Findings Of Fact Both DOT and Weekley submitted proposed Recommended Orders. Their proposed findings of fact have generally been adopted here but are addressed in detail in Appendix A, attached and incorporated in this Recommended Order. On or before July 31, 1985, DOT received sealed bids from three bidders for State Project Nos. 86070-3492 and 93220-3403, involving landscaping of interchanges in Broward and Palm Beach counties. Marvin's Garden was the apparent low bidder, with a total of $389,112.19 shown on the face sheet of the bid blank form. Weekley was the next lowest bidder with a total of $419,899.56, and P. J. Constructors, Inc., was the highest bidder with a total of $458,805.90. After review of the bid documents for compliance with DOT bid procedures, a discrepancy was found in the Marvin's Garden bid and DOT notified the parties by letter dated August 20, 1985, that Weekley was the apparent low bidder on the project. The discrepancy was found on page 001 of the bid blank form submitted by Marvin's Garden. For item 570-11, "Water for Plant Establishment," under the column, unit price written in words, Marvin's Garden showed "fourteen thousand two hundred eighty two dollars and sixty six cents." The column, unit price in figures, showed "14,282.66," and the final column, headed "amounts" showed "14,282.16." The bid item was supposed to show the unit price for a thousand gallons of water (which price was to be written in both words and figures) and a total, or extension price for 3,743.125 thousand gallons of water. When the unit price on Marvin's Garden's bid was multiplied by 3,743.125 (number of units), the resulting total price for that bid item was $53,461,781.71. This figure was entered on the form in red ink and was initialled by Raymond Patrick Haverty, the DOT reviewer. Marvin's Garden's total bid for the project was then adjusted to $53,836,611.04, a figure far in excess of either Weekley's or P. J. Constructors' bids. Marvin Gross is the individual responsible for preparing and submitting bids for his corporation. He has been doing bid work for DOT for approximately 20 years and is thoroughly familiar with the bid procedures, forms and standard specifications. He attributes the irregularity on his submission to his "tunnel vision." Unit prices are significant because the quantity designated by DOT is merely an approximate, best guess by the Department engineers. For item 570-II, unpredictable weather conditions will ultimately dictate exactly how much water will be necessary to successfully complete the landscape project. That exact quantity times the unit price will be the basis of payment to the contractor. DOT found no violations of bid requirements in the bids of Weekley and P. J. Constructors, Inc., and none have been raised in this proceeding.
Recommendation For the foregoing reasons, a final order should be issued declaring Weekley the lowest responsible bidder on project Nos. 86070-3492 and 93220-3403, and the contract awarded accordingly. DONE and ORDERED this 2nd day of December 1985, in Tallahassee, Florida. Hearings Hearings MARY CLARK, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 2nd day of December 1985. APPENDIX In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of fact submitted by Respondent and Intervenor in this case. Respondent's Paragraph: Corresponding R. O. Paragraph or basis for rejection: The corporate status and the addresses of the bidders are not material. See Paragraph 1, R.O. See Paragraph 2, R.O. and Conclusion of law 2, R.O. See Paragraph 3, R.O. See Conclusion of law 2, R.O. See Paragraph 3, R.O. See Paragraph 6, R.O. See Paragraph 2, R.O. Intervenor's Paragraph: Corresponding R.O. Paragraph or basis for rejection: See Paragraphs 1 and 2, R.O. Facts which relate to the composition of bid packages are not material. See Paragraph 3, R.O. See Paragraph 3, R.O. See Conclusion of law 2, R.O. See Paragraph 3, R.0. See Conclusion of law 5, R.O., relating to the specifications of the department. The remainder of the paragraph proposed is immaterial. See Paragraph 5, R.O. COPIES FURNISHED: Thomas E. Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32301 Mr. Marvin Gross, President Marvin's Garden and Landscape Services, Inc. 37 North McIntosh Sarasota, Florida 33582 Mel L. Wilson, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Harry R. Detwiler, Jr., Esquire HOLLAND & KNIGHT Post Office Drawer 810 Tallahassee, Florida 32302
The Issue Whether Respondent should sustain Petitioner's challenge to the preliminary determination to reject Petitioner's bid as not responsive to Respondent's Invitation to Bid No. SB 91C-284V and to award the contract to another bidder that submitted a higher bid?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: On March 12, 1991, Respondent issued Invitation to Bid No. SB 91C-284V (hereinafter referred to as the "ITB") through which Respondent solicited the submission of bids to supply Respondent with prestressed concrete poles for a one year period beginning May 16, 1991. The ITB was a multi-page document with various component parts. Bidders were instructed on the first page of the ITB to complete and "RETURN ONE COPY OF ALL BID SHEETS AND THIS [BIDDER ACKNOWLEDGMENT] FORM." They were advised elsewhere on the first page of the ITB that "[o]ne copy of all bid documents that ha[d] page numbers, and this executed Invitation to Bid [Bidder Acknowledgment] [F]orm [had to] be returned for the Bid to be considered." The advisement concerning the requirement that all numbered pages had to be returned for a bid to be considered was repeated at the bottom of each numbered page of the ITB. Directly beneath the Bidder Acknowledgment Form on the first page of the ITB was the following provision: This Invitation to Bid, General Conditions, Instructions to Bidders, Special Conditions, Specifications, Addenda and/or any other pertinent document form a part of this proposal and by reference are made a part thereof. The ITB further provided, among other things, that "[i]n the best interest of [Respondent], [Respondent] reserve[d] the right to reject any and all bids and to waive any irregularity in bids received." Petitioner and South Eastern Prestressed Concrete, Inc. (South Eastern) submitted the only bids in response to the ITB. In accordance with the ITB'S instructions, Petitioner completed and returned to Respondent the Bid Summary Sheet, on which it indicated its price offer. It also completed and executed the Bidder Acknowledgment Form and returned it, along with the entire first page of the ITB, to Respondent. Petitioner, however, failed to return, as part of its bid submittal, all of the numbered pages of the ITB. Omitted from Petitioner's submittal were numbered pages 3 and 4. These missing pages contained paragraphs A. through N. of the ITB's Special Conditions, which covered the following subjects: A. Scope; B. Delivery; C. Award; D. Term of Contract; E. Brand Name; F. Catalog Cuts; G. Estimated Quantities; H. Bid Exempt; I. Bidders Responsibility; J. Corrections; K. Joint Bidding, Cooperative Purchasing Agreement; L. Withdrawal; 1/ M. Minority Certification Application; and N. Public Entity Crimes. There was nothing on numbered pages 3 and 4 of the ITB that the bidder needed to fill out or sign. While paragraphs M. and N. of the ITB's Special Conditions did make reference to certain forms that the bidder had to complete and submit to Respondent, these forms did not appear on either numbered page 3 or numbered page 4. They were separate documents. Petitioner completed these forms and submitted them to Respondent pursuant to the requirements of the Special Conditions. Petitioner did not propose in its bid submittal any contract terms or conditions that were at variance with those set forth in paragraphs A. through N. of the ITB's Special Conditions. Petitioner did not intend to signify, by failing to return numbered pages 3 and 4, any unwillingness on its part to adhere to contract terms and conditions set forth on those pages. Of the two bids submitted in response to the ITB, Petitioner's was the lowest. A preliminary determination, though, was made to reject Petitioner's bid because Petitioner had not returned numbered pages 3 and 4 of the ITB and to award the contract to South Eastern as the lowest responsive bidder. It is this preliminary determination that is the subject of the instant bid protest filed by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner the contract advertised in Invitation to Bid No. SB 91C-284V. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. STUART M. LERNER 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, 1991.
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
Findings Of Fact Respondent advertised for bids for work to be performed on the Statewide Regional Juvenile Detention Center located in Pasco County identified as Project Number HRS 85-300000. In response to this advertisements Petitioner and Intervenor timely submitted bids on January 23, 1966. According to calculations performed by Respondent, Petitioner was low bidder and Intervenor was the next lowest bidder. The construction budget for this job is $1.5 million, and both bids are considered by Respondent to be within budget. Depending on the alternatives chosen within each bid, Petitioner's bid is lower than Intervenor's by between approximately $6,000 and $40,000. Section B-14 of the advertisement for bids requires each bidder to submit a list of the subcontractors who will perform work on the job for him and specifies that only one subcontractor shall be listed for each phase of the work. Section D of the advertisement for bids specifies the work areas for which a subcontractor must be listed and states that said list is an integral part of each bid submitted. The subcontracting areas include electrical plumbing, mechanical, roofing security control systems, food service equipment and fire protection. Petitioner's bid was rejected on February 4, 1986, because its bid failed to include a roofing subcontractor's name as required in the advertisement for bids. Petitioner does not dispute that its bid was incomplete when submitted since it failed to identify a roofing subcontractor. However, Petitioner contends this omission was a result of clerical error in typing the bide and that, in fact, it had selected Republic Roofing as its subcontractor. John Breen, Petitioner's project manager, testified that it was his intent to use Republic Roofing when he submitted the bide that he had a firm bid from Republic Roofing, and that when this omission was brought to his attention after bids were opened, he identified Republic Roofing in writing on January 24 and 29, 1986, to Brian Seufert an intern architect working for Respondent's project architect. Seufert confirms Breen's testimony through affidavit jointly filed by the parties. Seufert indicates that the project architect has no reason to believe that Petitioner could not perform the work required by the project. By affidavit jointly filed by the parties, Joyce Kleja secretary for Petitioners also supports Breen's testimony about her clerical error in omitting the roofing subcontractor when she typed the bid. Ray Scerbo, an estimator for Republic Roofing, disputes the testimony of Breen through jointly filed affidavit. Scerbo indicates it was not until a couple of days after the bid opening that he was told by Petitioner that Republic Roofing "had the job" if Petitioner was awarded the contract. This conflicts with the first written notice from Breen to Seufert dated January 24, 1986, as well as Seufert's affidavit that Petitioner told Seufert on January 24, 1986, that Republic Roofing had been selected. Scerbo is no longer employed by Republic Roofing. After considering all of the evidence, it is specifically found that Petitioner's omission of Republic Roofing from its list of subcontractors was through clerical error and that Petitioner had firmly decided to use Republic Roofing for subcontracting work prior to submission of its bid. The advertisement for bid required all subcontractors to be listed in any bid in order to allow Respondent to review prior performance and licensure of subcontractors, and also to prevent "bid shopping". Bid shopping is a practice which inflates a general contractor's bid and therefore the actual award by encouraging subcontractors to initially submit high bids to the general contractor and then negotiate a lower price with the general contractor who has received the award. The general contractor's bid remains inflated however and in this way the cost to the state is increased.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order awarding Project Number HRS 85-300000 to Intervenor. DONE and ENTERED this 1st day of April 1986, at Tallahassee Florida. DONALD D. CONN 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 1st day of April 1986. APPENDIX (DOAH CASE NO. 86-0495B1D) Petitioner has submitted a memorandum and a Proposed Recommended Order, both of which appear to set forth proposed findings of fact in unnumbered paragraphs. For purposes of ruling thereon, the unnumbered paragraphs which appear to set forth proposed findings have been consecutively numbered. Memorandum: Introductory material and not a proposed finding of fact. Adopted in part in Findings of Fact 1, 2, 3, 4, but otherwise rejected as cumulative and unnecessary. Adopted in Findings of Fact 5, 7. Rejected as simply a summary of testimony and evidence and not a proposed finding of fact. Rejected as irrelevant. Adopted in part in Findings of Fact 5, 6. Adopted in part in Finding of Fact 4, but rejected in part in Finding of Fact 2 and otherwise rejected as not based on competent substantial evidence. Proposed Recommended Order: Adopted in part in Findings of Fact 1, 3, but otherwise rejected as unnecessary and irrelevant. Rejected as irrelevant. Adopted in part in Finding of Fact 2, but otherwise rejected as contrary to Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 7. Adopted in Finding of Fact 4. Rulings on Respondent's and Intervenor's jointly filed Proposed Findings of Fact: Adopted in Findings of Fact 1, 3. Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 8. , 6. Adopted in Findings of Fact 6, 7. COPIES FURNISHED: Dennis R. Long Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Sam Powers Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 William Page; Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 John P. Fons Esquire Post Office Drawer 11307 Tallahassee, Florida 32302
Findings Of Fact Petitioner is a corporation organized under the laws of Florida with its principal place of business in Tampa, Florida. It was formed in October, 1973 and is in the business of building bridges throughout west/central Florida. It is an independent construction company which specializes solely in bridge and fender construction. Its business relies solely on contracts from public authorities, especially the Respondent herein. On March 19, 1984, in the United States District Court, Northern District of Florida, Petitioner and its president, Gerald H. Stanley were convicted of violating Title 15, United States Code, Section 1 of the Sherman Antitrust Act, for participating in a conspiracy to rig bids by DOT on June 27, 1979. Petitioner was fined $50,000.00 and Mr. Stanley was fined $20,000.00, ordered to perform 200 hours of community service and placed on three years unsupervised probation. Petitioner did not renew its Certificate of Qualification to bid on Florida bridge projects when it expired on or about April 30, 1984. However, on June 12, 1984, both Petitioner and Mr. Stanley filed a Petition for a determination that they are eligible to apply for and hold a Certificate of Qualification under the provision of Section 337.165(2)(d), Florida Statutes, alleging such reapplication to be in the public interest. Marine Structures, Inc. adopted a formal, written antitrust compliance policy in July, 1984, and the record fails to show any instance of bid rigging or antitrust involvement since the one incident in June, 1979. Because of the limited number of companies involved in the road and bridge construction business, the existing companies, who were formerly involved in bidding misconduct, must, of necessity, deal with each other, but there is no indication or reason to assume that such necessary dealings will result in future misconduct. In addition to the written antitrust compliance policy referenced above, Marine has also taken remedial action to assure that all of its employees conduct their business activities in strict compliance with the law and the rules and regulations of both the state and federal governments. Due to Marine's inability to bid on DOT contracts, it has suffered and continues to suffer extreme financial hardship. In its past dealings with DOT, it has performed quality work and has cooperated fully with the Department. DOT indicates it has not been made aware of any particular circumstances involving Marine's or Mr. Stanley's participation in the instant bid rigging incident which would make that incident any more detrimental to DOT than any of the bid rigging conspiracies by the 26 other companies which have been reinstated by the Department. These 26 companies which have been reinstated, submitted themselves to DOT's independent investigations and agreed to comply with the safeguards required in their individual cases to help to assure that contract crimes would not occur on Department projects. Mr. Stanley, on behalf of Marine Structures, Inc., has offered the same assurances. In a letter dated May 1, 1985, to the Secretary, Department of Transportation, the Honorable Jim Smith, Attorney General of the State of Florida, indicated that though Respondent has, in a confidential sworn statement to attorneys for the State, denied any involvement in bid rigging activities other than in connection with that of which he was convicted in federal court, the State investigation, in the opinion of the Attorney General, raises substantial doubt as to the truth of Mr. Stanley's denials of misconduct. The Attorney General indicates that in an effort to resolve this apparent inconsistency, Mr. Stanley was asked, through his counsel, to take a polygraph examination which he refused. Mr. Stanley denies having refused to take the polygraph at any time. Further, the Attorney General relates that Marine Structures, Inc. has not offered to pay any amount of damages to the State, yet Mr. Stanley contends that he has never, to this day, been asked to make any reimbursement or restitution to the State. Mr. Stanley, on behalf of the Petitioner, does not deny that he committed error and that this error constituted an offense against the state and federal governments. He tells a story, however, regarding it which puts it in a somewhat less serious light than is described by the State. According to Mr. Stanley, he gave a bid figure to two other contractors, who he had previously asked to subcontract in his bid, over which they should bid in order to assure Petitioner of having the lowest bid of the three on this particular contract. Both other contractors, Mr. Carroll and Mr. Conner, submitted bids which were higher than that of Petitioner as did a four potential contractor, Square G, and notwithstanding this, Petitioner's bid was lower than the State estimate. In light of this factor he contends that his misconduct, while technically a violation for which he was tried and convicted, did not cost the State one extra cent. He regrets having done it and would not do it again. Both Carroll and Conner, the two other contractors involved with Petitioner in this incident, pleaded guilty and were convicted, but both have been reinstated as eligible bidders on State work. As to the letter of the Attorney General, Mr. Stanley contends that the comment regarding his veracity relates to a situation involving his testimony before the Attorney General's staff about the Citrus County project. Though he had been advised he would be asked about that specific project, in reality, the questions he was asked related to a different project in Alachua County on which he had bid but which involved no bid rigging on his part. Mr. Stanley contends he told his interrogators what he knew but they were not satisfied as to his knowledge regarding another bidder by the name of Hewitt. His denials of any knowledge of Hewitt's bid were not believed and Mr. Stanley feels he was somewhat threatened by members of the Attorney General's staff who reportedly indicated they would keep him off the bidder's list for some time and would "break" him. He contends that he has cooperated fully with state and federal prosecutors not only because of his desire to be reinstated, but also because the terms of his federal probation require him to cooperate fully. He has, in fact, met with state and federal attorneys on two occasions without being subpoenaed, has made his records available to investigative authorities, and has made copies of any documents desired by the investigators. Other than the one incident involved herein, Mr. Stanley contends that neither he nor his company have ever been involved in any other bid rigging situation. He has given statements to both the Florida Attorney General's office and the Antitrust Division on many occasions other than those referenced in the paragraph above. He has given testimony to a U.S. grand jury and the documents and files which he released to the investigative agencies were released prior to his being granted any immunity from State prosecution by the Attorney General. In short he has cooperated fully with state and federal authorities without holding back any information and will continue to do so even if he is reinstated. He feels, therefore, that it is unnecessary for his reinstatement to be withheld as a threat over his head to coerce testimony from him regarding Mr. Hewitt. Admittedly, neither his personal fine nor that assessed against the company have been paid. He has not, however, been dunned for payment and this is just as well because having been barred from bidding on State business, he is finding it difficult to meet his monthly bills much less pay $70,000.00 in fines. As to the purpose behind the State's manner of handling those companies identified as being involved in bid rigging, the Attorney General very clearly established the action philosophy in a statement made to Florida Trend Magazine on May 29, 1984. In the press release in question he stated: "If we forced these companies into bankruptcy we would not be cleaning up the industry, we'd be abolishing it, putting thousands of employees on the streets and destroying competition in a multi-million dollar industry in which the State is a major purchaser . . . . By obtaining the cooperation of settling defendants we greatly facilitated botch the investigation and the willingness of subsequent defendant to . . . (settle)." Respondent has not shown by any evidence that Petitioner was any worse in its misconduct than any other bidder which has already been reinstated, nor has it exhibited any justification for treating Petitioner more harshly than others.
Findings Of Fact The Respondent, Department of Corrections, by advertisement in a Jackson County, Florida newspaper on March 27, March 30 and April 6, 1988, sought bids for the provision of office space for the Department's offices in Marianna. The bid specifications, including, as pertinent hereto; minimum square footage, a requirement that Energy Performance Index calculations and certification thereof by an architect or engineer be shown, and the requirement that all parking spaces be on site, was made available to potential bidders on March 28. A pre-proposal conference of potential bidders was held on March 31 to explain and clarify the specifications. Bids were submitted by the two Petitioners, and the bids were opened on April 14, 1988. On or about April 19 or 20, Wendell Beall and Robert Sandall evaluated the bid proposals and made a preliminary determination that the Rainbow bid was non-responsive in three areas. It was determined that the required square footage depicted on the Rainbow bid was inadequate; the parking provision was inadequate in that not enough "on-site" spaces were shown on the bid; and the Energy Performance Index calculations and certification by an architect or engineer was not supplied. On April 21, 1988, the lease committee, chaired by Thomas Young, met and reviewed both bid packages submitted by the Petitioners and affirmed Mr. Beall and Mr. Sandall's findings, with the result that the agency decided to award the contract to Brooks. The bid specifications required a minimum of 12,756 net square feet of rentable office space. Only 11,862 square feet could be identified as net rentable square footage on the Rainbow bid's floor plan, as calculated in compliance with the "standard method of space measurement." This square footage calculation was consistent with the actual measurements of the building made by Mr. Beall himself. The Brooks' bid depicted an adequate amount of square footage in compliance with the specifications. Mr. Beall calculated the net rentable interior square footage by utilizing the standard method of space measurement provided for in the rules of the Department of General Services and, after deducting nonusable, nonrentable space under that standard, rule mandated method, he arrived at the net rentable office space figure of 11,862 square feet. Rainbow at no time has presented any conflicting measurement or alleged any specific errors in Mr. Beall's calculations. Item A-10 of the bid specifications requires a floor plan to be submitted showing the present configurations of the building, with measurements that equate to the required net rentable square footage. This means that the minimum square footage must be shown in the floor plan attached and submitted with the bid specifications, even if the building may contain more square footage. The Department supplied a specific number of offices of various sizes and a required configuration no floor plan in order to depict work units that should be constructed and/or arranged together, as part of the specifications in the Invitation to Bid documents. The purpose of this agency floor plan was to give potential bidders a guide to calculate the cost of remodeling existing space to meet the agency's needs so that those potential bidders could amortize that cost as part of the rental amount involved. Therefore, the proposed floor plan included in a bidder's package should not vary substantially from the final plan used to actually remodel the leased space in accordance with the agency's requirements. Accordingly, the only submittal of plans which is permissible subsequent to the bid opening, as contemplated by the bid specifications, are the final plans developed by a successful bidder in consultation with the agency after the bid award. No floor plan may be unilaterally submitted by a bidder after the bid opening since that would constitute an illegal amendment of the bid. Only a floor plan done in consultation with the agency in order to make final adjustments so that all office space and other related space will comply with the agency's precise requirements may be done after the bid is actually awarded, and this must be based upon the floor plan originally submitted in the bid itself in conformance with the bid specifications regarding office layout, square footage and the like. The Rainbow bid simply contained an inadequate amount of square footage necessary to be a responsive bid in this regard. An additional bid specification at issue concerns the requirement of 77 exclusive use, on-site parking spaces. The Rainbow bid only made provision for 27 on-site exclusive parking spaces, with the remaining 50 spaces of the required 77 being off the proposed building site, approximately 155 feet away, without sidewalk access to the proposed office building. The Brooks' bid incorporated all required parking spaces on the site, as required by the specifications. The Rainbow bid was non-responsive concerning the parking space specification as well. Mr. Beall prepared the bidding documents as Budget Manager for the Department of Corrections' Region I. He was the person designated in the bidding documents to answer any questions requiring clarification by prospective bidders before bids were prepared and submitted. Mr. Beall established that the intent of the agency with regard to this parking space requirement was to require all 77 parking spaces to be on-site. No bidder or prospective bidder asked any questions of Mr. Beall concerning this specification prior to the submittal of any of the bids. Mr. Brooks, however, did consult with Mr. Beall on the question of the Energy Performance Index specification item before he submitted his bid. Mr. Brooks is a former physics and advanced mathematics teacher with some 20 years experience in construction. He has been a licensed general contractor and master builder for residential, commercial and industrial types of construction for 11 years. He typically designs and draws his own plans, including those submitted with the bid at issue. He spent approximately 100 hours of his time on preparation of this bid. Mr. Brooks had previously been awarded a rid by the Department of Corrections on which he simply invalid the item concerning the Energy Performance Index (EPI) specification. That item was found to be responsive by the Department, and the bid was awarded to Mr. Brooks. On a subsequent bid on a different job, Mr. Brooks again merely initialed the EPI specification, which he intended to mean that he would perform the job at issue such that the EPI requirements would be met. He was not awarded the bid on that particular job, but upon his informally notifying the Department of Corrections that he might protest the decision to award the bid to a different bidder, the Department personnel advised him that they might choose to raise the issue of his responsiveness to the EPI specification in that situation. With this history in mind, Mr. Brooks, before submitting his bid, contacted Mr. Beall to inquire as to what would be considered an appropriate response to the EPI specification on the bidding documents. The EPI has been calculated by Mr. Brooks on numerous projects in the past, and he is capable of calculating it as to this project. He found, however, that it would be impossible to calculate a precise and accurate EPI specification response, because he would not have the final floor plan from which to calculate it, with all the information that would give him concerning room configurations, size, location and size of windows, size and type of heating and air-conditioning equipment and many other factors. Mr. Brooks could, however, give his certification that the energy performance requirement would be met, once the final plans were completed in conjunction with discussion with the agency after award of the bid, which comports with standard agency policy and practice. Because he was concerned that any energy performance calculations he might supply would not necessarily be accurate in the final analysis, in relation to the final "to be constructed" plans, Mr. Brooks contacted Mr. Beall to obtain his guidance about what would be considered a proper response to this specification item. Mr. Beall advised him that a letter certifying that he would comply with the specification as to this issue would be an appropriate alternative to simply initialing the specification. The same opinion was also voiced at the lease committee meeting. Mr. Beall's advice to Mr. Brooks in this regard was based upon advice given him by Mr. Edwin Johnson of the Department of General Services and was based upon past agency policy concerning treatment of this issue on previous bids considered by the lease committee. Previous bids had indeed been accepted in the form submitted by Mr. Brooks and had not been found to be nonresponsive as to the EPI issue. Thus, Mr. Brooks, in addition to initialing the specification concerning the EPI, also supplied the referenced letter certifying that he would comply with that specification and agency requirement. Rainbow, on the other hand, merely initialed that item in the specification and bidding document. Thus, the Brooks' bid is the more responsive on the issue of the EPI than the Rainbow bid. The bid award to Brooks was posted on May 2, and on May 4, Rainbow filed a Notice of Protest of she award which was received by the Department, timely on May 5. Shortly after that date, counsel for Rainbow requested that the Department's representatives and counsel meet with him and Mr. Jett, his client, of Rainbow Properties, to discuss the agency's award to Brooks and rejection of Rainbow's bid. On May 10, 1988, the Department's regional representatives and its counsel met with Mr. Jett of Rainbow Properties and his attorney, Mr. Barley. Mr. Jett used this opportunity to explain how he felt that the Rainbow bid had complied with the bid specifications in the three specific areas discussed above. The Department's counsel explained on that occasion that the bid could not be amended after opening and posting of the bids. Mr. Jett's bid had only shown 11,862 square feet identifiable as rentable space in the floor plan submitted with the bid, although 12,756 square feet were required by the bid specifications. Additionally, as discussed above, of the 77 required on-site parking spaces, only 27 were provided on site with 50 of them being off site, with Rainbow not establishing that it had ownership or right of control to the off site spaces. Additionally, as discussed above, there was the problem of no calculations or assurances being provided regarding the EPI specification, it merely having been initialed in Rainbow's bid submittal. At the May 10 meeting, Mr. Jett was given the opportunity to explain how his bid complied with the specifications at issue and to discuss how he felt the Department had misinterpreted his response or made an error in measuring or calculating the square footage available in his building. He provided no alternative calculations or measurements of the building, however, which would depict more than the 11,862 square feet measured by the Department's staff or which would show that measurement was incorrect. He was reminded that the only possible information he could legally provide the agency after the opening of bids was in the nature of minor clarification concerning how he had calculated the square footage. He was instructed that he could not revise his plans in order to establish that more square footage was available because that would be an illegal amendment of his bid after the bids were open and posted. At the May 10 meeting Mr. Jett also maintained that the Department had allowed for other than on site parking; however, but the bidding document or Invitation to Bid only contained one blank, and only one subsection on the bidding form, for the bidders to indicate 77 spaces designated as on site spaces. Mr. Jett maintained that since the Department had provided option "(A)" under this on-site parking specification item, that he was therefore free to add other options. Using that logic, however, it would also appear that he could have submitted a bid depicting spaces literally on the other side of town and still had a responsive bid. That clearly is not the correct interpretation of that specification. He also maintained that the EPI was impossible to calculate at the time of bidding, in view of the fact that final plans were not available to support the ultimate calculation. In any event, at the conclusion of this meeting, Department personnel informed Mr. Jett and his counsel that would inform him of its decision within a few days. The Department did not inform Mr. Jett that he would be permitted to amend his bid after obtaining professional help and redrawing his blueprint in an effort to show that the minimum square footage was available. Indeed, Rainbow and Mr. Jett did obtain the services of an architect and drew a new floor plan which it offered as PR-1 at the hearing. If the floor plan originally attached to Rainbow's bid, consisting of Exhibit PR-2 in evidence, is compared with the blueprint submitted by the architect after the meeting with the Department representatives on May 10, it can be discerned that the blueprint is not a mere refinement or clarification of the initial floor plan, but rather that major modifications have been made to the initial floor plan submitted with the bid. These consist of walls which have been moved, small rooms in some areas which have been eliminated, restrooms which have been deleted and an existing spiral staircase area which was eliminated, and a hallway enclosed, in order to add additional rentable square footage where new offices could be added. Thus, this blueprint offered at hearing was not a mere refinement or clarification of the original floor plan submitted with the Rainbow bid, but rather sufficiently different from original floor plan as to constitute a material amendment or modification to the bid. It therefore cannot be considered. The floor plan submitted with the bid was nonconforming to the bid specifications as to the square footage item and Rainbow cannot be permitted to rectify and correct that with the architect's new blueprint and floor plan offered at the time of the hearing. 1/ In short, insufficient square footage was depicted and that is not a minor waivable irregularity. Soon after this May 10 meeting, the Department changed its position, decided that both bids were not responsive and rejected them. Its alleged basis for doing so was that the Brooks bid was nonresponsive as to the energy performance index criteria and that the Rainbow bid was nonresponsive as to that criteria, as well as to those concerning minimum square footage and on-site parking availability; the same as the original grounds for rejecting Rainbow's bid. Timely formal protests of that second agency action were filed by both Brooks and Rainbow. In that connection, Rainbow's formal written protest of the original award to Brooks, which was announced and noticed on May 2, 1988, was untimely. The formal written protest must be filed within ten days of the notice of protest. Rainbow's original notice of protest was filed with the agency on May 5 and the formal written protest was not filed until May 17. Rainbow, in conjunction with its filing, filed a motion for leave to late-file the formal protest with the agency on the basis that it had mistakenly filed the formal protest with the Division of Administrative Hearings. That petition was filed with the Division on May 16th. The deadline for filing the formal protest was May 15th. Petitioner Rainbow, however, did not learn of the second intended agency action until May 16th, however, and may have been somewhat misled about the necessity of filing its formal protest by May 15th because of the informal discussion of May 10th. It is also true, however, that the informal meeting was improper, as discussed herein and was called at the behest of Rainbow without assurance that the filing time was tolled.
Recommendation In consideration of the above findings of fact and evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor RECOMMENDED that the petition of Rainbow Properties, a Florida general partnership, should be denied and dismissed for the reasons found and concluded above, and that the petition of C. Leon Brooks be GRANTED and that the subject bid be awarded to C. Leon Brooks. DONE and ENTERED this 27th day of October, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 27th day of October, 1988.
Findings Of Fact On August 31, 1994, the Respondent received and opened bids for its Project No. HSMV 92044000, Repairs, Art Sutton Drivers' License Office, Miami, Florida (the Project). The bid specification documents (the Specifications) for the Project included requirements for a Base Bid and for specific alternate proposals with respect to three defined items of alternate work. Section 01100 of the Specifications stated that "[a]ll Alternates described in this Section are required to be reflected on the Bid Form as submitted by the bidder." Part 2 of that section provided: ALTERNATE NO. 1 A. Provide a deductive price to the base bid for the removal of existing window units and the installation of new units as indicated in plans and specification Section 08520. ALTERNATE NO. 2 A. Provide a deductive price to the base bid for the provision of communications conductors see specification Section 16400. ALTERNATE No. 3 A. Provide a deductive price to the base bid for the installation of all landscape materials as indicated on plans and as per specification Section 02960. Also included in the Specifications as Exhibit 4 was a Proposal Form. The Specifications required each bidder to submit this form in triplicate on the bidder's letterhead. With respect to alternates, the Proposal Form required: With the foregoing as a Base Bid, the following costs of alternate proposals are submitted in accordance with the drawings and specifications. Alternate No. 1 Add or Deduct $ Alternate No. 2 Add or Deduct $ Alternate No. 3 Add or Deduct $ The Respondent's architect received four bids on August 31, 1994. As recorded on the Bid Tabulation and Notice of Award Recommendation, three bidders provided specific prices for the three alternates, as well as a Base Bid. The Bid Tabulation shows that two bidders provided specific prices for the three alternates and included the alternate prices in their Base Bids. The Petitioner provided specific prices for the three alternates, but excluded the alternate prices from its Base Bid. The fourth bidder provided a specific price for only one alternate and excluded that alternate price from its Base Bid. (The fourth bidder was disqualified as non-responsive for failing to submit prices on all three alternates.) In pertinent part, the Petitioner's proposal read: With the foregoing as a Base Bid, the following costs of alternate proposals are submitted in accordance with the drawings and specifications: Alternate No. 1 Add or Deduct . . . $4,400.00 Alternate No. 2 Add or Deduct . . . $1,158.00 Alternate No. 3 Add or Deduct . . . $2,084.00 These Alternates were in addition to the Petitioner's Base bid of $204,322.00. The proposal form submitted by the Petitioner comports with Exhibit 4 to the Specifications, which was the mandatory Proposal Form. On August 31, 1994, William Phillip Austin, Peitioner's President, wrote the architect: Per our telephone conversation this date regard- ing the confusion relating to the Add/Deduct for Alternates 1, 2 and 3 for the above project, please be advised that our base bid did not include the work described in the Alternates. As stated if you want work described in Alternates 1, 2 and 3, you must add the cost to our base bid. The base bid including Alternates 1, 2 and 3 would, therefore, be $211,964.00. If we can provide additional information, please do not hesitate to contact us. The Respondent's architect completed and submitted the bid Tabulation and Notice of Award Recommendation to the Respondent in early September. The document clearly discloses the amounts of each bidder's Base Bid and Alternate proposals. Using plus (+) and minus (-) signs, the Bid Tabulation further shows each bidder's method of calculation. The record is devoid of evidence that the Respondent had any problem in evaluating the bids and identifying the lowest bidder. The Petitioner was the lowest bidder on any combination of base bid plus or minus any or all alternates. Subsequently the Petitioner received a NOTICE OF AWARD RECOMMENDATION dated October 4, 1994. The Notice informed the Petitioner that the Respondent "has recommended that the contract be awarded to your firm in the total amount of $211,964.00, accepting the Base Bid and Alternates #1, #2 & #3. The Administrator of Contracts Design and Permitting, Division of Building Construction, Department of Management Services, State of Florida will consider this recommendation." Larry R. Coleman, Construction Projects Administrator, signed the letter. The Petitioner acknowledged receipt. A representative of the second lowest bidder, Kalex Construction, then contacted the Respondent, complaining of the Award Recommendation. The grounds for the Kalex complaint are not in the record. However, on October 14, 1994, H. R. Hough, the Respondent's Contracts Administrator, sent the Petitioner a letter "to notify you of the State's decision to reject all bids on the above referenced project due to ambiguities in the specifications." Mr. Hough's reasons for the rejection are "other than those stated by the protestor," Kalex. The Respondent's Rule 60D-5.007, Florida Administrative Code, states: Determination of Successful Bidder. All projects except where competitive bidding is waived under the provisions of Rule 60D-5.008 will be publicly bid in accordance with the provisions in the project specifications bidding documents. Award of contract will be made to the responsive bidder, determined to be qualified in accordance with the provisions herein and meeting the requirements of the bidding documents, that submits the lowest valid bid for the work. The lowest bid will be determined as follows: The lowest bid will be the bid from the responsive bidder that has submitted the lowest price for the base bid or the base bid plus the additive alternates or less the deductive alternates chosen by the Agency to be included in or excluded from the proposed contract, taken in numerical order listed in the bid documents. The order of the alternates may be selected by the Agency in any sequence so long as such acceptance out of order does not alter the designation of the low bidder. Under the above-quoted rule, the Respondent compares bids beginning with the lowest "base bid." The Respondent is of the view that for this comparison to be fair and equal, all bidders must include the same scope of work in the "base bid." The Respondent does not interpret the above-quoted rule to allow deductive alternates from some bidders and additive alternates from others. (For reasons discussed in the Conclusions of Law which follow, the Respondent's interpretation and application of the above-quoted rule is erroneous.) The Specifications contain some ambiguous and inconsistent language regarding whether alternates should be treated as additive or deductive. The ambiguous and inconsistent language did not provide any bidder with an advantage or a disadvantage, nor did it otherwise affect the fairness of the bidding process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a Final Order in this case awarding a contract for the subject project to the Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1994. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1994. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner Paragraph 1: This is primarily a statement of position and is addressed in the Preliminary Statement. Paragraphs 2 through 10: Accepted in substance with a few unnecessary details omitted. Proposed findings submitted by Respondent Paragraphs 1 through 6: Accepted in substance. Paragraph 7: First sentence accepted in substance. Second sentence rejected as constituting a conclusion which is not warranted by the evidence. Third sentence is accepted as an accurate statement of how Respondent has been interpreting the subject rule, but is not accepted as constituting a correct interpretation of the rule. Paragraph 8: Rejected as misleading and confusing because the "scope of work" to be performed under the contract can only be determined after the Respondent decides which alternates to include and which to exclude. Paragraph 9: The first two sentences are accepted in substance. The last sentence is rejected as constituting a conclusion which is not warranted by the evidence. COPIES FURNISHED: Timothy J. Armstrong, Esquire Armstrong & Mejer Suite 1111 Douglas Centre 2600 Douglas Road Coral Gables, Florida 33134 Stephen S. Mathues, Esquire Department of General Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of General Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 William H. Lindner, Secretary Department of General Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue in this cause is whether costs and attorney's fees are due Petitioner, hereinafter PROCTOR, from Respondent, hereinafter HRS, pursuant to Section 57.111, Florida Statutes, as a result of Division of Administrative Hearings Case Number 91-5963-BID, and, if so, the amount of costs and fees.
Findings Of Fact The petition for fees and costs herein is brought exclusively under Section 57.111, Florida Statutes, and relates back to a bid protest wherein PROCTOR and TCC #3 LTD., INC., hereafter TCC, were the only bidders on HRS lease 590.236. PROCTOR was the protestant/Petitioner and TCC was the apparent successful bidder/Intervenor in Derick Proctor v. Department of Health and Rehabilitative Services, DOAH Case No. 91-5963BID. HRS' Invitation to Bid (ITB) for lease 590:236 required bidders to submit evidence of control of the property being offered, including the parking areas. Evidence of control could take the form of a deed for the property, an option to purchase the property, or a lease or option to lease showing a right to sublease. TCC did not submit a document labelled "deed," "option to purchase," "lease," or "option to lease" with its bid. TCC submitted as its evidence of control a contract for sale and purchase of the property with Hernando Plaza, Ltd., executed by Edward M. Strawgate and Harold Brown representing themselves to be general partners of the limited partnership. At all times material, the actual record title of the property submitted by TCC for the bid was in the Victor and Lillian Brown Foundation. At the times of the bid opening, evaluation, and August 27, 1991 notice of intended award, HRS had no reliable information as to what entity actually owned the property offered by TCC, and TCC had not disclosed to HRS that its contract to purchase the property was with an entity other than the record owner. Up to then, at least, Hernando Plaza, Ltd. had represented itself to TCC as being the owner of the property. The ITB did not require an abstract of title to be submitted with the bid. HRS normally does not require an abstract from successful bidders, although the ITB contained provisions for future disclosures from successful bidders. Absent some reason to "go behind" facial evidence of control, HRS' ITB attempted at the time to protect HRS by requiring successful bidders to post an irrevocable letter of credit to be forfeited in the event a successful bidder could not perform and for future disclosures concerning the chain of title. (See the recommended order in the underlying case). HRS accepted the contract to purchase the property from Hernando Plaza, Ltd. as TCC's required evidence of control, believing it to constitute an option to purchase. (See Findings of Fact 15-17 infra, this final order). On August 27, 1991, PROCTOR received from HRS a notice of intent to award the bid to TCC. This notice constituted the "window" for protests, if any, to be filed. PROCTOR then timely filed a notice of intent to protest and a formal written protest of the award to TCC. The filing of this protest resulted in an automatic suspension of the bid solicitation and contract award process and referral of the matter to the Division of Administrative Hearings, pursuant to Section 120.53(5)(c), Florida Statutes. This protest formed the basis of the underlying bid case, DOAH Case No. 91-5963BID. No later than the time of the Prehearing Order of September 23, 1991 in Case No. 91-5963BID, the law firm of Gibbs and Rudzik had made known to the hearing officer and counsel for both PROCTOR and HRS its retention as counsel for TCC. TCC moved for leave to intervene in a motion filed September 30, 1991, which was granted in an order of October 4, 1991. In a letter of October 10, 1991, counsel for PROCTOR made counsel for HRS aware of a question of whether TCC could obtain good title to the property. Counsel for PROCTOR proposed in a letter of October 14, 1991 to counsel for HRS that HRS reject both PROCTOR's and TCC's bids and rebid the lease, but this letter was primarily devoted to determining if HRS wished to interpose a new defense that PROCTOR's bid was unresponsive. In the instant fees and costs case, PROCTOR relies on its October 14, 1991 letter as the point from which HRS should have acted to avoid incurring attorney's fees and costs. After the receipt of the two letters, HRS did not reject both bids and rebid the contract but proceeded to formal hearing on October 30, 1991. PROCTOR and HRS share the mutual impression that had HRS accepted PROCTOR's proposal to reject both bids, HRS would have to have allowed TCC an opportunity to protest that decision. At the final hearing in Case No. 91-5963BID, evidence was offered that Hernando Plaza, Ltd. had a conditional option to purchase the property from the record title owner, the Brown Foundation. However, it was not established at the hearing that the conditions of the option had been fulfilled or that TCC or Hernando Plaza, Ltd. could otherwise gain good title to the property through a valid option. It was concluded as a matter of law in Case No. 91-5963BID, that on its face, the ITB stated that control could be evidenced merely by attachment of an "option to purchase," that the ITB stated no further requirements concerning the internal provisions of the option to purchase, and that TCC's conditional contract for purchase constituted a conditional option to purchase. The conditions of the option to purchase and the chain of title, among myriad other matters were subjects of proof at the formal hearing. The conditions of the option to purchase and various complicated real property concepts arising from recorded and unrecorded parts of the chain of title constituted the thrust of the recommended order's assessment that TCC's "control" was speculative only. It is here noted that the totality of the "chain" of title might have been unavailable even by "abstract" due to the lack of recordation of some documents. The lengthy formal hearing adduced evidence concerning the factual issue of whether or not the conditional option to purchase was between TCC and an entity which had such a sufficiently unequivocal interest in the proposed property that it could convey title to TCC in time for TCC to fulfill its obligations under its proposed lease to HRS. There is no evidence that HRS knew of these problems on August 27, 1991, when it gave notice of its intent to award the bid to TCC. Hernando Plaza, Ltd. was the entity with which TCC had contracted. At formal hearing, TCC relied on the legal concept that all interests in the property had merged in the non-title holder, Hernando Plaza, Ltd. This concept, together with recorded and unrecorded elements in the chain of title which were presented at formal hearing, were determined in the recommended order to be too "speculative" on the issue of TCC's control. However, it was also found, upon evidence submitted at formal hearing, that TCC's bid contained no other material deviations from the requirements of the ITB, that the signator of TCC's bid had sufficient status to submit the bid for the TCC corporation, and that TCC's signator could not submit the bid as an agent of the owners of the real property. TCC and its bid signator had never purported to have submitted the bid on behalf of the owners of the real property. (See the recommended order of the underlying bid case.) These issues were raised by PROCTOR and they addressed more than just the facial compliance of TCC's original bid documents which was all HRS had to consider when it made its initial decision in favor of TCC and against PROCTOR. However, the recommended order found HRS to have materially deviated in a number of ways from the bid process in its initial evaluation of PROCTOR's bid, not the least of which was determining that PROCTOR had complied with the ITB requirements for demonstrating control. All such evaluation flaws had been committed by HRS in favor of PROCTOR. Both TCC's and PROCTOR's bids were ultimately found to be unresponsive in the recommended order entered on December 20, 1991. The recommended order also found both had standing to be involved in the bid protest and formal hearing. The recommended order recommended rejecting both bids and readvertising the ITB. The Final Order of HRS entered on January 20, 1992 dismissed PROCTOR's protest on the basis that he lacked standing to protest, as his bid was unresponsive, and awarded the bid to TCC. HRS did not give PROCTOR notice that his bid was not responsive until it issued its Final Order. The Final Order of HRS was appealed to the First District Court of Appeals by PROCTOR. The First District Court of Appeals entered an order on June 22, 1992 finding PROCTOR had standing and remanding the case back to HRS for the purpose of a decision of the issue of whether TCC's bid was also unresponsive. On July 27, 1992, HRS entered its Amended Final Order determining both bids to be unresponsive and that the lease should be relet for bids. The First District Court of Appeals affirmed the Amended Final Order of HRS in a per curiam opinion without discussion on October 13, 1992. HRS did not reject both bids and rebid the contract until after this per curiam opinion. No motion for rehearing was filed with respect to either of the First District Court of Appeals' orders entered June 22 or October 13, 1992, nor was any notice to invoke the discretionary jurisdiction of the Supreme Court filed. PROCTOR did file a motion for rehearing solely on the court's denial of PROCTOR's motion for appellate fees. Mandate was issued by the Clerk of the First District Court of Appeals on December 3, 1992. HRS entered an Order Directing Release of Bid Protest Cost Bond on December 18, 1992, in which HRS stated: Petitioner, Derick Proctor, has prevailed in the above styled bid protest. Petitioner's domicile and principal place of business is Vero Beach, Florida. Petitioner has one employee. Petitioner is a sole proprietorship. Petitioner's net worth does not exceed $2,000,000.00. HRS was not a nominal party in the underlying bid case. HRS did not initially challenge PROCTOR's "small business party" status in this instant fees and costs proceeding. Therefore, that allegation of the fees and costs petition is not at issue. Also, Petitioner's "small business party" status is now stipulated to exist. The parties have stipulated that the maximum statutory fee is $15,000.00 and that $15,000.00 is a reasonable fee if an award of attorney's fees is due. HRS has not protested or objected to the amount of costs claimed, $411.25, if costs are due.
The Issue Did the University receive Merit's qualification data during the "bidding period," or failing same, was the time and manner in which it was received such a material variance as to render it nonwaiveable and nonresponsive? Were the data provided by Merit responsive to the ITB? Did the University use the proper quantities for Task 150, Disposal in Landfill, in the third iteration (analysis)?
Findings Of Fact On December 17, 1990, Respondent University, Physical Plant Division, mailed ITB No. P91S-79YC for a yearly contract for asbestos abatement. The ITB was for on-call, small-job asbestos abatement projects with Respondent. As with previous such annual contracts, the idea was to have an open-end contract with a contractor on call as-needed for projects that fit within a specific budget limitation, $15,000. The number of jobs and exact amount of asbestos abatement are indeterminate at the time of entering into the contract. Section 00100, paragraph 6, Qualifications of Bidders (page 00100-2 of the ITB) states: This bid will be awarded only to a respon- sible bidder, qualified by experience and in a financial position to perform the work speci- fied. The bidder shall submit during the bidding period the following evidence of eligibility: Experience record showing bidder's training and experience in similar work. Experience that the bidder is qualified for licensing under Florida Statute 455.302. (Emphasis supplied) Section 00100, paragraph 9, Award or Rejection of Bids (page 00100-2 of the ITB) states: The Contract, if awarded, will be to the responsible bidder who has proposed the lowest Contract Sum, according to the evaluation criteria described in Section 00311, subject to the Owner's right to reject any or all bids and waive informality and irregularity in the bids and in the bidding. General Condition 9, Awards, states: As the best interest of the University of Florida may require, the right is reserved to make award(s) by individual item, group of items, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. When it is determined there is competition to the lowest responsive bidder, then other bids may not be evaluated. Bidders are cautioned to make no assumptions unless their bids has been evaluated as being responsive. Section 00311, Bid Evaluation, states: Contractor's bids will be evaluated by the Physical Plant Division Representative (PPDR). The proposals will be evaluated in a three-step process. Step one will consist of the verification that all mandatory requirements delineated in the Bid document have been met i.e., met the bid opening date, answered all inquiries in Proposal Forms, and that All Items Are Filled Out in the unit Price Proposal Form. All bids meeting the criteria of step one will then be subject to step two - Contractor Evaluation. Bids which do not meet the requirement of step one will be rejected and not be considered for step two or three. Step two will be an analysis of the Contractor's ability to perform work for the University of Florida. Each of the following items will be rated on a scale of 0-20. Zero would be unsatisfactory while 20 would be outstanding. Professional qualifications, licenses, and proper insurance coverage required. Ability of Contractors to respond in a timely manner. Include information regarding communication capabilities between office and staff, between staff, and between PPDR and the bidder (e.g. pagers, cellular phones, etc.). Experience and ability of all staff proposed for the project teams and the apparent ability of the applicant as it related to pro- ject requirements. Past performance on University of Florida projects. If no past experience is available, an average rating of 10 will be assigned. Any Contractor who receives 0 on Item 2 (Ability to respond in a timely manner) or a total score under 40 points will not be con- sidered for step three. Step three will consist of evaluating each bidder's unit prices. Three "typical" standard jobs have been developed. Each task identified on the bid form is used at least once in these standard jobs. The unit price of each bidder will be multiplied by the quantity on the work sheet for each standard job. The sum of each job will then be multi- plied by the factor indicated below. The lowest aggregate total will be considered the low bidder. The standard jobs are: Standard Job A - Remove asbestos from a boiler room using the Isolated Work Area. Special Job Conditions Multiplier will be used on a portion of this job. The job has a weighted factor of 50%. Standard Job B - Remove asbestos from various pipes and valves in a utility room using the Glove Bag Method. This job was a weighted factor of 30%. Standard Job C - Remove asbestos from an office area ceiling using the Isolated Work Area. This job has a weighted factor of 20%. Section 00700, Contract Documents (page 00700-1 of the ITB) states: The Contract Documents consist of the Purchase Order, the Drawings, the Specifications, all Addenda issued prior to issued after execution of the Contract, and the University of Florida Invitation to Bid. The clear language of the ITB shows that the evaluation of the ITB was intended to be a three-step sequential procedure. If Respondent's evaluation did not determine a bidder to be qualified at step one, it would not avail that bidder to be qualified as to step two, and if not qualified as to steps one and two, the bidder could not prevail just by being in compliance with step three. All bidders were passed by Respondent for step two to be considered for step three. Petitioner has challenged whether or not Respondent has appropriately evaluated and passed Merit (the apparent low bidder) as "responsive" at step two. On the bid opening date for the ITB, the sealed envelope containing Merit's bid (prices, etc.) in response to the ITB did not contain the information required by Section 00100, paragraph 6.B. (page 00100-2) of the ITB. The only written evidence of eligibility reviewed by Respondent with respect to Merit is the document known as the "Black Book." (Respondent's Exhibit 1) Merit's Black Book was in the possession of Respondent prior to the issuance of the present ITB, remained in its possession during the entire bid evaluation process for the present ITB, and was never amended after the bid opening. Respondent's Physical Plant Division employee, Remus E. Acosta, found it in or on his desk on the same day the present ITB was opened, January 10, 1991, before he began to evaluate the bids and utilized it in evaluating/passing Merit as a responsive bidder under step two. The Black Book was initially received by Respondent in September 1990. It contains qualifying data of Merit for asbestos abatement and Merit's certified Florida asbestos contractor's license dated March 8, 1989, plus many other materials concerning Merit's past performance and current licensing of Merit and its employees. The Black Book was submitted in connection with a prior asbestos abatement job undertaken by Merit for Respondent, was generic with regard to many types of bids/contracts let by the Respondent including asbestos abatement, and does not bear any markings which identify it as connected with the present ITB. The Black Book bears two stamped dates. The date of September 15, 1990 stamped on the Black Book signifies that as of that date, Merit needed to revise the Book to meet Respondent's standards for qualification on the prior bid. The date of September 28, 1990 stamped on the Black Book signifies that as of that date Merit had met the Respondent's standards or qualifications for the prior bid. The September 28, 1990 stamp on the front of the Black Book by Environmental Science and Engineering, Inc. (ESE), a consultant to Respondent on the prior bid, also indicates that Merit was an approved asbestos contract vendor on that date. Like all other licenses, Merit's license is valid until revoked. On January 10, 1991, Merit was working on existing asbestos abatement jobs for Respondent, monitored by State of Florida licensing agencies. Respondent works with these agencies on nearly a daily basis and has never been notified that Merit's licenses from them were in question. On January 10, 1991 Respondent reasonably assumed, on the basis of the Black Book, that Merit continued to be licensed. There is no evidence in this record that Merit's licenses ever have been revoked. Mr. Acosta did not "go behind" the contents of Merit's Black Book to verify that each item contained therein was true and accurate as of January 10, 1991. Respondent did not verify the contents of any other bidder's qualifications, either. The ITB does not require that Respondent "go behind" or verify facially acceptable qualifications submitted by a bidder. The ITB does permit Respondent to consider a bidder's past performance with Respondent. If a bidder is not known to Respondent or Respondent is unaware of a bidder's qualifications, paragraph 6.B. of the ITB would allow Respondent to make further inquiry as permitted by paragraph 4 (page 00100-1) which is merely permissive and provides as follows: 4. PROOF OF COMPETENCY OF BIDDER A bidder may be required to furnish evidence satisfactory to the owner that he has suffi- cient means and experience in the types of work called for to assure completion of the Contract in a satisfactory manner. (Emphasis supplied) On the basis of the Black Book, Mr. Acosta evaluated Merit as a responsive bidder and passed Merit for step two of the evaluation process. Had the same information as that contained in Merit's Black Book been submitted simultaneously with Merit's sealed bid on January 10, 1991, Respondent would have followed exactly the same procedure as was actually applied by Mr. Acosta when he found the Black Book in his office that same day. In either situation, Respondent would have presumed the Black Book to be still true and accurate absent some red flag of information that it was not still true and accurate and would have considered its contents to be complete and responsive for purposes of step two. By using the Black Book in his evaluation, Mr. Acosta determined to his satisfaction that Respondent had received Merit's step two qualifications contained in the Black Book within the "bidding period" as required by the ITB. Mr. Acosta and several other witnesses interpreted the term "bidding period," as contained in ITB paragraph 6, Qualifications of Bidders, to encompass the period of time from the date of mailing or advertising the ITB through the date a purchase order is finally issued by Respondent. However, the term "bidding period" as used in paragraph 6 of the present ITB has never been defined by a duly promulgated rule of Respondent University. The ITB itself also does not specifically define "bidding period." Several witnesses acknowledged that "bidding period" as used in paragraph 6 is not normal terminology used by Respondent in its competitive bidding process, but was a term selected by an outside consultant who drafted the present ITB for Respondent without any clear explanation of its meaning and without any explanation that the term "bidding period" was being introduced to vary the standard assumption that sealed bids must be complete as of the date scheduled for their opening and the equally common assumption that the "finish line" for proving-up a bidder's qualifications is the date that sealed bids are opened, and without any explanation as to how such an extended definition as understood by Mr. Acosta could be consistent or compatible with the three step evaluation process specifically contained in the ITB. Although the instant ITB does not define the term, "bidding period," it does contain the following two "boiler plate" paragraphs which discuss the "bid period," a term roughly analogous to "bidding period" and a term which apparently is standard in Respondent's ITBs: 8. BID PERIOD No bidder may withdraw his bid for a period of 30 calendar days after the date set for opening thereof, and bids shall be subject to acceptance by the Owner during this period. 13. DEPOSIT E. Forfeiture of Deposit: If the selected Bidder withdraws his Bid within 30 days after closing date for the receipt of Bids or within such period as the time of acceptance may be extended by the Owner; or if the Bidder fails to withdraw his bid and refuses to provide the documentation required for Notice of Award, Bidder will forfeit Bid deposit and waive any right to make claim thereto. Historically, Respondent has permitted contractors to submit clarifying information, financial information, work load information, and scheduling information until a purchase order is issued but has not permitted a bidder to supplement or amend the prices contained in its bid. Respondent considers an attempt to change a price to be a material alteration or amendment of a bid but historically has viewed all other information as merely clarifying or supplemental and not as a material amendment. There are prior instances in which a bidder has submitted a bid which did not include certain technical data otherwise required to evaluate the bid, and where the Respondent already was in possession of such data, the bid was evaluated on the data already in Respondent's possession. Herein, Respondent University was familiar with Merit's qualifications and performance because Merit was already a vendor on a similar open-end asbestos contract for the past two years and had completed work on specific jobs. Each time a contractor under an open-end asbestos contract gets a job from Respondent, Respondent requires that the contractor update his qualifications only to the extent that his previous submittals would be inaccurate or incomplete. Merit's Black Book contained qualifying data for asbestos abatement and its certified asbestos contractor's license showing Merit to be a licensed asbestos contractor in the state of Florida. It was received and approved by Respondent's consultant on such a job in September 1990, and Respondent was thereafter continuously aware that Merit's license extended past the bid opening date for the instant ITB. Based on this information, Respondent has effectively treated Merit's Black Book herein as a qualification package or pre-job submittal, even though the Respondent's usual practice and this specific ITB did not require pre-qualification of contractors for the new annual ITB. According to Remus Acosta, he treated Merit's prior submittal of qualifying data in exactly the same way as those other bidders' submittals received on January 10, 1991 when he evaluated the January 10, 1991 bids. Because all the required information for the step two evaluation was already in the possession of Respondent before Mr. Acosta began his evaluation of all the bids and because Petitioner did not demonstrate how any bidder was prejudiced by Respondent's relying on Merit's Black Book already in Respondent's possession prior to the date it was due (bid opening day) or how Merit received any advantage from submitting that part of its bid package early, Merit's failure to simultaneously submit the Black Book with Merit's sealed bid on January 10, 1991 constituted a minor technicality. Under the circumstances of this case, Mr. Acosta's action of waiving simultaneous filing of qualifications for a bidder who had previously filed them constituted an acceptable waiver by Respondent of an insubstantial or immaterial variance or irregularity. Section 00100 paragraph 9 specifically reserved to Respondent the "right to waive informality and irregularity in the bids and bidding." Evaluation Process (The Three Iterations) The ITB initially required all bidders to bid on different components of three types of asbestos abatement projects which Respondent's prior experience had demonstrated would be typical of those projects yet to be encountered during the new contract period. The ITB set forth that the "Standard Jobs," designated as "A," "B," and "C," were weighted 50, 30, and 20%, respectively, based on the Respondent's experience with the spread of such similar or typical jobs. The ITB did not set forth or articulate the quantity criteria for the standard jobs, including but not limited to the disposal quantity. Bidders were not required to price based on any set quantities. They were just to price standard elements to make up the jobs. Calculation of quantities based on the three standard jobs was for step three evaluation purposes. Remus Acosta did the initial step three evaluation, taking the component costs provided by each bidder on January 10, 1991 and tabulating the total costs anticipated for each job. After adjusting the totals for weighting, he determined a single total bid price by each bidder. That tabulation listed Merit as low bidder. Petitioner filed its notice of protest on January 16, 1991. On January 25, 1991, Petitioner filed its formal written protest. It was then determined that Mr. Acosta's total costs calculated for each bidder in the January 14, 1991 posting were in error. Thereafter, Respondent attempted another tabulation of bid results, correcting the mathematical errors of the first tabulation. The corrections were entered into the computer spread sheet and rerun as the "first iteration." As a result of that calculation, Merit was again listed as low bidder. There was also a "second iteration" done for all bidders which was posted on February 7, 1991. The second iteration and the job sample therefor were not prepared by Mr. Acosta, but was prepared at his request by Kevin Gara, an Industrial Hygiene and Asbestos Program Manager for Respondent's Environmental Health and Safety Division. Mr. Gara was highly qualified by education, training, and experience to perform the tasks assigned him by Mr. Acosta, but Mr. Acosta had given Mr. Gara a tally sheet that had an incorrect description that included both mobilization and decontamination (decon) functions as one unit. Therefore, the tally sheet given to Mr. Gara did not accommodate the format of the present ITB bid form. As a result of that "second iteration," Merit remained the low bidder. Petitioner contended that the second iteration was flawed and contained errors because of mislabelling and transcription problems and that if the second iteration had been done correctly, Petitioner's, not Merit's, would have been the lowest bid. Respondent did not necessarily agree with that representation, but the parties to the protest concurred that the second iteration was so significantly flawed that a "third iteration" was required. Respondent went on to conduct a third iteration of the bid tabulation as it applied only to Merit and Petitioner. The third iteration was dated February 27, 1991. There were no changes to the ITB specifications as the Respondent went through the three iterations. The third iteration was put together by Brian DuChene, a staff engineer for Law Engineering, one of Respondent's outside consultants. Mr. DuChene works directly under the supervision of a qualifying agent of that company who is a professional engineer and a Florida licensed asbestos consultant. The third time, the format matched the bid form but three new job samples were created based on actual jobs Mr. DuChene had previously overseen or supervised for Respondent. Mr. DuChene's goal in creating the third set of samples to conform to the A, B, C scenarios set out in the original ITB was to effectively answer all questions and problems either posed by the Petitioner/protestant or discovered by Respondent in the course of the first two iterations. He reviewed 70 to 80 prior actual projects to develop as objective as possible a scenario that met the description of the ITB and contract documents for the A, B, and C jobs based on Law Engineering's preliminary cost estimates for the unit quantities from Respondent's similar completed asbestos abatement jobs. Although at least one of Mr. DuChene's preliminary cost estimates came from a job completed by Merit under the prior contract, he did not use any former contractor's actual proposal or any bidder's pricing. This eliminated any skewing in favor of any contractor. Essentially, all Mr. DuChene did in the third iteration was to calculate effectively realistic quantities for situations devised to reasonably fit the A, B, and C scenarios already set forth in the ITB. He also applied the weighting factor already set out in the ITB. His situation methodology and his evaluation/tabulation on behalf of Respondent resulted in Merit's still having the lowest total cost and thus being the lowest bidder as between Merit and Petitioner on the third iteration. Gerald W. Clauss, Petitioner's project administrator, also calculated what the quantities of materials removed from each job would be. He based his calculations on disposal quantities from Petitioner's own limited prior experience and used a method of assessing disposal quantities that did not account for much more than absolute volume of disposal amounts. If Mr. Clauss' estimate as to quantity in cubic yards of asbestos, waste plastic, and other refuse is used, Petitioner's total cost as set forth in the third iteration would be lower than Merit's. Upon Mr. DuChene's tabulation of the third iteration, Merit still prevailed as lowest bidder due to Respondent's applying its calculations to each bidder's respective unit prices ($75 bid by Petitioner and $10 bid by Merit). Respondent established that its calculations in the third iteration based on wide experience and scenarios conforming to the present ITB represent a more practical approach to calculating disposal amounts than do the calculations of Petitioner. Petitioner attempted to show that Mr. DuChene used the wrong quantities in item 150, disposal in landfill, especially in Standard Job A. Since Petitioner's disposal in landfill cost is $75.00 per cubic yard and Merit's is $10.00 per cubic yard, by lowering the disposal quantity in Standard Job A to numbers of Petitioner's choosing, Petitioner caused its bid to become lower than Merit's bid. Although Mr. Clauss' disposal in landfill quantities are mathematically correct for the actual asbestos removal, they do not include the large quantities of plastic required to seal the work area or anticipate a reasonable error factor based on the uncomfortable and hazardous conditions under which this type of contract must be performed. Mr. DuChene's disposal in landfill quantities are more realistic because they include these items. Although every contractor has a different way of establishing the disposal quantity and there is no right number because estimating disposal quantities can never be specifically quantified with no dispute, the greater weight of the credible expert testimony established that Mr. DuChene's methodology and calculations on the third iteration comply with the ITB and further establish that his method is one rapidly gaining favor in the industry due to its accuracy and fairness. Respondent's calculations were considered unreasonable by Petitioner's expert, Mr. Langston. However, each of the experts' calculations, including Mr. Langston's, were significantly higher than those of Mr. Clauss for all disposal quantities. Using Mr. Langston's calculations, Merit's weighted total bid would be higher than Petitioner's; however, Mr. Langston's calculations are mathematically flawed and his assumptions of disposal amounts are not as credible in light of all of the testimony than are those of Mr. DuChene for Respondent. It is significant that even Mr. Langston did not concur with Mr. Clauss' assessment of disposal quantity and Mr. Browning, based on his extensive experience, developed disposal quantities very close to Mr. DuChene's for two of the scenarios, Standard Jobs A and C. Respondent's methodology and its calculations for bid evaluation as contained in the third iteration are reasonable and do not go outside the ITB.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the University of Florida enter a Final Order dismissing Blackwell's protest and ratifying award of ITB P91S-79YC to Merit. RECOMMENDED this 11th day of October, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3454BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-7 Accepted. 8 Accepted to the degree utilized, the remainder is subordinate. 9-10 Accepted. Rejected as legal argument, as unproven, and as subordinate, but subject matter is covered in RO. Accepted. 13-14 Accepted but subordinate. This expert opinion was neither accurate or persuasive nor unilaterally dispositive of any material issue. Covered in RO. Accepted. The first sentence is accepted. The second is not proven as to all three jobs, but whether it was one or three, the proposal is subordinate to the facts as found and not determinative or dispositive of any material issue. Accepted. Rejected as stated as contrary to the greater weight of the evidence. The appropriateness and reasonableness of the selection was at issue and is covered in the RO. 19(i-vi) Rejected as legal argument, as selective use of verbatim, unreconciled testimony, and as stated, these proposals are contrary to the greater weight of the credible and probative evidence. 20-24 Accepted. Rejected as legal argument or a conclusion of law but covered in the RO. Accepted. 27-29 Rejected because not proven as stated. Covered in the RO that Respondent accepted as current the Black Book's contents without further formal verification and covered in the RO as to when and how Merit's evidence of eligibility was received and considered and what was the duration and nature of the evaluation process. 30-31 Accepted. 32-34 Rejected as legal argument and subordinate and cumulative to the facts as found. That the Black Book was not in Merit's timely filed sealed bid envelope is covered in the RO. 35 Sentences 1 and 2 are rejected as mere legal argument. Sentence 3 is accepted. 36-37 Accepted but edited to cull mere legal argument. Respondent's PFOF: 1-13, 16-17, 19, 22, 26, 30-31, 38 Accepted except to the degree they are unnecessary or subordinate or cumulative to the facts as found. 14-15, 18 Accepted in part and rejected in part as legal argument or mere recitation of unreconciled testimony. Cumulative or unnecessary material has also been eliminated. The subject matter is covered in the RO. 20-21 Rejected because it is legal argument or a conclusion of law but covered in the RO. 23-25, 27-29, 32-37, 39-41 Accepted but not utilized in toto to the degree they are mere recitation of unreconciled testimony, unnecessary or subordinate, or cumulative to the facts as found. Covered in the RO. COPIES FURNISHED: Joseph T. Barron Associate General Counsel Barbara C. Wingo Deputy General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Marshall Cassedy, Esquire McFarlain Law Firm P. O. Box 2174 Tallahassee, FL 32301 Pam Bernard, General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611
The Issue The two major issues in this case are as follows: Was the failure of Datamaxx to submit resumes of training and maintenance personnel as required by Performance Mandatory No. 10 of the Invitation to Bid a material deviation from the Invitation to Bid such as to render Datamaxx a nonresponsive bidder? If Datamaxx was a nonresponsive bidder, must the contract be awarded to Burroughs, or must DHRS, pursuant to Section 13A-1.002(3), Florida Administrative Code, have the contract rebid, or seek single source procurement or negotiation approval from the Division of Purchasing?
Findings Of Fact Based on the admissions of the parties, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence, I make the following findings of fact: For at least the past 10 years, the DHRS Data Communications Network has been maintained by Burroughs on a sole source basis. At the end of the previous Burroughs Terminal Maintenance contract with Burroughs, the Department of General Services (DOS) asked DHRS to bid the contract in lieu of sole source procurement, it being the belief of DOS that there was competition in this area. On or about September 19, 1986, DHRS published an Invitation to Bid which advised prospective bidders that sealed bids would be opened on October 20, 1986, for a contract, known as "Burroughs Terminal Maintenance" [Bid No. 86 ATM] regarding maintenance of the terminals of the DHRS Data Communications Network. The Special Conditions of the Invitation to Bid contained, among others, the following provisions: The State has established certain require- ments with respect to bids to be submitted by bidders. The use of "shall," "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this Invitation to Bid requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. (at p. 1) No negotiations, decision, or actions shall be initiated or executed by the bidder as a result of any discussions with any State employee. Only those communications which are in writing from the Department's Purchasing office may be considered as a duly authorized expression on behalf of the State. Also, only communications from bidders which are signed and in writing will be recognized by the State as duly authorized expressions on behalf of the bidder. (at p. 2) All personnel performing maintenance must be trained to service the equipment covered by this contract. Training shall be completed before the individual is assigned to service the equipment covered by this contract. Training shall be provided to whatever level is necessary to ensure the individual has the required qualifications to perform satisfactory maintenance service on Burroughs equipment listed in Attachment A of this Invitation to Bid. Bidder shall submit with their bid a summary of their Burroughs training program and resumes of personnel who will be performing this training and the resumes of personnel who will be per- forming the maintenance. (at p. 8) Bidder shall certify to the State, at the time the bid is submitted, that bidder has existing established service centers staffed with personnel trained to service the equipment covered by this contract . . . In lieu of this requirement, if bidder does not have existing established service centers, liaison office, and trained personnel, and bidder submits a plan for compliance, the required certification must be given the State no later than two (2) weeks prior to the anticipated starting date of the contract as indicated in the paragraph of this document entitled Calendar of Events. Failure to comply with this requirement shall result in rejection of the bid and award of the bid to the next lowest responsive bidder. The Invitation to Bid was drafted by the Department of Health and Rehabilitative Services. The only bidders on the contract (other than no- bids) were Burroughs and Datamaxx. DHRS found Burroughs and Datamaxx both to be responsive bidders and posted their bids making them public in the recognized manner of publicizing the bidder to be awarded a bid. Both bids were found to be responsive by DHRS at the time they were made public. The Datamaxx bid was the lowest bid and the Burroughs bid was the next to lowest bid. DHRS staff recommended the contract be awarded to Datamaxx. The Datamaxx bid was approximately $784,000 less than the Burroughs bid. In its bid Datamaxx indicated that it understood and agreed to all provisions of the Invitation to Bid, specifically including those dealing with Mandatory Requirements, Verbal Instruction Procedure, Rejection of Bids, Bid Evaluation, Performance Mandatories, and Certification. Datamaxx submitted the Certification required under the terms of the Invitation to Bid and did not submit a plan for compliance with its bid. Datamaxx never requested in writing that the requirement for resumes be waived, and DHRS never advised Datamaxx in writing that it did not have to submit the resumes. Datamaxx did not submit with its bid the resumes of training and maintenance personnel required under Performance Mandatory 10 of the Invitation to Bid. Performance Mandatory No. 10 required the submission of resumes with the bid, and did not concern an event that would take place after the bid had been let. DHRS considered the requirement for resumes to be a mandatory requirement. The qualifications of the persons who would be performing the maintenance under the contract would have a potentially significant effect on the quality of the maintenance provided. Nothing could be more material to the contract than the ability of the personnel to perform that contract. The difference in the dollar amount of the bids of Burroughs and Datamaxx influenced the decision of DHRS in finding Datamaxx to be a responsive bidder. This was a major reason Datamaxx was found to be a responsive bidder. In evaluating the Datamaxx bid, DHRS went outside the material provided in the Datamaxx bid. Subsequent to the posting of bids, DHRS met with Datamaxx and advised Datamaxx that its initial submission was deficient for not including resumes with the bid, that DHRS had waived the resumes, but that in order for DHRS to continue its recommendation that the bid be awarded to Datamaxx, DHRS had to have the resumes prior to the awarding of the bid. DHRS considered it an error and a deficiency in the bid that the resumes were not furnished. Datamaxx, on November 6, 1986, advised DHRS in a letter to Charles Ray that it would submit a plan which would address, among other things, service personnel resumes by November 17, 1986. DHRS could not have considered Datamaxx's letter of November 6, 1986, in evaluating whether Datamaxx was a responsive bidder, because that letter was not received until after DHRS had already found Datamaxx to be a responsive bidder and recommended that the contract be awarded to Datamaxx. Had Datamaxx not submitted the resumes prior to November 17, 1986, DHRS staff would have recommended that the award of the contract be withdrawn. The performance the State would receive under the contract would directly depend on the qualifications of the persons performing the service and the maintenance, and the resumes would be the only source of information regarding the qualifications of the personnel.
Recommendation For all of the foregoing reasons, it is recommended that a final order be entered to the following effect: Concluding that the bid submitted by Datamaxx USA Corporation on Bid No. 86 ATM should be rejected on the grounds that it is not responsive, Concluding that the bid submitted by Burroughs Corporation should be rejected on the basis of Rule 13A-1.002(3), Florida Administrative Code, and, Providing for the agency to issue a second invitation to bid/request for proposals or take other action provided by Rule 13A-1.002(3), Florida Administrative Code. DONE AND ENTERED this 25th day of June 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4460B1D The following are my specific rulings on each of the proposed findings of fact submitted by both parties: Findings proposed by Petitioner Paragraphs 1 through 19 are accepted with a few minor editorial modifications. The first two lines of paragraph 20 are rejected as redundant. The remainder of paragraph 20 is accepted. Findings proposed by Respondent Paragraphs 1 and 2 are accepted in substance. Paragraph 3 is rejected as constituting unnecessary details. Paragraphs 4 through 7 are accepted. Paragraphs 8, 9, and 10 are rejected as irrelevant. Paragraph 11 is rejected in part as irrelevant and in part as contrary to the greater weight of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as constituting irrelevant and unnecessary details. COPIES FURNISHED: Robert L. Powell Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
