The Issue The issue for determination is whether the School Board of Broward County, Florida (“SBBC”) improperly awarded a contract pursuant to Invitation to Bid No. 21-244H for “Photo ID Card and Printing System Supplies” (“ITB”) to Intervenor, Identicard Systems, Inc. (“Identicard"). Petitioner Plasco, Inc. ("Plasco") contends that the recommended award to Identicard is clearly erroneous, contrary to competition, arbitrary, capricious, or contrary to the specifications of the ITB. The resolution of the ultimate issue turns on whether the uninitialed corrected figures contained within Plasco’s bid response for both the unit price and the total cost of Item 1(N) were a material deviation from the bid specifications requiring rejection of the bid.
Findings Of Fact SBBC desired to procure photo identification card and printing systems supplies to prepare identification cards for school district employees, students in selected schools, and outside vendors. SBBC has adopted School Board Policy 3320 which governs its purchasing of goods and services. On or about April 30, 2001, SBBC released the ITB. General Condition 1(c) of the ITB stated in pertinent part: EXECUTION OF BID: . . . If a correction is necessary, draw a single line through the entered figure and enter the corrected figure or use an opaque correction fluid. All corrections must be initialed by the person signing the bid even when using opaque correction fluid. Any illegible entries, pencil bids or corrections not initialed will not be tabulated. . . . General Condition 2 of the ITB stated in pertinent part: PRICES QUOTED: . . . Give both unit price and extended total. Prices must be stated in units to quantity specified in the bidding specification. In case of discrepancy in computing the amount of the bid, the Unit Price quoted will govern. . . . General Condition 7 of the ITB stated in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to withdraw this bid at any time prior to the time and date specified for the bid opening; to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder. . . . All awards made as a result of this bid shall conform to applicable Florida Statutes. Special Condition 3 of the ITB states as follows: AWARD: Bid shall be awarded by GROUP to the lowest responsive and responsible bidder meeting specifications, terms and conditions. Therefore, it is necessary to bid on every item in the group, in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC may need to order an individual component within a group. All items within a group must have an individual cost. Failure to state the individual cost for an item within a group will result in disqualification of the group. Bidder should carefully consider each item for conformance to specifications. In the event that one item in the group does not meet the specifications, the entire group will be disqualified. On June 7, 2001, Plasco, Identicard, and seven other companies submitted responses to the ITB. After receiving the bid responses, SBBC’s Purchasing Department examined and computed the figures submitted by each bidder for each item listed in the Bid Summary Sheets. For each item, a quantity figure had been supplied by SBBC in the bid specifications. The bid was structured so that the specified quantity would be multiplied by a unit price furnished by the bidder on its Bid Summary Sheets. The bidder was also required to furnish a total cost for each individual item in its Bid Summary Sheets. The bids submitted by both Identicard and Plasco contained a number of uninitialed corrections. Although such uninitialed corrections violated General Condition 1(c), the SBBC properly deemed such errors to be immaterial in every instance where only one figure per specified Item was tainted by a violation of this General Condition. For example, where a particular component of the bid required the bidder to specify a unit cost and a total cost for the quantity of goods specified in that particular component, the SBBC was willing to perform the mathematical calculation necessary to confirm the correctness of the uninitialed figure. As applied to this particular type of uninitialed correction, SBBC staff would multiply or divide the quantity specified in the ITB by the "untainted" number provided by the bidder to confirm the correctness of the uninitialed corrected figure submitted in violation of General Condition 1(c). The Bid Summary Sheet submitted by Plasco for Item 1(N) contained a different violation of General Condition 1(c), to wit, it contained two uninitialed corrected figures. The corrections were accomplished through the use of correction fluid. Plasco's Bid Summary Sheet with respect to Item 1(N) stated in pertinent part as follows: UNIT TOTAL PRICE COST * * * FARGO ACCESSORIES N. 3 each 81524 Thermal Printhead $389.35 ea $1,168.05 for Cheetah/Cheetah II/ Pro/Pro-L/Presto! Quatro/ Presto! System The Unit Price of $389.35 as well as the Total Cost of $1,168.05 for Item 1(N) set forth in Plasco’s bid was a corrected price and was not initialed by the person signing the bid on behalf of Plasco. Notwithstanding this "double correction," it was possible within the four corners of Plasco's bid to verify the unit price of the Item and thus to confirm, mathematically, a total price. The Item in question, a printhead, was the subject of four additional bid items. In each instance, Plasco bid $389.35 per printhead, a number which matched Plasco's corrected figure in Item 1(N). SBBC was not misled by Plasco's failure to initial either or both corrections in Item 1(N). Correctly using Plasco's uninitialed corrections as set forth in Item 1(N), SBBC accurately performed the calculations necessary to verify Plasco's bid; therefore the Bid Summary prepared by SBBC staff accurately reflected that Plasco was the low bidder at $93,449.68. The responses to the ITB were reviewed by school district staff on or about June 7, 2001. The so-called "double correction" in Item 1(N) was SBBC's sole basis for its decision to reject Plasco's low bid, and to recommend that Identicard's next lowest bid of $100,720.12 be accepted. At no time relevant to this case did SBBC have a written policy which compels that any bid containing two uninitialed corrections be excluded from consideration. The evidence establishes that SBBC was able to and in fact did accurately account for the individual numbers contained in Item 1(N), as well as any and all other numbers affected by the numbers supplied by Plasco in response to Item 1(N). Under the facts of this case, Plasco's error in failing to initial the corrections in Item 1(N) was immaterial. SBBC maintains that it must enforce its unwritten policy of excluding bids containing two uninitialed corrections within a single item in order to protect the integrity of the bid process. There is no evidence that the integrity of the bid process in this case was compromised in any way. No good faith argument was made that there was any type of collusion or improper conduct in connection with this bid. Instead, the evidence establishes that Plasco's bid was responsive and responsible in all material respects, inasmuch as SBBC staff was able to accurately ascertain, to the penny, the amount of Plasco's low bid. Plasco timely filed its Notice of Protest with SBBC on June 18, 2001. Plasco timely filed a Formal Written Protest with SBBC on June 27, 2001. Pursuant to Section 120.57(3)(c), Florida Statutes, and School Board Policy 3320, SBBC provided an opportunity for Plasco to meet with the agency’s Bid Protest Committee in an attempt to resolve the protest by mutual agreement. The Bid Protest Committee conducted a duly-noticed public meeting with Petitioner Plasco on July 9, 2001. Upon consideration, the Bid Protest Committee rejected the protest of Plasco and upheld the recommendation to award the bid to Identicard.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida, enter a Final Order awarding the ITB to Plasco, and, upon submission of documentation contemplated in the parties' stipulation regarding costs, assess costs of this action in Plasco's favor in its Final Order pursuant to School Board Policy 3320, VI (n). DONE AND ENTERED this 9th day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2001. COPIES FURNISHED: Mitchell W. Berger, Esquire David L. Ferguson, Esquire Berger Singerman 350 East Las Olas Boulevard Suite 1000 Fort Lauderdale, Florida 33301 Robert Paul Vignola, Esquire Steven H. Feldman, Esquire Broward County School Board K.C. Wright Administration Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Mark A. Emanuele, Esquire Panza, Maurer, Maynard & Neel, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308 Dr. Franklin Till, Jr., Superintendent Broward County School Board K.C. Wright Administration Building 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue in this cause is whether costs and attorney's fees are due Petitioner, hereinafter PROCTOR, from Respondent, hereinafter HRS, pursuant to Section 57.111, Florida Statutes, as a result of Division of Administrative Hearings Case Number 91-5963-BID, and, if so, the amount of costs and fees.
Findings Of Fact The petition for fees and costs herein is brought exclusively under Section 57.111, Florida Statutes, and relates back to a bid protest wherein PROCTOR and TCC #3 LTD., INC., hereafter TCC, were the only bidders on HRS lease 590.236. PROCTOR was the protestant/Petitioner and TCC was the apparent successful bidder/Intervenor in Derick Proctor v. Department of Health and Rehabilitative Services, DOAH Case No. 91-5963BID. HRS' Invitation to Bid (ITB) for lease 590:236 required bidders to submit evidence of control of the property being offered, including the parking areas. Evidence of control could take the form of a deed for the property, an option to purchase the property, or a lease or option to lease showing a right to sublease. TCC did not submit a document labelled "deed," "option to purchase," "lease," or "option to lease" with its bid. TCC submitted as its evidence of control a contract for sale and purchase of the property with Hernando Plaza, Ltd., executed by Edward M. Strawgate and Harold Brown representing themselves to be general partners of the limited partnership. At all times material, the actual record title of the property submitted by TCC for the bid was in the Victor and Lillian Brown Foundation. At the times of the bid opening, evaluation, and August 27, 1991 notice of intended award, HRS had no reliable information as to what entity actually owned the property offered by TCC, and TCC had not disclosed to HRS that its contract to purchase the property was with an entity other than the record owner. Up to then, at least, Hernando Plaza, Ltd. had represented itself to TCC as being the owner of the property. The ITB did not require an abstract of title to be submitted with the bid. HRS normally does not require an abstract from successful bidders, although the ITB contained provisions for future disclosures from successful bidders. Absent some reason to "go behind" facial evidence of control, HRS' ITB attempted at the time to protect HRS by requiring successful bidders to post an irrevocable letter of credit to be forfeited in the event a successful bidder could not perform and for future disclosures concerning the chain of title. (See the recommended order in the underlying case). HRS accepted the contract to purchase the property from Hernando Plaza, Ltd. as TCC's required evidence of control, believing it to constitute an option to purchase. (See Findings of Fact 15-17 infra, this final order). On August 27, 1991, PROCTOR received from HRS a notice of intent to award the bid to TCC. This notice constituted the "window" for protests, if any, to be filed. PROCTOR then timely filed a notice of intent to protest and a formal written protest of the award to TCC. The filing of this protest resulted in an automatic suspension of the bid solicitation and contract award process and referral of the matter to the Division of Administrative Hearings, pursuant to Section 120.53(5)(c), Florida Statutes. This protest formed the basis of the underlying bid case, DOAH Case No. 91-5963BID. No later than the time of the Prehearing Order of September 23, 1991 in Case No. 91-5963BID, the law firm of Gibbs and Rudzik had made known to the hearing officer and counsel for both PROCTOR and HRS its retention as counsel for TCC. TCC moved for leave to intervene in a motion filed September 30, 1991, which was granted in an order of October 4, 1991. In a letter of October 10, 1991, counsel for PROCTOR made counsel for HRS aware of a question of whether TCC could obtain good title to the property. Counsel for PROCTOR proposed in a letter of October 14, 1991 to counsel for HRS that HRS reject both PROCTOR's and TCC's bids and rebid the lease, but this letter was primarily devoted to determining if HRS wished to interpose a new defense that PROCTOR's bid was unresponsive. In the instant fees and costs case, PROCTOR relies on its October 14, 1991 letter as the point from which HRS should have acted to avoid incurring attorney's fees and costs. After the receipt of the two letters, HRS did not reject both bids and rebid the contract but proceeded to formal hearing on October 30, 1991. PROCTOR and HRS share the mutual impression that had HRS accepted PROCTOR's proposal to reject both bids, HRS would have to have allowed TCC an opportunity to protest that decision. At the final hearing in Case No. 91-5963BID, evidence was offered that Hernando Plaza, Ltd. had a conditional option to purchase the property from the record title owner, the Brown Foundation. However, it was not established at the hearing that the conditions of the option had been fulfilled or that TCC or Hernando Plaza, Ltd. could otherwise gain good title to the property through a valid option. It was concluded as a matter of law in Case No. 91-5963BID, that on its face, the ITB stated that control could be evidenced merely by attachment of an "option to purchase," that the ITB stated no further requirements concerning the internal provisions of the option to purchase, and that TCC's conditional contract for purchase constituted a conditional option to purchase. The conditions of the option to purchase and the chain of title, among myriad other matters were subjects of proof at the formal hearing. The conditions of the option to purchase and various complicated real property concepts arising from recorded and unrecorded parts of the chain of title constituted the thrust of the recommended order's assessment that TCC's "control" was speculative only. It is here noted that the totality of the "chain" of title might have been unavailable even by "abstract" due to the lack of recordation of some documents. The lengthy formal hearing adduced evidence concerning the factual issue of whether or not the conditional option to purchase was between TCC and an entity which had such a sufficiently unequivocal interest in the proposed property that it could convey title to TCC in time for TCC to fulfill its obligations under its proposed lease to HRS. There is no evidence that HRS knew of these problems on August 27, 1991, when it gave notice of its intent to award the bid to TCC. Hernando Plaza, Ltd. was the entity with which TCC had contracted. At formal hearing, TCC relied on the legal concept that all interests in the property had merged in the non-title holder, Hernando Plaza, Ltd. This concept, together with recorded and unrecorded elements in the chain of title which were presented at formal hearing, were determined in the recommended order to be too "speculative" on the issue of TCC's control. However, it was also found, upon evidence submitted at formal hearing, that TCC's bid contained no other material deviations from the requirements of the ITB, that the signator of TCC's bid had sufficient status to submit the bid for the TCC corporation, and that TCC's signator could not submit the bid as an agent of the owners of the real property. TCC and its bid signator had never purported to have submitted the bid on behalf of the owners of the real property. (See the recommended order of the underlying bid case.) These issues were raised by PROCTOR and they addressed more than just the facial compliance of TCC's original bid documents which was all HRS had to consider when it made its initial decision in favor of TCC and against PROCTOR. However, the recommended order found HRS to have materially deviated in a number of ways from the bid process in its initial evaluation of PROCTOR's bid, not the least of which was determining that PROCTOR had complied with the ITB requirements for demonstrating control. All such evaluation flaws had been committed by HRS in favor of PROCTOR. Both TCC's and PROCTOR's bids were ultimately found to be unresponsive in the recommended order entered on December 20, 1991. The recommended order also found both had standing to be involved in the bid protest and formal hearing. The recommended order recommended rejecting both bids and readvertising the ITB. The Final Order of HRS entered on January 20, 1992 dismissed PROCTOR's protest on the basis that he lacked standing to protest, as his bid was unresponsive, and awarded the bid to TCC. HRS did not give PROCTOR notice that his bid was not responsive until it issued its Final Order. The Final Order of HRS was appealed to the First District Court of Appeals by PROCTOR. The First District Court of Appeals entered an order on June 22, 1992 finding PROCTOR had standing and remanding the case back to HRS for the purpose of a decision of the issue of whether TCC's bid was also unresponsive. On July 27, 1992, HRS entered its Amended Final Order determining both bids to be unresponsive and that the lease should be relet for bids. The First District Court of Appeals affirmed the Amended Final Order of HRS in a per curiam opinion without discussion on October 13, 1992. HRS did not reject both bids and rebid the contract until after this per curiam opinion. No motion for rehearing was filed with respect to either of the First District Court of Appeals' orders entered June 22 or October 13, 1992, nor was any notice to invoke the discretionary jurisdiction of the Supreme Court filed. PROCTOR did file a motion for rehearing solely on the court's denial of PROCTOR's motion for appellate fees. Mandate was issued by the Clerk of the First District Court of Appeals on December 3, 1992. HRS entered an Order Directing Release of Bid Protest Cost Bond on December 18, 1992, in which HRS stated: Petitioner, Derick Proctor, has prevailed in the above styled bid protest. Petitioner's domicile and principal place of business is Vero Beach, Florida. Petitioner has one employee. Petitioner is a sole proprietorship. Petitioner's net worth does not exceed $2,000,000.00. HRS was not a nominal party in the underlying bid case. HRS did not initially challenge PROCTOR's "small business party" status in this instant fees and costs proceeding. Therefore, that allegation of the fees and costs petition is not at issue. Also, Petitioner's "small business party" status is now stipulated to exist. The parties have stipulated that the maximum statutory fee is $15,000.00 and that $15,000.00 is a reasonable fee if an award of attorney's fees is due. HRS has not protested or objected to the amount of costs claimed, $411.25, if costs are due.
Findings Of Fact Introduction In February, 1988 respondent, Department of Revenue (DOR), issued a Request for Proposal and Bid Proposal Submittal Form (RFP) inviting qualified and interested vendors to submit proposals for providing approximately 19,300 square fee of office space in the central area of Broward County for DOR's district office. The contract was identified as Lease Bid No. 730-0083. The space was to be made available on July 1, 1988 or 30 days after the bid was awarded, whichever was later. According to the RFP, the term of the lease was five years with an option to renew for a second five year period. Sealed bids were to be filed in Tallahassee no later than 2:00 p.m. on May 2, 1988. The RFP scheduled a "preproposal conference" on April 4, 1988 at DOR's district office. It stated further, that any questions concerning the specifications should be directed to Thomas D. Cooper, DOR's assistant director of administration. Under DOR's bidding process, a four person evaluation committee made up of DOR district employees was assigned the responsibility of reviewing all bids and inspecting the proposed office sites. Using twelve prescribed evaluation criteria, one of which was the rental rate, the committee assigned numerical scores to the top seven bids. Its report was then forwarded to Tallahassee as a nonbinding recommendation. There, the assistant director of administration was charged with the responsibility of reviewing the committee's recommendations and to make a further recommendation to the executive director. As always, the final decision rested with DOR's then acting executive director, Sam D. Alexander. It was DOR's intention to ultimately award the contract to the vendor submitting the lowest and best proposal. Fifteen proposals were timely filed by various vendors, including petitioners, Intercontinental Properties, Inc. (Intercontinental) and Nu-West Florida, Inc. (Nu-West) , and intervenor, 241 East 76th Street Company d/b/a Fountains of Plantation (Plantation). After reviewing the proposals and office sites, the DOR evaluation committee assigned the following numerical scores to the top three bidders: Intercontinental-87 percent; Nu-West - 87 percent, and Plantation - 85 percent. However, it recommended that the bid not be awarded to Intercontinental because of its unfavorable site location and because no local government permits had been obtained to construct a drive-through facility. The committee characterized Nu-West's proposal as a "class operation" and noted that 1the committee is unanimous in it's (sic) recommendation that Nu-West Florida Inc.'s bid offers more for the Department when all factors are considered." Finally, the committee criticized Plantation's site location and anticipated delays in remodeling its building. This evaluation was forwarded to DOR's acting executive director on May 17, 1988. On Wednesday, June 1, 1988 DOR's assistant purchasing director, Barbie Foster, gave telephonic notice to all bidders that the contract would be awarded to Intercontinental and that other bidders had 72 hours in which to file a protest. At 11:30 a.m. that same day, DOR posted a "bid tabulation sheet" reflecting the unit cost (per square foot) of office space submitted by twelve vendors and recommending that the contract be awarded to Intercontinental. The tabulation sheet indicated also that unless the parties "file(d) a protest within the time prescribed in section 120.53(5), Florida Statutes," they waived their right to a hearing under chapter 120. Nu-West filed its protest on June 3, 1988. By June 6, two other protests had been filed, including that of Plantation. On June 9, 1988 DOR issued its first written advice on the subject to the parties. The advice, which was in the form of a letter from Foster to the president of Intercontinental, read as follows: This letter is to notify you that as of 11:30 A.M., June 6, 1988, the Department has received three (3) letters of Intent to protest the recommended contract submitted for office space in Ft. Lauderdale, Bid No.: 87/88-238. Enclosed please find copies of the (3) letters submitted. As you are aware, the awarding process on this lease is now at a stand still until the protests are resolved. The Department's legal counsel will be in touch with you in the very near future. Should you wish to contact Mr. Bill Townsend, Director of Technical Assistance, please feel free to do so, he can be reached at (904) 488-0712. A settlement conference was held in Fort Lauderdale on June 17 in an effort to informally resolve the matter. At that time, or shortly thereafter, DOR learned that the proposals of Intercontinental and Nu-West allegedly did not conform to specifications. On June 22, 1988 DOR issued its second notice of intent to award the contract and advised all vendors that the contract was being awarded to Plantation, the third ranked vendor, and that the proposals of Intercontinental and Nu-West were rejected as being nonresponsive. Such notice was in the form of a letter to each bidder advising the name of the successful bidder, giving a short summation of the reason why a particular vendor had been rejected and offering a clear point of entry to a formal hearing. In the case of Intercontinental, DOR advised that Intercontinental's bid was "non- responsive" since it failed "to comply with paragraph D4A, p. 14," it was "not the owner of record of the subject project," and it had not furnished its "authority to offer the facility." As to Nu-West, DOR found its bid "nonresponsive in the requirement of two drive-in stations as set forth in paragraph B14D, p. 14 of the Request for Proposal" because Nu-West had "indicated (it) would provide only one window and a drop box." These letters prompted the filing of formal protests by petitioners. Bid Requirements Pertinent to this controversy are two items in the RFP which formed the basis for DOR's rejection of petitioners' bids. First, Item B14 sets forth various miscellaneous requirements imposed on the bidder. Paragraph D. of that item provided as follows: The Department requires a drive-through teller facility similar to banking and savings and loan institutions. This may be located within the office or may be connected to the office by a pneumatic tube system (minimum of two stations required) (Emphasis added) This item was required because of a recently instituted DOR policy that all district offices have drive-in facilities for taxpayers. As old office buildings are vacated and new ones occupied, DOR requires that the new landlord provide teller facilities. At present, only three district offices in the state (Miami, Tampa and Tallahassee) have teller facilities but DOR plans eventually to install such facilities at all district offices. In this case, DOR envisioned a facility that would be similar to a small banking facility with two work stations that could handle two taxpayers simultaneously. It was necessary that teller facilities be provided since taxpayers often submit money and documentation and pose questions that must be answered by the tellers. As an alternative to two teller stations, DOR considered accepting one teller station and a drop box connected by a pneumatic tube to the main building. However, the use of a drop box without a pneumatic tube was unacceptable since DOR would "lose control" over deposits and lack the necessary security for handling taxpayer money. This item was considered to be material by the agency. Secondly, Item D.4.A. provided that: 4.A. Each proposal shall be signed by the owner(s) , corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility; i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids. If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submittal. (Emphasis added) The purpose of this item was to give DOR proof that the bidder was authorized to act for the property owner, or, if the bidder was not an agent, to give DOR written assurance that the bidder had an option to purchase, leasehold interest or some other form of interest in the subject property. This was because DOR could not be expected to sign a lease if it was unsure whether it would have the legal right to occupy the property. DOR considered this item to be a material item within the specifications. The first page of the RFP contained the following admonition to bidders: It is the bidder's responsibility to be familiar with all aspects of the bid package outlined below and attached hereto. Finally, page 14 of the RFP contained the following certification to be executed by the bidder when the bid was filed: I hereby certify as owner, officer, or authorized agent, that I have read the request for proposal package and all its attachments and acknowledge my understanding of and agreement to abide by all requirements and conditions contained therein. Intercontinental's Bid Intercontinental was not the owner of the property that was offered to DOR in Intercontinental's bid submission. This was confirmed at hearing by Intercontinental's leasing agent, Nestor Mendoza. According to Mendoza, the property was owned by a partnership using the name "441 South Partnership" but was leased to Intercontinental prior to the bid being submitted. Intercontinental filed its bid in Tallahassee on May 2, 1988. The certification on page 14 of Intercontinental's submission was signed in the following manner: Intercontinental Properties, Inc. Bidder's Name (typewritten) 59-1508950 Bidder's F.E.I.D. or S.S. Number (Illegible) Authorized Signature (manual)(Seal) Caroline Weiss Authorized Signature (typewritten) President Title (typewritten) Notwithstanding the requirement in item D.4.A., there was no documentation attached to Intercontinental's proposal reflecting that Intercontinental had authorization from the true owner to submit a bid or that it had a legal interest in the property. Therefore, DOR assumed that Intercontinental was the legal owner of the property. According to Mendoza, he carried documentation to Tallahassee on May 2 confirming Intercontinental's interest in the property but did not attach it to the proposal because he was under the impression that such documentation was necessary only if Intercontinental was "acting as an agent." Even though this "impression" was contrary to the requirements of the specifications, Mendoza maintained that he understood all RFP requirements. Mendoza was elated after receiving a telephone call on June 1, 1988 from Foster, who advised that Intercontinental had received the award. He was told also that, unless protests were filed within 72 hours, the firm would win the contract. In giving its preliminary intent to award the bid to Intercontinental, DOR overrode its committee's contrary recommendation. After a closer examination of Intercontinental's submission was made, DOR learned that, while Caroline Weiss, Intercontinental's president, had executed the bid submission, Intercontinental was not the legal owner of the property that was described in the proposal. DOR noted also that there was no documentation attached to the proposal, as required by item D.4.A. At a settlement conference held on June 17, 1988 Intercontinental maintained it had a leasehold interest in the property but declined, for whatever reason, to give DOR representatives any proof of this assertion. Because of this, DOR concluded properly that Intercontinental's bid was nonresponsive. During final hearing, Mendoza pointed out that, prior to the bid being submitted, DOR representatives had never questioned him concerning who was the true owner of the property and that he never made representations that Intercontinental owned the property. Intercontinental twice attempted to offer into evidence at hearing what purported to be a copy of a lease agreement in which Intercontinental had leased the property in question from another party. However, the document was never properly authenticated. Even if it had been authenticated, it was too late for Intercontinental to modify its bid submission since the documentation was required with Intercontinental's original submission filed on May 2, 1988. Nu-West's Bid Nu-West first learned of DOR's interest in new office space in February, 1988. After obtaining an RFP, Philip Saia, Nu-West's director of marketing and leasing, telephoned DOR's assistant director of administration to get clarification on several items in the specifications. Saia was told by Cooper to attend a prebid conference on April 4, 1988 in Fort Lauderdale. Also, he was told to telephone John Driggers, the author of the RFP and a district employee. Saia telephoned Driggers and was advised that all questions would be answered at the conference on April 4. Early on the morning of April 4, Saia met with Driggers and Bernard Fox, DOR district administrator, to discuss the item relating to the drive-through tellers and to show them Nu-West's facility. Saia's concern was that, due to space limitations and the cost of a pneumatic tube system, Nu-West would be priced "out of the ballpark" and would be unable to submit a bid. The three discussed other alternatives but reached no agreement. Driggers denied telling Saia that his proposal would comply with specifications but conceded he "probably led them to believe" that Saia's proposal would be "acceptable." Fox's principal concern was whether sufficient security could be provided for an unattached drop box. He voiced this concern to Saia. At the prebid conference later that day, another vendor queried the two DOR representatives (Driggers and Fox) about the drive-through teller requirement. Saia asked no questions. However, Saia contended that, in response to the other vendor's question, DOR representatives were "vague" and left the matter "very open." The actual dialogue between the vendor and Driggers is reflected in the transcript of the meeting received in evidence as DOR exhibit 1. According to the transcript the following exchange on the subject took place: (by unidentified vendor) On the drive through facility you asked about the pneumatic . . . you have a requirement for pneumatic tubes. (by John Driggers) Okay. On the drive through facility what we are trying to reflect there is we would prefer a facility for security purposes that would be contiguous with the office so that it would not be located away from the office. We would entertain a remote type facility that was connected with the office by pneumatic tubes or something that would be feasible. We don't necessarily kick out the possibility that we might use a facility that would not be contiguous to the office itself. However, we would look at that very carefully to make sure that it did meet requirements and that we could feel that it would be a secure place to use for the employees and for the . . . We do accept cash in these offices. What I'm trying to do is to give you some options there because there is no telling what kind of facility that you could come up with that would be acceptable. (Emphasis added) Driggers also advised vendors that if they had any further questions, they should be addressed to Fox. Saia concluded that, given the space limitations in Nu-West's building and the need for a local government site approval plan, the most cost-effective way to meet the requirement was to have one drive-through teller "adjacent to the building" and a drop-box in a separate location not contiguous to or connected with the main building. The use of a drop box was based on Saia's impression that DOR wanted the capability of receiving customer deposits after regular business hours and that a "facility" was not necessarily a teller window. He reasoned that this was comparable to the type of facilities used by banks and would be "a good solution to the problem." To reinforce his idea, Saia met with Fox a second time on April 19, 1988 and showed Fox his proposed plans. According to Saia, Fox told him the plans were "very acceptable." However, Fox's recollection of the conversation was different, and he remembered making no such commitment that the plans were acceptable. Instead, Fox told Saia that a drop-box with one window was better than only one window but that his overall concern was with security. In any event, Saia relied on this meeting to formalize the drop box plan in his bid submission. He went so far as to submit the plans to the City of Lauderdale Lakes for site review approval. Nu-West's submission was timely received by DOR. On page 8 of 14 of the RFP, Nu-West responded to the drive-through teller requirement with the following statement: Drive through teller window and one outside drop box will be provided in the manner shown on the enclosed site plan, subject to final approval by the City of Lauderdale Lakes, which has been applied for. (Preliminary approval has been obtained). The attached site plan is depicted on Joint Exhibit 3A and reflects a single drive-through teller facility. The drop box did not have a pneumatic tube system connecting the box to the main facility. This constituted a material deviation from the specifications. It is noted that of the fifteen vendors filing proposals, only Nu-West failed to provide for two drive-through tellers. A week or so after Nu-West's bid was submitted, the DOR evaluation committee visited Nu-West's office site. The team stayed on the premises for two hours. Saia recalled that even though the team discussed the proposed single drive-in teller facility idea and was shown its proposed location, he heard no objections. In its written evaluation report of Nu- West's bid dated May 17, the committee made no mention of any deficiency in the drive-through teller proposal and described Nu- West's proposed site as "a class operation." Nu-West was also given a grade of 87 and unanimously recommended for award of the contract. On June 2 Saia was advised by telephone that Intercontinental had been awarded the bid. Thereafter, Nu-West timely filed its protest. At the settlement conference held on June 17, Saia was not told his bid had been rejected because it was nonresponsive. He did not learn this until he received a telephone call a few days later from DOR's acting executive director. This was followed by DOR's letter of June 22 advising that Plantation had been awarded the bid and that Nu-West's bid had been rejected on the ground the proposal did not provide for two drive-through tellers. When this final decision was made by DOR, neither Cooper or Alexander were aware of any representations that might have been made to Saia by Fox or Driggers. Nu-West is willing to modify its proposal to provide a second drive- through teller. According to Saia, it can be accomplished with a $72,000 allowance Nu-West set aside to cover any deficiencies incurred during renovation. However, these modifications should have been filed with the original bid package in order to conform to specifications. Plantation's Bid Plantation was ranked number three numerically by the evaluation committee but, after the disqualification of Intercontinental and Nu-West, it had the highest numerical score and was considered the lowest and most responsive bid. Although Nu-West's proposed location in Plantation was questioned by another vendor as being in an inaccessible area of the county, DOR representatives concluded the office site was satisfactory. All material specifications were met by this bidder. 2/ Using a present value of lease payments, Plantation's bid was $1.23 per square feet cheaper than Nu-West's bid proposal but was slightly higher than Intercontinental's proposal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding Lease Bid No. 730-0083 to 241 East 76th Street Company d/b/a Fountains of Plantation. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings 5th day of October, 1988.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. On October 11, 1991, DOT's District Four office let out for bid district contracts E4551 and E4554. Contract E4551 calls for the mechanical sweeping of Interstate 95 in Broward County. Contract E4554 calls for the mechanical sweeping of Interstate 95 in Palm Beach County. At a mandatory pre-bid conference, the bidders for the Contracts were provided with a packet which included a Notice to Contractors and Standard Specifications. The Notice to Contractors is a four page document which is specific to each contract. The Standard Specifications are the same for all district contracts. Both the Notice to Contractors and the Standard Specifications to the bidders required bidders to submit proof of the ability to acquire a performance and payment bond in an amount equal to the contract bid price. Bidders could satisfy this requirement by submitting a bid guarantee of 5% of the bid, submitting a notarized letter of intent from a bonding company or by providing a Certificate of Qualification issued by Respondent. The Notice to Contractors for both Contracts provided as follows: Failure to provide the following with each bid proposal will result in rejection of the contractor's bid.... District contracts of $150,000 or less require the following as proof of ability to acquire a performance and payment bond: A notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a performance and payment bond in the amount of your bid, should your firm be awarded the project; in lieu of a notarized letter the following may be substituted: (1) a bid guarantee of five percent (5%); or (2) a copy of the Contractor's Certificate of Qualification issued by the Department. (No emphasis added) Similarly, the first Standard Specification provides: 1.1 Bidders (contractors) A contractor shall be eligible to bid on this contract if:... (2) Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the District Contract Administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of your bid, should your firm be awarded the project.... The requirement to submit proof of the ability to acquire a performance and payment bond has been imposed on the Districts by DOT Directive 375-00-001-a (hereinafter the "Directive".) This Directive was in place at all times material to this proceeding. Section 3.2.2 of the Directive provides: A contractor shall be eligible to bid if: ...Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the minicontract administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of the bid, should the firm be awarded the project. A bid guaranty as specified above may substitute as proof of ability to obtain a performance and payment bond. This applies to bids amount over or under $150,000. A copy of the Contractor's Certificate of Qualification issued by the Department may be substituted in lieu of a notarized letter for those contracts not requiring a bid bond. The bids for the Contracts were opened on October 11, 1991 in Fort Lauderdale, Florida. Bids were received from four bidders: CPM, SCA, Florida Sweeping, Inc. and P. F. Gomez Construction Co., Inc. In its bid proposals, SCA included executed bid bonds in an amount sufficient to cover the amount of each bid proposal. Each bid bond cost $55.00. CPM did not submit executed bid bonds with its proposals. Instead, CPM submitted letters from Mark A. Latini dated September 25, 1991. Those letters were provided on the stationery of Bonina-McCutchen-Bradshaw, Insurance and indicate that Mr. Latini is the "bond manager." The letters provide as follows: Amwest Surety Insurance Company is the surety for the above-referenced contractor and stands ready to provide the necessary performance and payment bond for the referenced bid should Certified Property Maintenance, Inc., be low and awarded the referenced contract. All bonds are subject to normal underwriting requirements at the time of the bond request.... The letters submitted by CPM with its bid proposals were not notarized and were not binding obligations to issue bonds since they were conditioned upon meeting certain unspecified underwriting requirements at the time of the bond requests. The submitted bids were reviewed by the District Four Contractual Services Office. The bids submitted by CPM were the lowest for each contract. Its bid for Contract No. E4551 was $109,343.97. Its bid for Contract No. E4554 was $30,312.63. SCA's bids for the Contracts were $139,442.14 and $44,100.00, respectively. During the initial review of the bid proposals, the Contractual Services Office rejected CPM's bids for failure to have its bonding company "letters of intent" notarized. In addition, the bid proposals submitted by Florida Sweeping, Inc. were rejected for failure to note a required addendum and the bids submitted by P. F. Gomez Construction Co., Inc. were rejected because the "proposal bond was not of proper character". On October 18, 1991, DOT posted its Notice of Intent to Award the Contracts to SCA, the only bidder for the Contracts whose proposals had not been rejected. CPM timely filed protests of the proposed awards to SCA on October 22, 1991. The protests filed by CPM argued that its bids should not have been invalidated simply because the bonding company's letters did not include notary seals. At this point, the sole basis for the disqualification of CPM's bids was the failure to have the bonding company letters notarized. Respondent contends that, except for the absence of the notary seal, the letters submitted by CPM met the requirements of the Notice to Contractor and the Standard Specifications cited above. However, those letters are equivocal and do not evidence a binding commitment to issue a bond upon award of the contract. The DOT officials admit that they do not know what "normal underwriting requirements" would or could be required by CPM's bonding company. This conditional language makes it uncertain whether CPM could obtain the necessary bond. Therefore, it is concluded that those letters do not meet the requirements of the Notice to Contractors, the Standard Specifications or the Directive. A hearing on CPM's protest was not held. CPM's president, Raymond Hanousek, who prepared CPM's bid and attended the pre-bid meeting, called DOT's District office the day the bids were opened and was informed that his company's bid was low, but was rejected because its bond commitment letter was not notarized. Mr. Hanousek spoke with Joseph Yesbeck, the District's Director of Planning and Programs. After their conversation, Mr. Yesbeck reviewed the file and met with Teresa Martin, the District's contract administrator for construction and maintenance contracts, and other members of the contracting staff. Ms. Martin explained why CPM's bid had been disqualified, and the matter was thereafter discussed with the District and Department attorneys. After reviewing the situation, Mr. Yesbeck determined that the failure to submit notarized letters should be considered a non-material deviation and the bids submitted by CPM should be accepted and considered the low responsive bids. Mr. Yesbeck concluded that the absence of the notary seal did not give any competitive advantage to CPM and that defects of this nature are routinely allowed to be cured. Therefore, he reversed the contract administrator's decision to disqualify CPM on both Contracts. The District secretary concurred in the decision reached by Mr. Yesbeck to repost the award of the Contracts. Mr. Yesbeck prepared a joint letter of reposting which removed CPM's disqualification and declared CPM to be the low bidder for both Contracts. At the time Mr. Yesbeck made his decision, he had not reviewed the Directive from the Assistant Secretary's office stating that there must be a notarized letter showing proof of ability to obtain a performance and payment bond. Mr. Yesbeck did not review the Directive until his deposition was taken one week prior to the hearing in this case. According to Ms. Martin, the option to provide a notarized letter from a bonding company as an alternative to the posting of a 5% bid guarantee or obtaining prequalification was designed to promote participation in state contracting by small business and minority business enterprise applicants. While DOT was apparently trying to make it easier and cheaper for companies to bid by not requiring a bond to be posted, the DOT Directive and the bid documents still clearly required unconditional proof that a bid bond would be issued if the contract was awarded to the bidder. CPM was not prequalified nor did it post a bond. Thus, in order to meet the requirements of the Notice to Contractors and the Standard Specifications, CPM's only option was to submit a notarized letter showing proof of ability to obtain a performance and payment bond. DOT was never provided with any proof that CPM had been prequalified by the bonding company for a bond and/or that a bond would unconditionally be issued if CPM was awarded the Contracts. Because the letters stated they were "subject to normal underwriting requirements at the time of the bond request", there was some possibility CPM would not be able to obtain a bond. Such a condition was not permissible under the bid doucments. The decision to accept CPM's bid was contrary to the DOT Directive, the Notice to Contractors and the bid specifications which require that a bidder demonstrate proof of ability to obtain a performance and payment bond. Consequently, it is concluded that DOT's decision to accept the conditional, unnotarized letters submitted by CPM was arbitrary and capricious. There is some indication that other DOT Districts have, on occasion, waived the notarization requirement for the bond letter. However, it is not clear whether the language in the bid documents was the same or similar in those cases and/or whether the bond letters were conditional. In the past, whenever District Four has gotten a bid without a notarized bond letter, the bid was rejected. Apparently, there has never been a protest based on such a denial in District Four. Under Section 337.18, DOT does not need to require notarized, unconditional bond letters on contracts under $150,000. Indeed, there was a suggestion that some DOT Districts have dropped the requirement for certain contracts under $150,000. However, the bid documents in this case clearly required some proof that the bidder could acquire a performance and payment bond upon award of the Contracts. It was incumbent for all bidders to meet this requirement. It was arbitrary to delete this requirement after the bids were submitted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding the bids submitted by CPM to be non-responsive and rejecting those bids. Petitioner should enter into negotiations with SCA regarding the award of the contract. In the absence of a favorable negotiation, Petitioner should enter a Final Order rejecting all bids and opening the Contracts up for new bids. DONE and ENTERED this 24th day of March, 1992, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1992.
The Issue The issue is whether Kelly Services is the lowest responsive bidder on Bid No. 89-23 and should be awarded the bid.
Findings Of Fact On June 2, 1988, the School Board of Bay County issued Bid Request No. 89-23 for garbage collection services at thirteen locations. A quotation sheet was included in the bid package. The quotation sheet indicated the thirteen locations with a blank next to each location and a dollar sign in front of each blank where each bidder was to indicate its average monthly total charge for each location. There was also a quotation schedule where the bidder was to indicate the calculations which went into the total bid for each location. The bid request provided: The Board reserves the right to waive formalities and to reject any and all bids or to accept any bid or combination of bids deemed in the Board's best interest and the decision of the Board will be final. Bidders desiring that their bid be considered on an all-or-none basis, either in whole or part, shall so indicate. It is the intent of this bid request to secure prices and establish contracts for garbage collection services for the twelve schools specified herein and the District Maintenance Department. Awards will be made by location and will be based on an average monthly total charge as calculated on the quotation sheet. The bids were opened at 10:00 am., June 13, 1988, at the offices of the Bay County School Board. Three completed bid packages were submitted. Kelly Services, Argus and M&O each submitted a completed bid quotation sheet containing the bid for each location. M&O also submitted a letter which stated: We would like to submit this bid on an all- or-nothing basis as specified in paragraph four of the cover letter to the bid. For an estimated cost of $3,391.84. The quotation sheet and quotation schedule submitted by M&O did not reflect the all-or-nothing bid amount. Instead, the quotation sheet and quotation schedule showed a total bid of $3,738.24 when calculated by location. Based on the bids submitted by each bidder as shown on the quotation sheet add quotation schedules, Kelly Services was low bidder on five locations (Callaway, Tyndall, Waller, Southport, and Cedar Grove) ; Argus was low bidder on six locations (Parker, Hiland, Haney, Mosley, Beach and Merritt Brown); and M&O was low bidder on two locations (West Bay and the District Maintenance Department). Prior to the deadline for submitting bids, John Harrison, Purchasing Agent for the Board, responded to an inquiry from M&O by advising M&O that it could submit two bids, one as specified in the Bid Request by location and one as an all-or- nothing bid. No other bidders were advised that they could submit two bids. At the bid opening, M&O did not submit a quotation sheet or schedule for its all-or-nothing bid. A bid which did not have a breakdown per dump per container per facility would not be acceptable to the Board and does not meet the specifications in the Bid Request. The breakdown per dump per container per location is necessary to verify proper invoicing for specific locations on months when there is a change in the number of dumps or containers at that location. After opening the bids, the Board compiled the low bid for each location and then totaled that list. That total of $3,606.09 was greater than the all-or-nothing bid by M&O. Because M&O's all-or-nothing bid failed to meet the specifications by not having a location breakdown the Board contacted M&O to determine if its "estimated" bid was firm and to request a breakdown on the quotation schedule form for the all- or-nothing bid. On June 15, 1988, two days after the bid opening, M&O submitted a letter to the Board clarifying that its all-or- nothing bid was a firm bid for each location and M&O submitted a quotation schedule for each location per dump per container (see page 7 of Joint Exhibit 1 and the last page of Joint Exhibit 2). The charge for each location in this quotation schedule is different than the quotation schedule submitted by M&O at the bid opening and is for the most part lower per location than either M&O's first quotation schedule or the low bids taken from the quotation schedules submitted at the bid opening. Based on the letter and all-or-nothing quotation schedule filed by M&O on June 15, 1988, the Board determined to award the bid for garbage collection services to M&O for the all- or-nothing bid of $3,391.84.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that The School Board of Bay County enter a Final Order rejecting all bids and readvertising the bid request for garbage collection services as specified in Bid Request No. 89-23. DONE and ENTERED this 13th day of September, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-3768BID 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, Kelly Services: 1. Each of the following proposed findings of fact are 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: 1-3(1-3); 4-6(3); 7-11(7-11); and 12 (9) Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Bay County: Each of the following proposed findings of fact are 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(2); 3(10&11); and 5(8). Proposed findings of fact 6, 7, and 9 are irrelevant. The first sentence of proposed finding of fact 2 is unsupported by the competent, substantial evidence. The remainder of proposed finding of fact 2 is adopted in substance as modified in Finding of Fact 3. Proposed finding of fact 4 is rejected as being unsupported by the competent, substantial evidence. The last sentence of proposed finding of fact 5 is rejected as being argumentative, conclusory and unsupported by the competent, substantial evidence. Proposed finding of fact 8 is unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Argus Services, Inc.: Each of the following proposed findings of fact are 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: 2-4(1-3); 6-8(5); 9 & 10(6) 11(3); and 12(11). Proposed findings of fact 1 and 5 are unnecessary. Proposed findings of fact 13-17 are rejected as constituting argument and not findings of fact. COPIES FURNISHED: Jeffrey P. Whitton Attorney at Law Post Office Box 1956 Panama City, Florida 32402 Franklin R. Harrison Attorney at Law 304 Magnolia Avenue Panama City, Florida 32401 Scott W. Clemons Attorney at Law Post Office Box 860 Panama City, Florida 32402 School Board of Bay County Post Office Drawer 820 Panama City, Florida 32402-0820 M&O Sanitation, Inc. 266 N. Star Avenue Panama City, Florida 32404
The Issue Whether the School Board of Seminole County's, notice of intent to award Bid No. 102589, for air filter maintenance, service, and replacement to Filter Service and Installation Corporation was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Seminole County School District is a political subdivision of the State of Florida, created by Article IX, Section 4, Florida Constitution. The powers and duties of the school board are enumerated in Chapter 230, Florida Statutes. The Superintendent of the Seminole County School District is a constitutional officer, whose office is created by Article IX, Section 5, Florida Constitution. The powers and duties of the Superintendent are enumerated in Chapter 230, Florida Statutes. The Seminole County School Board issued a call for bids for air filter maintenance service and replacement under Bid No. 102589 on September 14, 1998. Bids were submitted by Con-Air Industries, Inc., the protester, and Filter Service & Installation Corp., the apparent low bidder. The bids were opened on September 28, 1998, and were evaluated. Each bidder was determined to be a responsible bidder to the CFB. Intervenor submitted the lowest numerical bid. On October 1, 1998, Respondent's staff recommended that the CFB be awarded to Intervenor. The decision to recommend the award of the filter service Bid No. 102589 complies with the bid specifications. The instructions to bidders, as stated on the Proposal Form, direct a bidder to total lines A-C and to enter the total at line D. The instructions state that a bidder is not to include the cost as stated at lines E & F in the total. The proposal form then states that the total cost, as stated at line D shall be used to determine the apparent low bidder. The bid proposal document stated that the total of the prices stated at items A, B, and C would be used to determine the lowest numerical bid. The bid proposal document stated that the Respondent reserves the right to negotiate unit cost proposed for item E. The line D total submitted by the Petitioner is stated at $3.45. The line D total submitted by the apparent low bidder, is stated at $2.60. Intervenor submitted the lowest numerical bid. Intervenor does business under the fictitious name Filter Sales & Service. That fictitious name has been registered with the Secretary of State for the State of Florida. Filter Service & Installation Corp., and Filter Sales & Service are one and the same. The reference by Intervenor at line F to "Per Price Sheet" and the failure of Filter Service & Installation Corp. to attach a price sheet to its proposal form is not a material deviation from the requirements of the bid specifications. The total at line D is the total used to determine the lowest bidder. Filter Service & Installation Corp. is the lowest and best bid from a responsive and responsible bidder. The Petitioner followed the procedure set forth in the bid proposal document in making a determination that the Intervenor was the lowest numerical bidder. Petitioner reserved the right to reject all bids and to waive any informalities. Petitioner failed to prove that the notice of intent to award the bid to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent award the contract for filter maintenance, service, and replacement under Bid No. 102589 to the Intervenor, Filter Service and Installation Corp., as recommended by its staff. DONE AND ENTERED this 11th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1998. COPIES FURNISHED: Robert N. Hering, President Con-Air Industries, Inc. 3055 Pennington Drive Orlando, Florida 32804 Ned N. Julian, Jr., Esquire Seminole County Public Schools Legal Services Department 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Robert W. Smith, Esquire 430 North Mills Avenue, Suite 1000 Orlando, Florida 32803 Dr. Paul J. Hagerty, Superintendent Seminole County Public Schools 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue Whether the Department acted illegally, arbitrarily, dishonestly, or fraudulently when it rejected all of the bids submitted in response to Invitation to Bid No. 97-023-OR. See Section 120.57(3), Florida Statutes (1997).
Findings Of Fact Petitioner ABS is an authorized dealer for Neopost, a manufacturer of mailing equipment. Petitioner is also a Certified Minority Business Enterprise, pursuant to Chapter 287, Florida Statutes. Prior to the subject Invitation to Bid, the Department issued a similar Invitation to Bid. That bid was initially awarded to Pitney Bowes, Inc., but Pitney Bowes, Inc., was unable to meet delivery requirements of that bid, and the Department decided to re-bid. The Department issued the subject ITB No. 97-023-OR on March 10, 1997. Pursuant to its terms, the bid opening was held on April 29, 1997. The subject ITB provides, in pertinent part, as follows: At page 3 of 11 MANDATORY REQUIREMENTS The state has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must", or "will" (except to indicate simple futurity) in this Invitation to Bid/Request for Purchase indicates a requirement or condition from which a material deviation may not be waived by the State. The words "should", or "may" in this /Request for Purchase to Bid [sic] indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (emphasis supplied) At page 6 of 11 MANUFACTURER REPRESENTATIVE Bidder must provide proof of authorized dealership for equipment specified and the beginning and ending term of authorization. (emphasis supplied) SERVICE . . . Service is to be provided direct from the manufacturer. Third party service is acceptable only if it may be demonstrated that the location that is to provide the service can demonstrate 36 months experience in servicing the model proposed. Failure to receive this certification will be sufficient cause for rejection of this bid. (emphasis supplied) The manual signature of Ms. Klusmeier on ABS's April 1997 Bid certified that the bid was in compliance with all requirements of the ITB, "including but not limited to, certification requirements." ABS is not a manufacturer of the mailing equipment it bid. In its Bid, ABS enclosed a certificate issued by the Department's Minority Business Advocacy and Assistance Office certifying that ABS was a Minority Business Enterprise (MBE) under the provisions of Chapter 287, Florida Statutes. However, ABS failed to specifically include proof of authorized dealership for the equipment specified with its bid. At all times material, the Department's MBE office had a copy of ABS' manufacturer-dealer agreement with Neopost (the manufacturer) and an ABS catalogue displaying all the Neopost bid items and stating that ABS is an authorized dealer for Neopost. However, this information was not part of the subject bid response package. Rather, it had been previously submitted by ABS to obtain MBE certification. It was not re-submitted as part of ABS' ITB response package. ABS has manufacturer's (Neopost's) authorized service centers in Florida. ABS intended that ABS and another authorized dealer would provide service in the State of Florida for the equipment it bid. However, ABS failed to include with its Bid a demonstration that either ABS or the other dealer had a minimum of 36 months' experience servicing the Neopost equipment. The November 1996 ITB had requested the same manufacturer and service information as the subject April 1997 ITB, and ABS responded in the same way to both ITB's. ABS was not ruled unresponsive in November 1996 on that basis. In April 1997, ABS also initially was treated as a responsive bidder. On May 1, 1997, the only two bids (ABS and Pitney Bowes, Inc.) were opened by one of the Department's Purchasing Specialists, Oradell Rollins. The Department posted its intent to award the bid to ABS. On May 5, 1997, Pitney Bowes, Inc., the only other bidder for the subject ITB, filed a timely Notice of Intent to Protest with the Department. Pitney Bowes, Inc., is a manufacturer and bidder which services its own products. The Department's Purchasing Office has never established a pattern of accepting an MBE Certificate in lieu of specified bid elements. The Department afforded Pitney Bowes, Inc., an informal protest procedure without notification to, or participation by, ABS. On May 16, 1997, upon request from the Department's Director of Purchasing, ABS immediately forwarded a letter to the Department from Neopost advising that ABS was an authorized Neopost dealer; that ABS and others had been certified by the manufacturer to service the mailing equipment ABS had bid for the subject ITB; and that ABS had been servicing Neopost equipment for more than 36 months. Ms. Rollins had previously requested this information just after bids were opened but had not indicated it was urgent. This type of information is not normally requested after bid opening. The Department's Purchasing Office considered waiving the missing information because its personnel had dealt satisfactorily with ABS on other contracts for a number of years, but such waiver is not the Department's usual procedure. On May 15, 1997, Pitney Bowes, Inc., timely filed with the Department its Formal Written Protest. Petitioner faults this letter's recitation that the Pitney Bowes, Inc., representative saw the alleged flaws in the ABS bid on the day that bids were opened. Petitioner proved that the Pitney Bowes, Inc., representative could not have seen ABS's bid on the day of the bid opening, but the same information could have been derived subsequently. Pitney Bowes' April 1997, Notice of Protest is not in evidence for comparison with its Formal Written Protest. No nefarious dealings or collusion necessarily flows from the foregoing findings of fact. Based upon a review of the Formal Written Protest of Pitney Bowes, Inc., and upon advice of the Department's General Counsel, the Department determined that ABS's bid on the subject 1997 ITB was, in fact, nonresponsive because, when opened, it had failed to contain "proof of authorized dealership," and also had failed to include the required "certification" on "Third Party Service." On May 22, 1997, the Department sent a letter to ABS advising ABS of the Department's decision and further advising that the Department intended to re-bid for the equipment. ABS received the Department's letter on May 27, 1997. The Department's decision to re-bid instead of to award to Pitney Bowes, Inc., was in part determined by its desire to avoid situations in which there is only one responsive bidder. It was also influenced by Departmental concerns that the Pitney Bowes, Inc., bid was much higher than the disqualified ABS bid. Departmental personnel believed that a re-bid would secure a lower cost to the Department. ABS timely filed its Notice of Intent to Protest and its Formal Written Protest. Pitney Bowes, Inc. was given notice of the referral of Petitioner's protest to the Division of Administrative Hearings and chose not to intervene. ABS established that it currently provides mailing equipment for the Department all over the State of Florida and that it coordinates service for that equipment through a Neopost network in all those locations. However, ABS did not establish that it has provided or serviced exactly the same type of equipment for the Department at each of these locations, as ABS bid in April 1997. Over time, ABS has dealt with Purchasing Specialist Oradell Rollins on these other Departmental Contracts. Prior to the subject 1997 bid opening, Mr. Bowls, ABS's "Neopost Government Specialist," had informed her that ABS covered the State of Florida for Neopost. Ms. Rollins had received an ABS catalogue and ABS's MBE Certificate in connection with ongoing business prior to the April 1997 bid opening. ABS does not perceive that ABS using other dealers certified by the manufacturer (Neopost) constitutes ABS using "Third Party" service agents, nor does ABS consider itself to be a "Third Party," as that term is used in the subject ITB. However, the Department has consistently interpreted "Third Parties" to include any dealers who are not simultaneously manufacturers and bidders, and its ITBs require bidders who are not also manufacturers to demonstrate within their Bid that each service location is certified and has 36 months' experience at the time of bid opening.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a Final Order dismissing the protest of American Business Systems and establishing a time frame in which its Invitation to Bid may be relet. RECOMMENDED this 24th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1997. COPIES FURNISHED: Linda Klusmeier, Qualified Representative American Business Systems 8638 Phillips Highway, Room 12 Jacksonville, Florida 32256 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, South East 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, South East 303 Hartman Building Tallahassee, Florida 32399-2152
Findings Of Fact By Invitation to Bid for Lease NO. 590:1944, Respondent invited lease proposals for approximately 15,206 square feet of office space "located within the following boundaries: On the North, Aloma Avenue/Fairbanks Avenue the East, Semoran Boulevard the South, Colonial Drive, and on the West, Mills Avenue." The geographic area includes as many as 100 office buildings, although the invitation only generated three bids. The Invitation to Bid announced a Pre-Bid Conference on December 22, 1987. Interested parties were directed to contact Linda N. Treml, whose telephone number was provided, for "bid specifications and information regarding the space." The Invitation to Bid stated that "[a]ny questions concerning this project are to be directed to [Ms. Treml]" and "prospective bidders are encouraged to consult with [Ms. Treml] beforehand in an attempt to enable as correct a bid submittal as possible." The Invitation to Bid required that certain attachments accompany the bid proposal and referred the prospective bidder to paragraph 9 of the Bid submittal Form. The required attachments included a scaled floorplan "showing present configurations with measurements," net rentable square footage calculations using floorplan measurements, and a preliminary site layout. The Invitation to Bid stated that Respondent reserved the right to waive any minor informalities or technicality and seek clarification" of bids received, when such is in the best interest of the state. Responding to Respondent's newspaper advertisement and direct-mail solicitation for bids, James W. Boyle, who is a real estate broker active in leasing and property management, requested from Ms. Treml an Invitation to Bid and Bid Submittal Form. Mr. Boyle regularly reviews announcements of forthcoming leasing activity by state agencies. If he is aware of a building that appears to meet the agency's requirements, he contacts the building's owner or manager and informs him or her that he may have a prospective tenant. After receiving the bid materials for Lease No. 590:1944, Mr. Boyle contacted Kathryn Doyle, who is the leasing manager of Petitioner, and learned that Petitioner could accommodate Respondent's space needs for the term sought in the Lakeview 436 office building. Mr. Boyle assisted Ms. Doyle in the preparation of the Bid Submittal Form for Petitioner. In his first conversation with Ms. Doyle, Mr. Boyle ascertained that Petitioner's building carried a Semoran Boulevard street address and in fact had direct access to Semoran Boulevard. Petitioner's building lies on the east side of Semoran Boulevard, which serves as the eastern boundary of the geographic area described in the Invitation to Bid. Three bids were submitted in response to the subject Invitation to Bid. When they were opened, Ms. Treml and her supervisor, George A. Smith, determined that bids of Petitioner and a third party were nonresponsive because their office buildings were outside the geographic area specified in the Invitation to Bid. These bids were not considered further. Mr. Boyle had previously represented the owners of the FARE building several months earlier in a bid for Lease No. 590:1895. The Invitation to Bid in that case, which was issued by Respondent and named Ms. Treml as the contact person, provided that the proposed office space must be located within the following boundaries: Beginning at the intersection of US 17-92 and Colonial Drive, then west on Colonial Drive to the intersection of Edgewater Drive, then north on Edgewater Drive to the intersection of Kennedy Blvd. . ., then east on Kennedy Blvd. . . . to the intersection of US 17-92, then south on US 17- 92 to the point of beginning." Although Mr. Boyle's client was not awarded Lease NO. 590:1895 for reasons not relevant here, his client's bid, as well as the bid of another unsuccessful bidder owning a building on the east side of the highway serving as the east boundary of the geographic area, were considered responsive and thus within the specified geographic area. Ms. Treml interpreted the boundary description in Lease NO. 590:1944 differently from the boundary description in Lease NO. 590:1895. The description for Lease NO. 590:1895 defined the boundaries by "beginning" at a certain intersection, then proceeding "on" a highway, and so on. The description for Lease NO. 590:1944 defined the boundaries by identifying landmarks "on the north," then the "east," and so on. At the time of assisting in the preparation of Petitioner's bid, Mr. Boyle was also aware of an Invitation to Bid issued by Respondent for Lease NO. 590:1875. In this case, Respondent specified office space "in the following area of Brevard County, Florida: Beginning at the intersection of U.S. Highway 1 and State Road 50, then West on SR-50 to the intersection of 1-95, then North on 1-95 to the intersection of SR-406 . . . then East on SR-406 to the intersection of U.S. 1, then South on U.S. 1 to the point of beginning." In the case of Lease NO. 590:1875, the bid contact person, Lynn Mobley, issued a clarification letter stating that any building located on either side of the boundary road with an address on the boundary road would be considered to be within the boundary. Ms. Mobley and her supervisor, Ernest Wilson, who are Respondent's District 7 Facilities Services Assistant Manager and Manager, respectively, have consistently advised potential bidders that a building located on a boundary highway is included in the geographic area even though it would be outside the area if the dividing line were the centerline of the highway. Mary Goodman, Chief, Bureau of Property Management of the Department of General Services, testified that, in the course of her review of leasing activities by various state agencies, she has historically guided agencies that, if a building abuts a boundary highway but is not, strictly speaking, within it, the agency "could waive that as a minor technicality and consider it a responsive bid." Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner spoke to Ms. Goodman prior to submitting the subject bid proposal. Ms. Treml customarily waives minor irregularities in bid submittals. However, she does not treat the location of a building outside the geographic area as a minor irregularity. To do so would be unfair to owners of other buildings outside the geographic area who took the geographic description at its face value and never submitted bids. Ms. Doyle received the bid materials from Mr. Boyle after the Pre-Bid Conference had taken place. However, Mr. Boyle elected not to attend the Pre- Bid Conference at which Ms. Treml explained, among other things, her interpretation of the specific geographic area. He chose not to attend because he felt that he would not learn anything relevant at the conference, which was attended by a representative of Intervenor. Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner contacted Ms. Treml prior to submitting Petitioner's bid. Mr. Boyle, whose compensation in this case is entirely contingent upon a successful bid, estimates that he spent about 20 hours working on Petitioner's bid. Ms. Doyle estimates that she spent about 40 hours working on the bid. Petitioner also spent $800 in obtaining an "as-built" drawing of the space that accompanied its proposal. By letter dated February 22, 1988, Respondent notified the bidders of its decision to award the lease contract to Intervenor. Petitioner filed a notice of intent to protest the award by letter dated February 24, 1988. Ms. Treml met Mr. Boyle and Ms. Doyle on March 1, 1988, and cited the location of Petitioner's building as the only reason for the determination of nonresponsiveness. The attempt at mediation having failed, Petitioner filed a formal written protest of the award by letter dated March 3, 1988. Petitioner attached to its bid proposal an "as-built" drawing. Although drawn to scale, the drawing did not bear the measurements of the then- present interior tenant improvements, mostly walls, nor did it disclose on its face any calculations showing how the rentable area was computed from the gross area. These omissions were due to Mr. Boyle's advice to Ms. Doyle that such information would be unnecessary in this case. The omissions from Petitioner's "as-built" drawing were rendered less critical by the fact that Respondent would have the right under the lease to require the landlord, at its expense, to remove the present improvements and re- configure the space to Respondent's demands. However, one purpose of the floorplan is to show where the space is located within the building. Another purpose is to verify the rentable area calculation by showing the measurements of items, such as restrooms, that should not be included in the rentable area for which Respondent is charged rent. The drawing is supposed to show the rentable area computation. Additionally, even though Respondent could insist on a total renovation of the premises, Respondent might wish to evaluate whether it could use a portion of the existing space in order to reduce the possibility of construction delays. George A. Smith, the Senior Management Analyst for Respondent who reviewed Ms. Treml's determination of nonresponsiveness prior to the award of the subject lease, testified that the deficiencies in Petitioner's "as-built" drawing were not a "minor irregularity."
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.
Findings Of Fact The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close. No requests were made to the Department to place its explanation in writing and no written interpretation was provided. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not.. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.
Findings Of Fact Respondent advertised for bids for work to be performed on the Statewide Regional Juvenile Detention Center located in Pasco County identified as Project Number HRS 85-300000. In response to this advertisements Petitioner and Intervenor timely submitted bids on January 23, 1966. According to calculations performed by Respondent, Petitioner was low bidder and Intervenor was the next lowest bidder. The construction budget for this job is $1.5 million, and both bids are considered by Respondent to be within budget. Depending on the alternatives chosen within each bid, Petitioner's bid is lower than Intervenor's by between approximately $6,000 and $40,000. Section B-14 of the advertisement for bids requires each bidder to submit a list of the subcontractors who will perform work on the job for him and specifies that only one subcontractor shall be listed for each phase of the work. Section D of the advertisement for bids specifies the work areas for which a subcontractor must be listed and states that said list is an integral part of each bid submitted. The subcontracting areas include electrical plumbing, mechanical, roofing security control systems, food service equipment and fire protection. Petitioner's bid was rejected on February 4, 1986, because its bid failed to include a roofing subcontractor's name as required in the advertisement for bids. Petitioner does not dispute that its bid was incomplete when submitted since it failed to identify a roofing subcontractor. However, Petitioner contends this omission was a result of clerical error in typing the bide and that, in fact, it had selected Republic Roofing as its subcontractor. John Breen, Petitioner's project manager, testified that it was his intent to use Republic Roofing when he submitted the bide that he had a firm bid from Republic Roofing, and that when this omission was brought to his attention after bids were opened, he identified Republic Roofing in writing on January 24 and 29, 1986, to Brian Seufert an intern architect working for Respondent's project architect. Seufert confirms Breen's testimony through affidavit jointly filed by the parties. Seufert indicates that the project architect has no reason to believe that Petitioner could not perform the work required by the project. By affidavit jointly filed by the parties, Joyce Kleja secretary for Petitioners also supports Breen's testimony about her clerical error in omitting the roofing subcontractor when she typed the bid. Ray Scerbo, an estimator for Republic Roofing, disputes the testimony of Breen through jointly filed affidavit. Scerbo indicates it was not until a couple of days after the bid opening that he was told by Petitioner that Republic Roofing "had the job" if Petitioner was awarded the contract. This conflicts with the first written notice from Breen to Seufert dated January 24, 1986, as well as Seufert's affidavit that Petitioner told Seufert on January 24, 1986, that Republic Roofing had been selected. Scerbo is no longer employed by Republic Roofing. After considering all of the evidence, it is specifically found that Petitioner's omission of Republic Roofing from its list of subcontractors was through clerical error and that Petitioner had firmly decided to use Republic Roofing for subcontracting work prior to submission of its bid. The advertisement for bid required all subcontractors to be listed in any bid in order to allow Respondent to review prior performance and licensure of subcontractors, and also to prevent "bid shopping". Bid shopping is a practice which inflates a general contractor's bid and therefore the actual award by encouraging subcontractors to initially submit high bids to the general contractor and then negotiate a lower price with the general contractor who has received the award. The general contractor's bid remains inflated however and in this way the cost to the state is increased.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order awarding Project Number HRS 85-300000 to Intervenor. DONE and ENTERED this 1st day of April 1986, at Tallahassee Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of April 1986. APPENDIX (DOAH CASE NO. 86-0495B1D) Petitioner has submitted a memorandum and a Proposed Recommended Order, both of which appear to set forth proposed findings of fact in unnumbered paragraphs. For purposes of ruling thereon, the unnumbered paragraphs which appear to set forth proposed findings have been consecutively numbered. Memorandum: Introductory material and not a proposed finding of fact. Adopted in part in Findings of Fact 1, 2, 3, 4, but otherwise rejected as cumulative and unnecessary. Adopted in Findings of Fact 5, 7. Rejected as simply a summary of testimony and evidence and not a proposed finding of fact. Rejected as irrelevant. Adopted in part in Findings of Fact 5, 6. Adopted in part in Finding of Fact 4, but rejected in part in Finding of Fact 2 and otherwise rejected as not based on competent substantial evidence. Proposed Recommended Order: Adopted in part in Findings of Fact 1, 3, but otherwise rejected as unnecessary and irrelevant. Rejected as irrelevant. Adopted in part in Finding of Fact 2, but otherwise rejected as contrary to Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 7. Adopted in Finding of Fact 4. Rulings on Respondent's and Intervenor's jointly filed Proposed Findings of Fact: Adopted in Findings of Fact 1, 3. Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 8. , 6. Adopted in Findings of Fact 6, 7. COPIES FURNISHED: Dennis R. Long Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Sam Powers Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 William Page; Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 John P. Fons Esquire Post Office Drawer 11307 Tallahassee, Florida 32302
