The Issue Whether Respondent properly rejected Petitioner's bid on the grounds that the bid did not meet a fatal item requirement.
Findings Of Fact On April 24, 1992, Respondent published a Request for Proposals (RFP) for the provision of housekeeping services to South Florida State Hospital. Attached to the RFP as Appendix I was a blank copy of Respondent's "Standard Contract" which is also referred to as its "core model contract". Paragraph 1.a. of Section D of the RFP contains the following instructions to bidders: BIDDER RESPONSE a. State of Florida Request for Proposal Contractual Services Acknowledgment Form, Pur 7033 The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, Appendix II must be signed and returned ... with the proposal or submitted by itself if you choose not to submit a proposal and wish to remain on the department's active vendor list. Paragraph 1.g. of Section D of the RFP, contains the following instructions to bidders: Required Bidders Certification Contract Terms and Conditions The proposal must include a signed statement in response to the RFP indicating acceptance of the terms and conditions of provisions of service as specified in the RFP and contained in the core model contract. Bidders were provided a copy of the RFP rating sheet which contained the following under the heading of Fatal Items: The following criteria must be met in order for the proposal to be considered for evaluation, failure to receive a "Yes" response for any time [item] will result in automatic rejection of the proposal. * * * Does the proposal include a statement agreeing to terms and conditions set forth in the core model contract and the RFP? Petitioner was represented at a "Bidders' Conference" held May 15, 1992, at which the fatal items were discussed. Bidders were advised that it would be necessary for the responses to contain a statement agreeing to the terms and conditions set forth in the core model contract. The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, contains the following certification: I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency for the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, assign or transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, was signed by Richard A. Cosby on behalf of Petitioner and submitted as part of Petitioner's response to the RFP. Upon receipt of all responses, Respondent convened an evaluation committee to evaluate the responses. The evaluation committee determined that the response submitted by Petitioner did not contain the required statement agreeing to the terms and conditions set forth in the core model contract and the RFP. Consequently, the evaluation committee rejected Petitioner's proposal from further consideration. Petitioner does not challenge the specifications of the RFP, but, instead, asserts that Mr. Cosby's execution of the State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, was sufficient to meet the requirement the evaluation committee found lacking. The language of the Contractual Services Acknowledgment Form, PUR 7033, that most closely approximates the certification that the bidder accepts the terms and conditions set forth in the core model contract and of the RFP is as follows: I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. The proposal submitted by Petitioner did not contain any other statement which could be construed as accepting the terms and conditions set forth in the core model contract and the RFP. The broad language of the Contractual Services Acknowledgment Form, PUR 7033, upon which Petitioner relies does not state that the bidder accepts the terms and conditions set forth in the core model contract and the RFP. The evaluation committee properly determined that Petitioner's response failed to meet this fatal item. In this proceeding, there was evidence that the Respondent routinely inserts in its Request for Proposals the fatal item requirement that the bidders agree in writing to accept the terms and conditions set forth in the core model contract and the RFP, and that Respondent has never waived that fatal item requirement. There was no evidence that Respondent was using this fatal item requirement to discriminate against or in favor of any bidder.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is hereby RECOMMENDED that the Respondent dismiss Petitioner's bid protest. DONE AND ENTERED this 18th day of August, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of August, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4311BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. 1. The proposed findings of fact submitted by Petitioner are accepted in material part by the Recommended Order. Petitioner's conclusions based on those facts are rejected for the reasons discussed in the Recommended Order. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Richard A. Cosby, Vice President National Cleaning of Florida, Inc. 1101 Holland Drive, #32 Boca Raton, Florida 33487 Colleen A. Donahue, Esquire District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's bid is the lowest and the best and whether it is responsive concerning bid specifications, as amended by one addendum, issued by the Respondent as an Invitation to Bid (ITB).
Findings Of Fact On September 21, 1993, the University issued an ITB for Project 2230 calling for replacement of a fire alarm system at the Museum. The bids were scheduled to be opened on October 28, 1993, at 1:30 p.m. A project manual was written incorporating the "Simplex" addressable fire alarm system in the specifications, but substitutes were permitted in the ITB. Specifications did not sole-source Simplex. The project manual allows for substitutions providing for "fire alarm system equal to Simplex . . .". The project manual provides that "if bids are based on equivalent products, indicate on the bid proposal form (Bid Form 00310-1) the manufacturer's name and catalog number. Bidder shall submit at the time of bidding, cut sheets, sketches, and descriptive literature and/or complete specifications." The bidder is also required to explain in detail the reason why the proposed equivalent would meet the specifications. The specifications also provide that "bids which do not comply with these requirements are subject to rejection. Bids lacking any written indication of intent to quote an alternate brand will be received and considered in complete compliance with the specifications as listed on the bid form." Thus, if a bidder did not indicate any alternate system in its bid and did not indicate any written intent to quote an alternate system, then it would be presumed by the University that the bidder would comply with the Simplex specifications and that would be deemed responsive. The advertisement for the ITB was submitted on September 22, 1993, to be published on October 1, 1993 but, instead, was published in the Florida Administrative Weekly on October 8, 1993. Mr. Sontag, the Senior Purchasing Agent at the University, opined that that allowed sufficient time for bidders to respond. Irene Thomas is a Senior Clerk at the University Physical Plant Purchasing Office. She works for A.J. Sontag. Mr. Sontag has been with the University for six years and has prior purchasing experience. The project manual provides the address for obtaining copies of the proposed contract documents, including addenda, as the Physical Plant Purchasing Building No. 705, on Radio Road, in Gainesville, Florida. The project manual requires that in order to receive consideration, bids must be made upon forms provided therefor, properly signed, and with all items filled out. Potential bidders could get a bid package by calling Ms. Thomas and requesting one for pick-up or for mailing. Additionally, the bid package was transmitted to the "Dodge Room", which is a clearing house or depository for contracting plans whereby contractors interested in bidding on public projects may learn of the projects and obtain the relevant bid documents, plan specifications, and the like. The Dodge Room provides the specification manual, any addenda, and the drawings. The ITB general conditions were not a part of the bid package sent to the Dodge Room. The Petitioner learned of the project through the Dodge Room and obtained a set of plan specifications for the installation of the fire alarm system from that source. Mark Thomas Kerrin is the President and founder of the Petitioner. The Petitioner has been certified as a minority business enterprise (MBE) in electrical and fire contracting by the Department of Management Services (DMS) for four to five years. The Petitioner has never been invited by the University to bid on the project, although it has a practice of inviting MBE contractors to bid on projects. The University was not aware that the Petitioner was an MBE until they were so informed by Mr. Kerrin. For unknown reasons, the Petitioner was not in the most recent issue of the directory of MBE contractors, which the University employed in identifying potential MBE bidders. The pre-bid meeting for the project was held on October 7, 1993 at Building 700, on Radio Road, on the University campus in Gainesville, Florida. It was not a mandatory meeting, but Mr. Kerrin testified that he attended the pre-bid meeting. He arrived a few minutes late, however, because he had some difficulty finding the site and because he had a job to perform for a customer of the Petitioner in Gainesville on that day. By the time he arrived, the pre- bid meeting was nearly over, and the sign-in sheet, whereby attendees at the meeting signed to show their attendance, had already been taken up. Mr. Kerrin felt no need to sign, showing his attendance, since the meeting was not mandatory in any event. Mr. Kerrin described in his testimony the matters that were discussed at the pre-bid meeting after the time he arrived. He described much of the discussion as involving questions about the Edwards fire alarm system. He also described the discussion concerning a "remote annunciator panel", a certain type of electrical wire conduit (wire mold), phasing in of the new system and the use of a temporary system during installation of the new system. The consulting engineer, Lynn Hodge, who promulgated the technical specifications for the project, was at the meeting. In his testimony, he confirmed that the remote annunciator panel, conduit, phasing in of the new system and use of the temporary system were discussed at the pre-bid meeting in order to alert prospective bidders so that they would be aware of those items desired by the University for inclusion in the project. The potential bidders attending the meeting were advised that those items might be included in an addendum to the project manual. Mr. Hodge assumed that these potential bidders would reflect those items in their bids. Mr. Kerrin testified that he met A.J. Sontag, the Senior Purchasing Agent, at the conclusion of the pre-bid meeting. He states that he introduced himself to Mr. Sontag and gave him a business card. Mr. Kerrin advised Mr. Sontag that his business is an MBE and he inquired as to why he had not been sent an ITB by the University. Mr. Kerrin also advised Mr. Sontag at that time that he intended to bid on the project, not as a subcontractor but, rather, as a prime contractor. Mr. Sontag, however, denies attending the pre-bid meeting on October 7, 1993 or meeting Mr. Kerrin prior to the bid opening, which occurred on October 28, 1993. Mr. Sontag testified that at the time of the pre-bid meeting, he was opening a bid for a different project at his nearby office. He acknowledged, however, that he could have walked to the pre-bid meeting on the Museum project at issue, which was only a short distance away. The Petitioner presented the testimony of Maxwell Petzold of PCR, Incorporated, a chemical manufacturing business located in Gainesville, Florida. He confirmed that Mr. Kerrin had come to his place of business in October to perform some testing, because his company was having some difficulties with its security and fire alarm system. The Petitioner, in turn, submitted evidence in the form of a computer printout, from its business records, concerning activity with respect to the equipment of PCR, Inc. in Gainesville, Florida. That printout shows that Mr. Kerrin personally tested PCR's equipment in Gainesville, Florida, on October 7, 1993, the day of the pre-bid meeting. It is found that Mr. Kerrin was in attendance at the pre-bid meeting in the manner he described. On the day after the pre-bid meeting, October 8, 1993, the ITB was advertised in the Florida Administrative Weekly. The University has no written procedure concerning the issuance or dissemination of addenda to ITB's. On October 21, 1993, the addendum was transmitted to the physical plant office for dissemination to those interested in bidding on the Museum alarm project. On October 22, 1993, the 22-page addendum to the bid document was transmitted by telefacsimile (fax) to most prospective bidders. Other prospective bidders were telephoned and picked up a copy at the physical plant office. The fax cover letter accompanying the addendum stated "failure to acknowledge your addendum could constitute rejection of your bid." All but two pages of the addendum were non-technical in nature. The technical changes in the addendum principally provided for the installation of the remote annunciator panel. The remote annunciator panel provides the same read-out capability and control capability as the main panel, but was to be in a supervised location easily found by the fire department when responding to calls. Other technical changes provided for a transitional monitoring system, while the old alarm system was being replaced and also a minor specification concerning use of wire molding, as opposed to common round electrical conduit. On October 26, 1993, Mr. Kerrin was again in Gainesville, Florida, to test the equipment of his customer, PCR, Inc. See Mr. Kerrin's testimony at pages 156-157 of the Transcript and Petitioner's Exhibit 25 in evidence. While in Gainesville, Florida, on that day, Mr. Kerrin stopped at the University to attempt to ascertain why the Petitioner was not given information on other bidding opportunities and to see if there were any addenda or changes to the specifications of the project in question. Mr. Sontag advised him that no addendum had been issued, although his office had distributed the addendum to other prospective bidders four days earlier. Mr. Sontag testified that he was in Tennessee on the day the addendum was issued. It was issued from his office, by those acting in his stead. The Petitioner's bid is for the Notifier alarm system in the amount of $74,500.00. Preston's bid was for $80,510.00 using the specified Simplex system. Shine submitted a base bid of $82,460.00 with a $15,000.00 deduction if the Edwards system was used, which resulted in a bid of $67,460.00. The Edwards system was determined to not comply with the specifications; however, and that fact is undisputed in this proceeding. Thus, Shine's bid in the amount of $67,460.00 was unresponsive, was not awarded, and is not contested. Fire Alarm also bid the Notifier system, and its bid was for $78,459.00. The Petitioner attached literature describing the Notifier system (Notifier AFP1010) to its bid form. Both Mr. Kerrin and his secretary, Mary Johnson, who helps him prepare bids, testified that the "cut sheets" or informational literature concerning the Notifier alarm system was attached by staples to the Petitioner's bid form. The Notifier system was ultimately determined by the University, in its evaluation process, to equal the Simplex type of equipment specified in the bid specifications. It, therefore, was the "equivalent" of Simplex. Mr. Sontag, the Senior Purchasing Agent, described the normal procedure for opening bids. On October 28, 1993, the bids were opened with the contending bidders, including Mr. Kerrin, being present. The bid opening procedure began with the contending bidders signing their names on the reverse side of the bid tabulation sheet. Each bid was then opened and read aloud by Mr. Sontag and recorded by his Senior Clerk, Ms. Irene Thomas. After each bid package was opened, it was laid on a stack of bid packages on Mr. Sontag's desk. After all bids were opened, Mr. Sontag testified that he provided each attendee with a copy of the bid tabulation sheet. He then turned the original bids over to the Senior Clerk, Ms. Thomas, who photocopied them. This is a normal procedure in each bid opening that Mr. Sontag's office handles. Mr. Sontag testified that he had no specific recollection of any specific bid opened that day, although he knows that he opened all of them, including the Petitioner's bid. In any event, he turned the bids over to Ms. Thomas after they were all opened and entered on the bid tabulation sheet. Concerning the process of photocopying the bids, Mr. Sontag testified that no staples were removed from the bids when they were copied, instead the pages were merely folded over for copying of each page. He reiterated his testimony, several times, that no pages are unstapled in the process of copying bid forms and that no staples are removed in making copies of bids, in the interest of the time required in unstapling bids for copying each individual page. Later, however, when Mr. Sontag again testified at the hearing, he retracted his statements that bid forms are copied without removing staples. Ms. Thomas, the Senior Clerk who copies bid forms approximately 95 percent of the time, had testified and confirmed that, indeed, it is normal practice to actually remove staples attaching bid documents during the copying process. Additionally, Ms. Thomas testified that Mr. Sontag would have no way of knowing how bids were copied since he is not present during the copying process. Copies of the bid packages made by Ms. Thomas are then transmitted to the Department of Architecture and Engineering for evaluation. In the bidding situation at issue, Donald C. Jennings, the Assistant Director of Purchasing, took the copies of the bids and the bid tabulation sheet. Mr. Jennings was Acting Project Manager in the absence of John Jones. Mr. Jennings was present at the bid opening. On the same day as the bid opening, Mr. Jennings prepared a tabulation of the bids and submitted it to the Project Manager, John Jones, with a memorandum. The bid tabulation sheet submitted by Mr. Jennings to Mr. Jones listed beside the name of each bidder the amount of the bid and the type of alarm system bid by that proposed vendor. The Petitioner's entry on the tabulation has beside the name of the Petitioner on the tabulation sheet the word "Notifier". The official bid tabulation retained by Mr. Sontag did not list the Petitioner as having bid the Notifier system. It did not list Fire Alarm Service Corporation as having bid the Notifier system either, although there is no dispute that Fire Alarm did bid the Notifier system. The original bid form of the Petitioner, produced by the University at hearing, (Petitioner's Exhibit 7), shows several staples had been removed from the form, including the staple on the back page where a "cut sheet" describing the type of system bid, would have been attached. Mr. Kerrin and his secretary, Ms. Johnson, both testified that the cut sheets for the Notifier system had been attached to the Petitioner's bid form when it was submitted. Their testimony is corroborated by the evidence showing that Mr. Jennings had in his possession a tabulation of the bids, which he transmitted to Mr. Jones on the same day as the bid opening, which indicates that the Petitioner was bidding the Notifier system. Thus, it is found, and the preponderant evidence establishes, that the Notifier system cut sheets and description of the Notifier system were submitted with the Petitioner's bid. The testimony of Mr. Kerrin and Ms. Johnson to this effect is accepted. Once delivered to the University, the Notifier information or cut sheets were removed for unknown reasons or inadvertently lost, (although a number of University witnesses testified to never having seen any extra cut sheets lying around their offices, that testimony is not probative of any finding that the cut sheets were not submitted with the bid). Further, in this regard, on November 16, 1993, Mr. Jones wrote Mr. Jennings a memorandum inquiring "how did you know ESP was bidding Notifier system?" Mr. Jennings replied the following day, in writing, that he knew "from their bid." Since the Petitioner's bid form itself did not specify the Notifier system, Mr. Jennings should only have learned this from the attached literature or "cut sheets." Mr. Jennings acknowledged in his testimony that the Petitioner was still under consideration for the bid award more than a month after the bids were open. The University's concern at that time was apparently whether the Petitioner had actually bid the Notifier system and not that the Petitioner had failed to acknowledge the addendum to the ITB. The University maintained that the Petitioner did not attach the descriptive literature or cut sheets concerning Notifier to its bid to show that it complied with specifications. The University, however, did not request of the Petitioner any descriptive literature as to Notifier to determine whether it equalled the bid specifications, but it did consult by telephone and in writing with Fire Alarm Service Corporation regarding the Notifier system, which Fire Alarm had also bid. Eventually, through these contacts, the University concluded that the Notifier system met the specifications. The preponderant, credible evidence shows, however, as found above, that the University, through Mr. Jennings at least, was aware that the Petitioner was bidding the Notifier system on the same day the bids were opened. Initially, in the evaluation process, the award was recommended to be given to Preston, which had bid an amount of $80,510.00. Then, when the Notifier system was approved as complying with the specifications, the award was recommended to be given to Fire Alarm Service Corporation, which bid $78,459.00. This was in spite of the fact that the University at that time knew that the Petitioner had bid the Notifier system, as well, and knew that the Petitioner's bid was in the amount of only $74,500.00. Ultimately, Fire Alarm Service Corporation was disqualified because it failed to meet the MBE requirements regarding "good faith effort". The bid evaluators at that point then recommended that the award go back to Preston, although its bid was $6,010.00 more than the Petitioner's bid. The Petitioner was disqualified by the University for allegedly not attaching the descriptive literature concerning the Notifier system and for failing to acknowledge the addendum to the ITB. The University's specification documents associated with the ITB indicate that "failure to acknowledge your addendum could constitute rejection of your bid." This language indicates that rejection of a bid for failure to acknowledge the addendum was discretionary and not an automatic disqualification in the view of the University, according to its specification. However, the University's Associate Director of Architecture and Engineering, Mr. C.P. Tate, rejected the Petitioner's bid when he learned that the Petitioner had not acknowledged the addendum. Mr. Tate was aware that the addendum had been promulgated but did not draft it nor had he read or reviewed it. He was not shown to have known whether failure to acknowledge the addendum amounted to a material deviation from the specifications of the ITB, especially in the instant situation, where the the Petitioner had not been given a copy of the addendum. Mr. Hodge, the Project Engineer, testified that all potential bidders at the pre-bid meeting would have known that the remote annunciator panel was a necessary part of the project and would have included the cost of the panel in their bids. In fact, the annunciator panel was a legal requirement of the State Fire Marshal's Office, in its enforcement function concerning the relevant fire safety statutes and rules. Mr. Kerrin was at the pre-bid meeting and testified that the Petitioner, in fact, included the cost of the remote annunciator panel and related materials and equipment in its bid. Moreover, Mr. Kerrin believed that the remote annunciator panel and a temporary monitoring capability, to be installed during the replacement of the permanent fire alarm system, was required by law, as also shown by Mr. Hodge's testimony. Mr. Kerrin therefore considered that to be implicit in the original bid specifications themselves. The wire mold, which was the other chief technical portion of the addendum, is a relatively inexpensive item which many contractors keep on hand. Mr. Kerrin considered that element of the technical changes posed by the addendum to be of negligible cost. Mr. Hodge, in his testimony, stated that the estimated cost of the remote annunciator panel and other technical changes contained in the addendum would amount to approximately $8,000.00. He testified that the remote annunciator panel itself, including the cost of the panel plus the cost of installation, would be approximately $5,000.00 and the related technical items in the addendum would amount to $2,000.00-$3,000.00, for a total of approximately $7,000.00-$8,000.00. Petitioner's Exhibit 39 in evidence, however, concerning which Mr. Kerrin testified, is a letter by Mr. Hodge himself, dated September 2, 1993, which shows that he estimated the remote annunciator panel to only cost approximately $1,300.00, as opposed to $5,000.00. In fact, Mr. Kerrin testified that the remote annunciator panel and the related items in the addendum would cost approximately $1,500.00. He included such costs in his bid. In light of this evidence and in careful consideration of Mr. Hodge's testimony, together with the September 2, 1993 letter, authored by Mr. Hodge, concerning the purported cost of the remote annunciator panel, as well as Mr. Kerrin's testimony, it is determined that Mr. Kerrin's testimony is more credible. It is accepted over that of Mr. Hodge in these particulars. Thus, the actual established cost of the technical items contained in the addendum would amount to somewhat less than 2 percent of the bid price submitted by the Petitioner. The Petitioner's bid price, in turn, was $6,010.00 less than that of Preston, the recommended awardee. University personnel in the Purchasing, Physical Plant and Architecture and Engineering Offices are well familiar with Preston as a Gainesville-based business. Mr. Hodge knows certain personnel at Preston personally, sees them around town, and has recommended them to others for jobs, although he does not know them socially. Preston has received a great many jobs, both competitively-bid jobs and those which were submitted "on quote" because they were below the monetary threshold requirement for competitive bidding. In fact, during the period from December 22, 1992 through October 5, 1993, as shown by Petitioner's Exhibit 8 in evidence, Preston did more than 30 jobs of all types for the University, both competitively-bid and non- competitively-bid jobs. Since the Edwards system was never considered to be responsive, which is undisputed, Shine was disqualified as not meeting bid specifications. That left the Petitioner as the lowest remaining bidder. Later in the evaluation process, Fire Alarm was disqualified for not meeting MBE requirements or the good-faith requirement to use 21 percent minority subcontractors. Thus, the practical result was that by disqualifying the Petitioner, or not approving the Notifier system at all, Preston would receive the bid. It is particularly noteworthy that later in the evaluation process, when the University determined that the Notifier system met specifications, it elected not to award to the Petitioner but, rather, to Fire Alarm Service Corporation because it had bid the now-compliant Notifier system, and its bid was slightly over $2,000.00 cheaper than Preston's. That award decision might have stood had Fire Alarm not been disqualified for the problem concerning MBE status, referenced above, even though the University was aware on the day of bid opening that the Petitioner was, in fact, bidding the Notifier system, as well, with a bid almost $3,000.00 cheaper than Fire Alarm's bid. Mr. Kerrin complained in his testimony of the University failing to notify him of bidding opportunities even since the bid opening in question. After the bid opening, Mr. Hodge and other purchasing employees and agents of the University were well aware of his MBE status. Mr. Sontag explained in his testimony that the Petitioner had not been invited to bid on any projects in the year since the Museum project at issue was bid because "we haven't done any alarm system work since this." Mr. Sontag's testimony is contradicted by that of Mr. Hodge, who acknowledged doing other fire alarm addition projects through Mr. Sontag's office since the bidding at issue in this case. The Petitioner was informed of one project and bid on it. It involved an alarm system for the P.K. Yonge High School, operated by the University. The owner decided, however, to cancel that project. The bid invitation was withdrawn so that no award was made to any vendor in that situation. In summary, the preponderant weight of the evidence, the credibility of which has been weighed and determined by the Hearing Officer and which has thus culminated in the above Findings of Fact, shows that as a matter of fact, the Petitioner was the lowest, responsible bidder. Its bid was responsive to the bid specifications. The knowledge to determine that the Petitioner was the lowest, responsible bidder, and that its bid was responsive to the specifications, was available to the University at the time the various award decisions to the other vendors were made in the free-form stage of this process. Nevertheless, the University elected to make an award to a bidder who was not the lowest responsible and responsive bidder.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the University of Florida reconsider its bidding decision herein in a manner wholly consistent with the above Findings of Fact and Conclusions of Law and enter an award of the subject bid accordingly. 1/ DONE AND ENTERED this 12th day of April, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 12th day of April, 1995.
The Issue Whether the Respondent is entitled to a credit for unit price work which was not performed under the contract. Whether the contractor is entitled to additional payment for the electrical work on the outside stairwells and interior modifications. Whether the contractor is entitled to additional payment for installing the 3-inch drain for the HVAC discharge. Whether the Respondent is entitled to access $3,750.00 in liquidated damages against the contractor for completing the project ten (10) days beyond the scheduled completion date.
Findings Of Fact Jurisdiction Findings of fact 1 and 2 are approved, adopted, and incorporated herein by reference in their entirety. Credit for Unit Prices The findings of fact 3 through 28 contained in the Recommended Order are approved, adopted, and incorporated herein by reference except for the following: That portion of finding of fact number 15 which states "Such a bid process does not enhance the competitive bidding process or benefit the public." This sentence is rejected in that it is not supported by competent substantial evidence. The Hearing Office erroneously concluded that the inclusion of section 01026 in the bid specifications used by DNR for the Wakulla Springs Project was not in the best interest of the public. This section required that the unit price allowances be included in the base bid. The only evidence regarding the purpose of including the unit price allowances in the base bid was the testimony of Jerry Hicks. Mr. Hicks is a professional architect who has extensive experience in developing bid specifications for governmental contracts. [T. 170-171] Mr. Hicks was retained by DNR to develop the plans and specifications for the Wakulla Springs Project. [T. 173) Mr. Hicks testified that he placed the requirement that the unit price allowances be included in the base bid because the Department had a limited budget and he wanted to ensure that the Department would not be "caught at the end of the project short of funds." [T. 174] The purpose of the provision was to protect the state. [T. 174) The only evidence at the hearing indicated that the bid process used by the Department was to enhance the competitive bidding process and benefit the public by protecting the Department and ensuring the project would not go over budget. That portion of finding of fact number 26 which states: "Based on what he read, Mr. Gray did not think section 01026 required the unit price allowance to be included in the base bid." This sentence is rejected in that it is not supported by competent substantial evidence. Section 01026 of the bid specifications states in pertinent part: The contractor shall provide in his base bid the following work related to unit prices and the separate asbestos abatement contract. A change order will be issued to credit the owner with the difference in cost or charge the owner with additional unit price quantity cost. (emphasis in original) Gray did not allege that bid specification section 01026 was unclear or that he misinterpreted it. Gray's argument was that he did not carefully read the bid specifications and that he assumed the project was a "turn-key" project. Gray's testimony indicates that when Gray carefully read the bid specifications, he agreed that the unit price allowances were suppose to be part of the base bid. When asked on direct examination if there was any reference in the bid specifications concerning unit price allowances and the inclusion of these figures in the base bid, Gray answered that there was, but "they were stuck back in another section." [T. 224] During the cross examination of Mr. Gray, the following testimony was elicited: [T. 266] Q: That is not the question. When you read [the bid specifications document), you just didn't read it carefully. You missed this section [01026]. The section was in there. Did you dismiss it? A: I guess I dismissed it. The evidence clearly indicates that Mr. Gray understood section 01026 of the bid specifications to require unit price allowances in his base bid, but he either did not read the bid specifications or he did not follow them. There is no evidence to the contrary. Gray made a mistake because he did not read the bid specifications carefully and made assumptions about the nature of the project, not because the specifications were unclear. The Hearing Officer erred in concluding that Gray found the bid specifications unclear because it is contrary to the evidence and the assertions of Gray himself. The following findings of fact are adopted in addition to those delineated by the Hearing Officer: Section 01026 of the bid specifications clearly states that the unit price allowances are to be included in the base bid. contract. Petitioner completed $442,992.00 worth of work on the initial Stairwell Amendment Findings of fact 29 through 38 are approved, adopted, and incorporated by reference in their entirety. The HVAC Drain Findings of fact 39 through 43 are approved, adopted, and incorporated by reference in their entirety. Liquidated Damages Findings of fact 44 through 49 are approved, adopted, and incorporated by reference in their entirety. Prejudgment Interest Findings of fact 50 and 51 are approved, adopted, and incorporated by reference in their entirety.
Conclusions These conclusions are based upon all of the Findings of Fact made heretofore. The standard upon which the award of prejudgment interest is the definability of the amount in controversy. In Bergen Brunswig Corporation v. State Department of Health and Rehabilitative Services, 415 So.2d 765, the First District Court of Appeal said, " in Florida there has evolved a principle that prejudgment interest may be awarded when damages are a fixed sum or an amount readily ascertainable by simple calculation . . . . However, we now determine that the better view is expressed in the case of Tech Corp. v. Permutit Co., 321 So.2d 562 (Fla. 4DCA 1975), where the court held that, for the purpose of assessing prejudgment interest, a claim becomes liquidated and susceptible of prejudgment interest when a verdict has the effect of fixing damages as of a prior date." Using either test, Petitioner is entitled to prejudgment interest because the amount of money at issue was defined by the contract or by the proposed change order. All parties were always aware of the exact amounts in the change order claims, and all parties knew that the money was due Petitioner after the contract was completed on August 20, 1990. The parties even stipulated to the amounts in controversy: the amount withheld by the Respondent for unit price work is stipulated to be $33,444.60, and the amount due and unpaid on the claim for the HVAC drain was $1,014.85. Therefore, the Petitioner is entitled to prejudgment interest on certain amounts owed him by the Respondent at the statutory rate of 12 percent. The computation of the amount of interest due is ministerial. The damages per day for each day of delay were fixed by the contract at $250.00 per day; however, the number of days involved was subject to evidentiary determination. The excess amount withheld for damages for not finishing on time is $750.00. See "Delay" above. The $750.00 is not subject to prejudgment interest.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent pay the Petitioner $750.00, plus $34,459.45, and prejudgment interest on the $34,459.45 in the amount of 12 percent per annum since August 20, 1990. RECOMMENDED this 16th_ day of September, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0257 Petitioner's Proposed Findings of Fact Rejected; not a fact. Subsumed in paragraph 12 of the Recommended Order. 3-4. Rejected as irrelevant. Rejected as a conclusion of law. Adopted as paragraph 15 of the Recommended Order. Rejected as irrelevant. Subsumed in finding on substantial completion in paragraph 46 of the Recommended Order. Respondent's Proposed Findings of Fact Adopted. Subsumed in paragraphs 6, 8, and 11 of the Recommended Order. Adopted as paragraph 11 of the Recommended Order. Adopted as paragraph 14 of the Recommended Order. Adopted as part of paragraph 14 of the Recommended Order. Rejected as irrelevant. Rejected as irrelevant. Rejected as unnecessary. Rejected as unnecessary. Adopted. The facts on the amounts of the total contract were unnecessary because the amount in controversy and the amount withheld were stipulated to or presented as facts. Adopted as paragraph 8 of the Recommended Order. Adopted as paragraph 8 of the Recommended Order. Adopted as paragraph 9 of the Recommended Order. Adopted as paragraph 5 of the Recommended Order. Adopted as paragraph 5 of the Recommended Order. Adopted as paragraph 17 of the Recommended Order. 18-19. Subsumed in paragraphs 17 and 18 of the Recommended Order. 20. Adopted as paragraph 19 of the Recommended Order. 21-22. Subsumed in paragraphs 19 and 20 of the Recommended Order. 23-26. Subsumed in paragraph 47 of the Recommended Order. 27-28. Adopted as paragraphs 18 and 21 of the Recommended Order. 29. Rejected as unnecessary. Paragraph 28 states the amount in controversy. 30-31. Adopted as paragraph 12 of the Recommended Order. 32. Rejected as irrelevant. 33-34. Adopted as paragraphs 4 and 12 of the Recommended Order. 35. Rejected as irrelevant. 36-38. Adopted as paragraphs 4 and 12 of the Recommended Order. Adopted as paragraph 26 of the Recommended Order. Adopted as paragraph 13 of the Recommended Order. 41-43. Adopted as paragraph 24 of the Recommended Order. Adopted as paragraph 25 of the Recommended Order. Rejected as contrary to facts. Adopted as paragraph 26 of the Recommended Order. Adopted as paragraph 27 of the Recommended Order. Adopted as paragraph 26 of the Recommended Order. Rejected as contrary to facts. Rejected as irrelevant. Adopted as paragraph 29 of the Recommended Order. Adopted as paragraph 30 of the Recommended Order. Adopted as paragraph 31 of the Recommended Order. Adopted as paragraph 32 of the Recommended Order. Adopted as paragraph 33 of the Recommended Order. Adopted. Adopted as paragraph 36 of the Recommended Order. Adopted as paragraph 35 of the Recommended Order. Rejected as a conclusion of law. Adopted as paragraph 38 of the Recommended Order. Adopted as paragraph 39 of the Recommended Order. Adopted as paragraph 40 of the Recommended Order. Rejected as contrary to facts. Adopted as paragraph 40 of the Recommended Order. Rejected as contrary to facts. Adopted as paragraph 44 of the Recommended Order. Rejected as irrelevant. Rejected as irrelevant. 69-70. Adopted as paragraph 47 of the Recommended Order. Adopted as paragraph 48 of the Recommended Order. Rejected as contrary to facts regarding HVAC. COPIES FURNISHED: Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-0300 Ken Plante, Esq. General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, FL 32399-0300 Michael F. Coppins, Esq. DOUGLASS, COOPER, ET AL. 211 East Call Street Box 1674 Tallahassee, FL 32302-1674 Lynne Chapman, Esq. Kelly Brewton, Esq. Department of Natural Resources 3900 Commonwealth Boulevard MS-35, Douglas Building Tallahassee, FL 32399-2400
Findings Of Fact In June 1987 The School Board of Lee County, Florida invited the submission of sealed bids for grading and drainage improvements at the new Multipurpose Building at Fort Myers High School. In addition to requiring grading, the project involves the erection or placement of structures in the nature of a drainage system consisting of culverts, pipes, and concrete inlets with grates, to be tied into the existing drainage system off School Board property across a county right-of-way into a culvert for discharge across the street, and which on School Board property attaches to and becomes a part of an existing building. Sealed bids were submitted by Systems Technologies Co. of Ft. Myers, Inc. (hereinafter "Systems Technologies") and by Ledo Lines, Inc. Respondent determined Systems Technologies to be the lowest responsible bidder and advised Ledo Lines, Inc., that it would be awarding the contract to Systems Technologies. Warren W. Hunt is the president and the qualifying agent of Systems Technologies. Hunt has an underground utilities contractor's license which has been inactive since it was obtained by him in March, 1986, being inactive therefore both at the time that Hunt submitted the bid on behalf of Systems Technologies and at the time of the final hearing in this cause. The inactive status results from Hunt's failure to complete the license process with the State of Florida. Since Hunt's license was inactive due to being incomplete at the times material to this cause, neither Hunt nor Systems Technologies was a licensed contractor and Systems Technologies was not a responsible bidder at the time that the bid was submitted. The contract specifications set forth the method by which the bids would be evaluated. Paragraph numbered 2.9 on page PD-4 provides as follows: Comparison of Proposals - Proposals will be compared on the basis of total computed price for each division of work. Total computed price equals the sum of the prices for the lump sum Contract Item, plus the sum of the total prices for the unit price Contract Items for each Division of work. The total price for each unit price Contract Item will be obtained by multiplying the estimated quantity of each item by the correspond- ing unit price set forth in the Proposal form[.] That provision, accordingly, requires that the bids be evaluated based upon the sum of all line items rather than based only upon their total or "bottom line" figure. Respondent's Director of Facilities Planning admitted that he failed to comply with this provision of the contract specifications in evaluating the two bids submitted to him and in determining that the bid should be awarded to Systems Technologies. In Systems Technologies' bid, the sum of the prices for the lump sum contract items plus the sum of the total prices for the unit price contract items amounts to $30,109.60. However, in submitting its bid Systems Technologies incorrectly added its column of figures and incorrectly computed its Total Contract Price (Estimated) to be $29,768. Since the contract specifications envision a unit price bid rather than a lump sum bid, the amount of the bid of Systems Technologies is in fact the amount of $30,109.60. The bid of Ledo Lines, Inc., is for $29,913.84. Ledo Lines, Inc., is, therefore, the low bidder on this project. The contract specifications when read in their entirety clearly require that the low bid be determined by adding the unit price and lump sum components rather than relying on the lump sum "bottom line" figure shown for Total Contract Price (Estimated). Employees of the consultant who Prepared the specifications testified that they expect to be able to hold the bidders to the unit prices but not to the Total Contract Price (Estimated) because the estimated quantities may change. Thus, the evidence is uncontroverted that the determination of low bidder pursuant to the contract specifications is based upon the total of the unit price provisions and not by the single figure at the bottom of the page which adds those individual prices and which was added erroneously in this case by Systems Technologies. In their Prehearing Stipulation, the parties stipulated that the School Board is subject to mandatory competitive bidding for this project. They further stipulated that where there is mandatory competitive bidding, the contract must be awarded to the lowest qualified, responsive bidder. Since Systems Technologies is neither a qualified, responsive bidder nor the lowest bidder, it is clear that Ledo Lines, Inc., is the lowest responsive bidder for the project in question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered determining Ledo Lines, Inc., to be the lowest responsive bidder and awarding the contract for grading and drainage improvements to the Multi- purpose Building at Fort Myers High School to Ledo Lines, Inc. DONE and RECOMMENDED this 25th day of September, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 September, 1987. COPIES FURNISHED: James E. Melvin, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901 E. G. Couse, Esquire Post office Drawer 1647 Fort Myers, Florida 33902 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
The Issue Whether the Barton-Malow Southern, Inc., deviated from the bid requirements, and if so, whether such deviation consists of a minor deviation which may be waived by the respondent, or whether Ron A. Royal, Inc., should be awarded the elementary school "C" project as the lowest responsive bidder.
Findings Of Fact On April 20, April 27, and May 4, 1986, the Board advertised its Notice of Call for Sealed Bids, soliciting bids for the construction of Elementary School "C". The notice advised that the contract to be awarded would require approval of subcontractors by the Board and stated that the Board "reserves the right to reject any and all bids received and to waive any and all informalities in regard thereto." A pre-bid conference was held on May 15, 1986, at which time the potential bidders were advised that page 14 of the bid documents entitled "List of Subcontractors" would be deleted and addendum #1 would include a more specific list of subcontractors to be completed by the bidder. The original list of subcontractors stated: The undersigned, hereinafter called "Bidder", list below the names of all the subcontractors who will perform under the Bidder. Any work item (Trade) not included will be assumed by the owner as being performed by the Bidder's own forces." A space was provided for the bidder to state the work item and the name of the subcontractor who would perform the work. Addendum #1 instructed the bidders to delete the original page C.14 and insert the enclosed sheet C.14 (addendum #1) "List of Subcontractors" for submission with the sealed bids. The substituted list of subcontractors provided as follows: The undersigned, hereinafter called "Bidder", lists below the names of the subcontractors who will perform under the Bidder. In the event the general contractor will perform one of the phases listed with his own personnel, he shall state by "general contractor". The form listed 20 specific areas of work, such as site work, iron and steel work, roof decks, and electrical, and provided a space for the bidder to fill in the firm name and address of the subcontractor for each specific area. Bids were submitted to the Board by nine (9) general contractors. The lowest bid by $310,000, was submitted by Barton-Malow; the second lowest bid was submitted by Royal. On the list of contractors submitted with Barton Malow's bid, Barton- Malow listed "G.C". (General Contractor) for the work areas described as site work, concrete work, masonry work iron and steel work, and lathing and plastering. Barton-Malow listed a subcontractor and "G.C." for phases described as hard tile and electrical. For the work areas described as "roof decks" and "roofing and sheet metal" three (3) subcontractors were listed for each of the areas. The list submitted by Royal with its bid provided that the concrete work would be performed by the general contractor and listed a single subcontractor for each of the other 19 areas of work specified. Barton-Malow was the only bidder who listed multiple subcontractors for a specified work area. In the blanks provided for the subcontractors' addresses, Royal listed the city where each subcontractor was located; Barton-Malow did not provide any addresses bout stated at the top of the column "will be advised upon request." None of the bidders provided street addresses for the subcontractors, however, only one bidder other than Barton Malow failed to provide the city in which the subcontractor was located. Immediately after the bids were opened and read, 1/ the meeting was adjourned and Mr. Derryberry, Mr. Collins, and two other people reviewed the bids. Mr. Derryberry concluded that the Barton-Malow bid was not in compliance with the bid requirements due to the manner in which Barton-Malow had filled out the subcontractor list. Mr. Derryberry therefore recommended to the Board that the Barton-Malow bid be rejected because of the perceived irregularities and the bid of Royal be accepted. The recommendation of the architect was adopted as the recommendation of the school administration and presented to the Board at a public meeting on June 3, 1986. The Board received the report of the architect and the administration, heard from the attorneys and representatives of Barton- Malow and Royal, and then voted to waive any irregularities and accept the Barton-Malow bid. The original page C.14 was approved by the Board in about 1980 and used since that time. However, there had been some difficulty with that form on two different jobs within the last six months, and therefore it was decided to clarify the purpose of the form by specifically listing all the major subcontracting areas. The intent was to require all bidders to list the primary subcontractor in each of the major work areas, and thus prevent bid shopping after the bids were opened. The architect, Mr. Derryberry, prepared and included the amended form C.14 as part of Addendum #1 to the bid documents. Although the Board never formally approved the amended form, Mr. Derryberry had the authority to clarify any of the bid documents by addendum. Page C.14 (Addendum #1) lists 20 major subcontracting areas; however, in almost all of the areas it would be possible for more than one subcontractor to perform the designated work, and in several areas it would be unlikely that one subcontractor would perform all the required work. For example, site work includes paving, earth moving, culvert work, fencing, and irrigation, and one subcontractor would not normally do the work in all those areas. The amended page C.14 does not state that only one subcontractor should be listed for each specified work area. The bidders were not advised at the pre-bid conferences or subsequent thereto, that only one subcontractor should be listed in each category. The only information the bidders received regarding the list of subcontractors was the information contained on the revised page C.14. In other words, the bidders were simply directed to list "the names of the subcontractors who will perform under the Bidder", and to list general contractor when "the general contractor will perform one of the phases listed with his own personnel." In the subcontractor list submitted with their bid, Barton-Malow listed "Batten Electric Co./G.C." for the subcontract "Electrical", and listed "Bauer & Assoc./G.C." for the "Hard Tile" subcontract. The listing of a subcontractor and the general contractor in these areas is not a deviation from the bid requirements. There is no indication on the list submitted by Barton- Malow that the listing of a subcontractor and the general contractor in the hard tile and electrical categories meant anything other than both the subcontractor and the general contractor would perform the work required in those areas, and there was no evidence presented at the hearing that would require a different conclusion. 2/ Categories 5 and 6 on the subcontractor list are "roof decks" and "roofing and sheet metal." Although listed as two separate categories, the same subcontractor would have to perform both due to the bid requirements. Further only one subcontractor can perform the roofing work; it is not an area that is divisible into subcategories that can be performed by different subcontractors. For categories 5 and 6, Barton-Malow listed "H. H. Robertson/Architectural Exteriors/Commercial Roof Decks." As admitted by Barton-Malow, that all three subcontractors "will perform" the subcontract is an impossibility. 3/ From the list submitted by Barton-Malow it cannot be determined who will perform and be responsible for the roofing work. When asked at the hearing who was going to perform the roofing work for Barton Malow, the vice-president of operations for Barton-Malow responded, "One of those three would have done it." He indicated that a submission would have been made to the Board designating the subcontractor. By listing three subcontractors for the two roofing categories, Barton-Malow deviated from the bid requirements. The subcontractor list contained one basic requirement, that the subcontractors listed "will perform." By listing three subcontractors for the roofing, when only one subcontractor could performs Barton-Malow would be able to bid shop for subcontractors after the bid submission. This would give Barton Malow a definite advantage over the other bidders who complied with the bid requirements and listed only the one contractor who would perform the work. The other bidders would be bound to use the subcontractor listed and therefore, would be unable to negotiate for a better price after obtaining the contract. However, by listing multiple subcontractors, Barton-Malow would be able to negotiate for a better price because it had not committed itself to any one subcontractor. In five categories, site work, concrete work, masonry work, iron and steel work, and lathing and plastering, Barton Malow listed general contractor. About an hour after bid opening, Mr. Derryberry called Mr. Polso, the Vice- President of Operations for Barton-Malow, to inquire about the bid because it was so much lower than the other bids. Mr. Polso assured Mr. Derryberry that there had been no mistake in the amount bid. Mr. Derryberry then asked about the listing of general contractor for the iron and steel work because he had never known of a general contractor doing that type of work. Mr. Polso stated that he had not had time to determine the low bidder in that category and was still getting prices. He also said that Barton-Malow would not be doing the lathing and plastering. However, when Mr. Derryberry advised that he was recommending that the bid be disqualified due to the incompleteness of the subcontractors form and asked whether Barton-Malow wished to withdraw its bid, Mr. Polso stated that Barton-Malow had no intention of withdrawing its bid. Subsequently, Mr. Polso met with Mr. Derryberry and Mr. Collins at the school offices and advised them that Barton-Malow had every intention of performing the work where general contractor had been listed. Barton-Malow is a wholly owned subsidiary of Barton Malow Company and has the resources of Barton-Malow Company available when necessary. In 1985, Barton-Malow did between 60 and 70 million dollars of construction work; Barton- Malow Company had a dollar volume of 600 million dollars. Barton-Malow has the capacity to perform work in the areas where it listed general contractor. Barton-Malow prepares its bid by estimating the value of the total project and the value of the majority of the specific trades involved. If Barton-Malow does not receive a bid from a subcontractor that it feels is competitive in a particular trade area, it performs that work itself. The C.14 (Addendum #1) form permitted a bidder to list "general contractor" in any or all subcontract areas in which it would perform the work with its own personnel. Once the bids are opened, the bidder cannot unilaterally substitute a subcontractor for the general contractor. The general contractor would be required to do the work unless it received authorization to substitute a subcontractor based upon a showing of good cause. The evidence does not support a finding that Barton-Malow was incapable of performing the work in the areas in which it listed "general contractor." Therefore Barton- Malow did not deviate from the bid requirements by listing "general contractor" in five of the twenty specified areas. Although Baron-Malow deviated from the bid requirements by failing to list any addresses on its subcontractor list, this was a minor irregularity which did not give Barton-Malow any competitive advantage over the other bidders. In Division C, Article 5, Section 5.3.1., the bid documents provide: It is the intent of the owner to award a Contract to the lowest responsible Bidder provided the Bid has been submitted in accordance with the requirements of the Bidding Documents....The Owner shall have the right to waive any informality or irregularity in any Bid or Bids received and accept the Bid or Bids which in his judgment, is in his own best interests.
The Issue Whether Respondent was justified in cancelling the award of bid of HRS Lease No. 590:2054 to Petitioner, BOOZER, on the basis that it was nonresponsive. Whether Respondent acted fraudulently, arbitrarily, illegally or dishonestly in issuing an award of HRS Lease No. 590:2054 to Intervenor rather than to Petitioners or some other bidder.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: HRS caused an invitation to bid to be advertised regarding Lease No. 590:2054 on January 3, 1989 and January 10, 1989. The Invitation to Bid required that all bids be received on or before 2:30 p.m. February 1, 1989, for 9,168 net rentable square feet, plus or minus 3%, of existing office space. A pre- bid meeting was scheduled for January 11, 1989. The advertisement also advise that the bid specifications could be obtained from the Orlando Regional Office of HRS, and that the State of Florida reserved the right to reject any and all bids. The material provisions of the bid specifications at issue in this proceeding are: The space be made available on September 1, 1989 or within 175 days after bid is finalized. The proposed space must be in an "existing building", which was: defined to mean "dry and capable of being physically measured to determine net rentable square footage at the time of bid submittal". The bidder provide 2 clear photographs of the exterior front of the proposed facility and 2 scaled (1/8 inch or 1/4 inch 1 foot preferred) floor plan showing present configurations with measurements that equate to the net rentable square footage (HRS Exh. 1, General Specifications Requirement No. 10(a)) Emphasis in original). Building(s) in not more than 2 locations provided the facilities are immediately adjacent to or within 100 yards of each other. Prior to the pre-bid conference, but after the initial publication of the bid invitation, representatives of NOTTUS contacted Ernie Wilson, the facilities services manager for District 7, HRS, to inquire regarding the propriety of submitting a bid for space in two buildings in which HRS presently had facilities, together with a facility that was greater than 100 yards from the existing facilities. At the time of the inquiry, NOTTUS was leasing facilities to HRS at its Lipscomb facility in Palm Bay, Florida. A portion of the square footage that NOTTUS inquired about leasing to HRS was the remaining square footage in two buildings that HRS partially occupied at that time. All of the premises submitted by NOTTUS under its bid package were located in the Woodlake PUD, which is all under single ownership. A representative from HRS advised the representative from NOTTUS that: the issue regarding the proximity of the locations would not be addressed as a bid specification, but rather, that would be a matter to be weighed by the evaluation committee in analyzing the bids. the bid proposal to be submitted would actually be for two locations as a portion of the space offered by NOTTUS was to be located in buildings in which HRS presently maintained facilities. The submittal of the bid package regarding the premises subject to occupancy by HRS, as ultimately submitted by NOTTUS, would definitely not disqualify the bid submittal. Mr. Wilson also received telephone calls from BOOZER and a third bidder making inquires regarding the bid package. The Pre-bid conference was held on January 11, 1989. No objections or questions regarding the bid specifications as to be utilization or definition of the terms "existing building" and "present configuration" were raised at that time. At no time prior to the submission of the bids were any objections or questions raised by BOOZER regarding the utilization of the term "existing building" or the term "present configuration" as those terms were defined within the bid specification. Each of the Petitioners in this action, the Intervenor, as well as two other parties, submitted bids to HRS within the time requirement set forth in the bid documents. The bids were opened at the time and place reflected in the aid documents and Invitation to Bid. Subsequent to the opening of the bids, John Stewart, who is Ernie Wilson's supervisor, and Ernie Wilson reviewed the bid packages submitted for Lease No. 590:2054 and made a determination as to which bids were responsive. As a result of that evaluation, a determination was made that all five bidders were responsive. These bidders were the Petitioner, Fred D. BOOZER, the Intervenor, Nottus, Inc. the Petitioner, Trust NB-1 Micah G. Savell and Professional Center V. Inc. These bid proposals were then submitted to the evaluation committee who viewed the property of each of the bidders on February 13, 1989. The bid documents of BOOZER contained an additional document, i.e., a site plan, which reflected that the premises subject to his bid proposal were an "existing building". The area submitted for the bid was shaded reflecting the entire square footage submitted for bid as being "in existence." The drawing further reflected the "existing building" as being the "proposed HRS building". The premises subject to the Petitioner's, BOOZER, bid were not in existence, as that term was defined in the bid specifications, in that approximately 2500 square feet had not yet been constructed. Two walls, a floor slab and a roof were not in existence. The only improvements located therein were palm trees, grass and a sidewalk. Petitioner stipulated that the area occupied by the palm trees, grass and sidewalk was in fact "not dry". The existing building at 2225 South Babcock Street that was dry at the time of the bid opening constituted approximately 6,900 square feet of premises subject to Petitioner's bid. At the time of the inspection, the Petitioner, BOOZER, was present. At no time did BOOZER indicate that the total facility bid was not in existence. The members of the evaluating committee who viewed the property for purposes of evaluating the bid were not aware of the fact that the entire premises subject to BOOZER's bid proposal was not in "Existence" and "dry". The floor plan showing the present configuration of BOOZER's facility reflected an open floor space for the area occupied by the palm trees, grass and sidewalk. The palm trees, grass and sidewalk were not reflected in the present configuration drawing. Both the floor plan and site plan were prepared by BOOZER's son with his approval. In evaluating the respective bid proposals, the evaluation committee rated the properties as follows: Fred D. BOOZER - 450 points Nottus, Inc.- 433 points Micah Savell - 384 points Trust NB-l - 360 points Professional Center V. Inc.- 357 points The location requirement found in Article D.3(b) of the bid package was taken into account. In evaluating the Nottus bid, including a zero rating from one of the evaluation committee members. As a result of the points awarded by the evaluation committee, a determination was made to award the bid to BOOZER, who was notified of this award on or about March 14, 1989 by letter dated March 14, 1989. On or about March 20, 1989, Petitioner, BOOZER, obtained a construction permit from the City of Melbourne to construct a fire wall and framing for additional shell building. This building permit was for the purpose of enclosing the area that was occupied by the palm trees, grass and sidewalk at the time of the bid proposal being submitted. Upon being awarded the bid, Petitioner, BOOZER then made a decision to commence construction to complete the premises subject to his bid proposal, and had expended $28,000 thereon through the hearing date. On or about March 29, 1989, HRS, through Ernie Wilson and Lynn Nobley, discovered the fact that approximately 2,500 square feet represented as being a part of the existing building, in fact was not existing pursuant to the bid specifications. At the time of this discovery, construction under the construction permit had not been completed. Mr. Wilson advised BOOZER at that time that he was concerned that BOOZER's bid was nonresponsive because the premises subject to the bid proposal were not in an "existing" building at the time of the bid submittal. The normal procedure for HRS in awarding a bid where the initial award is cancelled or thrown out is to award the bid to the second and next best lowest bidder. It is not the normal practice of the HRS evaluation committee to measure the applicable properties at time of evaluation to determine net rentable square footage. At the time of discovery of the foregoing status of BOOZER's building, Ernie Wilson, contacted a Nottus representative, Fred E Sutton, its President, to advise him of the possible nonresponsiveness of BOOZER's bid and requested information to determine whether Nottus, the second low bidder, still had facilities available pursuant to its bid documents and whether Nottus would agree to continue to continue to be bound by the terms thereof. Mr. Sutton advised Ernie Wilson that the facilities were still available and that Nottus would agree to abide by the terms of its bid proposal. Following the procedural steps necessary to advise the appropriate individuals within HRS of the possible nonresponsive bid by BOOZER, Ernie Wilson was advised by the Director of HRS General Services, King W. Davis, by letter dated April 2, 1989 to withdraw the award for the proposed lease 590:2054 from BOOZER because of approximately 2,500 feet of nonexisting space. He was also instructed to award same to Nottus as the second lowest bidder. On or about April 14, 1989, Ernie Wilson advised BOOZER of the Notice of Withdrawal of the award from BOOZER and award to Nottus, together with the reasons therefor, which was received by BOOZER on April 17, 1989. Petitioner, BOOZER, timely initiated these actions by filing his Notice of Intent to appeal the withdrawal of the award of bid to him and the award to Nottus, and by timely filing a formal written protest and request for formal hearing. Attachment "D" of the bid package required the submittal of a proposed plan to a division of the State Fire Marshal for review of any proposed construction or renovation to determine whether such construction or renovation complied with the uniform fire safety standards. Said plans were required to be prepared by licensed architects and engineers for certifications outlined in Attachment "D". These matters were all to be completed prior to the commencement of any revocation or alteration. Petitioner, BOOZER, commenced said improvements prior to said approval. In fact, BOOZER submitted no plans in compliance with these requirements prior to construction. Petitioner, BOOZER, is a licensed builder in the State of Florida, and has been for ten years. BOOZER further acknowledged that at the time of signing and submitting the bid proposal, he certified that he understood the terms of the bid specifications and agreed to be bound by them. TRUST NB-1 attempted to initiate an appeal of the award of the bid to Nottus by submitting a facsimile "notice of protest" to HRS predicated on the award of the bid to Nottus occurring greater than sixty (60) days following the bid opening date. TRUST NB-1 received notice of the award to Nottus on April 18, 1989 and attempted facsimile delivery on April 21, 1989. The facsimile "Written Notice of Protest" was not filed until April 25, 1989. The regular mail receipt of said Notice was received by HRS and filed on April 24, 1989. 38. The "formal written protest" was filed with HRS on May 1, 1989. 39. signature The facsimile Notice of Intent to Protest did not contain of a representative of TRUST NB-1. the original 40. Ernie Wilson is the custodian of records for bid protests for HRS, District 7, and is also the person designated in the bid documents as the contact person for the bid on Lease No. 590:2054. TRUST NB-1 was ranked number four in relation to the five bids submitted. Bidder Micah Savell, not a party to these proceedings, is the next low bidder after BOOZER and Nottus, Inc.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order: (a) Finding the bid of Petitioner, BOOZER, to be unresponsive and that the cancellation of the award by Respondent was justified. Find the bid of Intervenor, NOTTUS to be unresponsive. Find that Petitioner, TRUST NB-1, lacks standing and its protest should be dismissed. Reject all bids. DONE AND ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 21st day of July, 1989. APPENDIX Proposed Findings of Fact by Petitioner, Fred O. Boozer: 1-5 Rejected. 6 and 7 Accepted as incorporated in the Recommended Order. Proposed Findings of Fact by Intervenor, Nottus, Inc. Accepted. Accepted as modified. 3-30. Accepted. 31. The first two sentences rejected as argument and not supported by the evidence. Last sentence in paragraph accepted. 32-40. Accepted. COPIES FURNISHED: Thomas Houck, Esquire 312 South Harbor City Boulevard Suite 1 Melbourne, Florida James A. Sawyer, Esquire District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Suite 911 Orlando, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact On or about December 29, 1981, the College solicited sealed bids for construction of alterations and additions to the Technical and Gymnasium Buildings located on its campus in Madison, Florida. In response, seven general contractors submitted bids. (P-1, P-2, P-3.) Bids were publicly opened on February 9, 1982. Griffin Construction, with a bid of $536,575, was the apparent low bidder; the second lowest bidder was Long Contractors, with a bid of $539,512. (Testimony of Griffin, Sims, Rutherford; P-3, P-4, P-5.) After the low bid was identified, Tom McClanahan, representing Long Contractors, asked that the subcontractor list accompanying the low bid be opened. Griffin Construction's subcontractor list was then opened. McClanahan asked if the license and charter numbers of the subcontractors were listed. 2/ Upon learning that these numbers were not included on Griffin Construction's subcontractor list, McClanahan protested. (Testimony of Sims, Rutherford, Griffin.) At its February 15, 1982, meeting, the College District Board of Trustees ("Board") rejected the low bid of Griffin Construction on the sole ground that the omission of subcontractor license and charter numbers constituted a failure to comply with the conditions of the bid documents. 3/ The Board then voted to award the contract to Long Contractors, the second lowest bidder, on the ground that it was the lowest bid conforming to the bid documents. In so doing, the Board followed the College president's recommendation--a recommendation based on his belief that the non-complying bid must be rejected, that it did not involve a matter of Board discretion. (Testimony of Sims, Rutherford, Griffin; Stipulation of Parties; P-41.) The bid specifications contain instructions to bidders requiring "each Bidder . . . [to] submit with his proposal a list of the subcontractors who will perform the work . . . as indicated by the `List of Subcontractors' form." (P-1, P-2.) The instructions further provide: The applicable subcontractor license registration or certification number must be noted on the bid opposite his name, and in the event that the subcontractor is a corporation, his State Corporate Charter number shall also be noted. If the subcontractor is an out of state firm, their Charter number with the Secretary of State to do business in the State of Florida should also be noted. The "Listing of Subcontractors" form provided with the specifications contains column headings for the names and addresses of the subcontractors but does not contain a separate heading for the requested license or corporate charter numbers. 4/ The form states that the subcontractor list "is an integral part of the bid." (P-1, P-2.) The bid instructions further require bidders to evaluate and determine the qualifications of their listed subcontractors. The bidder shall have determined to his own complete satisfaction that a listed subcontractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this agreement and is qualified both technically and financially to perform that pertinent phase of the work for which he is listed. (P-1, P-2.) The bid documents expressly reserve to the College the right "to reject any or all bids, and to waive informalities." (P-1 P-2.) No bidder correctly listed the required license and corporate charter numbers on its "Listing of Subcontractors" form. Griffin Construction. Griffin failed to include any license or corporate charter numbers. However, by subsequent letters dated February 9 and February 18, 1982, and at hearing, it supplied the required subcontractor license and charter numbers. Long Contractors. Long listed for its roofing subcontractor a sheet metal registration number, not the required roofing license number. [A sheet metal registration does not qualify a contractor for roofing work. See, 489.105, 489.113, Fla. Stat. (1981).] For its electrical subcontractor, Long omitted the prefix, "ER" from the listed number. For its plumbing subcontractor, Long listed a mechanical registration number instead of the required plumbing certification or registration number. [A mechanical registration does not qualify a contractor to perform plumbing work. See, 489.105, 489.113, supra.] Of the four areas requiring state licenses--roofing, heating and air conditioning, electrical, and plumbing--Long listed correctly only the registration number for its heating and air conditioning subcontractor. Long incorrectly listed No. FO6962 as the corporate number of Gandy Enterprises, its painting subcontractor. This is the number of a related corporation, Industrial Coatings, Inc. Remaining Bidders. Of the five other general contractors submitting bids, two-- Richard Walker Construction Company and GRC Contracting, Inc.--omitted all subcontractor license and charter numbers. The other three bidders failed to completely list all the required numbers. (Testimony of Rutherford; P-11, P-12, P-13, P-14, P-15, P-16, P-17, P-34, P-37, R-1, R-5.) The project architect testified that the submittal of incorrect or incomplete subcontractor license and charter numbers was a deficiency which a bidder should be allowed to cure after bid opening. But the failure to submit any required "number" was a deficiency which, in his opinion, could not be similarly corrected. He failed, however, to supply a reasonable basis for drawing such a distinction. Therefore, his opinion on this question is given little weight. 5/ (Testimony of Rutherford.) Subcontractor license and charter numbers are readily obtainable and can be verified by contacting the pertinent state agency--the Florida Department of Professional Regulation, Construction Industry Licensing Board, or the Florida Department of State. (Testimony of Griffin, Rutherford; P-32, P-33, P- 34, P-35, P-36, P-37.) The project architect, William Rutherford, routinely requires the listing of subcontractor license and charter numbers on bids for public construction projects. The main purpose it serves is that it would enable him to identify the listed contractor, since sometimes subcontractors have similar business names. Although if he was uncertain about the qualifications of a subcontractor, he would ordinarily question the general contractor. (Testimony of Rutherford.) Although Mr. Rutherford has customarily required the listing of subcontractor "numbers" on public projects, he has never made any use of those numbers in the past. (Testimony of Rutherford.) The general contractor who is awarded the contract is responsible to Mr. Rutherford and the College for construction of the project in accordance with the bid specifications. If, after bid opening, a listed subcontractor is unable to perform, Mr. Rutherford would ordinarily arrange for substitution of a new subcontractor acceptable to the general contractor and owner. (Testimony of Rutherford.) Griffin Construction's failure to list the license and charter numbers of its listed subcontractors, and its subsequent curing of that failure, did not affect the amount of its bid 6/ by giving it an advantage or benefit not enjoyed by other bidders. The bid omission did not allow Griffin Construction the opportunity to change any material element of its bid after bid opening. The inclusion or exclusion of subcontractor "numbers" at bid opening does not affect the ability of a contractors to obtain the required bond, the quality of bidding general contractors, the quality of listed subcontractors, the quality of work performed, or any material feature of the competitive bidding process. (Testimony of Griffin, Rutherford.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the construction contract in question be awarded to Vick Griffin Construction Company, the lowest responsible bidder. DONE AND RECOMMENDED this 29th day of April, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1982.
The Issue This case considers whether Petitioner's response to Invitation to Bid, No. 94-014, as revised, issued by the Respondent, is responsive to the terms of the Invitation to Bid. If Petitioner is found responsive, then the question is raised whether Petitioner has offered the lowest and best response to the invitation to bid.
Findings Of Fact On May 26, 1994, Respondent provided a memorandum to prospective vendors concerning Bid No. 94-014, as revised. This memorandum informed the prospective vendors that the new bid due date was June 6, 1994. The memorandum attached the bid instructions. Under general conditions to the invitation to bid the prospective vendors were reminded in Paragraph 7 that the Respondent could ". . . reject any or all bids or waive any minor irregularity or technicality in bids received." Under the heading "Special Provisions" prospective vendors were informed that "The charge per 1,000 for individual items under Exhibit A shall be the rates for the contract with the successful bidder." The prospective bidders were instructed as follows: REQUIRED ITEMS TO BE SUBMITTED WITH BID: The bidder must complete all required items below and submit as part of the bid package. Any bid in which these items are not used or in which these items are improperly executed, may be considered non-responsive and the bid may be subject to rejection. Among the items to be submitted with the bid was Exhibit A. The bidders were informed about the process of EVALUATION/AWARD. There it was stated: Bids will be evaluated and awarded on an all or none basis to one bidder. Award will be based on the total costs of four (4) theoretical jobs (See Exhibit B-Bid Total) requiring varying services and on the bidder's qualifications to best serve the Department's needs. The prospective bidders were then reminded a second time that: "THE DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS AND TO WAIVE ANY MINOR IRREGULARITIES IN BIDS RECEIVED." Within Exhibit A to the bid document was a category referred to as "Tabbing", calling for the charge per 1,000 for that service. Within Exhibit B under the fourth theoretical job was a requirement to quote the subtotal cost for 200,000 newsletter preparations to include "Tabbing." Three vendors submitted responses to the invitation to bid. Those responses were opened on June 6, 1994. The vendors who responded were Petitioner, Educational Clearinghouse, Inc. and Mail Masters of Tallahassee, Inc. In the subtotal for costs for 200,000 newsletter preparations, in activity four, concerning theoretical jobs, found within Petitioner's Exhibit B to the response to the invitation to bid, Petitioner made a mistake. It misplaced the decimal point and described the subtotal cost for 200,000 newsletter preparations as $73.80 instead of $7,380.00. Respondent characterized this as a typographical error or nominal mistake. In fact, this error constituted a minor irregularity which did not preclude the ability to understand Petitioner's response so that it might be compared to the responses by the competition. Petitioner made a second error. This error occurred when Petitioner failed to indicate the amount that it would charge per 1,000 for "Tabbing" within Exhibit A. Respondent did not consider this to be a minor irregularity and rejected Petitioner's bid as non-responsive for the failure to include a quotation for the charge per 1,000 for "Tabbing." This resulted in the intent to award the contract to Educational Clearinghouse, Inc. whose bid total for the four theoretical jobs under Exhibit B was $9,137.25 compared to Petitioner's bid total of $8,374.62. In preparing Exhibit B, activity four, Petitioner included a theoretical charge for "Tabbing" in the amount of $8.00 per 1,000. Petitioner contends that the $8.00 per 1,000 found within that entry may be correlated with the missing information concerning "Tabbing" in Exhibit A to its response to the invitation to bid. In the instructions to the vendors, Respondent has informed the vendors that the charge per thousand for individual items identified in Exhibit A constitutes the rate that the Respondent would expect to pay under a contract with the successful bidder. By contrast, the function of the information provided in Exhibit B is for purposes of awarding the contract based upon total costs of the four theoretical jobs and on the basis of the vendor's qualifications to best serve the Respondent's needs. Although not stated in the invitation to bid it can be inferred that similar references within Exhibits A and B, such as the reference to "Tabbing", calls for a comparable price to be set forth for the item in both Exhibit A and Exhibit B. Otherwise vendors would have the opportunity to quote low prices in completing Exhibit B as a means to win the cost comparison with their competitors for purposes of the award and then have the opportunity to charge higher costs per 1,000 as reflected in Exhibit A when establishing the charges for the contract with the Respondent following the competition contemplated in the comparison of the theoretical bid total under Exhibit B. Therefore, it would be reasonable for the Respondent to expect that the Petitioner would charge $8.00 per 1,000 for "Tabbing" under a contract between the Petitioner and Respondent based upon information that was set forth in the response to Exhibit B, activity four, "Tabbing." In summary, Petitioner's oversight in leaving out reference to the tabbing charge in Exhibit A does not affect the comparison of bid responses as contemplated by the instructions to the vendors, a function performed by comparing the respective Exhibits B. Otherwise, Respondent may gain the necessary understanding of Petitioner's charge per 1,000 for "Tabbing" as contemplated in instructions concerning Exhibit A as a means for entering into the contract. This understanding is achieved by transposing the $8.00 per 1,000 "Tabbing" quotation in Exhibit B to the "Tabbing" charge within Exhibit A as $8.00 per 1,000. With this adjustment, Modern Mailers, Inc. is the lowest responsive bidder and best able to serve Respondent's needs pertaining to Invitation to Bid No. 94-014, as revised.
Recommendation Based upon the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which finds that Petitioner is a "qualified" and "responsible" bidder who is the lowest and best responsive bidder to Invitation to Bid, No. 94-014, as revised and is entitled to the award of the contract contemplated by that invitation to bid. DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1994. APPENDIX The following discussion is given concerning the proposed findings of fact of the Parties: Petitioner's Facts: Paragraph 1 is subordinate to facts found. Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 5 are subordinate to facts found. Paragraphs 6 and 7 are rejected to the extent that they are intended to establish an excuse for the Petitioner not providing information related to the cost for tabbing called for in Exhibit A in the invitation to bid. Paragraph 8 is subordinate to facts found. Paragraphs 9 through 12 are not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found. Paragraph 14 is rejected to the extent that it suggests that Petitioner may amend its response to the invitation to bid to specifically set forth the amount attributable to the tabbing charges per 1,000 in Exhibit A. Nonetheless one may infer that the cost per 1,000 for tabbing is the same as is set forth in Exhibit B. Paragraphs 15 through 17 are subordinate to facts found. Paragraph 18 constitutes legal argument. Respondent's Facts: Paragraph 1 is subordinate to facts found. Paragraph 2 is contrary to facts found Paragraph 3 is rejected in fact and law. Paragraph 4 is rejected in the suggestion that the Petitioner does not have the ability to perform the contract. COPIES FURNISHED: Daniel W. Dobbins, Esquire Callahan & Dobbins 433 North Magnolia Drive Tallahassee, FL 32308 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 George Stuart, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Informational Copies: Ronald W. Brooks, Esquire Brooks and LeBoeuf, P.A. 863 East Park Avenue Tallahassee, FL 32301 Joan Reeves, Vice President Educational Clearinghouse Post Office Box 3951 Tallahassee, FL 32315
The Issue The first issue to be determined is whether the BOARD can reject all bids, with or without cause. The second issue is to determine if the BOARD is required to have cause, was there a sufficient basis for the rejection of all bids in Bid NO. 3996?
Findings Of Fact On December 14, 1987, the BOARD sent invitations to bid to a list of approved vendors in Bid NO. 3996. The purpose of the invitation was to obtain the lowest responsible bid on a purchase of one hundred and fifty typewriters. The bids were to be submitted prior to January 11, 1988 at 2:00 P.M.. They were opened by the BOARD on the same day. OFFICE did not receive an invitation to bid despite its request to be placed on the approved vendor's list in November of 1987. When OFFICE learned of the outstanding invitation to bid, its representative, Mr. Richard Foss, went to the BOARD's Purchasing Department and requested a bid package. The bid documents given to OFFICE mistakenly gave January 14, 1988 at 2:00 P.M. as the deadline for the bid submission. Because of the later date given by the BOARD to OFFICE, the company's bid was received after the opening of the bids. When the results of the bidding were made known at the public bid opening, NAPLES bid was the lowest received. On January 14, 1988, after 10:42 A.M., it was discovered by the BOARD that OFFICE's bid price was lower than the price submitted by NAPLES. At this time, NAPLES bid had not yet been accepted by the BOARD, and no formal announcement had been made awarding the contract to NAPLES. During the BOARD's Purchasing Department's bid analysis, a request was made to reject all bids in Bid NO. 3996. The reason given by Purchasing for the request for rejection was that the specifications were being revised. The bids were rejected on the same date. The written reason sent to the vendors on January 14, 1988 for the bid rejection was that one vendor had been given an incorrect opening date. Attached to the written notice to the vendors was a new bid invitation for Bid NO. 4013. The BOARD explained its mistake was unfair to the one vendor. A new bid opening date was given of February 1, 1988. On January 14, 1988, in addition to the required bid documents, OFFICE submitted a letter which listed additional offerings or incentives that OFFICE would give the BOARD if OFFICE was awarded the contract. These additional purchasing incentives were: wall charts and teacher/student manuals for each typing classroom in the county. OFFICE also informed the BOARD that one of the BOARD's own service personnel was already trained in the servicing of Swintec typewriters. The bid submitted by OFFICE did not meet either the weight or the print wheel specifications as set forth in Bid NO. 3996. The specifications as written in Bid NO. 3996 were not written to eliminate all other typewriters but the Brothers 511-11. Weight specifications required were below the Brother's minimum weight, and at least two other manufacturers provide protected drop-in cassette print wheels in electronic typewriters. The Invitation to Bid contained specific provisions which encouraged the bidding of typewriters other than the Brother 511-11, and set up procedures under which other typewriters, which substantially meet the specifications, could be reviewed on their merits. NAPLES was the lowest responsible bidder for the electronic typewriter contract in the prior school year. The BOARD had rejected all bids at that time because of the decision to consider a different brand of typewriter once bids were opened. A notice of protest was filed by NAPLES, and the BOARD agreed to honor NAPLES bid and award the company the contract. The BOARD revised its bid specifications from last year prior to its solicitations for bids in Bid NO. 3996. The protected drop-in cassette print wheel and the weight requirements were two new technical specifications. During the hearing, the BOARD was unable to determine whether the weight factor or the protected drop-in cassette print wheel requirement will continue to be included in future revisions of the specifications.
Recommendation Based on the foregoing, it is RECOMMENDED: That the BOARD reject the bid submitted by OFFICE as it was nonconforming and sought an advantage not enjoyed by the other bidders. Reinstate the bids which were rejected in Bid NO. 3996, consider the bids, and make an award of the contract to NAPLES. DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida. VERONICA D. DONNELLY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988. COPIES FURNISHED: Stephen Emens, President Naples Business Equipment and Systems, Inc. 859 4th Avenue South Naples, Florida 33940 Harry A. Blair, Esquire 2138-40 Hoople Street Ft. Myers, Florida 33901 Richard Foss, Typewriter Sales Manager 8A-Del Prado Boulevard Cape Coral, Florida 33904 Karl Engel, Superintendent Lee County Public Schools The School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901
Findings Of Fact During the month of March 1996, the Pinellas County School Board, pursuant to an advertised invitation for bids, (IFB), solicited bids for the construction of a new facility for John H. Sexton Elementary School (Sexton school). Each party submitting a bid was required to do so on a bid proposal form which was contained in the bid documents prepared by the project architect, Mr. Hoffman, and furnished to each prospective bidder who requested the bid package. One section of the bid proposal form related to "dewatering" potentially required at the construction site, and consistent with that potential two sentences were contained on the bid proposal form relating to dewatering of footings and of utilities, both of which provided for election by checking of an affirmative or a negative, and both of which had been pre-checked in the affirmative by the Board. It was the position of the Board that the pre- checked sentences as to dewatering on the bid proposal form constituted an acknowledgment by each bidder that that bidder's submittal included dewatering in the base bid. In addition to the check, the dewatering section also included blanks for the insertion by the bidder of figures representing lineal feet of header pipe and unit price per foot which figure would constitute a credit given by the bidder to the Board against the total bid price if dewatering were found not to be necessary, both as to footings and to utilities. Even further, the form also contained blanks to be filled in by the bidder for unit prices to be charged the Board in the event additional dewatering was required by virtue of the Board's later inclusion in the project of additional footings or utilities. Prior to the time for bid submittal, the Board conducted a meeting of all prospective bidders at which the project was explained and bidders given an opportunity to ask questions raised by the bid package. Johnson did not ask any questions regarding dewatering or that portion of the package relating thereto. Numerous bids were submitted in response to the proposal, including those from Johnson and Ellis. By stipulation at the hearing, the parties agreed that in all ways other than in that section of the bid proposal form for this project relating to dewatering, Johnson was and is a responsive and responsible bidder, as is Ellis. The bid proposals were opened by the Board at 2:00 PM on April 11, 1996 and the base bid prices on each proposal were read aloud to all in attendance by a Board representative. The project architect was present at the opening and tabulated and reviewed the bid proposals as opened. Johnson submitted the lowest base bid with a price of $7,965,000. The next lowest bid was that of Ellis, whose base bid price was $7,945,200. At the time of opening, no Board representative indicated anything was wrong with Johnson's bid Mr. Hoffman, the project architect, immediately noticed that Johnson had altered the Board's pre-checked bid proposal form by striking out the pre- checked "is" space regarding inclusion of dewatering in the base price of the two dewaterings, and making an X in each of the "is not" spaces. Mr. Hoffman considered that alteration by Johnson as a material alteration of the Board's solicitation which rendered Johnson's bid non-responsive. It must be noted that each change bears the initials, R. Y. Reza Yazdani is Johnson's president who initialed the changes and signed the bid proposal form for the company. In addition, Johnson also inserted a "0" in those spaces which dealt with amount of credit and cost of additional dewatering in the event additional work is required by the Board. In that regard, Hoffman opined that had Johnson not changed the check marks, but inserted the "0" figures as it did, the bid would have been responsive and Johnson would still have been lowest responsive bidder. The reason for this is that the bid form specifically notes that "the unit costs described in A & B above shall in no manner influence the School Board's selection of a firm to whom to award the Contract." The Board now recognizes that there is no part "B", as referenced in the proposal form. Since the "0's" would not influence the selection, use of an unmodified Board form, along with the lowest submitted base price would, in Hoffman's opinion, probably have meant that Johnson would have been awarded the contract. Johnson's representative, Mr. Mohme, who drafted the company proposal, specifically indicated he did not believe dewatering was a potential in this project. He recognized that such dewatering as was necessary was required by other provisions in the project specifications and he could not figure any way to recognize this and yet accurately reflect his belief that dewatering would not be necessary, other than to strike the pre-checked block and insert the check in the alternative block. He felt that by doing so, he was more accurately reflecting Johnson's bid. This reasoning is rather obscure. By letter dated April 12, 1996, written to the Board after the bids were opened, Mr. Mohme reiterated Johnson's position that dewatering is not necessary on this project, but further stated that if dewatering were to be necessary, Johnson would do so solely at its own risk and without any risk of additional cost to the Board. Bids may be clarified by a bidder, but such clarification must take place before the bids are opened. Bids may not be modified after bid opening. Before that letter was written, however, when the bids were opened and Mr. Hoffman observed what he considered was Johnson's alteration of the bid form, Hoffman consulted with a representative of the Board's purchasing department, Ms. Maas, who also reviewed Johnson's bid. Ms. Mass was of the opinion that Johnson may have attempted to qualify its bid, and she and Mr. Hoffman thereafter met with Mr. Rivas, the Board's director of facilities design and construction, to explain the problem. Mr. Rivas took the problem to two other Board personnel to see if there were some way Johnson's bid could be deemed responsive so that the Board could benefit by Johnson's low bid price. Within the context of those aforementioned discussions, Hoffman took the position that the alteration might leave the Board open to a possible change order and additional liability if dewatering were to be required and the Board had accepted Johnson's bid indicating that process was not included in the base price. Mr. Rivas, after consulting with the Board's attorney, also concluded that Johnson's alteration expressly excluded dewatering as an included factor and its exclusion constituted a serious and material deviation from the Board's solicitation. It was deemed material in that the deviation apparently gave Johnson a competitive advantage over other bidders who did not amend the form. This appears to be a valid conclusion and is adopted herein. The decision to recommend rejection of Johnson's bid and acceptance of Ellis's as the lowest responsive bid was ultimately reached by the Board's administrative staff. The Ellis bid was responsive to the solicitation whereas the determination was made that Johnson's was not responsive because of the alteration. It was not the actual act of alteration that caused that determination but rather the potential effect of the alteration. This was consistent with long standing Board policy not to accept a bid which does not conform to a bid solicitation and not to accept bids from bidders who alter the Board's bid proposal form or otherwise attempt to qualify their bids. It is the opinion of the Board personnel that such consistency in bidding procedure has resulted over time in more qualified bidders submitting bids for Board work which, in turn, has resulted in more competitive prices for the work let for bid. This is a reasonable policy. Mr. Gottschalk, Johnson's expert architect, who has designed schools for the Board, offered an alternative disposition to this dilemma. While admitting that Johnson's shifting of the risk of loss as a result of possible dewatering was a material matter, he suggested the Board could have disregarded the dewatering clause on every submittal and thereafter awarded the contract to Johnson, the lowest bidder, whose bid was responsive to the solicitation except for the dewatering provision. Recognizing this solution would have placed each bidder on an equal footing and allowed award to the lowest bidder at a substantial savings to the Board, he nonetheless also understood the decision made by Mr. Hoffman and the Board staff here and could not fault it. He agreed that reasonable men could differ on the issue of responsiveness here and how to deal with it. It is so found. After a review of the evidence submitted, including the testimony indicating the remoteness of the likelihood that extensive dewatering would be required, there appears to be no evidence that the Board, or its staff, acted dishonestly, fraudulently, illegally or arbitrarily in rejecting Johnson's bid on this project and recommending award to Ellis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order denying and dismissing G. H. Johnson Construction Company's protest and awarding a contract for the construction of Sexton Elementary School to Ellis Construction Company, Inc. DONE and ENTERED this 8th day of May, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1942BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Johnson's Proposed Findings of Fact. 1.-5. Accepted and incorporated herein. Accepted. Accepted but not a proper Finding of Fact. More a restatement of and comment on testimony. Rejected. Accepted but not a proper Findings of Fact. More a restatement of and comment on testimony. &11. Accepted. Accepted and incorporated herein. First sentence accepted as a literal statement of what appears in the specifications. Second and third sentences accepted but not probative of any material issue of fact. Accepted and incorporated herein. First sentence accepted. Balance not Finding of fact but argument. Ellis' Proposed Findings of Fact. 1.&2. Accepted and incorporated herein. 3.-6. Accepted. 7.-10. Accepted and incorporated herein. 11.-15. Accepted and incorporated herein. 16. Accepted but word "certain" is changed to read "likely." 17.-21. Accepted and incorporated herein. 22. Accepted and incorporated herein. 23.&24. Accepted. 25.&26. Accepted and incorporated herein. 27.-29. Accepted. Accepted and incorporated herein. Not relevant to any material issue of fact. COPIES FURNISHED: Jawdet I. Rubaii, Esquire Clearwater Executive Suites, No. 213 1345 South Missouri Avenue Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board 301 4th Street S.W. Largo, Florida 34649-2942 E. A. Mills, Jr. Esquire Dale W. Vash, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 501 East Kennedy Boulevard Post Office Box 1438 Tampa, Florida 33601 Pinellas County School Board 301 4th Avenue, S.W. Largo, Florida 34649-2942
