The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Close Construction, Inc. (Petitioner), (Close) was the lowest responsive and responsible bidder in the Request For Bid (RFB) Number 6000000262, whether the subject contract should be awarded to the Petitioner, and, concomitantly, whether the Respondent agency's decision to award the contract to the Intervener, Worth Contracting, Inc. (Worth) was clearly erroneous, contrary to competition, arbitrary or capricious.
Findings Of Fact The South Florida Water Management District is a public corporation authorized under Chapter 373, Florida Statutes. It issued a request for bids for the refurbishment and automation of certain facilities in Broward County, Florida. Close is a construction company duly authorized to do business in the state of Florida. It was one of the bidders on the procurement represented by the subject request for bids and is the Petitioner in this case. This dispute had its beginnings on June 5, 2009, when the Respondent issued RFB number 6000000262. The RFB solicited construction services for the refurbishment and automation of two facilities in Broward County. The procurement would involve the installation of new direct-drive electric pumps at the Respondent's G-123 Pump Station in Broward County, along with the construction of an equipment shelter and the replacement of a retaining wall with a poured concrete retaining wall, as well as refurbishment of "pump flap gates." The RFB also requested construction services for the replacement of gates at the Respondent's S-34 water-control structure in Broward County. Both facilities would thus be automated so that they can be remotely operated from the Respondent's headquarters in West Palm Beach. After issuance of the RFB, two addenda were supplied to vendors and were posted. The first addendum was posted on or about June 19, 2009, concerning a change in specifications for flap gates and is not the subject of this dispute. Addendum No. Two was electronically posted on or about June 30, 2009. It amended the technical specifications of the RFB by deleting Section 11212 regarding measurement of payment of electric motors/belt-driven axial flow pumps. That addendum also added a new measure and payment to Subpart 1.01 of the technical specifications to provide for an owner-directed allowance of $40,000.00 to provide for the potential need for certain electrical utility work to be done by FPL in order to complete the project. Addendum No. Two added an additional term to the RFB in providing that the $40,000.00 allowance price "Shall be added to the other costs to complete the bid." The second Addendum also stated, "The allowance price shall be used at the discretion of the District and, if not used, will be deducted from the final Contract Price." That addendum also directed bidders to replace the original Bid Form 00320-2, which had been enclosed with the RFB, with a new Bid Form, 00320R1-2. The new Bid Form is identical to the original form except that the schedule of bid prices contained in paragraph four, on page 003201-2, was altered to itemize the $40,000.00 discretionary cost allowance. The original form had contained a single line for the bidder's lump sum bid price, whereas the revised form provided for a lump sum bid amount to be itemized and a base bid amount, which required the bidder to enter on the form the amount of its bid, then add the discretionary cost amount and write the sum of those two numbers on a third line. In paragraph four of the new bid form there is re- printed language concerning the use of the discretionary allowance which appeared on the face of Addendum No. Two. Other than the change to paragraph four and the alteration of the page numbers to include an "R" in the page number, the revised bid form is identical to the original bid form. The other bid documents were not altered in any manner by Addendum No. Two. The deadline for bid submissions was Thursday, July 9, 2009, at 2:30 p.m. The Petitioner timely submitted its bid to the District. In submitting its bid however, the Petitioner used the original bid form which had been enclosed with the RFB. The bid form submitted was an exact copy of the bid form furnished by the District which Close had printed from the electronic copy of the RFB received from the District. The Petitioner did not substitute the revised bid form, attached to Addendum No. Two, for the original form in submitting its bid. The Petitioner's bid was deemed non-responsive by the District and was rejected on the basis that Close had failed to submit the bid on the revised form required by Addendum No. Two. Thereafter, the District, at its August 13, 2009, meeting, approved award of the bid to Worth. The intent to award was posted electronically on or about August 14, 2009. The persuasive evidence establishes that Close received both addenda to the bid documents. It was aware of the Addendum No. Two, and it accounted for all of the changes to the technical specifications made in both addenda in the preparation of its bid. The evidence shows that Close was aware of the $40,000.00, owner-directed cost allowance and that it incorporated it in the formulation of its total bid price. Thus, Close's final bid amount was $3,751,795.00. That number included the $40,000.00 cost allowance at issue, added to the bid documents by Addendum No. Two. The internal bid work sheets, prepared by personnel of Close, identified and itemized the $40,000.00 discretionary cost allowance as a component of the final bid price. The persuasive evidence thus establishes that Close's final bid amount did include the $40,000.00 cost allowance. Moreover, the written notes of witness Christopher Rossi, the estimator for Close, show the $40,000.00 amount as an "FPL Allowance." Both Mr. Rossi and Mr. Boromei, the Vice President for Close, who prepared the bid, explained that the $40,000.00 was understood by Close to be a cost allowance, that it would only be charged to the District to the extent that it was actually used, at the District's discretion. If it were not used, it was to be deducted from the overall contract price. Addendum Two specifically provides that the discretionary cost allowance was to be used only at the discretion of the District and that the unused portion would be deducted from the contract amount. When Close submitted its bid it mistakenly submitted it on the original bid form and failed to exchange the bid forms as directed in Item Two of Addendum No. 2. In paragraph one of both bid forms, however, the bidder is required to specifically fill out, acknowledge and identify all addenda. By doing so the bidder expressly agrees to build the project in conformance with all contract documents, including all addenda, for the price quoted in the bid. Close completed this paragraph, specifically identified both Addendum One and Addendum Two, and specifically agreed to strictly conform, in performance of the work to the plans, specifications and other contract documents, including Addendum Nos. One and Two. Paragraph one was not changed by the addition of Addendum No. Two and it is identical in both the original and the revised forms at issue. Paragraph one of the original and the revised bid forms constitutes an agreement by the bidder to perform and construct a project "in strict conformity with the plans, specifications and other Contract Documents. . . ." The addenda are part of the contract documents and are expressly referenced as such in this agreement. Both bid forms, the original and the revised, include paragraph eight, which clearly states that the bidder will post a bid bond to secure and guaranty that it will enter into a contract with the District, if its bid is selected. Paragraph eight was unchanged by Addendum No. Two and its terms are identical in both Bid forms at issue, including the form that Close signed and submitted as its bid. The persuasive evidence shows that in submitting its bid, whether on either form, Close committed itself to the identical terms as set forth in the identical contract documents agreed to by Worth and the other bidders. The evidence established that Close intended to bind itself to the terms of the RFB, and all terms of Addendum No. Two, including the discretionary cost allowance term. Close considered itself bound to enter into a contract for the price of its bid if selected by the District. It likewise considered that the price of its bid, would only include the cost allowance if the discretionary allowance was implemented by the District. Upon the opening of the bids, the firm of Cone and Graham, Inc., was identified as the lowest bidder. Cone and Graham's bid was in the amount of $2,690,000.00. Close was the second lowest bidder, with a bid of $3,751,795.00. The third lowest bidder was Worth Contracting, Inc., with a bid of $3,898,410.00. Cone and Graham was allowed to provide additional information and to even meet with some District staff following the opening of its bid. The additional information it was allowed to provide concerned technical specifications of the pumps proposed in its bid. Through this verification process conducted with the Agency, Cone and Graham ultimately convinced the District to permit them to withdraw its bid without forfeiting their bid bond. This left the Petitioner, Close, the lowest bidder, at $146,615.00 less than the bid submitted by Worth, the initially-awarded bidder. Close's bid, upon review, was rejected as non- responsive due to its failure to exchange the original Bid form with the revised Bid form, as indicated above, in spite of the fact that Close had also agreed to adhere to the entirety of Addendum No. Two on the face of the Bid form. Thus the recommended award to Worth for the above-referenced additional amount of bid price was adopted by the District, engendering this protest. James Reynolds, the Contracts Specialist for the District, conceded that it was apparent on the face of Close's bid that a mistake had been made in the use of the original form, rather than the revised form. He conceded there was an inconsistency between Close's clear acknowledgement of and agreement to the terms of the contract documents, which expressly included Addendum No. Two and Close's apparent mistaken use of the original Bid form. Under the express terms of Article 19.03 of the RFB, "The Bid shall be construed as though the addendum(a) have been received and acknowledged by the bidder." Mr. Reynolds admitted, however, that he did not apply the terms of Article 19.03 of the RFB in his review of Close's bid and did not construe the bid in the manner provided in the RFB to resolve the apparent inconsistency. He reasoned that Close had used the wrong bid form and looked no further. The District's Procurement Manual provides a procedure whereby a bidder may correct inadvertent mistakes in its bid. Under the terms of Chapter 5-5 of that manual, where the District knows or has reason to conclude, after unsealing of bids, that a mistake may have been made by a bidder, the District "shall request written verification of the bid." In such a circumstance the bidder "shall be permitted the opportunity to furnish information in support of the bid verification as long as it does not affect responsiveness, i.e., the bid substantially conforms to the requirements of the RFB as it relates to pricing, surety, insurance, specifications and any other matter unequivocally stated in the RFB as determinant of responsiveness." See Joint Exhibit 7,6 pages 61 and 62, in evidence. Mr. Reynolds admitted in his testimony that he did not follow the procedure set forth in the manual for verifying a bid because, in his view, that would be allowing an impermissible supplementation of Close's bid. Ms. Lavery, in her testimony, in essence agreed. The Procurement Manual expressly required the District, upon recognizing the mistake and an inconsistency apparent on the face of Close's bid, to verify that bid and to provide Close with the opportunity to furnish information in support of bid verification. Thus, by the express terms of the manual, a bidder must be given an opportunity to clarify mistakes. The Procurement Manual expressly permits a bidder under these circumstances to correct any "inadvertent, non- judgmental mistake" in its bid. Chapter 5 of the Manual provides that "a non-judgmental mistake" is a mistake not attributable to an error in judgment, such as mistakes in personal judgment or wrongful assumptions of contract obligations. Inadvertent technical errors, such as errors of form rather than substance, are considered non-judgmental errors." See Joint Exhibit 7, page 62, in evidence. It is patently apparent that Close's use of the original bid form, inadvertently, while also unequivocally acknowledging and agreeing to the entirety of Addendum No. Two, represented a non-judgmental mistake. Both of the District witnesses, however, testified that the policy regarding mistakes was not followed and Close was not given an opportunity under the District's policy to provide additional information to support verification of the bid. Although Close failed to substitute the revised Bid form for the original Bid form, as called for by Addendum No. Two, its bid was substantively responsive to the technical specifications and requirements of the RFB, and the irregularity is technical in nature. The parties stipulated that the use of the original form, rather than the revised bid form, was the sole basis for Close being determined to be non-responsive by the Agency. In accordance with Florida Administrative Code Rule 40E-7.301, in Chapter 5 of the District's Procurement Manual, the District reserves the right to waive minor irregularities in a bid. A material irregularity is defined by the District's policy as one which is not minor in that it: (a) affects the price, quality, time or manner of performance of the service such that it would deprive the District of an assurance that the contract will be entered into, performed and guaranteed according to the specified requirements; (b) provides an advantage or benefit to a bidder which is not enjoyed by other bidders; or (c) undermines the necessary common standards of competition. See Joint Exhibit 7, page 58, in evidence. The preponderant, persuasive evidence shows that the irregularity in Close's bid did not affect the price of the bid or truly deprive the District of assurance that the contract would be entered into and performed according to all the terms of the RFB, including addenda. The evidence established that Close actually included the $40,000.00 discretionary cost allowance in its final bid price. It merely did not show it as a separate itemization, because it did not use the revised form providing that itemization line. The fact that the discretionary allowance was itemized in the revised bid form, as part of the bid amount, does not equate to an effect on the contract price as a result of Close's using the original Bid form. Close's error, by mistakenly submitting its bid on the original bid form, did not alter the price of its bid. The evidence clearly established that the bid price for Close's bid would be the same regardless of which form it used. Moreover, the preponderant, persuasive evidence establishes that the use of the original Bid form by Close did not deprive the District of assurance that the contract would be performed in accordance with the all bid documents. Close's bid, secured by its bid bond, clearly acknowledged and agreed to the express terms of Addendum No. Two in their entirety, which included the terms under which the discretionary cost allowance could be applied. Close considered itself bound to the terms of the RFB and assured the Agency that it was so bound by the written acknowledgement and agreement it submitted to the Agency as part of its bid, concerning the elements of Addendum No. Two. The evidence demonstrated that Close understood that the $40,000.00 amount was a discretionary cost allowance and that Close would not be entitled to it unless the District decided to use it. Despite the opinion of Agency witnesses to the contrary, the error in Close's bid was a technical one and non- material because it did not confer a competitive advantage upon Close. Close's use of the wrong form did not alter the price of its bid. Its mistake in the use of the original bid form could only change the relative, competitive positions of Close and Worth if the amount of the discretionary cost allowance was greater or equal to the difference between those two bids, i.e., the $146,650.00 amount by which Worth's bid exceeded the bid of Close. 1/ The bid of Worth exceeds Close's bid by an amount far greater than the amount at issue in the discretionary cost allowance identified in Addendum No. Two and expressly itemized in the revised Bid form, i.e. $40,000.00. The District contends that Close gained some competitive economic advantage over other bidders by having the means by which it could optionally withdraw its bid, based upon alleged non-responsiveness, in not substituting the revised Bid form which would contain the itemization of the $40,000.00 cost allowance. It is difficult to see how it could gain a competitive advantage versus other bidders through some perceived ability to deem itself non-responsive, at its option, and withdraw its bid, thus denying itself the contract. The competitive bidding laws are designed to prevent a firm from gaining a competitive advantage in obtaining a contract versus the efforts of other bidders, not in depriving itself of the opportunity to get the work. Moreover, concerning the argument by the District that this may confer the advantage to Close of allowing it to withdraw its bid at its option and still obtain a refund of its bid bond; even if that occurred, it would not confer a competitive advantage vis-à-vis other bidders. It would merely involve a potential pecuniary advantage to Close's interest, versus that of the Agency itself, which obviously is not a bidder. Moreover, it should again be pointed out that Cone and Graham was allowed to provide additional information concerning its bid elements, and even to meet with the District staff, following the opening of the bids. It was then allowed to withdraw its bid without forfeiting its bid bond. If the District had inquired, by way of verification of Close's bid, as to whether the discretionary cost amount was included in it's bid, that inquiry does not equate to allowing Close to unlawfully supplement its bid. Indeed, if in response to such an inquiry, Close announced that the discretionary allowance was not included in its bid, its bid at that point would be materially non-responsive to the specifications. If Close was then allowed to supplement its bid by changing its price to add the allowance, such would indeed be an unfair competitive advantage and a violation of law on the part of Close and the Agency. The evidence does not show that such happened or was proposed by any party. If a verification inquiry had been made and Close announced that, indeed, its bid price did include the subject discretionary cost allowance, without further response to the specifications being added, then no competitive advantage would be afforded Close and no legal violation would occur. In fact, however, as pointed out above, the verification request, pursuant to the District's policy manual, was never made. This was despite the fact that the District's witness, Mr. Reynolds, acknowledged that the use of the original bid form was an apparent mistake on the face of the bid, when considered in conjunction with Close's express agreement to construct the project in strict conformance with all contract documents, and particularly with regard to Addenda Numbers One and Two. The non-judgmental mistake, involving use of the original bid form in lieu of the revised bid form, could have been easily clarified by a verification inquiry. That policy was not followed, based solely on the fact that the wrong bid form was used, even though the preponderant, persuasive evidence shows that in all material and substantive respects the bid was a conforming, responsive bid and included in its price the discretionary cost allowance. The preponderance of the evidence shows that the mistaken use of the original Bid form was a non- material irregularity under the District's policies and the terms of the RFB. The District's actions in failing to uniformly apply its own bid verification policy when, in fact, it had allowed verification to one of the other bidders, and when, according to its own witness, it perceived an apparent mistake, was clearly erroneous. It is true that Close may not supplement its bid by changing material terms, but it is permitted to verify whether, in light of the mistaken use of the original Bid form, its bid price, as submitted, included the $40,000.00 discretionary allowance or not. Providing such "yes or no" type of additional information in order to clarify, and only clarify, information already submitted in the bid, in response to an inquiry by the District does not constitute "supplementation" of the bid for purposes of Section 120.57(3)(f), Florida Statutes (2008). NCS Pearson, Inc. v. Dept of Education, 2005 WL 31776, at page 18 (DOAH, Feb. 8, 2005). Even without verification of the bid, the bid on its face agrees to compliance with all terms and specifications, including Addendum No. Two. It is thus determined that there is no material irregularity. The bid submitted by Close does not afford it any competitive advantage vis-à-vis the other bidders and it is responsive.
Recommendation Having considered the foregoing Findings of Fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the South Florida Water Management District, awarding the subject contract for RFB 6000000262 to the Petitioner herein, Close Construction, Inc. DONE AND ENTERED this 5th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2010.
The Issue The issue in this proceeding is whether the award of a bid for the sale of scrap metal to Cumbaa Enterprises, Inc. was arbitrary, capricious, clearly erroneous, or contrary to competition or the bid specifications.
Findings Of Fact On January 19, 2011, the Department issued Invitation to Bid (ITB) #10-Apalachee-8252. The ITB was a revenue- generating contract for the sale of scrap metal at Apalachee Correctional Institution in Sneads, Florida. Since the contract would generate revenue to the State, the Department’s purpose was to award the contract to the highest responsive bid and developed bid specifications and criteria to accomplish that goal. The specifications for the ITB stated in relevant part: Material Deviations: The Department 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 ITB indicates a requirement or condition which may not be waived by the Department except where the deviation therefrom is not material.[emphasis added]. A deviation is material if, in the Department’s sole discretion, the deficient response is not in substantial accord with this ITB’s requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. Minor Irregularity: A variation from the ITB terms and conditions which does not affect the price of the bid or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the Department. 1.10 Responsive Bid: A bid submitted by a responsive and responsible vendor that conforms in all material respects to the solicitation. * * * 4.3.1 Submission of Bids Each bid shall be prepared simply and economically, providing a straightforward, concise delineation of the bidder’s capabilities to satisfy the requirements of this ITB, fancy bindings, colored displays, and promotional material are not desired. Emphasis in each bid must be on completeness and clarity of content. In order to expedite the review of bids, it is essential that bidders follow the format and instructions contained in the Bid Submission Requirements (Section 5), with particular emphasis on the Mandatory Responsiveness Requirements. Rejection of Bids The Department shall reject any and all bids containing material deviations. The following definitions are to be utilized in making these determinations. Material Deviations The Department 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 ITB indicates a requirement or condition which may not be waived by the Department except where the deviation therefrom is not material. A deviation is material if, in the Department’s sole discretion, the deficient response is not in substantial accord with the ITB’s requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. Minor Irregularities A variation from the ITB terms and conditions which does not affect the price of the bid or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the Department. As indicated, Section 5 of the specifications outlined the contents of the bid. Section 5 stated in relevant part: SECTION 5 - CONTENTS OF BID This section contains instructions that describe the required format for the submitted bid. Bids shall be submitted in a sealed envelope, clearly marked “Bid - ITB#- Apalachee-8252”. . . . . [T]he following paragraphs contain instructions that describe the required format for bid responses. Responsiveness Requirements The following terms, conditions, or requirements must be met by the bidder to be considered responsive to this ITB. Failure to meet these responsiveness requirements may cause rejection of a bid. [emphasis added]. Bidder shall complete, sign and return the ITB Bidder Acknowledgement Form (page 1 & 2). The bidder must return either the original or a copy of both pages with an original signature on page one (1). The bidder shall complete, sign, date, and return (all) pricing pages, entitled Cost Information Sheet, which consists of page 28. By submitting a bid or bids under this ITB, each bidder warrants its agreement to the prices submitted. The Department objects to and shall not consider any additional terms or conditions submitted by a bidder, including any appearing in documents attached as part of a bidder’s response. In submitting its bid, a bidder agrees that any additional terms or conditions, whether submitted intentionally or inadvertently, shall have no force or effect. Any qualifications, counter-offers, deviations, or challenges may render the bid un-responsive . . . . * * * 5.3 Certificate of Insurance Bidders shall return a fully executed Certificate of Insurance . . . . In this case, Section 5.1 contains two bid specifications essential to a bid's responsiveness. Those two requirements were submission of a signed and completed, original or copy, of the bidder acknowledgement form and submission of a completed Cost Information Sheet. The Cost Information Sheet is not at issue here. The bidder acknowledgement form is a double-sided Department of Management Services form containing general boilerplate contractual language. The back of the form is a continuation of standard contractual terms from the front. Oddly, signatures acknowledging these terms and the terms of the ITB are on the front page (page 1) of the form. By signing the front page of the bidder acknowledgement form the bidder agrees to abide by all conditions of the bid. The remainder of Section 5 of the ITB contains bid specifications that are not considered essential to determine the initial responsiveness of the bid at the bid opening, but are to be returned at some later point in time after the bid's are opened. However, the language of Section 5 effecting that intent is unclear. In particular, the bid specification contained in Section 5.3 requires the bidder to "return" an "executed" Certificate of Insurance. The Certificate of Insurance provides the Department with proof of a variety of required insurance coverage of the vendor. However, later in the ITB Section 7.14 clarifies that the Certificate of Insurance need only be supplied with the later-signed contract documents. Section 7.14 states, in relevant part: 7.14 Contractor's Insurance The contractor shall not commence any work in connection with this ITB . . . until he has obtained all of the . . . types of insurance and such insurance has been approved by the Department. The Department shall be furnished proof of coverage of insurance by Certificates of Insurance . . . accompanying the contract documents and shall name the Department as an additional named insured [emphasis added]. Indeed, the evidence demonstrated that the Department has long interpreted these provisions to require a winning bidder to provide Certificates of Insurance at the time a contract is entered into and not as part of the essential requirements of the bid due at bid opening. While the Department could (and probably should) clarify this provision, its interpretation of its bid specifications is not unreasonable under these facts. In this case, five bids were timely submitted in response to the ITB, including those of K & M and Cumbaa. On March 8, 2011, the Department opened bids for the ITB. Cumbaa submitted the highest bid for the contract, at $22,197.48. K & M submitted the next highest bid at $20,001.00. At the bid opening, Cumbaa's bid included a Cost Information Sheet, a copy of the signed front page of the bidder acknowledgement form, and the Contact for Contract Administration form known as Attachment 1. However, the bid did not contain the second side of the bidder acknowledgement form or a Certificate of Insurance form at the time the bid was opened. K & M's bid contained the same documents as Cumbaa's bid, as well as the second side of the bidder acknowledgement form and a number of certificates of insurance for K & M. The evidence showed that Cumbaa did not include the Certificate of Insurance form in its sealed bid upon the advice of the Department that the form was not required at bid opening. However, Cumbaa had insurance coverage in place at the time of the bid opening and faxed its certificates of insurance to the Department on March 10, 2011. Given these facts and the Department's reasonable interpretation of its ITB, the omission of Cumbaa's certificate of insurance was neither required at the time of the bid opening, nor material to the award of the bid. The omission of the second page of the bidder's acknowledgement form was not noticed by anyone reviewing the bids until its omission was pointed out by K and M in this bid protest. Cumbaa faxed a copy of the back side of the document to the Department on April 11, 2011. Clearly, this lack of notice demonstrates the immateriality of the back side of the bidder's acknowledgement form. Additionally, since the signatures of both bidders were on the front page of the form submitted by them and those signatures bound the bidders to the terms of the ITB, there was no evidence that demonstrated why submission of a copy of the back side of the form was material to the award of this bid. Ultimately, the Department reviewed the bids for responsiveness and determined that Cumbaa was the highest responsive bid. On March 11, 2011, the Department posted its intent to award the bid to Cumbaa Enterprises, Inc. As indicated, there was no evidence that the omission of these two documents from the Cumbaa bid were material deviations from the bid specifications since neither omission impacted the ultimate contract requirements and did not materially impact the integrity of the bid process. Indeed, the insurance certification was not required for responsiveness under Section 5.1 of the bid under a long-standing and reasonable interpretation of that requirement by the Department. For these reasons, this bid protest should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Corrections, enter a final order dismissing the Protest of K & M Pine Straw. DONE AND ENTERED this 1st day of July, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2011. COPIES FURNISHED: Kurt Eldridge K and M Pine Straw 20583 John G Bryant Road Blountstown, Florida 32424 Edith McKay, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Edwin G. Buss, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Jennifer Parker, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Findings Of Fact On March 15, 1988, the Department of Agriculture and Consumer Services issued an Invitation to Bid (ITB) number DOF-ADM-48. The Invitation to Bid's purpose was to secure a contractor to service and install water filters on private drinking water wells located in eight counties within the State of Florida. The filters were required to be installed by the Department for the removal of ethylene dibromide (EDB) from contaminated drinking water obtained from private wells. EDB is a constituent of pesticides and is a suspected carcinogen. The filter systems operate by running the water through a tank containing a pleated paper filter similar to a coffee filter. The pleated paper filter contains granular activated carbon (GAC). The GAC absorbs impurities such as EDB. The water is also passed through a sterilizer unit. The sterilizer unit disinfects the water by bombarding it with ultraviolet light. For instances of heavy pollution the water may be filtered through a double tank system or require pretreatment with another media filter in order to remove more concentrated impurities from the water. The Department sent its ITB to a number of vendors. The ITB invited the submittal of bids and set a bid ending date of April 27, 1989. The bid included the standard State of Florida Invitation to Bid Bidder Acknowledgment form, number PUR 7028, also referred to as a "yellow sheet." The acknowledgment form provides spaces for the vendor to list identify information and to sign the bid. It also sets forth, general conditions applicable to the bidding process. Among the General Conditions contained on the yellow sheet is General Condition 4(d) which states:,, It is understood and agreed that any item offered or shipped as a result of this bid shall be a new, current standard production model available at she time of the bid. ... Further, General Condition 7 provides: Any Manufacturers' names, trade names brand names, information and or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative which meets or exceeds the specifications for any items(s). If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. ... The ITB also contained a number of terms, specifications and special conditions geared towards the specific purpose of the contract. These included the following Additional Bid Conditions: PROOF OF EQUIVALENCY: Vendor shall provide written, documented proof of equivalency for their equipment where it differs from the named brands and equipment specified in the bid specifications. EQUIPMENT, COMPONENTS, SPECIFICA- TIONS AND DOCUMENTATION: Vendor shall provide full documentation and specifications on all equipment and components to be used in providing the GAC filter systems and maintenance as specified in the bid. In this case, proof of equivalency of equipment is important to maintain the integrity of the water filter systems, and to insure cost-effectiveness in servicing the system. The bid specification also contained civic requirements for the GAC. The GAC specifications governed such items as moisture content, particle size and distribution absorptive capacity. Absorptive capacity was measured by an iodine number. An "iodine number" reflects the milligrams of iodine absorbed per gram of carbon. The higher thin iodine number, the more absorptive the carbon. In this case, the GAC requirements ware as follows: Granular activated carbon, with thee exception of the standards below, shall comply with the "American Water Works Association Standard for Granular Activated Carbon" (AWWAC B604-54). The GAC standards are as follows: Impurities - No soluble compounds should be present that are capable of causing adverse effects on the health of the consumer. Moisture - Shall not exceed two (2) percent by weight of listed container contents. Apparent Density - Shall be 28.5 - 31.0 pounds/cubic foot. Particle size distribution - should range between U.S. standard sieve size NO. 8 and NO. 30. A maximum of 15% of the particles can exceed 8 in size and a maximum of 4% can, be less than NO. 30 in size. Abrasion Resistance - Retention of average particle size shall not be less than 75 percent as determined by either the stirring abrasion or the RO-Tap abrasion test. Adsorptive Capacity - The "iodine number shall not be less than 950 or equivalent adsorptive capacity. The GAC must be packed and rinsed at the successful vendor's facilities not at the well site. Virgin GAC must be stored in facilities that will protect it from weather and vandalism. The Department had used a GAC manufactured by Ceca Division of Atochem, Inc. The carbon was known as Cecacarbon GAC 30WE. GAC 30WE had consistently met the Department's requirements. Atochem labelled or named the carbon, "GAC 30WE," because it met certain product quality standards and in order to differentiate the carbon from other types of GACs it manufactures, such as GAC 830WE. GAC 830WE is the same size carbon particle as GAC 30WE, but it has a lower adsorptive capacity, i.e., iodine, than 30WE. About two years prior to this bid, Atochem quit intentionally manufacturing she carbon it labelled Cecacarbon GAC 30WE. At that time the current contractor, Continental, unilaterally, and without informing the Department, substituted another GAC for Cecacarbon GAC 30WE. The Department therefore has been using a GAC of unknown manufacture for the past two years without complaint. Section II of the ITB indicated that the UVL disinfectant light source "must be an Aquafine Model NO. DW-400 or its equivalent." It further stated that the water flow meter required as apart of the filter system must be "a badger Model 15 The ITB required that specifications for the individual equipment components "MUST BE PROVIDED WITH YOUR BID OR THE BID WILL BE DECLARED INCOMPLETE AND INELIGIBLE FOR CONSIDERATION." Section III of the ITB, concerning the "Type II" systems (those consisting of two filter tanks), contained the same provisions as to UVL sterilizer units, water meters and component specifications as Section II. The Aquafine DW-400 was the UVL system currently being used by the Department's contractor. The ITB also contained a pricing sheen for vendors to list unit prices on 20 different components of the filter system. By multiplying the unit price by the Department's estimate of the respective numbers needed of each limited component, a total bid price was arrived at by the bidder. On April 17, 1989, the Department issued the first addendum to the ITB. Addendum number 1 changed the estimated number of pleated paper filters on the pricing sheet from 6500 to 10,200. A new bid opening date of May 23, 1989 was bet. On May 23 1989, the Department issued the second addendum to the ITB. In addition to establishing a new bid opening date of June 21, 1989, the second addendum made several substantive changes. It required bidders to submit with their bid an EDB isotherm for the GAC medium being bid by each bidder. An isotherm is a graph showing the adsorptive capability of the GAC. Since the Department would have no knowledge of the performance capabilities of a previously unused carbon, the EDB isotherm was "critical" where the carbon proposed for use had not been used on a Department contract before. For a known GAC, i.e. one the Department had used before, the isotherm was not material. The second addendum also changed the "designated model number for the water meter from the Badger Model 15 or equivalent to the Badger Model 25L or equivalent. The water meter model number was changed because the Badger model 15 was no longer being produced. Additionally, the model number of the freeze housing was changed from the "AMTEK big blue filter" to the "AMTEK NO. 20 or equivalent." The freeze housing was made an optional component of the bid. The third addendum, dated June 13, 1989, reinstated the freeze housing as a required component of the budget but provided that the housing could be of either fiberglass or aluminum construction. It also clarified the testing required to justify installation of a media filter on a system, and clarified that upgrades of systems from Type I to Type II. A new bid opening date of June 28, 1989 was set. Due to the entry of a temporary restraining order by a circuit court judge, the June 28, 1989, bid opening did not transpire. When the restraining order was later lifted, the Department issued Addendum IV, which set a bid opening date of September 28, 1989, and which gave bidders who had submitted bid prior to the June entry of the restraining order the opportunity to submit a new bid. Petitioner, Continental Water Systems, Inc., (Continental) a Florida corporation, timely submitted a bid of $895,877.50 to the Department in response to the Department's Invitation to Bid. Intervenor, Global Marketing, Inc., a North Carolina corporation, doing business in the State of Florida, timely submitted a bid of $784,431.50 to the Department in response to the Department's Invitation to Bid Number DOF-ADN- 48. Petitioner and Intervenor were the only two bids submitted. The Department made a preliminary determination that both bids were responsive, and posted its bid tabulation on October 30, 1989. Global was the apparent low bidder and was awarded the contract by the Department. In its bid, Global indicated that it would use the Aquafine DW-400 UVL sterilizer unit and the Badger Model 15 water meter. It also indicated that it would use Cecarbon GAC 30WE. Global did not include an EDB isotherm with its bid. Continental's bid included specifications for both the Aquafine DW-400 and a UVL system manufactured by "Ultra Dynamics Corporation known as Model Number DW-15. For the GAC, Continental bid Alamo ABG-CWF a GAC medium manufactured by Calgon as Filtrasorb 300 GAC. The bid contained an EDB isotherm for the GAC product. It also included specification sheets showing its intent to use a Badger Model 25L water meter. Unknown to the Department, the Aquafine Corporation no longer produces the DW-400 UVL sterilizer unit as a standard production model. It ceased production of this model in June or July of 1989. It has enough materials on hand to produce another 45 to 50 units. Aquafine is under contract to sell those units to Continental. If requested to produce more DW-400's, Aquafine might again manufacture the DW-400. However, Aquafine would not begin such production unless ban order for at least 1000 units was made. At present, Aquafine manufactures only one model for drinking water systems. The model is the DW-8. No specifications were included in Global's bid for the DW-8 or any other potentially equivalent sterilizer unit from another manufacturer. In this case, the bid specifications clearly list the DW-400 as an acceptable submission. The evidence did not show that the DW-400 was no longer available, even though the model was no longer being produced. There is no newer prototype of the DW-400. A contract, which an ITB constitutes the offer portion of, must be interpreted to give effect to all of its language and clauses. Therefore, the specific reference to the DW-400 as an acceptable submission must be given effect as an exception to the general requirement that "any item offered or shipped . . . be a new, current, standard production model . . . Since Continental did not challenge the bid specifications in regard to the UVL system, the complaint of non-responsiveness. . . cannot be heard now. Global therefore was responsive to the Department's ITB on the UVL component of its bid. When the Department learned that the Badger Model 15 water meter was no longer being manufactured it decided to change its specifications due to the change in production. The specifications were changed from the "Badger Model 15 or equivalent" to the "Badger Model 25 or equivalent." Global's bid did not list the Badger Model 25, but listed she Badger Model 15. However, Continental did not preserve the issue regarding the responsiveness of Global's bid on the water meter in its Formal Written Protest. Therefore, no findings are made regarding the responsiveness of Global's bid on the water meter component. The heart of the whole filter system is the GAC. The carbon proposed to be used by Global, Cecarbon GAC 30 WE, is no longer produced by the manufacturer. It has not been in production since 1987. Global and the Department did Introduce into evidence a faxed copy of a letter from an Atochem sales representative indicating that an amount of GAC 830 carbon would be available "until the end of 1989" to meet the Department's bid specifications. However, GAC 830 is not the same product as that bid by Global and does not have the same manufacturing standards as the GAC 30WE bid by Global. Neither does Atochem now intentionally produce a carbon that meets the specifications for DOF-ADM-48. Specifically, Atochem does not produce a carbon with an 8 x 30 mesh size that has a minimum iodine number of 950. The 8 x 30 mesh size carbon that Atochem produces, GAC 30, has an iodine number of 900 to 920. Due to variation in the capabilities of different lots of GAC 830, some lots may have a 950 iodine number. The evidence did not show whether the company tests its GAC 830 beyond its manufacturing standards. Nor did the evidence show whether a higher adsorpting GAC 830 lot is available. A letter from a sales representative that such a lot is available does not rise to the level of competent evidence which would support the conclusion that Global had materially meet the Department's ITB on the GAC element. At a minimum the Department or Intervenor would have had to bring the Company's documentation, including an isotherm, for that particular GAC lot to demonstrate responsiveness for a product labelled with a name which carries a lower adsorptive standard. The only carbon manufactured by Atochem which has a minimum iodine number exceeding 950 is a different size carbon. This carbon has a mesh size of 12 x 40, and thus does not meet the DOF-ADN-48 specifications. Both the Aquafine sterilizer unit and the Ultra Dynamics units, bid by Continental, meet the specifications for this ITB. The GAC bid by Continental meets the specifications for this ITB. This particular carbon has also been accepted by the Department for use by continental on a previous Department contract in January 1988, where the specifications for the carbon were identical to those applicable here. Continental did submit an EDB isotherm. Global's bid was not responsive to the ITB. It offered a carbon element which is no longer in production. It will have to substitute another GAC not identified in its bid in order to perform under the contract. Global provided no technical literature with its bid to establish the equivalency of any other GAC. Additionally Global did not provide an EDB isotherm for the carbon it planned on using from Atochem. These omissions were material. Global's bid therefore cannot be said to be responsive to the Department's ITB.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order awarding the bid to Petitioner as the lowest and best bid. DONE and ENTERED this 17th day of April, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 17th day of April, 1990. APPENDIX TO CASE NUMBER 89-6372BID The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraph 27 of Petitioner's proposed Findings of Fact are adopted except for the parts pertaining to the UVL systems unresponsiveness. The facts contained in paragraphs 28 and 29 to Petitioner's Proposed Findings of Fact are irrelevant. The facts contained in paragraphs 1, 2, 3 and 5 of Intervenor's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 8 and 9 of Intervenor's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 6 and 7 of Intervenor's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: M. Christopher Bryant, Esquire Oertel, Hoffman, Fernandez, and Cole, P.A. 2700 Blair Stone Road Post Office Box 6507 Tallahassee, Florida 32314-6507 Clinton Coulter, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 James C. Barth, Esquire Callahan, Barth & Dobbins 5374 Highway 98 East, Suite C-1 Destin, Florida 32541 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence addressed at the hearing, the following relevant findings of fact are made: The request for sealed bids for the construction of the Project was advertised on October 9, 16 and 23, 1991. There were six addenda to the original bid documents which added, deleted or modified provisions of the original bidding requirements, contract requirements, administrative requirements and technical specifications. The original bid documents plus the six addenda will be referred to herein as the "bid documents". The bid documents required that all bids be in full accord with the contract documents. Sealed bids for the Project were opened on October 30, 1991. Wright submitted the lowest lump sum bid for the Project, with Sovran submitting the second lowest lump sum bid and Kellogg submitting the third lowest lump sum bid. At the time of the bid opening, the bid documents listed only four casework manufacturers that were approved to furnish casework for the Project. Empire Custom Cabinets, Inc. (Empire) was not listed as one of the four approved casework manufacturers in the bid documents. The bid documents did not require the bidder to list the casework manufacturer it intended to obtain the casework from, but only that the bidder name the casework subcontractor. The only work item in the bid documents which requires identifying the name of the manufacturer on the subcontractor's list is the metal roof system. Because Empire's bid on the casework was extremely low compared to other bids received by Wright on the casework, Wright called Empire prior to submitting its bid to confirm that Empire's bid was submitted per plans and specifications. Although Wright did not specifically inquire of Empire at this time as to which manufacturer Empire was obtaining the casework from for the Project, Empire did advise Wright that Empire's bid on the casework was according to plans and specifications. Additionally, Empire did not divulge or advise Wright at this time that the bid was based on Empire manufacturing the casework for the Project. Based on this representation from Empire, Wright listed Empire as its casework subcontractor, and calculated its lump sum bid for the Project using Empire's bid. Although Wright listed Empire as its casework subcontractor in its bid, this did not create an irregularity in Wright's bid since Wright's bid was per plans and specification without exception or exclusion. This would require Wright to furnish casework for the Project manufactured by one of the four approved casework manufacturers listed in the bid documents regardless of which subcontractor Wright listed as the subcontractor for casework. By letter dated November 1, 1991, the Board's architect for the Project requested Wright to have Empire submit written certification by one of the four approved casework manufacturers that its casework was being furnished to Empire for the project. By letter dated November 4, 1991, Empire advised Wright that Empire's bid on the casework for the Project was based on casework to be manufactured by Empire. On the same day, Wright furnished the architect for the Project a copy of Empire's letter of November 4, 1991. In response to a request by the Board, Wright, by letter dated November 7, 1991, advised the Board that Wright would furnish casework manufactured by one of the four approved manufacturers listed in the bid documents for the Project. By letter dated December 3, 1991, Empire advised Wright that Empire would need to withdraw its bid if Empire was required to use casework manufactured by one of the four approved casework manufacturers listed in the bid documents. On that same day, Wright furnished the Board a copy of Empire's letter and requested that the Board allow Wright to remove and replace Empire with Steven Ward and Associates, Inc. (Ward), as the casework subcontractor since Ward would be able to furnish and install casework manufactured by LSI Corporation of America, Inc., one of the four approved casework manufacturers. No Action has been taken on that request. The bid documents provide for a subcontractor to be removed and replaced from the list of subcontractors after the bid is opened if there is a showing of good cause and written approval by the Board and the Project architect is obtained. Although Empire's bid on the casework for the Project submitted to Wright was based on Empire manufacturing the casework, there is competent substantial evidence in the record to establish facts to show that at the time Wright submitted its bid on the Project it had reasonable grounds to believe that Empire's bid on the casework was based on Empire furnishing and installing casework manufactured by one of the four approved casework manufacturers. After determining that Empire could not perform under its bid, Wright obtained a bid from Ward for furnishing and installing the casework for the Project which was less than Ward's original bid submitted to Wright before the bid opening. However, this bid was substantially more than Empire's bid, and if Wright is allowed to substitute Ward for Empire, Wright will have to absorb the additional costs since the bids were lump sum bids. Wright is neither attempting to furnish casework from a manufacturer that is not approved, nor is Wright requesting an increase in the lump sum bid price. The advertisement for Sealed Bids for the Project required that all bidders be prequalified by the Board prior to the bid date. Sovran and one other bidder were not prequalified by the Board prior to the bid date in accordance with Advertisement for Sealed Bids for the Project. Sovran received the bid documents for the Project approximately one month before the bid date but did not file a Notice of Protest of the prequalification requirement contained in the Advertisement for Sealed Bids for the Project. Sovran holds a certificate as a general contractor licensed in the State of Florida in accordance with Chapter 489, Florida Statutes. As a certified general contractor Sovran, pursuant to Section 489.125, Florida Statutes, was authorized to bid on the Project notwithstanding the Board's prequalification requirement. This was explained by the Board's representative at the bid opening. The bid documents required that a subcontractor list be submitted by all bidders, and when submitted with the bid becomes an integral part of the bid. The purpose of the subcontractor list was to prevent bid shopping, and to allow the Board an opportunity to review the subcontractors to determine if any subcontractor on the list had performed unsatisfactorily on previous Board projects. Neither the statutes relating to competitive bidding nor the bid documents prohibit the listing of the general contractor together with a subcontractor on a subcontractor list. The subcontractor list submitted by Sovran indicated "Sovran Constr/Naples" as the name of the subcontractor for the masonry work and "Sovran/Naples" as the name of the subcontractor for the poured-in-place concrete work. "Naples" is Naples Concrete and Masonry Work, Inc. The bid received by Sovran from Naples was for both labor and materials for the poured-in-place concrete and masonry work. Sovran neither requested nor did Naples furnish Sovran a bid to provide labor only for the poured-in-place concrete and masonry work. There was no agreement between Sovran and Naples whereby Sovran would supply the materials and Naples would furnish the labor for the poured-in-place concrete and masonry work. Sovran did request and receive bids from other companies for furnishing materials only for the poured-in-place concrete and masonry work. Sovran listed itself, the general contractor, along with Naples on the subcontractor list for the purpose of supplying the materials for the poured-in- place concrete and masonry work. Sovran's main reason for supplying the materials was that Naples was not bondable. Without a payment bond from Naples, Sovran would be without protection and could be forced into paying double for the materials in the event Naples failed to pay the material suppliers. Although the Superintendent of the Lee County Schools has recommended to the Board that the Board accept Wright's bid for the Project, the Board has not voted on that recommendation. The fact that Wright used Empire's bid to calculate its lump sum bid in no way excuses Wright for the requirement set out in the bid documents that casework used for the Project (when the time comes) be manufactured by one of the four approved casework manufacturers. Wright gains no economic advantage in this regard since the lump sum bid price remains the same. The advertisement for Sealed Bids on the Project provides that the Board reserves the right to waive any and all irregularities of any bid received.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly RECOMMENDED: That the Board enter a Final Order dismissing the instant bid protest and awarding to Wright the contract for the construction of Elementary School "C", Job No. 91063. DONE and ORDERED this 13th day of February, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 13 day of February, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 91-7597B1D The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1 - 3(1,2 and 3 , respectively); 4 - 5(6); 6(4); 7 - 9(5); 12(10); 13(11); 15 - 16(12); 17(13); 18 - 19(16); 20(29); 21(18); 23(19); 24 - 25(20); 26(22); 27(23); 28(22); 29 - 30(29); 32 - 33(25); and 34(26). Proposed finding of fact 10 is rejected as not being supported by competent substantial evidence in the record in that Wright's bid was as per plans and specifications without exceptions or exclusions which included the use of casework manufactured by one of the approved casework manufacturers. Proposed finding of fact 11 is rejected as not being supported by competent, substantial evidence in the record in that the Board knew of Empire's bid being based on nonconforming materials prior to issuing its Notice of Intent. However, the only information the Board had in reference to Wright's bid before issuing its Notice of Intent was that Wright had bid as per plans and specifications and would be installing casework manufactured by one of the approved manufacturers. The only question was whether Empire could furnish casework manufactured by one of the approved manufacturers. Proposed finding of fact 14 is neither material nor relevant. How the Board's architect interpreted Wright's bid is neither material nor relevant to this proceeding. Proposed finding of fact 22 is unnecessary to the conclusion reached in the Recommended Order. Proposed finding of fact 31 is more in the way of an argument than a finding of fact. Proposed findings of fact 35 and 36 are covered in the Preliminary Statement. The timeliness of Kellogg's protest is not an issue and therefore, a finding that it was timely is unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent While not specifically adopting proposed finding of fact 1, where material or relevant or necessary to this proceeding, and supported by competent, substantial evidence in the record the stipulated facts have been adopted. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 2(4,5); 3(9); 4 - 5(7); 7 - 8(8); 10(16); 11(14); 12(31); 13(21); and 15(23). Proposed finding of fact 6 is more in the way of an argument than a finding of fact. Proposed finding of fact 9 and 14 are neither material nor relevant. Rulings on Proposed Findings of Fact Submitted by the Intervenor See ruling on Respondent's proposed finding of fact Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 2 - 3(21); 4(24); 5 - 6(21); 13(23); 14(24,28); 15(22); 16 - 17(23,24); and 18(28). Proposed findings of fact 7 through 12 are neither material nor relevant to this proceeding. COPIES FURNISHED: David E. Gurley, Esquire Norton, Gurley & Darnell, P.A. 1819 Main Street, Suite 610 Sarasota, FL 34236 Marianne Kantor, Esquire The School Board of Lee County 2055 Central Avenue Fort Myers, FL 33901 James M. Talley, Esquire Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A. Post Office Box 712 Orlando, FL 32802 Karl Engel Superintendent Lee County School Board 2055 Central Avenue Ft. Myers, FL 33901 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether the bid submitted by VSM of Florida, Inc., under cover of the bid blank issued to VSM, Inc. for the construction on State Project 16070-3511 (the Project), with the Florida Department of Transportation (Department), was the lowest responsive bid. Whether the Department acted arbitrarily, illegally, dishonestly or fraudulently in rejecting the bid submitted by VSM of Florida, Inc. under cover of the bid blank issued to VSM, Inc. for the construction of the Project based on the Department's determination that VSM of Florida, Inc. was not a prequalified contractor. Whether VSM, Inc., has standing to bring this bid protest by and on behalf of its operating subsidiary, VSM of Florida, Inc.
Findings Of Fact Upon consideration of all of the evidence, the following relevant findings of fact are made: Bids submitted on the Project were opened on May 27, 1992 and posted on June 18, 1992. The bid submitted by VSM of Florida, Inc. under cover of the bid blank issued by the Department to VSM, Inc., a prequalified contractor, was the apparent low bid on the Project in the amount of $1,565,565.00. The bid submitted by Leware under cover of the bid blank issued by the Department to Leware, a prequalified contractor, was the apparent second low bid on the Project in the amount of $1,600,000.00. All contractors who seek to bid on Department projects in excess of $250,000.00 must be prequalified by the Department in order to bid on such projects. The Project was in excess of $250,000.00 thereby requiring all bidders to be prequalified contractors. The Department's Contract Administration Office (CAO) is responsible for prequalifying contractors to bid on Department projects in excess of $250,000.00, for issuing bid packages for such projects, and for processing bids for award of a contract. The Department will not issue a bid blank for a project in excess of $250,000.00 unless a request for a bid blank is received from a prequalified contractor. Upon a request being made, the Department first determines that the contractor making the request is prequalified and has the capacity to bid on the project, then the Department prints or stamps the name of the prequalified contractor on the front page (cover sheet) of the bid blank and mails the bid package to the prequalified contractor. Contractors do not have to be prequalified to bid on projects of less than $250,000.00 but the Department's Equal Employment Opportunity (EEO) requirements would be applicable to projects of less than $250,000.00 as well as those in excess of $250,000.00. Contractors do not have to be prequalified to work as subcontractors on a Department project. The Department does not approve subcontractors on Department projects but does review and approve the use of subcontractors on Department projects to ensure that subcontractors do not perform in excess of 49% of the work on the project in violation of Standard Specification No. 8 in the Department's contract. Review of the subcontractors being used on a project is conducted by the Department's District offices and the CAO is not made aware of which contractors are being used as subcontractors an a project. There is no specific language in the application for prequalification that requires a separate application be submitted for each contracting firm seeking prequalification. However, a copy of the Department's rule included in the application package does require that a separate application must be submitted for each contracting firm seeking prequalification. The purpose of the information sought in Question 8 (Question 6 in 1989) of the application concerning the affiliates of the parent company is to: (a) determine if any of the affiliates have been disbarred by other agencies or convicted of contract crimes which would disqualify them or; (b) alert the Department that an affiliate is applying for prequalification independent of the parent company so that the Department can properly audit the financial statements of each applicant. It is not intended to allow or provide for a joint application. The application must be accompanied by an audited financial statement and an equipment list. First-time applicants must also provide resumes and letter of recommendation supporting the applicant's representation that it is qualified and capable of performing the type of work for which it is seeking qualification. The CAO reviews the application for completeness and checks various data bases to determine if the applicant and its affiliates have adverse reports from other contracting agencies. The Department's Internal Audit Section reviews the financial information provided with the application for purposes of developing the Current Ratio and Net Worth Factors for use in calculating the applicant's Maximum Capacity Factor. The Internal Audit Section also reviews the information on corporate subsidiaries provided in response to "Question 8" (Question 6 in 1989) on the application. The Department's Construction Office reviews the equipment and experience information provided with the application to develop an applicant's Ability Factor for use in calculating the applicant's Maximum Capacity Factor. The Internal Audit Section and the Construction Office report their conclusions to the CAO, which issues the Certificate of Prequalification (Certification) to the applicant. Where the Opinion Letter of the applicant's Certified Public Accountant, which must be included with the application, states that the financial statement was audited in accordance with General Accepted Accounting Principles, the Department can rely on the Opinion Letter and the financial statements submitted with the application, unless there is a reasonable basis for the Department to question the financial statements. Where the Opinion Letter identifies the entity and subsidiaries, if any, whose financial condition is reflected in the financial statement, it is the Department's practice and policy to issue the Certification in name of the entity whose financial condition is reflected in the financial statement as indicated by the Opinion Letter. Where the Opinion Letter indicates that the financial condition of both the parent company and subsidiaries are reflected in the financial statement, then the Department will issue the Certification in the name of the parent company and the generic term "subsidiaries" or "subsidiary". Neither the parent company nor the subsidiary would be qualified separately. Under the above circumstances, the Department would accept a bid submitted by the parent company without the subsidiary even though the bid blank had been issued in the name of the parent company and "subsidiary" or "subsidiaries". For example, a Certification was issued by the Department to "Balfour Beatty Construction, Inc. and subsidiary", the bid blank was issued in the same name but the bid was submitted by and awarded to Balfour Beatty Construction, Inc. There was at least one other instance where the Department followed a similar procedure. The Department's justification for this practice is that the parent company has control over its subsidiaries and could submit a bid on their behalf and enter into a contract with the Department that would bind the subsidiaries. Whereas, with the converse, the subsidiary or subsidiaries are normally without authority to submit a bid on behalf of the parent company or enter into a contract with the Department on behalf of the parent company. However, where a prequalified parent company gives proper written authorization to a subsidiary to submit a bid on its behalf and such authorization is attached to bid, then the Department would not consider such bid submitted by the subsidiary as irregular. Where a parent company relies on the assets and experience of its majority-owned subsidiaries in its application for prequalification to which it has access to, and control over, and the Opinion Letter indicates the parent company to be the entity whose financial condition is reflected in the financial statement, then the Department would certify the parent company in its name alone and allow the parent company to bid on Department projects in excess of $250,000.00. Furthermore, the Department would allow the parent company's subsidiaries to perform all of the work on the project for the parent company notwithstanding Standard Specification No. 8 limiting the percentage of work which the subcontractors are allowed to perform on a Department project to 49%. The Department does not consider subsidiaries performing work for a parent corporation on a Department project as subcontractors within the meaning of Standard Specification No. 8 and thus, a parent company could bid on a Department project in its own name and rely solely on its subsidiaries to perform 100% of the work on the project without violating Standard Specification No. 8. For example, VSM, Inc. could bid on a Department project and, if awarded the bid, could rely solely on VSM of Florida, Inc. to perform 100% of the work on the project. It was conceded by the Department that VSM of Florida, Inc. has the expertise, experience and equipment to perform all of the work bid for on the Project. Where the applicant's name on the face of the application does not exactly correspond with the name of the entity whose financial condition is reflected in the financial statement, then the Department will issue the Certification in the name of the entity whose financial condition is reflected in the financial statement as indicated in the Opinion Letter. VSM, Inc. is a Florida corporation that was incorporated in 1988. In 1988 VSM, Inc. formed two subsidiary corporations, VSM of Florida, Inc. and VSM of Virginia, Inc. The parent corporation, VSM, Inc., owns 80% of the stock in both VSM of Florida, Inc. and VSM of Virginia, Inc. Van Monroe is the sole stockholder, sole director and president of VSM, Inc. Van Monroe is also the sole director and president of VSM of Florida, Inc. The remaining 20% stock of VSM of Florida, Inc. is owned by Gregory Monroe, brother of Van Monroe. Gregory Monroe is also vice president of VSM of Florida, Inc. These corporations (VSM, Inc. and VSM of Florida, Inc.) are separate entities with each having a separate Federal Identification Number. Beginning in 1989, VSM, Inc. applied for Certification with the Department to qualify to bid on projects in excess of $250,000.00. In the application form (Question 6), the applicant is requested to: "List the following for all affiliated companies: (a) Name and Address; (b) States Qualified ; and (c) Explain in detail your connection with this company and whether or not this company is qualifying with FDOT. In response to that question, VSM, Inc. answered in pertinent part as follows: (a) VSM of Florida, Inc., P. O. Box 5761, Jacksonville, FL 32247 (58-2916127); (b) Florida and; (c) VSM, Inc. - 80% Stockholder, Gregory B. Monroe - 20% Stockholder (We would qualify VSM of Florida, Inc. as a subsidiary of VSM, Inc.). The Department issued the Certification on April 21, 1989 in the name of VSM, Inc. Each of the applications for renewal of the Certification issued on April 21, 1989 submitted on March 26, 1990, March 26, 1991 and March 30, 1992 requested basically the same information in Question 8, as had Question 6 in the original application, and the answers were basically the same as in the original application. The renewal applications submitted on March 26, 1990 and March 30, 1992 have both VSM, Inc. and VSM of Florida listed as applicants. The Department subsequently lined out VSM of Florida, Inc. on each of these renewal applications and issued the Certification to VSM, Inc. The reason being, that each contracting firm seeking Certification must file a separate application, and the Opinion Letter indicated that the entity whose financial condition was reflected in the financial statement was VSM, Inc. A Certification was issued to VSM, Inc. on April 30, 1990, April 10, 1991 and April 16, 1992, respectively in response to the above renewal applications for Certification. The Certification dated April 16, 1992 expanded the classes of work to be performed under the certificate to include Bascule bridge repair (rehabilitation) work. In each of the above years, Van Monroe, the president of both VSM, Inc. and VSM of Florida, Inc., consciously chose not to seek Certification for VSM of Florida, Inc. independently of VSM, Inc. because VSM, Inc. and its subsidiaries operate as an integrated operation and could not be separated. Beginning in 1990 and each year thereafter, when VSM, Inc. applied for renewal of its Certification with the Department, it included a consolidated financial statement which contained the financial condition of its two subsidiaries, VSM of Florida, Inc. and VSM of Virginia, Inc. The Department chose not to issue the Certification in the name of "VSM, Inc. and subsidiaries" for these years because the Department concluded that the Opinion Letter indicated that the only entity whose financial condition was reflected in the financial statement was VSM, Inc. Although the Department conceded that the Certification could possibly have been issued to "VSM, Inc. and subsidiaries", the Department contended that this would not have changed the result of the bid since under either situation, VSM of Florida, Inc. had not submitted written authorization from VSM, Inc. authorizing VSM of Florida, Inc. to submit a bid on behalf of VSM, Inc. Since 1989, both VSM, Inc. and VSM of Florida, Inc., after requesting and receiving permission from the Department, have used the same vendor (prequalification) identification number. Additionally, the names VSM, Inc. and VSM of Florida, Inc. have been used interchangeably on documents submitted to and received from the Department. The current Certificate of Capacity, required by the Department of all prequalified contractors, was issued in the name of VSM of Florida, Inc. On February 26, 1992 under cover of the bid blank issued to VSM, Inc. by the Department, VSM of Florida, submitted a bid on a Department project in Polk County, Job No. 16630-3601. Because this bid was third lowest bid, no objection or declaration of irregularity to this bid format was made by the Department. On May 27, 1992 under cover of the bid blank issued to VSM, Inc. by the Department, VSM of Florida, Inc. submitted a bid on a Department project in Gadsden County. The Department notified VSM, Inc. by form letter dated June 17, 1992 that the bid proposal had been taken apart and not been stapled back in the same order as when issued and that such errors or omissions could result in a future bid proposal being declared irregular. One of the items (Item 5) on this form letter states "the bidder's name is not as issued per their prequalification application on the front sheet (Bid Blank)". Item 5 was not checked or noted as a deficiency in the bid on the Gadsden County project along with the other noted problem because the name (VSM, Inc.) on the cover sheet had not been altered - it was the same as issued on the Certification. The Gadsden County project bids were posted on June 18, 1992 under the name "VSM,Inc." as irregular but with no reason stated for the irregularity and there is nothing in the minutes of the Department's Bid Review Committees indicating the reason for the irregularity. Again, the bid submitted by VSM of Florida, Inc. under cover of the bid blank issued to VSM, Inc. was not the low bid on the Gadsden County project. On May 27, 1992 VSM of Florida, Inc., under cover of a bid blank issued to VSM, Inc. by the Department submitted a bid on another Department project in Polk County, Job No. 16070-3501, the apparent low bid on the project and the bid in dispute here. The name of VSM, Inc. under which the bid blank was issued by the Department was not altered on the bid submitted by VSM of Florida, Inc. The bid as submitted by VSM of Florida, Inc. was signed by V. S. Monroe and G. B. Monroe as president and secretary, respectively of VSM of Florida, Inc. Although the bid did not contained written authorization from VSM, Inc. authorizing VSM of Florida, Inc. to submit the bid on behalf of VSM, Inc., there is sufficient evidence in the record to show that at the time of the bid submittal VSM, Inc. had knowledge of, consented to and authorized the bid submittal by VSM of Florida, Inc. Also, at the time of the bid submittal, VSM, Inc. and VSM of Florida, Inc. were under the impression (rightfully or wrongfully) that VSM, Inc. and VSM of Florida, Inc. had been previously prequalified jointly by the Department. By letter dated May 29, 1992, the Department advised VSM, Inc. that it needed to file a Disadvantaged Business Enterprise (DBE) affirmative action plan with the Department in order for its bid of May 27, 1992 to be considered responsive. The DBE plan was furnished by VSM of Florida, Inc. and approved by the Department. The Department also requested that VSM, Inc. submit a current capacity rating status so that the Department could determine if the current capacity of VSM, Inc. was such that it was still qualified to perform the work required by the Project. The current capacity rating status was filed by VSM of Florida, Inc. on June 3, 1992. On June 11, 1992, the Department's Technical Review Committee (TRC) recommended that the bid executed and submitted by VSM of Florida, Inc. under cover of the bid blank issued to VSM, Inc. be declared irregular based on the TRC's determination that VSM of Florida, Inc. was not a prequalified contractor. On June 16, 1992, the Department's Contract Awards Committee (CAC) unanimously adopted the recommendation of the TRC and declared the bid submitted under cover of the bid blank issued to VSM, Inc. to be irregular. The CAC voted to post an intent to award the bid on the Project to Leware. The Department rejected the bid submitted by VSM of Florida, Inc. under cover of the bid blank issued to VSM, Inc. on the basis that VSM of Florida, Inc. was not a prequalified contractor. The bid was rejected by the Department without any review of the Department's prequalification file of VSM, Inc., or without any review as to whether the irregularity could be cured by VSM, Inc. ratifying the action of VSM of Florida, Inc. by supplying the Department with written authorization for VSM of Florida, Inc. to submit the bid on behalf of VSM, Inc. There was no evidence that curing this irregularity would provide the Petitioner with such a competitive advantage that it would restrict or stifle competition or that curing this irregularity would violate any rule or statute. The intent to award the Project to Leware was posted on June 18, 1992. VSM, Inc., by and on behalf of its operating subsidiary, VSM of Florida, Inc., filed a timely initial protest to the intent fo award on June 23, 1992 and a timely formal protest on July 1, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly RECOMMENDED: That the Department enter a Final Order awarding the contract for the construction of the Project to the Petitioner upon VSM, Inc. curing the technical deficiency in the bid by submitting to the Department authorization for VSM of Florida, Inc. to have submitted the bid on the Project on behalf of VSM, Inc. DONE and ORDERED this 12th day of November, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 92-4859BID The following constitutes my rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed findings of fact 1 - 4, 6 and 8 - 11 are adopted in substance as modified in the Recommended Order. Proposed findings of fact 5 and 7 are adopted in substance as modified in the Recommended Order, but see Findings of Fact 41 relating to reliance. Proposed Findings of Fact Submitted by the Respondent Proposed findings of fact 1 - 42 and 44 are adopted in substance as modified in the Recommended Order. Proposed finding of fact 43 is rejected as not being a finding of fact but more of an argument as to the weight to be given certain evidence. Rulings on Proposed Findings of Fact Submitted by the Intervenor, Leware 1. Proposed findings of fact 1 - 35 are adopted in substance as modified in the Recommended Order. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Allen P. Clark, Esquire CAVEN, CLARK, RAY and TUCKER 3306 Independent Square Jacksonville, FL 32202 George M. Meros, Jr., Esquire 106 College Avenue Tallahassee, FL 32301 Carolyn Holifield, Esquire Paul Sexton, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Mary M. Piccard, Esquire CUMMINGS LAWRENCE & VESIMA 1004 DeSoto Park Drive Tallahassee, FL 32302
Findings Of Fact On April 1, 1985, Respondent, Florida Department of Law Enforcement (FDLE), gave notice to thirty vendors that it would receive competitive sealed bids on Bid Number 84-67 for the following commodities: eight computer binder cabinets 36x18 5/8x71 Putty/Black, three hundred single point binder hooks, six hundred 10" steel reinforced binder posts. The bids were to be filed in Tallahassee, Florida, no later than 11:00 a.m., April 16, 1985. The Invitation to Bid included General Conditions, Special Conditions and technical specifications describing the dimensions and capacities of the desired equipment. Of special significance was the technical specification that the single point binder hooks be "[c]apable of supporting up to 6 inches of llx14 7/8 20 lb. computer paper." Paragraph 6 of the General Conditions provides as follows: 6. MANUFACTURERS' NAMES AND APPROVED EQUIVALENTS: Any manufacturers' names, trade names, brand names, information and/or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative, which meets or exceeds the specification for any items(s) [sic]. If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. Bidder shall submit with his bid, cuts, sketches and descriptive literature and or complete specifications. Reference to literature submitted with a previous bid will not satisfy this provision. The bidder shall also explain in detail the reason(s) why the proposed equivalent will meet the specifications and not be considered an exception thereto. The State of Florida reserves the right to determine acceptance of items(s) [sic] as an approved equivalent. Bids which do not comply with these requirements are subject to rejection. Bids lacking any written indication of intent to bid an alternate brand will be received and considered in complete compliance with the specifications as listed on the bid form. The purchaser is to be notified of any proposed changes in (a) materials used, (b) manufacturing process, or (c) construction. However, changes shall not be binding upon the State unless evidenced by a Change Notice issued and signed by the purchaser. (Emphasis added.) Paragraph 7 of the General Conditions imposed the following duty upon all bidders: 7. INTERPRETATIONS: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Of the thirty vendors given an opportunity to submit bids, only two did so. They were Petitioner, Pro Tech Data (PTD or Petitioner), and Office Systems Consultants (OSC). Their bids were in the amounts of $4,645 and $5,244, respectively. After reviewing the bids, and consulting with both bidders, the director of the agency's Division of Criminal Justice Information Systems, Mark Scharein, determined that Petitioner's bid was nonresponsive for not meeting specifications and was accordingly rejected. The bid was then awarded to OSC, the second lowest bidder, on May 3, 1985. That precipitated the instant proceeding. In its bid response, PTD listed "Dennison Monarch #7830" as manufacturer and model number for the single point binder hooks. Petitioner also submitted a Dennison Monarch catalogue with its bid response. When FDLE examined the catalogue to ascertain the specifications of the hooks, it found no model number 7830. Indeed, the closest item matching this number was model number 7830-22 which referred to shelf supports, an item not solicited in the bid proposal. After consulting with PTD, it was determined that the use of model number 7830 was in error, and that Petitioner had intended to use model number 7802-30. Its request to amend the bid response was denied. Even if the bid proposal had contained the correct model number, the binder hooks in model number 7802-30 did not meet specifications. The product description of that model carries the following limitation: "Can accommodate a few sheets of paper or a stack of data 4" thick." In addition, at hearing PTD's representative conceded that the manufacturer did not recommend hanging six inches of paper from that model binder hook. This was inconsistent with FDLE's specific requirement that such hooks be "[c]apable of supporting up to 6 inches of . . . computer paper." OCS submitted product designations which conformed in all material respects to the specifications and conditions required by the bid proposal. Although PTD suggests that OCS's binder hooks do not support six inches of computer paper, .OCS's bid response reflects that they do, and there was no evidence to contradict this representation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Bid No. 84-67 be awarded to Office Systems Consultants, and that Petitioner's bid protest be DENIED. DONE and ORDERED this 16th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this l6th day of August, 1985.
The Issue The issue in this case is whether the bid of Kimball International Marketing, Inc., and Corporate Interiors, Inc., (Petitioners) is the lowest responsible bid which was received by the Pinellas County School Board (Respondent) for systems furniture (partitions) for the New District Administration Building, or in the alternative, whether all bids should be rejected as urged by The Harter Group (Intervenor).
Findings Of Fact On or about February 27, 1990, the Respondent sought competitive bids for systems furniture (partitions) for the New District Administration Building. In response thereto, Respondent timely received three bids, including those of the Petitioners and Intervenor, and one no bid. The bid opening occurred on April 17, 1990, and neither Petitioners nor Intervenor were determined to be the lowest responsible bidder. However, the Petitioners' bid was lower than that of the bidder to whom the Respondent proposes to award this contract. Petitioners' bid was $932,502.39, Intervenor's bid was highest at $1,101,509.90, and the bid of lowest responsible bidder, Haworth, Inc., was $1,072,286.50. The first reason given by Respondent for its determination that Petitioners' bid was not responsive to the bid specifications is that it did not include an amount for sales tax. Intervenor also did not include sales tax in its bid, but Haworth, Inc., which was determined by Respondent to be the lowest responsible bidder, did include sales tax. However, there was no dispute at hearing that the Respondent does not pay sales tax on transactions involving the acquisition of furnishings for the Pinellas County School System, and that Section 9.2.2 of the bid specifications erroneously stated that this contract would not be exempt from sales tax. The second reason given by Respondent for rejecting Petitioners' bid was that it omitted a required page from the approved form which was to be used to list those items in the bid proposal that were not in strict compliance with the Respondent's specifications. Petitioners admit that the required page numbered 00310-7 was not included in their bid, but maintain that it was not necessary to include this exact page since all items in their bid do meet specifications, and since a statement to this effect was included elsewhere in the bid. The lowest responsible bidder, as determined by the Respondent, did include this required page with a statement thereon that "all items comply". Intervenor also included this page listing 11 items in its bid which differed from the specifications. The purpose of this required page is to allow the Respondent to have a uniform, clearly identifiable place in each bid proposal where it can look to determine if the items in that bid meet specifications, without having to check every page of each bid. The third reason given by Respondent for rejecting Petitioners' bid was that it included numerous pages of unit costs which were not called for in the specifications, without any explanation as to their meaning or the purpose for which they were included in the bid. Section 4.1.1 of the bid specifications, found at page 00100-11, makes it clear that no bid form other than that which is set forth in the specifications will be accepted, and specifically states that bidders are not even to retype the form on their letterhead, but are to simply fill-in a copy made from the form in the specifications. The Petitioners admit that their bid includes additional, unexplained information that was not called for in the specifications. A final reason given by Respondent at hearing for rejecting Petitioners' bid was that it was accompanied by a bid bond, required by Section 4.2.4 of the specifications, in the name of Kimball International Marketing, Inc., while the public entity crime affidavit, required by Section 2.1.5, was subscribed to by Corporate Interiors, Inc. Petitioners' bid did not include a resolution or other evidence of authority that Corporate Interiors, Inc., had authority to submit a public entity crime affidavit on behalf of Kimball International Marketing, Inc., or that the affidavit submitted was valid as to Kimball. Thus, while Petitioners maintain that their bid was jointly filed on behalf of the manufacturer, Kimball, and the vendor, Corporate Interiors, their bid includes a bond from the manufacturer only, and a crime affidavit from the vendor only. Section 1.8 of the specifications, found at page 00100-2, specifies that the bidder is the person or entity that submits a bid. Petitioners urge that theirs is a joint bid, but they have failed to submit a joint bond or affidavit. Section 5.2.1 of the specifications allows the Respondent to reject any bid which fails to include a required security, or other required data. The bid which was determined by the Respondent to be the lowest responsible bid contains no technical flaws, errors or omissions, and the proposal meets all specifications for this project. The Respondent properly posted notice of its intent to award this contract to Haworth, Inc., the lowest responsible bidder. Under Section 5.3.1 of its bid instructions, the Respondent has the right to waive "any informality or irregularity in any Bid or Bids received and to accept the Bid or Bids which, in (its) judgment, is in (its) own best interest." Respondent chose not to waive any of the irregularities in the Petitioners' bid. This decision was made, in part, because of Respondent's previous experience with Petitioners in their installation of similar systems for Respondent at the Walter Pownall Service Centers in which there had been problems involving service during installation, coordination of the installation work, and verification that invoices received from Corporate Interiors did not exceed the bid base price, and that all items being paid had actually been received.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioners' and Intervenor's protests of its intent to award a contract for systems furniture (partitions) for the New District Administration Building to Haworth, Inc., as the lowest responsible bidder. DONE AND ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 6th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2863BID Petitioner and Intervenor filed letters, but no proposed findings of fact upon which rulings could be made. Rulings on Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 3. 3. Adopted in Findings 4-6. 4. Adopted in Finding 6. 5. Adopted in Findings 4-6. 6. Adopted in Finding 6. 7. Adopted in Findings 6, 8. 8. Adopted in Finding 1. 9. Adopted in Findings 2, 3. 10-12. Adopted in Finding 6. 13. Adopted in Finding 4. 14. Adopted in Finding 3. 15. Adopted in Finding 5. 16-17. Adopted in Finding 7. 18. Adopted in Finding 1. 19. Adopted in Finding 8. COPIES FURNISHED: Allen D. Zimmerman, President Corporate Interiors, Inc. 1090 Kapp Drive Clearwater, FL 34625 Bruce P. Taylor, Esquire P. O. Box 4688 Clearwater, FL 34618-4688 Sue Olinger 1284 West Fairbanks Avenue Winter Park, FL 32789 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618
Findings Of Fact In February 1994 the School Board, by and through its design consultants, W. R. Frizzell Architects, Inc., and, more particularly, its project architect, Byron Tramonte, issued plans, specifications, and related contract documents associated with additions, remodeling, and reroofing of John F. Kennedy Middle School, Palm Beach County, Florida. At a pre-bid conference conducted at the project job site attended by representatives of the School Board, its consultants, as well as representatives of Petitioner, Respondent, and Intervenor, among others, Petitioner's Greg Hill questioned the sufficiency of the drawings with respect to the earth work requirements associated with Alternate 1. As a result of this inquiry, the owner's design consultant issued Addendum 2 (including an as-built drawing) dated February 23, 1994, which was ". . . made available for grading estimates." The drawing attached to Addendum 2 had two sets of elevation numbers on it. One set of elevation numbers were underlined. The clearest of the underlined numbers were difficult to read. Many of the underlined numbers were impossible to read. The other set of elevation numbers on the subject drawing were boxed. The boxed numbers were all clear and legible. In view of the purpose for which the drawing was attached to Addendum 2, the most logical interpretation of the drawing was that the boxed elevation figures represented the existing elevations. The drawing attached to Addendum 2 also included some circled handwritten information. In large letters the circled information read: "JFK MIDDLE SCHOOL AS BUILT EXIST. ELEV." Immediately below in smaller letters it read: "Note: The 2 softball fields were not constructed. 2/23/94." The circled handwritten information was to some extent ambiguous. But it was an ambiguity that could be resolved by careful site inspection. Careful site inspection would have revealed that the boxed numbers corresponded to existing site conditions and that the underlined numbers, to the extent they were legible, did not. Petitioner's Vice President Greg Hill was primarily responsible for the preparation of the portion of the Petitioner's bid relating to Alternate 1. Greg Hill visited the job site during the prebid conference and also visited the job site on one other occasion after receiving Addendum 2, but before submitting the Petitioner's bid. Greg Hill is an experienced estimator with respect to matters involving the type of work encompassed by Alternate 1. In spite of his experience and in spite of his two pre-bid site visits, Greg Hill misinterpreted the architect's intent and used the underlined elevations on the drawing attached to Addendum 2 as a basis for estimating portions of the work associated with Alternate 1. As a result of this mistake Greg Hill reached erroneous conclusions about the amount of fill that would be required and substantially overestimated the amount of fill. This mistake caused the Petitioner's bid for Alternate 1 to be somewhat higher than it would have been if Greg Hill had based his estimates on the boxed elevation numbers. A similar mistake was made by CSR Heavy Construction-North, Inc., a company that was seeking work as a subcontractor on Alternate 1. On the last day for submitting bids on the subject project, the Intervenor received an unsolicited bid from CSR Heavy Construction-North, Inc., to perform some or all of the work encompassed by Alternate 1. CSR's bid was much higher than the Intervenor's proposed bid for that work, which caused the Intervenor's President to become worried that perhaps he had misinterpreted the drawings attached to Addendum 2. Intervenor's President called the School Board Architect and asked for confirmation of his interpretation to the effect that the bidders should base their estimates on the boxed elevation numbers on the drawing attached to Addendum 2. The architect confirmed that the Intervenor's President had correctly interpreted the drawing. The architect did not call any other potential bidders to tell them they should use the boxed numbers because he thought it was obvious that all potential bidders should use the boxed numbers. The bids for the subject project were opened on March 3, 1994. The Petitioner was the apparent responsive low bidder for the base bid. The Intervenor was the apparent responsive low bidder taking together the base bid and the bids on Alternates 1 and 2. The School Board published notice of its intent to award a contract to the Intervenor for the base bid and Alternates 1 and 2. The Instructions To Bidders portion of the subject bid specifications included the following provisions: BIDDER'S REPRESENTATIONS: Each Bidder, by making his Bid, represents that he has read and understands the Bidding Documents. Each Bidder, by making his Bid, represents that he has visited the site and familiarized himself with the local conditions under which the Work is to be performed. BIDDING PROCEDURES: * * * 3.11 Familiarity with Laws: The Bidder is assumed to be familiar with all Federal, State and Local Laws, Ordinances, Rules and Regulations, that in any manner affect the Work. Public Contracting and Purchasing Process Florida Statute, Section 287.132-.133 (Public Entity Crimes) is applicable. Ignorance on the part of the Bidder will in no way relieve him from responsibility. * * * AWARD OF CONTRACT: The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates. * * * BID PROTEST PROCEDURES: * * * 10.02 The Bid Documents/"Advertisement tol Bid" will be posted in the office of thel Department of Capital Projects at the time of the solicitation to Contractors. Any person who is affected adversely with respect to the Bid Documents shall file a notice of protest in writing within seventy-two (72) hours after the receipt of the Bid Documents, and SHALL FILE A FORMAL WRITTEN PROTEST WITHIN TEN (10) DAYS AFTER THE DATE HE FILED THE NOTICE OF PROTEST. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120. It is important to the proper functioning of the public works bidding process that all bidders be treated alike. To this end, important information furnished to one potential bidder should be furnished to all other potential bidders.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board enter a Final Order in this case dismissing the protest of the Petitioner and awarding a contract to the Intervenor for the base bid and Alternates 1 and 2. DONE AND ENTERED this 17th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May 1994. APPENDIX The following rulings are the specific rulings on all proposed findings of fact submitted by all parties: Findings submitted by Petitioner. Paragraphs 1 through 5: Accepted in whole or in substance. Paragraph 6: Rejected as not completely accurate. The practices described are common, but not universal. Drawings usually have a legend to explain the difference between existing elevations and elevations to be achieved. Paragraph 7: The first sentence of this paragraph is rejected as contrary to the greater weight of the evidence. The remainder is accepted in substance. Paragraph 8: The first sentence of this paragraph is rejected as constituting subordinate and unnecessary details. The last sentence of this paragraph is rejected as constituting inferences or arguments not supported by the greater weight of the evidence. Paragraphs 9, 10, and 11: Accepted in substance, but with some modifications in the interest of clarity and accuracy. Paragraph 12: Rejected as contrary to the greater weight of the evidence. Paragraph 13: Accepted in part. Accepted that if the Petitioner had used the boxed elevation numbers, it's proposal on Alternate 1 would probably have been substantially lower. The remainder of this paragraph is rejected as speculation Paragraph 14: Rejected as not fully supported by competent substantial evidence and as, in any event, subordinate and unnecessary details. Paragraph 15: Rejected as constituting primarily argument, rather than proposed findings of fact. To the extent the material in this paragraph purports to be factual, it tends to be contrary to the greater weight of the evidence. The greater weight of the evidence is to the effect that there were no ambiguities in Addendum 2 that could not have been resolved by careful site inspection. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as contrary to the greater weight of the evidence; careful site inspection would have confirmed that the boxed numbers represented the existing elevations. Paragraph 19: Accepted. Paragraph 20: Rejected as speculative and as not supported by persuasive competent substantial evidence. Paragraph 21: Rejected as constituting a proposed ultimate conclusion of law, rather than a proposed finding of fact, and as, in any event, a conclusion that is not warranted by the evidence. Findings submitted by Respondent. Paragraphs 1 through 8: Accepted in whole or in substance. Paragraph 9: Rejected as constituting subordinate and unnecessary details. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as constituting subordinate and unnecessary details. Paragraph 12: Rejected as constitution a proposed ultimate conclusion of law, rather than a proposed finding of fact. (The conclusion is warranted, but it is a conclusion nevertheless.) Findings submitted by Intervenor: (No separate proposals; the Intervenor adopted the proposed findings of the Respondent.) COPIES FURNISHED: Robert A. Rosillo, Esquire School Board of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813 Alan C. Brandt, Jr., Esquire Leiby, Ferencik, Libanoff and Brandt Suite 400 150 South Pine Island Road Fort Lauderdale, Florida 33324 Richard B. Warren, Esquire Kelley, Aldrich & Warren, P.A. 801 Spencer Drive West Palm Beach, Florida 33409 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
Findings Of Fact The Department of Corrections (Corrections) initially published an Invitation to Bid (ITB) 90-Region-001 for the provision of a recyclable baling machine which had an opening date and time of 1:00 p.m., August 22, 1989. Upon opening and evaluation of the bids filed in response to ITB 90- Region-001, Corrections' purchasing and technical staff determined that the specifications for this initial ITB had been drafted too narrowly for them to validly and reasonably compare the bids submitted. This was Corrections' first attempt to meet certain recycling mandates and the agency personnel were initially unfamiliar with all of the machinery available in the marketplace. Lack of technical literature from some bidders was also a problem. In comparing the five bid responses received, it became apparent to Barbara Stephens, Corrections' Purchasing Director, that the specifications she had initially drafted worked against agency interests in that they were so narrow that different models could not be compared. In Ms. Stephens' words, one could not even compare "apples and apples," let alone "apples and oranges." The line item on Page 6 defied comparison and other line items presented significant comparison problems. After a review by Corrections' General Services Specialist Bob Sandall, it was determined that it was to the agency's advantage, as well as advantageous to the competitive bidding process, to rebid on more general specifications instead of specifications solely geared to one single model of one type of baler already owned by the agency, a McDonald single phase baler. For the foregoing reasons, Corrections elected to reject all bids received in response to ITB 90-Region-001 and rebid the item so as to broaden the eligibility base through new specifications, thereby ensuring that more than a single manufacturer could compete while making line item comparisons by the agency possible. Line item comparisons were considered advantageous to all potential bidders and to the agency and essential to a fair competitive bidding process. Considering purely bottom-line cost, Petitioner Solid Waste was the low bidder on initial ITB No. 90-Region-001 if its mathematical error were ignored and its bid were recorded as $23,960.00 instead of as $35,970.00. There were apparently some other problems with Solid Waste's bid response. These were not clearly addressed by any witness' testimony, but it is apparent that the requested manufacturer's specification sheet was included with Solid Waste's response to ITB 90-Region-001. Corrections did not reach any of the potential bid defects of Solid Waste because the agency elected to discard all the bids almost immediately. Rule 13A-1.002(9) F.A.C. provides that an agency shall reserve the right to reject any and all bids and shall so indicate in its invitation to bid. Corrections followed this requirement in General Condition 10 of ITB No. 90- Region-001, which provides in pertinent part, as follows: As the best interest of the State may require, the right is reserved to reject any and all bids . . Bob Sandall and Barbara Stephens redrafted the bid specifications for the recyclable baling machine more broadly, primarily to encourage greater competition of bidders. Corrections properly published these new specifications in ITB No. 90-Region-001 on or about September 18, 1989. Bids were to be opened on October 3, 1989. On October 3, 1989, the bids submitted in response to ITB No. 90- Region-001 were opened and checked for completeness. Upon opening the bid packet submitted by Petitioner Solid Waste, Corrections personnel discovered that the manufacturer's specification sheet which had been required in both initial ITB No. 90-Region-001 and in rebid ITB No. 90- Region-001R was missing. Based on the missing specification sheet, Petitioner's bid on ITB No. 90-Region- 001R was rejected as unresponsive. General Condition 7 in ITB 90-Region-001R provided in pertinent part: Bidder shall submit with his bid, cuts, sketches, and descriptive literature and/or complete specifications. Reference to literature submitted with a pervious bid will not satisfy this provision. The State of Florida reserves the right to determine acceptance of item(s) as an approved equivalent. Bids which do not comply with these requirements are subiect to reiection. (Emphasis supplied) Special Condition VI of ITB 90-Region-001R, "Submission of Mandatory Forms/Literature," further provided that: 5. Complete Technical Data on items other than as specified shall be provided with bid by the vendor, for evaluation purposes, otherwise bid will not be considered. Nowhere in ITB 90-Region-001R is there any suggestion that responses thereto are supplemental to those filed for ITB 90-Region-001 or that "carryovers" or "reactivations" of earlier ITB 90-Region-001 responses would be considered. Corrections rejected other bidders' responses for other acts of non- responsiveness, and it was not necessary to waive any condition in order to award the bid to any of the bidders who were in full compliance with ITB 90- Region-001R. Petitioner timely filed a formal written protest to Corrections' bid tabulation of ITB 90-Region-001R on October 23, 1989. In this protest, Petitioner also included its only and untimely challenge to the agency's rejection of all bids for ITB 90-Region-001.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Corrections enter a Final Order dismissing Petitioner's protest and ratifying its rejection of all bids for ITB 90-Region- O01R and its tabulation of bids for ITB 90-Region-001R. DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5854BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1. is accepted except for the ultimate conclusion of law. See Conclusions of Law. 2-3, 5-7 are rejected as mere legal argument or proposed conclusions of law. See Conclusions of Law. 4 is rejected as characterization of testimony. Respondent' s PFOF: 1-7 are accepted. COPIES FURNISHED: W. K. Lally, P.A. 6160 Arlington Expressway Jacksonville, Florida 32211 Perri M. King Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Courtesy copy to: Richard L. Dugger, Secretary Thomas W. Riggs, President Department of Corrections Municipal Sales and Leasing 1311 Winewood Boulevard Inc. Post Office Box 90306 Tallahassee, Florida 32399-2500 Lakeland, Florida, 33804 Louis A. Vargas, General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
Findings Of Fact On or about February 9, 1983, the State of Florida, Department of General Services, Division of Construction and Property Management, Bureau of Property Management ("DGS"), received a certification of need from the Department of Corrections ("DOC") requesting authority for DOC to advertise for competitive bids from private persons interested in providing leased office space needed to house DOC's Bureau of Industries. The Bureau of Industries was then located in leased space with leases which were scheduled to expire June 30, 1983. The Bureau of Industries has been located in DOC's central office area since its creation in 1957. The DOC central office includes the Secretary and Deputy Secretary; the Assistant Secretaries for Operations, Programs, Management, and Budget. All these officials, together with subsidiary bureaus, staff, and other subordinates are located in two adjacent buildings of the Winewood Office Complex on Blair Stone Road in Tallahassee. The prison industry program is under the supervision of the industries administrator who reports directly to the Assistant Secretary for Operations. DOC sought approval from DGS to enter into a lease for privately owned office space because of its perceived need to locate within walking distance of its central office. Programs administered by the Bureau of Industries work closely with other DOC personnel and functions located in the central office in the Winewood Office Complex. Moving any distance from the central office would create problems for the DOC mailing system and would require extra time spent traveling to and from the central office. Personnel in the Bureau of Industries utilize central office files, and confer often with staff located in the central office. Locating outside the general area of the central office would require additional expenses with regard to availability of vehicles, pick up of mail and supplies, and duplication of support services. Accordingly, DGS and DOC determined, and the record in this cause establishes, that it would not be in the state's best interest to require DOC to locate its Bureau of Industries program either in state-owned buildings in the Capitol Center, or in any area beyond walking distance of the central office location. On March 21 and 31, 1983, respectively, DOC published an advertisement in the Tallahassee Democrat inviting all interested persons to submit sealed bids at or before 2:00 p.m. on April 19, 1983, in accordance with the Invitation to Bid and Specifications prepared by DOC for the office space needed to house the Bureau of Industries. A portion of the bid specifications required that office space to be leased be located within a circle drawn on a city map of the City of Tallahassee, Florida, which could roughly be described as the southeastern portion of the city, in the vicinity of the Winewood Office Complex. There were four possible bidders in the area within the circle on the map attached to the bid specifications. Of these four possible bidders, two within the area actually submitted bids--Blairstone Center Partners and Washington Square, Ltd. One of the general provisions of the bid specifications provided as follows: The Department of Corrections reserves the right to reject any and all bids, waive any minor informality or technicality in bids received and to accept that bid deemed to be the lowest and best. . . At or before 11:00 a.m. on April 19, 1983, DOC received sealed bids from Petitioner and Intervenors in response to the aforesaid advertisement, and at 11:00 a.m. on April 19, 1983, DOC opened, tabulated, and published each of the bids. The bid submitted by Petitioner was not responsive to the requirements of the Invitation to Bid and Specifications because the property offered by Petitioner in its response was outside the area indicated on the map annexed to the Invitation to Bid. The bid submitted by Intervenor, Blairstone Center Partners, failed to offer the full services specified in paragraph six of DOC's Bid Submittal Form; failed to offer the exclusive parking specified in the paragraph seven of the Bid Submittal Form; failed to supply the photographs specified in paragraph ten of Respondent's Bid Submittal Form; and failed to supply the information specified in paragraphs one through eight of the Bid Submittal Form. Accordingly, the record in this cause fully establishes that the bids submitted by Petitioner and by Intervenors Blairstone Center Partners, failed to comply with the requirements of the Invitation to Bid and Bid Submittal Form, and that the deficiencies in the bids of Petitioner and Intervenor, Blairstone Center Partners, were so material as to require their rejection. The Invitation to Bid and Bid Submittal Form required that bidders offer for lease 2,683 square feet, plus or minus three percent. The bid submitted by Intervenor, Washington Square, Ltd., offered 2,797 square feet, which is approximately 34 square feet more than allowed in the Invitation to Bid. After this fact was discovered upon opening the bid, DOC personnel contacted a representative of Washington Square, Ltd., and advised the net square footage offered in the bid submitted by Washington Square, Ltd., exceeded the net square footage of space that DOC was authorized to lease and pay for under the Invitation to Bid. Washington Square, Ltd., subsequently agreed to modify its proposal by relieving DOC from any obligation to pay for the extra 34 square feet, and reducing the annual rental for the first year from $26,012.10 to $25,695.90, and for the second year from $27,576.60 to $27,243.18. The record in this cause does not establish any misconduct or collusion between Washington Square, Ltd., and DOC personnel obtaining this modification, nor does the record in this cause establish that any actual or prospective bidders suffered any competitive disadvantage as a result of this modification. The effect of Washington Square, Ltd.'s modification of its proposal rendered that proposal the only bid which was responsive to the Invitation to Bid. On August 18, 1983, Washington Square, Ltd., executed a deed to the property which was the subject matter of its bid to Ben Grace. Washington Square also executed an assignment of the proposed bid award to Grace.
