The Issue The issue is whether the Department of Health’s proposed award of Invitation to Bid No. DOH 04-191 to Lachat Instruments- Hach Co. is contrary to the Department’s governing statutes, rules, policies, or the specifications in the Invitation to Bid for the reasons alleged by Petitioner.
Findings Of Fact The Department issued ITB No. DOH 04-191 to solicit bids for the purchase of a Discrete Analyzer System (DAS) and a three-year service/maintenance agreement for the DAS. The DAS is a piece of laboratory equipment that is used primarily to analyze the chemical composition and level of nutrients in wastewater. Bids were submitted in response to the ITB by Systea, Lachat, and OI. The bids were opened and reviewed by the Department’s staff. The Department’s purchasing office reviewed the pricing information in the bids, and its laboratory staff reviewed the technical components of the bids. Lachat was determined, based upon that review, to be the low bidder and, therefore, the Department posted notice of its intent to award the contract to Lachat. Systea filed with the Department a notice of protest and a formal written protest challenging the award of the contract to Lachat. The sole basis of Systea’s protest is that the “grand total” line in Lachat’s bid was left blank and that the omission is not a minor irregularity that can be waived by the Department.2 The protest seeks to have Lachat’s bid “disqualified” based upon that omission. Special Condition 5.1 of the ITB required bidders to “submit all mandatory, technical, and pricing data in the formats specified in the Invitation to Bid.” Special Condition 6.16 stated that “[b]ids that do not meet the requirements specified in this Invitation to Bid will be considered non-responsive.” Similarly, paragraph 14 of the General Instructions to Bidders states that the “[f]ailure to comply with terms and conditions, including those specifying information that must be submitted with a response, shall be grounds for rejecting a response.” The pricing data referenced in Special Condition 5.1 was to be provided by the bidders on the Price Page, which is Attachment II of the ITB. The Price Page has space for the bidders to enter their “unit price” and the “total amount” for the DAS as well as space for the bidders to enter their annual price for the three- year service/maintenance agreement required by the ITB. The Price Page also has space for the bidders to enter their “grand total,” and it is undisputed that the “grand total” was to reflect the sum of the individual prices referenced in the preceding paragraph. Inclusion of the “grand total” on the Price Page is a mandatory requirement of the ITB because Special Condition 5.5 states that the Price Page “must be filled out as indicated” (emphasis supplied),3 and Special Condition 6.15 states that the contract is to be awarded to the bidder offering “the lowest grand total for the items being solicited.” Thus, the omission of the “grand total” on the Price Page of a bid renders the bid non-responsive unless the omission is waived by the Department. Special Condition 6.10 prohibits the Department from waiving “material deviations” in the bids that relate to the mandatory requirements of the ITB. That condition does not similarly prohibit the Department from waiving non-material deviations. Other provisions of the ITB expressly authorize the Department to waive non-material deviations. For example, Special Condition 6.16 reserves the Department’s right to waive “any minor irregularity or technicality in bids received,” and paragraph 15 of the General Instructions to Bidders reserves the Department’s right to waive “any minor irregularity, technicality, or omission.” (All emphases supplied). The Price Page in Lachat’s bid listed prices for the DAS and for each year of the required service/maintenance agreement, but the “grand total” line on the Price Page was left blank. Thus, Lachat’s bid was technically non-responsive. In addition to the Price Page, Lachat’s bid included a document titled “Proforma [sic] Price Quotation.” The Department staff did not consider the “Proforma” document in determining the responsiveness of Lachat’s bid or in tabulating the bid’s “grand total.” The document was ignored by Department staff because it was not something that was specifically required by the ITB. The prices listed on the “Proforma” document correspond to the prices itemized on the Price Page in Lachat’s bid. The document also makes reference to the one-year parts and labor warranty that is included in the price of the DAS (and required by Special Condition 4.6) as well as the components included in the annual price that Lachat bid on the Price Page for the service/maintenance agreement, which is referred to in the “Proforma” as a “field service partnership”. The components of the “field service partnership” listed in the “Proforma” -- i.e., “onsite, priority service, two preventative maintenance visits, and parts and labor” -- are materially the same as the required components of the service/maintenance agreement referenced in Special Condition 4.7. As part of its review of the bids, the Department staff tabulated a “grand total” for Lachat’s bid by adding the unit prices itemized on the Price Page of Lachat’s bid. The result of that tabulation was $46,548, which was lower than the “grand total” in the bids submitted by Systea and OI. The Department staff would have performed this calculation even if Lachat had filled-in an amount on the “grand total” line in order to verify the underlying calculations. Indeed, the Department staff also verified the calculations in Systea’s and OI’s bids, which each included an amount on the “grand total” line. Department staff confirmed the $46,548 figure with a representative of Lachat, as it is authorized to do under paragraph 14 of the General Instructions to Bidders. That paragraph provides that “[b]efore award, the [Department] reserves the right to seek clarifications . . . deemed necessary for proper evaluation of the submissions.” The amount entered on the “grand total” line on the Price Page of Systea’s bid is $49,995. That figure equals the sum of the unit prices itemized on the Price Page of Systea’s bid. The amount entered on the “grand total” line on the Price Page of IO’s bid is $52,427.50. That figure is inexplicably higher than the sum of the unit prices itemized on the Price Page of IO’s bid. The sum of the itemized prices is $49,747.50. The Department staff did not contact OI to seek clarification regarding this discrepancy because OI would not have been the lowest bidder even if the unit prices in its bid were correct. In posting the contract award, the Department listed OI as the third-lowest bidder based upon the “grand total” in its bid, rather than the second-lowest bidder based upon the Department’s tabulation of the itemized costs in the bid. The omission of the “grand total” on the Price Page of Lachat’s bid is a minor irregularity because the bid contained (on the Price Page) all of the figures necessary to calculate the “grand total,” and the tabulation of the “grand total” was a simple mathematical calculation that the Department would have made in any event to verify the accuracy of the "grand total" based upon the unit prices itemized on the Price Page. If Lachat’s bid was rejected based upon the omission of the “grand total” on the Price Page, there would be a negative fiscal impact on the Department of more than $3,000 because the bids of Systea and OI (as tabulated by the Department) were that much higher than Lachat’s bid. The legislative appropriation for the Department’s purchase of the DAS expires on June 30, 2005, and the Department will lose the appropriated funds unless it expends or encumbers the funds by 5:00 p.m. on that date. A purchase order must be issued to encumber the funds, and the purchase order must identify the entity that the funds will be paid to.
The Issue Should Petitioner Elizabethan Development, Inc. prevail in its challenge of Respondent Department of Health and Rehabilitative Services' Invitation to Bid (ITB) pursuant to Section 120.53(5) F.S. and Rule 10-13.011 F.A.C.?
Findings Of Fact On May 15, 1990, HRS mailed its ITB which is the subject of this proceeding. The ITB sought an existing facility for the agency to lease in Cross City, Florida, for use as a full client service center. Upon the face of the ITB documents, a preproposal conference was scheduled for May 23, 1990. Petitioner Elizabethan Development, Inc. received the ITB on May 16, 1990, as evidenced by a certified mail return receipt for that date. Petitioner filed its written intent to protest dated July 13, 1990 with the HRS agency clerk on July 16, 1990. Petitioner filed nothing with HRS prior to that date. Under the terms of the ITB, sealed bids were due to be received by HRS no later than 2:00 p.m. July 18, 1990. Petitioner filed no bid in response to the ITB prior to bid closing, nor at any other time. HRS proceeded to open and award the lease on July 18, 1990, despite Petitioner's July 16, 1990 intent to protest. Petitioner filed its formal protest dated July 24, 1990 with the agency clerk on July 26, 1990. Petitioner currently leases to HRS the building HRS now occupies in Cross City, Florida, and which HRS occupied at the time the ITB was issued. The July 16, 1990 intent to protest contained no specific information as to the nature of Petitioner's protest. The main thrust of the allegations contained in the July 26, 1990 formal written protest is that the specifications in the May 1990 ITB were so narrowly drawn that only one potential bidder (not Petitioner) could be responsive and that Petitioner could become responsive if ITB specification changes were negotiated. Additionally, the written protest alleged a number of problems which are, in essence, disputed issues with regard to the existing lease contract between Petitioner and HRS, which issues should more properly be brought before an Article V court. Petitioner admitted that its delay in filing its intent to protest and formal protest was occasioned by its conscientious preparation of its protest through undertaking an investigation of the existing available buildings in Cross City, Florida. Petitioner further admitted that its delay in filing its intent to protest and formal protest was voluntary and not induced by any representations by HRS or its employees.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order determining the Petitioner's intent to protest and formal written protest to be untimely and dismissing same. DONE and ENTERED this 27th day of September, 1990, at 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 27th day of September, 1990. Copies furnished to: Alan Taylor Elizabethan Development, Inc. Post Office Box 7077 Winter Haven, Florida 33883 Frances S. Childers, Esquire HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, Florida 32609 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.
Findings Of Fact The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close. No requests were made to the Department to place its explanation in writing and no written interpretation was provided. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not.. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.
The Issue The ultimate issue for determination at formal hearing was whether the intended action by the Palm Beach County School Board to award the bid on Project No. 93-238V to LaPlant-Adair, as the lowest responsive bidder, departs from the essential requirements of law.
Findings Of Fact On March 15, 1993, Palm Beach County School Board (Respondent) issued an Invention to Bid (ITB), soliciting bids for the relocation of portable classroom structures for Project No. 93-238V. All sealed bids were required to be received by 2:00 p.m. on April 7, 1993. The ITB contained a provision that Respondent had the right to reject any and all bids. The "General Conditions, Instructions and Information for Bidders" section of the ITB notified bidders of Respondent's "minority/women business enterprise participation goal" and its "special conditions" which provided as follows: 24. ADMINISTRATIVE DIRECTIVE D-6.202: Pursuant to School Board Policy 6.146, Minority/Women Business Enterprise Program, a minimum goal of 15 percent has been established for certified minority/women business enterprise participation. The School Board strongly encourages active minority/women business enterprise participation on all contracts, proposals, bids professional services and other goods. The School Board of Palm Beach County is an Equal Opportunity Employer. * * * 26. SPECIAL CONDITIONS: Any and all Special Conditions that may vary from these General Conditions shall have precedence. The "Special Conditions" section of ITB provides, pertinent to this case: AWARD: Items in groups as marked, will be awarded by group. Therefore, it is necessary for a bidder to bid on every item in the particular group in which the bidder submits a bid in order to have a bid considered. It is also required that the bidder carefully consider each item, and make sure that each one meets the specifications as indicated. In the event that one item does not meet such specifications the entire group bid will be disqualified. It is anticipated that this bid will be awarded at the May 5, 1993, board meeting. TERM OF CONTRACT: The term of this contract shall be during the period June 20, 1993, through June 19, 1994, with the option to renew annually for a period of one (1) additional year. Annual renewal acceptance will be based on the successful bidder agreeing to terms, conditions and maintaining firm prices for the forthcoming year no later than April 15 in each contract year and acceptance of same by the School Board. All prices shall remain firm for the duration of this contract. SCOPE OF WORK: The successful bidder (hereinafter referred to as the contractor) shall furnish, at their expense, all supervision, equipment, machines, tools, materials, labor, transportation, and other facilities and services necessary to accomplish relocation of portable structures as specified herein . . . The contractor shall be responsible for correction/replacement, according to local codes and School Board's satisfaction, of all water lines, sanitary lines, electrical lines, curbs, sidewalks, streets, parking lots, grassed areas, structures, etc., broken or damaged as the result of contractor's operations . . . Contractor shall be responsible for complete and total relocation of portables to include tie down straps and any and all accessories attached to portable structures . . . Contractor shall provide transport and placement of all precast concrete foundation blocks . . . * * * U. ADMINISTRATIVE DIRECTIVE D-6.202: Pursuant to School Board Policy 6.146, Minority/Women Business Enterprise Program, a minimum goal of 15 percent has been established for certified minority/women business enterprise participation. The School Board strongly encourages active minority/women business enterprise participation on all contracts, proposals, bids, professional services and other goods. School Board Policy 6.146--Minority/Women Business Enterprise Policy-- provides in pertinent part: (2) DISTRICT GOAL To increase the participation of minority and women's business enterprises in the school district's contracts related to procurement, goods and non-professional services, construction, maintenance and renovation, and professional services. (5) PERFORMANCE OBJECTIVES * * * The MBE programs will implement a voluntary 15 percent participation goal of the total amount of funds allocated for school board purchases, professional services and contracts to be awarded to certified M/WBES upon School Board approval. The goals are reviewed annually by the M/WBE council Appropriate language including but not limited to minority participation and goals will be included in all bid documents. * * * All contract and bid documents will include procedural documentation of good faith efforts to include M/WBES to participate as associates, joint-ventures, and subcontractors. * * * Establish a program where staff may provide bonus points for companies employing M/WBES on joint ventures, and as subcontractors to enhance minority participation. (m) Establish a mechanism to delete and/or amend "option to renew" clauses in contracts to vendors once the bid time is completed. Respondent solicited nine bids and received six responses. Of the responses, three returned the ITB with bids and three returned the ITB with a no bid. The three that bid were Gainsborough Construction, Inc., LaPlant-Adair Company and Petitioner. The bids were opened on April 7, 1993. No evidence of irregularities at the bid opening was presented, and neither of the parties contend that there were any irregularities. The bids were reviewed by Respondent's Contracting & Procurement (CP) and its Maintenance and Plant Operations (MPO). CP's buyer/purchasing agent who determines the responsiveness of bids and prepares the tabulation sheet determined that all bids were responsive and that LaPlant-Adair Company was the apparent lowest bidder at a bid of $14,245; whereas, Gainsborough Construction, Inc., submitted a bid of $24,412, and Petitioner a bid of $24,432. However, because of the differences among the bidders in the cost per mile for moving the different structures, Respondent's CP and MPO staff, specifically, CP's buyer/purchasing agent and MPO's major project team leader, determined that an analysis also needed to be developed to provide a fair assessment of the bids to make certain that Respondent was not being over charged, i.e., to make certain that LaPlant-Adair was the lowest and best bid. The ITB provides that eight different types of portable structures were to be moved. Realizing that relocation of the portable classrooms depended upon the student population at each school in the district and the shift of the population, Respondent's staff determined that there was no way to know which portable classrooms would be relocated, the number of each to be relocated and the distance of the relocation. Hence, they formulated an analysis to fairly assess the situation, which consisted of (1) using the percentage of portables in each size in Palm Beach County's school system and the average number of miles portables had been moved over the past year, which was approximately 10 miles, and (2) applying these figures to the ITB's quoted figures by each bidder for "set-up, mobilization, unloading, and tie-down charge." The results showed that LaPlant-Adair's bid was the lowest bid and satisfied Respondent's staff that there was no overcharge. LaPlant-Adair remained the apparent lowest and best bidder. The bid specifications were silent on the use of any mathematical analysis to be used by Respondent. Of the three bids submitted, only Petitioner met and exceeded the minority/women business enterprise (M/WBE) participation goal of 15 percent. Petitioner's minority participation was 16 percent, and it provided supporting documentation with its bid. Because Petitioner included M/WBE participation in its bid, Petitioner's bid quote increased. Petitioner interpreted Respondent's M/WBE participation goal as being mandatory for bids. For several years, Petitioner has been involved in bidding for state and county projects, and both have minority participation requirements. Petitioner's experience was that if the minority participation percentage was not met, the bidder was not awarded a contract even if the bidder was the lowest bidder. Respondent's M/WBE participation is a "goal," not a requirement, and not mandatory. It has not been used in Respondent's prior ITBs. This was the first bid in which it had been included by Respondent. In 1991, Respondent awarded to Petitioner, over LaPlant-Adair, the contract for relocating portable classrooms. The contract had an option to renew. For the 1992-93 contract year, Petitioner renewed its option and continued as the contractor until 1993 at which time Respondent stopped renewing options and placed contracts on a one year term. During the term of Petitioner's contract, Respondent was satisfied with Petitioner's performance. At the time of the protest, Petitioner was using LaPlant-Adair as a subcontractor relocating portable classrooms for Respondent under the 1992-93 contract. As subcontractor, LaPlant-Adair performed 75 percent to 80 percent of the work involved in the relocating. Prior to Petitioner being awarded the 1991 contract and prior to being the subcontractor to Petitioner, LaPlant-Adair had been awarded the contract by Respondent for relocating portable classroom structures. Respondent was satisfied with LaPlant-Adair's performance under the contract. Based upon the bid quotes, the analysis performed, and responsibleness, LaPlant-Adair was recommended to be awarded the contract, as the lowest responsive and responsible bidder. The second lowest responsive and responsible bidder was Gainsborough Construction, and Petitioner was third. On April 16, 1993, Petitioner filed a protest of the intended action to award the contract to LaPlant-Adair and requested a hearing. Subsequently, on April 26, 1993, Petitioner filed a formal protest in letter form providing the basis for its protest: (1) LaPlant-Adair skewed the numbers in its bid; and neither LaPlant-Adair nor Gainsborough Construction, the second lowest responsive and responsible bidder, met the minority participation goal and, in fact, showed no attempt to do so. On May 13, 1993, an informal hearing was held by Respondent in an attempt to resolve the protest. At the informal hearing, Petitioner included an additional challenge which was that the recommendation process for awarding the contract varied from the bid specifications. Respondent determined that Petitioner's claims were without merit and that LaPlant-Adair would be recommended for award of the contract at Respondent's meeting on June 2, 1993. Both Petitioner and LaPlant-Adair are ready, willing and able to perform the work in accordance with their bid documents.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting Petitioner's protest and awarding the bid on the portable classrooms relocation Project No. 93-238V to LaPlant-Adair. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of Sepember 1993. ERROLL H. POWELL 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 2nd day of September, 1993.
The Issue At issue in this proceeding is whether the Department of Environmental Protection's decision to reject all bids submitted for the project entitled BDRS 52-01/02 was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Parties Petitioner, All America Homes of Gainesville, Inc. (All America), is a corporation doing business in the State of Florida. All America submitted a timely written bid in response to the Department's ITB and filed timely protests to the Department's actions. The Respondent, the Department of Environmental Protection, is an agency of the State of Florida which manages and operates state parks under its jurisdiction, and solicits construction projects in state parks, pursuant to Chapter 258, Part I, Florida Statutes, through its Division of Recreation and Parks, Bureau of Design and Recreation Services. The ITB In November, 2001, the Department issued an ITB on a construction project entitled Hillsborough River State Park Concession Building, project number BDRS 52-01/02. The ITB included the Bid Specifications for the project. Bids were required to be submitted no later than 3:30 p.m. on Tuesday, December 18, 2001, at the Bureau's Tallahassee, Florida, office. The written Specifications define several terms, including, but not limited, to the following: ADDENDUM: A written explanation, interpretation, change, correction, addition, deletion, or modification, affecting the contract documents, including drawings and specifications issued by the OWNER [Department] and distributed to the prospective Bidders prior to the bid opening. ALTERNATE BID: Separate optional bid item for more or less project requirement used for tailoring project to available funding. Also may consist of alternate construction techniques. BASE BID: Formal bid exclusive of any alternate bids. BID FORM: The official form on which the OWNER requires formal bids to be prepared and submitted. ORAL STATEMENTS: Verbal instruction. NOTE: No oral statement of any person, whomever shall in any manner or degree modify or otherwise affect the provisions of the contract documents.[1] SEALED BID: The formal written offer of the Bidder for the proposed work when submitted on the prescribed bid form, properly signed and guaranteed. The Bid Specifications also contained the following relevant sections: Alternatives If the OWNER wishes to learn the relative or additional construction cost of an alternative method of construction, an alternative use of type of material or an increase or decrease in scope of the project, these items will be defined as alternates and will be specifically indicated and referenced to the drawings and specifications. Alternates will be listed in the bid form in such a manner that the Bidder shall be able to clearly indicate what sums he will add to (or deduct from) his Base Bid. The OWNER will judge for himself that such alternates are of comparable character and quality to the specified items. The Order of the alternate may be selected by the Department in any sequence so long as such acceptance out of order does not alter the designation of the low bidder. ADDENDA If the Consultant[2] finds it would be expedient to supplement, modify or interpret any portion of the bidding documents during the bidding period, such procedure will be accomplished by the issuance of written Addenda to the bidding documents which will be delivered or mailed by the OWNER'S Contracts section to all bidders who have requested bidding documents. Interpretation No interpretation of the meaning of the drawings, specifications or other bidding documents and no correction of any apparent ambiguity, inconsistency or error therein will be made to any Bidder orally. Every request for such interpretation or correction should be in writing, addressed to the Consultant. All such interpretations and supplemental instructions will be in the form of written Addenda to the bidding documents. Only the interpretation or correction so given by the Consultant in writing and approved by the OWNER shall be binding, and prospective Bidders are advised that no other source is authorized to give information concerning, or to explain or interpret, the bidding documents. B-16 Bid Modification Bid modification will be accepted from Bidders, if addressed as indicated in Advertisement for Bids and if received prior to the opening of bids. No bid modification will be accepted after the close of bidding has been announced. Modifications will only be accepted if addressed in written or printed form submitted with the bid in sealed envelopes. Telegrams, facsimiles, separate sealed envelopes, written on printed modifications on the outside of the sealed envelopes will not be accepted. All bid modifications must be signed by an authorized representative of the Bidder. Modification will be read by the OWNER at the opening of formal bids. B-21 Rejection of Bids The OWNER reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the bid of a bidder who the OWNER determines is not in a position to perform the work. B-23 Award of Bid . . .The qualified Bidder submitting the lowest bid will be that Bidder who has submitted the lowest base bid plus any selected alternates. . . . The OWNER reserves the right to waive any minor irregularities in bids received when such waiver is in the interest of the OWNER. The Award of Bid will be issued by the OWNER only with responsible Bidders, found to meet all requirements for Award of Bid, qualified by experience and in a financial position to do the work specified. Each bidder shall, if so requested by the OWNER, present additional evidence of his experience, qualifications and ability to carry out the terms of the Agreement. (Emphasis in original, except for Section B-10.) The Bid Form is included with the Specifications and provides in part: Base Bid: Furnish labor, equipment, Lump Sum $ supervision and material to construct a new concession building of 2940 square feet located at the Hillsborough River State Park along with the alteration of the existing concession building according to plans and specifications. Alternate #1: Furnish labor, equipment, Add Amt.$__ supervision and material to renovate the existing concession building according to plans and specifications. There is a separate section for "Allowances," i.e., Section 01210, for the Hillsborough State Park. This section provides in part: SECTION 01210 – ALLOWANCES * * * 1.2 SUMMARY This Section includes administrative and procedural requirements governing allowances. Certain materials and equipment are specified in the Contract Documents and are defined by this [sic] specifications as material and labor to be provided against a pre-determined allowance. Allowances have been established in lieu of additional requirements and to defer selection of actual materials and equipment to a later date when additional information is available for evaluation. If necessary, additional requirements will be issued by Change Order. * * * 3.3 SCHEDULE OF ALLOWANCES A. Allowance #1: Include in the base bid an allowance for the purchase and installation of. . . kitchen equipment. . . . The total dollar amount of the allowance to be included shall be $12,000.00. There is also a separate section for "Alternates," i.e., section 01230, for Hillsborough River State Park, which provides in part: SECTION 01230 – ALTERNATES * * * 1.3 DEFINITIONS Alternate: An amount proposed by bidders and stated on the Bid Form for certain work defined in the Bidding Requirements that may be added to or deducted from the Base Bid amount if OWNER decides to accept a corresponding change either in the amount of construction to be completed or in the products, materials, equipment, systems, or installation methods described in the Contract Documents. The cost or credit for each alternate is the net addition to or deduction from the Contract Sum to incorporate alternate into the Work. No other adjustments are made to the Contract Sum. . . . . 3.1 SCHEDULE OF ALTERNATES A. Alternate No. 1: Renovate the existing concession building in its entirety as shown in the drawings and specified herein. (emphasis added.) At this stage of the bidding documents, the contractor/bidder is requested to provide a Base Bid/Lump Sum on the Bid Form to "[f]urnish labor, equipment,. . .to construct a new concession building," and to provide an additional and separate amount for Alternate No. 1 to "[f]urnish labor, equipment, . . . to renovate the existing concession building." On December 13, 2001, the Bureau issued "Addendum No. One (1)" (written by the architect) to the ITB on the "Hillsborough River State Park – Concession Building." The Addendum contained the following relevant sections: Specification Section 01210: Allowances Add the following new paragraph 3.3.B: ”Allowance #2: Include in the base bid an allowance for the renovations of the existing concession building; renovations shall be defined by the Owner. The total dollar amount of the allowance to be included shall be $25,000." Specification Section 01230: Alternates Modify paragraph 3.1.A. as follows: "Alternate No. 1: Renovate the existing concession building as defined by the Owner, and as provided for under Section 01210, Allowances." (emphasis added.) Each contractor was required to sign the Addendum and attach it to the bid. By definition, and pertinent here, an addendum is an additional written instruction to a contractor during the bidding process. Based on the weight of the evidence, the purpose of this Addendum was to require the contractor to include a $25,000.00 Allowance (for Allowance # 2) in the Base Bid, for the work which might be performed if the Department requested the work to be performed for Alternate No. 1, i.e., for the renovation of the existing concession building.3 (The Department's architect decided it would cost approximately $25,000.00 to renovate the existing concession building, hence Allowance # 2.) In other words, the Addendum does not have a specific dollar amount to be included for Alternate No. 1. Rather, the $25,000.00 is an Allowance for the work described as Alternate No. 1, but the amount is to be included in the Base Bid and not as a separate line item, dollar amount. But, importantly, the Addendum did not delete the potential work to be performed as described in Alternate No. 1, although Mr. Bowman and others believed that the Addendum deleted Alternate No. 1. It deleted the necessity to place a specific dollar amount on the Bid Form for Alternate No. 1. (Mr. Bowman is a registered Professional Engineer and a licensed contractor. He has worked for the Department for 15 years and has served as Bureau Chief for two years. He supervises the contract section and the design section, which was responsible for preparing the technical plans and specifications and bidding out the job.) Mr. Bowman offered the following explanation why he believed the Addendum was confusing: Okay. I think the confusion that was created, you know, I think the addendum in itself, you know, said add $25,000 to the base bid, but then on the bid form, it still had the space down there for alternate number one, which alternate number one, which alternate number one had become $25,000 that was to be allowed for the concession building, and I think that's where the confusion came in because I think they were still confused, that they weren't really sure that they should not put that 25 down there but they knew they had been told in the addendum to do it and I think that's the reason for the notes and we got to the correspondence on the bid form, was they wanted to make sure that that's what we were wanting to do. And I think that's where the confusion came in. Like I said, it's always, if you could go back and do it again, it would be much wiser just to issue a whole new bid form and then we wouldn't be here today. But, we didn't do that. Okay. So, that's why we are here. The language in this Addendum, when read with the original Bid Specifications, apparently caused confusion with some of the bidders on the project. Several bidders called Marvin Allen (an architect and project manager for the Department's Bureau of Design and Recreation Services) prior to the submission of the bids, to clarify how the $25,000.00 Allowance should be shown on the Bid Form. (Mr. Allen did not author any of the specifications, including the Addendum.) He was listed as a contact person. He did not contact any bidders. But, Mr. Allen recalled telling each bidder who asked that the Allowance of $25,000.00 should be included in the Base Bid. But, he does not recall the names or numbers of the bidders who called, "possibly" three, four or five. Mr. Allen believed the Addendum was clear. According to Mr. Allen, the bidders who called him found the Addendum confusing. The oral responses to the bidders can be construed as interpretations of the Addendum. However, pursuant to Section B- 10 of the Specifications, any such interpretations were required to "be in the form of written Addenda to the bidding documents." Also, any such questions should have been in writing. If Section B-10 were complied with, all bidders would have been potentially on the same footing, or, at the very least, would have had access to a written clarifying document. Opening of the Bids On December 18, 2001, the bids were opened by Mike Renard, Contracts Manager with the Bureau of Design and Recreation Services, and Susan Maynard, Administrative Assistant. Mr. Dwight Fitzpatrick, a representative of All America, also attended the bid opening. The Bid Form submitted by Nelco showed a Base Bid of $355,478.00 (Lump Sum $355,478.00), and also showed an amount of $25,000.00 on the Alternate # 1 line (Add Amt. $25,000.00). See Finding of Fact 6. (It was clear to Mr. Renard that the $25,000.00 should have been included on Nelco's Base Bid. But Mr. Renard believed that Nelco submitted a responsive bid because the Department only accepted the Base Bid. Mr. Bowman agreed.) Nelco was the only one of five bidders to have a dollar amount in the Alternate #1 line under "Add Amt. $ ." All America submitted the second lowest Base Bid of $362,000.00. There was also a hand-written note on the All- America Bid Form that stated: "Addenda # 1 instruction to place $25,000 allowance in both Base Bid and as alternate # 1." Another hand written note was located below the "Add Amt. $-0-" line: "amount added in Base Bid with $25,000 allowance per Marvin Allen." The Department considered All America's bid responsive. It is a fair inference that three out of five of the other Bid Forms contained language indicating that the bidders were relying on Addendum No. One by placing the $25,000.00 Allowance in the Base Bid.4 It is uncertain whether they did so in light of the instructions of Mr. Allen concerning how to complete the Bids Forms. However, given the nature of the calls to Mr. Allen, there is a reasonable inference that there was some confusion among some of the bidders. The Department determined that Nelco submitted the lowest Base Bid, but the Department's staff had a question as to whether Nelco had included the $25,000.00 in its Base Bid. After conferring with his superiors, Mr. Renard was instructed to call Nelco to make certain that its Base Bid included the Allowance amount ($25,000.00). Mr. Renard spoke with Steve Cleveland, Nelco's Project Manager, "to verify the fact that [Nelco] had the allowance in their base bid." Mr. Cleveland orally confirmed that Nelco's Base Bid included the $25,000.00 Allowance. Mr. Renard asked Mr. Cleveland to send him a letter verifying this statement. Mr. Renard viewed this inquiry as a request for clarification or verification, not an opportunity for Nelco to modify its bid. Mr. Bowman agreed. (Mr. Renard did not believe Addendum No. 1 was confusing.) In a letter dated December 20, 2001, Mr. Cleveland confirmed that Nelco’s Base Bid of $355,478.00 included the Allowance amount and that Nelco could still perform the contract if the $25,000 Allowance was removed from its Base Bid pursuant to the ITB, i.e., that Nelco would perform the contract for $355,478.00 less $25,000.00, or $330,478.00, if the Department did not accept Alternate # 1 and the Allowance. (An alternate does not have to be accepted by the Department.) According to Mr. Renard, Mr. Cleveland never mentioned modifying, changing, or altering Nelco's bid. The Department only accepted the Base Bid for each bid. Mr. Renard did not consider it unusual to call a bidder or contractor to verify information to determine whether they can or cannot perform the work at the stipulated price. He considered it common to make this inquiry. Also, it was common in Mr. Bowman's experience to call a bidder to get clarification. Mr. Renard was not aware of any statute or rule which authorizes the Department to request clarification from a bidder after the bids are opened. Mr. Renard was more familiar with the bid forms than Mr. Allen. After receiving Mr. Cleveland's letter, the Department determined that Nelco submitted the lowest Base Bid and that the $25,000.00 amount that Nelco wrote on the Bid Form Alternate # 1 line, was a minor irregularity in the bid which the Department, as the Owner, could waive pursuant to the ITB. On December 20, 2001, the Department posted the Tabulation of Bids showing the anticipated award of the contract to Nelco. At the hearing, an unsigned letter on Department letterhead was introduced, which was addressed to Nelco and stated that Nelco submitted the apparent low bid. However, Mr. Renard testified that these letters are prepared routinely, but not mailed out without his signature. Mr. Renard did not recall signing the letter or ever sending out such a letter to Nelco. On December 21, 2001, the Department received a Notice of Intent to Protest letter from Allen E. Stine, the President of All America. In his letter, Mr. Stine stated that Nelco’s bid should have been rejected for failure to follow the specified format as per Addendum No. 1, or adjusted to have the $25,000.00 amount added to their Base Bid. Bid Protests All America filed a written formal bid protest on January 4, 2001. On January 9, 2001, Cindy Otero of All America, notified Mr. Renard by letter, and stated that Mr. Stine was available for a hearing regarding the bid protest. On January 28, 2002, Mr. Renard returned All America's check for the bond, stating that it was unnecessary. Mr. Stine recounted a number of unanswered telephone calls after the first protest was filed. During one conversation, Mr. Renard recalled Mr. Stine saying to him, "You can't do this, you can't do this." After receiving the first formal protest, the Department staff consulted with legal staff and reviewed the documents and bid procedures. Based on the number of questions received concerning the Addendum and the hand-written notes on several of the bid forms, Mr. Bowman, Bureau Chief, determined that the bid documents were confusing and ambiguous. (Mr. Bowman stated that this was their first bid protest in his 15 years with the Department.) Therefore, Mr. Bowman decided that it would in the best interest of the State of Florida to reject all of the bids pursuant to the Bid Specifications. Mr. Bowman felt that the ITB should be re-written in order to make it clearer and allowing all of the bidders to re-bid the project without any confusion or ambiguity. Mr. Stine stated that his "senior estimator" told him that the bid language "could be confusing." He and his "senior estimator" had a discussion about whether the Allowance should have been placed in the Base Bid or not. At the time of submission of All America's bid, Mr. Stine was clear that the Allowance should be placed in the Base Bid, especially after calling Mr. Allen. But, his senior estimator was not so clear. In order to appease him, Mr. Stine placed the hand-written note on All America’s proposal. Mr. Stine essentially, "cleaned" up his proposal. At the hearing, Mr. Bowman testified Rule 60D-5.0071, Florida Administrative Code, see Conclusion of Law 59, does not list "confusing or ambiguous bid specifications" as one of the circumstances allowing for the rejection of all bids. However, Mr. Bowman later stated during the hearing that he believed the circumstances listed in Rule 60D-5.0071 were not the only circumstances authorizing the Department to reject all bids. Mr. Bowman testified that he believed that general confusion among the bidders caused by the ambiguous ITB constituted sufficient grounds for rejecting all bids. Mr. Bowman was advised by legal counsel that rejecting all of the bids would probably result in another bid protest by Nelco, All America, or both. Thus, the Department decided to delay addressing All American’s first protest until after posting the rejection of all bids and receiving the subsequent protests, so that all of the protests could be resolved at once in an efficient and economical manner. Notwithstanding the Department's justifications for rejecting all bids and not proceeding on All America's initial protest, the record is unclear why the Department waited several months to reject all bids. On May 13, 2002, the Department posted the rejection of all bids. On May 16, 2002, the Department received a formal written protest of the rejection of all bids filed by All America. On May 17, 2002, Jerome I. Johnson, attorney for the Department, contacted Mr. Robert A. Lash, All America's counsel at the time, concerning the resolution of All America’s formal protest. (Before the final hearing, Mr. Lash, with All America's consent, withdrew as counsel for All America.) The parties agreed to suspend formal bid protest procedures until a meeting could be held between the parties in an attempt to resolve the protests. Mr. Johnson sent a letter dated May 21, 2002, to Mr. Lash confirming this conversation. On June 26, 2002, a meeting was held among the Department staff, legal staff, and Mr. Lash and Mr. Stine, representing All America. The parties were unable to resolve the protests. At the conclusion of the meeting, the parties agreed that formal protest procedures would not be implemented until Mr. Stine could confer further with his counsel. In a letter dated July 5, 2002, Mr. Lash stated that his client wished to proceed with formal protest procedures and requested an administrative hearing on the protests. Are the Specifications and Bid Documents Ambiguous and Was There Confusion? The parties stipulated that "[t]he Addendum language was confusing," notwithstanding the testimony of several witnesses that they were not confused. The Department's determination that the bid Specifications, including the Addendum, and the Bid Form, which remained unchanged after the Addendum was issued, were confusing and ambiguous, is supported by the weight of the evidence. This is particularly true regarding the Bid Form. The Addendum required the bidder to include an Allowance of $25,000.00 in the Base Bid for work described as Alternate # 1. But the Bid Form was unchanged to reflect the Addendum changes. The Bid Form retained a line for the bidder to submit an additional amount for Alternate # 1. Further, it appears that several bidders were confused, including, Mr. Stine, who spoke with Mr. Allen and requested and received clarification. Further, it is unclear whether all of the bidders, including Nelco, were aware of the oral interpretations or clarifications of the Addendum rendered to some of the bidders. Rejection of All Bids Based upon the foregoing, given the standard of review in this proceeding discussed in the Conclusions of Law, the weight of the evidence indicates that the Department's action, in rejecting all bids, was not illegal, arbitrary, dishonest, or fraudulent. The Department's staff was well-intended and made some mistakes along the way, e.g., by not changing the Bid Form, which they readily admit. But there was a rationale for rejecting all bids under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department issue a final order dismissing All America’s Petition to Prevent Rejection of Bids and Award Contract to Petitioner and denying All America's request for attorney’s fees and costs. DONE AND ENTERED this 24th day of September 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 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 24th day of September 2002.
The Issue Whether the decision by the State of Florida, Department of Corrections (DOC) to reject all bids received in response to Request For Proposal 93-RIVHSD- 075 (RFP) was arbitrary, capricious, fraudulent, illegal or dishonest. Additionally, Intervenor challenges Petitioner's standing to bring this proceeding since Bio-Medical Applications, Petitioner's wholly-owned subsidiary corporation, submitted the bid at issue and because Petitioner would not be a party to any contract awarded pursuant to the RFP.
Findings Of Fact Standing In its response to the Request For Proposal at issue in this proceeding, Bio-Medical Applications of Florida, Inc. (BMA) provides the following regarding vendor name and address: Vendor Name: Bio-Medical Applications of Florida, Inc. Vendor Mailing Address: c/o National Medical Care, Inc. 1601 Trapelo Road Walthem, Massachusetts 02154 In the bidder acknowledgment and ownership interest portion of its response to the RFP, BMA disclosed the following: ... This bid is presented in good faith without collusion or fraud and Ernestine M. Lowrie, as signer of the bid from Bio-Medical Applications of Florida, Inc. has full authority to bind as the principal bidder. All stock of Bio-Medical Applications of Florida, Inc. is held by Bio-Medical Applications Management Company, Inc. and all the stock of the latter corporation is held by National Medical Care, Inc., 1601 Trapelo Road, Walthem, Massachusetts 02154. All of the stock of National Medical Care, Inc. is held by W. R. Grace and Company. The Dialysis Services Division of National Medical Care, Inc. (NMC) is the largest division of NMC. In each state in which NMC has an interest in dialysis services operations, Bio-Medical Applications is organized as a corporate entity and is part of the Dialysis Services Division of the parent corporation, NMC. Petitioner in this proceeding, NMC, is not currently organized and registered as a corporation under the laws of the State of Florida. At the final hearing in this case, NMC's representative testified that he was not aware that NMC was registered to do business in the State of Florida but thought NMC had been operating in Florida for about 20 years. BMA is wholly owned by NMC. The Respondent agency originally expressed its intent to award the contract at issue to BMA. NMC has a substantial interest in the RFP and the contract at issue, therefore, its substantial interests will be affected by the agency's proposed action to reject all bids. NMC has alleged that the agency's decision to reject all bids was arbitrary, illegal, dishonest, and fraudulent. Further, Petitioner also contends that the agency decision to reject all bids, after BMA's bid proposal has been disclosed to competitors, undermines the competitive purpose of the bid process. The Request for Proposal On August 27, 1993, the DOC issued RFP No. 93-RIVHSD-075. The RFP requested bidders to submit bids for a contract to perform peritoneal dialysis and hemodialysis treatment at the Department's Broward Correctional Institution and its South Florida Reception Center. The RFP required that bid proposals be filed with the DOC by September 30, 1993. The RFP provided that a bidder would receive up to 50 points for its price proposal and up to 50 points for its qualitative proposal for a total of 100 possible points. The RFP also provided that the DOC reserved the right to reject all bids when the DOC determined it was in its best interest to do so. The Bid Evaluation Upon initial review of the proposals submitted in response to the RFP, the DOC originally calculated that Petitioner's subsidiary, BMA, had received 49 out of 50 possible points from its price, as well as qualitative proposal for a total of 98 points. On October 22, 1993, the DOC sent written notice to all proposers of its intent to award the contract to National Medical Care, Inc. (Petitioner). At the time it mailed its notice of intent, the DOC believed that the difference between the Bio-Medical and the lowest price proposal (received by HealthInfusion) was $156,780 over the five year term of the proposed contract. HealthInfusion and an additional disappointed bidder filed protests contesting the DOC's notice of intent. Based upon input from the protestors, the DOC learned that it had miscalculated the cost of Bio-Medical's proposal. When the DOC corrected its initial error in calculation, BMA's proposal was $340,000 higher over the first three years of the proposed contract and $972,000 higher than the lowest bidder for the entire five year contract term. The Decision to Reject All Bids On November 24, 1993, the DOC notified all bidders of its intent to reject all bids. In addition to the initial miscalculation of price in the bid, the DOC discovered what it considers to be other irregularities in the evaluation in this case. BMA was the existing provider at the time the RFP issued. The bid evaluators worked closely on a day to day basis with Petitioner's employees. The DOC believes the evaluators preferred that Petitioner be awarded the contract and that the evaluators were not objective. During the process of evaluation, the evaluators were provided a letter from a party representing one of the bidders which contained allegations regarding negative background information on other bidders. The DOC believes that the letter should not have been given to the evaluators and that access to the letter further affected the evaluator's ability to be objective. Admitted Facts NMC and the Respondent DOC filed a Prehearing Stipulation in which the following facts are admitted by those parties: The DOC issued Request for Proposal No. 93-RIVHSD-075 ("RFP"). The RFP requested bidders to submit bids for peritoneal dialysis and hemodialysis treatment at Broward Correctional Institution and South Florida Reception Center. Bid proposals had to be filed with the DOC by September 30, 1993. On November 24, 1993, the Department notified all bidders of its intent to reject all bids. The Department rejected all bids due to significant irregularities in the bid evaluation process and the price difference between the winning bid and the low bid was too great. (Emphasis supplied.) On December 3, 1993, National Medical Care, Inc. filed its notice of intent to protest the DOC's decision to reject all bids. On December 13, 1993, National Medical Care, Inc. filed its formal written bid protest. Burden of Proof Petitioner has failed to prove, by the preponderance of evidence, that the DOC acted arbitrarily, illegally, fraudulently or dishonestly in making its decision to reject all bids.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Respondent enter a final order dismissing NMC's protest of its decision to reject all bids in response to request for Proposal No. 93-RIVHSD-075. RECOMMENDED this 16th day of March, 1994, at Tallahassee, Florida. JAMES W. YORK, 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 16th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7111BID The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's PFOF 1 is adopted in paragraph 8 of the Recommended Order (RO). Petitioner's PFOF 2 is adopted in paragraph 9 of the RO. Petitioner's PFOF 3 is hereby adopted. Petitioner's PFOF 4 is hereby adopted. Petitioner's PFOF 5, to the extent not conclusory, is adopted in paragraph 1 of the RO. Petitioner's PFOF 6 is hereby adopted. Petitioner's PFOF 7 is adopted in paragraph 2 of the RO. 8-9. Petitioner's PFOFs 8 and 9 are hereby adopted. Sentence 1 of Petitioner's PFOF 10 is hereby adopted. Sentence 2 of this proposed finding is rejected as conclusory. Petitioner's PFOF 11 is adopted in paragraph 14 of the RO. 12-14. Petitioner's PFOFs 12, 13 and 14 are hereby adopted. Petitioner's PFOF 15 is adopted in paragraph 2 of the RO. Petitioner's PFOF 16 is hereby adopted. Petitioner's PFOF 17 is adopted in paragraph 26 of the RO and is a fact, in effect, stipulated to by Petitioner and Respondent. Petitioner's PFOF 18 is adopted in substance in paragraph 21. To the extent not adopted in the RO, the remainder of Petitioner's PFOF 18 is hereby adopted. Petitioner's PFOF 19 is adopted in paragraph 13 of the RO. Petitioner's PFOF 20 is adopted, in substance, in paragraph 16 of the RO. 21-24. Petitioner's PFOFs 21-24 are hereby adopted. Petitioner's PFOF 25 is rejected as a conclusion. Petitioner's PFOF 26 is rejected as conclusory and argumentative. This proposed finding is also irrelevant based upon facts admitted by Petitioner. Petitioner's PFOF 27 is rejected as irrelevant based upon facts admitted to by Petitioner. 28-34. Petitioner's PFOFs 28-34 are hereby adopted to the extent relevant. Based upon Petitioner's admission that the Respondent rejected all bids based on "significant irregularities," these proposals are for the most part irrelevant and unnecessary to the conclusions reached. 35. Petitioner's PFOF 35 is hereby adopted. 36-39. Petitioner's PFOFs 36-39 are adopted. 40-44. Petitioner's PFOFs 40-44 are cumulative and not necessary to the conclusions reached. Respondent's PFOF: 1-19. Respondent's PFOFs 1-19 are adopted in the RO. 20. Respondent's PFOF 20 is rejected as conclusory. 21-22. Respondent's PFOFs 21 and 22 are adopted in the RO. 23. Respondent's PFOF 23 is rejected as argument. 24-26. Respondent's PFOFs 24-26 are adopted in the RO. 27. Respondent's PFOF 27 is rejected as conclusory. 28-29. Respondent's PFOFs 28 and 29 are adopted in the RO. 30-32. Respondent's PFOFs 30-32 are rejected as conclusions and argument. Respondent's PFOF 33 is hereby adopted. Respondent's PFOF 34 is rejected as argument. Intervenor's PFOF: 1-21. Intervenor's PFOFs 1-21 are adopted in substance in the RO. Intervenor's PFOF 22 is adopted, in substance, in paragraph 4 of the RO. Intervenor's PFOF 23 is hereby adopted. Intervenor's PFOF 24 is adopted in substance. Intervenor's PFOF 25 is hereby adopted. However, Intervenor has failed to prove that the activity of NMC is not within one of the several exceptions to the requirements of Section 607.1501, Florida Statutes. COPIES FURNISHED: Seann M. Frazier, Esquire Jennifer Kujawa-Graner, Esquire PANZA, MAURER, MAYNARD & NEEL, P.A. 3081 East Commercial Avenue Fort Lauderdale, Florida 33308 R. Beth Atchison, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Timothy G. Schoenwalder, Esquire BLANK, RIGSBY & MEENAN, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
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 The Palm Beach County School Board (Respondent) issued an invitation to bid (ITB) on February 16, 1993, requesting bids for the removal, preparation, and installation of carpet-glue down on project SB93C-216T. The ITB provided that all bids were to be submitted by March 31, 1993, at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent sections of the ITB to the case at hand include a section entitled "Invitation To Bid" which provides in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as a result of this bid shall conform to applicable Florida Statutes. Another section entitled "General Conditions, Instructions and Information for Bidders" provides in pertinent part: 26. Any and all Special Conditions that may vary from these General Conditions shall have precedence. The section entitled "Special Conditions" provides in pertinent part: C. AWARD: Bid will be awarded to the lowest and best bidder meeting specifications, terms and conditions . . . The School Board shall elect to award to a primary and a secondary vendor . . . . * * * N. CONTRACTOR QUALIFICATIONS: The contractor must have at least three years of verifiable experience in the floor covering contracting business. The contractor must have in force the required occupational licenses from Palm Beach County and it's municipalities. All documentation of the above requirements must be submitted with the proposed bid by each bidding contractor. The contractor shall not sub-contract any portion of their work, outlined in this contract, to any person(s) or company, without advance written permission from the Carpentry Supervisor of the Department of Maintenance & Plant Operations. Another section of the ITB entitled "Additional Information" provides in pertinent part: Additional information will not be a determining part of the award of this bid except in the instance where the per square yard prices are too close to determine a clear awardee. In that instance we will look at the optional items in this section as the determining factor. (This usage is also based upon all other factors being equal.) . . . Cost of heavy patching. $ per sq. ft. . . . Cost of heavy patching. $ per sq. ft. . . . By March 31, 1993, eight bids were received. However, only seven bids were considered. Respondent's Department of Contracting & Procurement reviewed the bids. On April 12, 1993, the Department of Contracting & Procurement (Department) posted the bid tabulations, which showed, inter alia, that the apparent lowest bidder was Carpetech at $28,029.61, that the apparent second lowest bidder was Buy the Square Yard (Petitioner) at $32,107.32, and that the apparent highest bidder was Acousti Engineering of Florida (Intervenor). Additionally, the recommendation was that the bid be awarded to the "lowest and best bidder meeting specifications, terms, and conditions" with Carpetech being the "Primary" bidder and Petitioner being the "Secondary" bidder. Moreover, the bid tabulation sheet noted that the "price" of each bid was determined by using a "hypothetical" that was typical of a School Board project. This was the first time that the bidders were aware of a hypothetical being used. Respondent had not used a hypothetical in past bids for this type of work, and it was not included in the bid specifications At first, after the bids were opened, Respondent's Department used the base bid, which excluded any alternate work, to determine the apparent lowest bidder. The calculation showed Intervenor as the apparent lowest bidder at $11.03 sq. yd. and Petitioner as the apparent second lowest bidder at $11.08 sq. yd. Carpetech's base bid was $11.295 sq. yd. A discussion ensued as to whether the bids were "too close"; but, there was no consensus as to the meaning of "too close." However, the Department determined that, taking into consideration the alternate work which would have to be done, Intervenor was not the best bidder. The Department first considered recommending the rejection of all bids and readvertising, but decided upon using a hypothetical which included the base bid and the alternates in the calculations. As a result of using the hypothetical, Carpetech, not Intervenor, was the apparent lowest bidder. However, Carpetech, unlike any other bidder, changed one of the specifications in its bid from the "cost of heavy patching" to the "cost of light patching." Respondent admits that a clerical error had occurred and that particular specification should have been "light" patching, instead of "heavy" patching. Also, Carpetech failed to submit an occupational license with its bid. However, subsequent to the bid opening, Carpetech submitted an occupational license. Like Carpetech, Intervenor also failed to submit an occupational license with its bid. 2/ To the contrary, Petitioner submitted an occupational license with its bid. The occupational license forbade Petitioner to have employees at its location but allowed it to hire outside employees, which meant that it could hire contract labor to perform under the contract of the bid. 3/ Out of the three bidders--Carpetech, Petitioner and Intervenor--only Petitioner is a minority owned business. Initially, when Petitioner began its business in December 1991, it was owned by a minority female and a minority male. Subsequently, for financial purposes, the minority female became the sole shareholder/owner and the minority male became the business consultant (consultant), receiving consulting fees. On or about March 24, 1992, Petitioner was certified as a Minority Business Enterprise (MBE) by Palm Beach County, and on or about March 19, 1992, it was certified as a MBE by Respondent, with the certification effective from May 1992 to May 1993. Petitioner became incorporated in or around April 1992 and again in July 1992 when the minority female became the sole owner. Prior to Petitioner's formation, its consultant had his own flooring business (carpet and tile sales and insulation) for several years. The prior business had financial difficulties which resulted in court judgements against it. Petitioner's sole owner was never involved in the consultant's prior business. She provides Petitioner's financial security, and there have been no court judgments against Petitioner. Respondent's Department was familiar with flooring work of Petitioner's consultant before he became associated with Petitioner. He had performed flooring work for Respondent in the past, which was very satisfied with his work. The Department was not aware of the court judgements against the prior business of Petitioner's consultant. However, even if it was, the judgments would not have had a negative effect on Petitioner in the award process of the current contract. On or about April 14, 1993, Intervenor filed its written protest, which was timely. On or about April 22, 1993, Petitioner filed its written protest, which was timely. On April 28, 1993, Respondent held an informal meeting on the written protests. On May 3, 1993, Respondent's counsel issued its recommendation on the protests, which was to "reject all bids and rebid with new terms and conditions and specifications" in order for all bidders to be given "a fair playing field."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on project SB93C-216T and readvertise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of December 1993. ERROL H. POWELL 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 2nd day of December 1993.
The Issue The issues in this bid protest are whether Intervenor's bid materially deviated from the project specifications and, if so, whether Respondent's preliminary decision to award Intervenor the construction contract at issue was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Pursuant to an Invitation to Bid (the "ITB"), Respondent Department of Management Services ("DMS") solicited bids on a project known as the ICARE Baypoint School Classroom Addition (the "Project").3 Bids were due on September 22, 2005. As a condition of submitting a bid, interested contractors needed first to be "prequalified" by DMS. DMS prequalified Petitioner Merkury Corporation ("Merkury") and Intervenor E.L.C.I. Construction Group, Inc., ("ELCI"), among several others. Each bidder was required to submit a "Base Bid" (i.e. the total price for all work, including labor and materials, specified in the ITB), together with a price for each of six numbered "Alternates."4 The contract would be awarded to the responsive bidder offering the lowest bid, the latter being defined as, generally speaking, the bid proposing the lowest aggregate price on the Base Bid plus the cost(s) of any Alternate(s) chosen by DMS.5 Of interest in this case is Alternate No. 1, which, in the ITB as originally issued, appeared as follows: Alternate No. 1 — Allowance for Owner [=DMS] contribution for buried feeder conduit to the electrical transformer (Owner will provide number). Alternate No. 1 referred to the work——described in the Electrical Site Plan (which was part of the ITB)——that would be necessary to bring electricity to the Project (hereafter, the "electric service connection"). In brief, establishing the electric service connection entailed installing the wiring between the electrical panel in the new building and the nearest transformer, which latter belonged to the local electric company, Florida Power & Light ("FP&L"). DMS knew that the Project would need power. Thus, Alternate No. 1 was not optional, as the nomenclature might suggest. But the cost of establishing the electric service connection would be largely dependent on factors exclusively within FP&L's control. And as of the time the ITB was issued, DMS had been unable to obtain from FP&L sufficient information to allow bidders accurately to estimate the cost of this particular item. The purpose of Alternate No. 1, therefore, was to make the electric service connection a non-competitive item. This would be accomplished by DMS's providing prospective bidders with a cost estimate based on information to be obtained from FP&L. DMS expected that each competing contractor would bid the same amount on Alternate No. 1, namely, the amount that DMS had provided. As initially defined, however, Alternate No. 1 was somewhat confusing, and at the pre-bid meeting in early September 2005, an issue was raised about DMS's intent regarding this item. As a result, Addendum No. 1 to the ITB, which was issued on September 8, 2005, to address questions raised at the pre-bid meeting, included the following: ADDENDUM NO. 1 — ITEM NO. 5: An allowance shall be carried for the cost of new service connection from new transformer to nearest FP & L point of service. Owner will provide budget number to be carried for this allowance. This addendum amended the description of Alternate No. 1, making clearer (it was believed) DMS's intent that the electric service connection not be a point of competition between the bidders, as each would carry, as an allowance, the Owner-provided budget number for this item. Unfortunately for everyone concerned, DMS never provided the interested contractors the budget number reflecting the estimated cost of establishing the electric service connection.6 Consequently, none of the bidders proposed a dollar figure for Alternate No. 1. Instead, each responded to Alternate No. 1 by stating, in effect, that the requested allowance could not be provided according to the specifications (which unambiguously instructed that DMS would provide the number to be carried for this allowance). To be sure, the bidders' respective responses to Alternate No. 1 were not identical. Merkury, for example, wrote "N/A," which is commonly understood to mean "not applicable." ELCI's bid proposal, on the other hand, stated, "By Owner." Merkury argues that the phrase "By Owner" means that DMS, rather than ELCI, should be responsible for establishing——at DMS's expense——the electric service connection. The undersigned rejects this interpretation of ELCI's bid as unpersuasive and unsupported by the greater weight of the evidence. In the instant context, the phrase "By Owner" is most readily and reasonably understood, objectively, as being functionally the equivalent of "N/A." ELCI was simply expressing the idea that the budget number (not the work) would be provided by DMS——a reasonable response, given the language of Alternate No. 1. In sum, despite some differences in wording, every one of the responses to Alternate No. 1, including ELCI's, was the product of the bidder's inability, in the absence of the Owner-provided budget number, to carry as an allowance the Owner-provided budget number. Of the five contractors who timely submitted a bid proposal, Merkury's Base Bid of $2,874,597 was the lowest, followed closely by ELCI's Base Bid of $2,877,000. DMS decided to take all six Alternates, however, and after the additional costs were added, ELCI was deemed the lowest responsive bidder, Merkury the second lowest. Accordingly, on October 17, 2005, DMS announced its intent to accept ELCI's bid in toto and award ELCI the contract for the Project. Protesting the intended award, Merkury takes the position that DMS's failure to provide the budget number for Alternate No. 1 effectively rendered this item a nullity, compelling the bidders to include in their respective Base Bids the cost of the electric service connection, which work remained a part of the Project, by virtue of the bid specifications, notwithstanding the loss of Alternate No. 1. Consistent with this understanding of the effect of DMS's silence regarding the budget figure, Merkury took into account the anticipated cost of establishing the electric service connection when working up its Base Bid, ultimately adding $33,388 to the bottom line as a result. ELCI, in contrast, assuming that DMS eventually would provide the figure for the allowance, did not factor into its Base Bid calculation the cost of the electric service connection. ELCI guessed correctly, for in choosing Alternate No. 1, DMS decided that it would provide the successful bidder with the budget number when such became available and thereafter pay the cost of establishing the electric service connection via a change order. Merkury maintains that DMS should have rejected ELCI's bid as materially non-responsive (because the costs that were used in preparing ELCI's Base Bid did not include the cost of establishing the electric service connection) and awarded the contract to Merkury as the lowest responsive bidder. In light of Merkury's argument, it is relevant to note that the ITB called for the Base Bid to be given as a lump sum, without breaking out individual costs; that is, in fact, how each of the six responding contractors presented their respective Base Bids. Thus, there was no way for DMS to know, upon opening the bids, that Merkury's Base Bid included a cost component relating to the electric service connections, while ELCI's did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered directing that the proposed award to ELCI be implemented in accordance with DMS's intentions. DONE AND ENTERED this 10th day of July, 2006, 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 10th day of July, 2006.
