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.
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.
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 The issue in this case is whether the bid specifications, together with other applicable authority, require that a bid, in order to be responsive, contain any written list of subcontractors.
Findings Of Fact On September 26, 1989, Respondent issued a document entitled, Specifications for Replacement of Air Conditioning, West Orange High School, Winter Garden, Florida, Engineers Project No. 89-016. As amended by three addenda, the above-described specifications shall be referred to as the "ITB." Respondent duly advertised for bids ore September 26, October 3, and October 10, 1989. The advertisement did not state that Respondent reserved the right to waive minor irregularities. In response to the ITB, Florida Mechanical, Inc. ("FMI") and B & I Contractors, Inc. ("B & I") timely submitted bids. For the base work and alternate 1, which Respondent ultimately decided to select, FMI bid $1,439,000, B & I bid $1,438,000, and a third bidder, S. I. Goldman, Company bid $1,621,000. These bids are recorded on a Bid Tabulation Sheet prepared by the engineer retained by Respondent for the project. The Bid Tabulation Sheet contains eight columns. Four columns record bid amounts for the base work and various alternates. The remaining columns are entitled, "Bidder," "Bid Bond," "Addenda," and "Subs." Each of the three bidders were named in one of the rows beneath the "Bidder," column. Each bidder had one "X" in its "Bid Bond" column and three "X"s in its "Addenda" column. However, only FMI and S. I. Goldman Company had "X"'s in their "Subs" columns. By resolution adopted on November 29, 1989, Respondent directed that all bids were rejected and that the Superintendent would correct any ambiguities and uncertainties in the ITB and solicit new bids. The resolution noted that Respondents staff had recommended that, if any bid were accepted, it should be that of B & I. However, [FMI] submitted with its bid a list of Major Sub-contractors of the form displayed in the [ITB], and B & I did not submit wish its aid a list of Major Sub-contractors[.] The resolution concluded that Respondent based on advice of staff and counsel, found that the [ITB is) ambiguous and/or uncertain as to whether or not a bidder must submit along with his bid a list of Major Sub-contractors, (b) that because of such ambiguity and/or uncertainty, it would be unfair and/or improper for [Respondent] to accept either of the bids received by it, and (c) that as a result thereof [Respondent] should reject all bids received by it for ,the Project and should solicit new bids for the Project as soon as is reasonably feasible after correction by [Respondents] staff of any ambiguity and uncertainty as aforesaid in the [ITB]. FMI and B & I each timely filed a notice of intent to protest and formal written protest of Respondent's decision to reject each company's respective bid. S. I. Goldman did not protest the decision and is not a party to the subject case. At a meeting on December 12, 1989, Respondent elected to refer the bid protests to the Division of Administrative Hearings for a formal hearing., At the beginning of the hearing, the parties filed a written stipulation, which stated that the only issue for determination was which Petitioner should be awarded the contract and not whether Respondent should seek further bids or award the contract to another bidder. The stipulation also stated that the Petitioners and Respondent agreed to abide by the recommendation of the hearing officer. At the hearing, the parties further stipulated that the sole issue for determination is whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. In addition, the parties stipulated that both Petitioners had standing and the protests were timely and sufficient. The ITB requires that each bidder familiarize itself with all federal, state, and "Local Laws, ordinances, rules, and regulations that in any manner affect the work." Under the section entitled, "Preparation and Submission of Bids," the ITB states: "Each bidder shall use the Bid Form that is inserted herein, and may copy or reproduce the form on this own letterhead." Among other requirements, the ITB requires two bonds. The first is a "bid guarantee" of at, least five percent of the amount of the bid. The form of this guarantee may be cash or a Bid Bond." The other bond described in the ITB a 100% public construction bond. The surety on this bond must have been admitted to do business in Florida, must have been in business and have a record of successful continuous operation for at least five years, and must have at least a Bests Financial Rating of "Class VI" and a Bests Policyholder Ration of "A." The Bid Form contained in the ITB is two pages. Among other things, the Bid Form requires that the bidder receiving written notice of acceptance of its bid must provide the prescribed payment and performance bond and execute the contract within ten days after notification. The next document in the ITB is a single page entitled, "Form of Bid Bond." The provisions on this page identify the A.I.A. document to use and state that the Bid Bond "shall be submitted with the Bid Proposal Form." The next document in the ITB is a single page entitled, "List of Major Subcontractors." The List of Major Subcontractors states: Bidders shall list all major subcontractors that will be used if a contract is awarded. Additionally, bidders shall identify in the appropriate box whether or not that trade specialty is minority owned. Another paragraph defines minority ownership. The remainder of the form consists of ten rows for the "bidder" and nine major subcontractors, such as concrete, electrical, HVAC, and controls, and blanks where the bidder can indicate which of these entities are minority owned. The next document in the ITB is the Owner-Contractor Agreement, which is followed by tie Form of Construction Bond, General Conditions, and Supplementary General Conditions. Section 7.11 of the Supplementary General Conditions establishes certain requirements to be performed after the submission of bids. This section provides: Pre-Award Submittals: Before the Contract is awarded the apparent low bidder shall provide the following information to the owner. A copy of the Contractors current State of Florida General Contractor's or Mechanical Contractors License. Pre-Construction Meeting. After the Notice to Proceed and within eight (8) business days of the Owner [sic], the Contractor shall meet with the Owner, Engineer and Subcontractors that the Owner may designate... The Contractor shall provide the following to the Owner. * * * 2. A written list of all Subcontractors, material men and suppliers with such information as requested by the Owner or Engineer. * * * The remaining documents in the ITB are the technical specifications for the job. The three addenda supply additional technical information not relevant to this case. Respondent has promulgated rules with respect to the bidding process ("Rules"). The ITB does not refer to the Rules, which define and use many terms that are found in the ITB. For instance, Rule 1.1.25 defines the phrases, "Performance and Payment Bond," which is the same phrase used in the Bid Form in the ITB. The Rules define several other capitalized terms that are also used in the ITB, such as Bid Bond, Bid Guarantee, Bidder, and Contractor. Rule 4.1 similarly states that the bidder is familiar with federal, state, and "Local Laws, Ordinances, Rules and Regulations that in any manner affect the Work." Rule 6.1 describes the process by which a bidder is to prepare and submit bids and the Bid Guarantee in language similar to that contained in the ITB. Rule 6.2 discusses the listing of subcontractors. Rules 6.2.1 and 6.2.2 state: General Contractor shall include as an integral part of his bid a List of Subcontractors he proposes to use. The Bidder shall enclose this list in a 4" x 9" envelope, sealed and marked "List of Subcontractors" and identified ... The Bidder shall enclose said envelope with his bid proposal in the mailing envelope. The List of Subcontractors enclosed with tee Proposal of each Bidder will be examined by the ... Engineer before the Proposal is opened and read. In the event that the form is not properly executed and signed, the Proposal of that Bidder will be returned to him unopened... Rule 6.3 requires a Statement of Surety as another "integral part" of each bid. Rule 6.3.3 states: The Statement of Surety will be opened examined by the ... Engineer prior to the opening of the Proposal.... Although similar to Rule 6.2, Rule 6.3 lacks the warming that if the Statement of Surety is not "properly executed and signed, the Proposal of that Bidder will be returned to him unopened." Rule 19.1 sets forth the requirements, for the surety. These requirements are different than those set forth in the ITB. Rules 19.1.1 and 19.1.2 require, as does the ITB, that the surety be admitted to do business in the State of Florida and shall have been in business and have a record of successful continuous operations for at least five years. However, Rule 19.1.1 requires that the surety be represented by a reputable and responsible surety bond agency licensed to do, business in the State of Florida and have a local representative in the Orlando area. Rule 19.1.3 requires minimum Bests ratings of "A" in "management," and, as to "strength and surplus," "AAA+" in financial rating and $12,500,000 minimum surplus. Rule 19.1.3.3 also requires that the surety be listed on the U.S. Treasury Departments Circular 570. The bids of FMI and S. I. Goldman Company contained a completed List of Major Subcontractors. The bid of B & I did not. No bidder included a Statement of Surety with its bid.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Orange County enter a Final Order awarding the subject contract to Florida Mechanical, Inc. ENTERED this 15th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of FMI All of FMI's proposed findings have been adopted or adopted in substance. Treatment Accorded Proposed Findings of B & I 1-4: adopted or adopted in substance. 5: adopted, except that the staff recommended that, if the bid was to be awarded, that it be awarded to B & I. 6: adopted in substance. 7: rejected as conclusion of law and, to the extent fact, subordinate. 8-12: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as subordinate. 18: rejected as unsupported by the greater height of the evidence. 19-21: rejected as subordinate. 22: rejected as beyond the scope of the issues and irrelevant in view of the stipulation. In the stipulation, the parties agreed that the issue to be addressed would not be whether the intended agency action of Respondent was lawful (i.e., not arbitrary, fraudulent, dishonest, or otherwise improper), but rather whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. COPIES FURNISHED: James L. Schott, Superintendent The School Board of Orange County, Florida P.O. Box 271 Orlando, FL 32802 Charles Robinson Fawsett, P. A. Shutts & Bowen 20 North Orange Avenue Suite 1000 Orlando, FL 32801 James F. Butler, III Smith, Currie & Hancock 2600 Peachtree Center Harris Tower 233 Peachtree Street, N.E. Atlanta, GA 30043-6601 William M. Rowland, Jr., Esq. Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue P.O. Box 305 Orlando, FL 32803
The Issue Whether the Department of Management Services acted arbitrarily, fraudulently, illegally or dishonestly in rejecting the bid proposed by Petitioner Stimsonite Corporation; and Whether the Department of Management Services' proposed award of a contract to Minnesota Mining and Manufacturing, Inc. was arbitrary, illegal, fraudulent or dishonest.
Findings Of Fact On or about October 30, 1995, DMS mailed to interested vendors ITB No. 20-550-590-A for Sign Material, Reflective Sheeting & Related Materials. Stimsonite and 3M were among the vendors who received copies of the ITB. After receiving the ITB, no interested vendor, including Stimsonite and 3M, requested that DMS clarify any of the ITB's general or special terms and conditions. Similarly, no one timely filed any protest to challenge any ITB terms or conditions. On or about December 28, 1995, DMS opened the bids submitted in response to the ITB. Thereafter, DMS evaluated the bids and determined which were responsive to the ITB requirements. Stimsonite and 3M were the only vendors to submit bid prices for ITB Item Nos. 13, 15, and 22, which pertain to reflective sheeting. DMS's bid tabulations reflect that 3M and Stimsonite offered the following bid prices, per square foot, for reflective sheeting under ITB Item Nos. 13, 15, and 22: Item No. 13 15 22 Stimsonite $3.5489 $3.2199 $3.2199 3M $3.588 $3.25 $3.25 On or about January 23, 1996, DMS posted the bid tabulations. DMS's bid tabulations specify an NAS (not as specified) code indicating reasons why it rejected certain bids. Stimsonite's bids on ITB Item Nos. 13, 15, and 22 were rejected as non-responsive with an indication of NAS Code 1. NAS Code 1 provides: "Vendor did not submit diskette as required by the bid." Stimsonite admittedly did not include a computer diskette with its 1995 bid. Because of the absence of the diskette, the Stimsonite bid had neither a price list nor a material list. No responding vendor, except 3M, included a computer diskette in response to the 1995 ITB. l3. DMS consistently rejected all bids submitted in response to its 1995 ITB which failed to include the required computer diskette(s). In evaluating the 1995 bids, DMS reviewed the material list information that 3M submitted with its bid in hard copy and on computer diskette. DMS posted its intent to award the bid to the only fully responsive bidder, 3M. Shortly after DMS posted the 1995 bid tabulations with its intent to award to 3M as the only responsive bidder, Stimsonite urged DMS to accept a materials list that Stimsonite had prepared on computer diskette. DMS refused to accept this diskette, which Stimsonite was offering nearly a month after the 1995 bid opening date. DMS rejected Stimsonite's late offering of the diskette because it was offered after bid opening, because it was offered after evaluation of bids, and because DMS's intent to award already had been posted. However, the greater weight of the evidence is that Stimsonite's after-offered diskette would not have met the 1995 ITB specifications even if it had been submitted simultaneously with Stimsonite's bid response. The after-offered diskette failed to offer the required size widths of reflective sheeting or the accessory items used with the sheeting such as process colors, inks, clears, and thinners. Stimsonite timely challenged the rejection of its 1995 bid as non- responsive and timely challenged DMS's intent to award the contract to 3M. Stimsonite contended, with regard to its failure to timely submit a conforming diskette, that the clear language of the 1995 ITB did not require the submission of a diskette for the items Stimsonite had chosen to bid on, and that submission of such a diskette could legitimately be made only by the successful bidder after bid opening. The 1995 ITB, which is at issue in this proceeding, contains the following Special Conditions directly related to a material list on Page 4: FORMAT FOR SUBMISSION OF BID On all bids which require any of the following documents: Manufacturer's or Dealer's Published Price Lists, Authorized Dealer's List Authorized Service Center Locations. Bidder shall provide these documents, with his bid, in a letter quality text response and with computer diskette media. The format for the computer diskette media shall be: WordPerfect 5.1 file format using an IBM Compatible Personal Computer, On 8-1/2" x 11" paper with portrait orientation, Margins: Left: minimum .3 inch; Right: minimum .8 inch, Top & Bottom: minimum .5 inch, Font: Courier 10 cpi, 3.5 or 5.25 inch diskette media, No landscape, No Tables or Columns, No Line Draw, No pictures, No strike- throughs and No Graphics allowed. These documents shall be submitted in hard copy as well as on 3.5 or 5.25 inch diskette media. [Failure to comply with this requirement will result in disqualification of your bid.] [Emphasis supplied] MATERIAL LIST A material list shall be provided on diskette formatted as specified in the Special Cond- ition "FORMAT FOR SUBMISSION OF BID" along with a print out of same for each item bid. The information must include product number for color, and size specified sheeting under the DMS thirteen (13) digit commodity number. If prices are included on the materials list they must be contract prices. [This list may be included on the same diskette as "Format for Submission of Bid" listed above.] (Emphasis supplied) Some other provisions of the 1995 ITB which affect the issues in this case are as follows: General Condition 4(b) on page 1 of the ITB specifies: ELIGIBLE USERS: Under Florida Law use of State contracts shall be available to political sub- divisions (county, local county board of public instruction, municipal or other local public agency or authority) and State Univer- sities, which may desire to purchase under the terms and conditions of the contract. General Condition 5 provides: ADDITIONAL TERMS AND CONDITIONS: No addition- al terms and conditions included with the bid response shall be evaluated or considered and any and all such additional terms and condi- tions shall have no force and effect and are inapplicable to this bid. If submitted either purposely through intent or design or inadver- tently appearing separately in transmittal letters, specifications, literature, price lists or warranties, it is understood and agreed the general and special conditions in this bid solicitation are the only conditions applicable to this bid and the bidder's autho- rized signature affixed to the bidder acknow- ledgment form attests to this. General Condition 7 states: INTERPRETATIONS/DISPUTES: Any questions con- cerning conditions and specifications shall be directed in writing to this office for receipt no later than (10) days prior to the bid opening. Inquiries must reference the date of the bid opening and the bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full comp- liance with this provision. . . General Condition 15 states: LEGAL REQUIREMENTS: Applicable provisions of all Federal, State, county and local laws, and of all ordinances, rules and regulations shall govern development, submittal and evalua- tion of all bids received in response hereto and shall govern any and all claims and dis- putes which may arise between person(s) hereto and the State of Florida, by and through its officers, employees and authorized represent- atives, or any other person natural or other- wise; and lack of knowledge thereof shall not constitute a legal defense against the effect thereof. General Condition 26 provides that: [THE SUCCESSFUL BIDDER(S) MUST PROVIDE: a copy of any product literature and price list, in excellent quality black image on white paper.] [Emphasis supplied] On the bottom of page 2, after the list of General Conditions, there is a note which states: [ANY AND ALL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE.] THIS SHEET AND THE ACCOMPANYING BID CONSTITUTE AN OFFER FROM THE BIDDER. IF ANY OR ALL PARTS OF THE BID ARE ACCEPTED BY THE STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, AN AUTHORIZED REPRESENTATIVE OF THE DIVISION OF PURCHASING OF THE DEPARTMENT OF MANAGEMENT SERVICES, SHALL AFFIX HIS SIGNATURE HERETO, AND THIS SHALL THEN CONSTITUTE THE WRITTEN AGREEMENT BETWEEN PARTIES. THE CONDITIONS OF THIS FORM BECOME A PART OF THE WRITTEN AGREEMENT BETWEEN THE PARTIES. [Emphasis supplied] Page 2A of the ITB contains a Vendor Bid Preparation Checklist. No. 16 thereof reminds all bidders to review the FORMAT FOR SUBMISSION OF BID for compliance with bid requirements. After the list of General Conditions, the Special Conditions begin on page 3 of the ITB. Among the Special Conditions of note in addition to the FORMAT FOR SUBMISSION OF BID and MATERIAL LIST, stated above, are: PURPOSE: ...to establish a 12 month contract by all State of Florida agencies and other eligible users ... TECHNICAL DOCUMENTATION: ... When technical documentation is required by this ITB, its pur- pose is to demonstrate compliance of the pro- duct bid with applicable technical require- ments of the ITB and to allow a technical evaluation of the product. [Failure to provide the required technical documentation with the bid submittal shall make the bidder nonre- sponsive], unless the Division of Purchasing, in its sole discretion and in the best inte- rest of the State, determines the accept- ability of the products offered through technical documentation available within the Division [as of the date and time of bid opening]. ... [Emphasis supplied] ACCESSORIES: [Inks, colors, clears, and thinners, required for use with non-perfor- ated commodities shall be included in the price per square foot bid price.] [Emphasis supplied] BALANCE OF LINE: [The bidder shall bid a balance of line which will include options and accessories at a fixed discount. Only vendors awarded specified sheeting items will be eligible for a balance of line award. Items in the balance of line which are dupli- cative of those specified will be deleted. The balance of line price list must be in effect on the date and time of the bid opening]. [Emphasis supplied] The Specification Summary and Bid Price Sheets for bidding items 13, 15, and 22 of the ITB are found on pages 25, 26, and 27 of the ITB and were as follows: SPECIFICATION SUMMARY AND PRICE SHEET COMMODITY NUMBER AND DESCRIPTION NET DELIVERED PRICE 550-590-350-0100 Sheeting, not perforated, reflective, Type IIIA, or Type IIIC sizes 1" through 48" by 50 yds, with a precoated pressure sensitive adhesive backing (Class I). Primer Not Required. Sheeting (Both Types) shall be available in no less than the following colors: blue, brown, green, yellow, and silver-white. Sheeting Manufacturer: Product No./Series: FDOT Qualified Products List Approval No. $ PER SQ. FT. (13 [Inks, colors, clears and thinners for use with non-preforated commodities shall be in- cluded in the per square foot price bid]. [Emphasis supplied] VENDOR: SPECIFICATIONS SUMMARY AND PRICE SHEET COMMOD- ITY NUMBER AND DESCRIPTION NET DELIVERED PRICE 550-590-350-0120 Sheeting, not perforated, reflective, Type IIIA, or Type IIIC sizes 1" through 48" by 50 yds, with a precoated pressure sensitive adhesive backing (Class I). Primer Not Required. Sheeting (Both Types) shall be available in no less than the following color: orange Sheeting Manufacturer: Product No./Series: FDOT Qualified Products List Approval No. $ PER SQ. FT. (15 [Inks, colors, clears and thinners for use with non-preforated commodities shall be included in the per square foot price bid.] [Emphasis supplied] VENDOR: SPECIFICATION SUMMARY AND PRICE SHEET COMMODITY NUMBER AND DESCRIPTION NET DELIVERED PRICE 550-590-760-2600 Reflective sheeting, construction barricade sheeting, Type IIA, or IIIA, or IIIB, or IIIC pressure sensitive adhesive backing (Class I). 4" or 6" orange and white or orange and silver strips running diagonally across the sheeting at a 45 degree angle, size 12", 24" and 36" by 50 yds. Sheeting Manufacturer: Product No./Series: FDOT Qualified Products List Approval No. $ PER SQ. FT. (22 [Inks, colors, clears and thinners for use with non-preforated commodities shall be in- cluded in the per square foot price bid.] [Emphasis supplied] VENDOR: After the item-by-item specifications, the ITB provides a page (page 39) of specification summary and price sheet for bidding the "balance of line discount offered for directly related sign material, not specified on the Bid Price Sheet." That format requires that the bidder state a fixed percentage discount from the price list for balance of line items. "Balance of Line" as used by DMS in the ITB refers to any and all accessories that might be used with the individual Items that are bid. Stimsonite's bid supervisor claimed that Stimsonite's failure to submit a diskette containing a material list was a reasonable, and indeed a clear and unambiguous, reading of the 1995 ITB. He had read the ITB to provide that the three categories of list (a manufacturer's or dealer's published price list, authorized dealer list, or authorized service center location list) which were named under the Special Condition, FORMAT FOR SUBMISSION OF BID, on page 4 were required to be submitted on a diskette with the bid, but he also considered that the diskette was not required for the three items that Stimsonite bid upon (Items 13, 15, and 22 on pages 25, 26, and 27 at Finding of Fact 20 supra) because none of the categories of list under FORMAT were required specifically within those Item No. specifications on the subsequent specification pages. Apparently due to the admonition at the bottom of ITB page 2 of the General Conditions [see Finding of Fact 19(f)], he assumed that the Item No. instructions on the specifications and price summary sheets on pages 25, 26, and 27 took precedence over, i.e. supplanted, the Special Condition MATERIAL LIST paragraph requiring a material list for every item in both hard copy and on diskette which also included the requirement of including product numbers for color, size, and DMS commodity numbers. Stimsonite's bid supervisor also asserted that because the Special Condition MATERIAL LIST paragraph and the Item No. specifications of pages 25, 26, and 27 did not specifically reiterate that the material list diskette must be submitted with the bid, the material list diskette legitimately could be submitted after the bid award, as was attempted by Stimsonite. He ostensibly interpreted General Condition 26, applicable to successful bidders, to mean that only successful bidders must provide a price list and a material list. Accordingly, Stimsonite further argued in the alternative that even if the ITB could be construed to require submission of a material list on diskette, Stimsonite's failure to submit the diskette to DMS with the rest of its bid response was only a minor irregularity unworthy of being ruled unresponsive because DMS had no substantive need for the information on the material list diskette until it decided which bidder was going to be the successful bidder. The bid supervisor's perception that the information on the diskette was not needed for bid evaluation purposes was another reason he ostensibly did not timely submit a diskette. Stimsonite has not asserted that late submission was a waiveable irregularity. 1/ In fact and to the contrary, the diskette is used by DMS to evaluate bids for responsiveness. This evaluation technique was introduced in 1994. It allows the reviewer, in this case, Ms. Boynton, to use the material list on the diskette to determine if each bidder has actually bid everything DMS asked for in the item by item specifications. Without a diskette, the reviewer cannot confirm that a bid matches the ITB. DMS uses the bidder's material list on diskette to confirm that the bidder currently manufactures the full range of sheeting widths and sizes (1 inch through 48 inches by 50 yards), as the ITB requires, which is a nonstandard range in the reflective sheeting industry. Additionally, DMS uses the material list diskette to confirm that the bidder proposes to make the full range of required sheeting widths and sizes available to state and local government purchasers. (See General Condition (4)(b) ELIGIBLE USERS and Special Condition PURPOSE in the ITB) DMS also uses the material list diskette to ensure that the bidder will make the required range of inks, clears, colors, and thinners available at the bid price. After the bid has been awarded, Ms. Boynton also uses the diskette for dissemination to contract users for ordering purposes on the electronic contract system. The diskette system saves DMS the time and cost of wordprocessing data from hard copy and avoids transcription erors. This was one of the purposes behind DMS' decision to start requiring a diskette in 1994. It comports with General Condition 4(b) ELIGIBLE USERS and Special Conditions PURPOSE. The Stimsonite bid supervisor did not have a manufacturer's price list and was not offering any accessories other than those inks, etc. covered under the Special Condition ACCESSORIES paragraph and those stated on pages 25, 26, and 27. Therefore, he did not read the Special Condition BALANCE OF LINE paragraph saying duplicates listed on page 39 for balance of line would be disregarded by DMS as an indicator that DMS expected any balance of line bids to include more than just the inks, etc. listed under ACCESSORIES and on pages 25, 26, and 27. Because he could not conceive of any balance of line more extensive than the inks, etc. which seemed to him to be excluded by the language on the specifications summary and price sheets for each Item No. (ITB pages 25, 26, and 27) and the balance of line summary and price sheet (page 39), and because Stimsonite was offering these inks, etc. within the price per square foot of sheeting at no extra charge on pages 25, 26, and 27, Stimsonite's bid supervisor felt that the diskette was not needed to evaluate these prices. Therefore, when he showed a balance of line on the balance of line summary sheet (ITB page 39) he showed no discount and he submitted no material list or price list on diskette. The ITB required a discount if a balance of line was offered under Special Condition BALANCE OF LINE. According to DMS employees, a price list was only necessary if a balance of line was bid. If a balance of line was bid, then a price list was necessary. The result of Stimsonite's interpretation of the 1995 ITB was that Stimsonite submitted a bid without a diskette which therefore contained neither a price list nor a material list. The hard copy offered a balance of line with no discount from a price list. Responsiveness in bidding Item Nos 13, 15, and 22 in 1995 did not require that vendors submit an authorized dealer's list or service center location list. The ITB used the language "shall submit" with regard to bidding a balance of line, but according to Ms. Boynton, the evaluator, and Mr. Barker, Chief of DMS's Bureau of Procurement, submission of a balance of line was not mandatory. Ms. Boynton speculated that if DMS did not get a balance of line bid from a responding bidder, DMS "might possibly find it was a minor irregularity." Clearly, the ITB provided that if there were any duplications on the balance of line offering, the agency could unilaterally delete them. However, if a vendor did bid a balance of line, DMS would need a price list, since with a balance of line and no price list, there was no way to evaluate the bid because DMS then could not calculate what the percentage reduction would be based upon. Therefore, under this situation in 1995, Stimsonite's balance of line bid with no price list on diskette was rejected as nonresponsive. 2/ The greater weight of the credible evidence, particularly but not exclusively that of Ms. Boynton, Mr. Barker, and Mr. Johnson, is that allowing any bidder to turn in the diskette after bid opening and award would give that bidder the advantage of changing the balance of line prices. If permitted to submit the material list after award, the bidder could elect to offer only one size which would impose an additional cost on the contract users to provide labor and expertise to cut to size, thus lowering the bidder's cost. Under a scenario which required only successful bidders to submit a diskette, DMS would not have the opportunity to reject the bid if the information on the diskette was nonconforming to the bid specifications. The bidder who delayed or never submitted a diskette also could exclude cities and counties from the cost-saving electronic contract system and could take telephone orders from the Department of Transportation, one of the agencies eligible to tie-in to DMS's electronic contract. Requiring a diskette only after award might permit the successful bidder to limit the sizes and colors offered. By not submitting a diskette at all, even late, a bidder could even disqualify its bid and back out of the contract if that bidder unilaterally decided its bid was too low or if the price of raw materials increased. Experience with successful bidders who ultimately failed to submit a material list at all was another reason for DMS's decision to start requiring a diskette in 1994. Any of the foregoing situations creates an advantage to the bidder who files a diskette late or the bidder who never files a diskette. Any of the foregoing situations increases costs to the state agency and contract users. Factually, this is a material irregularity. Stimsonite alleged that 3M was unresponsive because its bid transmittal letter contained a paragraph on terms and conditions of sale and warranties. However, it appears that the warranty language in 3M's transmittal letter actually enhances its bid. Also, it is standard practice for DMS to ignore these letters pursuant to ITB General Condition 5, which states that transmittal letter variances are of no force and effect. Factually, since 3M's letter cannot be relied upon by 3M either to enhance or diminish its bid, and since all such letters are disregarded in the bid evaluation/tabulation, the transmittal letter is a minor, nondisqualifying irregularity as to the 3M bid. Stimsonite asserted that the 3M diskette was not responsive to the ITB specifications. There is no dispute that the diskette 3M submitted was in the wrong font. However, since font size can be customized by a "click" on a computer mouse, and since Ms. Boynton was able to use 3M's diskette for the purposes intended by the ITB specifications, the irregular font size of 3M's diskette is found factually to constitute an immaterial flaw not worthy of declaring 3M's bid nonresponsive. Finally, Stimsonite contended that because the 3M bid failed to answer an ITB question that requested information about why a vendor's price list was item by item higher or lower than previous years, the entire 3M bid was unresponsive. This contention was not acknowledged as viable by the agency witnesses. DMS, like 3M, viewed this question as only information gathering for some cost trend analysis by the agency apart from bid evaluation. The information requested could not alter the bid price offered by 3M and is not necessary to DMS's evaluation of its bid or comparison of its bid with other bids. It is a flaw systematically ignored by the agency in bid evaluation. There was no evidence that any bid has ever been rejected for such a flaw. The absence of such information does not affect the cost to the agency nor does its absence provide an advantage to 3M. Factually, it is a minor irregularity.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services enter a final order ratifying its award of ITB 20-550-590-A Item Nos. 13, 15, and 22 to Minnesota Mining and Manufacturing, Inc. and dismissing the bid protest Petition of Stimsonite. RECOMMENDED this 14th day of June, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1996.
The Issue The first issue to be determined is whether the BOARD can reject all bids, with or without cause. The second issue is to determine if the BOARD is required to have cause, was there a sufficient basis for the rejection of all bids in Bid NO. 3996?
Findings Of Fact On December 14, 1987, the BOARD sent invitations to bid to a list of approved vendors in Bid NO. 3996. The purpose of the invitation was to obtain the lowest responsible bid on a purchase of one hundred and fifty typewriters. The bids were to be submitted prior to January 11, 1988 at 2:00 P.M.. They were opened by the BOARD on the same day. OFFICE did not receive an invitation to bid despite its request to be placed on the approved vendor's list in November of 1987. When OFFICE learned of the outstanding invitation to bid, its representative, Mr. Richard Foss, went to the BOARD's Purchasing Department and requested a bid package. The bid documents given to OFFICE mistakenly gave January 14, 1988 at 2:00 P.M. as the deadline for the bid submission. Because of the later date given by the BOARD to OFFICE, the company's bid was received after the opening of the bids. When the results of the bidding were made known at the public bid opening, NAPLES bid was the lowest received. On January 14, 1988, after 10:42 A.M., it was discovered by the BOARD that OFFICE's bid price was lower than the price submitted by NAPLES. At this time, NAPLES bid had not yet been accepted by the BOARD, and no formal announcement had been made awarding the contract to NAPLES. During the BOARD's Purchasing Department's bid analysis, a request was made to reject all bids in Bid NO. 3996. The reason given by Purchasing for the request for rejection was that the specifications were being revised. The bids were rejected on the same date. The written reason sent to the vendors on January 14, 1988 for the bid rejection was that one vendor had been given an incorrect opening date. Attached to the written notice to the vendors was a new bid invitation for Bid NO. 4013. The BOARD explained its mistake was unfair to the one vendor. A new bid opening date was given of February 1, 1988. On January 14, 1988, in addition to the required bid documents, OFFICE submitted a letter which listed additional offerings or incentives that OFFICE would give the BOARD if OFFICE was awarded the contract. These additional purchasing incentives were: wall charts and teacher/student manuals for each typing classroom in the county. OFFICE also informed the BOARD that one of the BOARD's own service personnel was already trained in the servicing of Swintec typewriters. The bid submitted by OFFICE did not meet either the weight or the print wheel specifications as set forth in Bid NO. 3996. The specifications as written in Bid NO. 3996 were not written to eliminate all other typewriters but the Brothers 511-11. Weight specifications required were below the Brother's minimum weight, and at least two other manufacturers provide protected drop-in cassette print wheels in electronic typewriters. The Invitation to Bid contained specific provisions which encouraged the bidding of typewriters other than the Brother 511-11, and set up procedures under which other typewriters, which substantially meet the specifications, could be reviewed on their merits. NAPLES was the lowest responsible bidder for the electronic typewriter contract in the prior school year. The BOARD had rejected all bids at that time because of the decision to consider a different brand of typewriter once bids were opened. A notice of protest was filed by NAPLES, and the BOARD agreed to honor NAPLES bid and award the company the contract. The BOARD revised its bid specifications from last year prior to its solicitations for bids in Bid NO. 3996. The protected drop-in cassette print wheel and the weight requirements were two new technical specifications. During the hearing, the BOARD was unable to determine whether the weight factor or the protected drop-in cassette print wheel requirement will continue to be included in future revisions of the specifications.
Recommendation Based on the foregoing, it is RECOMMENDED: That the BOARD reject the bid submitted by OFFICE as it was nonconforming and sought an advantage not enjoyed by the other bidders. Reinstate the bids which were rejected in Bid NO. 3996, consider the bids, and make an award of the contract to NAPLES. DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida. VERONICA D. DONNELLY 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 30th day of March, 1988. COPIES FURNISHED: Stephen Emens, President Naples Business Equipment and Systems, Inc. 859 4th Avenue South Naples, Florida 33940 Harry A. Blair, Esquire 2138-40 Hoople Street Ft. Myers, Florida 33901 Richard Foss, Typewriter Sales Manager 8A-Del Prado Boulevard Cape Coral, Florida 33904 Karl Engel, Superintendent Lee County Public Schools The School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901
Findings Of Fact The invitation for bid regarding Lease No. 590:2169 solicited bids for a 10 year lease of existing office space for occupancy on October 1, 1990. The invitation for bid consisted of 13 pages and solicited bids for approximately 10,633 net rentable square feet located within a prescribed area in Florida City, Florida (the "IFB"). All bids were required to be submitted on a form entitled the "Bid Submittal Form". Any bids not submitted on the Bid Submittal Form were required to be rejected pursuant to the terms of paragraph 1, page 6 of the IFB. The Bid Submittal Form consisted of 24 pages. The Bid Submittal Form at paragraph 22, page 12, required Petitioner to include a certification letter from a licensed heating, ventilation, and air conditioning contractor attesting to the age and condition of the heating or cooling system existing in the proposed lease space, if any (a "certification letter"). No certification letter was required if the proposed lease space had no cooling or heating system in place. A portion of Petitioner's proposed lease space was air conditioned. Petitioner did not submit the requisite certification letter. Respondent had no reasonable basis to know from Petitioner's Bid Submittal Form that the proposed lease space had an existing heating or cooling system. Pictures of the proposed lease space disclosed that part of the proposed lease space was enclosed. The pictures were not a sufficient basis for Respondent to conclude that an existing air conditioning system was in place. Petitioner's proposed lease space was in apparent need of renovation before it was tenable for Respondent's needs. Petitioner's failure to submit a certification letter would have been consistent with a conclusion that no adequate, existing cooling system was in place and that a new cooling ard heating system would be needed as part of the renovation of the proposed lease space. The Bid Submittal Form, at Paragraph 11, page 5, required any bidder with proposed lease space that was partially or wholly occupied, either at the time of the submission of the bid proposal or at the time of the proposed occupancy date (October 1, 1990), to submit written documentation by the tenants indicating each tenant's acknowledgment of the lessor's bid and each tenant's ability to vacate the proposed lease space by the proposed occupancy date (or earlier date if renovation was required). The IFB, paragraph 7, page 13, also listed existing tenant acknowledgments as one of the types of documents required to be submitted by any bidder with lease space occupied by existing tenants. A portion of Petitioner's proposed lease space was occupied by tenants at the time that the Bid Submittal Form was prepared and submitted by Petitioner. Petitioner never physically inspected the proposed lease space. Petitioner's Bid Submittal Form represented that there were month-to-month tenants in the proposed lease space but that the requirement for existing tenant acknowledgments was "not applicable". Contrary to the requirements of the Bid Submittal Form and IFB, Petitioner submitted no existing tenant acknowledgments. Petitioner had control of its proposed lease space within the meaning of the IFB, paragraph 1, page 3. Petitioner had a contractual right to purchase the proposed lease space pursuant to a Deposit and Sale-Purchase Agreement dated March 30, 1990 (the "Purchase Agreement"). A copy of the Purchase Agreement was attached to Petitioner's Bid Submittal Form. The Addendum to the Purchase Agreement provided in relevant part that Petitioner would purchase the proposed lease space subject to the occupancy of any and all tenants in possession. Respondent determined that Petitioner's bid proposal was not responsive because the Bid Submittai Form prepared and submitted by Petitioner failed to include both the certification letter and the existing tenant acknowledgments. Each such omission was determined to be a material deviation from the bid requirements by Samir Elmir, Facilities Management Assistant for Respondent at the time of the bids were opened on April 2, 1990. The initial determination of non-responsiveness by Mr. Elmir was confirmed by Luis Cerezo, Facilities Services Manager for Respondent who was also present at the bid openings. Their determination of non-responsiveness was confirmed by Warner Von Werne, Acting General Services Manager. 1/ Petitioner was advised of the non-responsiveness of its bid proposal at the time of the bid openings by deficiencies noted on the Bid Technical Responsiveness Checklist (the "Checklist"). The Checklist was completed and marked "Non-Responsive" by Mr. Elmir aid delivered to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of August, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 6th day of August, 1990.
The Issue The Department of Corrections sought bids for construction of a health services building for a correctional facility. A discrepancy existed between the written specifications and the architectural drawings for the project. An addendum was issued to clarify the matter. The low bidder (Intervenor) did not acknowledge receipt of the addendum until several hours after the opening of bids. The Department accepted the Intervenor's bid. The Petitioner timely protested the action. The issue in this case is whether, in accepting the Intervenor's bid, the Department acted contrary to the requirements of law.
Findings Of Fact On July 31, 1990, the Department of Corrections (hereinafter "Department") issued an Invitation To Bid ("ITB") for PR-35-JRA, Project #90015, consisting of the construction of a Health Classification Building at the Columbia County Correctional Institution. In relevant part, the ITB requested price proposals for said construction, provided that the bid would be awarded to the responsive bidder submitting the lowest cost proposal, provided that "in the interest" of the Department, "any informality" in bids could be waived, and provided space on the bid form for acknowledgment of receipt of all addenda to the ITB. Bids were to be filed no later than 2:00 p.m. on September 11, 1990, the time scheduled for bid opening. Documents issued with the ITB included architectural drawings and written specifications for the building. The architectural firm of Jim Roberson and Associates, (hereinafter "JRA") had been employed by the Department to prepare the drawings and specifications. JRA was responsible for preparation and distribution of related addenda. Further, a JRA representative presided over the opening of bids on behalf of the Department. Following release of the ITB and supporting documents, JRA became aware of a conflict between sink faucets required by the drawings and those required by the written specifications. The specifications provided that sink faucets operated by hand levers or foot pedals were to be installed in the facility. The architectural drawings JRA indicated that sink faucets were to operate by means of "electric-eye" activators, rather than by hand levers or foot pedals. On September 10, 1990, JRA issued an addendum (identified as Addendum #2) 1/ to clarify that "electric-eye" type operators were to be included in the bids. The addendum was sent by telephone facsimile machine to all anticipated bidders. In part the addendum provides as follows: "This Addendum forms a part of the Contract Documents and modifies the original Specifications and Drawings, dated 31 July 1990, as noted below. Acknowledge receipt of this Addendum in the space provided on the Bid Form. Failure to do so may subject the Bidder to Disqualification." On September 11, 1990, the eight bids submitted in response to the ITB were opened by the JRA representative. The Intervenor, Custom Construction (hereinafter "Custom"), submitted the lowest bid at $898,898. The Petitioner, David Nixon (hereinafter "Nixon"), submitted the next lowest bid at $900,000. The bid form provided by the Department as part of the ITB materials to prospective bidders provided space for acknowledgment of addenda to the ITB documents. Upon opening the bid submitted by Custom, the JRA representative officiating at the opening noted that the Custom bid failed to acknowledge Addendum #2 in the appropriate space on the bid form. 2/ Robert L. Harris, president of Custom Construction, attended the bid opening. When the JRA representative noted the lack of acknowledgment of Addendum #2, Mr. Harris stated that he was unaware of the addendum. At hearing, Mr. Harris testified that his secretary told him that Addendum #2 was not received by his office. The JRA representative testified that his review of JRA's FAX transmission records indicated that the FAXed Addendum #2 was received by all bidders. The greater weight of the evidence establishes that Addendum #2 was transmitted to and received by, all bidders. Upon leaving the bid opening, Mr. Harris immediately contacted his plumbing subcontractor, Jerry Stratyon, and discussed the situation. Approximately two hours after the bid opening, and after talking with Mr. Stratton, Mr. Harris notified JRA, in a letter transmitted by FAX machine to JRA, that his bid price did include plumbing fixtures required by Addendum #2. Mr. Harris concluded the letter, "[w]hen can we start work. I know you don't want the alternate." On October 8, 1990, JRA recommended to the Department, that the Custom bid be accepted. The letter of recommendation, in part, provides: The apparent low bidder however, did not verify receipt of Addendum No. 2 on the Bid Proposal. Our office did receive a, facsimile after the bid verifying Addendum NO. 2 receipt from the Contractor's Office." However, the actual letter from Custom to JRA states, not that Addendum #2 was received, but that it was included in the price bid by Custom's plumbing subcontractor. Both Nixon and Custom obtained plumbing bids from the same subcontractor, Jerry Stratton. The cost increase attendant to the requirements of Addendum #2 is approximately $2,400 over the plumbing fixtures indicated in the written project specifications. Mr. Stratton was aware of Addendum #2 and testified that the requirements of Addendum #2 were reflected in his price quotes to both bidders. Mr. Stratton provided the same price bid to Nixon and Custom. Mr. Stratton also provided bids to Nixon and Custom for HVAC work. Mr. Stratton was accepted as Custom's HVAC subcontractor. Nixon's bid indicates that another HVAC subcontractor will perform the cork should Nixon receive the contract. The ITB provided that bid modification or withdrawal was permitted on written or telegraphic request received from a bidder prior to the time fixed for opening. Mr. Harris did not attempt to either withdraw or modify Custom's bid prior to bid opening. No bid modification was permitted subsequent to the bid opening. The Department's policy is to waive minor irregularities when to do so would be in the best interests of the State and would not be unfair to other bidders. The evidence does not establish that Custom Construction's failure to acknowledge the addendum was purposefully designed to permit withdrawal of their bid subsequent to the public bid opening. The omission of acknowledgment of Addendum #2 provided Custom an opportunity to withdraw the bid that was not available to other bidders. Custom could have informed the Department that the bid price did not include the requirements of Addendum #2, and the bid could have been withdrawn. Custom was therefore provided with a substantial advantage or benefit not enjoyed by the other bidders. The other bidders, all of whom acknowledged receipt of Addendum #2, had no opportunity to, and would not have been permitted to, withdraw their aids. The fact that Custom did not withdraw the bid is irrelevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a Final Order rejecting the bid submitted by Intervenor as nonresponsive and awarding the contract to the Petitioner. DONE and RECOMMENDED this 15th day of January, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 15th day of January, 1991.
The Issue Whether Respondent’s intended action to award Contract No. E3Q37 to VacVision Environmental, LLC, for “Milton Operations Routine Maintenance,” is contrary to Respondent’s solicitation specifications.
Findings Of Fact The Department is an agency of the State of Florida tasked with procuring the construction of all roads designated as part of the State Highway System or the State Park Road System, or of any roads placed under the Department’s supervision by law. See § 334.044, Fla. Stat. (2016).1/ Further, the Department has the duty to ensure that maintenance of sewers within the right-of-way of the roadways within its jurisdiction does not degrade the integrity of its facilities. See § 337.401, Fla. Stat. Petitioner, National Water Main Cleaning Co., is a full- service maintenance and rehabilitation pipe contracting business based in New Jersey. The company has been in business since 1949 and primarily contracts with government entities to perform storm and sanitary sewer inspection, cleaning, and repair. On October 11, 2016, the Department published a bid solicitation notice for the Contract, seeking contractors to desilt, remove blockages from, and install liners in existing underground sewer pipe on a specified state road in Santa Rosa County. The ITB included specifications, plans, and a proposal form with specific work items. The ITB contained the following relevant language requiring a bid bond for proposals over $150,000: For bids over $150,000.00, the standard proposal guaranty of 5% of the bid will be required. A Proposal Guaranty of not less than five percent (5%) of the total actual bid in the form of either a certified check, cashier’s check, trust company treasurer’s check, bank draft of any National or state bank, or a Surety Bid Bond made payable to the Florida Department of Transportation must accompany each bid in excess of $150,000.00. * * * Bid Bonds shall substantially conform to DOT Form 375-020-09 furnished with the Proposal. Surety2000 or SurePath electronic Bid Bond submittal may be used in conjunction with Bid Express internet bid submittal. For more information please visit https://www.surety2000.com [f]or Surety2000 or https://www.insurevision.com for SurePath. Paper Bid Bonds will also be accepted for bids submitted through Bid Express provided they are received prior to the deadline for receiving bids, by the locations(s) identified in the Bid Solicitation Notice for receiving bids for the advertised project(s). If an electronic bid bond is not being submitted, the bidder must submit an original bid bond. (A fax or copy sent as an attachment will not be accepted.) (emphasis added). The deadline for submission of bids was Thursday, November 10, 2016, at 2:00 p.m. On November 10, 2016, the Department received and opened bids from both Petitioner and Intervenor, as well as two other vendors. Petitioner’s bid for the project was the lowest at $504,380.70. Intervenor’s bid was the next lowest at $899,842. Petitioner submitted its bid for the project through Bid Express, the Department’s electronic bid submission website. Along with its bid, Petitioner submitted several attachments in a .zip file, including a .pdf copy of a bid bond from Traveler’s Casualty and Surety Company in the amount of 5 percent of the total amount of the bid. Petitioner did not submit an electronic bid bond through either Surety2000 or SurePath, nor did it submit the original paper bid bond prior to the deadline for submission of bids. The original paper bid bond remained in the possession of Petitioner’s President, Salvatore Perri, on the date of the final hearing. Petitioner’s bid was reviewed by employees of the Department’s District 3 Contracts Administration Office and deemed “non-responsive” because the bid bond submission did not comply with the bid specifications. On December 7, 2016, the Department posted its notice of intent to award the Contract to Intervenor. The .pdf copy of the bid bond Petitioner attached to its bid for the project was on Department form 375-020-09, Bid or Proposal Bond. Form 375-020-09 contains the following note: “Power of Attorney showing authority of Florida Licensed Insurance Agent to sign on behalf of, and bind, surety must be furnished with this form. Affix Corporate Seal of Surety.” The Power of Attorney accompanying Petitioner’s bid bond contains the following language: “Warning: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER.” The attached Power of Attorney is a copy in black-and- white, rather than an original with the red border. Waiver Pursuant to the ITB, and by operation of section 120.57, Florida Statutes, the deadline to file a protest to the bid specifications was October 14, 2016, 72 hours after posting of the ITB. Petitioner did not file a protest to the specifications of the ITB.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent, Department of Transportation, enter a final order adopting the Findings of Fact and Conclusions of Law set forth herein, and award Contract E3Q37 for Milton Operations Routine Maintenance, to Intervenor, VacVision Environmental, LLC. DONE AND ENTERED this 19th day of April, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 19th day of April, 2017.
