Findings Of Fact On February 7, 14 and 21, 1989, respondent, School Board of Pinellas County (Board), published a legal advertisement in an area newspaper inviting prospective bidders to submit proposals for certain construction work to be performed on two elementary schools, Walsingham and Cross Bayou, located in Largo and Pinellas Park, Florida, respectively. The bidders were advised that their bids must be "prepared and submitted in accordance with the drawings and specifications" and that such drawings and specifications could be obtained from the Board. Such bids were to be filed with the Board no later than 2:00 p.m. on March 6, 1989. The notice also provided that the bids would be opened the same day. Bids were timely filed by at least five contracting firms, including petitioner, Prelude Construction Company, Inc. (Prelude), and intervenors, Lincoln Construction Company (Lincoln) and Bandes Construction Company (Bandes). In filing these proposals, each bidder represented he had "thoroughly examined all of the contract documents." After the bids were opened and reviewed by Board personnel, Lincoln, Prelude and Bandes were ranked first, second and fourth, respectively, based upon the dollar amount of their proposals. 2/ Thereafter, the Board issued its notice of intended action on March 7, 1989, wherein it advised all parties of its intention to award the contract to Lincoln. In doing so, the Board concluded that, although a bid bond accompanying Lincoln's proposal was not dated March 5 or 6 as required by the specifications, the deviation was minor and could be waived. That action prompted Prelude to file its protest. Through testimony of Lincoln's vice-president, it was established that the Board staff intended to change its initial position and to recommend to the Board that Lincoln's bid proposal be rejected and the contract awarded to Bandes. This change was prompted by the Board staff's discovery on the day of hearing (April 3) that, with the exception of Bandes, all bidders had failed to list the, roofing subcontractor on their bid proposals. The Board staff accordingly concluded that all bidders except Bandes should be disqualified. The bid specification upon which the Board relies to award the contract to Bandes is found in Part One, paragraph 1.1 of section 07511 of the bid specifications. The requirement is a relatively new one and imposes the following requirement upon bidders: NOTE: The contractor is required to list the name of the roofing subcontractor on the form of proposal, Section 1C. Section 1C is entitled "Form of Proposal" and includes the following section on page 1C-3 to be filled in by the bidder: The following subcontractors will be contracted with on this project. Type of Subcontractor Name of Subcontractor (Trade Specialty) (Company/Firm) The column on the left side is intended to identify the subcontractor by specialty, such as plumbing or roofing, while the blank spaces in the right hand column are to be filled in by the bidders with the name of the subcontractor who will perform the specialty. The Board has not been consistent in requiring bidders to list the name of subcontractors on the bid documents. According to the uncontroverted testimony of Lincoln, the Board requires the listing of subcontractors on some projects but not on others. For example, on the specifications for the recently let contract for the prototype new media center at four elementary schools, the left hand column on the above form was filled in by the Board with five types of subcontractors who were required on the project, including roofing. This meant that the bidder was to fill in the blanks in the right hand column with the name of the subcontractor who he intended to use on each specialty. However, on other contracts, including the one under challenge, both columns in the Form for Proposal have been left blank, and Lincoln construed this to mean that the name of the subcontractor was not required. Indeed, Lincoln pointed out, without contradiction, that on a recent contract which left both columns blank, as was true in this case, it was awarded the contract even though it did not identify the roofing subcontractor on its proposal. Because of this prior agency practice, Lincoln assumed the same policy would be used again. However, Lincoln conceded it had failed to read the requirement in paragraph 1.1 of section 07511 before preparing its proposal. There was no evidence that Lincoln gained any substantial advantage over other bidders by this omission. Also relevant to this controversy is Paragraph 10A of the General Requirements. This item is found on page 1B-11 and reads as follows: Each bidder shall indicate the names of specific major Subcontractors if called for on the form of proposal. If listing of Subcontractors is required and the Bidder fails to list them, the bid may, at Owner's option, be disqualified. (Emphasis added) This authority to waive the requirement is reinforced by language in Paragraph 21 of the General Requirements which provides in part that "(t)he owner reserves the right to waive minor technicalities." According to the Board's outside architectural consultant, who was the author of a portion of the contract specifications including section 07511, the omission of the name of the roofing subcontractor is a "minor" technicality that can be waived. However, the consultant had no personal knowledge as to whether the provision had actually been waived by the Board on prior contracts.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding the contract in question to Bandes Construction Company. DONE AND ORDERED this 20th day of April, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 20th day of April, 1989.
Findings Of Fact As project architect under contract to HRS, Greenleaf/Telesca Planners, Engineers, Architects, Inc. (Greenleaf) prepared a project manual (manual). The manual invited contractors to bid on a contract for construction of the forensic services building at the South Florida State Hospital in Pembroke Pines, Florida, project No. HRS-0278. The manual contained specifications for a base contract covering construction of the building itself, and for four alternate additive bids, covering various equipment and furnishings. The first alternate called for installation of mess hall tables and seats. For the first alternate, the manual specified tables and seats manufactured by Folger Adam Company, their model number 522, or "upon prior approval" the equivalent. From the floor plan it is clear that 24 tables and corresponding seats would be required. The language of the manual describing alternate No. 1 presents no particular ambiguity or difficulty. The Folger Adam Company is well known in the construction business. Harold Wayne Blackwell, petitioner's president, used the manual in preparing Blackwell's bid for the contract. Blackwell bid on the base contract and on each of the four alternates. There are seven or eight contract hardware suppliers in Dade and Broward Counties, all of whom have access to Folger Adam Company products. Folger Adam Company does not have exclusive distributors. To determine the price of the tables, Mr. Blackwell telephoned several contract hardware suppliers, including Christensen Hardware Services, Inc. (Christensen). Christensen quoted Blackwell a price of ten thousand eight hundred dollars ($10,800.00) for twenty-four sets of Folger Adam model number 522 tables and seats. Blackwell submitted a bid of eleven thousand dollars ($11,000.00) on alternate No. 1. Forsythe bid on the base bid but did not bid on alternate No. 1, because Forsythe failed to obtain a quote on the tables and seats, before preparing its bid. Richard B. Solomon, Greenleaf's project manager for the forensic services building, opened the bids on March 20, 1979. As tabulated by Greenleaf, the bids were: Base Bid Alt. No. 1 Alt. No. 2 Alt. No. 3 Alt. No. 4 M.D. Forsythe Construction Co. $375,000 $ --- $50,842 $27,220 $33,020 Porfiri Construction Co. 406,200 7,000 45,534 25,315 44,130 Wayne Blackwell and Co., Inc. 397,735 11,000 47,000 25,000 35,000 Ed Ricke & Sons, Inc. 405,000 14,900 52,000 28,300 47,650 McKee Construction Co. 407,000 --- 45,000 28,000 --- L.G.H. Construction Corp. 524,176 18,014 43,464 24,712 35,048 Creswell Construction Co. 394,000 41,000 43,000 23,000 33,000 Petitioner's exhibit No. 2. On the base bid, Forsythe was lowest, Creswell Construction Company next lowest, and Blackwell third lowest. Among contractors who bid on the base bid and all alternates, Blackwell's combined bids were lowest for the base bid plus alternate No. 1, the base bid plus alternates Nos. 1 and 2, the base bid plus alternates Nos. 1, 2 and 3, and the base bid plus alternates Nos. 1, 2, 3 and 4. Mr. Solomon was aware of two telephone calls received by Greenleaf during the time for preparation of the bids, inquiring about the price of the tables and seats. In examining the bids, he noticed that two contractors had not bid on alternate No. 1, and that the base bids as well as the bids on alternates Nos. 2, 3 and 4 were "pretty tight" as compared to the range of bids on alternate No. 1. From looking at the bids on alternate No. 1, it was hard for Mr. Solomon to tell what a reasonable price for the tables and seats was. Mr. Solomon recommended to HRS that the bids on alternate No. 1 be thrown out. Charles Robert Yates, an architect employed by HRS, concurred in Mr. Solomon's recommendation. He was under the impression that funding for the project would not be available unless the contract was let before April 1, 1979. Mr. Yates could not recall such diversity among bids in his thirty-year career, yet he had no difficulty learning what the tables and chairs cost when he called architectural firms to find out. After the bids were opened, Blackwell promptly protested Forsythe's bid. Under the heading of alternates, the manual states: If the Base Bid is within the amount of funds available to finance the construction contract and the Owner wishes to accept alternate additive bids, then contract award will be made to that responsible Bidder submitting the low combined bid, consisting of the Base Bid plus alternate additive bids (applied in the numerical order in which they are listed in the Bid Form). Petitioner's exhibit No. 1, Paragraph B-9, Alternates. HRS wrote Blackwell on April 3, 1979, denying Blackwell's protest and stating, as reasons: M.D. Forsythe Construction Co., Inc. did not ignore Alternate No. 1, but completed that section of their bid by stating "No bids received on this item." Proposals for Alternate No. 1 ran the gamut for "No Bid" to prices extending from $7,000 to $41,000. The Department holds, as concurred in by the attached letter from our consultants, that there was confusion in the marketplace regarding the intent of Alternate No. 1, as attested to by the disparity among the proposals, and therefore we choose not to consider Alternate No. 1. Provisions for this deletion include Sections B-17, B-22 and B-24 of the Contract Documents. Petitioner's exhibit No. 3. HRS then awarded the base contract and additive alternates Nos. 2 and 3 to Forsythe, and gave orders to proceed with construction on May 7, 1979. After construction began, Mr. Solomon wrote Forsythe to inquire what Forsythe would charge to install the tables and seats called for by additive alternate No. 1. Forsythe eventually agreed to do it for eleven thousand dollars ($11,000.00), after first quoting a higher price. On August 1, 1979, Greenleaf prepared a change order at HRS' behest, directing Forsythe to install the tables and seats originally called for by additive alternate No. 1, at a price of eleven thousand dollars ($11,000.00). Other provisions of the manual relied on by the parties include the following: B-17 PREPARATION AND SUBMISSION OF BIDS Each Bidder shall copy the Proposal Form on his own letterhead, indicate his bid prices thereon in proper spaces, for the entire work and for alternates on which he bids. Any erasure or other correction in the proposal may be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternations, items not called for or irregularities of any kind may be rejected by the Owner. . . DISQUALIFICATION OF BIDS Any or all proposals will be rejected if there is reason to believe that collusion exists among the Bidders and no participants in such collusion will be considered in future proposals for the same work. Proposals in which the prices obviously are unbalanced will be rejected. Falsification of any entry made on the Contractor's bid proposal will be deemed a material irregularity and will be grounds, at the Owner's option, for rejection. REJECTION OF BIDS The Owner reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the proposal of a Bidder who is not in position to perform the contract. AWARD OF CONTRACT The contract will be awarded as soon as possible to the lowest qualified Bidder provided his bid is reasonable and it is in the best interest of the Owner to accept it. The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The lowest bidder will be determined by adding to the Base Bid such alternates, in numerical order, as available capital funds will allow. The Agreement will only be entered into with responsible contractors, found to be satisfactory by the Owner, qualified by experience, and in a financial position to do the work specified. Each Bidder shall, if so requested by the Owner, present additional evidence of his experience, qualifications, and ability to carry out the terms of the contract, including a financial statement. Petitioner's exhibit No. 1. At no time did Forsythe attempt to influence the award of the contract improperly. At the time of the final hearing, the project was approximately 95 percent complete.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, in the future, HRS adhere to the letter of language like that contained in paragraph B-9 of the manual whenever such language is used in an invitation for bids. DONE and ENTERED this 6th day of March, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Louis L. LaFontisee, Jr., Esquire 200 South East First Street, Suite 802 Miami, Florida 33131 Leonard Helfand, Esquire 401 North West 2nd Avenue Room 1040 Miami, Florida 33128 Richard Morgentaler, Esquire 1600 North East Miami Gardens Drive North Miami Beach, Florida 33179 =================================================================
The Issue The issues in dispute are those associated with the invitation to bid in Project No. 565 by the Respondent as responded to by Petitioner and Intervenor. Among the specific questions to be answered are those concerning Petitioner's allegation that the Respondent allowed the Intervenor to materially alter its bid response to clarify the line item associated with tear down and return delivery for the relocatable classrooms that were being leased under the terms of the bid invitation and that alteration was allowed for the provision of canopies or awnings associated with the entrances to the relocatable classrooms. Questions are raised, first whether the Intervenor's bid response is in compliance with the provisions of Chapter 6A-2, Florida Administrative Code and, second whether the bid response of the Intervenor provides sufficient detail to allow the Respondent to understand the nature of the item, in this instance, the relocatable classroom, which the Intervenor proposed to provide in response to the invitation to bid. Finally, the general question is raised whether the Petitioner or Intervenor is the lowest responsible qualified bidder.
Findings Of Fact On April 28, 1989, Respondent sent out an invitation to bid in Project No. 565. It sought responses from a number of vendors and asked that those vendors on or before July 1, 1989, be prepared to deliver 49 portable classroom units. The arrangement which Respondent contemplated in the invitation was rental of the portable classrooms under a lease for a period of one year. It was intended that the portable classroom units would be delivered to various locations throughout Lake County, Florida. The bid opening was to occur on May 8, 1989, at 2:30 p.m. The request for bids included a lead sheet and in the second paragraph of the instructions on that lead sheet it was stated: All terms and conditions below are a part of this bid request and no bids will be accepted unless all conditions have been complied with. Rights are reserved to reject any and all bids and to waive all technicalities. It was further stated: DIRECTIONS FOR SUBMITTING BIDS ARE AS FOLLOWS: * * * 5. Samples must be submitted with bid where required. On other items descriptive literature with complete manufacturer's specifications in sufficient detail to indicate clearly the item bidder proposes to furnish must accompany the bid. NO BID will be considered without this data. Equipment offered as equivalent to the specific brand must be equivalent in quality of materials, workmanship, effect and corresponding in function and performance When the requirements set out in the preceding paragraph to the Recommended Order are read in the context of all other requirements set forth in the bid invitation, they are found to be consistent with those additional requirements. On the second page of the instructions for the Invitation to Project No. 565 was found a section entitled "Lease/Rental of Portable Classrooms" which stated: The Lake County School Board is requesting bids for Lease/Rental of Portable Classroom units meeting 6A-2 requirements at various locations. Units must meet Florida Code, SBCC Code and 6A-2 Department of Education code for structures of this type. We are requesting prices for 49 units for one-year rental, to be set-up at various locations. Steps, ramps, electrical, water or sewer hooks are not required. This work will be done in- house by Lake County School Board staff. A minimum of three 4' x 8' melaminc marker boards, two 4' x 4' tackboards, one 8 lb. fire extinguisher (2A40 BC) and junction box with stub-out for F/A and pullbox must be installed in each unit. Other provisions within the bid invitation describe the nature of the bid performance security that was incumbent upon each bidder, the need for insurance, nature of the insurance coverage expected and information related to lease provisions, purchase provisions, parts warranties and prices. The bid invitation pointed out that each bid packet furnished by the vendors should provide proof of insurance, a sample lease/rental contract, brochures and specifications of construction materials and contents and a 5 percent bid bond in a separate sealed envelope attached to the outside of the bid. Four vendors offered their responses to this invitation, among them Petitioner and Intervenor. The additional bidders were Diamond Engineered Space and Williams Mobile Offices. The bid opening occurred on May 8, 1989, as advertised. That bid opening was under the auspices, Provisions 6.05(7) and 6.87, Lake County School Board Policies Manual, which describe school construction bid procedures and contemplate awarding contracts to the lowest responsible qualified bidder meeting specifications with regard for the quality of the product being offered by the bidder, its suitability for the needs of the school system, delivery terms, service and past performance of the vendor. Some consideration is given to local vendors, under the provisions, but this has no role to play in this dispute. Rule 6A-2.016, Florida Administrative Code, also speaks to the procedures to be followed by the Respondent in this bid invitation process. The bids were opened, announced and tabulated. It was revealed, in turn that Diamond Engineered Space's price quote was $299,292.92; Petitioner's was $246,563; Intervenor's was $236,166 and Williams Mobile Offices' was $367,420. All vendors had made a timely response to the invitation to bid. In the course of the examination of the bid materials, the price sheet of the Intervenor came into question. This price sheet may be found as part of the Petitioner's Exhibit No. 1 admitted into evidence. In particular, item 3 on the price sheet was debated. In that section, the Intervenor's response stated: 4(b) Tear Down, and Return Delivery $350.00 (50 mile average at $1.50 per side) 4(c) Other ($200.00 Mat'l & Labor)$ NONE Given the parenthetical remarks found within the response, Norma Hale who was the Purchasing Agent for the School Board and in charge of the bid opening asked of Mike Connolly, who was attending the bid opening for the Intervenor, whether the quoted price was a firm price. Herman Kicklighter, the Director of Facilities and Maintenance who attended the bid opening for Respondent also made inquiry concerning whether the tear down charge was a variable or fixed price. These questions were raised against a background circumstance in which some sites may have been further away than is contemplated by the 50 mile average set out in the parenthesis. It was not the intention of the Intervenor to leave the parenthetical information on the bid response and Connolly was caught off guard by this revelation. He had not prepared the bid submission by the Intervenor. Nonetheless, he informed the persons assembled that the price quotation of $350 was a firm price. This information was revealed after the Petitioner's bid had been opened. After some discussion, school officials at the bid opening were convinced that the $350 price was a firm price. Having considered the evidence, the $350 price is found to be a firm price. Moreover, this finding is made recognizing that the Intervenor was never allowed to remove the parenthetical remark from the bid response. That removal would have constituted an alteration of the bid response. If one examines the bid response and multiplies the 50 mile average times $1.50 per side, the amount is $150 plus $200 for material and labor for a total of $350 as reflected in the cost per unit designation. This is not considered to be a variable price quotation. Another topic that was brought up during the course of the bid opening concerned the question of whether the portable classroom units that were to be supplied by Intervenor included awnings or canopies over the door entrances. Petitioner was and is of the opinion that the awnings and canopies are required. It is not clear from a review of Petitioner's Exhibit No. 4 admitted into evidence, which is the Petitioner's bid material, whether Petitioner intended to supply awnings or not. It is clear that the bid material of the Intervenor did not include awnings. Kicklighter asked Connolly if the Intervenor's bid included awnings and the essence of Connolly's response would indicate that the bids did not include awnings. Connolly was allowed to leave the room to make a telephone call to his office to further inquire concerning the response of the Intervenor as it related to awnings. While he was gone, the School Board checked with the Department of Education in Tallahassee on the topic of whether Chapter 6A-2, Florida Administrative Code required awnings in this application. In a conversation with William Moncreath, a certified architect with the Department of Education, Kicklighter was lead to believe that awnings were not needed. Connolly then made this known to the persons in the bid room. Connolly was not present at that time. Connolly then returned and told Kicklighter that the Intervenor would furnish awnings. This comment was met by a remark by Mr. Kicklighter to the effect that it looked like that the Intervenor and the School Board would be doing business. To allow the Intervenor to alter its bid response to include awnings that were not shown in the bid response, would be a material alteration if awnings were required. They are not. Therefore, this discussion concerning the awnings is a moot point. On May 9, 1989, the School Board determined to award the contract to the Intervenor. This met with a timely notice of protest from the Petitioner on May 12, 1989, and in a Formal Written Protest on May 22, 1989. Having been unable to resolve the matter amicably, the case was forwarded to the Division of Administrative Hearings for resolution of the dispute. Notwithstanding the pendency of the case before the Division of Administrative Hearings, based upon a claim of emergency, the lease agreement was entered into between the Respondent and Intervenor on June 15, 1989. In addition to the assertions by the Petitioner concerning whether the quotation for tear down and return delivery was a firm price and whether awnings are required, Petitioner calls into question whether the Intervenor has complied with paragraph 5 on the lead page concerning directions for submitting bids and the third paragraph on the next to the last page of the bid invitation concerning the things that the bid packet must include. Petitioner also questions whether Intervenor has adequately established that it will meet applicable requirements of Chapter 6A-2, Florida Administrative Code. Contrary to the opinion held by the Respondent and Intervenor, paragraph 5 on the lead page to the invitation to bid is a requirement that must be complied with. It is not an item to be ignored, nor it is considered to be superceded by any of the more specific references to requirements that are announced in the subsequent pages to the invitation to bid. The bidders had to make proof of insurance and to offer a sample lease/rental contract and provide a 5 percent bid bond. All bidders complied with those requirements. Petitioner complied with all other requirements as announced in the bid invitation as well. The question is whether Intervenor as a general matter has provided descriptive literature with the complete manufacturer's specifications in sufficient detail to clearly point out what item the bidder is proposing to furnish and whether indeed the item does comply. This is also described as brochures and specifications of construction materials and contents. Additional items that must be provided by Intervenor are those contemplated under Chapter 6A-2, Florida Administrative Code associated with relocatable classroom space and related construction codes made mention in the instructions to bidders under that portion referred to as "Lease/Rental of Portable Classrooms" and the last paragraph of that set of instructions associated with melaminc markerboards. Instead of relying upon clearly delineated information within the response of the Intervenor by way of literature with complete manufacturer's specifications to merely show the nature of the product or item that the Intervenor was proposing to furnish, Respondent, and in particular its principal advisor, Mr. Kicklighter, chose to rely upon certain self-serving statements made by the Intervenor in the course of its bid materials. This refers to an attachment to the sample lease agreement which is a fourth page in that set of materials stating: FLORIDA CODED BUILDING; Built to Comply with the Florida Department of Education's 6" A" .2 Specifications. With prints certified as a Classroom Building which can be located anywhere in Florida. (Zoning permitting). To Kicklighter this means Intervenor'S promises to build the classroom space in accordance with Chapter 6A-2, Florida Administrative Code and to provide certified prints and that provision would overcome any infirmities or paucity of information about the product in his mind. Kicklighter took further solace from correspondence of October 17, 1988, from David Toner, Director of Facilities Planning/Operation of St. Johns County, school Board in Florida which praises the Intervenor's performance in the lease of 28 relocatable classrooms in that county and states that plans and specifications were sent to Tallahassee for approval and installation met Chapter 6A-2, Florida Administrative Code. This is hearsay information and does not establish anything relevant in the matter of whether Intervenor will do as well for the Respondent as it appears to have done for St. Johns County School Board, if Intervenor doesn't first show that it has complied with this invitation to bid. It has not. It is not so much that Kicklighter attached no significance to the substantive information provided by the Intervenor in its response to the invitation, it is the fact that a clear understanding of the impression of Kicklighter concerning that substantiative information is overshadowed by his reliance upon the promise to provide certified prints and the remarks of his counterpart in the St. Johns County School Board as a principal reason for believing that the Intervenor's response was sufficient. That reliance was ill advised. It would be different if certified plans had been provided. They were not. The promise to provide them is outside the bid experience and is unacceptable as a means of compliance with the bid invitation. Looking at what was provided, there is a single sheet entitled Proposed Classroom which gives basic dimensions and information about frame and floor, walls, windows and doors, exterior covering, roof, electrical, A/C and heat, and restrooms. Within this document are found references to a 2600 rpm fan which could well mean 2600 cfm fan, the latter of which would meet requirements and the former which would not. Correction of this item would not be a material alteration. Likewise, correction of the reference of 1" x 4" top plate to 2" x 4" top plate to meet specifications would not be a material correction. in that this 1" x 4" reference as opposed to 2" x 4" reference could well be a typographical error. Within the bid documents by Intervenor there is a sheet referred to as Typical H.C. Toilet Rooms. Toilet Room A relating to Florida and Toilet Room B relating to Georgia. The outside dimensions of the Florida toilet room do not coincide with the Proposed Classroom sheet that has been mentioned. While the outside dimensions of the Georgia toilet room on this document appears the same as in the Proposed Classroom sheet that has been referred to, the configuration in the proposed classroom sheet and that of the sheet related to toilet rooms most recently under discussion are different. Under the circumstances, it is difficult to know what the Intervenor intends by way of toilet room facilities and the response is inadequate to meet the requirements of the bid invitation. This is a material deviation. There are some partial sheets within the bid materials which appear to be the first half of the Classroom Sheet that has been referred to and being duplicates of that information no particular significance is seen in those matters. There is material referred to U.S.G Acoustical Finish. There are further materials related to interior fixture finishes. There is a brochure with pictures showing the outside of a building and the interior of a portable classroom building. This document does not give any specific information as to types of materials, dimensions, etc. There is a document of May 5, 1989, from Descom directed to Mr. Connolly promising to make available replacement parts for 49 classrooms if Descom manufacturers them. There is information provided on the fourth page which is the attachment to the Lease Agreement which makes reference to frames being provided "per code." This page gives certain dimensions and design information related to the floors, walls and petitions and roofs. There is another two page document that shows miscellaneous equipment such as exit signs, melaminc marker boards, tack boards, emergency light with battery and backup and fire extinguisher. These items do not show manufacturer's name. There are references to various provisions within Chapter 6A-2, Florida Administrative Code where Intervenor claims that these items will correspond to. There are comments made on this page about the foundation of the portable classroom that are unclear. On the second page of these materials are found references to plumbing to include plumbing, related to the bathroom dealing with vinyl covered gypsum wall covering, the commode, wall mounted lavoratory, 90 cfm ceiling vent fan and mirrors and accessories. Again, the manufacturer's names are not given. A reference is made under the ceiling vent fan to a rule provision of Chapter 6A-2, Florida Administrative Code. There is reference under electric to two 100 amp load centers with mains and 12/2 copper romex. There is a reference there to 15-440 fluorescent light fixtures. Again, there is the reference to the 2600 rpm through the wall ventilation fan and 2 adequate wall receptacles. HVAC references a three ton Bard wall mount with heat strips and a ceiling supply duct system with STD return air system and a timer for the air conditioner. There is a reference to exterior materials, windows and doors and insulation factors. Again, some of these items under the bathroom, electric and HVAC reference sections within Chapter 6A-2, Florida Administrative Code. Other than the fluorescent light fixtures and HVAC Bard unit, manufacturers names cannot be discerned from this information submitted. The bid invitation calls for buildings of 24' x 36'. The response by Intervenor provides for a building which is 23' x 36', a material deviation from the requirements of the specifications. The light fixture is a Metalux Manufacturing Company surface mounted fixture of four forty watt bulbs. According to Gareuth Eich, an architectural expert whose opinion testimony is accepted, this light fixture does not comply with Rule 6A-2.064, Florida Administrative Code. This is a material deviation. The statement of plans do not show compliance with Rule 6A-2.059, Florida Administrative Code, as to exterior lighting. This is a material deviation from the specifications. The electrical specifications information provided by the Intervenor in the Proposed Classroom sheet shows two 100 amp panels that are separated, whereas specifications shown on the two-page printed informational sheet under electric speak in terms of a 100 amp load center with main disconnect. Regardless, requirements of Lake County are such that a main disconnect panel is required on the exterior of the portable classroom, the installation of which would be the responsibility of the school board. Thus, if two panels were employed inside they would become subpanels and not in conflict with the national electric code as spoken to in Rule 6A-2.065, Florida Administrative Code. On the other hand, it is not clear which alternative in panel design and service Intervenor intends to offer and this is a material deviation from the bid requirements. The information provided concerning the nature of the foundation for the portable classroom units is inadequate. This is a material defect in the response to the bid specifications. Gareuth Eich, Hugh Stump, President of Southern Structure, a company that manufactures portable classroom units and a person who is familiar with bidding procedures associated with those units and Paul Crum, an architect testified on behalf of the Respondent. All questioned the quality of information submitted by the Intervenor in terms of specificity, to meet paragraph 5 on page one of the invitation to bid and particulars that relate to certain requirements of Chapter 6A-2, Florida Administrative Code to this bid invitation. Having considered the remarks and the testimony of others and the exhibits, the Intervenor's response cannot be seen as providing manufacturer's specifications in the necessary detail to indicate clearly the item that bidder proposes to furnish as called for in paragraph 5 of the lead page of the invitation to bid. The response has also failed to meet certain provisions of Chapter 6A-2, Florida Administrative Code in the manner described. The quoted size of the portable building is too small in overall dimension. These are material shortcomings sufficient to cause the rejection of the Intervenor's bid response. Therefore, the Petitioner is in fact the lowest responsible bidder. Although Respondent and Intervenor have contracted for the delivery of the portable classroom units and they are located at the various sites within Lake County, Florida called for in the contract, Petitioner is theoretically prepared to provide classroom units in accordance with the requirements of the specifications.
Recommendation Under authority of Section 120.57(1), Florida Statutes, a formal hearing was held in this case on July 10-11, 1989 in Tavares, Florida. Charles C. Adams was the Hearing Officer.
The Issue The issue in this case is whether Respondent's intended contract award pursuant to Invitation to Bid No. SDOC-11-B-049- CJ for ready-mix concrete is contrary to Respondent's governing statutes, Respondent's rules or policies, or the solicitation specifications.
Findings Of Fact In October 2010, the School District issued an invitation to bid for ready-mix concrete (the original ITB). The only bidder who submitted a bid in response to the original ITB was Bedrock. Bedrock had had the concrete contract with the School District for the prior three years and had used a front discharge delivery method. On December 7, 2010, Cindy Hartig (Ms. Hartig) and Michael Grego (Mr. Grego), who at the time was the superintendent of the School District, had a conversation concerning the award of the concrete contract to Bedrock pursuant to the original ITB. Mr. Grego testified that Ms. Hartig told him that the School Board would not support a recommendation to award the contract to Bedrock. Mr. Grego further testified that when he asked Ms. Hartig how she knew that the School Board would not support an award to Bedrock, she did not say how she knew. Ms. Hartig testified that Mr. Grego told her that he had polled the School Board members and that they advised they would not support an award of a contract to Bedrock. Having considered the testimony of Mr. Grego and Ms. Hartig, the testimony of Mr. Grego is more credible. On December 7, 2010, prior to the School Board meeting in which the School Board considered the original ITB, Ms. Hartig sent an email to Mr. Grego and Cheryl Olson (Ms. Olson), who was the director of purchasing for the School District. The email stated: Team, An ex board member works for bedrock An ex board member is building the house for the owner of bedrock Bedrock is only one of two companies that have front discharge trucks And reality is the front discharge is not needed, most CM's will not use them Please re look at the requirements for this bid prior to rebid Also make sure that each company is getting the vendor request and that it is not in their spam thank you cindy lou The former board member to whom Ms. Hartig was referring was John McKay (Mr. McKay). There had been friction between Ms. Hartig and Mr. McKay in the past. At the School Board meeting on December 7, 2010, the School Board voted to reject all bids for the original ITB. The reasoning for rejecting all bids was not apparent from the minutes of the School Board meeting. There was no evidence presented that the School Board, as a whole, was biased against Bedrock or that Ms. Hartig had influenced the School Board to reject all bids. On December 10, 2010, the School District issued the rebid ITB, which allowed the vendors to bid front and rear discharge methods of delivery. It was felt that having both front and rear delivery would give the maintenance staff an opportunity to choose the method they wanted to use on a job-by- job basis. The rebid ITB includes a bid submittal form on which the bidders are to submit their prices. There are 15 separate line items on which the bidders may submit a bid. Line items 1 and 2 are for delivery of ready-mix concrete using a front discharge cement truck. Line items 3 and 4 are for delivery of ready-mix concrete using a rear discharge cement truck. The rebid ITB did not specify whether the bidders had to submit a price for each line item in order to be deemed responsive. Paragraph 25, on page 2 of 29 of the rebid ITB states: AWARD: As the best interests of the School Board may require, the School Board reserves the right to make award(s) by individual item, group of items, all or none, or a combination thereof; on a geographical basis and/or on a district wide basis with one or more supplier(s) or provider(s); to reject any and all offers or waive any minor irregularity or technicality in offers received. Offerors are cautioned to make no assumptions unless their offer has been evaluated as being responsive. Any and all award(s) made as a result of this invitation shall conform to applicable School Board Rules, State Board Rules, and State of Florida Statutes. Page 3 of 39 of the rebid ITB provides: "THE SCHOOL BOARD RESERVES THE RIGHT TO REJECT ANY OR ALL OFFERS, TO WAIVE ANY INFORMALITIES, AND TO ACCEPT ALL OR ANY PART OF ANY OFFER AS MAY BE DEEMED TO BE IN THE BEST INTEREST OF THE SCHOOL BOARD." Section 2.09 of the rebid ITB provides: The School Board reserves the right to award the contract to the bidder(s) that the Board deems to offer the lowest responsive and responsible bid(s), as defined elsewhere in this solicitation. The Board is therefore not bound to accept a bid on the basis of lowest price. In addition, the Board has the sole discretion and reserves the right to cancel this Bid, to reject any and all bids to waive any and all information and/or irregularities, or to re-advertise with either the identical or revised specifications, if it is deemed to be in the best interest of the Board to do so. The Board also reserves the right to make multiple awards based on experience and qualifications or to award only a portion of the items and/or services specified, if it is deemed to be in the Board's best interest. Section 2.42 of the rebid ITB provides: "The School Board reserves the right to award one or more contracts to provide the required services as deemed to be in the best interest of the School Board." Section 2.11 of the rebid ITB defines "responsive and responsible" as follows: Each bid submittal shall be evaluated for conformance as responsive and responsible using the following criteria: Proper submittal of ALL documentation as required by this bid. (Responsive) The greatest benefits to the School District as it pertains to: (Responsible) Total Cost. Delivery. Past Performance. In order to evaluate past performance, all bidders are required to submit: A list of references with the bid and; A list of relevant projects completed within the last 3 years that are the same or similar to the magnitude of this ITB. All technical specifications associated with this bid. Financial Stability: Demonstrated ability, capacity and/or resources to acquire and maintain required staffing. Bidders are reminded that award may not necessarily be made to the lowest bid. Rather, award will be made to lowest responsive, responsible, bidder whose bid represents the best overall value to the School District when considering all evaluation factors. Two vendors, Bedrock and Prestige, submitted bids in response to the rebid ITB. Bedrock does not have the capability to provide concrete with rear delivery trucks. Therefore, Bedrock did not submit a bid for concrete delivered by rear discharge trucks. Bedrock submitted a bid for concrete delivered with front discharge trucks. Bedrock's total bid price was $74,887.50. Prestige's bid was for concrete delivered by rear discharge trucks. Prestige did not submit a price for concrete delivered by front discharge trucks. Prestige's total bid price was $70,300.00. The bid tabulation was posted on January 18, 2011. Staff of the School District made a recommendation to the School Board to award the front discharge portion of the rebid ITB to Bedrock and to award the rear discharge portion to Prestige. The recommendation was placed on the agenda for the School Board meeting scheduled for February 1, 2011. There was a discussion among the School Board members concerning notification to the vendors. Thomas Long (Mr. Long) became a School Board member in November 2010. He was concerned by the lack of response to the original ITB and, on January 27, 2011, requested Ms. Olson to send him a list of local vendors who did not respond to the rebid ITB. The purpose of the communication was to learn why vendors were not submitting bids. He contacted one vendor who did not submit a bid, but he did not contact either Bedrock or Prestige. The communication would have had to have been made after he received the list of vendors on January 28, 2011. Section 7.70 I. G. of the School Board Policy Manual provides: Vendors, contractors, consultants, or their representatives shall not meet with, speak individually with, or otherwise communicate with School Board members, the Superintendent, or School District Staff, other than the designated purchasing agent, and School Board members, the Superintendent, or School District staff, other than the designated purchasing agent shall not meet with, speak individually with, or otherwise communicate with vendors, contractors, consultants, or their representatives, about potential contracts with the School Board once an invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualification has been issued. Any such communication shall disqualify the vendor, contractor, or consultant from responding to the subject invitation to bid, request for quote, request for proposal, invitation to negotiate, or request for qualifications. At the February 1, 2011, School Board meeting, the School Board voted to appoint Scott Stegall (Mr. Stegall) as the new chief facilities officer for the School District. The School Board also voted to table the issue of the concrete contract in order to give Mr. Stegall an opportunity to review the procurement. Mr. Stegall did review the procurement and recommended that the contract award be split between Bedrock and Prestige. There was no difference between the quality of the concrete whether it was delivery by a front discharge truck or a rear discharge truck. Whether it would be more efficient to use a front discharge versus a rear discharge method of delivery would depend on the job for which the concrete was ordered. The recommendation to split the award of the concrete contract was placed on the agenda for the School Board meeting scheduled for March 1, 2011. Five School Board members were present for the School Board meeting of March 1, 2011. Four School Board members voted to reject the staff recommendation and to award the contract to Prestige. One School Board member voted against awarding the contract to Prestige. Thus, the School Board's intended award of the contract was to Prestige.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the intended award to Prestige was not contrary to the School Board's governing statutes, the School Board's policies or rules, or the rebid ITB and that the intended award to Prestige was not clearly erroneous, arbitrary, capricious, or contrary to competition. DONE AND ENTERED this 16th day of August, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2011.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 10, 1991, respondent, School Board of Collier County (Board), issued a written invitation to various contractors inviting them to submit proposals for certain construction work to be performed on Naples Park Elementary School in Collier County, Florida. The invitation in question is more specifically identified as Bid No. 120-5/91 Site Development/Naples Park Elementary School. The bidders were advised that their bids must be submitted no later than 2:00 p.m. on June 4, 1991. Bids were timely filed by five contracting firms, including petitioner, A2M2R Construction, Inc. (AMR), and Haas Construction, Inc. (Haas). On June 4, 1991, various school personnel, including Dallas Disney, Board architect, Vicki McKinney, Board assistant director of purchasing, and Pat Humphrey, a Board secretary, and the Board's engineering consultant, Glen Bridges, met for the purpose of opening the sealed bids. They agreed that the five bids would be opened in alphabetical order. This meant that AMR's bid was opened first while Haas' bid was opened fourth. Bridges was assigned the task of opening the bids and reading the dollar amount of each bid. In the case of AMR, it proposed a base bid in the amount of $174,815. When Bridges opened Haas' bid, he said words to the effect that he could not clearly make out the amount of the base bid. This was because the original number had been changed by Haas prior to the submission of its bid, and it could not be clearly read. Accordingly, Bridges handed the proposal to McKinney, who read the number as $146,500. She then handed the bid document to Disney who also concluded the bid was in that amount. At that point, the president of Haas, who was present at the bid opening, was asked if the amount was indeed $146,500. When he confirmed that it was, he was asked to place his initials next to the base bid number. He did so even though paragraph (6)(a) of the Bid Instructions provides that "(a)ny erasures or other corrections in the proposal must be explained or noted over the signature of bidders". According to AMR, this provision required that Haas initial the amount before it sealed and filed its bid. This interpretation of the Bid Instructions was confirmed by Board personnel. Thus, AMR contends that by Haas initialing its bid amount after the bids were opened, Haas violated the Bid Instructions and should have its bid proposal rejected. As it turned out, the bid amount submitted by Haas was the lowest dollar bid on the project, and the Board has proposed to award the contract to Haas. According to the Board's assistant superintendent for business affairs, Robert Wilson, who has supervised hundreds of bid lettings over the last several years, the circumstances in this case were "unusual" in that Haas initialed the bid amount after the bid documents were opened. However, Wilson considered this to be a minor irregularity which, by the terms of the Bid Instructions, could be waived by the Board. Further, he did not find such action to give Haas an undue advantage in the bidding process or place AMR and other bidders at a disadvantage. This was not contradicted. On the bid form used by the bidders, there is a line left blank before the space where the numerical amount of the bid is inserted. AMR contends that the purpose of this space was to be used by a bidder to spell out in words the amount of its bid, and because Haas did not spell out in words the dollar amount of its bid, the proposal should be rejected. However, there is no requirement in the Bid Instructions that the dollar amount be spelled out in words nor was there a school policy imposing such a requirement. Therefore, as to this contention, no irregularity in the bidding process occurred.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent awarding the contract in question to Haas Construction, Inc. DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of July, 1991. APPENDIX TO RECOMMENDED ORDER Respondent: 1-2. Adopted in finding of fact 3. Adopted in finding of fact 2. Adopted in finding of fact 4. 5-7. Adopted in finding of fact 3. Rejected as being unnecessary. Adopted in finding of fact 3. Adopted in finding of fact 4. Adopted in finding of fact 3. COPIES FURNISHED: Mr. James R. Powell, Jr. P. O. Box 150340 Cape Coral, FL 33915 Thomas W. Franchino, Esquire 700 Eleventh Street, South Suite 203 Naples, FL 33940-6777 Dr. Thomas L. Richey, Superintendent Collier County School Board 3710 Estey Avenue Naples, FL 33942
The Issue The questions presented here concern the entitlement of the Petitioner or Intervenor to be awarded lease rights under the Respondent's proposed Lease No. 590:8026, in that Petitioner and Intervenor have claimed that entitlement to the exclusion of the other party.
Findings Of Fact Respondent invited bid proposals for the provision of approximately 32,000 square feet of office space for its District VIII operation in Fort Myers, Florida. Petitioner, Chuck Bundschu, Inc., and Intervenor, Walter Lee Johnson d/b/a Walco Leasing Company, responded to the bid proposal by offering to provide the office space. Those responses may be found as part of the Composite Hearing Officer's Exhibit. Following the October, 1981, submittal of bid proposals, a bid evaluation committee was appointed by the Subdistrict Administrator for District VIII to consider the bids. In turn, he afforded guidance to that committee on the subject of the evaluation of the proposed bids offered by Bundschu and Walco, the only bidders for the project. The evaluation committee performed the task of weighing the bid proposals, in keeping with evaluation criteria which are outlined in Respondent's "Facilities, Acquisition and Management Manual" dealing with the procurement of lease space, which criteria are set forth in a form referred to as "HRSM 70-1, page A1-4-8," which is attached to chapter four of the manual. All criteria used for the evaluation process were drawn from that form with the exception of criterion No. 7, related to staff and client marking which was a product of this bid evaluation effort. (A copy of the HRS manual and forms may be found as Respondent's Exhibit No. 1, admitted into evidence. The evaluation committee's summarization utilizing the form criteria and the additional parking criterion may be found as a part of the Hearing Officer's Composite Exhibit, which is a replication of the original.) The HRS manual for procuring leased space is a publication of February, 1980, and establishes uniform guidelines by which bid proposals are considered by local officials who are part of Respondent's organization. Nonetheless, the exact weight to be afforded each criterion outlined in the manual is determined by the local evaluation committee. Weighing concerns the subject of awarding numerical values for beach bidder related to the various criteria with a maximum possible score being 100 points. On the basis of the evaluation performed by the committee, the Bundschu total was 88.25 points and the The Walco point total was 82 out of the possible 100 points. Consequently, the evaluation committee recommended that Bundschu be awarded the lease. Mark Geisler, in his capacity as Subdistrict Administrator, for District VIII, concurred in this evaluation as may be seen in his November 6, 1981, transmittal of the bid materials and associated evaluation, which transmittal may be found as pert of the Hearing Officer's Composite Exhibit. The District Administrator, District VII, in the person of Frances Clendenin, who was acting for the District Administrator, Ivor D. Groves, Ph.D., also recommended acceptance of the Bundschu bid. This position was made known by a memorandum of November 16, 1981. A copy of that recommendation is found as a part of the Hearing Officer's Composite Exhibit. The recommendations spoken to thus far were made known to Lester C. Missman, an official within the Division of General Services of the Department of Health and Rehabilitative Services. This division was, at the time of the bid proposals, and is now, headed by Dr. Homer Ooten, whose function within Respondent's organization includes the responsibility to evaluate lease proposals involving the Respondent agency and to make a final decision on the question of the lease award, based upon a review of the local subordinate unit's recommendation. By this, it is meant that the lease by Health and Rehabilitative Services as "user agency" is signed by Ooten based upon a delegation of authority to him through the vehicle of correspondence signed by the agency head. Ooten, upon considering the recommendation of the District Administrator's office, the Subdistrict Administrator and the evaluation committee, did not find fault with the criteria nor the point weighing scheme used in the evaluation process. He did question the cost analysis performed by the evaluation committee on the subject of client mileage for those clients receiving services from Respondent in a move from the HRS office in the Bundschu building where they were located at the time, to the building where Walco intended to let property. This was a distance of seven/tenths (7/10) of a mile and based upon the number of clients receiving services, there would be an estimated $100,000.00 in client mileage cost increase. This item was not deemed to be an appropriate consideration by Ooten and was disregarded in his review of the cost analysis performed by the evaluation committee. That cost analysis may be found as part of Respondent's Composite Exhibit No. 2, and includes interlineations by Ooten in his opinion on the subject of the cost analysis. That analysis had indicated an overall advantage of approximately $11,000.00 in favor of Bundschu and was premised upon costs related to Item 12 in the criteria, which criterion is cost of moving. It assumed a difference of over $131,000.00 in moving costs, the majority of which costs pertained to client inconvenience ($100,000.00), discounting $120,000.00 plus dollars related to the difference in the bid amount between the Walco and Bundschu bids which bid estimate was in favor of Walco. Ooten's opinion on the subject of the priority of including $100,000.00 plus dollars in clients' travel costs, when considered in the context of point awards under Item 12 in the criteria, lead Ooten to believe that the differential in point awards would not result in a 9.25 value of Bundschu versus a zero value for Walco. In his mind, the differential would be much less. Ooten made his own evaluation of moving costs per se, and through that process determined that approximately $15,600.00 would be necessary for a move into the Walco facility whereas $5,600.00 would be involved in the Bundschu move, which required the expansion of existing space in the Bundschu facility. Based upon an evaluation of the point differential in the rental rate criterion which was a differential of 2, that is 30 points out of a possible 30 for Walco and 28 points out of a possible 30 for Bundschu, Ooten also opined the this was an unreasonable assessment in view of the fact that the Walco bid amount was more than $120,000.00 less than the Bundschu bid. This taken together with the fact that there only existed approximately a $9,000.00 difference on moving costs between Bundschu and Walco, which was in favor of Bundschu, and there having been indicated a 9.25 out of a possible 10 point difference in Item 12 on the question of costs related to moving, led Ooten to believe that the true factual status of criteria Nos. 1 and 12 was not as depicted by the evaluation committee. Per Ooten, with proper assessment Walco would have received a higher point count than Bundschu through the process of applying the bid criteria, as well as being the lower bidder from the point of view of rental rates alone. After several exchanges with the District level personnel of Respondent who had been involved in the lease evaluation process, in which, on two (2) occasions, the local officials continued to support their initial opinion of the propriety of the award to Bundschu, a decision was made at the District VIII level to support the award of the lease to Walco as may be seen in the January 6, 1982, correspondence from the District Administrator to Missman, a copy of which may be found as Respondent's Exhibit No. 4, admitted into evidence. On January 6, 1982, Ooten issued a letter to the District VIII Administrative Services Director indicating the authority to award Lease No. 590:8026, formerly referred to as No. 590:1472, for the benefit of Walter Lee Johnson d/b/a Walco Leasing Company. Having learned of this decision and in keeping with the provision Subsection 120.53(5), Florida Statutes, Bundschu, through counsel, indicated opposition to that award on January 12, 1982, followed by a formal petition letter setting forth grounds for the opposition, which petition was filed on January 19, 1982. This series of documents is part of the Hearing Officer's Composite Exhibit, through copies. Subsequently, Items 4 and 6 in the petition letter were resolved between the parties without the necessity of a hearing and this is borne out by a copy of the February 1, 1982, correspondence from counsel for the Respondent to counsel to the Petitioner, part of the Hearing Officer's Composite Exhibit. The matter was then referred to the Division of Administrative Hearings for a formal Subsection 120.57(1), Florida Statutes, hearing by correspondence from the Assistant General Counsel for Respondent, dated February 4, 1982, a copy of which may be found as a part of the Hearing Officer's Composite Exhibit. There followed the intervention of Walter Lee Johnson as a party of record and the hearing was held on April 27, 1982. Petitioner's first contention deals with the idea of discounting the lease value based on the value of the "stream of future lease payments." This theory is contended for through Robert Sizemore, C.P.A., expert witness of the Petitioner. He would call for the discount of lease payments on the theory that present dollars will have a discounted value in the future, as the lease period unfolds. Taking into account the method of payment by the Respondent and the vicissitudes involved in attempting to establish the value of today's dollar at a future time, this theory of discounted dollars at a 10 percent or 12 percent rate per annum in succeeding years is not indicated. Assessment through the legislative appropriations process of sufficient funds to meet lease payment demands is not contingent upon the value of the dollar at any given point in the history of the lease. Therefore, the "stream of future lease payments" concept is inapplicable here. Likewise, trying to project the value of today's dollar at some future date is so tenuous as to be an unacceptable method to evaluate the competing lease proposals. Finally, even if this method was used, a 10 percent discount rate for inflation would leave approximately a $67,000.00 difference in the bid proposals and a 12 percent per annum discount rate related to inflation would leave approximately $52,000.00 difference in the bid proposals, in favor of the Walco bid. Petitioner has contended that Respondent failed to properly account for direct moving expenses. In that regard, the calculations made by Ooten on the question of moving expenses as reported above are accepted as fact. As a third claim, Petitioner has alleged the agency s disregard for recommendation of its evaluation committee in making the lease award. While the initial recommendations of the evaluation committee and staff were disregarded, the District Administrator eventually accepted the point of view of the Division of General Services within the Respondent's Department. Moreover, even if the local officials within the Respondent's Department had not accepted Ooten's viewpoint, the initial evaluation committee's development of criteria was flawed and the Ooten perception was correct, leading to a decision in favor of Walco. Finally, the contention by Petitioner that the agency did not seek adequate input from third parties affected by the relocation of the facility was not demonstrated through testimony. The method for review of the proposed lease was acceptable and to the extent that it required an appreciation and response to the needs of others not directly involved in the lease process, it has been amply afforded. Evaluation was in keeping with Respondent's "Facilities, Acquisition and Management Manual, HRSM 70-1, fourth chapter" and the award is based upon concurrence of the Division Director of the General Services Division of HRS pursuant to that chapter. Through argument, counsel for the Petitioner has also referred to the fact that in the initial evaluation process set forth in the sixth criterion, superior points of 2.5 for Walco as opposed to 2.25 for Bundschu had been awarded, when in fact the narrative summary of the reasons for such awards indicate an advantage to Bundschu. Even if the .25 points were allowed in the favor of Bundschu, this would not change the result.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, D. J. Haycook Construction Company (Haycook) was the lowest responsive bidder for an elementary school procurement project known as Elementary School "X," let by the Volusia County School Board and whether the Petitioner should have been awarded the contract.
Findings Of Fact On June 13, 2003, the School Board of Volusia County authorized the issuance of a request for proposal for the construction of a new elementary school known as Elementary School "X." The proposed new school would be located in Orange City, Florida. The school board issued an advertisement for the construction of Elementary School "X" and had it published. The project architect for the Board prepared the solicitation documents constituting a "Phase III specifications" manual and three addenda. The advertisement stated that "the school board expressly reserves the right to reject any and all bids and to waive informalities therein, and to use sufficient time to investigate the bids and the qualifications of the bidders." Section 00430 of the solicitation required that all bidders list the name of the subcontractor for each type of the 12 areas of construction work for Elementary School "X" as follows: 'For each type of work' below, list the name of the subcontractor. List only one name on each line and only one subcontractor for each type of work. Various 'type of work' sub-contracts may have more than one subcontractor (re: roofing; metal roofing and membrane roofing), list each subcontractor accordingly. Use additional sheets, if required. Additionally, Section 00430 provided: The term subcontractor as used herein shall be defined in 2001, Florida Statute 713.01(27) - subcontractor means a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor's contract. The deadline for submission of proposals in response to the solicitation was August 6, 2003. On August 6, 2003, Haycook's bid proposal and that of the second and third lowest bidders were opened and read by the members of the school board's staff. Haycook listed itself as performing or "self-performing" in areas of earthwork, masonry, concrete, and structural steel on the required list of subcontractors form pursuant to section 00430 of the solicitation. Subsequently, the project architect began to investigate the bids for the project. This was done through correspondence and direct contact between Haycook, the project architect, Mr. Daimwood, and the school board staff. This process began on August 8, 2003. As part of the evaluation process the architect verbally requested documentation from Haycook to verify its past and present abilities to self-perform in the four areas of earthwork, concrete, masonry, and structural steel, as well as by letters dated August 12, August 15, and August 25, 2003. Haycook responded to these information requests by letters of August 11, 13, and 28, 2003. The bid documents for the school project included the bidding and contractual conditions, general conditions, technical specifications, and the drawings listed on pages 10D-1 to 10D-2. In order to have a responsive bid a bidder was required to comply with the bid documents when submitting its bid. The relevant bid documents at issue in this dispute are Section 0020, "invitation to bid," Section 00100, "instruction to bidders," Section 00300, "bid form," and Section 00430, "list of subcontractors." The bid documents also required each bidder to deliver a bid bond in the amount of five percent of its bid to accompany the proposal. After acceptance of the lowest responsive bid, and issuance of the contract award, a bidder was required to deliver a payment and performance bond in the amount of 100 percent of the contract price. There is no dispute that Haycook has a bonding capacity of 18 million dollars for a single project and 35 million dollars for aggregate projects and the bonding capacity is not in dispute. The invitation to bid documents require that bidders be required to hold a current Certificate of Pre-Qualification issued by the school board at the time of bid opening. Haycook at all material times hereto held a Certificate of Pre- Qualification and was licensed to perform all work called for by the bid documents including, among others, self-performance of earthwork, concrete work, masonry, and structural steel. The three bids received were in the amounts as follows: (1) D. J. Haycook Construction Company: a base bid of $7,599,000.00; Alternate One, $189,000.00; Alternate Two, $48,800.00; Alternate Three, $21,000.00; (2) Mark Construction Company of Longwood, Florida: base bid of $7,657,000.00, Alternate One, $221,000.00; Alternate Two, $50,000.00; Alternate Three, $20,000.00; (3) Clancy and Theys Construction Company of Orlando, Florida: base bid of $7,840,000.00; Alternate One, $230,000.00; Alternate Two, $50,000.00; Alternate Three, $21,000.00. Section 00430 required each bidder to furnish a list of subcontractors defined as quoted above in the bid form. Section 00430 of the bid form also permitted a bidder to list itself as a subcontractor. The form provides: "A contractor may not list himself as performing a type of work unless he is self- performing and is a Florida licensed contractor for that type of work". Haycook was properly licensed at the time of bidding, and at all relevant times, to self-perform in the four areas of earthwork, structural steel, masonry, and concrete at issue in this case. After the bids were opened and examined, Mr. Daimwood, the architect evaluating bids for the school board, requested that Haycook furnish a list of past projects where it had self- performed earthwork, structural steel, masonry, and concrete work. Haycook provided a list of examples of prior projects for which it had self-performed work in those areas on August 11, 2003. The list included five projects for earthwork, four projects for structural steel, seven projects for masonry, and seven projects for concrete. Thereafter, on August 12, 2003, the architect requested additional information regarding self- performance of work in the four areas at issue. Haycook provided the architect with the requested additional information on August 13, 2003, including a list of each project, the total cost of each project, the completion dates, as well as contact persons with their telephone numbers and including copies of qualifications of the subcontractors listed on Haycook's subcontractor list. On August 25, 2003, the architect requested Haycook payroll records and workers compensation information for two of the listed projects of those Haycook had provided, that for Goldsboro Elementary School and Eustis Elementary School. On August 28, 2003, Haycook sent a letter to the architect explaining that on the Goldsboro job the earthwork was self-performed by a combination of supervising and directing the work with salaried employees, with leasing of labor from an employment service, and hiring of labor by the cubic yard with a cap on the activity. Haycook also explained that structural steel work on the projects was self-performed by a combination of supervising and directing the work with salaried employees, leasing of labor from an employment service, hiring of labor paid by the foot to erect specific components of the job, as well as using salaried employees for the performance of specific activities, and including purchasing of fabricated materials and then hiring crew labor and equipment on an hourly basis to erect them. In the August 28, 2003, letter Haycook also explained, with respect to the self-performed masonry work on both the Eustis and Goldsboro jobs, that those areas of work were self- performed by purchasing fabricated material, supervising and directing the work with salaried employees, hiring labor by the unit price (for instance by the block) to lay the block, and hiring labor from an employee leasing service for specific activities as to those jobs. Haycook also explained in the August 28, 2003, letter that a combination of the methods and means of performing delineated above and in that letter would be used for the activities listed on the subcontractor list on the relevant bid form for Elementary School "X". Haycook explained that it had priced and used its own costs for the activities listed on the bid form to arrive at the bid price for Elementary School "X". Enclosed with the August 28, 2003, letter from Haycook were copies of its purchase orders and cost journals for the Goldsboro School, concerning earthwork, masonry, and structural steel activities and its vendor purchase orders and cost journals for the Eustis Elementary School's masonry work done by Haycook. The enclosures with the August 28, 2003, letter showed that Haycook had purchased the materials, performed the work with its own employees, and performed work using additional outside labor in the areas of structural metals, prefabricated structures, earthwork, cast-in-place concrete, structural steel erection, and masonry work. Haycook also provided its proposals used on the Goldsboro project which consisted of concrete labor and structural steel labor. The architect interpreted the term "self-performance" to mean labor with the contractor's own employees only. Based upon that restrictive interpretation, he concluded that he had not found adequate information demonstrating Haycook's having "self-performed" these types of work previously. Additionally, the architect opined that Haycook's intended self-performance on Elementary School "X" project at issue, in the four work areas in dispute, "is in our opinion, a subcontractor format." Uncontroverted evidence adduced at hearing established that Haycook has extensive public school construction experience. The Petitioner's President, Dennis Haycook, has built more than 35 public schools and Haycook's project manager, Reed Hadley, who is assigned to the Elementary School "X" project, has built over 25 school projects. Dennis Haycook was also a principal of Mark Arnold Construction Company in the past, which was one of the largest public school contractors in Florida. In the past 10 years, with his own company, the Petitioner, Haycook, has built numerous school projects including the Goldsboro school which was a $7,000,000.00 project. The Goldsboro, Eustis, and other Haycook-built schools referenced during the hearing and in the evidence were all projects that were built within the authorized budget, were timely, and were of quality construction. The Board ultimately rejected Haycook's bid on Elementary School "X" because of the architect's interpretation concerning "self-performance," i.e. that all work must be performed by employees on Haycook's payroll. The bid documents did not define "self-performance," nor do the bid documents require that labor used must be on the contractor's payroll in order for his performance to constitute "self-performance." Haycook's witnesses were consistent in their testimony as to the definition of "self-performance": "self-performance," as customarily used in the construction industry, includes the contractor's purchasing of materials, performing part of the work with its own labor force, providing other labor not on the contractor's payroll, and directly supervising the work with the contractor's supervisory personnel. The term "subcontractor" is defined in the custom and usage of the construction industry, however, to mean someone or an entity that provides all labor, material, and equipment necessary to do the complete operation, as well as all supervision. It is more of a "total turn key operation." A subcontractor provides everything necessary to finish the work, including supervision, and then merely answers to the general contractor in terms of responsibility for the quality of the job and its timeliness. The school board's witnesses, expert and otherwise, gave interpretations of the concept of self-performance which were somewhat conflicting. Mr. Daimwood, the architect, opined that self-performance requires the contractors to use employees on its own payroll and make direct payment of workers' compensation for such employees. His opinion was that anything else would be a subcontractor relationship and not self- performance. He later testified, however, that paying labor not actually on Haycook's payroll could still constitute self- performance. Patricia Drago, of the school board staff, testified that if a contractor uses 10 employees on his payroll and uses 10 non-employees, this would be self-performance. If such a contractor has 10 employees and uses 11 non-employees, she was not sure whether this would constitute self-performance. Allen Green testified that self-performance of an area of work requires the majority of that work to be performed by the contractor's own employees, while other work could be performed by contract labor. He later changed his definition to require a contractor to have all employees on the payroll in order to self-perform. In other testimony, however, Mr. Green opined that if a contractor supplemented his labor with a couple of additional masons and paid them by the piece, then he would no longer be self-performing. At still another point in his testimony he added that it would be dependent upon the stage of the project as to whether the contractor's use of contract labor is self-performing or subcontracting. He felt that if the contractor adds some additional masons near the end of a job, as opposed to the beginning, then he could still be self- performing. Gary Parker is the Director of Facilities for the Lake County School Board. He testified that from his perspective, self-performance required the use of employees on the contractor's payroll. This definition, however, was not consistent with Lake County's course of conduct with the job that Haycook performed. Mr. Parker acknowledged that there had been no complaints by the architect or anyone else associated with the Eustis school project where Haycook listed itself as self-performing for masonry work, even though Haycook had retained a different entity to perform masonry labor (although not supply materials or supervision). Scott Stegall, the Director of Capital Outlay for the Seminole County School Board, testified that self-performance would require a contractor to perform all work without the use of outside contractors, including labor. Yet Mr. Stegall acknowledged that Haycook listed itself as self-performing masonry work on the Goldsboro school project and used a firm or entity known as Webber and Tucker to perform some masonry work, and that the Seminole County School Board had no dispute with this approach. Mr. Stegall's evaluation form for Haycook had stated that Haycook did not improperly substitute any subcontractors from the submitted list in that project. He later changed his definition of self-performance to acknowledge that a contractor could bring in laborers individually to perform without a "formal contract"; these informal labor contracts would not take it out of the self-performance category according to Mr. Stegall. The evidence concerning the Lake County District's and Seminole County District's experience as to the Eustis school project and the Goldsboro school project with Haycook's performance, including Haycook's approach to self-performance, was satisfactory in terms of pricing and the quality and timeliness of the work performed. The perceived fear by the Respondent that Haycook's performance might be substandard or that it might "bid shop" amongst potential subcontractors, after the bid opening, if Haycook did not list all subcontractors on the bid response, and self-performed in the manner Haycook described in its evidence, has not been shown to have occurred with regard to any of Haycook's past projects. There has been no demonstration by preponderant evidence that the use of only subcontractors listed or named in the bid response has resulted, in itself, in a lower price or better performance for the public by a contractor situated as Haycook. The architect testified that one method of defining "self-performance" is to determine whether the entity performing work was a subcontractor as defined by the bid documents. If the work is not being performed by a subcontractor, then it is being performed by the general contractor or self-performance. As the term is used in the construction industry, a subcontractor generally furnishes materials, installs the work, and supervises its own work. The bid documents define subcontractor as follows: "subcontractor means a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor's contract." Preponderant, credible, and substantial evidence was presented by Haycook to show that Haycook's use of the term "subcontractor" was an entity that furnishes the materials, provides the labor, and the supervision, and undertakes the entire responsibility for that type or phase of the work. When a general contractor hires contract labor only, this excludes what is occurring from the definition of subcontractor, since the definition of subcontractor prevailing in this proceeding based upon the bid documents, takes out of that subcontractor definition "a materialman or laborer." The preponderant credible evidence shows that when Haycook purchases materials and provides the labor, whether or not the labor is on Haycook's payroll, which Haycook then directly supervises, this, by definition, is not a subcontractor situation under the definition of that concept in the bid documents themselves. The bid documents provide no definition for self- performance, but simply contain the following requirements: "a contractor may not list himself as performing a type of work unless he is self-performing and is a Florida licensed contractor for that type of work." Therefore, if a contractor meets these two requirements, he is responsive to this specification concerning when subcontractors should be listed or need not be listed in the bid response. Haycook meets both of the two requirements for self- performing. Haycook's definition of self-performing work is consistent with and does not conflict with the definition of "subcontractor," which excludes materialmen and laborers. Haycook's expert witness, Mr. Harold Goodemote, is a general contractor with 20 years experience, including 8 years as a project engineer and chief estimator for Foley and Associates Construction Company for many public school projects in the Orlando, Melbourne, and Daytona Beach area. Mr. Goodemote is also Vice-President of "Coleman-Goodemote" which has been in existence for approximately 10 years and has built projects worth multi-millions of dollars for Daytona Speedway related entities. It was established through Mr. Goodemote's testimony that it is customary in the construction industry to self- perform work by the contractor's purchasing of materials and using the contractor's own employees, along with "third party labor," to complete work under the direct supervision and control of the general contractor. The testimony of Mr. Reed Hadley and Mr. Haycook likewise establishes that it is common practice in the construction industry to self-perform work in the manner in which Haycook has performed it in the past. For example, both the Lake County and Seminole County School Boards allowed Haycook to list itself as self-performing where Haycook purchased masonry materials and used contract labor to install the masonry materials and components. "Bid shopping" is a practice whereby a contractor submits a bid for a project and, after winning the bid, goes to its subcontractors or even to new subcontractors, not considered in the bid process, and attempts to get lower prices from them, versus the prices the contractor had when it submitted its bid. This allows more profit to be built into the job for the contractor or, if the contractor artificially bid low in order to get the job, tends to allow the contractor to restore profit to the job for itself. The school board's rationale for requiring pre-bid opening listing of subcontractors is to prevent bid shopping after the bid is awarded in order to protect the competitive integrity of the bidding process. The listing of subcontractors is a practice of the Volusia County School Board and some other school boards in Florida. Ms. Drago, in her testimony, acknowledged that a substantial number of school boards in Florida do not require a list of subcontractors to be provided with bid proposals, and she acknowledged that this does not mean that those school boards' bid processes lack credibility and competitive integrity. She was unaware of any examples in the Volusia County School Board's experience where a contractor listed itself as self-performing and then shopped subcontractors after the bid opening to obtain a better price. The preponderant evidence of record does not establish that this has been the case with Haycook or other contractors on past Volusia County School Board jobs. This is in accord with Mr. Haycook's testimony, who described the detrimental effects such a practice could have on future relationships between a contractors and subcontractors in terms of having them available for later jobs, if a contactor became known for "beating down" subcontractors' prices. If a contractor had a reputation for engaging in that practice, in the future subcontractors' bids to that general contractor would likely be higher, if he could get their bids, and this might result in that contractor having difficulty rendering bid proposals that were low enough to have a chance of being successful. The bid documents give the school board the right to determine if each subcontractor listed by the bidders is qualified to perform the work and if not, to reject that subcontractor and require a replacement subcontractor. It is noteworthy that neither the architect nor the school board rejected Haycook as being unqualified to perform the work in any of the areas in which Haycook, in effect, listed itself as the subcontractor. The bid documents do not provide that the school board may reject "sub-subcontractors" engaged by a subcontractor, nor does the school board examine the history and capabilities of sub-subcontractors that a subcontractor intends to use. Once a subcontractor is acceptable to the Board, there is no further review to determine what means, methods, and procedures the subcontractor uses to perform the work. The subcontractor can contract out all of the work to sub-subcontractors who are actually performing the work, and the Board might not even be aware of it. Therefore, its method or rationale of listing subcontractors and then investigating the subcontractors is no guarantee of ensuring quality of work. In fact, the more areas of work that the general contractor does itself, the more direct control over performance the school board would have. The school board apparently uses a different approach in the instance where a general contractor lists itself as a subcontractor for one or more types of work, i.e. is self- performing. The Board's practice in that situation requires the general contractor to list each contractor who may perform parts of the work. Therefore, the general contractor must list each contractor who will perform the work in each area while this standard is not applied to listed subcontractors. The bid documents do not disclose to bidders the school board's unwritten definition and interpretation of "self- performance." They do not reveal that under the Board's interpretation a contractor must self-perform only with employees on its payroll; that a pre-qualified contractor licensed to perform work in a given area must prove that it has self-performed such work in the past with its own employees only; that general contractors will be treated differently from subcontractors on the subcontractors list, as to the listing of contract labor, and that even though the term "subcontractor" in the bid documents excludes "materialmen" and "laborers," the school board still considers contract labor as a subcontractor or subcontracting, that must be listed for self-performance work. Haycook has substantial experience in bidding and performing work on public school projects, as does Mr. Haycook himself, with both Haycook and a prior company with which he was associated. Haycook had prepared a bid three or four months earlier on a prototype school project similar to Elementary School "X" and had extensive cost information obtained from its work on that project and from subcontractors, including those "bidding" Elementary School "X." Haycook maintains a large database of subcontractors and suppliers experienced in performing work and portions of the work necessary for the Elementary School "X" project, including cost information. It has a database of over 3,000 names useful in obtaining and providing labor for use on parts and subparts of any self- performed work. Prior to the bid, Haycook received the plans and specifications enabling it to determine the quantities of materials needed and the costs per unit for installing the materials and performing the necessary work. Haycook had received subcontractor bids in each of the four areas that it later determined it would self-perform (earthwork, structural steel, concrete, and masonry). Because Haycook's "takeoffs," historical pricing information and recent bid information from another Volusia County prototype school indicated that it could self-perform the work at less cost than using the bids of subcontractors in those four work areas, Haycook elected to self-perform the work and listed itself as the subcontractor in those four work areas. This was not a case where Haycook simply ran out of time to get subcontractors' bids in those four work areas and therefore simply listed itself as performing in the four work areas at issue due to time expediency. It was also not because Haycook intended listing itself as performing in the four subject work areas so that it would create an opportunity to get lower bids from unknown subcontractors after bid opening, in order to enhance its profitability and support a low bid, in terms of putting enough money in the job for itself. As general contractor for the entire project, Haycook intended to provide general supervision of the entire project including subcontractors. With respect to self-performed work, Haycook intended to supply materials and components and to directly supervise and control the means, methods, and procedures of the self-performed work with contract labor. Haycook's definition of "self-performance" for earthwork involved Haycook's renting equipment, retaining contract laborers to clear the site, place the fill (paid by the hour or by the yard), compact the fill, and grade the site. Haycook directly supervises self-performed work and schedules and manages it with Haycook's project manager and on-site superintendent. The testimony of Reed Hadley and Dennis Haycook on behalf of Haycook established that Haycook had self-performed earthwork on other projects in the same manner as described above, satisfactorily for the owners. Specific project names and other project information showing earthwork self-performance by Haycook was provided to the architect as referenced above. Mr. Haycook established that Haycook had "self-performed" earthwork on 50 to 60 percent of its projects in the past. Haycook's definition of self-performance of structural steel included engaging a licensed fabricator, as required by the bid specifications in this instance, hiring experienced labor erection crews, purchasing the materials and component parts, and directly supervising and managing the work, including scheduling of the labor crews. Haycook had performed structural steel on 10 to 15 percent of its past projects. Four examples of projects, self-performed in structural steel, were provided to the architect along with related detailed information. Haycook's self-performance of concrete work included its purchasing of materials, hiring contract labor for footings, paid by the lineal foot, and concrete slabs paid by the square foot, and directly supervising, coordinating, and scheduling the concrete work activities with Haycook's own project managers and superintendent. Haycook has self-performed concrete work on approximately 80 percent of its past projects. The architect was provided a project listing of self-performed concrete work and detailed information showing Haycook's experience in this area. Concrete work is the area of work most commonly self- performed by general contractors in the construction market area in and around Volusia County. Haycook's self-performance of masonry includes Haycook's purchasing of concrete blocks, and reinforcing steel placed within the block, hiring labor on a unit price basis to install it (as, for instance, paid by the block laid), directly supervising the work, and coordinating and scheduling the masonry work activities with Haycook's project manager and superintendent. Haycook has self-performed masonry on approximately 70 percent of its past projects. The architect was provided examples of projects listing self-performed masonry work by Haycook, as well as detailed information depicting Haycook's experience in this work area. Mr. Goodemote, as referenced above, is a local general contractor with school board project experience and is Haycook's expert witness. He established that it is common practice in the construction industry in the Volusia County area for contractors to self-perform work in the manner that Haycook had self-performed it in the past and proposes to do on Elementary School "X." He established with reference to the Board's definition of "subcontractor," which excludes "materialmen" and "laborers," that a contractor's purchase of materials and the hiring of contract labor to install the materials does not come within the definition of "subcontractor" or "subcontracting." He established that a subcontractor is the one who provides all labor, material, equipment, and supervision necessary to complete a work operation. "It's a total turnkey operation. They provide everything to finish the work." Mr. Goodemote's opinion establishes that "self-performance" of the subject work includes a general contractor hiring contract labor to perform a part of the work, because many times there are multiple vendors associated with a portion of the work, and the contractor is still directing and supervising the work and assuming all the risks associated with the work. Mr. Goodemote himself has self- performed as a general contractor and observed other contractors self-perform earthwork, masonry, concrete work, and structural steel work. He demonstrated that if a general contractor uses contract labor to perform a portion of the work, it still remains a "self-performance" by the general contractor, and that the laborers do not have to be on the contractor's payroll in order for the work to constitute self-performance, according to the general practice and usage in the construction industry. When requested by the architect to provide examples of past projects that it had self-performed in the four subject work areas, Haycook listed five projects as to earthwork; four projects in structural steel; seven projects as to masonry; and seven projects as to concrete. In consideration of his restrictive view of what self-performance means (i.e. that self- performance can only mean performance of work by salaried employees on the general contractor's own payroll), the architect (evaluator) requested payroll records and workers' compensation information on two projects only, the Goldsboro Elementary School and Eustis Elementary School. The bid documents do not provide unbridled discretion in the architect/evaluator, or in the school board, to define self-performance in a manner not provided for or inconsistent with the bid documents or to define "subcontractor," to include contract labor and thus require the labor to be listed as a subcontractor on the bid response. There was no notice to any of the bidders that such a restrictive definition would be employed, nor that a contractor listing itself as self- performing, and therefore standing in same position as other subcontractors as to the areas of work it would self-perform, would be treated differently from other subcontractors by, in effect, having to list such persons or entities as those providing contract labor as "sub-subcontractors." There was no evidence that the architect was provided sole discretion to verify self-performance experience as to the two projects only and ignore verification information of self-performance as to the other listed projects provided by Haycook. Although the architect and the Board contended that Haycook's listing of itself as self-performing in the four work areas at issue might allow Haycook to "buy out" subcontractors or to "bid shop," there was no evidence offered to substantiate that this was Haycook's intent or that Haycook or any other identified contractor in Volusia County or the surrounding area had ever attempted to "buy out" subcontractors on Volusia County school projects. Contrarily, Mr. Haycook testified that he does not engage in a practice of "buying out" subcontractors after he has obtained contracts with a winning bid. He explained, as referenced above, that subcontractors and the business relationships that he has with them are crucial to the success of his business. If Haycook made a practice of engaging in such inappropriate operational and pricing conduct when bidding for projects, or entering into related contracts, then subcontractors would either elect not give bids to Haycook at all when Haycook was, in the future, attempting to formulate bid responses, or would not give Haycook their lowest or best price because of their knowledge of such a practice, if Haycook engaged in it. This would obviously have an adverse effect on Haycook's ability in the future to be successful in competitive bid procurements or projects. Haycook has self-performed in the manner intended as to Elementary School "X" for years, as have his competitors. Although the Board apparently feared that Haycook's listing itself as self-performing in the areas of work in question gave it a competitive advantage over other bidders, the evidence does not bear out that fear. The competing bidders had the same opportunity to look at their past cost knowledge and experience, their knowledge of materialmen and suppliers in the area, their knowledge of the labor market and available labor and other data by which they might arrive at an independent evaluation of what a particular area of the work should cost, as well as the methods and means necessary to perform it. They had the same opportunity to evaluate any such knowledge base they have and elect to self-perform one or more areas of the work, as did Haycook. Since they had the same opportunity to do so, the evidence does not show there is any competitive advantage gained by Haycook in this situation which was not available to other bidders as well. As addressed above, the architect's recommendation to reject the Haycook bid was based upon his interpretation that "self-performance" required all work to be accomplished by employees on Haycook's payroll. Using that restrictive definition, the architect concluded that Haycook did not demonstrate, as to the Goldsboro and Eustis projects only, that Haycook had self-performed work with its own employees in the past and therefore that Haycook would self-perform with its own employees on the project at issue. The architect concluded that Haycook's subsequent engagement of contract labor in lieu of using his own payroll employees "could potentially give D. J. Haycook Construction Company an unfair advantage over the other bidders." Neither the architect's testimony nor the Board's other evidence explained, however, how that would give the Petitioner an unfair advantage over other bidders who, as found above, were free to engage in the same proposed self-performance as Haycook. The evidence did not establish how it would harm the public's strong interest in getting the best possible price for a quality construction effort that was completed on time, within the authorized budget, and in accordance with all the contractual terms. The architect's and Board's conclusion in this regard is based upon incorrect and unreasonable interpretations of what is meant by "subcontractor" and the concept of "self-performance." The rationale for finding that Haycook's putative self-performance would give Haycook an unfair advantage, vis a vis, other bidders or would promote bid shopping or buy-out of subcontractors has been shown by the evidence to be based upon speculation and conjecture. Haycook's bid response has been shown to be responsive to the specifications as they were stated, published and furnished to the bidders, including Haycook, in the bid documents at issue. The definition of self-performance employed by the architect and the Board is not supported by the language of the bid documents and has been shown by the preponderant, most credible evidence of record to be an unreasonable definition and manner of evaluating the bids and particularly Haycook's bid. Haycook has been shown to be responsive to the specifications and the relevant portions of the bidding documents and to have the lowest bid by a significant amount, some $241,000.00 dollars as to the base bids of Haycook versus that of Clancy and Theys.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Volusia County awarding the contract for Elementary School "X" to the Petitioner, D. J. Haycook Construction Company, Inc. DONE AND ENTERED this 8th day of March, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 8th day of March, 2004. COPIES FURNISHED: S. LaRue Williams, Esquire Kinsey, Vincent, Pyle, L.C. 150 South Palmetto Avenue, Box A Daytona Beach, Florida 32114 Theodore R. Doran, Esquire Michael G. Dyer, Esquire Doran, Wolfe, Rost & Ansay 444 Seabreeze Boulevard, Suite 800 Post Office Drawer 15110 Daytona Beach, Florida 32115 William E. Hall Superintendent Volusia County School Board Post Office Box 2118 Deland, Florida 32721-2118
The Issue The issues are whether Personnel Pool of North Central Florida, Inc., d/b/a Medical Personnel Pool (MPP), is the lowest qualified bidder on Contract No. R- 2119 or whether Suwannee Valley Medical Personnel Corporation (Suwannee) is entitled to the award of Contract No. R-2119 or is entitled to have all bids rejected and the contract relet for bids.
Findings Of Fact The ITB on Contract No. R-2119 was developed jointly between the Department's Central Office and the Region II contracting staff. The Region II staff sent a draft of the ITB to the Central Office, where it was reviewed by Gerald Ellsworth, the Department's Human Service Program Specialist. Mr. Ellsworth is responsible for reviewing the Department's contracts and plans, as well as for development of the Department's proposed invitations to bid and other related types of documents. Mr. Ellsworth has considerable experience in drafting and reviewing governmental contracts for purchasing of services at the state, local and federal government levels. The ITB was also reviewed by the Department's legal office, the Office of Management and Budget and the Correctional Medical Authority, with regard to both the specifications and the contract language in the ITB. The Department properly published the ITB on or about June 28, 1989. The ITB was published under cover of a formal State of Florida Invitation to Bid for Contractual Services, Form PUR: 7031 (Rev. 10/18/88), containing the State of Florida standard general conditions for bids for contractual services. Among those conditions were detailed requirements regarding the sealed nature of bids, requirements for the execution of bids, requirements regarding the opening of bids and conditions regarding prices, terms and payment, interpretations and disputes, conflict of interest, awards, governmental restrictions, default, legal requirements, advertising, assignment, liability, facilities, cancellation and public records. The same general conditions on the first page of the ITB specifically provided an exclusive mechanism for the bidders to resolve questions and disputes regarding the conditions and specifications of the ITB: INTERPRETATIONS/DISPUTES: Any questions con- cerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. (Emphasis added.) The body of the ITB stated that the Department was soliciting bids for registered and licensed practical nurse services in the Department's Region II, on all shifts, for the care and treatment of inmate patients, as further defined in the ITB's section entitled "Responsibilities of Successful Bidder; Scope of Work." The ITB also contained detailed requirements regarding Nurse Professional Qualifications, Quality Management Standards, Scheduling of Nurses, Records, Invoicing, Insurance, Legal Requirements, Conflict of Interest, Unsatisfactory Performance, Brokering of Contract, Subcontracts, Verbal Instructions, detailed procedural requirements regarding the submission, review and evaluation of the bids, a description of the institutions covered and a copy of the sample contract. One of the procedural requirements in the body of the ITB repeated that: All inquiries from Bidder's [sic] concerning this Invitation to Bid shall be submitted in writing to the office identified on the cover of this Invitation to Bid. Such inquiries shall be received by the office on or before the date indicated above in the Calendar of Events as the "Last Day for Written Inquiries" [July 10, 1989]. (Emphasis added.) The ITB contained a "Bid Price Sheet" which contained separate blanks for RN and LPN services, separate blanks for each service for weekdays and weekend/holidays, and separate blanks for each of these categories for each of the three geographic areas of Region II, in each of the three years of the contract. That Bid Price Sheet stated that prices quoted "shall be firm net prices regardless of travel involved. . . " The body of the ITB specified that bidders must submit "all costs in the format specified on the Price Quote Sheet provided." (Emphasis added.) Further, the "Proposal Evaluations" section of the ITB specified that the figures to be inserted in the blanks on p. 15 were to be "hourly rates" for each type of nursing service. The next paragraph of this section of the ITB, however, stated that "Total cost, and cost breakouts on the Price Quote Sheet shall be clearly stated." The undisputed testimony of Gerald Ellsworth established that the intent of these provisions of the ITB was to require the bidders to state the total cost (i.e., net firm price) for each hour of nursing services in a particular geographic area at a particular point in time. Even though the ITB set forth an estimate of the hours that would be required under the contract, this information was clearly only in the nature of an estimate, and it was never the intent of the ITB to require the bidders or the Committee to project or evaluate, respectively, the total cost of the contract (as opposed to the total cost of each hour of service) by multiplying the bidders' bid costs for each hour of service by the corresponding estimate of hours needed over the three- year life of the contract for each of those categories. The primary reason for this focus upon the cost of an hour of service, rather than the cost of the entire contract, is that the estimated hours needed, as indicated by the ITB, are only estimates. Actual demands for service and workloads are likely to vary considerably, both by type of nursing position and geographic area. These demands could also vary as a result of factors such as the vacancy levels in the Department's own staff of employee nurses or changes in administrative personnel at a given institution. The ITB called for a mix of both objective and subjective evaluation of materials submitted by the bidders. The cost data, submitted in response to p. 7, para. E; p. 12, para. F.2.e; and p. 15, para. 7 was entirely objective, as was the Committee's role in evaluating that data. On the other hand, the information required from bidders under p. 12, para. F.2.a ("Project understanding and statement of work and reference from clients"), and p. 12, para. F.2.b ("Nurse Professional Qualifications"), called for a mix of both subjective and objective information and evaluation. The former, referred to throughout the testimony as "Criterion A," required the bidder to submit "a narrative statement of work to be performed, and references from clients in accordance with the specifications appearing at p. 4, para. 2.A. The latter, referred to in the testimony as "Criterion B," required bidders to: submit professional qualifications, experi- ence, and CPR certification for Department reviewers which documents the Bidders [sic] capability to provide registered and licensed practical nurse personnel that meet the training specifications. as set forth at pp. 4-5, para. 2.B. Within Criterion B, for example, an entirely objective requirement is the proof of the bidders' nurses' CPR qualification. A subjective element of this same criterion would be the quantity and quality of documentation of available nurses. The ITB required the Committee to award points to the respective bidders based on a formula which takes into account each of these objective and subjective criteria. That Formula, at its first level, assigned a point value of 20 points for Criterion A (Project understanding and statement of work, and references from clients), 30 points for Criterion B (Nurse Professional Qualifications) and 50 points for Criterion C (Bid Cost). Specifically as to Criterion C (Bid Cost), this criterion was entirely objective and did not require any subjective analysis by the Committee. The ITB specified that the lowest bidder "shall" be awarded 50 points, based on the average of the three years' quotes for cost of hours of nursing services. The ITB specified that the remaining bidders "shall" be awarded points for bid cost based on the following formula: Points Awarded Equals 50 x (1-A/B) where A equals the difference between the respective bidders' average bid and the lowest average bid, and B equals the lowest bidder's average bid. Unlike Criterion C, the Committee members' evaluation of the bidders' responses to Criteria A and B was left to their judgment and discretion. While the ITB set forth factors that were to be taken into consideration by the Committee members under these criteria, there was no required method by which an evaluator was to assign points for Criteria A and B. Specifically, there was no requirement in the ITB that the evaluators rank the bidders under Criteria A and B. An evaluator was free, for example, to give all bidders full point credit under either criterion, or to assign them any variation of points. This type of point system for mixed weighing of subjective and objective criteria is not unusual in governmental purchasing contracting and competitive bidding and is, in fact, normal procedure. The bid criteria set forth in the ITB, as well as the system set forth therein for evaluation of those bids by a mix of subjective and objective criteria, is rational. Further, and specifically, the ITB's requirement that costs be quoted as a rate per hour of service, by geographic area and point in time, is rational. It would be irrational to evaluate bid cost under this ITB by multiplying each bidder's price quotes for individual hours of service, broken down by geographic area and point in time, by the corresponding estimates of hours needed, set forth at p. 3 of the ITB, and then comparing the resulting "total cost" of the contract under each bid, since the estimated hours were intended to be no more than estimates, and the Department recognizes that these hours are subject to significant variation over the term of the contract. This probable variation would make the latter calculation entirely meaningless and baselessly speculative. It was not the intent of the ITB to find the "lowest and best" bidder. Instead, the intent of this ITB was to find the lowest bidder who met the qualifications and specifications set forth in the ITB. This is not the same as "lowest and best." The Bidders and Their Bids Medical Personnel Pool MPP, the successful bidder on Contract No. R-2119, timely submitted its bid for that contract. MPP's bid showed that MPP is a nationally recognized health care provider, with over twenty years of experience in serving the health care needs of both home health clients and facility clients. Its franchise office in Gainesville, Florida, is one of four offices operated in the Region II area by Mr. Ed Bixby, a former vice president of MPP's parent company, Personnel Pool of America, Inc. Mr. Bixby personally has over fifteen years of experience in medical staffing. All MPP offices follow the same national corporate standards for quality assurance, office operation and general business practice. Further, MPP is a financially sound and viable business, with an ongoing corporate recruitment program that regularly attracts new employees. MPP's client service representatives are on-call and available 24 hours a day, seven days a week, to meet the Department's staffing needs. The agency has been managed since October 1987, by Mr. Duane Gorgas, who has seventeen years of experience in facility clinical laboratory medicine, and who is licensed by the Department of Health and Rehabilitative Services as a clinical laboratory supervisor. MPP demonstrated compliance with Criterion B of the ITB by showing that each of its nurses is carefully and personally screened and tested for nursing skills prior to being sent into the field. In addition, MPP personally verifies all nurses' licenses with the Department of Professional Regulation, as well as their CPR certifications. A minimum of one year's documented current clinical experience is required prior to a nurse's being sent into the field. Further, MPP is itself an approved provider of nursing and other professional continuing education programs (DPR Provider No. 27M0938) and provides continuing education directly to its employees on a regular basis. MPP's Gainesville franchise already provides RN's and LPN's to correctional facilities, hospitals and nursing homes throughout sixteen counties in north central Florida. A list of the prisons and county jails currently and historically staffed by MPP in both Regions II and III was included in the bid, and includes thirteen corrections facilities in those two regions. A broad range of references from these and other clients, both institutional and personal, was included as Attachment II to MPP's bid. Copies of the licenses of 48 experienced MPP nurses, qualified and available to provide the services called for under Contract No. R-2119, were attached to the bid as Attachment III. Suwannee Suwannee's bid was also timely submitted. Whereas Suwannee now protests that the Department's manner of determining bid costs as net cost per hourly unit of service is irrational, that contention is belied by Suwannee's own bid. In the first place, Suwannee did not quote cost as a multiplication of hourly rates times total estimated hours anywhere in its bid, even though its president, Mr. Fortner, now contends this is the only rational way to quote or determine bid cost under the ITB. Further, Mr. Fortner expressly conceded that the ITB did not call for any such calculation of "total cost" by multiplication of rates by estimated hours. Even so, Suwannee has waived any objection or question it may now have as to the method of determining bid cost. Mr. Fortner conceded that he was fully aware of the standards set forth at pp. 1 and 11 of the ITB, requiring that questions or objections to the reasonableness, necessity or competitiveness of the terms and conditions of the ITB be submitted in writing in a timely manner prior to July 10, 1989. Mr. Fortner nevertheless conceded that he failed to submit any such questions or objections regarding the reasonableness, necessity or competitiveness of the terms and conditions of the ITB, until the filing of his protest after the award of the bid to MPP, and long after July 10, 1989. Having failed to file any timely written objections to the reasonableness, necessity or competitiveness of the terms and conditions of the ITB, therefore, Suwannee has waived any objections to the Department's method of calculating bid costs by averaging each bidder's unit net price for an hour of service by geographic area and point in time, as opposed to Suwannee's after- the-fact preferred method of multiplying these rates by estimated hours to determine Suwannee's definition of "total cost." Suwannee's bid, as supported by its president's testimony, showed that Suwannee was only incorporated in late July 1988, less than a year before the ITB was published. Prior to that time its then-22-year-old president's business experience consisted of operating a video store. Mr. Fortner conceded he had no prior experience whatsoever in providing any sort of nursing or medical services. Prior to the bid letting, Suwannee's sole experience in attempting to staff a correctional facility was at Baker Correctional Institute. Mr. Fortner testified that his first client was Lake City Medical Center, yet no reference from that facility appears in his bid. On the other hand, MPP's bid contains a highly favorable reference from Lake City Medical Center's director of nursing, indicating a completely satisfactory contractual relationship with MPP since 1987. Whereas MPP directly provides continuing education to its nurses under its own provider number, Suwannee takes the position that continuing education requirements are the nurses' responsibilities, and that they must meet these requirements at their own expense. Further, while Mr. Fortner stated that he believes Suwannee tests its nurses, he admitted he did not know how, and Suwannee's bid was silent on this aspect of Criterion B of the ITB. Suwannee's bid was also silent on screening of new nurse applicants. Suwannee has only recently hired a full-time director of nursing. Whereas MPP submitted qualifications for 48 nurses to staff the estimated hours under contract, Suwannee proposed to staff the same number of estimated hours with only 31 nurses. Mr. Fortner testified that the number of licenses in Suwannee's bid constitutes the full complement of nurses he deems necessary to provide the number of hours of service estimated in the ITB. The Bid Evaluation Process Objective Evaluation of Criterion C Initially, because of a confusing misprint in the ITB regarding the mathematical formula for calculating points to be awarded to bidders, other than the lowest average cost bidder, under Criterion C (bid cost), some of the four Bid Evaluation Committee members calculated the ranking of bidders under that criterion differently. That calculation was corrected by Dr. Rechtine, the Committee chairperson, however, in consultation with officials of the Region II office. The correction did not alter the ultimate overall ranking of the bidders, although it made slight differences in the points awarded individual bidders by some members of the Committee, and in one case the second and third bidders under Criterion C were reversed on one evaluator's tally sheet. All four of the Committee members testified that they agreed with the corrected calculation of points to be awarded each of the bidders under Criterion C. At no time was any other part of any Committee member's points awarded altered or changed. Subjective Evaluation of Criteria A and B Steven Smith Committee member Steven Smith, Regional Health Services Administrator for Region II, responsible for assisting institutions in the region with health service issues, including contracting for health services, evaluated the respective bids of MPP and Suwannee in a rational and reasoned manner. With respect to Criteria A and B, Mr. Smith thoroughly reviewed the entire bid document of each bidder and made judgments as to the merits of each bid. His evaluations were based on how the bidders presented their respective documents, including the presentation and content of the narratives. While he did not assign any greater weight to either MPP's or Suwannee's references, Mr. Smith felt that MPP better articulated its understanding of the nature of the work. Mr. Smith was particularly impressed with MPP's understanding of the Department's court-ordered duty to improve access for inmates' to nursing services, which Mr. Smith felt was indicative of MPP's understanding of the contract's service requirements. He was also impressed with MPP's documentation of its 24-hour coverage. In sum, Mr. Smith felt MPP's bid was much clearer than Suwannee's. Cynthia Vathauer Committee member Cynthia Vathauer is a Department accountant, in charge of the inmates' welfare fund, who has previously served as an evaluator of competitive bids. Ms. Vathauer evaluated the respective bids of MPP and Suwannee in a rational and reasoned manner. With respect to Criteria A and B, Ms. Vathauer reviewed the ITB and next performed a detailed analysis of whether the bid components called for by the ITB under Criteria A and B were present in each bid. Her review of the bids under Criteria A and B consisted of listing all of the required components under each criterion and then checking off whether each bidder had adequately provided the required components, making notes where there was partial or questionable compliance and deducting points from the total allowable for each criterion which was missing or incomplete. Whereas Suwannee contends Ms. Vathauer made "no analysis" of the bids under Criteria A and B, simply because Ms. Vathauer stated that she did not read these components of the bids in detail for comparative content, this allegation is not supported by the weight of the competent, substantial evidence. Ms. Vathauer's detailed analysis of the presence or absence of the factors called for by the ITB, supported by her contemporaneous notes, shows that Ms. Vathauer made a rational and reasoned analysis of the bids under those criteria, fully supporting her allocation of points to the bidders under those criteria. She admitted candidly that she was not familiar with the clinical or operational aspects of health service provision. Thus, for example, rather than attempt to compare the relative quality of nurse evaluations (which, incidentally, was not required under the ITB), Ms. Vathauer based her judgment of compliance with this criterion on the presence or absence of valid copies of actual licenses. Dianne Rechtine, M.D. Dianne Rechtine, M.D., is the medical executive director at North Florida Reception Center and acting medical services director for Region II. Dr. Rechtine also performed a rational and reasoned evaluation of the bids under the standards of the ITB. Dr. Rechtine read the respective bids and, with respect to Criteria A and B, assigned points based on her evaluation of those bids. Her notes of how she allocated points under these criteria appear as Joint Exhibit No. 4D and show that Dr. Rechtine actually scored Suwannee higher than MPP under Criterion A and the same as MPP under Criterion B. Suwannee has not been heard to assert that Dr. Rechtine's analysis under these criteria was other than rational and reasoned. Thus, it is found that Dr. Rechtine's analysis and evaluation of the bids was in fact rational and reasoned. Peggy (Richardson) Patray Since Peggy (Richardson) Patray was not called to the witness stand, MPP offered into evidence, without objection, her deposition testimony, taken prior to MPP's intervention and without benefit of cross-examination by MPP or its counsel. Nevertheless, that deposition and Ms. Patray's own evaluation notes appearing as Joint Exhibit No. 4E demonstrate that Ms. Patray, a registered nursing services consultant employed by the Department and previous nursing supervisor at New River Correctional Institute, carefully reviewed the ITB and analyzed and evaluated the bids under Criteria A, B and C prior to awarding points to the bidders. Ms. Patray looked at the types of facilities from which references were obtained and considered, for example, related jail-type experience to be a positive factor. Ms. Patray actually scored Suwannee superior to MPP under Criterion A for reasons related to the bidders' statements of understanding of work. She scored the two bidders evenly under Criterion B, even though she was favorably impressed by one (at the time of her deposition, she could not recall which) bidder's emphasis on pre-employment screening and in-service training, when contrasted with the other bidder's leaving of this responsibility to the individual nurses. Finally, Ms. Patray testified that she was favorably impressed with MPP's sources of references, as opposed to Suwannee's, and that there was not enough information in Suwannee's bid, in her opinion, regarding nurse professional qualifications. In sum, Ms. Patray's testimony and notes in Joint Exhibit No. 4E demonstrate clearly that she also performed a rational and reasoned evaluation of the bids of the parties under the terms and conditions of the ITB. Suwannee's Allegations There is no evidence on the record of this proceeding to support Suwannee's allegations that political or media pressure adverse to Suwannee influenced the decision to award Contract No. R-2119 to MPP. Each Department witness who testified in this proceeding testified that no such political pressure was brought to bear upon them or even attempted. The competent, substantial and unrebutted evidence of record demonstrates clearly that no such pressure or influence occurred or was attempted. In the same vein, Suwannee has alleged that the Committee improperly considered, to Suwannee's prejudice and detriment, factors or information outside of the ITB and the bid documents. The only evidence of record of Committee members having considered information outside of the ITB or the bids was the testimony of several of the Committee members that they either were aware of or considered allegations of past difficulties with MPP, not Suwannee. For example, Mr. Smith testified that he was aware of one past problem with MPP, but none with Suwannee. In any event, he did not consider anything outside of the bid documents in his review. Ms. Vathauer said nothing relating to this issue. Dr. Rechtine testified that she was aware of, and had considered, past problems with MPP, that she had received favorable input as to Suwannee and, to the extent that this knowledge affected her evaluation, she agreed that it did so to the advantage of Suwannee (scored 20 under Criterion A, 20 under Criterion B), and to the disadvantage of MPP (scored 12 under Criterion A, 20 under Criterion B). Finally, even Ms. Patray testified that she had received some negative reports on MPP, whereas she mentioned no such information regarding Suwannee. In sum, there is no evidence of record to support Suwannee's allegations that the Committee members improperly considered, to Suwannee's prejudice and detriment, factors outside the bid documents. Any error which may have occurred in this regard was entirely harmless as to Suwannee, and if it had any effect at all, it worked to Suwannee's benefit. Results of the Bid Evaluation Process The result of the bid evaluation process was that MPP received 88 overall points under the formula set out in the ITB, Suwannee received 85.62, Quality Care received 73.05 and Upjohn received 58.87. MPP was also the low bidder on cost, i.e., Criterion C. The weight and preponderance of the competent, substantial evidence demonstrates that Contract No. R-2119 should have been awarded to MPP, as it was, and that there is an ample, rational, reasoned and logical basis in the record supporting the decision of the Department to award the contract to MPP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Corrections enter a Final Order awarding Contract No. R-2119 to Personnel Pool of North Central Florida, Inc., d/b/a Medical Personnel Pool. DONE and ENTERED this 4th day of December, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Office 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 4th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-4566BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Suwannee Valley Medical personnel Corporation 1 Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 (page 5). Proposed findings of fact 2-5, 7-12, 14-16, and 18 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6, 17, and 19 are unnecessary or irrelevant. Proposed finding of fact 13 is unsupported by the competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Corrections Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2 (3); 3 (19, 25); 4 (page 5); 6 (11); 7 (12); 8 (16); 9 (46); 14 (44); and 15 (45) Proposed findings of fact 1, 5, and 10-13 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Medical Personnel Pool Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 16-50 (1-35) and 53-63 (36- 46) Proposed findings of fact 12-15 are unnecessary or irrelevant. Proposed finding of fact 51 is included on page 5 of the Recommended Order. Proposed finding of fact 52 is subordinate to the facts actually found in this Recommended Older COPIES FURNISHED: John F. Gilroy Attorney at Law Haben & Culpepper 306 North Nonroe Street Tallahassee, Florida 32302 Drucilla E Bell Perri M. King Attorneys at Law Florida Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Thomas D. Watry Attorney at Law Parker, Hudson, Rainer & Dobbs 1200 Carnegie Building 133 Carnegie Way Atlanta, Georgia 30303 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue Whether the Palm Beach County School Board (hereinafter referred to as the "School Board") should sustain Petitioner's challenge to the preliminary determination made with respect to School Board Project No. 349661 to reject all bids submitted and to readvertise.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In March of 1993, the School Board issued an Advertisement for Bid (hereinafter referred to as the "Advertisement") through which it solicited the submission of bids on a construction project (School Board Project No. 349661, which is hereinafter referred to as the "Project") involving HVAC replacement, reroofing and other renovation work at Jupiter High School's Building No. 2. The School Board indicated in the Advertisement, among other things, that it "reserv[ed] the right to waive informalities in the Bids, or to reject all Bids." The Advertisement, along with the other bid documents issued in conjunction with the Advertisement, including, but not limited to, the Instructions to Bidders (hereinafter referred to as the "Instructions") and the Proposal Form, were compiled in a Project Manual that was made available for public inspection. Section 00100 of the Project Manual contained the Instructions, which provided, in pertinent part, as follows: Definitions Bidding Documents include the Advertisement for Bid, Notice to Prospective Bidders, Policies of the School Board, Instructions to Bidders, Contract, General Conditions, Supplementary General Conditions, Special Conditions, Bid Bond, Performance and Payment Bond, Proposal Form, and the proposed Contract Documents including all drawings, specifications and addenda issued prior to bid opening. Addenda are written or graphic instruments issued prior to the execution of the Contract which modify or interpret the Bidding Documents, including Drawings and Specifications, by additions, deletions, clarifications or corrections. Addenda will become part of the Contract Documents when the Construction Contract is executed. Bidding Procedures All Bids must be prepared using the forms contained in these specifications and submitted in accordance with the Instructions to Bidders. A Bid is invalid if it has not been deposited at the designated location prior to the time and date for receipt of Bids indicated in the Advertisement for Bid, or prior to any extension thereof issued to the Bidders. Unless otherwise provided in any supplement to these Instructions to Bidders, no Bidder shall modify, withdraw or cancel his Bid or any part thereof for sixty (60) days after the time designated for receipt of Bids in the "Advertisement for Bid." Preparation and Submission of Bid Proposal Form: Each Bidder shall use Proposal Form contained in these specifications, indicate his Bid prices thereon in proper spaces, for the entire work and for the alternates, if applicable. Any erasures or other corrections in the proposal must be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. Each proposal shall specify a price written in ink in both words and figures for each of the separate items, as called for, except when the Bid is called for on a lump sum basis. Lump sum Bids shall be shown in both words and figures; where there is a variation between the written amount and figures, the lower amount will be taken as the Bid price. Bid Modification: Bid Modification will be accepted from Bidders if addressed to the Owners, at the place where Bids are to be received, and if received prior to the opening of Bids. Modifications must be in writing and must be signed. . . . Modifications will be read by Owner or Architect prior to opening formal Bids. Withdrawal of Bids: Bids may be withdrawn on written request received from Bidders prior to the time fixed for opening. . . . Negligence on the part of the Bidder in preparing the Bid confers no right for withdrawal of the Bid after it has been opened. 4. Examination of Bidding Documents: 4.01 Each Bidder shall examine the Bidding Documents carefully and, not later than eight (8) days prior to the receipt of Bids, shall make written request to the Architect for interpretation or correction of any ambiguity, inconsistency or error therein which he may discover. Any interpretation or correction will be issued as an Addendum by the Architect. Only a written interpretation or correction by Addendum shall be binding. No Bidder shall rely upon any interpretation or correction given by any other method. . . . 6. Rejection of Bids 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is in any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to readvertise for other or further Bid Proposals. Award of Contract The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 101030-Alternates. Section 101030 of the Project Manual, which addressed the subject of "Alternates," provided, in pertinent part, as follows: 1.3 Related Work Described Elsewhere: Pertinent sections of these specifications describe materials and methods required under the various alternates. . . . The method for stating the proposed Contract Amount is described on the Proposal Form, Section 00310. Base Bid: A. Shall include all HVAC replacement, construction of the building roofing and all items shown on drawings and included in these specifications other than as specifically listed alternates. Alternate Number One: Provide an Architect/Owner on-site construction trailer of size and features stipulated below in lieu of such being provided by the Owner. Section 00310 of the Project Manual contained the Proposal Form that all bidders were required to use. It provided, in pertinent part, as follows: DATE SUBMITTED: TO: The School Board of Palm Beach County, Florida 3326 Forest Hill Boulevard West Palm Beach Florida 33406 PROPOSAL FOR: JUPITER HIGH SCHOOL BUILDING NO.2- HVAC REPLACEMENT/REFOOF/RENOVATIONS 500 NORTH MILITARY TRAIL JUPITER, FLORIDA 33458 PROJECT NO. 349661 Having become familiar with conditions at the Project Site and having carefully examined the Bidding Documents, including the Advertisement, Instructions to Bidders, and the Contract Documents, including but not limited to the General Conditions, Supplementary Conditions, Specifications, Details, Schedules, Addenda and Drawings, the Undersigned proposes to furnish all materials, labor equipment and anything else required for the entire Project in accordance with the Documents for the following sum: BASE BID: STATE PRICE IN WORDS AND FIGURES: ($ ) (PRICE IN WORDS) (FIGURES) ALL ALTERNATES MUST BE BID FOR BID TO BE RESPONSIVE. State price in words and figures. ADDITIVE ALTERNATE NO. 1: (Owner/Architect On-Site Construction Trailer) ($ ) (PRICE IN WORDS) (FIGURES) * * * If he is notified of the acceptance of this Bid within sixty (60) days of the time set for the opening of Bids, the Undersigned agrees to execute a Contract for the above Work within eight (8) Owner business days after notice that his Bid has been accepted for the above stated compensation minus or plus any accepted Alternates in the form of a contract presented by the Owner. . . . On March 30, 1993, the School Board issued Addendum No. 1, which added a fire protection system to the Project's scope of work and provided as follows: RE: Jupiter Community High School Building No. 2 HVAC Replacement, Reroof, Renovations The School Board of Palm Beach County, Florida School Project No. 349661 OEF Project No. 50-005625 P&L Project No. 92-061 To all bidders on the above project: Please note contents hereon and insert into the bidding documents that were issued to you on the above entitled project. The following supersede and supplant corresponding items in the specifications, drawings and details. It will be required that each Contractor- Builder/Developer, upon submitting his proposal for this project, indicate on the proposal form in the space provided that all addenda are included in his proposal. Failure to do so may cause rejection of a company's bid or proposal. The School Board of Palm Beach County, Peacock & Lewis Architects and Planners, Inc. and their consultants assume no liability or responsibility for the information on printed materials for this project that were not distributed from the office of Peacock & Lewis Architects and Planners, Inc. GENERAL: AD1-1: FIRE PROTECTION SYSTEM Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. Paragraph 1.2 A.6 of Section 15500, which was attached to Addendum No. 1, provided as follows: Contractor shall identify the cost associated with this scope of work on the proposal form as an itemized price which shall be included within the total bid price. Refer to proposal form. On April 5, 1993, the School Board issued Addendum No. 2, which revised the Proposal Form to reflect the additional pricing requirements imposed by Addendum No. 1. Addendum No. 2 added to the Proposal Form, immediately under the space provided for "Additive Alternative No. 1," the following: UNIT PRICE NO. 1: (Fire Protection System) Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. ($ ) (PRICE IN WORDS) (FIGURES) No other changes material to the instant case were made to the Proposal Form or to any of the other bid documents. It was the intention of those who were responsible for the preparation and issuance of Addenda Nos. 1 and 2 to require bidders to include the price of the fire protection system in their "Base Bid;" 1/ however, they failed to clearly and unambiguously express their intention in these addenda or any of the other bid documents. No other bid document aside from the revised Proposal Form made any reference to a "unit price." Unit prices are typically used in the construction industry to price work added to the initial scope of work, as was the fire protection system in the instant case. In interpreting the bid documents, Joseph Pirrotta, Petitioner's chief executive officer, relied upon his many years of experience in the construction industry. Based upon his reading of these documents, he reasonably believed that the "Unit Price No. 1 (Fire Protection System)" was a separate and distinct component of the "total bid price" and that, although it was to be included in the "bid" he submitted, it was not to be a part of the "Base Bid." While the bid documents were also susceptible to a contrary construction, Pirrotta's was the more reasonable of the two interpretations. Pirrotta completed the revised Proposal Form accordingly. Petitioner was one of three bidders to submit bids in response to the Advertisement. The other two bidders were Intervenor and Janus & Hill Corporation (hereinafter referred to as "Janus"). Petitioner quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,672,000.00; "Additive Alternate No.1"- $3,400.00; and "Unit Price No. 1"- $80,000.00. As noted above, Petitioner's "Base Bid" did not include the price of the fire protection system. Intervenor quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,947,000.00; "Additive Alternate No.1"- $6,000.00; and "Unit Price No. 1"- $36,484.00. Unlike Petitioner, Intervenor included in its "Base Bid" the price of the fire protection system; however, even if it had not done so, its "total bid price" would still have been substantially higher than Petitioner's. Janus quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,970,000.00; "Additive Alternate No.1"- $2,020.00; and "Unit Price No. 1"- $90,000.00. 2/ After bid opening, the School Board's contract administrator for the Project, Albert Paglia, correctly determined that Petitioner was the lowest responsive bidder. Thereafter, he telephoned Pirrotta to congratulate him on his company's successful bid. Before his telephone conversation with Pirrotta, Paglia assumed that Petitioner's "Base Bid" included the price of the fire protection system. He learned otherwise, however, after speaking with Pirrotta, who informed him that Petitioner's "total bid price," excluding "Additive Alternate No. 1," was its "Base Bid" of $1,672,000.00, plus the $80,000.00 for the fire protection system reflected as "Unit Price No. 1" on its completed revised Proposal Form. Paglia and others with whom he was working on the Project perceived this as a problem. They therefore brought the matter to the attention of Lawrence Zabik, the School Board's assistant superintendent for support services. Zabik's initial reaction was to award the contract for the Project, including the fire protection system, to Petitioner for $1,672,00.00, Petitioner's "Base Bid." Pirrotta was unwilling to undertake the Project for that amount. By letter to Zabik dated May 5, 1993, Intervenor gave notice to the School Board of its intent to protest any award made to Petitioner. The letter provided as follows: Based on our review of the Bid Documents submitted by J.D. Pirrotta on April 20, 1992, we are notifying you of our intent to protest the award of the above referenced project to any firm other than Milne & Nicholls, Inc. We will base our protest on the non- responsiveness of J.D. Pirrotta's bid. As you are aware, Mr. Pirrotta requested an additional $80,000 to compensate him for his misinterpretation of Unit Price #1 as an additive alternate. It is now apparent that his bid is incomplete and therefore non- responsive. Please advise us of the Owner's intention with regard to the Award on this project. Zabik referred the letter to the School Board's Office of the General Counsel. By letter dated May 13, 1993, authored by one of the School Board's attorneys, the School Board announced that it intended to reject all bids and readvertise, giving the following explanation: In the instant case, since the bid is susceptible to two interpretations, one of which would be that the Fire Protection System was included in the base bid, and the other that it was not leads to an unfair economic advantage by one bidder over others. The example would be that the low bidder in the instant case is permitted to add the Fire Protection System on as an alternate when it was not intended. Given the ambiguity, the bid should be rejected and the specifications rewritten and readvertised. [Citations omitted.] In the instant case, rejection of all bids is the only reasonable solution so that all parties are given a fair playing field. The School Board has not acted arbitrarily or capriciously in arriving at this decision to readvertise, given the parties place a different interpretation on the bid proposal form. The concerns expressed in the letter that Pirrotta obtained an "unfair economic advantage" over the other bidders as a result of the "ambiguity" in the bid documents are unwarranted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner, as the lowest and best responsive bidder, the contract for School Board Project No. 349661 for $1,752,000.00, plus the price for "Additive Alternate No. 1" should the School Board choose to include this alternate within the Project's scope of work. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of July, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1993.
The Issue The issue for consideration in this matter is whether Respondent's intended award of a lease for office space to Intervenor, Anthony Abraham Enterprise, is arbitrary and capricious and whether the proposal of the Petitioner, Adlee Developers, the current lessor, is responsive.
Findings Of Fact The parties agreed that on April 7, 1991, the Department issued an Invitation to Bid entitled, "Invitation To Bid For Existing Facilities State Of Florida Lease Number 590:2286, Dade County" This procurement was for the provision of 30,086 net rentable square feet to be used for office space in Dade County. A 3% variance was permitted. The facility was to house the District's Aging and Adult Services office which has been a tenant in Petitioner's building for several years and remained there during the pendancy of this protest process. According to the published advertisement, a pre-proposal conference was to be held on April 22, 1991, with all bids due by the bid opening to be held at 10:00 AM on May 30, 1991. The pre-bid conference was conducted by Philip A. Davis, then the District's facilities service manager and included not only a written agenda but also a review of the evaluation process by which each responsive bid would be examined. Petitioner asserts that the potential bidders were told, at that conference, that annual rental increases for the ten year lease period could not exceed five per cent (5%) and claims that Abraham's bid exceeded those guidelines. Thorough examination of the documentary evidence presented and the transcript of the proceedings, including a search for the reference thereto in Petitioner's counsel's Proposed Findings of Fact, fails to reveal any support for that assertion as to an increase limitation. The ITB for this procurement, in the section related to the evaluation of bids, indicated that pursuant to the provisions of Sections 5-3 and 5-11 of HRSM 70-1, dealing with the procurement of leased space, the responsive bids would be reviewed by an evaluation committee which would visit each proposed facility and apply the evaluation criteria to it in order to determine the lowest and best bidder. The evaluation criteria award factors listed in the ITB defined a successful bid as that one determined to be the lowest and best. That listing of evaluation criteria outlined among its categories associated fiscal costs, location, and facility. As to the first, the committee was to look at rental rates for both the basic term of the lease and the optional renewal period. The rates were to be evaluated using present value methodology applying the present value discount rate of 8.08% and rates proposed were to be within projected budgeting restraints of the Department. The total weight for the rental rate category was to be no more than 40 points with 35 points being the maximum for the basic term and 5 points for the option. Evaluation of the location was to be based on the effect of environmental factors including the physical characteristics of the building and the area surrounding it on the efficient and economical conduct of the operations planned therefor. This included the proximity of the facility to a preferred area such as a co-location, a courthouse, or main traffic areas. This item carried a maximum weight of 10 points. Also included in location were the frequency and availability of public transportation, (5 points); the proximity of the facility to the clients to be served, (5 points); the aesthetics of not only the building but the surrounding neighborhood, (10 points); and security issues, (10 points). The third major factor for evaluation was the facility itself and here the committee was to examine the susceptibility of the offered space to efficient layout and good utilization, (15 points), and the susceptibility of the building, parking area and property as a whole to possible future expansion, (5 points). In that regard, the Bid Submittal Form attached to the ITB called for the successful bidder whose property did not have appropriate zoning at the time of award to promptly seek zoning appropriate to the use classification of the property so that it might be used for the purposes contemplated by the department within 30 days. In the event that could not be done, the award could be rescinded by the department without liability. The committee could award up to 100 points. The basic philosophy of this procurement was found in paragraph 1 of the Bid Award section of the ITB which provided: The department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interest of the department and the state. After the bid opening, three of the four bids received, excluding Petitioner's which was initially determined to be non-responsive, were evaluated by the Department's bid evaluation committee according to the above point system which allowed no discretion or deviation from the formula in comparing rental rates between bidders. Once Petitioner's bid was thereafter determined to be responsive, it, too was evaluated by the committee. At this second evaluation session, relating to Adlee's bid only, the committee scored the bid and added its scores to the original score sheets upon which the other three bidders' scores had been placed. Abraham had the lowest rental rates for the basic term of the lease and received the maximum award of 35 points for that category while Adlee received points. Abraham received an additional 2.29 points for the optional period rates while Adlee got 0. In the other categories, "location" and "facility", which comprised 60% of the points, Adlee's facility was routinely rated superior to Abraham's except for the area related to susceptibility for future expansion in which Abraham was rated higher by a small amount. Overall, however, Adlee was awarded 620.41 points and Abraham 571.03 points and as a result, Adlee was rated by the committee to be the lowest and best bidder. RCL, another bidder, was rated second, with Abraham third and DCIC fourth. Thereafter, the committee chairman, Mr. VanWerne, forwarded the new (and complete) evaluation results to the District Administrator on June 14, 1991 by an addendum dated June 27, 1991 which recommended award of the bid to Petitioner, Adlee Developers. No award was made at the time. Several factors not pertinent to the issues here caused that delay. Among the major of these was pending legislation which would have transferred the operation needing this space to another agency. This transfer was never consummated, however. On or before March 20, 1992, the new District Administrator, Mr. Towey, who had been appointed to his office in December, 1991, and who was made aware that this procurement had not been finalized, requested all available material on it so that he could study it and make his decision based on his own review of the submission. As a part of his determination process, he visited and inspected both the Adlee and the Abraham sites. One of the factors he considered was what appeared to be the significant monetary discrepancy between the two pertinent bids. Initial calculations indicated that Abraham's bid was approximately $835,000.00 lower than Adlee's over the ten year basic term of the lease. This amount was subsequently determined to be somewhat lower but the discrepancy is still significant. Nonetheless, because of that difference, Mr. Towey called a meeting with the members of the evaluation committee which had evaluated the bidders and had recommended Adlee. His stated reason for calling that meeting was to allow him to hear their reasons for rating the submissions as they had done and to take that information into consideration when he made his final decision. None of the committee members who testified at the hearing at Petitioner's behest indicated any feelings of pressure or intimidation by Mr. Towey. During his meeting with the committee members, Mr. Towey went over several of the evaluation criteria award factors to determine the committee's rationale. Of major importance was the issue of cost, of the availability of the facility to transportation to and from the building, employee security and the ability to control access to the facility, and the availability of on-site parking without cost to both employees and clients. It appears the Adlee facility is a multistory building with some parking available on site and would be easier to control. In addition, it is closer to public transportation access points. There is, however, some indication that on-site parking for clients would not be free and the closest free parking is some distance away. According to Adlee's representative, this matter would not be a problem, however, as adequate, free on site parking, which apparently was not initially identified as a problem, could be provided in any new lease. The Abraham facility is a one story building surrounded by on-site parking. In that regard, however, at hearing, Petitioner raised the claim that the Abraham site did not, in actuality, provide adequate parking because the zoning requirements of the City of South Miami, the municipality in which the facility is located, did not permit the required number of parking spaces to accommodate the prospective need. Petitioner sought and received permission to depose the Building and Zoning Director for the city, Sonia Lama, who ultimately indicated that the Abraham site was grandfathered in under the old zoning rule and, thereby, had adequate parking available. In any case, had this not been true, under the terms of the ITB, any zoning deficiencies could have been corrected after award, or the award rescinded without penalty to the Department. After the meeting with the committee, Mr. Towey indicated he would probably go against the committee's recommendation. One of his reasons for doing so, as he indicated to them, was the appearance certain amenities in the facility would give. In the period between the time the committee met and Mr. Towey was ready to decide, there were several newspaper articles published in the Miami area which were negative in their approach to Department leasing policies and this publicity had an effect on him. In his response to a reporter's question, in fact, Mr. Towey indicated he would not permit the lease of any property which contained such amenities while he was District Director. There is some evidence that the wet bar referred to here was a sink and counter used by agency employees to make coffee. However, before making his decision, Mr. Towey also met with Herbert Adler of Adlee. Mr. Towey advised him he was concerned about the fact that the Adlee property provided a wet bar, a private bathroom and some other amenities in that suite of offices occupied by the Department. Mr. Towey was adamant in his public and private pronouncements on the subject that there would be no such amenities in HRS offices in his District while he was in charge. At the meeting in issue, Mr. Adler made it very clear he was willing to remove all the offending amenities to bring the space into conformity with Mr. Towey's standards. Mr. Towey obviously took Adler at his word as he did not consider this matter to be an issue when he evaluated the bids. Based on his independent evaluation of the proposals, and considering all the pertinent factors, Mr. Towey decided not to concur with the committee's recommendation and instead recommended to the Department's Office of General Services that the bid be awarded to Abraham. Because his recommendation differed from that of the evaluation committee, under the provisions of Section 5-13, HRS Manual 70-1, he was required to forward additional justification for his position. In his forwarding memorandum dated March 20, 1992 to Mr. King Davis of the Department's Office of General Services, Mr. Towey listed as his reasons for disagreement with the committee's recommendation, (1) the lower term cost of Abraham's bid, (2) his opinion that the one story floor plan of Abraham was more convenient and accessible to clients, and (3) the provision for ample free parking at the Abraham site as opposed to the limited parking at the Adlee building. Petitioner claims that Mr. Towey's justification for disagreement was improper because, (a) the rental difference he cited was not based on the ITB formula and did not consider the difference in square footage offered; (b) the rental rate comparison compared a proposed lease with an existing lease, not with a proposal; and (c) the reference to on-site parking referred to the situation under the existing lease with Adlee and not to what could occur under a new lease. The major factor in Mr. Towey's decision was the price differential between the two offerings. While the difference may not have been as great as presented initially by the department staff, even taken in its most conservative light of about half that amount, and considering the appropriate figures, the difference was still considerable and significant. In the continuing period of budgetary austerity under which state operations have been and must continue to be conducted, the financial consideration loomed large in his thinking. As for the parking situation, no change for the better was provided for in Adlee's proposal and even if it were, it was but one of several factors. When Mr. Towey's March 20, 1992 memorandum in justification of his disagreement was evaluated at the Office of General services, it was determined that his decision was rational and objectively justified. Thereafter, by letter dated April 2, 1992, the Office of General Services authorized District 11 to award the lease to Abraham and this decision was transmitted to all responsive bidders by letter dated April 7, 1992. It was this action which prompted Petitioner's protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered dismissing the protest by Adlee Developers, Inc., of the award of procurement No. 590:2286 to Anthony Abraham Enterprises. RECOMMENDED this 10th day of July, 1992, 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 10th day of July, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2798 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted. Accepted that the pre-bid conference was held but reject the finding that a 5% limit was mentioned. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 11. Accepted and incorporated herein. 12. - 14. Accepted and incorporated herein. 15. - 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted except for the next to last sentence which is rejected. Accepted. Accepted and incorporated herein. Accepted but not probative of any material issue. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 30. Rejected. - 33. Accepted and incorporated herein. FOR THE RESPONDENT AND INTERVENOR: & 2. Accepted and incorporated herein. 3. - 5. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 16. Accepted and incorporated herein. 17. - 19. Accepted and incorporated herein. 20. & 21. Accepted and incorporated herein. Accepted and incorporated herein. - 25. Accepted. COPIES FURNISHED: Melinda S. Gentile, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell 200 East Broward Blvd. P.O. Box 1900 Fort Lauderdale, Florida 33302 Paul J. Martin, Esquire Department of Legal Affairs The Capitol - Suite 1501 Tallahassee, Florida 32399-1050 Peter W. Homer, Esquire Greer, Homer & Bonner, P.A. 3400 International Place 100 S.E. 2nd Street Miami, Florida 33131 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
