The Issue The issue in this case is whether the Department of Agriculture and Consumer Services (Department) acted in an arbitrary or capricious manner in rejecting all bids due to the vagueness of an addendum to bid specifications, and rebidding a contract for the installation and replacement of EDB water filters.
Findings Of Fact In September, 1986, Global submitted a bid to the Department for the installation and exchange of EDB water filters. The three lowest bidders, including Global, were disqualified. This bid was designated DOF-ADM-13. On or about November 14, 1986, the Department issued new bid specifications, and an invitation to bid designated DOF-ADM-29. Bidders were required to prequalify, but in other respects these specifications were essentially the same as the previous bid, DOF-ADM-13. The deadline for prequalification was December 2, 1986. Prior to the prequalification deadline, Global contacted the Department's contract manager, John Folks, and sought a change in the following prequalification requirement: All vendors must provide in writing from the National Water Quality Association proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a NWQA CWD-V certification and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers. Please note the calendar of events for deadlines. (Emphasis Supplied.) Global did not have NWQA level V certified installers, and therefore, could not qualify under this provision. However, they did have Class I plumber's licenses, the highest designation in North Carolina, the company's headquarters. James Tate, Global's Vice President, testified that a Class I plumber's license is the same as a master plumber in Florida. The Department's contract manager approved and issued an addendum which constituted an amended bid specification on November 20, 1986, to permit a Class I plumber's license or equivalent, as follows: All vendors must provide in writing from the National Water Quality Association proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a NWQA CWD-V certification or a class one plumber's license or equivalent and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers. Please note the calendar of events for deadlines. (Emphasis Supplied.) On December 3, 1986, Folks determined that Global was qualified to bid. Global submitted its bid on DOF-ADM-29 in a timely manner, and upon opening of all bids on December 15, 1986, was determined to be the lowest qualified bidder. Global was informed on December 15, 1986, that it was the winning bidder. However, on December 19, 1986, the Department posted its tabulation on bid DOF-ADM-29 which rejected all bids "due to ambiguities in specifications and prequalifying requirements." The specific reason for this rejection was that upon review of the addendum by the Department's General Counsel at the time, Robert Chastain, it was determined that the addendum was vague and ambiguous. Specifically, Chastain and Folks concluded that the reference to Class I plumber's license was ambiguous since such a designation does not exist in Florida, and it was unclear whether such licensure in another state would allow a plumber to work in the four Florida counties affected by this bid. This ambiguity in the addendum had been brought to the Department's attention by a competing bidder, Continental Water Systems, Inc., after bids had been opened on December 15, 1986, through a threatened bid protest. In rejecting all bids, the Department was attempting to avoid a protest either by Continental, if the award was made to Global, or by Global, if the award was made to Continental. The Department was reasonably concerned with the creation of a health emergency if the purchase of EDB filters was delayed through the filing of a bid protest. It sought to avoid any such delay by rejecting all bids and rebidding this contract as DOF-ADM-41 which contained the following redrafted specification: All vendors must provide in writing proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a National Water Quality Association (NWQA) CWD-V certification or are a certified master plumber in the State of Florida and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers or are a certified plumber in accordance with county regulations and requirements in the State of Florida. (Emphasis Supplied.) The redraft of the prequalification specification in DOF-ADM-41 corrected the ambiguities created by the November 20, 1986, addendum to DOF-ADM- 29, as to both management and staff. Global's notice of protest of the Department's decision to reject all bids was timely filed on December 23, 1986, as acknowledged-by the Department's then General Counsel, pursuant to Rule 13A-1.006(3), Florida Administrative Code, which is presumed valid. On January 23, 1987, the Commissioner of Agriculture issued a Declaration of Emergency in order to be able to proceed with the rebid, DOF-ADM- 41, despite Global's protest of the rejection of all bids in DOF-ADM-29. This Declaration of Emergency was upheld in Global Water Conditioning v. Department of Agriculture, 521 So.2d 126 (Fla. 1st DCA 1987). The contract in DOF-ADM-41 was awarded in February, 1987, to Continental. The contract for the installation and exchange of EDB water filters is an on going project, and, with the exception of the prequalification changes referenced above, the specifications for bids D0F-ADM-13, 29 and 41 were essentially the same.
Recommendation Based on the foregoing, it is recommended that the Department enter a Final Order dismissing Global's protest to the rejection of all bids in DOF-ADM-29. DONE AND ENTERED this 26th day of July, 1989, 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 26th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2642 BID Rulings on Global's Proposed Findings of Fact: This is not a proposed finding of fact, but a restatement of the issue in this case. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. 6-7. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 6. Rejected as irrelevant to the issue of whether the Department acted arbitrarily in rejecting all bids due to vagueness of the specifications. 10-16. Adopted in Findings of Fact 7 and 8. Rejected in Findings of Fact 8, 9, and 10. Rejected as cumulative. Adopted in Finding of Fact 13. Adopted in Finding of Fact 11. 21-22. Adopted in Finding of Fact 12. 23-26. Rejected as not based on competent substantial evidence in the record, and as irrelevant. Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 2. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative. Adopted in. Finding of Fact 5. Adopted in Finding of Fact 6. 9-12. Adopted in Findings of Fact 7 and 8. 13-17. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 11. 20-23. Adopted in Findings of Fact 9 and 10. 24-26. Rejected as irrelevant to the issue of whether the Department acted arbitrarily or capriciously in rejecting all bids due to ambiguities in the specifications. 27-28. Adopted in Finding of Fact 12. 29. Rejected as not based on competent substantial evidence, and as irrelevant. COPIES FURNISHED: James C. Barth, Esquire 433 North Magnolia Drive Tallahassee, Florida 32308 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory E. Horne, General Counsel Clinton H. Coulter, Esquire Mayo Building, Room 515 Tallahassee, Florida 32399-0800
The Issue Whether the Petitioner is entitled to the award of Bid Number 2002024C as the lowest responsive bidder.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department enter a Final Order dismissing the bid protest filed by the Petitioner regarding Bid Number 2002024C. DONE AND ENTERED this 10th day of April, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2002. COPIES FURNISHED: Carlton E. Oaks, President Aqua-Terra, Inc. of Martin County Post Office Box 2104 Hobe Sound, Florida 33475-2104 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3900 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue On March 16, 1992, Petitioner filed motions for attorney's fees and costs pursuant to Sections 57.105 and 120.57(1)(b)5., Florida Statutes. At hearing, Petitioner conceded that Section 57.105 is inapplicable to administrative hearings and the case proceeded on the issue of entitlement under Subsection 120.57(1)(b)5., Florida Statutes. The issue of an appropriate amount of fees and costs is moot, for the reasons set forth below, although that issue was reserved for ruling, if necessary, after an evidentiary hearing.
Findings Of Fact The following findings are gleaned from the record in case number 92- 0247BID. On June 21, 1991, the Department of Health and Rehabilitative Services (HRS), Developmental Services Program Office, published its need for six (6) bed or less intermediate care facilities for the developmentally disabled (ICF/DD) throughout the state, in each of eleven HRS planning districts. The notice solicited competitive proposal applications for varying numbers of beds in each district. The notice stated that applications would be received in each district no later than 5:00 p.m., September 19, 1991, and that final awards would be made on November 22, 1991. Sunrise Community, Inc. (Sunrise), filed petitions for formal hearing in response to denial of its proposal applications in several HRS districts. On January 2, 1992, the petitions were dismissed by HRS with leave to amend. An amended notice of bid protest and petition for formal hearing was filed by Sunrise on January 9, 1992, as to HRS District VII, and was forwarded to the Division of Administrative Hearings (DOAH) for conduct of the hearing. DOAH number 92-0247BID was assigned to the undersigned Hearing Officer and was set for hearing on January 31, 1992, within the deadline required by Section 120.53(5), Florida Statutes. HRS filed a motion to dismiss the amended petition on January 22, 1992, alleging that Petitioner, with its third-ranked proposal, lacked standing to protest, and further alleging that the amended petition lacked specificity. On January 23, 1992, Salem Village MRDD, Inc. (Salem), filed a Petition to Intervene, as the apparent successful bidder in HRS District VII. The second-ranked bidder, Community Services of Orange and Seminole, Inc. (CSOS) also petitioned to intervene in DOAH Case number 92-0247BID and had filed a separate Amended Notice of Bid Protest on January 17, 1992. HRS' motion to dismiss was heard on January 27, 1992. An order was entered on January 29, 1992, consolidating the Sunrise and CSOS petitions, granting Salem's petition to intervene, and denying HRS' motion to dismiss, but requiring Petitioner, Sunrise, to provide specifics of its factual allegations either through responses to discovery or in an amended petition to be served on opposing counsel prior to commencement of the hearing on January 31st. In the meantime, the parties were engaging in discovery, filing motions related to discovery and were proceeding towards hearing in this and the other cases arising from Sunrise's bid protests in other HRS districts. On the afternoon of January 30, the day before the scheduled hearing, after learning that CSOS was dismissing its petition, Sunrise withdrew its challenge in this District VII case and notified the parties by telephone. The Hearing Officer was notified directly by telephone by counsel for CSOS and the hearing scheduled to commence in Tallahassee on January 31 was cancelled. Without the participation of the second-ranked bidder, CSOS considered its chances of prevailing, as third-ranked bidder, were substantially reduced. A "Modified Amended Notice of Bid Protest," clearly mailed prior to Sunrise's voluntary dismissal, was filed at the DOAH on January 31, 1992. The identical pleading was apparently filed in this party's other bid protest cases in the other HRS districts, as the certificate of service reflects service on various other HRS district counsel. The pleading provides in paragraph 6.(a)- (z), pages 6-8, some specifics of Sunrise's allegations of defects in Salem's proposal and the bid committee's evaluation. The bid protest of Sunrise filed, not simultaneously, but at least contemporaneously with the protest of CSOS, the second-ranked bidder, did not itself cause delay in the process, and it was orally dismissed within hours or minutes of the attorney's discovery of dismissal by CSOS. The substantial weight of evidence in the record supports a finding that Sunrise's initiation and pursuant of a bid protest in Case number 92-0247BID was not for an improper purpose. There was a delay of several weeks between the oral dismissal and the order entered on March 20, 1992, remanding the file to HRS and closing DOAH's file. This delay was occasioned by the Hearing Officer's reluctance to close a file without written confirmation of dismissal, particularly since pleadings were still being docketed, erroneously, under the DOAH file number 92-0247BID. Those pleadings were identical to pleadings filed in several other HRS district bid cases that were still active. Salem, a party in those other cases, one of which proceeded to formal hearing and is waiting a recommended order, has not demonstrated any prejudice by that delay.
Findings Of Fact On April 24, 1992, the Respondent issued a Request for Proposals (RFP) pertaining to the provision of housekeeping services at South Florida State Hospital. Petitioner and Intervenor submitted responses to the RFP. After all responses were received, Respondent convened an evaluation committee to evaluate the responses. The evaluation committee recommended that Intervenor be awarded the contract. Petitioner's response was ranked by the evaluation committee as the second best response. Following the publication of the results of the evaluation committee, Petitioner filed a bid protest and asserted several grounds in support of its protest. At the formal hearing, the Petitioner abandoned all grounds except for the assertion that Intervenor had failed to disclose as a part of its financial information the existence of a tax lien. Petitioner asserted that the failure to disclose the tax lien should result in either the contract being awarded to it or the return of the matter to the evaluation committee for reevaluation. A Notice of Tax Lien was filed by the Florida Department of Labor and Employment Security for unpaid unemployment compensation taxes and was in the amount of $1,900.00. Intervenor paid the amounts secured by the said lien on May 12, 1992, which was before the responses were due to the RFP on June 5, 1992. The RFP requires certain financial information of the bidders, but it does not require bidders to list tax liens that may have been filed against it. There is no evidence that Intervenor failed to provide the financial information required by the RFP or that the information was inaccurate or incomplete. Petitioner failed to establish that the existence of this tax lien would have had any bearing on the evaluation of the responses. There was no evidence that Intervenor gained an unfair advantage over Petitioner or any other bidder by failing to disclose this tax lien in its response to the RFP. There was no evidence that Intervenor acted in bad faith or that it tried to misrepresent its financial condition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses Petitioner's bid protest. DONE AND ORDERED this 8th day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4310BID The Petitioner did not file a post-hearing submittal. The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order. The following rulings are made on the proposed findings of fact submitted on behalf of the Intervenor. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, and 30 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, and 31 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being unsubstantiated by the evidence. The testimony of Ms. Diaz as to whether the amount of the tax lien was included in this figure was equivocal. The proposed findings of fact in paragraph 18 are rejected as being unnecessary to the conclusions reached. When the Department of Labor and Employment Security satisfied the lien of record is not relevant to the issues presented by this matter. The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the findings made. COPIES FURNISHED: Gerry Gordon, Esquire 1413 South Howard Avenue Suite 202 Tampa, Florida 33606 Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Stephen G. Murty, Esquire Jay R. Tome, Esquire Murty and Tome, P.A. 777 Brickell Avenue Miami, Florida 33131 R. S. Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On April 24, 1992, Respondent issued a Request for Proposals for the provision of housekeeping services at South Florida State Hospital. The responses to the RFP were due June 5, 1992. A bidder's conference was scheduled for May 15, 1992. On page 21 of the RFP, the bidders are advised, in pertinent part, as follows: ... each proposal must contain a line item budget with detailed narrative justification for each expenditure category. A separate budget must be completed for each contract period ... The statement contained on page 21 of the RFP was repeated on page 31 of the RFP. Pages 70-72 of the RFP contained the RFP Rating Sheet to be used by Respondent's evaluation committee. Bidders are clearly notified that these criteria are considered to be "fatal items" and are advised: The following criteria must be met for the proposal to be considered for evaluation, failure to receive a "Yes" response for any [item] will result in automatic rejection of the proposal. (Emphasis in the original.) Listed as "fatal item" numbered 8 on page 71 of the RFP is the following: Does the proposal contain completed charts (page 11 through 14) and line item budgets for each contract period? Petitioner timely submitted a bid in response to the RFP. Petitioner had bid on prior contracts that Respondent had procured through the competitive bid process and was, at the time of the issuance of the RFP, the contract provider of the housekeeping services at South Florida State Hospital. Petitioner contends that its response to another item should be construed as an appropriate response to the requirements pertaining to line item budgets. This contention is without factual basis and is rejected. The bid submitted by Petitioner in response to the RFP did not contain a line item budget. Respondent's evaluation committee disqualified Petitioner's bid because it did not contain a line item budget as required by the RFP. On May 15, 1992, Respondent held a bidder's conference at which bidders were given the opportunity to ask questions about the bid requirements and specifications prior to the submission of bids. Petitioner was represented at the bidder's conference by Ritter Von Massenbach, who took notes at the meeting and who paid close attention to the discussion pertaining to fatal items. The minutes of the bidder's conference reflect that the bidders were told that a bid that failed to comply with a fatal item requirement would be disqualified. There were questions and answers as to how the bidders could meet the bid requirements pertaining to line item budgets and a specific discussion, with examples, as to what information Respondent expected to be contained in a line item budget. Mr. Massenbach was not instructed to ask about the line item budget requirement, nor did he do so. Mr. Massenbach reported to Andy Kontos, Petitioner's senior vice president, by telephone following the bidder's conference, but there was no discussion as to the line item budget requirement. Thereafter, Mr. Kontos prepared the bid that was submitted by Petitioner. An addendum to the bid along with the minutes of the Bidder's Conference was mailed to all bidders, including to Petitioner at the business address it had given Respondent, by certified mail, return receipt requested. This certified mailing was unclaimed by Petitioner and subsequently returned to Respondent on July 14, 1992, as being "unclaimed." The mailing envelope reflects that the package was postmarked on May 29, 1992, and that attempts at delivery were made on June 1, 1992, June 8, 1992, and June 16, 1992. Bids in response to the RFP were due June 5, 1992. The addendum did not pertain to or change in any material manner the fatal item requirement for a line item budget. Petitioner's contention that specific information as to what Respondent intended by the term "line item budget" was unclear and should have been included in an addendum is unsupported by the evidence and is, consequently, rejected. There was no evidence that Respondent was using the subject fatal item requirement to discriminate against or in favor of any proposer. Petitioner failed to establish that its failure to comply with the subject fatal item requirement was attributable to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the bid protest filed by Petitioner. DONE AND ORDERED this 8th day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4312BID The only post-hearing submittal filed by Petitioner is in the form of a letter addressed to the Hearing Officer. That letter contains argument, but not proposed findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 5, 6, 7, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 4 pertaining to the reasons Mr. Massenbach paid attention to the fatal items discussion are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Intervenor. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23, 27, 28, 29, 30, 32, 33, and 34 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 10, 18, 25, 26, 31, 35, 36, 37, 38, 40, and 42 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 20 are rejected as being unsubstantiated by the evidence. There was no evidence as to what was "made clear" to each bidder. The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the conclusions reached since there is no contention on the part of Petitioner that it was prevented from making inquiry. The proposed findings of fact in paragraphs 39 and 41 are rejected as being argument. COPIES FURNISHED: Rey J. Nieto, President Andy Kontos, Vice President Allstate Specialty Services, Inc. 371 West 21st Street Hialeah, Florida 33010 Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Stephen G. Murty, Esquire Jay R. Tome, Esquire Murty and Tome, P.A. 777 Brickell Avenue Miami, Florida 33131 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner's bid protest should be dismissed for failure to state with specificity the underlying facts of the protest or facts sufficient to form a basis for a bid protest.
Findings Of Fact The Petitioner filed a bid protest of Invitation To Bid (ITB) No. 13- 550-002-A for raised pavement markers. Petitioner was disqualified from award of the bid due to the failure to meet the requirement that the products bid must be on the Florida Department of Transportation Qualified Products List at the time of the bid opening. Petitioner's Formal Protest contains no specific allegations of fact and as such is not in conformance with Rule 60Q-2.004(3), Florida Administrative Code, and Section 120.53(5)(b), Florida Statutes. On December 20, 1995, the Hearing Officer, sua sponte, entered an order requiring Petitioner to file an amended Formal Protest stating with specificity the facts and law which form the basis for its protest. The document filed by Petitioner in response to the order in essence: States there are on-going discussions with the Florida Department of Transportation, ("FDOT") District V Secretary and the Florida Department of Transportation Secretary that should preempt any further litigation. Complains that Section 316.0745(4), of the Florida Statutes is being improperly interpreted by FDOT so that the State is being forced to purchase a highway safety product at a cost far in excess of prudent purchasing practices. Alleges that the Petitioner meets all the qualifications of laboratory and field testing required by the Florida Department of Transportation Materials Laboratory . . . The formal protest filed in this case by Pac-Tec does not provide such notice to the Department of Management Services. Therefore the Department of Management Services cannot prepare an adequate defense to the protest. The response does not cure the deficiencies in the formal protest.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Management Services issue a Final Order dismissing the Formal Protest filed by Petitioner. DONE and ENTERED this 24th day of January, 1996, 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 24th day of January, 1996. COPIES FURNISHED: Cindy Horne, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 David H. Smith, Esquire Post Office Box 279 Astor, Florida 32101 Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 William H. Linder, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Request for Proposals Through the issuance and distribution of a Request for Proposal and/or Proposal Submittal Form (RFP), the Department's Region IV solicited the submission of proposals from prospective lessors interested in leasing to the Department office space in an area (more particularly described in the RFP) in Broward County. The RFP contained the following "General Specifications and Requirements," among others: Net square footage required: 9,196 (within plus 3 percent tolerance) measured in accordance with the Standard Method of Space Measurement (Attachment A). NOTE: restrooms and mechanical rooms are not to be included in calculating net rentable square footage. BIDDER RESPONSE: Net square feet available (Space offered must be within the +3 percent required) . . . Space to be located in the County of Broward, Florida depicted in the following boundaries: NORTH: N.W. 2nd Street, N.E. 2nd Street SOUTH: Davie Boulevard EAST: Federal Highway, U.S. 1 WEST: S.W. 4th Avenue, N.W. 7th Avenue (See attached map (Attachment B). ) Proposals (bids) shall be considered responsive if the space is within or abutting the specified boundaries. Space for purpose of this paragraph means the net square footage to be leased. BIDDER RESPONSE: (address of proposed location- mark location on Attachment B also). Include zip code. The offered space represents entire building. percent of the Space to be made available on July 1, 1997 or within 90 days after notification of award of proposal, whichever occurs last. . . . Term of lease: Five (5) years with an option to renew for an additional Five (5) Years. Services: Full Services to be provided by lessor, including utilities, interior and exterior maintenance, recycling services, garbage disposal, janitorial services and supplies as specified in Attachment C. . . . Photographs and Floor Plans: As part of the bidder's submittal, bidders are to provide: A clear photograph or prospectus showing exterior front, sides and rear of the proposed facility. A floor plan to scale . . . showing present configurations with measurements that equate to the net rentable square footage. The final floor plan will be as described in the specifications and as identified through consultation with the Department. BIDDER RESPONSE: Floor Plan and Photograph(s) are included as a part of this proposal. . . . Existing building. The proposed space must be an existing building. To be considered as existing the proposed space must be dry and measurable (capable of being physically measured). To be considered as "Dry and Measurable" the construction area of all floors of the building including bathrooms, basement, mechanical equip- ment rooms, stairways, penthouses, and the like must be enclosed with floor, finished roof and exterior walls with windows and doors installed, so that the interior of the building will remain dry during adverse weather conditions. The areas mentioned must be clearly defined within the building, but are not required to be completed, to allow the actual occupiable (rental) area of the building to be measured at the time of pro- posal submittal. Renovations to bring the facility into compliance with all applicable Federal, State and local codes and regulations and/or to meet the desired arrangements are permitted, if carried out in accordance with prescribed procedures. The facility must comply or be renovated to comply with the requirements for Accessibility by Handicapped Persons as mandated by Chapter 553, Sections 553.501-553.513, Florida Statutes, and the latest Accessibility Requirements manual published by the Department of Community Affairs, (DCA) Florida Board of Building Codes and Stan- dards, as well as the requirements of Public Law 101-336, July 26, 1990 known as the "Americans with Disabilities Act of 1990" Appendix A to Part 36, "Standards for Accessible Design." The Lessor agrees that the de[v]ised premises now conform, or that, prior to Lessee's occupancy, that said premise[s] shall, at the Lessor's expense, be brought into compliance with all specified requirements. (Attachment D). Successful bidder will provide a floor plan including a site plan of the parking areas for ADA review. . . . The RFP contained the following "Space Requirement Criteria," among others: Plans review fees for State leased buildings: Floor plans are to be a joint effort of departmental staff and the successful bidder. The successful bidder is to provide architectural services by a licensed architect to prepare renovation plans per the 1991 Edition of NFPA 101. The final floor plan is subject to department determination and State Fire Marshall review and approval. . . . See floor plan, Attachment H, for suggested configuration of offices and rooms. 5 Offices not to exceed 120 sq. ft. each- 600 net sq/ft 55 Offices not to exceed 64 sq. ft each- 3,520 net sq/ft File Areas- 84 net sq/ft Reception Areas- 300 net sq/ft Conference Room- 550 net sq/ft Storage Areas with floor to ceiling shelves- 180 net sq/ft Copy and Mail Distribution Room- 100 net sq/ft Employee Lounge with sink/cabinets/counter top- 90 net sq/ft Inactive File Room w/open shelves- 2,000 net sq/ft Drug Testing Room*- 100 net sq/ft MIS & Office Automation Terminals and Printers- 255 net sq/ft Firearm Storage- 40 net sq/ft Internal Circulation- 1,377 net sq/ft *Must include: Adjoining restroom, stainless steel sink, viewing window between testing room and restroom, storage shelves and cabinets, and dead bolt lock on testing room. This bathroom is additional to restrooms referenced under "Restrooms" . . . 8. Restrooms: (must meet requirements of Americans with Disability Act of 1990 and the requirements of the Accessibility by Handicapped Persons, Section 553.504(12-13), Florida Statutes- Attachment D): Waterclosets- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Urinals- 1 Men's (Public); 1 Men's (Staff) Lavatories w/mirrors- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Note: If space is offered on more than one floor, restroom facilities must be provided to code on each floor in conformance with occupancy and code requirements whichever is greater. . . . The RFP contained the following "General Provisions," among others: 2. All bids accepted by the State are subject to the State's terms and conditions and any and all additional terms and conditions submitted by bidders are rejected and shall have no force and effect. . . . 5. All Proposal sheets must be executed and submitted in a sealed and titled envelope, enclosed in an outer envelope. The face of the inner envelope shall contain, in addition to the Department's address . . ., the date and time of the bid opening and the lease number. PROPOSALS NOT SUBMITTED ON THIS PROPOSAL SUBMITTAL FORM SHALL BE REJECTED. All proposals are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. Each proposal shall be signed by the owner(s), corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). . . . The Department agrees to enter into a lease agreement based on submission and accep- tance of the proposal in the best interest of the Department and the State. The Department reserves the right to reject any and all proposals for reason which shall include, but not be limited to, the agency's budgetary constraints; waive any minor infor- mation or technicality in proposals, to accept the proposal deemed to be the lowest and in the best interest of the State, and if necessary, to reinstate procedures for soliciting competitive proposals. . . . Late proposals, modification of proposals, or withdrawal of proposals: Any proposal received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. A proposal may be withdrawn in person by a proposer or his/her authorized representative provided his/her identity is made known and he/she signs a receipt for the proposal, but only if the withdrawal is made prior to the exact time set for the receipt of proposals. . . . Sealed proposals will be received until 10:00 a.m. on August 21, 1996 by Maria L. Cortes at 3810 Inverrary Blvd., Bldg. C, Suite 101 Conference Room, Lauderhill, FL 33319, at which time all proposals will be publicly opened and read aloud. Notification of award will be made within 30 calendar days and shall be given either by posting the proposal tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. . . . A preproposal conference . . . will be held at 10:00 a.m. on July 17, 1996 at 3810 Inverrary Blvd., Bldg C, Suite 101, Conference Room, Lauder- hill, FL 33319 "Attachment A" to the RFP was the "Standard Method of Space Measurement," which was referenced in the "Net square footage required" provision of the RFP's "General Specifications and Requirements." "Attachment A" read as follows: STANDARD METHOD OF SPACE MEASUREMENT The purpose of this standard is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). It should also be noted that this standard can and should be used in measuring office space in old as well as new buildings, leased office space as well as State-owned office space. It is applicable to any architectural design or type of construction because it is based on the premise that the area being measured is that which the agency may occupy and use for its furnishings and its people. This standard method of measuring office space measures only occupiable space, undistorted by variance in design from one building to another. It measures the area of office building that actually has usable (rental) value and, therefore, as a standard can be used by all parties with confidence and with a clear understanding of what is being measured. Area measurement in office buildings is based in all cases upon the typical floor plans, and barring structural changes which affect materially the typical floor, such measurements stand for the life of the building, regardless of readjustments incident to agency layouts. All usable (rentable) office space, leased or State-owned, shall be computed by: Measuring to the inside finish of permanent outer building walls to the office side of corridors and/or other permanent partitions, and to the center of partitions that separate the premises from adjoining usable areas. This usable (rentable) area shall EXCLUDE: bathrooms, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closet, electrical closets-- and such other rooms not actually available to the tenant for his furnishings and personnel--- and their enclosing walls. No deductions shall be made for columns and projections necessary to the building. Pre-Proposal Conference A pre-proposal conference was held, as scheduled, to give prospective lessors the opportunity to receive from the Department answers to questions they had regarding the RFP. The Department emphasized to those prospective lessors who attended the pre-proposal conference that, as indicated in the "Net square footage required" provision of the RFP's "General Specifications and Requirements," it would not accept a proposal offering space with a "net square footage" of less than 9,196 square feet. Petitioner did not send a representative to the pre-proposal conference. Petitioner's Proposal Two proposals were submitted in response to the RFP. One of these proposals was submitted by Petitioner, which offered the Department the entire space in a two-story building located at 609 South Andrews Avenue in Fort Lauderdale, Florida (Petitioner's Building). In its proposal, Petitioner indicated that the "net square feet available" in its building was 9,370. Along with its proposal, Petitioner submitted to the Department existing and proposed floor plans. There are currently two restrooms on the first floor of Petitioner's Building and two restrooms on the second floor of the building. None of these restrooms meets the accessibility requirements prescribed in the RFP. It is Petitioner's intention, if it is awarded the lease by the Department, to eliminate these existing restrooms and replace them with restrooms to be constructed adjacent to the existing structure in space that is not now, nor was it at the time of the submission of Petitioner's proposal, "Dry and Measurable," as that term is defined in the "Existing building" provision of the RFP's "General Specifications and Requirements." These intentions of Petitioner's were reflected in the materials Petitioner submitted to the Department along with its proposal. The Department's Initial Evaluation of the Responsiveness of the Two Proposals Douglas Sweredoski is the Facilities Services Manager Assistant for the Department's Region IV. He is a certified real estate appraiser. On or about September 15, 1996, Sweredoski went to Petitioner's Building and measured the dimensions of the building (and certain of its component parts), using an electronic measuring device, to ascertain whether the building had the "net square footage required" by the RFP. Employing the "Standard Method of Space Measurement," Sweredoski reasonably determined that Petitioner's Building had less than the "net square footage required" by the RFP and that therefore Petitioner's proposal was not responsive to the RFP. The other proposal that the Department received was also deemed to be non-responsive (a determination that has not been challenged). The Department's Notice of Rejection of Proposals Having determined that both proposals it had received were materially non-responsive, the Department, by letter dated September 19, 1996, informed Petitioner of the following: This letter is to inform you that the Department of Corrections has determined that it is in the best interest of the State of Florida to reject all bids submitted for the above referenced lease [Lease No. 700:0754]. A new Request for Proposal will be issued soon. This letter constitutes agency action concerning the referenced bid. You have seventy-two (72) hours from receipt of this letter to file a written notice of protest to this action, and ten (10) days after filing such written notice of protest to file a formal written protest. All documents should be addressed to the undersigned at 3810 Inverrary Boulevard, Building C, Suite 101, Lauderhill, Florida 33319. Failure to file a protest within the times prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Protest Petitioner timely protested the Department's decision to reject Petitioner's proposal and to issue a new RFP. Sweredoski's Return to Petitioner's Building On or about October 1, 1996, Sweredoski returned to Petitioner's Building to verify the accuracy of the measurements that he had obtained (using an electronic device) during his earlier visit to the building. On this follow-up visit to the building, Sweredoski used a mechanical device (more specifically, a tape measure) to measure the dimensions of the building (and certain of its component parts). The measurements he obtained during this second visit were "very close" to the measurements he had obtained during his previous visit. Sweredoski, employing (as he had during his earlier visit) the "Standard Method of Space Measurement," reasonably determined that Petitioner's Building had a "net square footage" of 8,731 net square feet (a "gross square footage" of 9,369 square feet minus: 271 square feet for the existing stairway leading from the first to the second floor; 110 square feet for the existing telephone/mechanical closet on the second floor; and 257 square feet for the existing bathrooms on the first and second floors). Referral of Petitioner's Protest to the Division On October 10, 1996, the Department referred Petitioner's protest to the Division.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order denying Petitioner's protest of the Department's decision to reject all proposals (including Petitioner's) submitted in response to the Department's request for proposals for Lease No. 700:0754. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1996. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996.
The Issue The issues in this bid protest are whether Intervenor's bid was nonresponsive because Intervenor, a corporation formed in 2005, lacks the required five years' experience in the tree trimming business; and, if so, whether Respondent's preliminary decision to award Intervenor the contract at issue was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Pursuant to Invitation to Bid No. 27-054X (the "ITB"), which was issued on August 10, 2006, Respondent Broward County School Board ("School Board") solicited bids for "Tree Trimming, Planting, Hurricane Cleanup, and Removal Service." Interested vendors were instructed to bid prices on numerous items of service. The items were sorted into two groups, Group A and Group B. The School Board intended to designate a "primary vendor" for each group, who in the ordinary course of events would receive the largest volume of work, but it reserved the right to procure services from the second and third lowest bidders in each group should it become necessary or desirable to do so. Bids were due on September 13, 2006. Section 4 of the ITB contained "Special Conditions" applicable to this procurement. Of interest in this case is Special Condition No. 11, which specified the qualifications a vendor needed to be considered for an award: BIDDER'S QUALIFICATIONS: Bidder must have at least five years experience in tree trimming services within the Miami-Dade, Broward and Palm Beach tri-county area. Bidder must submit, with the bid or uponrequest, the attached Bidder's Profile form. This report must include a minimum of three references from commercial jobs. Each reference should include the address of the actual job, work accomplished and a phone number and contact person. (Emphasis in original.) The Bidder Profile form to which Special Condition 11 referred was located in Section 7 of the ITB as Attachment 1. At the top of the Bidder Profile appeared the following direction and warning: THIS INFORMATION MUST BE SUBMITTED WITH THE BID. FAILURE TO COMPLETE THIS SECTION WILLDISQUALIFY THE SUBMITTED BID. (Emphasis in original.) Paragraph 12 of the Bidder Profile form stated as follows: References Required. Contractor to provide a list of three references. Three references from jobs completed in each of the past three years. More than one dozen vendors timely submitted bids, which the School Board opened on September 13, 2006. Among the bidders were Petitioner Phil's Expert Tree Service, Inc. ("Expert") and Intervenor Innovative Environmental Services, Inc. ("Innovative"). After tabulating the bids, the School Board determined that Innovative was the lowest and best bid from a responsive, responsible bidder with regard to Group A, followed by Expert and All County Tree & Landscape Co., Inc. ("All County"), in that order. Thus, when the award recommendations were posted on September 27, 2006, Innovative was named the intended primary awardee for Group A, Expert the first alternate, and All County the second alternate.1 Innovative is a family business whose principals are Craig and Deborah Conway, husband and wife. In the year 2000, the Conways moved to South Florida from Pennsylvania, where, for more than 20 years, they had operated a tree trimming and land clearing business. After arriving in Florida, the Conways entered into a business arrangement with Donald Richter, a certified arborist, whereby they jointly provided tree trimming services under the name "ASAP Tree Service" or "Don Richter's ASAP Tree Service." In October 2002, the Conways formed a corporation called Independent Equipment South, Inc. ("Independent"). Independent operated an equipment sales and rental business whose inventory consisted of equipment that was not being used in the family's tree trimming operations. Eventually, the Conways' tree trimming service become part of Independent's business portfolio as well. In February 2005, Innovative was incorporated. At all times relevant to this procurement, Mrs. Conway has been the sole corporate officer, Mr. Conway the company's Director of Operations. In addition, at all relevant times, Innovative has employed or otherwise retained Mr. Richter as its certified arborist. Although Innovative and Independent are separate corporate entities, the two businesses operate out of the same location, have the same employees, and use the same equipment. The Conways commonly refer to their businesses as "IES," using that acronym interchangeably to mean either Innovative or Independent (or both). Innovative's Bidder Profile, which was submitted together with its bid, referred to——and incorporated——an attachment entitled, "Brief Company History." The Brief Company History provided background information on Innovative's provenance, albeit from a layperson's perspective. Written by nonlawyers, the summary was not always technically precise, from a legal standpoint, in its descriptions of the various business associations in which the Conways have been involved. Seizing on the least artful phrases, Expert contends that some of the statements in the Brief Company History were false and perhaps even fraudulent. The undersigned, however, finds otherwise. To the point, the Brief Company History reflects an honest attempt truthfully to describe the Conways' family businesses, which is reasonably accurate when read and understood from the perspective of the small-business owners who prepared it. That said, the undersigned finds and determines that Innovative——as distinct from its principals and/or personnel—— did not have five years' experience in the tree trimming business when it bid on the contract at hand, notwithstanding the wealth of tree trimming experience at its disposal. Indeed, having been in existence for fewer than two years at the time it submitted its bid, Innovative, as a separate legal entity, could not possibly have garnered, in its own right, five years' experience doing anything. For the same reason, though Innovative provided plenty of references, the ones that stemmed from jobs completed before February 2005 necessarily related to providers other than Innovative, such as ASAP Tree Service, who actually existed then. To be sure, the providers who earned the references from earlier jobs upon which Innovative relied either were predecessor business associations or individuals who would become personnel of Innovative——but they were not Innovative. Innovative simply could not have performed or completed any jobs before its creation. It is determined, therefore, as a matter of ultimate fact, that Innovative's bid did not strictly conform to the plain language of Special Condition No. 11. Like Innovative, Expert is a family-owned business. Founded in 1985 by Philip Simeone, Expert was incorporated in 1992. Though Expert clearly possesses the length of experience for which Special Condition No. 11 called, Expert failed in its Bidder Profile to provide three references "from jobs completed in each of the past three years," as instructed in paragraph 12 of the ITB's Section 7, Attachment 1. Instead, Expert gave two references from jobs completed in 2006 plus another from a job completed in 2004. Expert's bid did not contain a reference from a job completed in 2005. Expert contends that the School Board should have rejected Innovative's bid as materially nonresponsive (for lacking the requisite five years' experience) and awarded the contract to Expert as the lowest responsive bidder. The School Board and Innovative take the position that the School Board's decision to treat Innovative's bid as responsive was not clearly erroneous, arbitrary, or capricious. Turning the tables, the School Board and Innovative argue that Expert's own bid deviated from Special Condition No. 11, in that Expert failed to provide a reference from a job completed in 2005.2 Yet both assert that "it was reasonable for [the School Board] to waive the requirement of the Bidder Profile form that one . . . reference[] be [from] a job completed in the year 2005." Somewhat inconsistently, however, Innovative argues further that Expert's "bid proposal cannot be sustained"——evidently due to its material nonresponsiveness. This apparent inconsistency follows from Innovative's attempt to play down its alternative position, which is that if "a contrary conclusion [had] been reached as to [Innovative's] experience"—— meaning that if the School Board had chosen not to waive any irregularity concerning Innovative's length of corporate experience——then the "same analysis would apply to" Expert—— meaning that Expert's bid too should have been disqualified. Thus, even though Innovative maintains that the School Board reasonably waived any irregularities in Expert's bid, Innovative is unwilling to concede that the School Board did not err in determining that Expert's bid was responsive, evidently out of concern that such an admission might compromise its fallback position. Innovative's bottom line is that if Innovative's bid were to be disqualified as materially nonresponsive, then Expert's bid would need to be rejected, too.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that (a) declares Innovative's bid to be materially nonresponsive and, accordingly, rescinds the proposed award to Innovative; and (b) declares Expert's bid to be materially nonresponsive and, accordingly, rejects the same. Because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation as to whether the School Board should award the contract to All County (which was the putative "second alternate") or reject all bids and start over. DONE AND ENTERED this 19th day of March, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2007.
Findings Of Fact Since 1984 Respondent Department of Health and Rehabilitative Services (hereinafter "the Department") has served as the distributing agency for United States Department of Agriculture surplus foods to be distributed to needy people in the State of Florida. These foods are butter, processed cheese, non-fat dry milk, cornmeal, rice, flour, and honey. The Department contracts with companies in the food storage and distribution business-to store the surplus food and distribute it to emergency feeding organizations. The emergency feeding organizations then distribute the food to needy persons. Each year the Department enters into contracts for various regions within the State. Petitioner Wales Industries, Inc. (hereinafter "Wales"), Intervenor Mid-Florida Freezer Warehouses, Ltd. (hereinafter "Mid-Florida"); and Gulf Cargo Services, Inc. (hereinafter "Gulf Cargo"); have all been awarded contracts with the Department over the years for storage and distribution of the surplus foods in the various regions of the State. On or about June 12, 1987, the Department issued an Invitation for Bid (hereinafter "IFB 87-1") which advised prospective bidders that sealed bids would be opened on July 10, 1987 for a contract for the storage and distribution of the surplus foods for the period of October 1, 1987 to September 30, 1988. A bidder under IFB 87-1 would be required to store the above-described commodities in dry, chilled, and frozen storage. The provider must also be able to ship the commodities under dry, chilled, and frozen conditions to emergency feeding organizations throughout the state. The bid evaluation criteria set forth in Paragraph E of IFB 87-1 provide, in part, as follows: c. The bid will be awarded to the Bidder submitting the lowest delivered price per CWT for dry, cold, and frozen donated foods inclusive for each Region, combination of regions, or statewide as bid. The bid price for pick-up at the Provider's warehouse is informational, but is not a consideration in award of the bid. Paragraph numbered eight of the General Conditions of IFB 87-1 notifies actual or prospective bidders who dispute the reasonableness, necessity, or competitiveness of the terms and conditions therein or of the bid selection or contract award recommendation that they must file a protest within the time prescribed in section 120.53(5), Florida Statutes, or be deemed to have waived their right to do so. IFB 87-1 included an estimate of the number of cases and weights of commodities to be handled by a provider per region. This information was characterized as "History of 1986-1987 Cases and Pounds" but this characterization was amended to "Estimates of 1986-1987 Cases and Pounds" by letter of amendment dated June 18, 1987. IFB 87-1 provides elsewhere that these distribution rates are subject to change. By further letter of amendment dated June 23, 1987, the Department notified prospective bidders that bids based upon combinations of regions were acceptable, and revised bid sheets with blanks for the dollar bid for each of the three types of commodities were provided to prospective bidders with the letter of amendment. On June 26; 1987; the Department conducted a bidder's conference for IFB 87-1. Representatives from Wales and Mid-Florida attended the bidder's conference and asked questions of the Department's representatives concerning IFB 87-1. Wales, Mid-Florida, and Gulf Cargo (among others) submitted sealed bids by the deadline at 2:00 p.m., July 10, 1987. Gulf Cargo submitted a bid for Region I only. Wales submitted individual bids for each of Regions I through VI. Mid- Florida submitted individual bids for Regions II through VI and two bids combining various regions except for Region I. Gulf Cargo was awarded a contract for Region I, and Mid-Florida was awarded a contract based on its combined bid for Regions II through VI. The bid awards were announced on July 17, 1987. Wales' notice of intent to file formal written protest is dated July 23, 1987. Wales filed its formal written protest on July 31, 1987. The volume and type of surplus foods distributed through the program is solely dependent upon the commodities made available to the Department by the federal government. There is no guarantee that the State of Florida will receive any particular amount or mix of the commodities distributed through the program. Therefore, the data supplied by the Department to prospective bidders regarding the volume and type of surplus foods to be stored and distributed is based upon actual historical data and is the most accurate data available. Neither IFB 87-1 nor the contracts for previous years under this program guarantee the successful bidder any amount of revenue or any volume of goods to be handled. The method of bid evaluation that was set forth in IFB 87-1, which was emphasized at the bidder's conference, and which was memorialized in the Department's June 29, 1987 listing of questions and answers from the bidder's conference and sent to all prospective bidders was the same the Department would average the bid prices for each type of commodity, i.e., frozen, dry and chilled. The averaging method utilized results in the lowest cost accruing to Use State and actually resulted in a lower bid price for the 1987-88 contracts than the 1986-87 contracts. The actual cost to a provider of storing and transporting frozen, chilled, and dried commodities varies according to the facilities and equipment owned by each prospective bidder. The averaging method utilized by the Department for IFB 87-1 permits bidders to develop competitive bids based upon the bidder's individual costs, storage facilities and equipment; and the bidder's anticipation of the volumes and types of commodities likely to be received from the federal government. The information provided in IFB 87-1 as to drop sites for delivery by the providers was sufficient for prospective bidders to develop competitive bids. The requirement contained in IFB 87-1 that the provider would be responsible for providing off-loading facilities in Dade, Broward, and Duval counties did not prevent the formulation of competitive bids.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is, RECOMMENDED that a Final Order be entered dismissing the bid protest filed by Wales Industries Inc.; awarding the 1987-88 contract for Region I to Gulf Cargo Services, Inc.; and awarding the 1987-88 contract for Regions II-VI to Mid-Florida Freezer Warehouses Ltd. DONE and RECOMMENDED this 14th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3317BID The Department's proposed findings of fact numbered 1-3 and 7 have been adopted either verbatim or in substance in this Recommended Order. However, the Department's proposed findings of fact numbered 4-6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Mid-Florida's proposed findings of fact numbered 1-20 have been adopted either verbatim or in substance in this Recommended Order. Wales' proposed findings of fact numbered 1-4 and 9 have been adopted either verbatim or in substance in this Recommended Order. However, Wales' proposed findings of fact numbered 12-15 have been rejected as being contrary to the evidence in this cause; Wales' proposed finding of fact numbered 16 has been rejected as not being supported by the evidence in this cause; and Wales' proposed findings of fact numbered 5-8, 10, and 11 have been rejected as being subordinate to the issues under consideration herein. COPIES FURNISHED: Sam Powers Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Martin R. Dix Esquire Barnett Bank Building Suite 800 315 South Calhoun Street Tallahassee, Florida 32301 Robert Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32399-0700 Harold T. Bistline Esquire Building 1, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this proceeding are: 1) whether either of the Petitioners' bids were responsive to the Invitation to Bid #298-730-310-W; 2) whether either Petitioner should be awarded portions of the bid; and 3) whether DGS should reject all bids. The parties' positions on these issues are summarized: DGS argues that its intended action to reject all bids is compelled by its rules governing the competitive bid process. It contends that Tel Plus was initially considered non-responsive but was deemed the responsive low bidder on some portions of the bid after it agreed to substitute equipment. DGS contends now that substitution is improper. Inter-tel was consistently considered non- responsive by DGS because of alleged non-compliant data in its technical literature. DGS concedes that, but for this non-compliance, Inter-Tel would be lowest responsive bidder in various categories. Tel Plus argues that its bid was responsive as it proposed to provide equipment previously required in DGS' specifications for other bids. Tel Plus claims that its equipment is equivalent to the equipment now required in the DGS specifications and DGS should have known that. Tel Plus argues that the transposition of numbers in the model number of the equipment was a typographical error which can be corrected after the bid opening. In the alternative, Tel Plus argues that it should be able to substitute equipment as DGS has allowed substitution in the past. Further, the equipment in issue is a small component of the overall system and, comparing its price to the price of the whole, it is a non-material change in the bid. Inter-Tel claims that its bid was responsive as the technical literature it submitted was merely an installation manual providing an optimum range of temperatures provided. Its equipment allegedly meets the specifications, and the company should have been permitted to explain its bid as the prior practice of DGS was to allow such explanations.
Findings Of Fact The Invitation to Bid (ITB) On May 7, 1986, the Department of General Services (DGS) mailed ITB No. 298-370-310W to approximately 100 vendors. The ITB sought bids for various sizes of electronic key telephone systems that would then be available for purchase by state agencies and others entitled or required to participate in the state purchasing system administered by DGS. The ITB specified technical requirements for seven sizes or configurations of systems. An addendum to the ITB divided the state into four geographical service areas. The vendors were invited to bid on any or all of the configurations for each of the service areas; a total of twenty-eight separate awards was, therefore, possible. Specifications in the ITB required a powerline surge protector, a small device which plugs into an electrical outlet and protects the electronic system against voltage surges through a powerline. In the past, DGS bid specifications for similar equipment required a model TII 428 surge protector or equivalent. However, agencies were experiencing extensive and expensive damage to electronic equipment, so DGS' Division of Communications investigated other equipment and determined that a model PTS-120 HP was more efficient. The technical specifications in the ITB here at issue required a PTS-120 HP "or an approved equivalent". (Joint exhibit #1, p. 68, paragraph 3.6) Another requirement of the technical specifications related to the environment for the key service unit (KSU), the heart of the electronic key telephone system. Paragraph 3.7 required that the KSU "... shall be fully operable during the following environmental conditions: Temperature 40 degrees F to 100 degrees F (4 degrees C to 38 degrees C) Relative Humidity 20 percent to 80 percent (Joint Exhibit #1, p. 69) These environmental conditions are significant because the KSU is heat sensitive and the equipment is commonly installed in closets or equipment rooms that are neither vented nor climate-controlled. The ITB included at least two provisions relating to the bidder's responsibility to provide technical literature. Paragraph 5 of the General Conditions provides: MANUFACTURERS' NAME 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 specifications for any item(s). 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 item(s) as an approved equivalent. Bids which do not comply with these requirements are subject to rejection. (emphasis added) Included in the Special Conditions, page 6, is this provision: Technical Literature Technical literature is a requirement of this bid to accommodate an evaluation to assure products offered meet or exceed the specification attached hereto. Bidder shall furnish with his bid, for all equipment offered, technical information consisting of two sets of manufacturers specifications, graphs, charts, sketches, photographs, circuit diagrams, instruction manuals, station user guide and attendant user guide pamphlets and equipment lists. Failure to provide such data with the bid may result in rejection of the bid. (Joint Exhibit #1) There were no questions or protests from the vendor community regarding the change in specifications related to the powerline surge protector. (transcript, p. 82) Approximately fifteen bids were received and were opened by DOS on July 7, 1986. (transcript, p. 20) Tel Plus Bid Tel Plus Florida, Inc. (Tel Plus) bid on each of the seven configurations for the four service areas. The equipment list provided for each configuration in its bid consistently listed "T11248 Surge Protector", rather than the PTS 120 HP called for in the ITB specifications. Although Tel Plus submitted some technical literature, (its general description, installation and service manual for "Tel Plus 816 Electronic Key Telephone System"), no technical literature nor explanation was submitted for the surge protector. (Joint exhibit #2, Inter-Tel Exhibit #1) Tel Plus intended to include the TII 428 surge protector throughout its bid; the model designation "248", was a typographical error. (Transcript, p. 129-133) Inter-Tel Bid Like Tel Plus, Inter-Tel bid each of the seven configurations, state- wide in all four service areas. (Joint Exhibit #3) Inter-Tel's technical response to ITB specification 3.7 relating to KSU operating temperatures stated: Comply. Environmental conditions listed are assumed to be for KSU interior. Installation manuals list ambient conditions with free air circulation. (Joint Exhibit #3, Technical response, p. 2.) Inter-Tel does not have a document containing full systems specifications. For its technical literature back-up it submitted several pages from an installation manual and several volumes of its installation and field maintenance manual. (Transcript, p. 187-188; Joint Exhibits #3 and 9). Those submittals provide in pertinent part: Environmental Requirements 3.05 The environmental requirements for the KSU are as follows: Requirements In Operation Temperature 32 to 80 F 0 to 26.5 C The manuals are guides to service personnel and contain recommendations to installers for climate conditions. The manuals do not include specifications of the temperature limits to which the equipment can be subjected and still operate. While some testimony was provided at the hearing that the equipment could operate at the extremes described in ITS specification 3.7, that information was not included anywhere in Inter-Tel's bid. (Transcript pp. 182-183, Joint Exhibits #3 and 8). Review and Disposition of Bids by DOS After opening, the bids were reviewed by the staff of the Division of Purchasing, Bureau of Procurement, and were then sent to the Division of Communications for a technical evaluation. The Division of Communications had prepared the technical specifications for the ITB in this case. (Transcript pp. 18, 24.) In his review of the bids, Roger Fisher, a communications engineer in the Division of Communications, found a problem with some of the vendors who submitted other than the designated PTS 120 HP surge protector on their equipment list and failed to provide technical literature to verify that it was "equivalent". He called approximately ten vendors and gave them the option of sending the technical literature or sending a letter stating that the specified equipment would be provided at no additional cost. (Transcript pp. 42, 43.) In response to the phone call, Jim Begue of Tel Plus sent a letter dated August 28, 1986, stating that the PTS powerline surge protector would be provided at the same prices quoted in his company's bid. (Joint Exhibit #2B) Inter-Tel was not contacted with regard to the discrepancy between its response, "comply", and its technical literature addressing temperature ranges for operation of the KSU. Inter-Tel's bid was determined to be non-compliant. On September 23, 1986, the bid tabulations were posted and Tel Plus was designated the lowest responsive bidder in eighteen of the twenty-eight configurations. Inter-Tel was the lowest bidder on eighteen of the twenty-eight configurations, but as indicated above, was considered non-responsive. (Joint Exhibit #6) The posting was withdrawn on September 24, 1986, because of some question with regard to the compliance of Tel Plus and other bidders' description of the "hands-free" features of their systems. It was determined that the systems were in compliance with the ITB. (Joint Exhibit #6 and #7) On October 3, 1986, a second list was posted indicating that Tel Plus was the lowest responsive bidder in twenty-one of the twenty-eight configurations. Inter-Tel was still the lowest bidder in eighteen configurations and was still deemed non-responsive in all configurations. (Joint Exhibit #8) Once more, DGS purchasing and communications' staff evaluated the process, and after meeting with the department attorney, decided that the contacts resulting in change of bid response were inappropriate. (Inter-Tel Exhibit #3, pp 12-13). The re-evaluation eliminated all but one responsive bidder. The bid was deemed non-competitive. On October 28, 1986, certified letters were sent to the bidders from William Monroe, Director of the Division of Purchasing, advising that all bids in response to Bid No. 298-730-310-W were being rejected pursuant to General Condition #8 of the ITB (reserving the right to reject all bids or waive minor irregularities or technicalities in bids received). The letter states, in pertinent part: .... Bidder confusion regarding ITB Protection, has resulted in non-responsive bids and unintentional procedural irregularities (Tel Plus Exhibit #1) Both Tel Plus and Inter-Tel filed timely protests of that intended action. Were the Bids Responsive? A small, inexpensive component in comparison to the entire electronic telephone system, the surge protector is nonetheless a highly significant piece of equipment, as it reduces the incidence of expensive damage to the larger system. Assuming that the inadvertent transposition of model numbers could be ignored, Tel Plus failed to provide with its bid any technical literature to substantiate that the surge protector it proposed was equivalent to the PTS 120 HP specified in the ITB. The company was unjustifiably presumptuous in its expectation that DGS would consider the two as equivalent since the TII 428 had been the specified model in the past. On the contrary, the change should have alerted bidders to some problem with the previous model. Reason dictates that if the two models were deemed "equivalent" by DGS the change in specifications would not have been necessary. The ITS General Conditions, paragraph 6. provides access prior to bid opening by vendors with questions regarding conditions and specifications: 6. INTERPRETATIONS: Any questions concerning the conditions and specifications shall be directed in writing to this office for receipt no later than 10 days prior to bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. This provision was not utilized by Tel Plus. The range of operating temperatures for the KSU is also significant, given the unit's sensitivity to heat and the adverse conditions sometimes existing at the installation site. Inter-Tel apparently also did not avail itself of the Interpretation's clause but rather attempted to clarify what it perceived as an unclear use of the specification terms, "environmental conditions". Its bid response qualifying its system's compliance only created additional confusion. Within the special conditions of the ITB, the purpose for requiring technical literature is unambiguous. See paragraph 5, above. The literature provided by Inter-Tel was in clear conflict with the ITB specification. Both the Inter-Tel and Tel Plus bids suffered from the same basic infirmities: both bids included facially obvious material conflicts with the specifications; both bids failed to explain why those conflicts did not exist. Tel Plus was initially an opportunity to correct its bid.
