was a likelihood of an overrun in the quantity of shredded cypress mulch which would be sufficient to change the order of the bidders. Vilma Croft, FDOT's Project Manager, acted as a conduit between FDOT's design consultant and Robert Griner, FDOT's Preliminary Estimating Engineer. At her request, the consultant who had designed the project plans, filled in unbalanced review sheets stating that the quantity of 500 square yards for cypress bark mulch was not correct in the ITB and that the correct quantity was 6,000 square yards. Croft relayed the adjusted quantity to Griner's office, noting that page LD28 of the plans had expressed 500 cubic yards. Thus, the quantity of cypress mulch to be placed on the project was not 500 square yards but 500 cubic yards which translates into 6,000 square yards, amounting to a likely overrun of 5,500 square yards. After multiplying the likely quantity overrun by the Petitioner's unbalanced unit price of $8.50 per square yard, FDOT personnel adjusted Petitioner's contract price by $46,750.00, reaching an adjusted total contract price of $793,351.45. FDOT made similar adjustments for mathematically unbalanced items in both Intervenor's and Weekly's bids. After those adjustments, the contract prices were $763,346.15 and $920,278.45, respectively. FDOT's further investigation and reconciliation of the remaining unbalanced items in Petitioner's bid and the unbalanced items in the Intervenor's bid and Weekly's bids are not at issue here. Mr. Griner made a presentation to FDOT's Technical Review Committee that there would be an overrun of 5,500 square yards of cypress bark mulch and that the overrun had resulted in a switch in the order of the bids. Again, square yards is FDOT's standard unit of calculation. The Technical Review Committee recommended rejection of Petitioner's bid as materially unbalanced and award of the contract to Intervenor. The Contracts Award Committee followed this recommendation. It voted to reject Petitioner's bid and declared FDOT's intent to award the bid to Intervenor. Intervenor was declared to be the apparent low bidder. Petitioner timely protested. Intervenor timely moved to intervene and was granted intervention. Both have standing in this proceeding. Weekly filed no protest and no petition and has not moved to intervene. It is not unusual for a mistake to be made in the estimated quantity of a project. FDOT routinely corrects mistakes that show up in quantities after bids are opened. FDOT does not assume responsibility that final quantities in a project will remain in accordance with quantities as "estimated" in its ITBs. Put in layman's terms, ITBs are created upon FDOT's "best estimates," but FDOT reserves the right to pay only for actual work done. Sometimes, this means contractors get more work/pay than they initially anticipated and sometimes they get less. ITBs do not guarantee successful bidders a dollar amount of work. (TR 271-272; FDOT Exhibits 3 and 4). Specifically, FDOT's "Contract Bible," the Standard Specifications for Roadway and Bridge Construction (FDOT Exhibit 4), which is incorporated by reference in its agency rules and in its ITBs, provides as follows: 2-3 Interpretation of Estimated Quantities. For those items which are to be constructed within authorized plan limits or dimensions, the quantities shown in the plans and in the proposal form are given as the basis of bid and also for final payment as limited by the provisions for the individual items. For those items having variable final pay quantities which are dependent on actual field conditions, use and measurement, the quantities shown in the plans and in the proposal form are approximate and are given only as a basis of calculation upon which the award of the contract is to be made. Where items are listed for payment as lump sum units and the plans show estimates of component quantities, the Department's responsibility for the accuracy of those quantities is limited to the provisions of 9-3.3. Where items are listed for payment as lump sum units and the plans do not show estimates of component quantities, the contractor shall be solely responsible for his own estimates of such quantities. The Department does not assume any responsibility that the final quantities will remain in accordance with estimated quantities, nor shall the contractor claim misunderstanding or deception because of such estimate of quantities. The estimated quantities of work to be done or materials to be furnished may be increased, decreased, or omitted as hereinafter provided. FDOT interprets this specification/rule to permit the agency to adjust quantities under the circumstances of this case with regard to its ITBs.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the Petitioner's protest and awarding the contract to the Intervenor. RECOMMENDED this 22nd day of October, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1993. APPENDIX TO RECOMMENDED ORDER 93-4556BID The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's (Vila's) PFOF: Accepted. (Findings of Fact 1, 4). Accepted but subordinate material not adopted. (Findings of Fact 4- 6, 11-12, 14, 18). Accepted but subordinate material not adopted. (Findings of Fact 5, 6, 11, 12, 14, 18). Accepted. (Findings of Fact 13- 14). Accepted in part in Finding of Fact 13. Remainder rejected as not supported by the record as a whole. Covered in the conclusions of law as legal argument. Accepted but subordinate material not adopted. (Findings of Fact 6, 12, 14). Accepted. (Findings of Fact 5, 6, 12, 13, 14, 17, 24-25). Accepted in part in Findings of Fact 5, 12, 14, 18. Rejected in part as unnecessary, subordinate or cumulative to the facts as found. The last sentence is rejected as not supported by the record and as argument contrary to law. Accepted. (Findings of Fact 14- 15). Accepted in part and rejected in part as not supported by the record as a whole. (Findings of Fact 14- 15). Rejected as immaterial and/or not supported by the record as a whole. Accepted that Petitioner usually bids in cubic yards, but the record demonstrates that mulch items are bid in all variety of ways and that FDOT typically requires bids in square yards for payment purposes. (Findings of Fact 2-3, 5-7, 13, 17, 21, 24-25). Accepted. (Findings of Fact 12, 14). Accepted but not dispositive or adopted. Accepted. (Findings of Fact 6, 18). Accepted but not adopted because unnecessary, subordinate, or cumulative to the facts as found, or immaterial. (Finding of Fact 18). Accepted. (Finding of Fact 16). Accepted. (Finding of Fact 16). Accepted. (Findings of Fact 16, 18). Accepted. (Finding of Fact 16). Accepted. (Findings of Fact 16, 20). Accepted. (Findings of Fact 16, 19-20). Rejected as irrelevant and immaterial. Accepted. (Finding of Fact 18). Accepted but unnecessary, subordinate, or cumulative material. Not adopted. (See Finding of Fact 18). Accepted in Finding of Fact 18 except to the degree unnecessary, subordinate, or cumulative to the facts as found. Also, the motivations of the project manager and the fact that this has not occurred before, is deemed irrelevant and immaterial. Accepted but not adopted to the degree unnecessary, subordinate, or cumulative to the facts as found. (See Finding of Fact 18). The first sentence is accepted but not adopted to the degree unnecessary, subordinate, or cumulative to the facts as found. The second sentence is rejected as out of context and contrary to the greater weight of the evidence as a whole. (Findings of Fact 2-3, 5-7, 17, 21, 24-25). Rejected as stated because not supported by the record as a whole. There is no secret in this case as to the discrepancy between the plans and ITB. (Findings of Fact 12, 18). Accepted. (Findings of Fact 18, 21-22). Accepted but not adopted because immaterial. Covered in the Conclusions of Law. Rejected as misleading and contrary to the record evidence supporting Findings of Fact 2-3, 5-7, 17, 21, 24-25. Covered in the Conclusions of Law. Rejected as not material, as speculative, and as not dispositive. Also rejected as use of isolated testimony as legal argument. FDOT is entitled to alter quantities. The substance is discussed in Findings of Fact 18, and 21-25 and the Conclusions of Law. Accepted. (Finding of Fact 21). Accepted but not adopted because unnecessary to disposition. Accepted but not adopted because unnecessary to disposition. Accepted but not adopted as cumulative. See Findings of Fact 4-5, 17, 24-25. Rejected as stated. Covered in substance in Findings of Fact 3, 11-12, 18 and the Conclusions of Law. Rejected as legal argument. Covered in substance in the Conclusions of Law. Rejected as use of isolated testimony for argument. Rejected as not supported by the record evidence as a whole. (Findings of Fact 5, 17, 24-25). Rejected as legal argument. Not dispositive. See Findings of Fact 2-4, 14 and Conclusions of Law. Accepted but not dispositive. See Findings of Fact 2-4, 14, 18, and the Conclusions of Law. Accepted. (Findings of Fact 12, 14, 18). Rejected as stated as not supported by the record evidence as a whole. Covered in Finding of Fact 14 and Conclusions of Law. Rejected as not supported by the record and as argument contrary to law. See Finding of Fact 14 and the Conclusions of Law. Rejected as Immaterial. Rejected as Immaterial. Respondent's (FDOT's) PFOF: Accepted. (Findings of Fact 1, 10). Accepted. (Finding of Fact 14). Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Finding of Fact 14). Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Finding of Fact 2, 4, 11, 14). Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Finding of Fact 2-3, 5-7, 13, 17, 21-25). Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Finding of Fact 16). Accepted. (Finding of Fact 16). Accepted except to the degree unnecessary, subordinate, or cumulative to the facts as found. (Findings of Fact 2-3, 5-7, 13, 17, 24-25). Accepted. (Finding of Fact 18). Accepted. (Finding of Fact 18). Accepted. (Findings of Fact 6-7). Accepted as modified to better conform to the record. (See Findings of Fact 5, 17, 24-25 and Conclusions of Laws). Accepted as modified to better conform to the record and eliminate mere argument. (Findings of Fact 24-25). Accepted. (Findings of Fact 18- 22). Accepted. (Findings of Fact 9, 16, 21-22). Accepted. (Findings of Fact 9, 16- 18, 21-22). Accepted. (Finding of Fact 2, 4, 14). Intervenor (Hayslip's) PFOF: 1 Accepted. (Finding of Fact 1). 2 Accepted. (Findings of Fact 2). 3 Accepted. (Findings of Fact 8). 4 Accepted. (Findings of fact 9, 21- 22). 5 Accepted. (Finding of Fact 10). 6 Accepted. (Finding of Fact 11). 7 Accepted. (Finding of Fact 13). 8 Accepted. (Finding of Fact 13). 9 Accepted. (Finding of Fact 13). 10 Accepted. (Finding of Fact 13). Accepted as modified to eliminate mere argument. (Finding of Fact 13). Accepted. (Finding of Fact 13). Accepted as modified to better conform to the record. (Finding of Fact 16). Accepted as modified to better conform to the record and eliminate cumulative material. (Finding of Fact 18). Accepted. (Findings of Fact 18, 21-22). Accepted. (Findings of Fact 21- 22). Accepted. (Finding of Fact 19). Accepted. (Finding of Fact 3). Accepted. (Finding of Fact 5). Accepted. (Finding of Fact 6). Accepted. (Finding of Fact 7). Rejected as unnecessary, subordinate, or cumulative to the facts as found or immaterial. COPIES FURNISHED: F. Alan Cummings, Esquire, Mary Piccard, Esquire, and Jeffrey V. Nelson, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 James W. Anderson, Esquire Savlov & Anderson Post Office Drawer 870 Tallahassee, Florida 32302-0870 William H. Roberts, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Floirda 32399-0458 Thornton J. Williams, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Whether respondent should award the contract for the reroofing of Rickards High School, Project No. LCS-33016, to petitioner or reject petitioner's bid as unresponsive because it was not accompanied by a specimen copy of a manufacturer's roofing system guarantee?
Findings Of Fact By advertisement to bid prepared after February 8, 1991, and before March 21, 1991, the School Board advised prospective bidders where they could find drawings and specifications for reroofing James S. Rickards High School, Project No. LCS-33016. Petitioner's Exhibit No. 5. The advertisement to bid announced the bid deadline and stated that the School Board reserves the right to waive irregularities and/or information in any Bid and to reject any or all Bids in whole or part, with or without cause, and/or accept the Bid that in its judgment will be for the best interest of the School Board. Petitioner's Exhibit No. 5. The invitation to bid, Section B, 7., also addressed rejection of bids, stating: The Bidder acknowledges the right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding document, or if the bid is in any way incomplete or irregular; to reject the bid of a bidder who is not in a position to perform the contract; and to readvertise for other or further bid proposals. The Owner reserves the right to reject any or all bids when such rejection is in the interest of the Owner, and to reject the Bid of a Bidder who is not in a position to perform the Contract, or whose List of Subcontractors is improperly prepared, or not included in the Bid proposal. Failure to complete the Form PUR 7068 Sworn Statement under Section 287.133(3)(a), Florida Statutes on Public Entity Crimes and submit it with your bid or proposal will result in immediate disqualification of your bid or proposal. Petitioner's Exhibit No. 7. Only the failure to submit a completed Form PUR 7068 was identified as grounds for automatic rejection of a bid. The invitation to bid specified three different types of shingles that would meet the School Board's requirements. All three (including GAF 75) are of a premium grade, and guaranteed by their manufacturers for 20 years. The invitation to bid, Section Q, 4., entitled "Guarantees and Warranty," states: 4.01 Upon completion of the work, and before final payment, contractor shall furnish owner an unlimited ROOFING SYSTEM GUARANTEE with flashing endorsement covering all workmanship and materials issued by the roofing materials manufacturer for a period of 20 years from date of substantial completion. Petitioner's Exhibit No. 7. Earlier on, the invitation to bid, Section B, 3.05, states: (d) Contractor shall submit with his bid, proposal or quotation a specimen copy of the ROOFING SYSTEM GUARANTEE with flashing endorsement applicable to the project. Petitioner's Exhibit No. 7. According to Paul Byrd, respondent's Director of Construction, the purpose of requiring a specimen copy beforehand is twofold: the primary reason is to permit the evaluation of exclusion clauses, and, of less significance, he said, a specimen warranty shows that the bidder has a relationship with a manufacturer of roofing materials. Eight roofing contractors bid on the job, including Register Contracting Co., Inc. (Register). Petitioner Southeast's bid was low at $644,400, and Register was second low at $655,000. Petitioner's Exhibit No. 3. Southeast was the only one of the eight bidders who did not include a specimen copy of a manufacturer's roofing system guarantee with its bid. Register submitted two such specimens, one from Manville Products Corporation and one from GAF Building Materials Corporation (numbered 10446 9/88.) The LCS-33016 bid form proposal executed by Southeast and Register alike recites that the bidder has "examined carefully the . . . specifications . . . and if awarded the contract . . . will contract . . . to furnish all necessary . . . materials." Petitioner's Exhibits Nos. 1 and 2. The successful bidder may elect to use GAF 75, the Johns-Manville, or a third shingle specified in the invitation to bid. Well after the deadline for submitting bids, petitioner furnished the School Board a specimen copy of GAF Building Materials Corporation's guarantee, Petitioner's Exhibit No. 4, another form 10446 9/88 with wording identical to the copy Register submitted on time. Warranties differ depending on the grade of shingle, but this is the manufacturer's current form for all GAF 75 shingles. The form has blanks for "TYPE OF GUARANTEE," "PERIOD OF COVERAGE," "TYPE OF FLASHING," "AREA OF ROOF" and the like, none of which either Register or Southeast filled in. Form 10446 9/88 sets out exclusions from coverage and states that the guarantee "becomes effective only when bills for installation and supplies have been paid in full to the roofing contractor and materials suppliers, and the Guarantee charge has been paid to GAF. . . . [and] upon the satisfactory completion of the roof and GAF's execution of the Guarantee." Petitioner's Exhibit Nos. 2 and 4. The form also states, "The roofing contractor is NOT an agent of GAF." Id. (Emphasis is in original.) Mr. Byrd testified at hearing that the exclusion clauses in Form 10446 9/88 might be consistent with the unlimited guarantee required by the invitation to bid, Section Q, 4.01, but that he had not determined that they were consistent. On the other hand, he also testified that Register's bid is responsive and that, if Register is awarded the contract, Register will be free to use GAF 75 shingles, upon approval of submittals.
Recommendation It is, accordingly, RECOMMENDED: That respondent award petitioner the contract to reroof James S. Rickards High School, Project No. LCS-33016. DONE and ENTERED this 23rd day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 23rd day of May, 1991. COPIES FURNISHED: Fred C. Isaac, Esquire Lewis, Paul & Isaac, P.A. 2468 Atlantic Blvd. Jacksonville, FL 32207 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, FL 32302 Mr. Bill Woolley, Superintendent Leon County School Board 2757 W. Pensacola Street Tallahassee, FL 32304
The Issue This case is a bid protest filed by Petitioner, L. Cobb Construction ("Cobb"), to contest the award of a contract by Respondent, Hardee County School Board ("School Board"), to another bidder to the exclusion of Cobb. The issue is whether Cobb's bid was responsive to the bid criteria; and whether the School Board's award of the bid to another party should be deemed clearly erroneous, contrary to competition, arbitrary or capricious.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, including the Amended Joint Pre-Hearing Stipulation of the parties, the following Findings of Fact are made: Cobb is a construction company with decades of experience and has been involved with projects for the School Board in the past. The School Board is responsible for bidding out all construction projects and must determine the best qualified bidder at the lowest price. The parties agreed to the following facts as set forth in their Amended Joint Pre-Hearing Stipulation: A "Bid Proposal for Roof Removal and Replacement" advertisement was placed in the Herald-Advocate newspaper on October 21, 2010. (The roof replacement will be referred to herein as the "Project.") A mandatory pre-bid meeting at Wauchula Elementary was held for potential roofing contractors on October 29, 2010. The meeting was led by roofing consultant Scott Bonk and Associates ("Bonk"). The School Board received Cobb's bid on the Project at 12:34 p.m., on November 15, 2010. School Board officials began opening all bids for the Project at 1:00 p.m., on November 15, 2010. Project bids were received from Cobb, Advanced Roofing, Crowther Roofing, Hamilton Roofing, Latite Roofing & Sheet Metal, Southern Roofing, and THL Roofing. Bonk was present at the time the bids were opened. Bonk sent an email to Rob Krahl on November 16, 2010, concerning Cobb and Latite's bids. Bonk advised Krahl that the Cobb bid did not meet the specified components, but that the Latite bid met all components and timeframes for the Project. Bonk recommended Latite as contractor for the Project. The School Board approved the recommendation of Latite, whose bid was $152,065 for the replacement of the roofs on building Nos. 5 (the exceptional student education or "ESE" building) and 6 (the media center). On November 17, 2010, Deputy Superintendent Woody Caligan faxed School Board Policy 6.07(5), entitled Bid Disputes and Procedures, to Cobb. A Notice to Proceed letter was faxed to Bonk on the same date, authorizing Latite to commence the Project. A denial letter was also faxed to each of the other bidders. On November 18, 2010, Cobb hand-delivered a Notice of Protest to Rob Krahl at the School Board. On November 26, 2010, Cobb mailed a cover letter and three original Letters of Protest, along with a cashier's check for the protest bond, to Rob Krahl. On November 29, 2010, Cobb faxed a copy of proof of postage, School Board Rule 6.07(5), its Letter of Protest, and a copy of its previously-issued cashier's check to Wood Caligan after Caligan indicated that he had not received the mailed version. The School Board is the governing entity of the school district of Hardee County, Florida. David Durastanti is the superintendent of schools for Hardee County; Woody Caligan is the deputy superintendent. Rob Krahl is an employee of the School Board and is responsible for facilities and construction projects for the school system. Barbara Spears is a School Board employee serving under Krahl. Joann McCray serves as secretary to the superintendent. Greg Harrelson is the chief financial officer for the school district. Harrelson's duties include the receipt, review and award of bids for the school district. A document entitled, "Project Manual," was issued by Bonk relative to the request for bids on the Project. The Project Manual contained the specifications for the Project, including a section entitled, "Bid Form" (comprised of pages 20 through 22). The Bid Form is the critical portion of the Project Manual for purposes of the instant proceeding. The Bid Form had several blanks to be filled in by the bidding party. The bidder was to fill in the contractor's name, a projected cost for the replacement of both roofs (the ESE building and the media center), a total cost line, a line for the amount of the payment, and a line for the performance bond amount. Following those blanks, there was a section that forms the crux of the dispute in this case. That section provided a space for identification of materials proposed by each bidder. It appeared as follows: The base bid price is based on the following: Manufacturer's Name Base Sheet Intermediate Ply Granulated Ply Insulation Manufacturer The responses by Cobb to this section of the Bid Form were deemed inappropriate by Bonk. Latite's responses to this section were deemed appropriate and compliant with the bid requirements. Cobb's responses were as follows: Manufacturer's Name: GAF Base Sheet: GAF-Ruberoid Modified Base Intermediate Ply: GAF-Ruberoid Granulated Ply: GAF-Ruberoid Mop Plus Insulation Manufacturer: GAF Latite's responses were as follows: Manufacturer's Name: Soprema Base Sheet: Sopra 6 Intermediate Ply: Elastophene 180 Sanded Granulated Ply: Elastophene FR 6R Insulation Manufacturer: GAF (Made by Atlas) These responses indicate the primary differences between Cobb and Latite's bids. Another important factor (and distinction between Cobb and Latite's bids) was the roof insulation material proposed by each. Cobb proposed using Perlite; Latite proposed Sopra Board. These will be discussed more fully herein. GAF, referenced by both Cobb and Latite in their responses, is the largest roofing manufacturer in the United States. The company is 125 years old and is based in Wayne, New Jersey. A representative of GAF testified at final hearing. At about the time bids were submitted for the Project, a representative from Bonk's office called GAF to discuss specifications about various GAF products. There were at least two conversations, one of which was generic in nature and one which somewhat addressed the Project specifically. Bonk determined from the discussions with GAF that neither the Ruberoid Mop Plus proposed by Cobb for its granulated ply, nor the Ruberoid Modified Base Sheet portion of the bid was available in Florida. Further, Bonk learned that the Perlite product proposed for the roof insulation by Cobb was inferior to the Sopra Board proposed by Latite. A letter setting forth his findings was sent to the School Board on November 16, 2010. The Project Manual set forth certain specifications to be used by bidders concerning materials to be used for the Project. The roofing system specifications contained a direction that "[s]hould Soprema products be used, the following membrane sheets are required," and then went on to list the various products that could be used. Latite proposed the use of Soprema products and most of its materials were Soprema brand (except for its insulation, where a GAF brand product was proposed). Cobb, on the other hand, bid GAF products for each of the major Project components. By using Soprema products, Latite ensured compliance with the basic specifications set forth in the Project Manual. Generally a project bid sheet will contain an ASTM product code number which allows contractors to look at comparable materials from different manufacturers. The Project Manual in this case did not include ASTM codes. Any bidder proposing to use materials made by a company other than Soprema, therefore, would be required to independently determine comparability with the Soprema brand product. Cobb's proposed materials list included non-Soprema manufactured products. The GAF products proposed by Cobb may generally have been comparable to the Soprema products, but the evidence is not persuasive as to that fact. Although the GAF representative testified that its products were of high quality and would likely satisfy the requirements for the Project, there was some question as to whether the items set forth by Cobb in its bid were sufficiently described. Bonk made some inquiry into the matter by contacting GAF, but the hearsay and nebulous nature of those discussions does not provide sufficient detail for formulation of a finding of fact as to whether the products were of comparable quality. Cobb proposed a product for the top membrane ply that was constructed using polyester material. The Project Manual called for ply with fiberglass construction. Both are quality products, but the polyester material has a tendency to shrink, especially if it is installed incorrectly. Of the six other entities submitting a bid for the Project, all of them proposed use of Soprema products or materials that were deemed equal in quality. Cobb's bid was the only bidder whose proposed products were deemed insufficient. One other bidder was also rejected due to time frame issues. None of the other bidders filed a protest or challenged the final decision of the School Board. The School Board's stated rationale for rejection of Cobb's bid was that the generic description of Cobb's proposed building materials made it difficult, if not impossible, to ascertain whether they met the standards set forth in the Project Manual. This rationale is neither arbitrary nor capricious and is based on sound reasoning. Cobb's bid, although more generic than the School Board would have liked, was nonetheless a viable bid. Cobb would have been able to explain and make his bid more specific had he been given the opportunity. However, the School Board did not owe Cobb the right to alter, amend, or explain its bid more fully after the bid process was complete. To do so would give Cobb an inequitable advantage, vis-à-vis, the competing bidders. It is very likely that Cobb could effectively and professionally complete work on the Project. However, its bid was not exactly in accordance with the requirements of the Project Manual and was justifiably rejected in favor of Latite's bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Hardee County School Board, upholding its award of the contract to Latite Roofing Company and denying the protest by Petitioner, L. Cobb Construction. DONE AND ENTERED this 30th day of March, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 30th day of March, 2011.
Findings Of Fact On October 26, 1976, the School Board of Orange County and ITEL Data Product Corporation (ITEL) entered into a lease agreement providing for the lease of data processing equipment to the Board from ITEL by which ITEL supplied a computer central processing unit (CPU) and related equipment. Concomitantly, by agreement, ITEL provided for servicing and maintenance of the equipment. In October, 1977, IBM announced its new 303X series of computers with delivery schedules to customers for the newly introduced equipment to take up to two years. IBM has had a long-standing policy, well-known in the data processing industry, of filling customer orders for equipment in the sequence in which they are received, called "sequential delivery." With public agency customers, such sequential orders are not envisioned by the agency nor IBM to be a firm order because of the often protracted procurement process, involving competitive bidding, that public bodies typically have to engage in before making such a major purchase. IBM therefore permits public agencies, such as the School Board in this case, to place non-binding orders in anticipation of a future procurement so that a sequential delivery position will be available to the public agency and thus cause no delay in acquisition of the equipment should IBM become the successful bidder upon a particular procurement. On October 6, 1977, the School Board placed a "reservation" for an IBM 3031 CPU and related data processing equipment. In a letter of October 11, 1978, the School Board informed IBM that this equipment would be needed in approximately November, 1979, subject to availability of funds and subject to IBM being selected as a winning vendor in a competitive bidding process. There was no executed contract or other commitment between IBM and School Board at this point in time. Sometime in the summer of 1979, the School Board, which had become dissatisfied with the service and maintenance it had received from ITEL pursuant to the ITEL lease, engaged certain members of its staff in a study regarding its future data processing equipment needs. The School Board staff study resulted in a determination by the staff, and ultimately by the Board, to acquire additional data processing equipment capacity in excess of the capacity supplied under the ITEL lease. On August 28, 1979, the School Board terminated the ITEL lease effective December 31, 1979, and on or about September 5th, notified ITEL of that termination. On or about October 2, 1979, after determining that it wished to lease new and greater capacity equipment, the School Board Issued an "Invitation to bid" to eleven vendors, providing for the leasing, with option to purchase, of an IBM 3031 CPU and related equipment "or their equal." In response to this invitation to bid, ITEL, Menrex Corporation, as well as IBM, submitted bids and on November 13, 1979, the School Board rejected all the bids as being not responsive, as it had reserved the right to do in the invitation to bid document. The rejection of these bids on November 13, 1979, provided only slightly over a month during which the School Board would have to acquire equipment by rental or purchase and have it installed, since the ITEL lease would be terminated on December 31, 1979. Accordingly, acting on the advice of counsel, the School Board determined that it could legitimately develop an interim emergency leasing plan for meeting its data processing needs upon the expiration of the ITEL lease starting December 31, 1979. This leased equipment was expected to be in place for approximately three to six months or until such time as a new bidding effort and procedure could be developed. The School Board, upon advice of counsel, determined that under its procurement regulations, it could rent equipment on a month to month basis without engaging in a competitive bidding process if it solicited quotations from at least three vendors. Thus, on November 13, 1979, the School Board solicited quotations from three potential vendors, Comdisco, ITEL and IBM, for purposes of securing an interim rental of an IBM 3031 CPU, "or equal", and related equipment. IBM and the Petitioner herein, NAS, which is the successor in interest to ITEL, responded to the solicitation of quotations and NAS informed the Board that it could not supply the particular equipment specified, but offered a NAS CPU at a monthly charge and suggested other related equipment to the Board that NAS considered to be suitable. The School Board staff informed NAS that the CPU unit itself would be a suitable alternative to the IBM 3031 CPU mentioned in the solicitation of quotations. On November 20, 1979, the School Board elected to select IBM's quotation and entered into the lease arrangement with IBM on a month-to-month rental basis. NAS did not challenge that action by the School Board. This rental agreement was entered into on or about December 7, 1979. It was a standard IBM lease and contained a provision whereby IBM offered the customer an option to purchase the equipment, although there was no obligation imposed therein on the customer to purchase the equipment, which was the subject of the lease. The agreement provided that the customer would be contractually entitled to certain "purchase-option credits" or accruals if it was leasing the equipment on a long-term basis and subsequently elected to exercise the option to purchase that same equipment. IBM grants such purchase-option credits as a general rule in month-to-month rental situations such as this, although they are not always a matter of contractual right on behalf of the customer. In any event, no consideration was shown to have been given at the time of entering this rental agreement to the existence or non-existence of any purchase-option credit provision since the only authorized contract at that time was a month-to- month rental agreement. No purchase or option to purchase which would be binding on either party was contemplated since both IBM and the School Board were aware that before a purchase of this magnitude could be made, that a competitive bidding procedure must be utilized. Equipment was installed pursuant to the rental agreement in December, 1979. Neither at the time of the contracting, nor at the time of the installation of the IBM 3031 CPU, did NAS or Comdisco challenge the award of the month-to-month rental contract to IBM. In early 1980, the rental agreement being only temporary, the School Board began studying various alternatives for making a permanent acquisition of needed data processing equipment. In early May of 1980, upon advice of its attorney and various staff members assigned to study the matter, the School Board determined that it would be more economical for the School Board to purchase a CPU and related equipment and service either by cash or installment payment, than to continue renting a CPU and related equipment or to lease those items with an option to purchase as had originally been contemplated in the October, 1979, aborted procurement effort. Thus, it was that on about April 20, 1980, the School Board appointed a committee of five persons to help draft technical specifications to ultimately be promulgated in bidding invitation documents with a view toward acquiring the required data processing equipment through competitive bidding and ultimate purchase. The committee included School Board employees and outside consultants with knowledge of the field of data processing. The members were: Louis Nall, Education Consultant with the Florida Department of Education; Kim Anderson, Information Systems Consultant with the Florida Department of Education; David Andrews, Coordinator, Systems Support, School Board; Mike Staggs, Coordinator, Operations for the School Board; and Craig Rinehart, Director of the Systems Development/Systems Support staff of the School Board. Upon this committee agreeing upon required specifications for the equipment to be acquired, the bidding documents or "invitation to bid" and related supporting documents were developed by the committee in conjunction with assistance of certain other members of the staff of the Board as well as the School Board's attorney. The bid documents were approved by the School Board on May 27, 1980, and they were issued on May 23, 1980, to eight potential vendors, including NAS, IBM, and Amdahl Corporation. The bid documents invited bids for the sale of an IBM 3031 CPU and related equipment "or their equal" (plus service and maintenance) for delivery no later than July 15, 1980. In addition to specifying an IBM 3031 CPU and related equipment "or their equal.," the pertinent specifications contained in the invitation to bid documents provided as follows: The manufacturer of the equipment described in the bid was required to currently manufacture it and offer for sale or lease along with it, an upgradable attached word processor subsystem the same as, or equal to, the IBM 3031 "attached pro- cessor." The Central Processing Unit, or CPU, being bid had to be capable of hosting or accommodating an attached processor. (The purpose of requiring this was so that the School Board could later ob- tain more processing capability if and when it needed it, rather than having to pay for more capacity than it needed at the time of the initial purchase. The vendors were not required by the bidding documents, however, to bid at the time of this procurement for the actual sale of such an attached processor, to be added later.) The School Board reserved the right to reject any and all bids and to waive any informal- ity in any bid. The bid documents initially stated that the School Board would not pay any separately stated interest or finance charges in arriving at its total purchase price for all equipment to be bid. Each bidder was required to offer a certain number of support or maintenance personnel in the Orlando area at the time the bid was submitted and the Board would enter into a separate service and maintenance agreement with the successful vendor. NAS did not protest the bid specifications contained in the invitation to bid documents. NAS did request and receive several interpretations and clarifications of the bid documents from the Board in a manner favorable to NAS. These favorable clarifications or interpretations were as follows: The unavailability of serial numbers for data processing equipment at the time the bid was prepared would not adversely affect the bid's validity. NAS could temporarily rent equipment from other manufacturers which it could not itself deliver by the July 15, 1980, date required in the bid documents. (emphasis supplied) NAS would be deemed by the Board to comply with the requirement that support personnel be present in the Orlando area, provided it had the required support personnel in the area at the time the equipment was actually delivered, rather than at the originally stated time of submission of the bid. The NAS 7000N CPU, which was a computer of greater capacity than the IBM 3031, even after the IBM had the attached processor added, was specifically determined by the Board to be con- sidered as equivalent to the IBM 3031 and thus ap- propiately responsive to that specification and the invitation to bid documents. NAS would be deemed by the Board to comply with the term "manufacturer" even though NAS did not in itself manufacture the equipment, but only marketed it for the maker, Hitachi Corporation. IBM also had a role in determining and securing clarifications or interpretations of the specifications in the invitation to bid from the School Board. Thus, it was that IBM suggested that the Board could save money if it allowed each vendor (not just IBM) to separately state an interest or finance charge in its bid, since IBM was of the opinion that the Internal Revenue Service would not tax as ordinary income to the vendor any separately stated interest charges or financing charges received by such vendor from a public governmental body such as the School Board. Thus, to the extent that vendors could save on income taxes from the total payment, if successful, then the School Board could reasonably expect all vendors to submit correspondingly lower bids in response to the invitation to bid. In response to IBM's request, the School Board amended the bid documents to allow a "separately stated time-price differential" for any item of equipment, not to exceed seven and one-half percent of that item of equipment. At NAS' request, the School Board also amended the bid documents to state that a single central processor (the NAS 7000N), with equivalent power to the IBM 3031 CPU, which was upgradable in the field, would be an acceptable alternative to the requirement that a separate processor must be capable of being attached to the CPU in order to increase data processing capacity. In fact, the NAS 7000N actually has somewhat greater data processing capacity than the IBM 3031. A further amendment to the bid documents provided that in determining the lowest and best bid, the Board would consider each vendor's total charges for service, maintenance and support of the equipment for a one- year period following the award of bids. Additionally, at the request of IBM, an amendment was approved to the bid documents stating that instead of seeking equipment "new and not refurbished," that that requirement would be changed to "new and not refurbished or not more than one-year old." These amendments were sent to all potential bidders. Prior to disseminating the May, 1980, invitation to bid documents, the School Board established an Evaluation Committee to review and analyze bids to be received in response to those documents. The Committee was composed of the following individuals: David Brittain, the Director of the Educational Technology Section, Florida Department of Education; William Branch, Director of Computer Service, University of Central Florida; Louis Nall, Education Consultant, Florida Department of Education; Ronald Schoenau, Director of Northeast Regional Data Center, Florida University System; Craig Rinehart, Director of Systems Development/Systems Support of the Orange County School Board; Mike Staggs, Coordinator, Operations of the School Board; David Andrews, Coordinator, Systems Support, School Board; Dale Brushwood, Director of Production Control, School Board; and David Brown, Attorney for the School Board. The Evaluation Committee was charged with conducting a review and analysis in accord with certain instructions given by the Board and to recommend to the Board the bid the Committee believed was the lowest and best bid. The Committee was instructed that objectivity is of prime importance. Five vendors submitted bids in response to the Invitation documents, as amended. They were NAS, IBM, Amdahl, CMI and Memorex. On June 17, 1980, the bids were opened by the Board. On a recommendation of the Evaluation Committee, the School Board found the bids submitted by CMI and Memorex to be not responsive to the bid documents. The bids submitted by NAS, IBM and Amdahl Corporation were found responsive to the bid document. The Evaluation Committee met for approximately 5 hours evaluating the bids by a number of different criteria, including the consideration of both a one-year and a three-year maintenance cost, as well as an assumption arguendo that the bid documents did not merely call for the IBM 3031 CPU upgradable by the addition of an attached processor, as the specifications actually requested, but instead that the $330,000 (estimated) attached processor was to be bought at the outset from IBM. The result was that the Evaluation Committee reported that the IBM bid was the lowest and best response, even if the cost of a $330,000 attached processor was added to their bid, which was not actually to be the case because the attached processor was not included in this procurement process. Even had that been added to the IBM bid, making it the second lowest dollar bidder, the Evaluation Committee still felt it to be the lowest, best bid. The IBM bid for the 3031 CPU and related equipment was $1,412,643 plus a time-price differential of $58,738 for a total of $1,471,381. The related bid for service, maintenance and support for the first year was $74,201.34, making a grand total for IBM's bid of $1,545,582.34. The NAS bid for the sale of an NAS 7000N CPU and related equipment was the next lowest bid at $1,575,751 plus a time-price differential of $74,722 for a total of $1,650,473. The accompanying bid for service, maintenance and support for the first year was $64,603. The total of the NAS bid was thus $1,715,076. The Amdahl Corporation's bid was higher than either IBM or NAS. In evaluating and in arriving at the decision that the IBM bid was the lowest and best, the Evaluation Committee was concerned with the previous poor record of maintenance and support provided by NAS's predecessor in interest, ITEL Corporation, as well as by the fact that there were then no NAS 7000N computer systems installed in the United States, so that some knowledge of its performance record could thus be gained. Further, the residual value for NAS' equipment had not yet been proven to the extent that IBM's had. Thus, the Committee determined that the IBM bid would still be the lowest and best even had the attached processor, at an estimated cost at time of $330,000, been added to the bid, making it the second lowest in dollar terms because the IBM bid combined the least risk, with the maximum equipment capacity growth flexibility at maximum benefit to the School Board in terms of financial flexibility. The NAS machine would provide more capacity than the Board needed for several years at higher cost, without the Board having an option regarding when that extra capacity should be obtained. The financial flexibility benefit of the IBM bid in terms of allowing for future capacity growth was borne out because the attached processor, by the time it was actually acquired from IBM in 1982, only cost $172,000, due to price decreases made possible by technological advances. The Evaluation Committee unanimously recommended acceptance of the IBM bid as the lowest and best received, and in official session on June 24, 1980, after hearing presentations by an NAS representative, the School Board unanimously voted to award IBM the contract for the subject equipment. On July 1, 1980, the contract submitted by IBM was executed by IBM and the School Board. It provided for a purchase by the Board of the equipment and services described above, payable in two installments, $600,000 on or before August 15, 1980, and the balance on or before July 5, 1981. On July 16, 1980, NAS filed a petition for administrative hearing with the Board, also filing an emergency motion for stay with the School Board, seeking a stay of all further agency action on the contracts with IBM, including any payment, pending disposition of the case. On July 29, 1980, the School Board, after hearing argument of NAS counsel, denied that petition for Administrative Hearing and motion for stay on the basis that the contract between the Board and IBM had already been executed and that the NAS request for a 120.57(1), Florida Statutes, hearing was not timely. On August 4, 1980, NAS appealed the Board's decision to deny a hearing to the Fifth District Court of Appeal and also filed an emergency motion for stay pending appeal. The emergency motion requested the court to prohibit any further action pursuant to the contract, including payment of any sums pending determination of the issues raised in the appeal. On August 15, 1980, the court granted the emergency motion for stay on the condition NAS post a supersedes bond on or before August 18, 1980. On August 26, 1980, the court vacated that order because of failure to timely post the supersedes bond. The School Board then paid IBM the first installment payment of $600,000, when due, shortly thereafter. On May 6, 1981 the Fifth District Court of Appeal ultimately rendered a decision that NAS ". . . should have an opportunity to present evidence and arguments, pursuant to Section 120.57(1)(b)4, Florida Statutes, (Supp. 1980), that its bid was the lowest and best response to the bid document." Thus, the case was remanded to the Board to conduct an administrative hearing, and the Board referred the matter to the Division of Administrative Hearings. On June 4, 1981, NAS filed with the Board a motion for stay to prevent the Board from making the final payment to IBM on the purchase price. After hearing arguments of NAS' attorney, the Board, on June 23, 1981, denied the motion for stay and NAS appealed. On July 3, 1981, the Fifth District Court of Appeal affirmed the School Board's denial of the stay. Final payment was thereafter made by the Board to IBM, thus completing the purchase and all performance of the contract.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered by the School Board of Orange County denying the relief requested by the Petitioner. DONE and ENTERED this 22nd day of September, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1983. COPIES FURNISHED: John A. Barley, Esquire 630 Lewis State Bank Building Post Office Box 10166 Tallahassee, Florida 32302 William M. Rowland, Esquire Post Office Box 305 Orlando, Florida 32802 Peter J. Winders, Esquire Nathaniel L. Doliner, Esquire Post Office Box 3239 Tampa, Florida 33601 Daniel E. O'Donnell, Esquire 400 Colony Square, Suite 1111 Atlanta, Georgia 30361 James L. Scott, Superintendent Orange County Public Schools Post Office Box 271 Orlando, Florida 32802
The Issue Whether the certified general contractor's licenses and the registered roofing contractor's licenses held by Petitioner Robert J. Nali should be revoked.
Findings Of Fact The certified General Contractor's License number CG-C007395 and CG- CB07395, and the Registered Roofing Contractor's License number RC0028067, issued to Robert J. Nali are active and current. Respondent entered into a contract with Mr. Charles Rapp on June 1, 1977, to have a house constructed for the contract price of $29,500. The home was financed through the First Federal Savings and Loan Association of Leesburg for the sum of $27,730. Disbursed directly to Respondent Nali in five different draws was $16,638. These disbursements left a total of $11,092 in the bank account for completion of the home. Two bills remain unpaid, one for $500 and one for $560.92. Cost of the home was approximately $2,035.87 above the contract price. Two liens were filed against Mr. Rapp's property which were satisfied out of construction funds from the bank, one by Adobe Building Center, Inc., in the amount of $1,315 and one by Branch Garage Door Sales in the amount of $171.38. Respondent Nali admitted that the Kennedy Company supplied air conditioning duct work for the home, and that Yale Ogron Builders provided labor as a subcontractor; that he was paid for the supplies provided by the Kennedy Company on the second drawing, and for the labor provided by Yale Ogron Builders on the fourth draw. Respondent Nali admitted he did not pay these concerns although he did receive the funds for the material and labor supplied. Mr. Rapp fired Mr. Nali and completed the home himself. There was no date of completion in the contract, but Respondent did not actively pursue the completion. Respondent Nali entered into a contract with Mr. Charles Fosmoen in June of 1977, for the purpose of constructing a home. The contract price was $28,150. The home was financed through the First Federal Savings and Loan Association of Leesburg for the sum of $26,471. Disbursed to Nali under the contract was $19,845.75. The disbursement left a total of $6,625.25 to complete the house. Expended to complete construction of the home in accordance with the contract was $9,351.08, an excess of $2,725.83 of the contract price. A claim of lien was filed against the Fosmoen home by Lake Pre-Hung Door Manufacturing Company, Inc. Mr. Nali was fired from the job and, although no time was designated in the contract for completion, Respondent Nali did not actively pursue the construction of the home. A contract was entered into with Mrs. Ellen Haffey on November 16, 1977, to construct the shell of a home for the contract price of $17,600. Mrs. Haffey paid the sum of $10,000 directly to Respondent and expended a sum of $6,625.93 to complete the house as contracted. She has bills remaining unpaid in the amount of $3,620.50. Spent by Mrs. Haffey above the contract price was $2,648.43. Mrs. Haffey, a contractor, dismissed Mr. Nali, and the house is not yet completed. A claim of lien was filed against Mrs. Haffey's property on behalf of Leesburg Building Materials, Inc., in the amount of $4,384.47. The lien was for materials which had been delivered to the project site and should have been paid for out of the sum previously paid to Respondent. Mrs. Haffey paid $4,000 for the third draw instead of $6,000, as called for by the contract, a fact that prevented Respondent from timely payment of bills. A lien was filed on Mrs. Haffey's property by Keeman Brick of Central Florida, Inc., in the amount of $1,238.03. Respondent admitted he was charged with a criminal violation of misapplication of funds but pled nole contendere, and adjudication was withheld. A document entitled "Stipulation on Motion for Clarification and Modification" was received into evidence. The document constitutes an admission of Respondent that restitution was due from him to the complainants, Mr. and Mrs. Charles Rapp, Mrs. and Mrs. Charles Fosmoen, and Mrs. Ellen Haffey. Petitioner contends that Respondent diverted funds he had received to pay two subcontractors for the Rapp home; that although he may Waive underbid the Rapp and Fosmoen he later also underbid the Haffey contract, which caused these consumers inconvenience and loss and violated a contractor's position of trust. Respondent contends that he could have finished each of the houses within the contract terms, since time was not of the essence. He contended that increased building material costs contributed to the delay of the housing construction, and that he could have finished the houses were he not fired from each of the construction projects. Respondent denied that he had diverted any funds from construction projects. The Hearing Officer further finds: Both Mr. and Mrs. Rapp and Mr. and Mrs. Fosmoen gave Respondent Nali notice that they were dissatisfied because Mr. Nali was not actively finishing the construction of their respective homes. Both gave him notice and an opportunity to recommence active construction, which he did not resume; The dates of completion of homes were not specified in the contracts, but oral promises were given that the homes would be completed within a reasonable time. The delay caused each complainant much inconvenience; Liens were filed against these homes for nonpayment of bills. Respondent did not pay the liens; Each of the three homes cost more than the contracted price before said homes were completed by the parties contracting with Mr. Nali. Mr. Nali received money from Mr. Rapp for work and supplies provided by the Kennedy Company and Yale Ogron Builders, yet Respondent did not pay for these materials or work; and The complainants were justified in dismissing Respondent.
Recommendation Suspend the license of Respondent Robert J. Nali for a period of six months. DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michael Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Joan L. Wollin, Esquire Post Office Box 236 Leesburg, Florida 32748 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 78-2103 ROBERT J. NALI, Respondent. /
The Issue The two major issues in this case are as follows: Was the failure of Datamaxx to submit resumes of training and maintenance personnel as required by Performance Mandatory No. 10 of the Invitation to Bid a material deviation from the Invitation to Bid such as to render Datamaxx a nonresponsive bidder? If Datamaxx was a nonresponsive bidder, must the contract be awarded to Burroughs, or must DHRS, pursuant to Section 13A-1.002(3), Florida Administrative Code, have the contract rebid, or seek single source procurement or negotiation approval from the Division of Purchasing?
Findings Of Fact Based on the admissions of the parties, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence, I make the following findings of fact: For at least the past 10 years, the DHRS Data Communications Network has been maintained by Burroughs on a sole source basis. At the end of the previous Burroughs Terminal Maintenance contract with Burroughs, the Department of General Services (DOS) asked DHRS to bid the contract in lieu of sole source procurement, it being the belief of DOS that there was competition in this area. On or about September 19, 1986, DHRS published an Invitation to Bid which advised prospective bidders that sealed bids would be opened on October 20, 1986, for a contract, known as "Burroughs Terminal Maintenance" [Bid No. 86 ATM] regarding maintenance of the terminals of the DHRS Data Communications Network. The Special Conditions of the Invitation to Bid contained, among others, the following provisions: The State has established certain require- ments with respect to bids to be submitted by bidders. The use of "shall," "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this Invitation to Bid 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 State. Material deviations cannot be waived. (at p. 1) No negotiations, decision, or actions shall be initiated or executed by the bidder as a result of any discussions with any State employee. Only those communications which are in writing from the Department's Purchasing office may be considered as a duly authorized expression on behalf of the State. Also, only communications from bidders which are signed and in writing will be recognized by the State as duly authorized expressions on behalf of the bidder. (at p. 2) All personnel performing maintenance must be trained to service the equipment covered by this contract. Training shall be completed before the individual is assigned to service the equipment covered by this contract. Training shall be provided to whatever level is necessary to ensure the individual has the required qualifications to perform satisfactory maintenance service on Burroughs equipment listed in Attachment A of this Invitation to Bid. Bidder shall submit with their bid a summary of their Burroughs training program and resumes of personnel who will be performing this training and the resumes of personnel who will be per- forming the maintenance. (at p. 8) Bidder shall certify to the State, at the time the bid is submitted, that bidder has existing established service centers staffed with personnel trained to service the equipment covered by this contract . . . In lieu of this requirement, if bidder does not have existing established service centers, liaison office, and trained personnel, and bidder submits a plan for compliance, the required certification must be given the State no later than two (2) weeks prior to the anticipated starting date of the contract as indicated in the paragraph of this document entitled Calendar of Events. Failure to comply with this requirement shall result in rejection of the bid and award of the bid to the next lowest responsive bidder. The Invitation to Bid was drafted by the Department of Health and Rehabilitative Services. The only bidders on the contract (other than no- bids) were Burroughs and Datamaxx. DHRS found Burroughs and Datamaxx both to be responsive bidders and posted their bids making them public in the recognized manner of publicizing the bidder to be awarded a bid. Both bids were found to be responsive by DHRS at the time they were made public. The Datamaxx bid was the lowest bid and the Burroughs bid was the next to lowest bid. DHRS staff recommended the contract be awarded to Datamaxx. The Datamaxx bid was approximately $784,000 less than the Burroughs bid. In its bid Datamaxx indicated that it understood and agreed to all provisions of the Invitation to Bid, specifically including those dealing with Mandatory Requirements, Verbal Instruction Procedure, Rejection of Bids, Bid Evaluation, Performance Mandatories, and Certification. Datamaxx submitted the Certification required under the terms of the Invitation to Bid and did not submit a plan for compliance with its bid. Datamaxx never requested in writing that the requirement for resumes be waived, and DHRS never advised Datamaxx in writing that it did not have to submit the resumes. Datamaxx did not submit with its bid the resumes of training and maintenance personnel required under Performance Mandatory 10 of the Invitation to Bid. Performance Mandatory No. 10 required the submission of resumes with the bid, and did not concern an event that would take place after the bid had been let. DHRS considered the requirement for resumes to be a mandatory requirement. The qualifications of the persons who would be performing the maintenance under the contract would have a potentially significant effect on the quality of the maintenance provided. Nothing could be more material to the contract than the ability of the personnel to perform that contract. The difference in the dollar amount of the bids of Burroughs and Datamaxx influenced the decision of DHRS in finding Datamaxx to be a responsive bidder. This was a major reason Datamaxx was found to be a responsive bidder. In evaluating the Datamaxx bid, DHRS went outside the material provided in the Datamaxx bid. Subsequent to the posting of bids, DHRS met with Datamaxx and advised Datamaxx that its initial submission was deficient for not including resumes with the bid, that DHRS had waived the resumes, but that in order for DHRS to continue its recommendation that the bid be awarded to Datamaxx, DHRS had to have the resumes prior to the awarding of the bid. DHRS considered it an error and a deficiency in the bid that the resumes were not furnished. Datamaxx, on November 6, 1986, advised DHRS in a letter to Charles Ray that it would submit a plan which would address, among other things, service personnel resumes by November 17, 1986. DHRS could not have considered Datamaxx's letter of November 6, 1986, in evaluating whether Datamaxx was a responsive bidder, because that letter was not received until after DHRS had already found Datamaxx to be a responsive bidder and recommended that the contract be awarded to Datamaxx. Had Datamaxx not submitted the resumes prior to November 17, 1986, DHRS staff would have recommended that the award of the contract be withdrawn. The performance the State would receive under the contract would directly depend on the qualifications of the persons performing the service and the maintenance, and the resumes would be the only source of information regarding the qualifications of the personnel.
Recommendation For all of the foregoing reasons, it is recommended that a final order be entered to the following effect: Concluding that the bid submitted by Datamaxx USA Corporation on Bid No. 86 ATM should be rejected on the grounds that it is not responsive, Concluding that the bid submitted by Burroughs Corporation should be rejected on the basis of Rule 13A-1.002(3), Florida Administrative Code, and, Providing for the agency to issue a second invitation to bid/request for proposals or take other action provided by Rule 13A-1.002(3), Florida Administrative Code. DONE AND ENTERED this 25th day of June 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4460B1D The following are my specific rulings on each of the proposed findings of fact submitted by both parties: Findings proposed by Petitioner Paragraphs 1 through 19 are accepted with a few minor editorial modifications. The first two lines of paragraph 20 are rejected as redundant. The remainder of paragraph 20 is accepted. Findings proposed by Respondent Paragraphs 1 and 2 are accepted in substance. Paragraph 3 is rejected as constituting unnecessary details. Paragraphs 4 through 7 are accepted. Paragraphs 8, 9, and 10 are rejected as irrelevant. Paragraph 11 is rejected in part as irrelevant and in part as contrary to the greater weight of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as constituting irrelevant and unnecessary details. COPIES FURNISHED: Robert L. Powell Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
