The Issue The issue in this case is whether the Department of Transportation's proposed award of a contract to Daniels Janitorial Service is contrary to the agency's governing statutes, the agency's rules or policies, or the specifications of the Invitation to Bid (ITB).
Findings Of Fact In April 2004, DOT issued ITB-DOT-04/05-5002-PDW (the ITB) seeking to contract for janitorial services at two state office buildings in DeLand, Florida. The ITB included a "bid blank," upon which vendors were directed to submit their cost proposals. The bid blank was titled "MONTHLY JANITORIAL SERVICES PER SCOPE OF SERVICES." The bid blank included three spaces where each bidder was to provide cost information. The three spaces were titled as follows: "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and "TOTAL YEARLY AMOUNT BOTH BUILDINGS." In response to the ITB, DOT received 18 bids. The bids were opened at 3:00 p.m. on April 29, 2004. The lowest bid was $5,185.76, submitted by Daniels Janitorial Service, including: $4,895.76 for "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," $200.00 for "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and $5,186.76 identified as "TOTAL YEARLY AMOUNT BOTH BUILDINGS." The second lowest bid was $10,686.00, submitted by Jan-Pro Cleaning Systems, including: $9,971.00 for "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," $715.00 for "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and $10, 686.00 identified as "TOTAL YEARLY AMOUNT BOTH BUILDINGS." The third lowest bid was $67,777.77, submitted by the Petitioner. The remainder of the bids ranged between $69,600.00 to as much as $201,464.64. At the time of the opening, Diane Warnock, a DOT District Contract Specialist and Purchasing Agent in charge of the bid opening, observed that two of the bids (the Daniels Janitorial Service and the Jan-Pro Cleaning Systems bids) appeared to be very low in relation to the other bids. Ms. Warnock believed that the two lowest bids submitted were likely set forth on a monthly basis rather than annual amount, and that the bidders had failed to extend the monthly charges to an annual cost. Ms. Warnock contacted David Callaway, a DOT Procurement Analyst with statewide contract responsibilities, to discuss her observations. Mr. Callaway advised Ms. Warnock that she could contact the two low bidders and ascertain whether the bids submitted reflected a monthly or an annual cost. Ms. Warnock separately contacted each of the individuals responsible for submitting the low bids and inquired as to whether the bids reflected a monthly cost or an annual cost. Ms. Warnock learned that each vendor had submitted a monthly bid amount. Ms. Warnock multiplied the monthly amounts submitted by the two vendors by 12 to arrive at an annual cost. On the bid tabulation form, Ms. Warnock included the bid amount submitted by each bidder. For the two bidders who submitted monthly cost information, Ms. Warnock included the monthly costs submitted and the annual cost figures she had calculated. Based on annual costs, the lowest vendor was Daniels Janitorial Service with an annual bid amount of $62,229.12. Section 13.2 of the ITB provides as follows: 13.2 RESPONSIVENESS OF BIDS Bids will not be considered if not received by the Department on or before the date and time specified as the due date for submission. All bids must be typed or printed in ink. A responsive bid is an offer to perform the scope of services called for in this Invitation to Bid in accordance with all requirements of this Invitation to Bid. Bids found to be non- responsive will not be considered. Bids may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A bid may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, modifying the bid requirements, submitting conditional bids or incomplete bids, submitting indefinite or ambiguous bids, or executing forms or the bid sheet with improper and/or undated signatures. Section 13.4 of the ITB provides as follows: 13.4 WAIVERS The Department may waive minor informalities or irregularities in bids received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other bidders. Minor irregularities are defined as those that do not have an adverse effect on the Department's interest and does not effect the price of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order awarding the contract for ITB-DOT-04/05- 5002-PDW to Daniels Janitorial Service. DONE AND ENTERED this 25th day of August, 2004, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2004. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Anthony Payne 1031 Eagles Forrest Drive Apopka, Florida 32712 James C. Myers, Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Whether the Department of Transportation's (DOT) intended decision to award contract T2442 for the Intelligent Transportation System improvements (Project) and other incidental construction on State Road 9A, in Duval County, to American Lighting & Signalization, Inc. (ALS), is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:1/ The contract being protested is T2442 for the Intelligent Transportation System improvements and other incidental construction for State Road 9A, in Duval County. The Department advertised the bid solicitation notice for the Project on July 27, 2012. The bid solicitation notice included a list of all of the pay items and estimated quantities for the project. DOT also posted all of the pay items online in two formats. One format was a downloadable file that could be used in software, and the other was similar to an Excel spreadsheet file. These formats could be used to formulate a bid. Changes to pay items are issued in an Addendum, and while two addendums were issued for this project, neither affected the pay items for the project. For several years, DOT has mandated that prospective bidders use an automated, online bidding process, by which prospective bidders request bid documents and submit their bids using the DOT's website. The letting date established as the deadline for submission of bids via electronic submission was September 26, 2012, and was set forth in the bid solicitation notice. In order to be considered, all bids were due by 10:30 a.m. on that day. Letting is the term used to indicate the date that the bids are due. The bid solicitation notice included a requirement that bidders for the Project attend a mandatory pre-bid meeting to be held on August 20, 2012. Hinson Electrical is a licensed electrical contracting company based in Jacksonville, Florida. The company has completed "hundreds" of projects for the State of Florida, including DOT, and is pre-qualified to bid on jobs with DOT. The mandatory pre-bid meeting was held on August 20, 2012, as scheduled. G. Christopher Ginn, Project Manager for Hinson Electrical, attended the pre-bid meeting, signed his name, and identified the company he represented (Hinson Electrical) on the sign-in sheet. Section 337.168(2), Florida Statutes, provides: (2) A document revealing the identity of persons who have requested or obtained bid packages, plans, or specifications pertaining to any project to be let by the department is confidential and exempt from the provisions of section 119.07(1) for the period which begins two working days prior to the deadline for obtaining bid packages, plans, or specifications and ends with the letting of the bid. As a business strategy, Hinson Electrical routinely orders bid documents within the two-day blackout period mandated by section 337.168(2), during which time DOT is required to take down its list of contractors who have requested bid documents concerning a particular project. Ordering bid documents within the blackout period prevents competitors from discovering whether Hinson Electrical is bidding for a particular project. The blackout period for the Project began at 5:00 p.m. on Friday, September 21, 2012. The deadline to order the bid documents for the Project was 10:30 a.m. on September 25, 2012. There is no requirement that contractors request bid documents prior to the pre-bid meeting (if one is required for a particular project), or at any time prior to the order deadline, which is 24 hours before the bid deadline. DOT acknowledged at hearing that it is Hinson Electrical's prerogative to order the bid documents within the blackout period during which the identities of bidders are kept confidential. Hinson Electrical ordered the bid documents for the Project at approximately 1:00 p.m. on September 24, 2012. The computerized system immediately provided access for Hinson Electrical to download the plans and specifications for the project at issue. However, four minutes later, at approximately 1:04 p.m., Hinson Electrical simultaneously received an email with a "Prequalification Failure Notice," and a second email stating that the bid document request for the Project was "pending." The Prequalification Failure Notice indicated that the bid document was not provided because Hinson Electrical had not attended the required pre-bid meeting for the Project.2/ Failure to attend the pre-bid meeting was the only basis stated in the Prequalification Failure Notice for DOT refusing to provide the bid document. As noted, Hinson Electrical's representative did in fact attend the pre-bid meeting for the Project, and he signed the sign-in sheet, attesting to his presence at the meeting. The sign-in sheet had been transmitted to DOT on August 21, 2012, the day after the pre-bid meeting was held. Thus, DOT's basis for sending Hinson Electrical a Prequalification Failure Notice was in error. The Prequalification Failure Notice also stated, "[Y]ou will be contacted by email or phone as soon as possible during business hours regarding requirements for obtaining the bid documents." However, DOT did not send an email or call Hinson Electrical after 1:04 p.m. on September 24, 2012, or at any time on September 25, 2012. Phillip Davis, a DOT employee in the Contracts Administration Office, was "blind copied" on the Hinson Electrical Prequalification Failure Notice email, with a "high importance" tag. Mr. Davis' job responsibilities include following up on these types of notices, though he is not supervised to ensure this occurs. Mr. Davis' responsibilities also include checking sign-in sheets from pre-bid meetings to authorize release of bid documents to contractors. DOT admits that Mr. Davis did not read the Hinson Electrical Prequalification Failure Notice; did not check the sign-in sheet from the pre-bid meeting; and made no attempt to contact Hinson Electrical, as promised in the notice. From September 20 through 25, 2012, Daniel Hinson and Chris Ginn obtained quotes from suppliers and subcontractors to prepare a bid for the Project. Hinson Electrical also secured a bid bond for the Project, and had everything necessary to submit a bid, except for the actual bid document. In the afternoon or early evening of September 25, 2012, Daniel Hinson sat down at his computer with the price lists and quotes he had obtained to prepare a bid for the Project. It was then that Mr. Hinson discovered DOT had not granted him access to the bid document for this Project, and that the failure notice he had received pertained to this Project, and was in error. Hinson Electrical was bidding on a total of eight contracts at that time, some of which did not have a mandatory pre-bid meeting. As of the close of business on September 25, 2012, DOT had still not made any effort to contact Hinson Electrical, as promised in the failure notice. At 7:55 p.m. on September 25, 2012, Hinson Electrical sent an email to the Contracts Administration general email address, stating that Hinson Electrical's representative had attended the pre-bid meeting and asking why Hinson Electrical was being excluded from the bidding. Shortly after 7:00 a.m. the following morning (September 26, 2012, the bid deadline), Chris Ginn called the project inspector, Thomas Woods of HNTB Corporation, on Hinson Electrical's behalf, and requested that HNTB confirm that Hinson Electrical's representative had attended the pre-bid meeting. At 7:32 a.m. that same morning, Mr. Woods sent an email to Juanita Moore notifying her of the error and confirming that Hinson Electrical's representative had indeed attended the pre-bid meeting. The Contracts Administration Office opened at 8:00 a.m. on the day of the bidding deadline. Within 36 minutes (by 8:36 a.m.), Ms. Moore reviewed Mr. Woods' email; checked the sign-in sheet; and instructed a subordinate, Colette Jackson, to send the bid document to Hinson Electrical. Ms. Jackson immediately sent the bid document to Hinson Electrical under a cover email. Ms. Moore testified that Phillip Davis could have easily gone through these same steps on September 24, 2012 (two days before the bid deadline), and timely transmitted the bid document to Hinson Electrical, if he had only read the Prequalification Failure Notice on which he was copied. Ms. Moore agreed that 24 hours would have been sufficient time for Mr. Davis to check the sign-in sheet and release the bid document. When DOT finally provided the bid document to Hinson Electrical, it was 1 hour, 54 minutes before the bid submission deadline. At 8:40 a.m. on September 26, 2012, (four minutes after receiving the bid document) Daniel Hinson spoke by telephone with Colette Jackson about needing additional time to complete Hinson Electrical's electronic bid submission. Colette Jackson testified that one of her responsibilities at DOT is to move bid deadlines, and that she can do so quickly upon receiving instructions from Ms. Moore to do so. However, Ms. Jackson did not have authority to provide the requested relief, so she transferred the call to Ms. Moore. Upon being transferred to Ms. Moore, Mr. Hinson asked for additional time to complete the Hinson Electrical bid for the Project. That request was refused by Ms. Moore. In her view, the fact that the pay items and estimated quantities for the project had previously been provided should have enabled Hinson Electrical to submit a bid within the two hours remaining prior to the deadline. In addition, Ms. Moore felt Hinson Electrical should have taken it upon itself to contact DOT immediately upon receiving the disqualification notification if it believed it had complied with all prerequisites. Contrary to Ms. Moore's opinion, Mr. Hinson testified that it would have taken him about four hours to go through the various steps to submit Hinson Electrical's online bid for the Project. DOT's position that Hinson Electrical could have completed and submitted its bid with less than two hours remaining is rejected as not credible. However, even if that were possible, it would have put Hinson Electrical at a disadvantage because every other bidder was able to download the bid document immediately upon request after the pre-bid meeting. Daniel Hinson has submitted bids for hundreds of DOT projects (including "dozens" using the current online system) and he reasonably believed there was insufficient time remaining before the deadline to prepare a competent bid and ensure its accuracy. Mr. Hinson's testimony regarding the amount of time necessary to prepare a complete and competent bid for the Project is more credible than the testimony of Ms. Moore. Considering the potential cost to Hinson Electrical of a mistake made in haste, it was entirely reasonable for Hinson Electrical to decline to submit a bid, and instead request a bid extension. Likewise, it was unreasonable for DOT to decline the extension request, given that it was DOT's mistake that necessitated the extension. DOT extends bid deadlines dozens of times each year, for various reasons, including computer issues, mistakes in the bid documents, or bad weather. Ms. Moore testified about bid deadlines that had been moved, three or four times in some cases, for reasons including computer glitches, website issues, and "technical problems." In one such instance, contractors could not obtain their bid documents on the Monday before a Wednesday letting (which is what happened to Hinson Electrical in this case), and DOT postponed the bid deadline. In another instance, a bid deadline was postponed for a third time "because the vendors couldn't download what they needed to bid." And in another example, the bid deadline was postponed with notice provided just 92 minutes before the deadline due to "server issues at the Department." In this final example, once the malfunction was identified, DOT promptly sent the notice of postponement to the bidders and later completed the other necessary steps to move the bid deadline. A postponement notice can be sent to bidders in less than ten minutes after the decision to postpone a bid is made. All other steps required to move a bid deadline are typically accomplished by DOT personnel in about an hour. DOT knows of no harm that would have come to the other bidders had DOT agreed to move the bid deadline to allow Hinson sufficient time to submit its online bid. At 9:22 a.m. on September 26, 2012, Daniel Hinson sent an email to Colette Jackson in response to her email, stating there was insufficient time for Hinson Electrical to prepare its bid for the Project and that a protest would be filed if DOT posted its intent to award the contract to one of the other bidders. The letting of the project occurred as scheduled at 10:30 a.m. on September 26, 2012. At approximately 4:00 p.m. on October 24, 2012, DOT posted notice of its intent to award the contract to ALS. This was the second posting date for the September 26, 2012 letting date. Thereafter, Hinson Electrical timely served its notice of protest, formal protest pleading, and the required bond. The advertisement for the Project reads, in part, "Bidders are hereby notified that all bids on any of the following projects are likely to be rejected if the lowest responsive bid received exceeds the engineer's estimate by more than ten percent (10%)." DOT does reject all bids for being too high in some cases. The bid submitted by ALS for the Project exceeded the proposal budget estimate of $4,183,958 by 19.9 percent (ALS' winning bid was $5,016,501.73). The Contract Award Committee (Committee) is the DOT body with discretion to reject all bids for a project. However, Ms. Moore never informed the Committee of Hinson Electrical's situation so that it could determine whether the Project should be rebid. Even after posting notice of intent to award the Project to ALS, DOT retained discretion to reject all bids, but Ms. Moore was unaware of that discretion and never discussed the matter with the Committee. Hinson Electrical credibly established that it would have submitted a bid of $4,973,361.99 for the Project had DOT provided the online bid document when Hinson Electrical first requested it. Thus, Hinson Electrical would have been the low bidder, and presumably awarded the contract. DOT had at least three opportunities to correct its mistake and allow Hinson Electrical an opportunity to bid. DOT could have (l) extended the bid deadline, as it has in many other cases; (2) rejected all bids and rebid the Project, before posting notice of intent to award the contract; or (3) rejected all bids even after posting notice of intent. In their Prehearing Stipulation, the parties stipulated to the following: DOT has no policy statements, handbook provisions, internal memoranda, guidelines, or other documents regarding the following subjects: How a failure to timely transmit bid documents in response to a prospective bidder's request, whether due to a transmission error or otherwise, should be handled or what relief may be provided to the bidder; Acceptable grounds for extending a bid submission deadline; How an erroneous determination that a prospective bidder for a project was not qualified to bid should be handled, either before or after the bid deadline has expired; Relief that can or should be provided to a prospective bidder who was denied the opportunity to bid for a project due, at least in part, to some irregularity in the bidding process; Relief that can or should be provided to a prospective bidder who was denied the opportunity to bid for a project due, at least in part, to some error made by FDOT (including its computer system); and How to handle a situation in which all received bids exceed the budget for the project by more than 10%. (Prehearing Stipulation, pgs. 11-12)
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Department of Transportation that rescinds the Notice of Intent to award Contract T2442 to American Lighting & Signalization, Inc. DONE AND ENTERED this 21st day of June, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 21st day of June, 2013.
Findings Of Fact On or about February 9, 1983, the State of Florida, Department of General Services, Division of Construction and Property Management, Bureau of Property Management ("DGS"), received a certification of need from the Department of Corrections ("DOC") requesting authority for DOC to advertise for competitive bids from private persons interested in providing leased office space needed to house DOC's Bureau of Industries. The Bureau of Industries was then located in leased space with leases which were scheduled to expire June 30, 1983. The Bureau of Industries has been located in DOC's central office area since its creation in 1957. The DOC central office includes the Secretary and Deputy Secretary; the Assistant Secretaries for Operations, Programs, Management, and Budget. All these officials, together with subsidiary bureaus, staff, and other subordinates are located in two adjacent buildings of the Winewood Office Complex on Blair Stone Road in Tallahassee. The prison industry program is under the supervision of the industries administrator who reports directly to the Assistant Secretary for Operations. DOC sought approval from DGS to enter into a lease for privately owned office space because of its perceived need to locate within walking distance of its central office. Programs administered by the Bureau of Industries work closely with other DOC personnel and functions located in the central office in the Winewood Office Complex. Moving any distance from the central office would create problems for the DOC mailing system and would require extra time spent traveling to and from the central office. Personnel in the Bureau of Industries utilize central office files, and confer often with staff located in the central office. Locating outside the general area of the central office would require additional expenses with regard to availability of vehicles, pick up of mail and supplies, and duplication of support services. Accordingly, DGS and DOC determined, and the record in this cause establishes, that it would not be in the state's best interest to require DOC to locate its Bureau of Industries program either in state-owned buildings in the Capitol Center, or in any area beyond walking distance of the central office location. On March 21 and 31, 1983, respectively, DOC published an advertisement in the Tallahassee Democrat inviting all interested persons to submit sealed bids at or before 2:00 p.m. on April 19, 1983, in accordance with the Invitation to Bid and Specifications prepared by DOC for the office space needed to house the Bureau of Industries. A portion of the bid specifications required that office space to be leased be located within a circle drawn on a city map of the City of Tallahassee, Florida, which could roughly be described as the southeastern portion of the city, in the vicinity of the Winewood Office Complex. There were four possible bidders in the area within the circle on the map attached to the bid specifications. Of these four possible bidders, two within the area actually submitted bids--Blairstone Center Partners and Washington Square, Ltd. One of the general provisions of the bid specifications provided as follows: The Department of Corrections reserves the right to reject any and all bids, waive any minor informality or technicality in bids received and to accept that bid deemed to be the lowest and best. . . At or before 11:00 a.m. on April 19, 1983, DOC received sealed bids from Petitioner and Intervenors in response to the aforesaid advertisement, and at 11:00 a.m. on April 19, 1983, DOC opened, tabulated, and published each of the bids. The bid submitted by Petitioner was not responsive to the requirements of the Invitation to Bid and Specifications because the property offered by Petitioner in its response was outside the area indicated on the map annexed to the Invitation to Bid. The bid submitted by Intervenor, Blairstone Center Partners, failed to offer the full services specified in paragraph six of DOC's Bid Submittal Form; failed to offer the exclusive parking specified in the paragraph seven of the Bid Submittal Form; failed to supply the photographs specified in paragraph ten of Respondent's Bid Submittal Form; and failed to supply the information specified in paragraphs one through eight of the Bid Submittal Form. Accordingly, the record in this cause fully establishes that the bids submitted by Petitioner and by Intervenors Blairstone Center Partners, failed to comply with the requirements of the Invitation to Bid and Bid Submittal Form, and that the deficiencies in the bids of Petitioner and Intervenor, Blairstone Center Partners, were so material as to require their rejection. The Invitation to Bid and Bid Submittal Form required that bidders offer for lease 2,683 square feet, plus or minus three percent. The bid submitted by Intervenor, Washington Square, Ltd., offered 2,797 square feet, which is approximately 34 square feet more than allowed in the Invitation to Bid. After this fact was discovered upon opening the bid, DOC personnel contacted a representative of Washington Square, Ltd., and advised the net square footage offered in the bid submitted by Washington Square, Ltd., exceeded the net square footage of space that DOC was authorized to lease and pay for under the Invitation to Bid. Washington Square, Ltd., subsequently agreed to modify its proposal by relieving DOC from any obligation to pay for the extra 34 square feet, and reducing the annual rental for the first year from $26,012.10 to $25,695.90, and for the second year from $27,576.60 to $27,243.18. The record in this cause does not establish any misconduct or collusion between Washington Square, Ltd., and DOC personnel obtaining this modification, nor does the record in this cause establish that any actual or prospective bidders suffered any competitive disadvantage as a result of this modification. The effect of Washington Square, Ltd.'s modification of its proposal rendered that proposal the only bid which was responsive to the Invitation to Bid. On August 18, 1983, Washington Square, Ltd., executed a deed to the property which was the subject matter of its bid to Ben Grace. Washington Square also executed an assignment of the proposed bid award to Grace.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: In January of 1994, FDOT issued an Invitation to Bid ("ITB") for contracts FE2494Z1 and FE2494Z2 to provide storm shutters for the FDOT facilities in Zones 1 and 2 of the Florida Turnpike. The ITB was entitled "Storm Shutters, Removable, Manufacture, Furnish and Install." Prospective bidders for the contracts were provided with a packet which included General Conditions, Special Conditions, Specifications and General Special Provisions. The General Conditions set forth the procedures for submitting and opening the bids. The Specifications called for custom-sized removable storm shutters and detailed the materials and installation procedures that were required. The bid package contained the following pertinent language in the Special Conditions, Section 1.0, entitled "Description", and in the Specifications, Section 1.0, entitled "Scope of Work": Work under this contract consists of providing all labor, materials, equipment, tools and incidentals necessary to manufacture, furnish and install galvanized steel storm panels and accessories for all of Zone 1 & Zone 2 buildings and locations as identified in the building listing listings document, see Exhibit "A" Zone 1 & Exhibit "A" Zone 2. The bid package contained the following pertinent language in Special Conditions Section 8.1, entitled "Required Documents": Bidders are required to complete and return the State of Florida "Invitation to Bid" form as well as the bid sheet(s). These forms must be signed by a representative who is authorized to contractually bind the bidder. All bid sheets and the "Invitation to Bid" form must be executed and submitted in a sealed envelope. At a mandatory pre-bid conference on February 17, 1994, the Department's representatives were available to answer questions regarding the bid package. During the pre-bid conference, John Vecchio of the Department orally advised the prospective bidders that they should return the whole bid package, including the specifications, when they submitted their bid. No written amendment to this effect was issued. The bids were opened on March 3, 1994 in Fort Lauderdale. Bids were received for each contract from at least three bidders, including Accurate and Hurst. The apparent low bidder for both contracts was Broward Hurricane Panel Co. ("Broward"). Prior to the bids being posted on March 28, 1994, Broward's bid was determined to be nonresponsive and Broward was therefore disqualified. After Broward was disqualified, Accurate was the apparent low qualified bidder for Zone 2 and Hurst was the apparent low qualified bidder for Zone 1. Hurst's bid for the contract for Zone 2 was $85,000. Its bid for the Contract for Zone 1 was $36,000. Accurate's bids for the contracts were $84,854.82 and $36,287.16, respectively. Hurst was awarded the contract for Zone 1 and that decision has not been challenged. At the same time the Department announced the award of the Contract for Zone 1 to Hurst, the Department announced its intent to award the contract for Zone 2 to Accurate. Hurst timely filed a notice of protest and a formal written protest of the proposed award of the contract for Zone 2 to Accurate. Initially, FDOT raised as a defense that Hurst had not posted a protest bond as required by Section 287.042(2)(c), Florida Statutes. At the hearing in this matter, FDOT conceded that Hurst had subsequently posted a protest bond which had been accepted by FDOT. Hurst contends that Accurate's bid should have been deemed nonresponsive because Accurate does not have the ability to "manufacture" the specified product in its own facility. The 2 inch corrugated shutter required by the ITB has to be shaped on a special type of machine that rolls, presses and forms the metal. Hurst owns and maintains at its Opa-Locka facility a rolling mill capable of forming the panels to the bid specifications. Accurate is in the business of supplying the types of products sought by the ITB in this case. However, Accurate does not own the kind of machine necessary to shape the metal. The evidence established that for many years, Accurate has had a continuing business relationship with a local subcontractor, Shutter Express, that rolls, presses and forms raw material supplied by Accurate in accordance with Accurate's specifications. Shutter Express has the capability of fabricating shutters with a 2 inch corrugation in accordance with the ITB. Accurate is equipped to attach the headers and sills, drill the necessary holes, complete the assembly and install the final product. The ITB in this case did not preclude subcontracting any or all of the work specified. While the description of the work in the ITB includes the term "manufacture", this reference should not be read to mean that only those companies that were able to fabricate the entire product at their own facility could properly respond to the ITB. There is no logical justification for such a narrow interpretation. Only a few companies have the ability to completely fabricate the shutters on their own property. At the prebid conference, there was discussion amongst the prospective bidders about subcontracting the fabrication work and the FDOT representatives did not raise any objections to such an arrangement. It was widely understood by the parties present at the pre-bid conference that the Department was not interpreting the ITB in the restrictive manner now urged by Hurst. Such a reading of the ITB would have precluded from the bidding process a number of companies such as Accurate that routinely supply and install shutters. Hurst also contends that the bid proposal submitted by Accurate should be deemed nonresponsive because Accurate failed to include the entire ITB with its proposal in accordance with the oral instructions at the pre-bid conference. Hurst's proposals included the entire ITB. As discussed below, Accurate's proposal did not include the entire ITB. FDOT determined that all essential pages were included in Accurate's response and the evidence did not establish that this conclusion was arbitrary, capricious or fraudulent. Paragraph 6 of the General Conditions of the ITB provided: ADDITIONAL TERMS AND CONDITIONS: No additional terms and conditions included with the bid response shall be evaluated or considered and any and all such additional terms and conditions shall have no force and affect and are inapplicable to the bid. As noted above, at the prebid conference held on February 17, 1994, an FDOT employee told all prospective bidders to return the entire bid package when making their submittals. This request that the entire bid package be returned was simply meant as a protection for the bidder to ensure that all the necessary documents referenced in Section 8.1 of the Specifications were submitted. Other than those documents referenced in Section 8.1 of the Specifications, FDOT had no interest in having the remaining portion of the ITB submitted with a proposal. Accurate's submittal contained every document required by Section 8.1 of the Specifications. Accurate's proposal did not contain pages 3 through 12, 14, 15 and 17 through 20 of the ITB, but did include pages 1 and 2, 13, 16, 21 and 22 along with a signed Form PUR 7068 and a signed acknowledgment of Addendum In other words, the submittal contained a signed and completed Bidder Acknowledgment, completed Bid Price Forms for Zones 1 and 2, a signed copy of Addendum #1, a completed copy of the Ordering Instructions, and a signed, but not notarized, statement regarding public entity crimes. 1/ In addition to the "REQUIRED DOCUMENTS," set forth in Section 8.1 of the Specifications and quoted in Findings of Fact 6 above, the ITB included Section 8.2, "PUBLIC ENTITY CRIMES STATEMENT" which provides: Any person submitting a bid or proposal in response to this invitation should execute the enclosed form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(A), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES, including proper check(s) provided, and submit it with the bid/proposal or within 72 hours of the bid opening. Page 7 of the ITB provided in pertinent part: 10.0 BID PREFERENCE IDENTICAL TIE BIDS - Preference shall be given to businesses with drug-free workplace programs. Whenever two or more bids which are equal with respect to price, quality and service are received by the State or by any political subdivision for the procurement of commodities or contractual services, a bid received from a business that certifies that it had implemented a drug-free workplace program shall be given preference in the award process. . . . Accurate's proposal did not include a certification that it was a drug-free workplace in accordance with this provision. However, such a certification is only used by the Department as a tie-breaker. In other words, in the event of identical bids, any firm with a drug-free workplace would get preference. Since there were no tied bids in this case, certification was totally irrelevant. When the bids were opened, Mary Bailey, the contracts administrator for the Department, noticed that Accurate's submittal was thinner than the others and asked Accurate's representative, Richard Johnson, about the remaining pages. Mr. Johnson replied that the other pages were in his truck and offered to retrieve them. Ms. Bailey told him there was no need to do so. Section 10 of the General Conditions in the bid package provides as follows: As the best interest of the State may require, the right is reserved...to reject any and all bids or waive any minor irregularity or technicality in bids received... It does not appear that Accurate has obtained any competitive advantage as a result of its failure to include the entire ITB with its bid proposals. Even if the oral instructions at the pre-bid conference are deemed to have modified the ITB so that the entire bid package should have been submitted, Accurate's failure to include the entire ITB with its response should be considered a minor technicality, pursuant to Section 10 of the General Conditions cited above, that can and should be waived in evaluating the responsiveness of the bid. Similarly, the failure to have the Form PUR 7068 notarized may have rendered Accurate's bid proposals incomplete, but not necessarily nonresponsive. This oversight can be easily corrected without giving Accurate a competitive advantage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the bid submitted by Accurate to be responsive and dismissing the challenge filed by Hurst. DONE and ENTERED this 24th day of June 1994, at Tallahassee, Florida. J. STEPHEN MENTON 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 24th day of June 1994.
The Issue The issue presented for decision herein is whether or not the Intervenor, V.I.P. Painting and Sandblasting, is the lowest responsible bidder on state project numbers 73906-9004 and 76906-9004. FIMDINGS OF FACT 1..Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings. 2..Petitioner, C-Line Coating, and the Intervenor, V.I.P. Painting and Sandblasting, submitted bids to perform work for the above-referenced projects, which consisted of cleaning and painting all structural steel located in the scale pit areas of the Flagler Beach and Palatka Scales on State Roads 9 and 100, respectively, in Flagler and Putnam Counties. Sealed bids were to be received in the downstairs conference room of the District Office, Department of Transportation, 719 S. Boulevard, Deland, Florida, on February 14, 1985. The bid opening was scheduled to occur at 9:30 a.m. (Deland local time). On February 14, 1985, the bid letting occurred pursuant to notice in an advertisement to prospective bidders. Respondent received bids on said projects from Petitioner and Intervenor prior to 9:30 a.m.; however, the bid from Intervenor was not opened until after the scheduled letting. Intervenor's bid was opened, after notice to all bidders, on February 25, 1985. Of the bids opened by Respondent on February 14, 1985, Petitioner was the apparent low bidder; however, upon later opening the bids submitted by the Intervenor, that bid was deemed the lowest responsible bidder by the Respondent, and the Respondent gave notice of its intent to award the contract to Intervenor. Pursuant to the Notice to Contractors issued by the Respondent, bids or proposals were to be delivered to or mailed to arrive at the Department office designated in the Notice to Contractors prior to the deadline set out in the Notice, which, in this case as stated, was February 14, 1985. The Department office designated on the Notice was 719 S. Boulevard, Deland, Florida. (Respondent's Exhibit 1) Intervenor mailed its bid by certified mail, return receipt requested, to the designated address on February 11, 1985. The U.S. Postal Service placed their first Notice of Receipt of Intervenor's certified envelope containing its bid in the Respondent's post office box on February 13, 1985 sometime after the morning pickup by the District office employee (Respondent). Respondent had Intervenor's bid in its possession on the morning of February 14, 1985, prior to 9:30 a.m., though it was not in the hands of the officer who conducted the bid letting (Thomas George) at the time the bids were opened. (Respondent's Exhibit 2) Lewis Santucci2 left the Deland District office at aprroximately 9:00 a.m. on February 14, 1985 to pick up the mail at the Deland Post Office. Santucci picked the mail up at approximately 9:15 a.m. and arrived back at the District office with the mail pouch at approximately 9':30 a.m. The mail, which contained the Intervenor's bid, was placed in the upstairs mailroom where all bids, etc. are placed at approximately 9:30 a.m. (Respondent's Exhibit 2) Petitioner contends that Intervenor's bid was not a responsible bid inasmuch as it was not placed in an outer envelope which designated the number of the project on the outside of the sealed envelope. In this regard, Mr. George related that Petitioner's bid also did not contain the number of the project involved when Petitioner submitted its bid. Mr. George, however, placed the project number of Petitioner's bid on the envelope which appeared to cure that minor problem. That minor omission, by both the Petitioner and Intervenor, did not cause any confusion in the bid letting and was, at most, harmless error.
The Issue At issue in this proceeding is whether the Department of Environmental Protection's decision to reject all bids submitted for the project entitled BDRS 52-01/02 was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Parties Petitioner, All America Homes of Gainesville, Inc. (All America), is a corporation doing business in the State of Florida. All America submitted a timely written bid in response to the Department's ITB and filed timely protests to the Department's actions. The Respondent, the Department of Environmental Protection, is an agency of the State of Florida which manages and operates state parks under its jurisdiction, and solicits construction projects in state parks, pursuant to Chapter 258, Part I, Florida Statutes, through its Division of Recreation and Parks, Bureau of Design and Recreation Services. The ITB In November, 2001, the Department issued an ITB on a construction project entitled Hillsborough River State Park Concession Building, project number BDRS 52-01/02. The ITB included the Bid Specifications for the project. Bids were required to be submitted no later than 3:30 p.m. on Tuesday, December 18, 2001, at the Bureau's Tallahassee, Florida, office. The written Specifications define several terms, including, but not limited, to the following: ADDENDUM: A written explanation, interpretation, change, correction, addition, deletion, or modification, affecting the contract documents, including drawings and specifications issued by the OWNER [Department] and distributed to the prospective Bidders prior to the bid opening. ALTERNATE BID: Separate optional bid item for more or less project requirement used for tailoring project to available funding. Also may consist of alternate construction techniques. BASE BID: Formal bid exclusive of any alternate bids. BID FORM: The official form on which the OWNER requires formal bids to be prepared and submitted. ORAL STATEMENTS: Verbal instruction. NOTE: No oral statement of any person, whomever shall in any manner or degree modify or otherwise affect the provisions of the contract documents.[1] SEALED BID: The formal written offer of the Bidder for the proposed work when submitted on the prescribed bid form, properly signed and guaranteed. The Bid Specifications also contained the following relevant sections: Alternatives If the OWNER wishes to learn the relative or additional construction cost of an alternative method of construction, an alternative use of type of material or an increase or decrease in scope of the project, these items will be defined as alternates and will be specifically indicated and referenced to the drawings and specifications. Alternates will be listed in the bid form in such a manner that the Bidder shall be able to clearly indicate what sums he will add to (or deduct from) his Base Bid. The OWNER will judge for himself that such alternates are of comparable character and quality to the specified items. The Order of the alternate may be selected by the Department in any sequence so long as such acceptance out of order does not alter the designation of the low bidder. ADDENDA If the Consultant[2] finds it would be expedient to supplement, modify or interpret any portion of the bidding documents during the bidding period, such procedure will be accomplished by the issuance of written Addenda to the bidding documents which will be delivered or mailed by the OWNER'S Contracts section to all bidders who have requested bidding documents. Interpretation No interpretation of the meaning of the drawings, specifications or other bidding documents and no correction of any apparent ambiguity, inconsistency or error therein will be made to any Bidder orally. Every request for such interpretation or correction should be in writing, addressed to the Consultant. All such interpretations and supplemental instructions will be in the form of written Addenda to the bidding documents. Only the interpretation or correction so given by the Consultant in writing and approved by the OWNER shall be binding, and prospective Bidders are advised that no other source is authorized to give information concerning, or to explain or interpret, the bidding documents. B-16 Bid Modification Bid modification will be accepted from Bidders, if addressed as indicated in Advertisement for Bids and if received prior to the opening of bids. No bid modification will be accepted after the close of bidding has been announced. Modifications will only be accepted if addressed in written or printed form submitted with the bid in sealed envelopes. Telegrams, facsimiles, separate sealed envelopes, written on printed modifications on the outside of the sealed envelopes will not be accepted. All bid modifications must be signed by an authorized representative of the Bidder. Modification will be read by the OWNER at the opening of formal bids. B-21 Rejection of Bids The OWNER reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the bid of a bidder who the OWNER determines is not in a position to perform the work. B-23 Award of Bid . . .The qualified Bidder submitting the lowest bid will be that Bidder who has submitted the lowest base bid plus any selected alternates. . . . The OWNER reserves the right to waive any minor irregularities in bids received when such waiver is in the interest of the OWNER. The Award of Bid will be issued by the OWNER only with responsible Bidders, found to meet all requirements for Award of Bid, qualified by experience and in a financial position to do the work specified. Each bidder shall, if so requested by the OWNER, present additional evidence of his experience, qualifications and ability to carry out the terms of the Agreement. (Emphasis in original, except for Section B-10.) The Bid Form is included with the Specifications and provides in part: Base Bid: Furnish labor, equipment, Lump Sum $ supervision and material to construct a new concession building of 2940 square feet located at the Hillsborough River State Park along with the alteration of the existing concession building according to plans and specifications. Alternate #1: Furnish labor, equipment, Add Amt.$__ supervision and material to renovate the existing concession building according to plans and specifications. There is a separate section for "Allowances," i.e., Section 01210, for the Hillsborough State Park. This section provides in part: SECTION 01210 – ALLOWANCES * * * 1.2 SUMMARY This Section includes administrative and procedural requirements governing allowances. Certain materials and equipment are specified in the Contract Documents and are defined by this [sic] specifications as material and labor to be provided against a pre-determined allowance. Allowances have been established in lieu of additional requirements and to defer selection of actual materials and equipment to a later date when additional information is available for evaluation. If necessary, additional requirements will be issued by Change Order. * * * 3.3 SCHEDULE OF ALLOWANCES A. Allowance #1: Include in the base bid an allowance for the purchase and installation of. . . kitchen equipment. . . . The total dollar amount of the allowance to be included shall be $12,000.00. There is also a separate section for "Alternates," i.e., section 01230, for Hillsborough River State Park, which provides in part: SECTION 01230 – ALTERNATES * * * 1.3 DEFINITIONS Alternate: An amount proposed by bidders and stated on the Bid Form for certain work defined in the Bidding Requirements that may be added to or deducted from the Base Bid amount if OWNER decides to accept a corresponding change either in the amount of construction to be completed or in the products, materials, equipment, systems, or installation methods described in the Contract Documents. The cost or credit for each alternate is the net addition to or deduction from the Contract Sum to incorporate alternate into the Work. No other adjustments are made to the Contract Sum. . . . . 3.1 SCHEDULE OF ALTERNATES A. Alternate No. 1: Renovate the existing concession building in its entirety as shown in the drawings and specified herein. (emphasis added.) At this stage of the bidding documents, the contractor/bidder is requested to provide a Base Bid/Lump Sum on the Bid Form to "[f]urnish labor, equipment,. . .to construct a new concession building," and to provide an additional and separate amount for Alternate No. 1 to "[f]urnish labor, equipment, . . . to renovate the existing concession building." On December 13, 2001, the Bureau issued "Addendum No. One (1)" (written by the architect) to the ITB on the "Hillsborough River State Park – Concession Building." The Addendum contained the following relevant sections: Specification Section 01210: Allowances Add the following new paragraph 3.3.B: ”Allowance #2: Include in the base bid an allowance for the renovations of the existing concession building; renovations shall be defined by the Owner. The total dollar amount of the allowance to be included shall be $25,000." Specification Section 01230: Alternates Modify paragraph 3.1.A. as follows: "Alternate No. 1: Renovate the existing concession building as defined by the Owner, and as provided for under Section 01210, Allowances." (emphasis added.) Each contractor was required to sign the Addendum and attach it to the bid. By definition, and pertinent here, an addendum is an additional written instruction to a contractor during the bidding process. Based on the weight of the evidence, the purpose of this Addendum was to require the contractor to include a $25,000.00 Allowance (for Allowance # 2) in the Base Bid, for the work which might be performed if the Department requested the work to be performed for Alternate No. 1, i.e., for the renovation of the existing concession building.3 (The Department's architect decided it would cost approximately $25,000.00 to renovate the existing concession building, hence Allowance # 2.) In other words, the Addendum does not have a specific dollar amount to be included for Alternate No. 1. Rather, the $25,000.00 is an Allowance for the work described as Alternate No. 1, but the amount is to be included in the Base Bid and not as a separate line item, dollar amount. But, importantly, the Addendum did not delete the potential work to be performed as described in Alternate No. 1, although Mr. Bowman and others believed that the Addendum deleted Alternate No. 1. It deleted the necessity to place a specific dollar amount on the Bid Form for Alternate No. 1. (Mr. Bowman is a registered Professional Engineer and a licensed contractor. He has worked for the Department for 15 years and has served as Bureau Chief for two years. He supervises the contract section and the design section, which was responsible for preparing the technical plans and specifications and bidding out the job.) Mr. Bowman offered the following explanation why he believed the Addendum was confusing: Okay. I think the confusion that was created, you know, I think the addendum in itself, you know, said add $25,000 to the base bid, but then on the bid form, it still had the space down there for alternate number one, which alternate number one, which alternate number one had become $25,000 that was to be allowed for the concession building, and I think that's where the confusion came in because I think they were still confused, that they weren't really sure that they should not put that 25 down there but they knew they had been told in the addendum to do it and I think that's the reason for the notes and we got to the correspondence on the bid form, was they wanted to make sure that that's what we were wanting to do. And I think that's where the confusion came in. Like I said, it's always, if you could go back and do it again, it would be much wiser just to issue a whole new bid form and then we wouldn't be here today. But, we didn't do that. Okay. So, that's why we are here. The language in this Addendum, when read with the original Bid Specifications, apparently caused confusion with some of the bidders on the project. Several bidders called Marvin Allen (an architect and project manager for the Department's Bureau of Design and Recreation Services) prior to the submission of the bids, to clarify how the $25,000.00 Allowance should be shown on the Bid Form. (Mr. Allen did not author any of the specifications, including the Addendum.) He was listed as a contact person. He did not contact any bidders. But, Mr. Allen recalled telling each bidder who asked that the Allowance of $25,000.00 should be included in the Base Bid. But, he does not recall the names or numbers of the bidders who called, "possibly" three, four or five. Mr. Allen believed the Addendum was clear. According to Mr. Allen, the bidders who called him found the Addendum confusing. The oral responses to the bidders can be construed as interpretations of the Addendum. However, pursuant to Section B- 10 of the Specifications, any such interpretations were required to "be in the form of written Addenda to the bidding documents." Also, any such questions should have been in writing. If Section B-10 were complied with, all bidders would have been potentially on the same footing, or, at the very least, would have had access to a written clarifying document. Opening of the Bids On December 18, 2001, the bids were opened by Mike Renard, Contracts Manager with the Bureau of Design and Recreation Services, and Susan Maynard, Administrative Assistant. Mr. Dwight Fitzpatrick, a representative of All America, also attended the bid opening. The Bid Form submitted by Nelco showed a Base Bid of $355,478.00 (Lump Sum $355,478.00), and also showed an amount of $25,000.00 on the Alternate # 1 line (Add Amt. $25,000.00). See Finding of Fact 6. (It was clear to Mr. Renard that the $25,000.00 should have been included on Nelco's Base Bid. But Mr. Renard believed that Nelco submitted a responsive bid because the Department only accepted the Base Bid. Mr. Bowman agreed.) Nelco was the only one of five bidders to have a dollar amount in the Alternate #1 line under "Add Amt. $ ." All America submitted the second lowest Base Bid of $362,000.00. There was also a hand-written note on the All- America Bid Form that stated: "Addenda # 1 instruction to place $25,000 allowance in both Base Bid and as alternate # 1." Another hand written note was located below the "Add Amt. $-0-" line: "amount added in Base Bid with $25,000 allowance per Marvin Allen." The Department considered All America's bid responsive. It is a fair inference that three out of five of the other Bid Forms contained language indicating that the bidders were relying on Addendum No. One by placing the $25,000.00 Allowance in the Base Bid.4 It is uncertain whether they did so in light of the instructions of Mr. Allen concerning how to complete the Bids Forms. However, given the nature of the calls to Mr. Allen, there is a reasonable inference that there was some confusion among some of the bidders. The Department determined that Nelco submitted the lowest Base Bid, but the Department's staff had a question as to whether Nelco had included the $25,000.00 in its Base Bid. After conferring with his superiors, Mr. Renard was instructed to call Nelco to make certain that its Base Bid included the Allowance amount ($25,000.00). Mr. Renard spoke with Steve Cleveland, Nelco's Project Manager, "to verify the fact that [Nelco] had the allowance in their base bid." Mr. Cleveland orally confirmed that Nelco's Base Bid included the $25,000.00 Allowance. Mr. Renard asked Mr. Cleveland to send him a letter verifying this statement. Mr. Renard viewed this inquiry as a request for clarification or verification, not an opportunity for Nelco to modify its bid. Mr. Bowman agreed. (Mr. Renard did not believe Addendum No. 1 was confusing.) In a letter dated December 20, 2001, Mr. Cleveland confirmed that Nelco’s Base Bid of $355,478.00 included the Allowance amount and that Nelco could still perform the contract if the $25,000 Allowance was removed from its Base Bid pursuant to the ITB, i.e., that Nelco would perform the contract for $355,478.00 less $25,000.00, or $330,478.00, if the Department did not accept Alternate # 1 and the Allowance. (An alternate does not have to be accepted by the Department.) According to Mr. Renard, Mr. Cleveland never mentioned modifying, changing, or altering Nelco's bid. The Department only accepted the Base Bid for each bid. Mr. Renard did not consider it unusual to call a bidder or contractor to verify information to determine whether they can or cannot perform the work at the stipulated price. He considered it common to make this inquiry. Also, it was common in Mr. Bowman's experience to call a bidder to get clarification. Mr. Renard was not aware of any statute or rule which authorizes the Department to request clarification from a bidder after the bids are opened. Mr. Renard was more familiar with the bid forms than Mr. Allen. After receiving Mr. Cleveland's letter, the Department determined that Nelco submitted the lowest Base Bid and that the $25,000.00 amount that Nelco wrote on the Bid Form Alternate # 1 line, was a minor irregularity in the bid which the Department, as the Owner, could waive pursuant to the ITB. On December 20, 2001, the Department posted the Tabulation of Bids showing the anticipated award of the contract to Nelco. At the hearing, an unsigned letter on Department letterhead was introduced, which was addressed to Nelco and stated that Nelco submitted the apparent low bid. However, Mr. Renard testified that these letters are prepared routinely, but not mailed out without his signature. Mr. Renard did not recall signing the letter or ever sending out such a letter to Nelco. On December 21, 2001, the Department received a Notice of Intent to Protest letter from Allen E. Stine, the President of All America. In his letter, Mr. Stine stated that Nelco’s bid should have been rejected for failure to follow the specified format as per Addendum No. 1, or adjusted to have the $25,000.00 amount added to their Base Bid. Bid Protests All America filed a written formal bid protest on January 4, 2001. On January 9, 2001, Cindy Otero of All America, notified Mr. Renard by letter, and stated that Mr. Stine was available for a hearing regarding the bid protest. On January 28, 2002, Mr. Renard returned All America's check for the bond, stating that it was unnecessary. Mr. Stine recounted a number of unanswered telephone calls after the first protest was filed. During one conversation, Mr. Renard recalled Mr. Stine saying to him, "You can't do this, you can't do this." After receiving the first formal protest, the Department staff consulted with legal staff and reviewed the documents and bid procedures. Based on the number of questions received concerning the Addendum and the hand-written notes on several of the bid forms, Mr. Bowman, Bureau Chief, determined that the bid documents were confusing and ambiguous. (Mr. Bowman stated that this was their first bid protest in his 15 years with the Department.) Therefore, Mr. Bowman decided that it would in the best interest of the State of Florida to reject all of the bids pursuant to the Bid Specifications. Mr. Bowman felt that the ITB should be re-written in order to make it clearer and allowing all of the bidders to re-bid the project without any confusion or ambiguity. Mr. Stine stated that his "senior estimator" told him that the bid language "could be confusing." He and his "senior estimator" had a discussion about whether the Allowance should have been placed in the Base Bid or not. At the time of submission of All America's bid, Mr. Stine was clear that the Allowance should be placed in the Base Bid, especially after calling Mr. Allen. But, his senior estimator was not so clear. In order to appease him, Mr. Stine placed the hand-written note on All America’s proposal. Mr. Stine essentially, "cleaned" up his proposal. At the hearing, Mr. Bowman testified Rule 60D-5.0071, Florida Administrative Code, see Conclusion of Law 59, does not list "confusing or ambiguous bid specifications" as one of the circumstances allowing for the rejection of all bids. However, Mr. Bowman later stated during the hearing that he believed the circumstances listed in Rule 60D-5.0071 were not the only circumstances authorizing the Department to reject all bids. Mr. Bowman testified that he believed that general confusion among the bidders caused by the ambiguous ITB constituted sufficient grounds for rejecting all bids. Mr. Bowman was advised by legal counsel that rejecting all of the bids would probably result in another bid protest by Nelco, All America, or both. Thus, the Department decided to delay addressing All American’s first protest until after posting the rejection of all bids and receiving the subsequent protests, so that all of the protests could be resolved at once in an efficient and economical manner. Notwithstanding the Department's justifications for rejecting all bids and not proceeding on All America's initial protest, the record is unclear why the Department waited several months to reject all bids. On May 13, 2002, the Department posted the rejection of all bids. On May 16, 2002, the Department received a formal written protest of the rejection of all bids filed by All America. On May 17, 2002, Jerome I. Johnson, attorney for the Department, contacted Mr. Robert A. Lash, All America's counsel at the time, concerning the resolution of All America’s formal protest. (Before the final hearing, Mr. Lash, with All America's consent, withdrew as counsel for All America.) The parties agreed to suspend formal bid protest procedures until a meeting could be held between the parties in an attempt to resolve the protests. Mr. Johnson sent a letter dated May 21, 2002, to Mr. Lash confirming this conversation. On June 26, 2002, a meeting was held among the Department staff, legal staff, and Mr. Lash and Mr. Stine, representing All America. The parties were unable to resolve the protests. At the conclusion of the meeting, the parties agreed that formal protest procedures would not be implemented until Mr. Stine could confer further with his counsel. In a letter dated July 5, 2002, Mr. Lash stated that his client wished to proceed with formal protest procedures and requested an administrative hearing on the protests. Are the Specifications and Bid Documents Ambiguous and Was There Confusion? The parties stipulated that "[t]he Addendum language was confusing," notwithstanding the testimony of several witnesses that they were not confused. The Department's determination that the bid Specifications, including the Addendum, and the Bid Form, which remained unchanged after the Addendum was issued, were confusing and ambiguous, is supported by the weight of the evidence. This is particularly true regarding the Bid Form. The Addendum required the bidder to include an Allowance of $25,000.00 in the Base Bid for work described as Alternate # 1. But the Bid Form was unchanged to reflect the Addendum changes. The Bid Form retained a line for the bidder to submit an additional amount for Alternate # 1. Further, it appears that several bidders were confused, including, Mr. Stine, who spoke with Mr. Allen and requested and received clarification. Further, it is unclear whether all of the bidders, including Nelco, were aware of the oral interpretations or clarifications of the Addendum rendered to some of the bidders. Rejection of All Bids Based upon the foregoing, given the standard of review in this proceeding discussed in the Conclusions of Law, the weight of the evidence indicates that the Department's action, in rejecting all bids, was not illegal, arbitrary, dishonest, or fraudulent. The Department's staff was well-intended and made some mistakes along the way, e.g., by not changing the Bid Form, which they readily admit. But there was a rationale for rejecting all bids under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department issue a final order dismissing All America’s Petition to Prevent Rejection of Bids and Award Contract to Petitioner and denying All America's request for attorney’s fees and costs. DONE AND ENTERED this 24th day of September 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September 2002.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The School Board of Palm Beach County advertised for sealed bids for a project consisting of structural modifications and reroofing at Atlantic Community High School, project no. 000881600. All bidders were required to be prequalified by the School Board prior to the bid opening and had to exhibit evidence that similar work of equivalent magnitude had been accomplished prior to this bid. Language in the bid advertisement notified potential bidders that the School Board reserved the right to waive minor informalities in the bids, or to reject all bids. On April 5, 1989, the bids for the Atlantic Community High School (Atlantic) project were opened and a tabulation performed. All bidders had been prequalified by the School Board and had properly submitted the required bid bond. The results of the bid tabulation established GRI as the lowest bidder, Anderson second, and Milne & Nicholls third. Only three bids were timely received. The amount indicated on the GRI bid was stated only in numbers, not written in words. The written numbers, however, were clearly noted and GRI has, at all times, stated it intends to be bound by the figures listed. No error in the amount has been suggested. On April 5, 1989, Dr. Louwers, as contract administrator for the School Board, notified GRI that its bid for the Atlantic project had been deemed nonresponsive. The basis for this determination was GRI's failure to submit the bid book intact, failure to submit bid Form 00420 at the time of the bid opening, the lack of a warranty letter at the time of the bib opening, and the failure to state the price of the bids in words. GRI sought review of the determination that it had been nonresponsive and an informal hearing was conducted on April 11, 1989. As a result of that hearing, GRI'S bid was deemed responsive and all bidders were notified. Thereafter, Anderson timely challenged the intended bid award to GRI. At the time of the bid opening, GRI did not submit its bid book intact. Instead, GRI submitted the proposal form with the amounts indicated for each section together with the bid bond. The bid proposal form required the bidders to indicate an amount in several categories. These categories included a base bid and six alternates numbered 1 through 6. The amounts listed by all bidders were tallied and are specified on joint exhibit no. 10. GRI's bid was the lowest of the three bids received. Once the bids were opened, and it was determined who the three low bidders were, GRI immediately submitted its list of major subcontractors on Form 00420. Within 24 hours of the bid opening, GRI submitted its list of subcontractors and suppliers, Form 00430. Pertinent to this case are the following provisions found in the Instructions to Bidders, section 00100 of the bid package: BIDDING PROCEDURES: 3.01 All bids must be prepared using the forms contained in these specifications and submitted in accordance with the Instructions to Bidders. * * * 3.05 Preparation and Submission of Bid Proposal Form: Each bidder shall use Proposal Form contained in these specifications, indicate his bid prices thereon in proper spaces, for the entire work and for the alternates. Proposal Forms shall remain attached to the specifications.... Each proposal shall specify a unit price written in ink in both words and figures, * * * (d) The specification book is to be left INTACT, the cover signed by the Contractor, the proposal bid guarantee (Certified Check or Bid Bond) to be signed and filled out in the specification book which will be enclosed in a sealed envelope which shall be marked: * * 3.10 Subcontractors: At the time of the bid opening each bidder submitting a bid shall have in his possession a written list of the major subcontractors; namely, structural metal work and metal covering, structural manufacturer, lightweight insulating concrete, plumbing, HVAC, and electrical, whom he proposes to use on this work. The three (3) apparent low bidders will be required to submit Form 00420 (list of major subcontractors) to the Owner at the time of the opening of the bids.... Within 24 hours of the bid opening, the apparent low bidder shall submit Form 00430 (list of subcontractors and suppliers), completed in full to the Owner. Failure to submit these lists within the time period specified herein shall result in a non- responsive bid. * * * 6. REJECTION OF BIDS: 6.01 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 documents, or if the bid is any way incomplete or irregular; to reject the bid of a bidder who is not in a position to perform the contract; and to re- advertise for other or further bid proposals. In addition to the foregoing, the apparent three lowest bidders were required to submit certifications to verify information regarding the roofing system included in their proposals. These certifications included: a certification verifying that the pre-engineered metal roofing system had been tested and approved by Underwriter's Laboratory as Class 90; a dealer certification verifying the supplier is a manufacturer's authorized and franchised dealer of the roofing system to be furnished including the date on which authorization was granted; an installer certification specifying that the installer had been regularly engaged in the installation of pre-engirieered metal buildings of same or equal construction to the system proposed including a list of successful installations performed within 200 miles of West Palm Beach, Florida; and a manufacturer's certification verifying that the manufacturer will provide warranties in accordance with the bid specifications. These certifications were to be provided with Form 00430, within 24 hours of being determined an apparent low bidder. GRI did not provide the certifications identified in paragraph 8 within 24 hours of April 5, 1989; however, all certifications were submitted prior to the final hearing in this cause. GRI was not deemed responsive by School Board personnel until after the informal hearing conducted on April 11, 1989. The letter to GRI notifying it of the results of the informal hearing was dated April 19, 1989. The issue of the certifications, therefore, did not arise until Anderson sought to challenge the decision reached by the informal hearing (that GRI was responsive). Anderson submitted all data required by the bid package at the time of the bid opening or within 24 hours of being determined an apparent low bidder. Anderson submitted the bid package intact and complete. According to bark Lottes, the project architect for the Atlantic bid, the manufacturer's certification required to be submitted within 24 hours of the the bid package was to assure the School Board that it would obtain the warranty designated in the bid specifications. Typically, a warranty is not issued until the work is completed. The purpose of the manufacturer's certication is to verify that the warranty, when issued, will be of the type and terms designated by the bid package. No structural deck replacement will be required for the Atlantic job. A general contractor would be required to perform structural deck replacement. GRI listed a general contractor, Mancini Building, among its list of subcontractors and suppliers. The roofing system proposed by GRI is to be manufactured by Varco- Pruden. The installer to perform the structural metal work for the roofing system proposed by GRI is Bretsnyder Netals, Incorporated (Bretsnyder). Bretsnyder has prior experience with metal roofs of the type designated by this bid project. Varco-Pruden has acknowledged Bretsnyder to be an authorized installer of the Varco-Pruden roofing system proposed by GRI. Varco-Pruden has provided a certification that it will warranty the roofing system pursuant to the bid specifications. GPI is registered as a roofing contractor with Gregg Wallick as its licensed roofing contractor. Anderson is a registered general contractor.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Palm Beach County enter a final order awarding the bid for the Atlantic project, project no. 000881600, to GRI, Inc. as the lowest responsive bidder. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division ofAdministrative Hearings this 23rd day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2175BID Rulings on the proposed findings of fact submitted by Anderson: Paragraphs 1 through 3, 5, 6, 7, and 8 are accepted. Paragraph 4 is rejected as irrelevant or immaterial. Whether or not a general contractor is required to perform portions of the work for the Atlantic project is irrelevant to the resolution of the issue in this case. First, because a general cortractor was listed among GRI's subcontractors (the list of which was timely filed) and second, because the weight of the testimony established the project to be roofing in nature with no structural work required. Paragraph 9 is rejected as argument or unsupported by the weight of the evidence in this cause. Rulings on the proposed findings of fact submitted by the School Board: Paragraphs 1 through 15 are accepted. Paragraph 16 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by GRI: Paragraphs 1 through 4 are accepted. Paragraph 5 is accepted to the extent that it states the GPI bid to be lowest; however, as to the exact amount of the difference, it is rejected as contrary to the weight of the evidence. Paragraphs 6 through 8 are accepted. Paragraph 9 is rejected as argument. To the extent that the paragraph is addressed in findings of fact paragraphs 4 and 5, it is accepted. Paragraph 10 is accepted. Paragraph 11 is rejected as conclusion of law or argument except as provided in paragraphs of the preliminary statement, together with paragraphs 6, 8, 9, 12, and 13. COPIES FURNISHED: Jack S. Cox Merola, McCarthy & Cox, P.A. 4114 Northlake Boulevard Suite 301 Palm Beach Gardens, Florida 33410 Robert A. Rosillo Associate Counsel School Board of Palm Beach County 3323 Belvedere Road P.O. Box 24690 West Palm Beach, Florida 33416-4690 Nathan E Nason Gary N. Gerson Nason, Gildan, Yeager & Gerson, P.A. Post Office Box 3704 West Palm Beach, Florida 33402 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road P.O. Box 24690 West Palm Beach, Florida 33416-4690
The Issue : The issue to be resolved in this proceeding concerns whether the agency action in recommending award of the contract for a renovation of a National Guard Armory to Concrete Services, Inc. (CSI) was "clearly erroneous, contrary to competition, arbitrary or capricious." More specifically, it must be determined whether a specification requiring that all general and subcontractors visit the project site and examine the existing site conditions prior to bid submittal, and certifying to that fact, was a waivable or minor irregularity, not affecting the price of the proposal by giving an unfair competitive advantage to any bidder or proposed vendor.
Findings Of Fact The Department of Military Affairs (Department) issued an invitation to bid for certain renovation work at the National Guard Armory in Tallahassee. The invitation to bid was issued on March 2, 2008. It was accompanied by an advertisement number 207005 and addenda No. 1-3. These were the documents that defined the scope of the work proposed to be constructed by the Department and the various specifications, conditions, and criteria which were to guide and be relied upon by prospective vendors or bidders. The invitation to bid stated that the contract would be awarded to the lowest responsive and responsible bidder. The invitation to bid notified prospective bidders that the Department reserved the right to waive minor irregularities in a bid where they did not affect the price of the proposal. Thus, the Department stated in the Invitation to Bid "the Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award with or without further discussion of the proposals submitted or accept minor informalities or irregularities in the best interest of the State of Florida, which are considered a matter of form and not substance and the correction or waiver of which is not prejudicial to other proposals." The reasons stated in the Invitation to Bid and Addenda for disqualification of a bidder did not include the failure of the contractor or subcontractors to visit the project site. Rather, the invitation to bid and advertisement list placed on the discriminatory business list, the submission of an electronic bid and employment of unauthorized aliens as irregularities that would result in disqualification of a bidder. The invitation to bid defines minor irregularities as "those that will not have an adverse effect on the DMA's interest and will not affect the price of the proposal by giving a proposer an advantage or benefit not enjoyed by all other proposers." The Department thus did not make failure of a contractor or subcontractor to visit the site of the project an event that would result in disqualification. The Department's intent rather was to place contractors on notice that failure to visit the site would be at the sole risk of the general contractor/bidder if failure to visit the site resulted in an unforeseen problem, cost, or risk. The Department stated at Addendum 1, D-9 the following: D-9 site examination by contractor: The general contractor and all subcontractors as listed on Exhibit Five, shall visit the project site and examine the existing conditions affected by this work prior to submitting a bid. Any bid submitted without prior examination of on-site existing conditions will be at the sole risk of the general contractor. The contractor shall submit on its letterhead the following at time of bid, certifying that he and his subs thoroughly examined the project site: 'I (name of general contractor), do hereby certify that all associated general and subcontractor entities have visited the project site and thoroughly examined the on- site existing conditions prior to the submittal of the bid.' Lt. Col. Keating is the contract officer and manager. His duties include reviewing the bids and making final determination on bid proposals submitted to the Department for projects such as this renovation project. He reviewed the entire package of bid submissions after the bid opening in Tallahassee. These are his duties concerning every bid opening of the Department. Lt. Col. Keating reviewed the failure of CSI to submit the Addendum D-9 letter and determined that the absence of the letter did not give CSI an unfair competitive advantage. He determined that this was a minor irregularity which was waivable. Mr. Hersey was the construction consultant for the Department for this project. Mr. Hersey reviewed the CSI file after the bids were submitted, noting that CSI's bid did not include all the verbiage required by Addendum One, D-9. He determined, however, that the proposed included the "Exhibit 4" document which stated that CSI had "visited the site of the proposed project and familiarized himself with the local conditions, nature, and extent of the work." Mr. Hersey brought this omission to Lt. Col. Keating's attention. Lt. Col. Keating considered the failure of CSI to submit the Addendum 1, D-9 letter language and determined that the omission did not give CSI an unfair competitive advantage over other bidders and therefore that it was a minor irregularity. He determined that the fact that there was language in the bid submittal of CSI to the effect that the contractor had visited the site and familiarized himself with conditions, nature, and scope of the work made the bid actually responsive. The failure to include the language required in Addendum 1, D-9 did not render the bid unqualified or non- responsive, but, instead, the failure to include that language would have the consequence of making CSI responsible for any loss caused by the failure to visit the project site or have the subcontractors visit the project site before bidding. If that omission caused any additional cost or unforeseen circumstances which had a cost attributable to them, CSI would have to bear the risk of paying for any such expense itself under the terms of the specifications. It was thus determined that the failure to visit the site had the consequence of making the contractor assume resulting risks but was considered by the Department to be a quality assurance measure in the specifications, instead of a determining or qualifying factor for award of the project. Lt. Col. Keating determined that the failure to submit the required language in the letter did not give CSI an unfair competitive advantage. CSI's bid was $1,866,212.00. The bid of the Petitioner, Warren Building Company, Inc., was $1,944,000.00. Thus, CSI's bid was $77,788.00 lower than the bid submitted by the Petitioner Warren. In preparing his bid submittal, the Petitioner had not been charged by his subcontractors for their visiting the Tallahassee project site. His entire cost of submitting the response to the invitation to bid on behalf of Warren, was $10,000.00 or less. Thus, the failure by CSI to have subcontractors visit the site and evaluate the work was clearly not shown to have saved CSI costs, in an amount anywhere approaching the total difference in the amounts of the two bids. Only if the avoidance of such costs represented by the visits of the contractor and subcontractors to the job site was greater than or at least approximately equal to the $77,788.00 difference between the two bids, would the failure of CSI to entirely comply with this specification result in a change in the relative competitive positions of the two bidders. Put another way, there was no evidence to show that had CSI completely complied with the disputed specification, that it would not still have much the lowest-priced responsible and responsive bid. It was thus determined by Lt. Col. Keating that the $1,866,212.00 bid submitted by CSI was the lowest responsible and responsive bid. He therefore determined that the award of the contract should be give to CSI and an Agency decision to that effect was posted on April 11, 2008. The subject protest and proceeding ensued.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Military Affairs, awarding the contract for renovation work at the National Guard Armory in Tallahassee, Florida (No. 207005) to Concrete Services, Incorporated. DONE AND ENTERED this 20th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2008. COPIES FURNISHED: Thayer M. Marts, Esquire 1105 Hays Street Post Office Box 1814 Tallahassee, Florida 32302 Kim F. Heller, II, Esquire Elizabeth C. Masters, Esquire Florida National Guard Post Office Box 1008 St. Augustine, Florida 32085-1008 Elizabeth C. Masters, Lt. Colonel Florida Army National Guard 82 Marine Street St. Augustine, Florida 32084
