The Issue Whether the Department of Health and Services acted fraudulently, arbitrarily, capriciously, illegally or dishonestly in issuing an award of bid or HRS Lease No. 590:2069 to Harpaul S. Ohri.
Findings Of Fact Sometime before March, 1989, the Department of Health and Rehabilitative Services (HRS) requested and received approval from the Department of General Services (DGS) for additional office space to provide social services in the western portion of Orlando, Orange County, Florida, including a food stamp distribution office. HRS was authorized to procure, through competitive bidding, a lease for 17,250 net rentable square feet of existing office space, plus or minus 3 percent. The said lease was to provide for a full service period of seven years and two options to renew for three years each at specified rates, with occupancy no later than December 1, 1989 or 175 days after the bid award is finalized. The geographic area designated in the bid package for the office space was limited to the following area of Orange County, Florida: Beginning at the intersection of Colonial Drive and Kirkman Road to the intersection of L.B. McLeod Road, then east on L.B. McLeod Road to the, intersection of Rio Grande Avenue then north on Rio Grande Avenue to the, intersection of Colombia Street,, then east on Colombia Street to Interstate 4, then north on Interstate 4 to the intersection of Colonial Drive, then west on Colonial Drive to the point of Beginning. Public notice that HRS was seeking competitive bids was given and HRS prepared a document entitled Invitation to Bid for Existing Office Space (ITB), which set forth in detail all of HRS requirements. The purpose of the ITB was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. Specific areas of importance to Respondent as reflected in the ITB and addressed by the evidence herein were as follows: 17,250 net rentable square feet (plus or minus 3 percent) of existing office space. General office use for use, as a client service center. Seven year term with two options to renew of three years each. 120 off-street, on-site, full size parking spots designated exclusively for use of Department employees and clients, suitably paved and lined, with a minimum of two for the handicapped. Availability of public transportation within reasonable proximity. Availability to adequate dining facilities within two miles. Photographs of the exterior front of the facility, along with documentation of present facility configuration and parking areas including access and egress to public roadways. Availability of elevator for multi-story use. i). Space requirement criteria: Minimum telephone requirements. Back-up interior emergency lighting. Three separate sets of rest rooms, male and female, one meeting the needs of the handicapped General security requirements. Specific security requirements for food stamp distribution center. Window covering over exterior widows to allow both sunlight and energy control; if bidded space without existing windows, then all rooms comprising the exterior of the building would require windows measuring approximately 24 x 36, all secured and inoperable. Full Service including all utilities and janitorial. The evaluation factors and their relative weights were stated in the ITB as follows: Evaluation Criteria The successful bid will be that one determined to be the lowest and best. All bids will be evaluated on the award factors enumerated below: Associated Fiscal Costs Rental rates for basic term of lease Evaluated using present value methodology by application of the present value discount rate of 8.69 percent. (Weighting: 25) Rental rates for optional renewal of terms of lease. Rates proposed are within projected budgeting restraints of the department. (Weighting: 10) Associated moving costs, i.e., furniture, equipment, telephone systems, etc,. (Weighting: 5) Location Proximity of offered space in central or preferred area of map boundaries. (Weighting: 10) Frequency and availability of satisfactory public transportation within proximity of the offered space. (Weighting: 10) 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 departmental operations planned for the requested space. (Weighting: 10) Facility Susceptibility of design of the space offered to efficient layout and good utilization. (Weighting 15) Provision of the aggregate square footage in a single building. Proposals will be con- sidered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. (Weighting: 10) TOTAL POSSIBLE 100 percent The bid package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Sealed bids were submitted by three bidders, Petitioner, Harpaul S. Ohri and Kensington Gardens Builders Corp. The bids were opened on April 25, 1989, and Ernie Wilson, HRS District 7 Facilities Services Manager, determined that all three bids were responsive, and within the mandatory geographical area designated in the bid package. The District Administrator appointed a bid evaluation committee to review and grade, the responsive bids under the criteria established in the bid package, and to recommend to him the committees choice of the lowest and best bid. Four individuals who were familiar with the type of work to be done in the proposed space and familiar with the bid process were appointed to the Committee. On or about May 1, 1990 the bid evaluation committee determined that the bid of Harpaul S. Ohri was the "lowest and best bid" and submitted its determination, in writing, to the District Administrator who, subsequently approved the selection. On or about June 26, 1989, on behalf of the Department, Ernie Wilson, Facilities Services Manager, notified the bidders of the Departments intent to award the bid to Harpaul S. Ohri, as being in the best interest of the Department. The bid evaluation committee consisted of four representatives of the Department who visited two of the three bidders sites and questioned the bidders representatives. The members of the committee were familiar with the Petitioners site from previous experience. They choose not to make an on-site visit prior to completing the bid evaluation sheet, although instructed to do so on the Evaluation Committee Duties and Responsibilities/Real Property, Leasing instruction sheet. Each committee member completed an evaluation sheet and gave a higher total score to Mr. Ohri. The three major bid evaluation criteria were Fiscal Cost, Location and Facility. Under the Fiscal Cost criterion were three sub-categories: Rental Rates, Renewal Rates, and Moving Costs. For Rental Rates, Petitioner received an average of 22.7 points out of 30 possible,, while Ohri received 21.7, and Kensington Gardens received 23.7 points. The points were individually assessed by the evaluation committee, after the rental rates were compared by Ernie Wilson based on the present value analysis of bidders proposed rates. For Renewal Rates, each of the bidders, including Petitioner, received 5 points out of 10 possible. The present value analysis was not applied, as was noted in the ITB. However, even a cursory examination of the renewal rates submitted by the bidders shows that there is a 15 percent to 33 percent yearly differential in the rates, with the Petitioners rates as the lowest and Kensington Gardens as the highest. Although the committee assigned all three bidders an equal rating, the renewal rates submitted by the bidders were not equal should the Department wish to exercise its options, the rates submitted by Petitioner were substantially lower than the other two bidders and would result in a cost savings to the Department of several hundred thousand of dollars. The award factor points should not have been awarded equally. For Moving Costs, Petitioner received 5 points on each of the committee members sheets, while Ohri received 4 points and Kensington Gardens received, an average of 3.7 points. The maximum points possible was 5 points. Petitioner was awarded the maximum points because HRS is presently in the same building and no moving costs would be experienced. The other two bidders were awarded 4 points each by committee members. That determination was based on each members personal experiences. No cost or time lost data was provided or requested. The LOCATION criterion also had three sub-categories: Proximity to other governmental agencies - 10 points - with all three bidders receiving the same rating; Public Transportation -10 points - with all three ,bidders, receiving the same rating; and Environmental Factors - 10 points - out of which Petitioner received an average of 5.7 points; Ohri - 9.7 points and Kensington Gardens - 6.5 points. In considering the proximity to other governmental agencies of each of the facilities being considered, the committee relied on their own knowledge of the area. They determined that since each was within the geographical area designated in the ITB, each was equally distant from the most frequently visited government agencies in the vicinity. However, Petitioners facility is the most centrally located of the three facilities offered, while the two other facilities were considerably distant from other government agencies. The award factor points should not have been awarded equally. For Public Transportation, the committee determined that local bus service went near each of the three facilities. They were neither provided, nor did they request, route maps, schedules or passenger capacity for buses servicing each facility. Petitioners facility is centralized in the area served within the bid district, and serviced by, numerous bus lines which pass near the facility ten times per hour. The bus service to the other two facilities are limited to four buses per hour, with buses having a smaller capacity. In addition, most clients would be required to travel to the central bus terminal and transfer to a different route in order, to reach the Ohri or Kensington Gardens facilities, making bus transportation a very time-consuming process. No other form of transportation is available, except for taxi service. In addition, in order for a client to walk from the nearest bus stop to the Ohri facility, a person would cross two heavily traveled six lane streets and then walk across an open shopping center parking lot. This would require approximately a fifteen minute walk. In order to reach Petitioners facility, a client would require approximately a five minute walk utilizing public sidewalks. The committee did not consider these facts in its evaluation. The award factor points should not have been awarded equally. (c)(1). For Environmental Factors, the committee considered each buildings physical characteristics and the surrounding area. The committee, in their letter to the District Administrator, dated May 1, 1989, identified this category as "a very critical area for the new lease." The letter also stated: "The committee took the following into account when evaluating this section: Cleanliness of the building aid surrounding areas. Lack of traffic congestion by motorized vehicles close to the facility. Easiness of getting to and from the facility by vehicle. Safety for clients and staff walking to and from the facility. Upkeep of the surrounding buildings or other sections of the bidders building." The following was also taken into account when evaluating this section, but was not so stated in the letter. At least one committee member believed the lack of window space in Petitioners facility was disabling to his bid, and that the willingness of the Ohri representative to install windows on exterior walls was a significant factor in her determination of award. At least one committee member indicated that future expansion was a substantial factor in her favoring the Ohri bid, and that there was janitorial and security problems at Petitioners facility. The committee received no other information other than the committee members opinion regarding the same. The committee as a whole erroneously believed that the extra square footage visible at the Ohri facility at the time of their inspection would necessarily be available to HRS if and when it might expand its offices. Future expansion was specifically removed from the ITB at the pre-bid conference and it was clearly erroneous for them to have included this factor in their bid evaluation. The ITB specifically calls for the installation of exterior windows by the winning bid prior to occupancy. However, none of the committee members reviewed the ITB or the actual bids submitted. They relied primarily on the synopsis of the bids prepared by Ernie Wilson. The ITB states substantial general and specific security requirements in detail; however, the evaluation criteria forms do not provide a category for evaluating security other than generally under the sub-category of environmental factors. The ITB, under General Specifications and Requirements, called for the availability of adequate dining facilities within two miles of the proposed facility. The evaluation criteria did not provide a category for the committee to rate dining facility availability. In consideration of the environmental factors, the committee overlooked or failed to consider a hazardous unfenced high voltage transmission station adjacent to the Ohri facility. In addition, the photographs submitted by Ohri as the front of the building (as required by the ITB) are in fact the rear of the building which was not offered as part of the proposed leased facility. Of the three sub-categories under FACILITY, out of 15 possible points, Petitioner received an average rating of 9.5, Ohri received an average of 13.7 and Kensington Gardens received 11.2 for Layout/Utilization. Ohri received the most points because his building configuration was a, shell and was more flexible and could be reconfigured for more efficient layout to suit the Departments needs. All three bidders submitted proposals wherein the total square footage of rentable space was to be contained in a Single Building. Therefore, all three bidders received the maximum 10 points. A maximum 5 points was provided for facilities with Street-level space. All three bidders were awarded the maximum 5 points. However, a portion of Petitioners space was offered on the second floor, a fact which the committee overlooked. The Petitioner should not have received the full 5 points for having street-level space. The unanimous recommendation of the evaluation was to award the lease to Ohri. In reaching that conclusion, the committee did not properly utilize the weighted bid criteria and, in addition, included improper bid considerations in their evaluation of the three facilities. Some of the reasons given by the committee for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. However, others were erroneous and improper.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for lease number 590:2069 and issue a new invitation to bid. DONE AND ENTERED this 12th day of February, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by the Petitioner: Accepted: paragraphs 1, 2, 3, 5, 6, 7, 9 (in substance, except for subparagraphs f, g, j and k which are not relevant), 10 (in substance), 12(a), (b), (f-in substance), (g-in substance), (h-in substance), (j), (k-in substance), (l-in substance), (p-in substance). Rejected: Not relevant: paragraphs 4, 12(c), (d), (e), (m), (n), (o), (p- the proposed future location of the Greyhound Station; insure wooded area nearby), (q), (r). Argument: paragraphs 11 and 13. Procedural matters, covered in the preliminary statement: paragraphs 8 and 14. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Terrence W. Ackert, Esquire 201 East Pine Street Suite 1402 Orlando, Florida James Sawyer, Jr., Esquire District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-206, relating to the removal and replacement of the public address system at Pinellas Park High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, ITB was issued by Respondent for work related to the removal and replacement of the public address system at Pinellas Park High School in Largo, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-206 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $130,756.66. Petitioner submitted a bid in the amount of $116,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-206 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 October, 2013.
The Issue The issue for determination in this proceeding is whether a contract for a perimeter security system at Calhoun Correctional Institution and Holmes Correctional Institution should be awarded to Intervenor.
Findings Of Fact On January 19, 1994, Respondent issued an Invitation To Bid, Bid No. 94-INST-6197, the ("ITB"). The ITB requested bidders to submit bids to supply materials for perimeter security systems and to provide training for the installation and maintenance of the systems at Calhoun Correctional Institution and Holmes Correctional Institution. Responsive bids had to include materials and training necessary for Respondent to install and maintain the security systems. Bids had to be filed no later than February 10, 1994. Petitioner and Intervenor submitted bids along with three other bidders in a timely manner. The ITB required bidders to hold a Florida alarm contractor's license. Intervenor does not hold such a license. However, the ITB defines the term "bidder" to include an individual, firm, partner, or corporation. Intervenor's bid contemplated that it will supply the materials required in the ITB. Another company that holds a Florida alarm contractor's license will provide the training required for Respondent to install and maintain the security systems. Intervenor and the other company responded to the ITB as partners in a single bid that provides a single price for all materials and training required by the ITB. Intervenor's bid complies with the terms of the ITB and is responsive. Respondent notified Intervenor of its intent to award the contract to Intervenor as the lowest responsive bidder. Intervenor's bid is approximately $14,000 less than Petitioner's bid. Petitioner is the second lowest bidder. Respondent's interpretation that the ITB allows materials and training to be supplied separately by Intervenor and its partner is a reasonable interpretation that is neither arbitrary nor capricious. The intent and purpose of such an interpretation is to encourage flexibility that may result in savings to the state. The provision of materials and services by separate companies in Intervenor's bid will, in fact, result in substantial savings to the state. The terms of the bid does not create an unfair advantage for Intervenor. The term bidder is defined in the bid documents to include a partner and a corporation. Florida law expressly exempts Intervenor from the requirement for an alarm contractor's license if Intervenor merely supplies materials and does not fabricate or consume the materials in performing the work of a contractor. Section 489.503(10), Florida Statutes. Therefore, only Intervenor's partner is required to hold an alarm contractor's license, and, in fact, Intervenor's partner holds the requisite license. Respondent's interpretation of the ITB is consistent with applicable law. Any other interpretation of the ITB by Respondent would have purported to impose a stricter licensing requirement than that imposed by the legislature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of April, 1994. DANIEL MANRY 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 26th day of April, 1994. APPENDIX Petitioner's Proposed Findings of Fact 1.-5., 7-8. Accepted in substance 6. Irrelevant and immaterial Rejected as recited testimony Accepted in substance 11.-13. Rejected for the factual and legal reasons stated in the Recommended Order Respondent's Proposed Findings of Fact All of Respondent's proposed findings of fact are accepted in substance. COPIES FURNISHED: Beth Atchison, Esquire Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Teresa Hurtado Schaefer, CEO FSM, Inc. 3559 S. W. 69th Way Miramar, FL 33023 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Michael G. Kanche, Jr. Southwest Microwave 2922 South Rosevelt Street Tempe, Arizona 85282-2042
Findings Of Fact Findings stipulated to by the parties On March 27, 1990, the school district issued an Invitation For Bids, Bid NO. 91-037V for Security Guard Services - Term Contract. Special Condition 5 of the bid specifications states as follows: Bidders shall submit evidence with this bid of the following: The bidder is presently engaged in security services; and The bidder has an established record of satisfactory performance over the past three (3) years and shall furnish names of five (5) organizations for whom the bidder has provided security services during this period. Failure to provide this information with the bid shall result in disqualification of bid submitted. (emphasis furnished) The school district received timely bids upon Bid NO. 91-037V from eight bidders, including the Petitioner, Security Services, Inc. Bids were open on April 19, 1990, at 2:00 p.m. Six of the eight bidders upon Bid NO. 91-037V submitted with their bids the five (5) references required by Special Condition 5 of the Invitation To Bid. The Petitioner, Security Services, Inc., failed to submit the required five (5) references along with its bid. Security Services, Inc.'s, bid of $6.25 per hour constituted the lowest hourly rate contained in any of the bid submittals. Universal Security Consultants' bid submittal contained a proposal to render guard services at the rate of $6.88 per hour and constituted the second lowest hourly rate contained in any of the bid submittals. In addition, Universal's bid submittal met all other requirements of the bid specifications and included the five (5) references required by Special Condition 5. Prior to issuing a recommendation upon the bid item, the staff of the school district contacted the five references submitted by Universal Security Consultants with its bid, and each reference indicated that Universal had satisfactorily provided security guard services. After reviewing and evaluating the bid submittals, the staff of the School Board recommended the rejection of Security Services, Inc.'s bid for its failure to meet the requirements of Special Condition 5 of the Invitation To Bid. It was further recommended that a contract be awarded to Universal Security Consultants under Bid NO. 91-037V. The recommendations and bid tabulations were posted on April 26, 1990, at 3:00 p.m. On April 27, 1990, the Petitioner, Security Services, Inc., submitted a document entitled "Letter Of Protest -- Bid NO. 91-037V" to the school district. Within the document, Security Services, Inc., notified the school district of its protest of recommendations that were posted on April 26, 1990. The document states that "[w]hile preparing this year's bid package, I [the owner of Petitioner] overlooked the section pertaining to requirement of having to list references." The document requests the school district to reconsider the bid of Security Services, Inc., and lists the following organizations as references: The School Board of Broward County, Florida; WSCV - Ch. 51; The Lauderhill Mall; Telemundo Productions, Inc.; and Midway Club Apartments. The Petitioner, Security Services, Inc., had previously been awarded contracts by the school district to provide security guard services. The first contract was dated February 4, 1988. A second contract was awarded to Petitioner on March 1, 1989, and the Petitioner was providing security guard services to the school district under the second contract at the time of the bid proceedings pertaining to Bid NO. 91-037V. The first contract awarded to the Petitioner by the school district arose from Security Services, Inc.'s, bid submission to a certain bid numbered 88-518D. The bid specifications for Bid NO. 88-518B did not require bidders to submit references, and none were provided at that time by Security Services, Inc. The second contract awarded to the Petitioner by the school district arose from Security Services, Inc.'s, bid submission to a certain bid numbered 89-368V. The bid specifications for Bid NO. 89-368V contained a requirement to submit references identical to the requirement contained in the bid specifications for Bid NO. 91-037V. Security Services, Inc., did submit five references along with its bid proposal to Bid NO. 89-368V. The five references listed in the Petitioner's bid submittal to Bid NO. 89-368V were as follows: Broward County School Board; WSCV-Ch. 51; Lauderhill Mall; Lauderdale Yacht Basin; and Woodhue Condominium Association. On May 1, 1990, the school district received a formal written Notice Of Protest [dated April 30, 1990] from Security Services, Inc. Within the formal written protest, the Petitioner requested that it be awarded the contract for security guard services on the basis of the Petitioner's work being satisfactory and the lowest bid. The protest asserted that Security Services, Inc., had de facto complied with the requirements of Special Condition 5 as Petitioner had provided this information to the school district in previous years and that such information was on file at the school board. The Petitioner further asserted that the failure to submit the five (5) references was an irregularity that could be waived by the school district or that was correctable after opening of the bids. The formal written notice of protest filed by Security Services, Inc., states as follows: There was an unintended omission from the Security Services, Inc., Invitation to Bid in that through inadvertence, Security Services, Inc., failed to provide a list of five (5) organizations for whom the bidder has provided security services as required by Paragraph 5B of the Special Conditions. On May 15, 1990, the School Board considered the protest filed by Security Services, Inc., and rejected the same. The Petitioner subsequently requested further proceedings in accordance with Chapter 120, Florida Statutes, and these proceedings commenced. b. Additional facts established at hearing: The School Board requires the inclusion within its bids of the names of five (5) organizations for whom the bidder has provided security services over the past three (3) years in order to be able to evaluate the present ability of the bidder to perform under a contract awarded under the bid item. The information as to references is evaluated and investigated by the school district as to the apparent low bidder prior to the posting of recommendations for the award of the bid item. Security Services, Inc., has satisfactorily performed the two security guard contracts it has previously been awarded by the School Board, and there have been no complaints about the performance of Security Services, Inc., under those two contracts. At the time the bids in this case were opened, the School Board already knew that Security Services, Inc., could perform satisfactorily because it had been doing so for the School Board for two years. Over the term of the contract, the difference in cost between the low bid submitted by Security Services, Inc., and the second low bid submitted by Universal Security Consultants, will amount to approximately $50,000.00.
Recommendation For the foregoing reasons, it is RECOMMENDED that the School Board of Broward County enter a Final Order in this case concluding that the irregularities in the bid submitted by Security Services, Inc., are minor irregularities, that those irregularities are waived, and that Bid NO. 91-037V should be awarded to Security Services, Inc. DONE and ENTERED this 24th of July, 1990, in Tallahassee, Florida. MICHAEL M. PARRISH 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 day 24th day of July, 1990.
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 At issue in this proceeding is whether the decision of respondent, Department of Transportation (Department), to award the subject bid to intervenor, The Walsh Group, Ltd., Inc. and Subsidiaries d/b/a Archer-Western Contractors, Ltd. (Archer-Western), comported with the essential requirements of law.
Findings Of Fact The bid process In June 1995, the Department of Transportation (Department) issued an invitation to bid (ITB), State Project Number 93280-3504, Contract Number E- 4866, for the repair and rehabilitation of the Royal Park Bridge, a two span, four leaf bascule bridge, which spans the Intercoastal Waterway and connects the town of Palm Beach to West Palm Beach, Palm Beach County, Florida. Prospective bidders were contacted through a bid solicitation notice, which was sent to prequalified contractors, and interested firms ordered bid packages, which included plans and specifications. The subject project was experimental, and was an effort to identify the most cost-effective means of repainting bridges that contained, inter alia, lead-based paint, a hazardous material, while minimizing exposure of workers and the public as well as the environment (the Intercoastal Waterway), to the hazardous materials. The technical specifications or capabilities of the equipment to be used to abrade and prepare the bridge surfaces for repainting, keeping in mind the objective of the project, were developed by the Department's consultant, Kenneth C. Clear, and are noted in section 560, subsection 1.01.1, of the specifications, discussed infra. At the time, Mr. Clear was aware of one system, the "Cavi-Tech" or "Cavi-Blast" method, a proprietary system devised by Cavi-Tech, Inc., that could comply with the technical specifications, but did not know of any other company that had a similar process. Consequently, in drafting the technical requirements at issue in this bid challenge, discussed more fully infra, he identified the "Cavi-Blast" system of Cavi-Tech, Inc., as capable of satisfying the technical requirements, and further provided, at the bidder's election, for the use of alternative equipment if it could be shown to meet the surface preparations standards described in the ITB. Pertinent to this case, Section 560 of the specifications, entitled Repainting Exposed Steel, at page 560-1 of the ITB, specified the following technical requirements for surface preparation equipment: Surface Preparation Equipment Surfaces shall be abraded and prepared for recoating using an energy enhanced water jet generated by equipment capable of sustained operation at pressures in excess of 17,000 psi. Nozzles shall operate using resonation and cavitation technology. Production rates shall be at least 600 square feet per machine and production shift in the case of full coating removal (CB-4 per section 1.2), and 1,500 square feet per machine and production shift for sweep- off blasts which remove all oil, grease, dirt, loose paint, loose rust, rust scale and loose mill scale, and profile the remaining paint (CB-1 per section 1.2). The equipment shall include closed-loop water handling and filtration systems capable of repeated reuse of blast water and on-site treatment of the water upon completion such that it is rendered non-hazardous. Abrasives, steel shot and/or chemical strippers shall NOT be used. The surface preparation equipment shall be capable of achieving the surface preparation standards described in section 1.2, and document ation of its successful use on at lest 10 similar bridge or industrial structures totaling at least 250,000 square feet shall be submitted with the bid. Additionally, detailed project documentation and air monitoring historical data from at least 5 projects in which paint containing a lead primer was completely removed without the use of negative pressure enclosures, shall be submitted with the bid. These data shall show conclusively that, on each of the projects, the lead exposure to individuals WITHOUT breathing apparatus located 5-feet and further from the water jet nozzle was less than the OSHA action level (i.e. the air qualified as non-hazardous, breathable air in accordance with Code of Federal Regulations 29 CFR 1926.62 "Lead") when the equipment was operated at full capacity for at least 8-hours. The Cavi-Tech, Inc., Inc. (2108 Moon Station Drive, Kennesaw, Georgia 30144; phone Number 404-424-4015; fax Number : 404-424-4009) "Cavi-Blast" system meets the above requirements. The ITB package did not require, apart from any implications that may be drawn from the foregoing provisions, that the bidder specify the type of surface preparation equipment it proposed to use, and no form was included with the bid package on which such election could be denoted. The bid package did include, however, a standard proposal to be executed by the bidder, which bound the bidder "to perform all necessary work, as provided for in the contract, and if awarded the Contractor [Bidder] to execute the contract within 20 calendar days after the date on which the notice of award has been given." The ITB further required a proposal guarantee, payable to the Department, of not less than five percent of the total actual bid, "which guarantee is to be forfeited as liquidated damages if . . . the Proposal is accepted [and] the Bidder . . . fail[s] to execute the attached Contract under the conditions of this proposal. " On August 17, 1995, after the pre-bid conference, the Department issued Addendum Number 1 to the ITB, which included the following clarification as to the painting specifications for the project: Surface preparation equipment requirements are specified in Section 1.01 of the painting specifications. Cavi-Tech, Inc. is indicated as a company having equipment and experience meeting the requirements of this specification section. Other companies meeting the requirements of Section 1.01 can bid on this project. In response to the ITB, the Department received five bids for the project. The lowest bid was submitted by Archer-Western, $2,868,816.35, and the second lowest bid was submitted by Coastal, $2,930,461.68. The three other firms that bid on the project were PCL Civil Contracts, Inc. (PLC), with a bid of $2,943,370.20, Gilbert Southern Corp. (Gilbert), with a bid of $2,967,928.10, and M & J Construction Co. of Pinellas County (M & J), with a bid of $3,274,867.17. The bid price proposal submitted by each bidder contained various items which were tallied to derive the total amount bid. Item Number A560 1 was for painting structural steel, and Archer-Western listed a price of $425,300, Coastal a price of $500,000, PCL a price of $350,000, Gilbert a price of $450,000, and M & J a price of $575,348.45. Pertinent to this case, while Archer-Western did secure a quotation from Cavi-Tech, Inc., for Cavi-Blast and coating services, as well as historical data regarding its use, it did not include such documentation with its bid. Consequently, the bid submitted by Archer-Western, as well as the bid of PCL, contained no information in response to subsection 1.01.3, regarding surface preparation equipment. Contrasted with those bids, Coastal, in what it perceived as the appropriate response to subsection 1.01.3, included information from Cavi-Tech, Inc., on the Cavi-Blast system. Gilbert and M & J likewise included documentation on the Cavi-Blast system. The Department, following its evaluation, deemed the five bids responsive, and on October 4, 1995, posted notice of its intent to award the contract to Archer-Western. Coastal timely protested the proposed award (DOAH Case No. 95-5702BID). On October 9, 1995, the Department notified all bidders that it was rescinding its notice of intended award and proposed to reject all bids. Coastal timely protested such decision (DOAH Case No. 95-5703BID).3 Finally, on October 24, 1995, the Department, following reconsideration of its position, resolved to rescind its rejection of all bids and, consistent with its initial decision, award the contract to Archer-Western. Coastal timely protested such award (DOAH Case No. 95-5701BID). The bid protest Here, Coastal contends that Archer-Western's proposal (bid) was not responsive to the ITB because it did not include documentation in response to subsection 1.01.3 of the ITB. By such failure, Coastal suggests Archer-Western failed to commit to using the Cavi-Blast system or identify an alternative system it would use and, therefore, its bid was at material variance from the ITB. That variance, Coastal avers, accorded Archer-Western the opportunity to reevaluate its bid, after bid opening, and then decide whether to adhere to is bid or refuse to abide its bid without penalty due to its non-responsiveness. Contrasted with Coastal's perception of subsection 1.01.3, the Department views that subsection, when read in pari materia with subsections 1.01.1 through 1.01.4, as only requiring documentations when the bidder proposes to use surface preparation equipment other than the Cavi-Blast system. Indeed, the Department observes, it would be superfluous to include documentation demonstrating that the Cavi-Blast system was capable of achieving the surface preparation standards when subsection 1.01.4 specifically states that the Cavi- Blast system meets requirements. Accordingly, where, as here, the bidder does not provide any documentation in response to subsection 1.01.3, the Department contends it may be fairly implied, based on the bidder's agreement in the proposal "to perform all necessary work, as provided for in the contract," that it has proposed to use, and is bound to use, the Cavi-Blast system. Consequently, the Archer-Western bid was, in the Department's opinion, responsive to the ITB. Reading the provisions of subsections 1.01.1 through 1.01.4 in para materia, it must be concluded that the Department's conclusion in this case is supported by logic, and that its decision to award the contract to Archer- Western did not depart from the essential requirements of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Coastal's protests and, more particularly, its protest of the award of the subject bid to Archer- Western. DONE AND ENTERED this 26th day of February 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 26th day of February 1996.
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
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, I hereby note the following findings of fact: Notice and Invitation to Bid on State Project Number 72001-3448 (the project) was extended to various contractors by the Respondent, Department of Transportation, on August 1, 1985. Sealed bids on the project were opened August 28, 1985. The scope of the project involved cleaning and painting the structural steel of the Buckman Bridge over the St. Johns River in Jacksonville, Florida. (State Bridge Numbers 720249 and 720343). The bids were opened and Petitioner was the apparent low bidder on the project with a bid amount of $193,000. The Department of Transportation, on October 2, 1985, rejected all bids "due to error in quantities in plans." According to the contract plans and specifications utilized by the Department of Transportation for the project, the beams, girders, bracing and trusses were composed of 2,540 tons of structural steel. The plans were in error and the tonnage of structural steel was less than 2,540 tons. Petitioner, upon visiting the job site as required, immediately recognized that there was less steel in the bridge than shown in the plans. In submitting and formulating his bid, the Petitioner considered the amount of work and materials which would actually be required to complete the project. 6 Prior to the bids being posted on the project, the Department of Transportation discovered that the amount of structural steel noted in the plans was grossly overestimated. On October 2, 1985, the Department of Transportation notified bidders in writing that all bids submitted on the project were rejected and that the plans would be revised and the project relet.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the petition of Industrial Enterprise Sandblast and Painting, Inc., protesting the rejection of all bids on State Project No. 72001- 3448, be dismissed. DONE AND ORDERED this 11th day of December 1985 in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December 1985. APPENDIX Respondent's Findings of Fact FINDING RULING Accepted; see Recommended Order paragraph 1. Accepted; see Recommended Order paragraph 2. Accepted, but not included because subordinate. Accepted; see Recommended Order paragraph 4. Accepted; see Recommended Order paragraphs 3 and 6. Accepted; see Recommended Order paragraphs 3 and 6. Accepted; see Recommended Order paragraph 6. COPIES FURNISHED: HONORABLE THOMAS E. DRAWDY, SECRETARY DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 A. J. SPALLA, ESQUIRE GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION 562 HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 LARRY D. SCOTT, ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301-8064 INDUSTRIAL ENTERPRISE SANDBLAST & PAINTING, INC. P. O. BOX 1547 1502 FOX RUN DRIVE TARPON SPRINGS, FLORIDA 32486-1547
Findings Of Fact In May, 1987, the Department contracted with B.P. Associates, then owner of the Bay Plaza facility, to lease space at that facility located in Brandon, Florida. A part of the bid conditions required extensive physical renovations of the facility which were being supervised by Coldwell Banker, a real estate brokerage and management firm serving as property manager and construction supervisor. Construction was begun in December, 1987. Mr. Burrwood Yost was hired by the Department as its Facilities Services Manager for the Tampa Region in March, 1988. Mr. Yost soon became dissatisfied with the work being accomplished under Coldwell Banker's supervision and the company's responsiveness to maintenance problems arising at the facility, which the Department had asked to be corrected. As a result of this dissatisfaction with Coldwell Banker's demonstrated inability to properly perform, Mr. Yost recommended that the bid award to B.P. Associates be withdrawn and that the procurement be relet. On June 17, 1988, the bid award to B.P. Associates was withdrawn. On June 1, 1988, however, shortly before the withdrawal of the prior award, ownership of Bay Plaza was transferred to Northern which immediately substituted a new property manager and construction supervisor for Coldwell Banker. The new management firm was Grubb and Ellis, which took over on September 1, 1988. New bids were solicited by invitation to bid on July 15, 1988 which called for approximately 27,122 square feet of leased space to be available by April 1, 1989. The bid invitation clearly stated that "all bids will be evaluated based on the award factors enumerated in the bid submittal form." This form outlined the bid procedure, listing award factors to be considered and specifying the precise amount of weight each factor would be given. Past performance was not listed as a basis for evaluation on the bid invitation form and Mr. Yost admits that past performance was not to be considered as a factor. Five bids were received of which three were deemed responsive. These were Bidder C, Northern; Bidder D, Turner Development Corporation; and Bidder E, Alderwood B. Northern's bid was the lowest of the three responsive bids by more than $2.00 per square foot over the life of the lease. Alderwood was the second lowest. Each of the bids was evaluated by a bid evaluation committee consisting of seven representatives from the various Department program offices that were to occupy the leased space. The chairman of the committee, Ms. Chipman, was placed thereon at the request of Mr. Yost, and was actually a supernumerary since the committee a originally constituted by Mr. Akridge, the Department's Facilities Services Manager Assistant in Tampa, was made up of only six members. A 100 point bid evaluation scale, which was included in the bid package furnished to each bidder, was to be utilized by the committee to evaluate each bid. Prior to beginning their evaluation duties, the committee members were walked through each proposed site, and in the briefing given by Department authorities, specifically advised that prior performance was not a criteria and should not be considered. When the committee members' evaluations were computed, Northern's bid for Bay Plaza received a score of 83.5. Alderwood's bid for its property was given a score of 87.9. Each evaluator rated Alderwood highest and the evaluation committee concluded that, consistent with the overall criteria which called for the lease to be awarded to the lowest and best bid that met program needs, Alderwood's bid was lowest and best. Consequently, the committee recommended that Alderwood receive the award even though Northern's bid for Bay Plaza was lowest in terms of total dollars involved. The bids were evaluated based on three major evaluation criteria. These were Fiscal Costs, Location, and Facility. The Fiscal Cost element was further broken down into three subcategories; rental rates, renewal rates, and moving costs. Northern received 25 points of the 25 available for rental rates because it offered the lowest rental rate. When reduced to present value, Northern's bid for the entire term of the lease was more than $600,000.00 below the next lowest bid and for the first nine years of the lease alone, was $336,799.00 lower. Alderwood was awarded 21.5 points for its rental rate submission. In the area of renewal rates, Northern was awarded 7 of 7 possible points and Alderwood was awarded 2. These awards were not computed by the committee or assigned by them. Instead, the scores were computed on the basis of a present value analysis accomplished in Tallahassee and were entered on the score sheet by Mr. Akridge, the Department's local supervisor for this procurement. Considering the moving costs, however, Alderwood outscored Northern by 3 to 2.7 points. This difference was attributed to an additional moving cost for the Bay Plaza site as opposed to the one move cost if the Alderwood site were chosen. To have the rehabilitation work done at Bay Plaza would have required a move to another location while the work was being done and another move back when it was finished. In the Alderwood case, the Department would move only once. The "Location" criteria also had three subcategories for consideration. They were, general area, in which both bidders received the maximum 10 points; public transportation at 5 points, and environmental factors at 15 points. In the area of public transportation, Alderwood received the full 5 points with Northern receiving 1.1. Department personnel considered the fact that bus service was available through the site at Alderwood, the stop being within wheelchair and walking distance of the building, as being more significant and of higher value than the proposed bus service envisioned in 1989 for Northern's facility which, at the time of the bidding, was not served by a bus. Bus company officials stated an intention to provide bus service to the area in the future. The environmental factors subcategory related to the physical characteristics of the building and the surrounding area and the effect of these factors on the "efficient and economical conduct of Department operations." In this subcategory, Alderwood received a higher score than did Northern's building because the committee was of the opinion the Alderwood facility would be more energy efficient. Current Department occupants of Northern's facility at Bay Plaza contended that because of the large expanses of glass, there would be more heat generated in the building in the afternoon. No official energy efficiency assessment was done of either building because both occupied less than 20,000 square feet. Consequently, the committee analysis here was based on the experience of some committee members and was neither scientific nor professional. The committee was also concerned with the potential for theft because of the large amounts of glass and was of the opinion that the Bay Plaza layout was "confusing." Neither of these judgements carry much weight, however. Another environmental factor considered by the committee concerned the parking availability at each facility. The committee was of the opinion that the layout at Northern's facility was not good. It was long and extended. Staff also was concerned that the several access doors to the Northern facility could cause clients to become confused. More important, however, was their concern that due to the several entrances to the building, it would be difficult to control entry. Alderwood's facility, on the other hand, provided a central entrance for each building and it was felt this would allow tighter security control for the safety of the building occupants. The committee was also impressed by the fact that Alderwood's facility provided a play area for clients' children, and felt that Alderwood's landscaping was more appealing. The rating of Alderwood's handicap access as high, is important. Turning to the third major bid criterion, Facility, Northern's facility was awarded 16.3 points of a possible 20 for layout/utilization while Alderwood's was awarded 18.7 points. For the subcategory, single building, Northern's facility received 6.7 points out a possible 10 and Alderwood's facility was awarded 8.1. As for the final subcategory, street level, both facilities were awarded 5 points. As for layout/utilization, one committee member, Chipman, awarded Alderwood more points because it provided a separate entrance for each program, because it provided covered walkways for weather protection, and because there was less of a "maze" effect in that facility due to its square configuration. This last factor was of concern to other committee members who rejected the idea of clients having to walk through offices to get to the different programs. The wider hallways and better access for handicapped, as was stated previously, were also considered positive factors for Alderwood. Neither facility offered the single building which was a desired characteristic, Mr. Akridge, however, advised the committee in his preparatory briefing that since neither bidder offered a single building facility, the committee could award points on the layout of the multi-unit facility based on the relationship of the individual components to each other. At least two committee members, Chipman and Collins, rated Alderwood's facility better and awarded more points because they felt the layout of that facility allowed a more advantageous grouping of programs within the units. There is substantial evidence, however, that the information furnished the committee was neither complete nor in all cases accurate. Once the committee completed its evaluation, Mr. Akridge tabulated the scores and prepared a "request for bid award" letter dated September 21, 1988 for transmittal to Department officials in Tallahassee. The letter was prepared to report the committee recommendation for the award to Alderwood and to explain why the recommendation was made to award to that bidder as opposed to the low bidder. Review of this letter clearly reflects that Mr. Akridge and the committee were concerned with past performance at the Bay Plaza facility. When Mr. George Smith, a senior management analyst for the Department in Tallahassee received Mr. Akridge's letter, recognizing the possible appearance of consideration of an improper factor, he requested that Mr. Akridge seek and provide more justification for the committee's findings. While Mr. Smith contends he did this because of his concern over costs, the fact remains that Akridge's letter of September 21 did mention past performance which was an invalid consideration. Mr. Smith asked Mr. Akridge to prepare another memo giving additional information about such things as bus service, the difference in rental rates, the building layouts and locations and those factors which the users of the proposed facility, those individuals who were on the committee from the using organization, felt were important to them in the effective accomplishment of their jobs. Mr. Smith clearly indicated he recognized that past performance is not a valid point for consideration and that it would play no part in his analysis of the bids preparatory to making final recommendation for award. In response to Mr. Smith's direction, Mr. Akridge prepared another memorandum dated September 30, 1988. Though by far the greatest portion of this memo is a detailed comparison of the two facilities and the concerns of the committee regarding them, the first paragraph, (1 A) refers to the failure of the former leasing agent to obtain state fire marshal approval and a reference to concern that in light of the fact that Northern is an absentee owner, there might well be a return to slow response times experienced under the prior management contract. Though Mr. Smith recognized that the September 30 memorandum again made reference to prior performance, experienced as he was in the procurement of facilities, he also recognized that "that was not a part of the evaluation criteria" and "basically, just disregarded that." Thereafter, the award was made to Alderwood. Petitioner contends that whether consciously or unconsciously, past performance of Northern's predecessor in ownership influenced the evaluation and bid review process thereby placing Northern at a competitive disadvantage to Alderwood. There is evidence in the record to indicate this conclusion, may be justified. Mr. Yost, the Facilities Services Manager, admits that he was dissatisfied with the performance of the prior management of the Bay Plaza facility and it was because of this dissatisfaction that the decision was made to recommend withdrawal of the prior award and a new bid invitation. Though he claims he deliberately kept himself out of the re-bid process, the evidence indicates that he oversaw it from the beginning and was present and/or involved in almost every part of it. The invitation to bid utilized his name; he attended the pre-bid conference and injected himself into the process by answering questions of bidders; he personally reviewed each bid upon receipt with Mr. Akridge; and, though he turned the committee selection over to Mr. Akridge, specifically requested that a nominee of his own choosing, Ms. Chipman, be appointed. Ms. Chipman, to whom Mr. Yost had previously spoken regarding his dissatisfaction with the prior Bay Plaza operation, was appointed as the seventh member of a committee originally scheduled to have only six members and served as the chairperson thereof. It is also significant to note that while the committee was in session evaluating the bids, Mr. Yost came into the committee room and met with the members while the deliberation process was going on. This creates a definite appearance of impropriety. After the protest was filed by Northern's agent, on November 8, 1988, Mr. Akridge, on behalf of the Department, met with members of the evaluation committee and representatives of Alderwood. During this meeting, the Department representatives explained to Alderwood how they wanted the layout of the facility to be accomplished and directed the architect who was present to prepare preliminary design plans. This appears to have been in contravention of provisions of a Department rule, (10-13.011(2)(a), F.A.C) which calls for the contract award process to be stopped until the protest is resolved. The evaluation criteria, found on page 16 of 17 of the Bid Submittal Form at subparagraph 1A, states that rental rates for the basic term of the lease, evaluated testing a present value methodology at a discount rate of 8.31 percent, would constitute 25 percent of the total evaluation criteria. This requirement was not appropriately applied in this case. The points included on each committee member's evaluation form for this category do not correlate to the present value rates furnished by the Department. Whereas Alderwood's bid was 21 percent higher than Northern's when reduced to present value, Alderwood received 86 percent of the rental rate points given Northern instead of 79 percent of Northern's points as it should have received. As a result, Northern did not receive the appropriate weight for its rental rates points as compared to it's competitor, Alderwood. In addition to the above, there are several examples indicating that points given by the committee were awarded based on inaccurate assumptions, unreliable information, or speculation. These include a failure to recognize that the windows at Bay Plaza are tinted; an inaccurate belief by one committee member that Alderwood's buildings are closer together than Northern's; a failure to properly apportion points by a committee member in the area of public transportation on the mistaken belief that Northern's facility would not have bus service; a mistaken belief that hallways at the Northern facility could not be widened when, in fact, Northern had agreed to renovate the entire facility including the hallways to whatever design the Department requested, (in this regard, Mr. Akridge properly advised the committee it should assume for the purpose of evaluation, that Northern would widen the Hallways if requested) ; the possible improper award of points for moving costs when no information on actual costs was available; a failure by the committee to recognize that major construction planned for in front of the Alderwood facility would hinder what the committee considered that building's better access; a failure to recognize that bid specifications required a security system be installed in any facility leased which would minimize if not eliminate the theft risk; and a lack of information regarding crime rates, police patrols, night lighting, and the nearness of police facilities to the buildings in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the intent to award lease no. 590:1853 to, Alderwood B. Partners, Limited, be withdrawn; that a new evaluation committee be appointed to review the bids submitted by the responsive bidders; that this committee be properly briefed as to the requirements of their task and the appropriate standards to be applied thereto; and that the Department thereafter issue an award to the lowest and best bidder as determined by this evaluation committee. RECOMMENDED this is 15th day of March, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalpachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5325BID 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. BY PETITIONER; Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorporated herein. Balance accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but more in the form of argument than as Finding of Fact. The paragraph is redundant to other evidence already considered. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and as to substance, incorporated herein. BY THE RESPONDENT; & 2. Accepted and incorporated herein. Accepted. - 6. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. - 12. Accepted and incorporated herein with comment. Redundant to 12. Accepted and incorporated herein. Accepted and incorporated herein. & 17. Accepted and incorporated herein though 17 is redundant to 16. Accepted and incorporated herein as to the fact that bus service is planned for the Bay Plaza facility in 1989. Accepted with the exception of that portion dealing with Mr. Yost's having nothing to do with the evaluation of the bid which is rejected. Accepted but irrelevant. Accepted and incorporated herein. Accepted and incorporated herein. Accepted with the exception of the disclaimer of Mr. Yost's participation in the selection of committee members. Accepted and incorporated herein. Accepted. Accepted with the exception of the last sentence which is not a Finding of Fact but a recitation of testimony. First sentence rejected as a recitation of testimony. The second sentence is accepted. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a recitation of evidence contained in Mr. Smith's deposition. Not a Finding of Fact. Accepted and incorporated herein. COPIES FURNISHED: Mark A. Brown, Esquire Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, P.A. Post Office Box 3239 Tampa, Florida 33601 Richard Candelora, Esquire Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. Post Office Box 1102 Tampa, Florida 33601 Jack D. Farley, Esquire DHRS District Six Legal Office 400 West Buffalo Avenue, Room, 500 Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire DHRS General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-205, relating to the removal and replacement of the public address system at Countryside High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, the ITB was issued by Respondent for work related to the removal and replacement of the public address system at Countryside High School in Clearwater, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-205 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $118,143.27. Petitioner submitted a bid in the amount of $108,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-205 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 October, 2013.
