The Issue Whether the Department of Health and Services acted fraudulently, arbitrarily, capriciously, illegally or dishonestly in issuing an award of bid or HRS Lease No. 590:2069 to Harpaul S. Ohri.
Findings Of Fact Sometime before March, 1989, the Department of Health and Rehabilitative Services (HRS) requested and received approval from the Department of General Services (DGS) for additional office space to provide social services in the western portion of Orlando, Orange County, Florida, including a food stamp distribution office. HRS was authorized to procure, through competitive bidding, a lease for 17,250 net rentable square feet of existing office space, plus or minus 3 percent. The said lease was to provide for a full service period of seven years and two options to renew for three years each at specified rates, with occupancy no later than December 1, 1989 or 175 days after the bid award is finalized. The geographic area designated in the bid package for the office space was limited to the following area of Orange County, Florida: Beginning at the intersection of Colonial Drive and Kirkman Road to the intersection of L.B. McLeod Road, then east on L.B. McLeod Road to the, intersection of Rio Grande Avenue then north on Rio Grande Avenue to the, intersection of Colombia Street,, then east on Colombia Street to Interstate 4, then north on Interstate 4 to the intersection of Colonial Drive, then west on Colonial Drive to the point of Beginning. Public notice that HRS was seeking competitive bids was given and HRS prepared a document entitled Invitation to Bid for Existing Office Space (ITB), which set forth in detail all of HRS requirements. The purpose of the ITB was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. Specific areas of importance to Respondent as reflected in the ITB and addressed by the evidence herein were as follows: 17,250 net rentable square feet (plus or minus 3 percent) of existing office space. General office use for use, as a client service center. Seven year term with two options to renew of three years each. 120 off-street, on-site, full size parking spots designated exclusively for use of Department employees and clients, suitably paved and lined, with a minimum of two for the handicapped. Availability of public transportation within reasonable proximity. Availability to adequate dining facilities within two miles. Photographs of the exterior front of the facility, along with documentation of present facility configuration and parking areas including access and egress to public roadways. Availability of elevator for multi-story use. i). Space requirement criteria: Minimum telephone requirements. Back-up interior emergency lighting. Three separate sets of rest rooms, male and female, one meeting the needs of the handicapped General security requirements. Specific security requirements for food stamp distribution center. Window covering over exterior widows to allow both sunlight and energy control; if bidded space without existing windows, then all rooms comprising the exterior of the building would require windows measuring approximately 24 x 36, all secured and inoperable. Full Service including all utilities and janitorial. The evaluation factors and their relative weights were stated in the ITB as follows: Evaluation Criteria The successful bid will be that one determined to be the lowest and best. All bids will be evaluated on the award factors enumerated below: Associated Fiscal Costs Rental rates for basic term of lease Evaluated using present value methodology by application of the present value discount rate of 8.69 percent. (Weighting: 25) Rental rates for optional renewal of terms of lease. Rates proposed are within projected budgeting restraints of the department. (Weighting: 10) Associated moving costs, i.e., furniture, equipment, telephone systems, etc,. (Weighting: 5) Location Proximity of offered space in central or preferred area of map boundaries. (Weighting: 10) Frequency and availability of satisfactory public transportation within proximity of the offered space. (Weighting: 10) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of the departmental operations planned for the requested space. (Weighting: 10) Facility Susceptibility of design of the space offered to efficient layout and good utilization. (Weighting 15) Provision of the aggregate square footage in a single building. Proposals will be con- sidered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. (Weighting: 10) TOTAL POSSIBLE 100 percent The bid package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Sealed bids were submitted by three bidders, Petitioner, Harpaul S. Ohri and Kensington Gardens Builders Corp. The bids were opened on April 25, 1989, and Ernie Wilson, HRS District 7 Facilities Services Manager, determined that all three bids were responsive, and within the mandatory geographical area designated in the bid package. The District Administrator appointed a bid evaluation committee to review and grade, the responsive bids under the criteria established in the bid package, and to recommend to him the committees choice of the lowest and best bid. Four individuals who were familiar with the type of work to be done in the proposed space and familiar with the bid process were appointed to the Committee. On or about May 1, 1990 the bid evaluation committee determined that the bid of Harpaul S. Ohri was the "lowest and best bid" and submitted its determination, in writing, to the District Administrator who, subsequently approved the selection. On or about June 26, 1989, on behalf of the Department, Ernie Wilson, Facilities Services Manager, notified the bidders of the Departments intent to award the bid to Harpaul S. Ohri, as being in the best interest of the Department. The bid evaluation committee consisted of four representatives of the Department who visited two of the three bidders sites and questioned the bidders representatives. The members of the committee were familiar with the Petitioners site from previous experience. They choose not to make an on-site visit prior to completing the bid evaluation sheet, although instructed to do so on the Evaluation Committee Duties and Responsibilities/Real Property, Leasing instruction sheet. Each committee member completed an evaluation sheet and gave a higher total score to Mr. Ohri. The three major bid evaluation criteria were Fiscal Cost, Location and Facility. Under the Fiscal Cost criterion were three sub-categories: Rental Rates, Renewal Rates, and Moving Costs. For Rental Rates, Petitioner received an average of 22.7 points out of 30 possible,, while Ohri received 21.7, and Kensington Gardens received 23.7 points. The points were individually assessed by the evaluation committee, after the rental rates were compared by Ernie Wilson based on the present value analysis of bidders proposed rates. For Renewal Rates, each of the bidders, including Petitioner, received 5 points out of 10 possible. The present value analysis was not applied, as was noted in the ITB. However, even a cursory examination of the renewal rates submitted by the bidders shows that there is a 15 percent to 33 percent yearly differential in the rates, with the Petitioners rates as the lowest and Kensington Gardens as the highest. Although the committee assigned all three bidders an equal rating, the renewal rates submitted by the bidders were not equal should the Department wish to exercise its options, the rates submitted by Petitioner were substantially lower than the other two bidders and would result in a cost savings to the Department of several hundred thousand of dollars. The award factor points should not have been awarded equally. For Moving Costs, Petitioner received 5 points on each of the committee members sheets, while Ohri received 4 points and Kensington Gardens received, an average of 3.7 points. The maximum points possible was 5 points. Petitioner was awarded the maximum points because HRS is presently in the same building and no moving costs would be experienced. The other two bidders were awarded 4 points each by committee members. That determination was based on each members personal experiences. No cost or time lost data was provided or requested. The LOCATION criterion also had three sub-categories: Proximity to other governmental agencies - 10 points - with all three bidders receiving the same rating; Public Transportation -10 points - with all three ,bidders, receiving the same rating; and Environmental Factors - 10 points - out of which Petitioner received an average of 5.7 points; Ohri - 9.7 points and Kensington Gardens - 6.5 points. In considering the proximity to other governmental agencies of each of the facilities being considered, the committee relied on their own knowledge of the area. They determined that since each was within the geographical area designated in the ITB, each was equally distant from the most frequently visited government agencies in the vicinity. However, Petitioners facility is the most centrally located of the three facilities offered, while the two other facilities were considerably distant from other government agencies. The award factor points should not have been awarded equally. For Public Transportation, the committee determined that local bus service went near each of the three facilities. They were neither provided, nor did they request, route maps, schedules or passenger capacity for buses servicing each facility. Petitioners facility is centralized in the area served within the bid district, and serviced by, numerous bus lines which pass near the facility ten times per hour. The bus service to the other two facilities are limited to four buses per hour, with buses having a smaller capacity. In addition, most clients would be required to travel to the central bus terminal and transfer to a different route in order, to reach the Ohri or Kensington Gardens facilities, making bus transportation a very time-consuming process. No other form of transportation is available, except for taxi service. In addition, in order for a client to walk from the nearest bus stop to the Ohri facility, a person would cross two heavily traveled six lane streets and then walk across an open shopping center parking lot. This would require approximately a fifteen minute walk. In order to reach Petitioners facility, a client would require approximately a five minute walk utilizing public sidewalks. The committee did not consider these facts in its evaluation. The award factor points should not have been awarded equally. (c)(1). For Environmental Factors, the committee considered each buildings physical characteristics and the surrounding area. The committee, in their letter to the District Administrator, dated May 1, 1989, identified this category as "a very critical area for the new lease." The letter also stated: "The committee took the following into account when evaluating this section: Cleanliness of the building aid surrounding areas. Lack of traffic congestion by motorized vehicles close to the facility. Easiness of getting to and from the facility by vehicle. Safety for clients and staff walking to and from the facility. Upkeep of the surrounding buildings or other sections of the bidders building." The following was also taken into account when evaluating this section, but was not so stated in the letter. At least one committee member believed the lack of window space in Petitioners facility was disabling to his bid, and that the willingness of the Ohri representative to install windows on exterior walls was a significant factor in her determination of award. At least one committee member indicated that future expansion was a substantial factor in her favoring the Ohri bid, and that there was janitorial and security problems at Petitioners facility. The committee received no other information other than the committee members opinion regarding the same. The committee as a whole erroneously believed that the extra square footage visible at the Ohri facility at the time of their inspection would necessarily be available to HRS if and when it might expand its offices. Future expansion was specifically removed from the ITB at the pre-bid conference and it was clearly erroneous for them to have included this factor in their bid evaluation. The ITB specifically calls for the installation of exterior windows by the winning bid prior to occupancy. However, none of the committee members reviewed the ITB or the actual bids submitted. They relied primarily on the synopsis of the bids prepared by Ernie Wilson. The ITB states substantial general and specific security requirements in detail; however, the evaluation criteria forms do not provide a category for evaluating security other than generally under the sub-category of environmental factors. The ITB, under General Specifications and Requirements, called for the availability of adequate dining facilities within two miles of the proposed facility. The evaluation criteria did not provide a category for the committee to rate dining facility availability. In consideration of the environmental factors, the committee overlooked or failed to consider a hazardous unfenced high voltage transmission station adjacent to the Ohri facility. In addition, the photographs submitted by Ohri as the front of the building (as required by the ITB) are in fact the rear of the building which was not offered as part of the proposed leased facility. Of the three sub-categories under FACILITY, out of 15 possible points, Petitioner received an average rating of 9.5, Ohri received an average of 13.7 and Kensington Gardens received 11.2 for Layout/Utilization. Ohri received the most points because his building configuration was a, shell and was more flexible and could be reconfigured for more efficient layout to suit the Departments needs. All three bidders submitted proposals wherein the total square footage of rentable space was to be contained in a Single Building. Therefore, all three bidders received the maximum 10 points. A maximum 5 points was provided for facilities with Street-level space. All three bidders were awarded the maximum 5 points. However, a portion of Petitioners space was offered on the second floor, a fact which the committee overlooked. The Petitioner should not have received the full 5 points for having street-level space. The unanimous recommendation of the evaluation was to award the lease to Ohri. In reaching that conclusion, the committee did not properly utilize the weighted bid criteria and, in addition, included improper bid considerations in their evaluation of the three facilities. Some of the reasons given by the committee for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. However, others were erroneous and improper.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for lease number 590:2069 and issue a new invitation to bid. DONE AND ENTERED this 12th day of February, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by the Petitioner: Accepted: paragraphs 1, 2, 3, 5, 6, 7, 9 (in substance, except for subparagraphs f, g, j and k which are not relevant), 10 (in substance), 12(a), (b), (f-in substance), (g-in substance), (h-in substance), (j), (k-in substance), (l-in substance), (p-in substance). Rejected: Not relevant: paragraphs 4, 12(c), (d), (e), (m), (n), (o), (p- the proposed future location of the Greyhound Station; insure wooded area nearby), (q), (r). Argument: paragraphs 11 and 13. Procedural matters, covered in the preliminary statement: paragraphs 8 and 14. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Terrence W. Ackert, Esquire 201 East Pine Street Suite 1402 Orlando, Florida James Sawyer, Jr., Esquire District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue for consideration in this matter is whether Respondent's intended award of a lease for office space to Intervenor, Anthony Abraham Enterprise, is arbitrary and capricious and whether the proposal of the Petitioner, Adlee Developers, the current lessor, is responsive.
Findings Of Fact The parties agreed that on April 7, 1991, the Department issued an Invitation to Bid entitled, "Invitation To Bid For Existing Facilities State Of Florida Lease Number 590:2286, Dade County" This procurement was for the provision of 30,086 net rentable square feet to be used for office space in Dade County. A 3% variance was permitted. The facility was to house the District's Aging and Adult Services office which has been a tenant in Petitioner's building for several years and remained there during the pendancy of this protest process. According to the published advertisement, a pre-proposal conference was to be held on April 22, 1991, with all bids due by the bid opening to be held at 10:00 AM on May 30, 1991. The pre-bid conference was conducted by Philip A. Davis, then the District's facilities service manager and included not only a written agenda but also a review of the evaluation process by which each responsive bid would be examined. Petitioner asserts that the potential bidders were told, at that conference, that annual rental increases for the ten year lease period could not exceed five per cent (5%) and claims that Abraham's bid exceeded those guidelines. Thorough examination of the documentary evidence presented and the transcript of the proceedings, including a search for the reference thereto in Petitioner's counsel's Proposed Findings of Fact, fails to reveal any support for that assertion as to an increase limitation. The ITB for this procurement, in the section related to the evaluation of bids, indicated that pursuant to the provisions of Sections 5-3 and 5-11 of HRSM 70-1, dealing with the procurement of leased space, the responsive bids would be reviewed by an evaluation committee which would visit each proposed facility and apply the evaluation criteria to it in order to determine the lowest and best bidder. The evaluation criteria award factors listed in the ITB defined a successful bid as that one determined to be the lowest and best. That listing of evaluation criteria outlined among its categories associated fiscal costs, location, and facility. As to the first, the committee was to look at rental rates for both the basic term of the lease and the optional renewal period. The rates were to be evaluated using present value methodology applying the present value discount rate of 8.08% and rates proposed were to be within projected budgeting restraints of the Department. The total weight for the rental rate category was to be no more than 40 points with 35 points being the maximum for the basic term and 5 points for the option. Evaluation of the location was to be based on the effect of environmental factors including the physical characteristics of the building and the area surrounding it on the efficient and economical conduct of the operations planned therefor. This included the proximity of the facility to a preferred area such as a co-location, a courthouse, or main traffic areas. This item carried a maximum weight of 10 points. Also included in location were the frequency and availability of public transportation, (5 points); the proximity of the facility to the clients to be served, (5 points); the aesthetics of not only the building but the surrounding neighborhood, (10 points); and security issues, (10 points). The third major factor for evaluation was the facility itself and here the committee was to examine the susceptibility of the offered space to efficient layout and good utilization, (15 points), and the susceptibility of the building, parking area and property as a whole to possible future expansion, (5 points). In that regard, the Bid Submittal Form attached to the ITB called for the successful bidder whose property did not have appropriate zoning at the time of award to promptly seek zoning appropriate to the use classification of the property so that it might be used for the purposes contemplated by the department within 30 days. In the event that could not be done, the award could be rescinded by the department without liability. The committee could award up to 100 points. The basic philosophy of this procurement was found in paragraph 1 of the Bid Award section of the ITB which provided: The department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interest of the department and the state. After the bid opening, three of the four bids received, excluding Petitioner's which was initially determined to be non-responsive, were evaluated by the Department's bid evaluation committee according to the above point system which allowed no discretion or deviation from the formula in comparing rental rates between bidders. Once Petitioner's bid was thereafter determined to be responsive, it, too was evaluated by the committee. At this second evaluation session, relating to Adlee's bid only, the committee scored the bid and added its scores to the original score sheets upon which the other three bidders' scores had been placed. Abraham had the lowest rental rates for the basic term of the lease and received the maximum award of 35 points for that category while Adlee received points. Abraham received an additional 2.29 points for the optional period rates while Adlee got 0. In the other categories, "location" and "facility", which comprised 60% of the points, Adlee's facility was routinely rated superior to Abraham's except for the area related to susceptibility for future expansion in which Abraham was rated higher by a small amount. Overall, however, Adlee was awarded 620.41 points and Abraham 571.03 points and as a result, Adlee was rated by the committee to be the lowest and best bidder. RCL, another bidder, was rated second, with Abraham third and DCIC fourth. Thereafter, the committee chairman, Mr. VanWerne, forwarded the new (and complete) evaluation results to the District Administrator on June 14, 1991 by an addendum dated June 27, 1991 which recommended award of the bid to Petitioner, Adlee Developers. No award was made at the time. Several factors not pertinent to the issues here caused that delay. Among the major of these was pending legislation which would have transferred the operation needing this space to another agency. This transfer was never consummated, however. On or before March 20, 1992, the new District Administrator, Mr. Towey, who had been appointed to his office in December, 1991, and who was made aware that this procurement had not been finalized, requested all available material on it so that he could study it and make his decision based on his own review of the submission. As a part of his determination process, he visited and inspected both the Adlee and the Abraham sites. One of the factors he considered was what appeared to be the significant monetary discrepancy between the two pertinent bids. Initial calculations indicated that Abraham's bid was approximately $835,000.00 lower than Adlee's over the ten year basic term of the lease. This amount was subsequently determined to be somewhat lower but the discrepancy is still significant. Nonetheless, because of that difference, Mr. Towey called a meeting with the members of the evaluation committee which had evaluated the bidders and had recommended Adlee. His stated reason for calling that meeting was to allow him to hear their reasons for rating the submissions as they had done and to take that information into consideration when he made his final decision. None of the committee members who testified at the hearing at Petitioner's behest indicated any feelings of pressure or intimidation by Mr. Towey. During his meeting with the committee members, Mr. Towey went over several of the evaluation criteria award factors to determine the committee's rationale. Of major importance was the issue of cost, of the availability of the facility to transportation to and from the building, employee security and the ability to control access to the facility, and the availability of on-site parking without cost to both employees and clients. It appears the Adlee facility is a multistory building with some parking available on site and would be easier to control. In addition, it is closer to public transportation access points. There is, however, some indication that on-site parking for clients would not be free and the closest free parking is some distance away. According to Adlee's representative, this matter would not be a problem, however, as adequate, free on site parking, which apparently was not initially identified as a problem, could be provided in any new lease. The Abraham facility is a one story building surrounded by on-site parking. In that regard, however, at hearing, Petitioner raised the claim that the Abraham site did not, in actuality, provide adequate parking because the zoning requirements of the City of South Miami, the municipality in which the facility is located, did not permit the required number of parking spaces to accommodate the prospective need. Petitioner sought and received permission to depose the Building and Zoning Director for the city, Sonia Lama, who ultimately indicated that the Abraham site was grandfathered in under the old zoning rule and, thereby, had adequate parking available. In any case, had this not been true, under the terms of the ITB, any zoning deficiencies could have been corrected after award, or the award rescinded without penalty to the Department. After the meeting with the committee, Mr. Towey indicated he would probably go against the committee's recommendation. One of his reasons for doing so, as he indicated to them, was the appearance certain amenities in the facility would give. In the period between the time the committee met and Mr. Towey was ready to decide, there were several newspaper articles published in the Miami area which were negative in their approach to Department leasing policies and this publicity had an effect on him. In his response to a reporter's question, in fact, Mr. Towey indicated he would not permit the lease of any property which contained such amenities while he was District Director. There is some evidence that the wet bar referred to here was a sink and counter used by agency employees to make coffee. However, before making his decision, Mr. Towey also met with Herbert Adler of Adlee. Mr. Towey advised him he was concerned about the fact that the Adlee property provided a wet bar, a private bathroom and some other amenities in that suite of offices occupied by the Department. Mr. Towey was adamant in his public and private pronouncements on the subject that there would be no such amenities in HRS offices in his District while he was in charge. At the meeting in issue, Mr. Adler made it very clear he was willing to remove all the offending amenities to bring the space into conformity with Mr. Towey's standards. Mr. Towey obviously took Adler at his word as he did not consider this matter to be an issue when he evaluated the bids. Based on his independent evaluation of the proposals, and considering all the pertinent factors, Mr. Towey decided not to concur with the committee's recommendation and instead recommended to the Department's Office of General Services that the bid be awarded to Abraham. Because his recommendation differed from that of the evaluation committee, under the provisions of Section 5-13, HRS Manual 70-1, he was required to forward additional justification for his position. In his forwarding memorandum dated March 20, 1992 to Mr. King Davis of the Department's Office of General Services, Mr. Towey listed as his reasons for disagreement with the committee's recommendation, (1) the lower term cost of Abraham's bid, (2) his opinion that the one story floor plan of Abraham was more convenient and accessible to clients, and (3) the provision for ample free parking at the Abraham site as opposed to the limited parking at the Adlee building. Petitioner claims that Mr. Towey's justification for disagreement was improper because, (a) the rental difference he cited was not based on the ITB formula and did not consider the difference in square footage offered; (b) the rental rate comparison compared a proposed lease with an existing lease, not with a proposal; and (c) the reference to on-site parking referred to the situation under the existing lease with Adlee and not to what could occur under a new lease. The major factor in Mr. Towey's decision was the price differential between the two offerings. While the difference may not have been as great as presented initially by the department staff, even taken in its most conservative light of about half that amount, and considering the appropriate figures, the difference was still considerable and significant. In the continuing period of budgetary austerity under which state operations have been and must continue to be conducted, the financial consideration loomed large in his thinking. As for the parking situation, no change for the better was provided for in Adlee's proposal and even if it were, it was but one of several factors. When Mr. Towey's March 20, 1992 memorandum in justification of his disagreement was evaluated at the Office of General services, it was determined that his decision was rational and objectively justified. Thereafter, by letter dated April 2, 1992, the Office of General Services authorized District 11 to award the lease to Abraham and this decision was transmitted to all responsive bidders by letter dated April 7, 1992. It was this action which prompted Petitioner's protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered dismissing the protest by Adlee Developers, Inc., of the award of procurement No. 590:2286 to Anthony Abraham Enterprises. RECOMMENDED this 10th day of July, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2798 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted. Accepted that the pre-bid conference was held but reject the finding that a 5% limit was mentioned. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 11. Accepted and incorporated herein. 12. - 14. Accepted and incorporated herein. 15. - 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted except for the next to last sentence which is rejected. Accepted. Accepted and incorporated herein. Accepted but not probative of any material issue. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 30. Rejected. - 33. Accepted and incorporated herein. FOR THE RESPONDENT AND INTERVENOR: & 2. Accepted and incorporated herein. 3. - 5. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 16. Accepted and incorporated herein. 17. - 19. Accepted and incorporated herein. 20. & 21. Accepted and incorporated herein. Accepted and incorporated herein. - 25. Accepted. COPIES FURNISHED: Melinda S. Gentile, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell 200 East Broward Blvd. P.O. Box 1900 Fort Lauderdale, Florida 33302 Paul J. Martin, Esquire Department of Legal Affairs The Capitol - Suite 1501 Tallahassee, Florida 32399-1050 Peter W. Homer, Esquire Greer, Homer & Bonner, P.A. 3400 International Place 100 S.E. 2nd Street Miami, Florida 33131 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The first issue to be determined is whether the BOARD can reject all bids, with or without cause. The second issue is to determine if the BOARD is required to have cause, was there a sufficient basis for the rejection of all bids in Bid NO. 3996?
Findings Of Fact On December 14, 1987, the BOARD sent invitations to bid to a list of approved vendors in Bid NO. 3996. The purpose of the invitation was to obtain the lowest responsible bid on a purchase of one hundred and fifty typewriters. The bids were to be submitted prior to January 11, 1988 at 2:00 P.M.. They were opened by the BOARD on the same day. OFFICE did not receive an invitation to bid despite its request to be placed on the approved vendor's list in November of 1987. When OFFICE learned of the outstanding invitation to bid, its representative, Mr. Richard Foss, went to the BOARD's Purchasing Department and requested a bid package. The bid documents given to OFFICE mistakenly gave January 14, 1988 at 2:00 P.M. as the deadline for the bid submission. Because of the later date given by the BOARD to OFFICE, the company's bid was received after the opening of the bids. When the results of the bidding were made known at the public bid opening, NAPLES bid was the lowest received. On January 14, 1988, after 10:42 A.M., it was discovered by the BOARD that OFFICE's bid price was lower than the price submitted by NAPLES. At this time, NAPLES bid had not yet been accepted by the BOARD, and no formal announcement had been made awarding the contract to NAPLES. During the BOARD's Purchasing Department's bid analysis, a request was made to reject all bids in Bid NO. 3996. The reason given by Purchasing for the request for rejection was that the specifications were being revised. The bids were rejected on the same date. The written reason sent to the vendors on January 14, 1988 for the bid rejection was that one vendor had been given an incorrect opening date. Attached to the written notice to the vendors was a new bid invitation for Bid NO. 4013. The BOARD explained its mistake was unfair to the one vendor. A new bid opening date was given of February 1, 1988. On January 14, 1988, in addition to the required bid documents, OFFICE submitted a letter which listed additional offerings or incentives that OFFICE would give the BOARD if OFFICE was awarded the contract. These additional purchasing incentives were: wall charts and teacher/student manuals for each typing classroom in the county. OFFICE also informed the BOARD that one of the BOARD's own service personnel was already trained in the servicing of Swintec typewriters. The bid submitted by OFFICE did not meet either the weight or the print wheel specifications as set forth in Bid NO. 3996. The specifications as written in Bid NO. 3996 were not written to eliminate all other typewriters but the Brothers 511-11. Weight specifications required were below the Brother's minimum weight, and at least two other manufacturers provide protected drop-in cassette print wheels in electronic typewriters. The Invitation to Bid contained specific provisions which encouraged the bidding of typewriters other than the Brother 511-11, and set up procedures under which other typewriters, which substantially meet the specifications, could be reviewed on their merits. NAPLES was the lowest responsible bidder for the electronic typewriter contract in the prior school year. The BOARD had rejected all bids at that time because of the decision to consider a different brand of typewriter once bids were opened. A notice of protest was filed by NAPLES, and the BOARD agreed to honor NAPLES bid and award the company the contract. The BOARD revised its bid specifications from last year prior to its solicitations for bids in Bid NO. 3996. The protected drop-in cassette print wheel and the weight requirements were two new technical specifications. During the hearing, the BOARD was unable to determine whether the weight factor or the protected drop-in cassette print wheel requirement will continue to be included in future revisions of the specifications.
Recommendation Based on the foregoing, it is RECOMMENDED: That the BOARD reject the bid submitted by OFFICE as it was nonconforming and sought an advantage not enjoyed by the other bidders. Reinstate the bids which were rejected in Bid NO. 3996, consider the bids, and make an award of the contract to NAPLES. DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida. VERONICA D. DONNELLY 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 30th day of March, 1988. COPIES FURNISHED: Stephen Emens, President Naples Business Equipment and Systems, Inc. 859 4th Avenue South Naples, Florida 33940 Harry A. Blair, Esquire 2138-40 Hoople Street Ft. Myers, Florida 33901 Richard Foss, Typewriter Sales Manager 8A-Del Prado Boulevard Cape Coral, Florida 33904 Karl Engel, Superintendent Lee County Public Schools The School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901
Findings Of Fact Sometime before January, 1989, The Department of Health and Rehabilitative Services (HRS) requested and received approval from the Department of General Services (DGS) for additional office space to provide for social services in Haines City, Florida. HRS was authorized to procure, through competitive bidding, a lease of 9041 square feet of existing office space, plus or minus 3%. Public notice that HRS was seeking competitive bids was given by advertisement in four central Florida newspapers. HRS had prepared a document entitled Invitation to Bid for Existing Facilities (ITB), which set forth in detail all of HRS' requirements. The purpose of the ITB was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. The evaluation factors and their relative weights were stated in the ITB: Evaluation Criteria The successful bid will be that one determined to be the lowest and best. All bids will be evaluated on the award factors enumerated below: Associated Fiscal Costs Rental rates for basic term of lease. Evaluated using present value methodology by application of the present value discount rate of % (Weighting: 30) Rental rates for optional renewal of terms of lease. Rates proposed are within projected budgeting restraints of the department. (Weighting: 5) Associated moving costs i.e. furniture, equipment, telephone systems, etc. (Weighting: 0) Location Proximity of offered space in central or preferred area of map boundaries. (Weighting: 10) Frequency and availability of satisfactory public transportation within proximity of the offered space. (Weighting: 5) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of the departmental operations planned for the requested space. (Weighting: 20) Facility Susceptibility of the design of the space offered to efficient layout and good utilization. (Weighting: 20) Provision of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 15 yards of each other. (Weighting: 10) TOTAL POSSIBLE 100% The bid package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Specific areas of importance to Respondent in the selection of its office space were: rental rates environmental factors efficient space layout The above areas were important to HRS since the agency would render indigent services to several hundred people every month. The majority of Respondent's clients are served within a 10 day period each month. A great deal of pressure is placed on the surrounding area due to the influx of people. Because of servicing so many people, factors two and three received a great deal of weight under HRS's consideration of the property it desired to lease and occupy. All of the above areas were covered by Respondent's weighted bid evaluation criteria. Sealed bids were submitted by Intervenor, Unirealty Services, Inc. (bid A), and Petitioners, Messrs. Matthews and Walker (bid B). The bids were opened February 20, 1989, and Mr. Michael T. Akridge, former Facilities Services Manager, District VI HRS, determined both bids were responsive. At the time the Intervenors submitted their bid, they included documentation which showed that they had an option contract to purchase the subject facility, and an authorization from the optionees (two principals of Intervenors) for Unirealty to act as their agent. Both Petitioner's and Intervenor's property were within the mandatory geographical area designated in the bid package. Both bids were responsive under the minimum bid specifications and bidder qualifications. The District Administrator appointed a bid evaluation committee to review and grade the responsive bids under the criteria established in the bid package, and to recommend to him the committee's choice of lowest and best bid. The purpose in establishing the bid evaluation committee was to secure input from a cross section of people who had a variety of backgrounds and knowledge that would be material in evaluating the office space, in light of the uses for which it was intended and the relative public worth of the work space. Six individuals who were familiar with the type of work to be done in the proposed space, as well as persons familiar with the bid process were appointed to the Committee. The bid evaluation committee determined that the bid of Unirealty was the "lowest and best." The bid evaluation committee consisted of six representatives of the Department who visited each bidders' site and questioned the bidders' representatives. Each of the committee members worked with or supervised HRS programs that were to be located in the leased space. The solicitation for bids provided each bidder, among other things, with the bid evaluation criteria, a 100 point scale, which the committee used to evaluate the bids. Each committee member's evaluation scores were averaged and totaled to score Petitioners at 90.8, and Unirealty at 83.9. Each committee member gave a higher score to Unirealty. The three major bid evaluation criteria were FISCAL COSTS, LOCATION and FACILITY. Under the FISCAL COST criterion were three sub-categories: Rental Rates, Renewal Rates, and Moving Costs. For Rental Rates, Petitioners received 30 points out of 30 possible, and Unirealty got 23.1. For Renewal Rates, Petitioners got 5 out of 5 possible points, and Unirealty received 3.7 points. No points were awarded for Moving Costs. The evaluation committee did not assess points for Rental or Renewal Rates. These were scored by Michael T. Akridge, bid manager, based on a present value analysis of bidders' proposed rates. Mr. Akridge did not give the Committee the points for Rental and Renewal Rates until after they had completed their evaluations of the LOCATION and FACILITY criteria. The LOCATION criterion also had three sub-categories: Central Area-- 10 points--with both bidders receiving 9.3; Public Transportation--5 points-- which both bidders received; and, Environmental Factors--20 points--out of which Petitioners received 12.8 points and Unirealty 20 points. The Environmental Factors sub-category included building physical characteristics and surrounding area and their effect on the efficient and economical conduct of Department operations. Unirealty received a higher score than Petitioner because the committee believed its building had a better appearance, and was in better shape. The area surrounding the building was more open, while Petitioners' building was in a less desirable neighborhood with a bar or liquor store and bus station nearby which could create problems for clients because of transients. It had far more window space which creates a better work environment, and allows staff to be watchful of clients and their children outside, and the windows would be tinted. The windows at Petitioner's site were limited and no more could be added. Unirealty had more adjacent parking spaces, with handicapped parking closer to the building, and part of it was fenced which provided added protection to clients and staff. Petitioners' site had adjacent businesses whose patrons were using some of the parking spaces which the committee felt could create a problem. The Unirealty building could have an outside food stamp issuance facility which would be far more accessible to clients and to make the lobbies less crowded. It had an existing alarm system. It did not have side streets adjacent to the building, thus there would be less traffic congestion and therefore safer for clients; and, it had outside gathering areas where clients could go to smoke. Of the three sub-categories under FACILITY, Petitioners received 11.8 points out of 20 for Layout/Utilization and Unirealty received 19.7 points; for Single Building, both bidders received 10 points out of 10 possible. For the Layout/Utilization sub-category Unirealty received more points because its building configuration was more flexible and conducive to design of interior space, with less maze effect. The members of the committee each testified that it was important that the Unirealty building had no support poles to get in the way as they did in Petitioners' building. The support poles in Petitioner's building created a safety problem for clients and inhibited the location of desks and corridors. At Unirealty's site each worker could have a window, and mechanical and service areas could be put in the center of the building, with a playroom for clients' children. It provided a better restroom location near the front of Petitioner's building and lobby areas, and clients would not have to wander through work areas to get to the restrooms. Unirealty's building provided better control of clients' movements and thus better security. Members of the committee also upgraded the Unirealty building because its pitched roof was less likely to leak and its air conditioning was zoned thus providing better air quality and temperature control. At Unirealty there was better ingress and egress, and entry ways could be added. This could not be done at Petitioners' site. The Unirealty building could have different entrances for each HRS program, with separate lobbies for each program with less client congestion and better control. During the Committee members inspection of the sites they were told of an existing security alarm system already in place at the Unirealty site and were told that system would remain in place. When asked, the Petitioner's representative was unsure if his client would install a similar system at their site. A security system for the entire building was not included in the bid specifications, and it was improper for the committee to give Unirealty extra points for this unsolicited item. The proposed lease agreement calls for 9041 square feet of office space and a minimum of 66 parking spaces. Unirealty offered 72 parking spaces and Petitioner offered 75. The committee awarded more evaluation points to the Unirealty site based on future expansion capability of the building and the existing additional on-site parking spaces which were visible at the site at the time of inspection. The committee erroneously believed that the extra square footage of building space and extra parking spaces would necessarily be available to HRS if and when it might expand its offices. Future expansion was not in the bid specifications and it was clearly erroneous for them to have included this factor in their bid evaluation. The evaluation committee included the improper bid considerations in their evaluation of the Unirealty property. The two improper factors cannot be considered here. The unanimous recommendation of the evaluation committee was clearly to award the lease to the Intervenor. The evaluation committee based its decision on the scores attributed to each property on the Bid Synopsis sheet by the individual committee members. The committee utilized all the weighted bid criteria. However, two factors were of primary importance. One was its determination that the property offered by the Petitioners presented greater problems for design and flexibility due to the rectangular configuration of the building. The other consideration was that the physical characteristics of the Unirealty site and the surrounding area were considered far superior to the Petitioner's site. A close review of each evaluation sheet and the testimony of each committee member at the hearing shows that the improper factors were not so heavily weighted as to invalidate the committee recommendation. The reasons given by the individual committee members for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. Each individual member gave a rational and reasonable basis for the scoring he or she used on the Bid synopsis score sheets. The scoring was done by each member after inspection of the two buildings and without influence from the other committee members. In essence, the committee felt that Intervenor's property was the better property for the money. Importantly, every committee member came to the conclusion that Intervenor's property was the lowest and best bid. There is no statutory or rule requirement that one scoring method be preferred over another. The only requirement is that the method be rational and reasonable especially where highly subjective, but legitimate criteria are involved in the selection of a piece of property. On these facts, the individual scoring methods used by individual committee members were not arbitrary and capricious, but were very rational and reasonably related to the relative importance the committee members gave the above factors. Over an eight year period the Petitioner's rental cost was significantly lower than the Intervenor's. However, it is clear the legitimate considerations of the committee were crucial enough to override awarding the lease to the lowest bidder. The conclusion that the above factors can and do outweigh price and cost considerations in these facts is not an arbitrary and capricious decision, even though others may disagree with that decision. After the committee recommendation was scored and tabulated, Mr. Akridge requested the committee chair, Ms. Gail Newell, to prepare a draft letter of the proposed bid award. This was done in collaboration with the other committee members. Mr. Michael T. Akridge then prepared the bid award letter for the signature of the Administrative Services Director based on the draft letter. In it the two improper considerations were mentioned. The authority to award the lease to Unirealty was approved on March 8, 1989, by King W. Davis, Director of General Services for HRS based on the bid award letter, dated February 26, 1989.
Recommendation Based on the foregoing, the Hearing Officer recommends that the Secretary of the Department of Health and Rehabilitative Services enter a final order awarding lease number 590:2057 to Unirealty Services, Inc., as the lowest and best bidder. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1989. APPENDIX Petitioner's Proposed Findings of Fact: The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 15, 23, 26, 27, 28, 30, 34, 38, 39 (in part), 40, 41, 42, 45, 46, 47, 48, 49, 50, 51, 53, 64, 65, 67, 69, 70, 71, 76, 77, 81, 83 (in part) are adopted in substance in so far as material. Paragraphs 14, 16, 17, 18, 21, 22, 24, 25, 29, 33, 36, 37, 73, 74, 80 are rejected as conclusions of law. Paragraphs 13, 19, 20, 44, 54, 59, 60, 61, 63, 68, 72, 75, 778, 82, are rejected as not supported by the evidence. Paragraphs 31, 32, 35, 43, 52, 55, 56, 57, 58, 62, 66 are rejected assubordinate or immaterial. Respondent's Proposed Findings of Fact: The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 are adopted in substance in so far as they are material. Intervenor's Proposed Findings of Fact: The facts contained in paragraphs 1-17 are adopted in substance in so far as they are material. COPIES FURNISHED: Edward D. Matthews, Jr. 2405 Hideaway Court Tallahassee, Florida 32303 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Jack Emory Farley, Esquire HRS District VI Legal Counsel 4000 West Buffalo Avenue, Room 500 Tampa, Florida 33614 Neal A. Sivyer, Esquire Paul J. Ullom, Esquire Shackleford, Farrior, Stallings and Evans, P. A. 501 East Kennedy Boulevard Suite 1400 Tampa, Florida 33601 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, FL 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, FL 32399-0700
The Issue Whether the Department’s action to reject all bids submitted in response to DOT-RFP-20-5003-DAA, relating to asbestos abatement, demolition, and removal services, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Stipulated Facts (verbatim) The Department is an agency of the State of Florida tasked with procuring the services for Districtwide Asbestos Abatement and Demolition and Removal Services for Right of Way property under the Department’s supervision by law. The Department published a bid solicitation for DOT-RFP-20-5003- DAA, seeking bids to provide District Five Asbestos Abatement and Demolition and Removal Services for FDOT. The RFP included specifications, qualification requirements, instructions on what would be required of responders, a bid price proposal sheet, and the award criteria. Cross Construction and Cross Environmental submitted bids in response to the RFP. Cross Construction’s and Cross Environmental’s bids were evaluated by the Department. There is no debate, challenge, or disagreement raised in the Petitions with regard to the Technical Scores submitted by the responding firms to the RFP, only disagreement on three pay items. On June 15, 2020, the Department’s Selection Committee reviewed and discussed the information presented as to the Technical and Pricing scores of the Responding firms, asked for an additional bid item analysis, and indicated that it would reconvene at a future date for a decision. On June 22, 2020, the Selection Committee reviewed, discussed, and confirmed the recommendation presented by the results of the Technical Review Committee scorings and the Project Manager’s Bid Price analysis and selected Cross Construction and Cross Environmental as Intended Awardees. The Selection committee also found that Johnson’s Excavation and Services Inc., [Johnson] and Simpson Environmental LLC [Simpson] were deemed non-responsive due to irregular, and unbalanced pay items prices. On August 24, 2020, the Department’s Selection Committee decided to cancel the Procurement with the intent to readvertise with adjustments to the Scope and Pricing Structure and decided to reject all proposals. Additional Findings of Fact The “three pay items” referenced in paragraph six of the stipulated facts are the items that ultimately caused the Department to reject all bids in the instant dispute. The three pay items are collectively referred to as mobilization pay items. The RFP directs that bids are to contain two parts. Part I is the technical proposal, and Part II is the price proposal. Section 30.3 of the RFP provides that proposers “shall complete the Bid Price Proposal Form No. 2 and submit [the form] as part of the Price Proposal Package … [and that] [t]he Procurement Office and/or the Project Manager/TRC will review and evaluate the price proposals and prepare a summary of its price evaluation.” Five bidders submitted proposals in response to the RFP. One bidder did not advance beyond the initial review phase because its technical proposal did not meet minimum bid standards. The remaining bidders were CCS, CES, Simpson, and Johnson. Price proposals submitted by each of the remaining bidders were evaluated by the Department. Section 3 of the RFP provides a general outline of the process associated with awarding the contract. The steps are: “Pre-Proposal Conference; Public Opening (Technical Proposals); Price Proposal Opening & Intended Award Meeting; and, Selection Committee Meeting Summarizing Evaluations and Determining Anticipated Award.” The agenda for the “Price Proposal Opening & Intended Award Meeting,” as established by the RFP, provides as follows: Opening remarks of approx. 2 minutes by Department Procurement Office personnel. Public input period – To allow a reasonable amount of time for public input related to the RFP solicitation. At conclusion of public period, the Technical evaluation scores will be summarized. Announce the firms that did not achieve the minimum technical score. Announce the firms that achieved the minimum technical score and their price(s) as price proposals are opened. Calculate price scores and add to technical scores to arrive at total scores. Announce Proposer with highest Total Score as Intended Award. Announce time and date the decision will be posted on the Vendor Bid System (VBS). Adjourn. Section 30.4 b. of the RFP provides that a proposer can be awarded a maximum of 30 points for its price proposal. This section also provides that “[p]rice evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider.” On June 15, 2020, the selection review committee met publicly for the purpose of opening price proposals and announcing an intended award. Price proposals were opened, and the eligible bidders received the following price scores: CCS - 11.09; CES - 13.22; Johnson - 19.76; and Simpson - 30. In terms of total score, which combined both the technical and price scores, Simpson received a score of 113.00, which was the highest score, followed by CES (107.55), CCS (103.76), and Johnson (101.76). After opening and considering the price proposals of the respective bidders, the selection committee did not announce an intended award at the meeting on June 15, 2020, but instead requested that the project manager “do further analysis on the pay items for any potential imbalance.” The project manager, through a staff member, performed the additional analysis and determined that Johnson and Simpson submitted “irregular, unbalanced pay items” which resulted in their respective bids being deemed non- responsive and thus not eligible for award. The “irregular, unbalanced pay items” are the three mobilization pay items at issue in the instant matter, and are identified on the bid price proposal sheet as items AB200, AB201, and AB202. Simpson bid $400 for item AB200, $100 for item AB201, and $50 for item AB202. Johnson bid $250 for item AB200, $250 for item AB201, and $100 for item AB202. CCS bid $1 for item AB200, $1 for item AB201, and $1 for item AB202. CES bid $1 for item AB200, 75 cents for item AB201, and 50 cents for item AB202. The Department, in evaluating the bidders’ mobilization pay items, considered costs associated with abatement two structures, a 1,500 and 2,250 square feet structure respectively. For the 1,500-square-foot structure, CCS’ AB200 mobilization costs totaled $1,500. For the 2,250-square-foot structure, CCS’ AB201 mobilization costs totaled $2,250. For the 1,500-square-foot structure, CES’ AB200 mobilization costs totaled $1,500. For the 2,250-square-foot structure, CES’ AB201 mobilization costs totaled $1,687.50. For the 1,500-square-foot structure, Johnson’s AB200 mobilization costs totaled $375,000. For the 2,250-square-foot structure, Johnson’s AB201 mobilization costs totaled $562,500. For the 1,500-square-foot structure, Simpson’s AB200 mobilization costs totaled $600,000. For the 2,250-square-foot structure, Simpson’s AB201 mobilization costs totaled $225,000. On June 22, 2020, the selection committee reconvened and announced CCS and CES as intended awardees of the contract. The Department also announced at this meeting that Johnson and Simpson were “deemed non- responsive due to irregular, unbalanced pay item prices.” On June 24, 2020, Simpson filed a Notice of Protest wherein the company informed the Department of its intent to formally protest the intended award of contracts to CCS and CES. On or about July 6, 2020, Simpson filed with the Department its “formal written petition of protest.” Although Simpson’s formal protest is dated July 6, 2020, CCS and CES contend that Simpson’s protest was actually filed on July 7, 2020, thereby making the protest untimely by a day. The Department did not refer Simpson’s formal protest to DOAH for final hearing, but instead considered the issues presented by Simpson in its protest and then attempted to negotiate a resolution with Simpson, CCS, and CES. Those efforts were unsuccessful. The question of the timeliness of the formal bid protest filed by Simpson is not before the undersigned. Nevertheless, the undisputed facts as to Simpson’s protest, as demonstrated by the record herein, are as follows. On June 24, 2020, Simpson filed notice of its intent to protest the RFP. On June 29, 2020, CCS received notice that a bid protest was filed with respect to the RFP. On July 1, 2020, CES filed a public records request “for public records related to the bid protest made to the” RFP. On or about July 6, 2020, Simpson filed its formal written protest with respect to the RFP, and although the evidence is not clear as to the date, it is undisputed that the Department received affidavits from Simpson explaining the factual circumstances surrounding the filing of the company’s formal written protest. On July 15, 2020, the Department notified CCS and CES that “in response to the Formal Written Protest filed by Simpson Environmental Services, the Department will hold a settlement conference” on Friday, July 17, 2020. On July 21, 2020, Simpson, CES, and CCS notified the Department that they “reached an agreed upon settlement proposal.” On August 11, 2020, the Department, after considering the settlement proposal for several weeks, notified Simpson, CES, and CCS that the Department would discuss the RFP at a public meeting to be held on August 24, 2020. As previously noted, it was during the meeting on August 24, 2020, when the Department announced that all proposals received in response to RFP were rejected. CES, on or about July 1, 2020, submitted to the Department a public records request wherein the company sought a copy of documents related to Simpson’s protest. In response to the request, the Department provided CES a copy of the formal written protest filed by Simpson. It is undisputed that the initial copy provided to CES by the Department did not show either the date or time of receipt of the document filed by Simpson. At some point after the settlement conference, the Department provided to CES a date and time stamped copy of Simpson’s formal written protest. There was no evidence presented explaining the circumstances or the process which resulted in the Department providing different copies of Simpson’s formal written protest to CES, and the remaining evidence does not provide a sufficient foundation to reasonably infer that the Department acted with nefarious motives when providing different versions of the documents to CES. Simpson’s formal protest contains the following statement with respect to the price proposal that the company submitted in response to the RFP: Petitioner’s individual bid price items were based in fact, were reasonable and were in conformity with standard industry rates for similar asbestos abatement and demolition and removal projects. Petitioner’s bid price items were also patently similar to bid price items that Petitioner has previously submitted in response to past FDOT proposal requests that ultimately resulted in the corresponding contracts having been awarded to Petitioner. Indeed, Petitioner has a longstanding relationship with the FDOT as Petitioner has previously contracted with FDOT as a vendor performing asbestos abatement services on numerous projects over the course of the past eight years. Petitioner’s price items for bid proposals have remained consistent for each of its past projects with FDOT. Petitioner’s price items for the instant bid proposal did not differ or vary in any material aspect from those proposed by Petitioner for previous projects that FDOT has deemed reasonable. Michelle Sloan works for the Department as a district procurement manager, and was assigned to manage the instant RFP. Ms. Sloan testified that because Simpson protested the Department’s intended decision to award the contracts to CCS and CES, and specifically referenced in its protest “that their bid for mobilization was in conformance with industry standards, as well as previous bids submitted to the agency that were deemed responsive,” she conducted additional review of the Simpson and Johnson bids. Ms. Sloan testified that after reviewing the RFP, the price sheets related thereto, Simpson’s protest, and the additional analysis of the pay items conducted following the June 15, 2020, selection committee meeting, she concluded that material ambiguities existed in the RFP’s mobilization pay items and recommended to the district secretary that the Department “reject all [bids] and re-advertise with a revised pricing sheet and instructions.” On August 24, 2020, the selection committee, following public notice, accepted Ms. Sloan’s recommendation, rejected all proposals, and canceled the procurement with the “intent to re-advertise with adjustments to the Scope and Pricing structure.” A review of the credible evidence demonstrates a rational basis for the conclusions reached by Ms. Sloan and members of the selection committee. Exhibit C of the RFP is titled “Price Proposal/Detailed and Contractual Price Sheet.” The first page of this document provides a general description of the asbestos removal and abatement pay items. The general pay items are as follows: AB100 Fees [as] determined from the Department of Environmental Protection based upon regulated material. AB200 One-time fee necessary to mobilize for full isolation, per parcel, when abatement with isolation is required. AB300 Fees to be charged by square feet for preparation [of] structure before abatement can commence. AB400 Fees to be charged by square feet, to abate asbestos from various surfacing material such as ceiling, walls, beams, plaster, sheetrock and fireproofing using conventional containment methods. AB500 Fees to be charged either by square foot, linear foot or fittings to abate asbestos from various mechanical systems such as boilers, stacks ducts, fittings, pipes, flutes and flanges. AB600 Fees to be charged either by square foot, linear foot or fittings to abate asbestos from various mechanical systems such as boilers, stacks, ducts, pipe, fittings and jackets which involve the use of a Glove bag. AB700 Fees to be charged by square foot, to abate asbestos from various roofing materials such as cement roof shingles, flashing, rolled roof, felts, wood shingles and mobile home coating. AB800 Fees to be charged by square foot or piece to abate asbestos from various materials such as floor tile, mastic adhesive, sheet vinyl, carpet, wood sub- floor, concrete sub-floor, vibrator dampers, wallboard, metal ductwork and sinks with insulation and heat shields (light fixture). AB900 Fees to be charge[d] by landfill for asbestos disposal. The bid price proposal sheet, which is form number 2 of the RFP, provides a listing of specific pay items related to the general “AB ---” items listed in Exhibit C to the RFP. Below is an example of some of the specific pay items listed on the bid price proposal sheet: [See table on next page] Item Number Description (A) Estimat ed Quantit y Unit (B) Unit Pric e Total Bid Amount (A x B) ASBESTOS REMOVAL ABATEMENT AB200 Mobilization for structures less than 2,000 Sq. FT. 1 SQ. FT. AB201 Mobilization for structures [from] 2001 – 5000 Sq. FT. 1 SQ. FT. AB202 Mobilization for structures over 5001 Sq. FT. 1 SQ. FT. AB300 Mask and Seal 1 SQ. FT. AB401 Remove ACM plaster/lathe including all surface materials 1 SQ. FT. AB501 Remove insulation from fittings 1 LF. AB603 Remove insulation from boilers, stacks or ducts piping 1 LF. AB703 Remove roofing cement 1 SQ. FT. AB810 Remove carpet and mastic adhesive 1 SQ. FT. AB820 Remove sinks with insulation 1 SQ. FT. AB901 Non-Friable 1 SQ. FT. General pay item category AB200, as described on Exhibit C, does not reference a “unit of measurement,” but instead notes that items within this category are to be determined on a “one-time – per parcel” basis. When the AB200 general pay item category is compared to the specific pay items for this category enumerated on the bid price proposal sheet (i.e., AB200, AB201, and AB202), it is evident that the unit of measurement “square feet” is listed as the basis for calculating the bid amount for this item when no such unit of measurement is stated for this item on Exhibit C. Comparatively, general pay item categories AB300 through AB800 each expressly references a specific unit of measurement (i.e., square foot, linear foot, or by the “piece”), and these units of measurement carry over to and are consistently reflected on the bid price proposal sheet for the specific pay items enumerated therein. By inserting a unit of measurement (i.e., square feet) in the mobilization pay items listed on the bid price proposal sheet, when the general description on Exhibit C instructs that they are “one-time, per parcel” pay items, the Department created a material ambiguity in the bidding process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby Recommended that the Department of Transportation issue a final order in Case Nos. 20-4214 and 20-4216 finding that the rejection of all proposals in response to Request for Proposal RFP-DOT-20-5003-DAA was not illegal, arbitrary, dishonest, or fraudulent, and dismissing the two petitions. DONE AND ENTERED this 14th day of December, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2020. COPIES FURNISHED: Douglas Dell Dolan, Esquire Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 (eServed) Richard E. Shine, Esquire Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 (eServed) Brian A. Leung, Esquire Holcomb & Leung, P.A. 3203 West Cypress Street Tampa, Florida 33607 (eServed) Diane E. H. Watson, Esquire Cross Environmental Services, Inc. Post Office Box 1299 Crystal Springs, Florida 33524-1299 (eServed) Kevin J. Tibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 (eServed) Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Close Construction, Inc. (Petitioner), (Close) was the lowest responsive and responsible bidder in the Request For Bid (RFB) Number 6000000262, whether the subject contract should be awarded to the Petitioner, and, concomitantly, whether the Respondent agency's decision to award the contract to the Intervener, Worth Contracting, Inc. (Worth) was clearly erroneous, contrary to competition, arbitrary or capricious.
Findings Of Fact The South Florida Water Management District is a public corporation authorized under Chapter 373, Florida Statutes. It issued a request for bids for the refurbishment and automation of certain facilities in Broward County, Florida. Close is a construction company duly authorized to do business in the state of Florida. It was one of the bidders on the procurement represented by the subject request for bids and is the Petitioner in this case. This dispute had its beginnings on June 5, 2009, when the Respondent issued RFB number 6000000262. The RFB solicited construction services for the refurbishment and automation of two facilities in Broward County. The procurement would involve the installation of new direct-drive electric pumps at the Respondent's G-123 Pump Station in Broward County, along with the construction of an equipment shelter and the replacement of a retaining wall with a poured concrete retaining wall, as well as refurbishment of "pump flap gates." The RFB also requested construction services for the replacement of gates at the Respondent's S-34 water-control structure in Broward County. Both facilities would thus be automated so that they can be remotely operated from the Respondent's headquarters in West Palm Beach. After issuance of the RFB, two addenda were supplied to vendors and were posted. The first addendum was posted on or about June 19, 2009, concerning a change in specifications for flap gates and is not the subject of this dispute. Addendum No. Two was electronically posted on or about June 30, 2009. It amended the technical specifications of the RFB by deleting Section 11212 regarding measurement of payment of electric motors/belt-driven axial flow pumps. That addendum also added a new measure and payment to Subpart 1.01 of the technical specifications to provide for an owner-directed allowance of $40,000.00 to provide for the potential need for certain electrical utility work to be done by FPL in order to complete the project. Addendum No. Two added an additional term to the RFB in providing that the $40,000.00 allowance price "Shall be added to the other costs to complete the bid." The second Addendum also stated, "The allowance price shall be used at the discretion of the District and, if not used, will be deducted from the final Contract Price." That addendum also directed bidders to replace the original Bid Form 00320-2, which had been enclosed with the RFB, with a new Bid Form, 00320R1-2. The new Bid Form is identical to the original form except that the schedule of bid prices contained in paragraph four, on page 003201-2, was altered to itemize the $40,000.00 discretionary cost allowance. The original form had contained a single line for the bidder's lump sum bid price, whereas the revised form provided for a lump sum bid amount to be itemized and a base bid amount, which required the bidder to enter on the form the amount of its bid, then add the discretionary cost amount and write the sum of those two numbers on a third line. In paragraph four of the new bid form there is re- printed language concerning the use of the discretionary allowance which appeared on the face of Addendum No. Two. Other than the change to paragraph four and the alteration of the page numbers to include an "R" in the page number, the revised bid form is identical to the original bid form. The other bid documents were not altered in any manner by Addendum No. Two. The deadline for bid submissions was Thursday, July 9, 2009, at 2:30 p.m. The Petitioner timely submitted its bid to the District. In submitting its bid however, the Petitioner used the original bid form which had been enclosed with the RFB. The bid form submitted was an exact copy of the bid form furnished by the District which Close had printed from the electronic copy of the RFB received from the District. The Petitioner did not substitute the revised bid form, attached to Addendum No. Two, for the original form in submitting its bid. The Petitioner's bid was deemed non-responsive by the District and was rejected on the basis that Close had failed to submit the bid on the revised form required by Addendum No. Two. Thereafter, the District, at its August 13, 2009, meeting, approved award of the bid to Worth. The intent to award was posted electronically on or about August 14, 2009. The persuasive evidence establishes that Close received both addenda to the bid documents. It was aware of the Addendum No. Two, and it accounted for all of the changes to the technical specifications made in both addenda in the preparation of its bid. The evidence shows that Close was aware of the $40,000.00, owner-directed cost allowance and that it incorporated it in the formulation of its total bid price. Thus, Close's final bid amount was $3,751,795.00. That number included the $40,000.00 cost allowance at issue, added to the bid documents by Addendum No. Two. The internal bid work sheets, prepared by personnel of Close, identified and itemized the $40,000.00 discretionary cost allowance as a component of the final bid price. The persuasive evidence thus establishes that Close's final bid amount did include the $40,000.00 cost allowance. Moreover, the written notes of witness Christopher Rossi, the estimator for Close, show the $40,000.00 amount as an "FPL Allowance." Both Mr. Rossi and Mr. Boromei, the Vice President for Close, who prepared the bid, explained that the $40,000.00 was understood by Close to be a cost allowance, that it would only be charged to the District to the extent that it was actually used, at the District's discretion. If it were not used, it was to be deducted from the overall contract price. Addendum Two specifically provides that the discretionary cost allowance was to be used only at the discretion of the District and that the unused portion would be deducted from the contract amount. When Close submitted its bid it mistakenly submitted it on the original bid form and failed to exchange the bid forms as directed in Item Two of Addendum No. 2. In paragraph one of both bid forms, however, the bidder is required to specifically fill out, acknowledge and identify all addenda. By doing so the bidder expressly agrees to build the project in conformance with all contract documents, including all addenda, for the price quoted in the bid. Close completed this paragraph, specifically identified both Addendum One and Addendum Two, and specifically agreed to strictly conform, in performance of the work to the plans, specifications and other contract documents, including Addendum Nos. One and Two. Paragraph one was not changed by the addition of Addendum No. Two and it is identical in both the original and the revised forms at issue. Paragraph one of the original and the revised bid forms constitutes an agreement by the bidder to perform and construct a project "in strict conformity with the plans, specifications and other Contract Documents. . . ." The addenda are part of the contract documents and are expressly referenced as such in this agreement. Both bid forms, the original and the revised, include paragraph eight, which clearly states that the bidder will post a bid bond to secure and guaranty that it will enter into a contract with the District, if its bid is selected. Paragraph eight was unchanged by Addendum No. Two and its terms are identical in both Bid forms at issue, including the form that Close signed and submitted as its bid. The persuasive evidence shows that in submitting its bid, whether on either form, Close committed itself to the identical terms as set forth in the identical contract documents agreed to by Worth and the other bidders. The evidence established that Close intended to bind itself to the terms of the RFB, and all terms of Addendum No. Two, including the discretionary cost allowance term. Close considered itself bound to enter into a contract for the price of its bid if selected by the District. It likewise considered that the price of its bid, would only include the cost allowance if the discretionary allowance was implemented by the District. Upon the opening of the bids, the firm of Cone and Graham, Inc., was identified as the lowest bidder. Cone and Graham's bid was in the amount of $2,690,000.00. Close was the second lowest bidder, with a bid of $3,751,795.00. The third lowest bidder was Worth Contracting, Inc., with a bid of $3,898,410.00. Cone and Graham was allowed to provide additional information and to even meet with some District staff following the opening of its bid. The additional information it was allowed to provide concerned technical specifications of the pumps proposed in its bid. Through this verification process conducted with the Agency, Cone and Graham ultimately convinced the District to permit them to withdraw its bid without forfeiting their bid bond. This left the Petitioner, Close, the lowest bidder, at $146,615.00 less than the bid submitted by Worth, the initially-awarded bidder. Close's bid, upon review, was rejected as non- responsive due to its failure to exchange the original Bid form with the revised Bid form, as indicated above, in spite of the fact that Close had also agreed to adhere to the entirety of Addendum No. Two on the face of the Bid form. Thus the recommended award to Worth for the above-referenced additional amount of bid price was adopted by the District, engendering this protest. James Reynolds, the Contracts Specialist for the District, conceded that it was apparent on the face of Close's bid that a mistake had been made in the use of the original form, rather than the revised form. He conceded there was an inconsistency between Close's clear acknowledgement of and agreement to the terms of the contract documents, which expressly included Addendum No. Two and Close's apparent mistaken use of the original Bid form. Under the express terms of Article 19.03 of the RFB, "The Bid shall be construed as though the addendum(a) have been received and acknowledged by the bidder." Mr. Reynolds admitted, however, that he did not apply the terms of Article 19.03 of the RFB in his review of Close's bid and did not construe the bid in the manner provided in the RFB to resolve the apparent inconsistency. He reasoned that Close had used the wrong bid form and looked no further. The District's Procurement Manual provides a procedure whereby a bidder may correct inadvertent mistakes in its bid. Under the terms of Chapter 5-5 of that manual, where the District knows or has reason to conclude, after unsealing of bids, that a mistake may have been made by a bidder, the District "shall request written verification of the bid." In such a circumstance the bidder "shall be permitted the opportunity to furnish information in support of the bid verification as long as it does not affect responsiveness, i.e., the bid substantially conforms to the requirements of the RFB as it relates to pricing, surety, insurance, specifications and any other matter unequivocally stated in the RFB as determinant of responsiveness." See Joint Exhibit 7,6 pages 61 and 62, in evidence. Mr. Reynolds admitted in his testimony that he did not follow the procedure set forth in the manual for verifying a bid because, in his view, that would be allowing an impermissible supplementation of Close's bid. Ms. Lavery, in her testimony, in essence agreed. The Procurement Manual expressly required the District, upon recognizing the mistake and an inconsistency apparent on the face of Close's bid, to verify that bid and to provide Close with the opportunity to furnish information in support of bid verification. Thus, by the express terms of the manual, a bidder must be given an opportunity to clarify mistakes. The Procurement Manual expressly permits a bidder under these circumstances to correct any "inadvertent, non- judgmental mistake" in its bid. Chapter 5 of the Manual provides that "a non-judgmental mistake" is a mistake not attributable to an error in judgment, such as mistakes in personal judgment or wrongful assumptions of contract obligations. Inadvertent technical errors, such as errors of form rather than substance, are considered non-judgmental errors." See Joint Exhibit 7, page 62, in evidence. It is patently apparent that Close's use of the original bid form, inadvertently, while also unequivocally acknowledging and agreeing to the entirety of Addendum No. Two, represented a non-judgmental mistake. Both of the District witnesses, however, testified that the policy regarding mistakes was not followed and Close was not given an opportunity under the District's policy to provide additional information to support verification of the bid. Although Close failed to substitute the revised Bid form for the original Bid form, as called for by Addendum No. Two, its bid was substantively responsive to the technical specifications and requirements of the RFB, and the irregularity is technical in nature. The parties stipulated that the use of the original form, rather than the revised bid form, was the sole basis for Close being determined to be non-responsive by the Agency. In accordance with Florida Administrative Code Rule 40E-7.301, in Chapter 5 of the District's Procurement Manual, the District reserves the right to waive minor irregularities in a bid. A material irregularity is defined by the District's policy as one which is not minor in that it: (a) affects the price, quality, time or manner of performance of the service such that it would deprive the District of an assurance that the contract will be entered into, performed and guaranteed according to the specified requirements; (b) provides an advantage or benefit to a bidder which is not enjoyed by other bidders; or (c) undermines the necessary common standards of competition. See Joint Exhibit 7, page 58, in evidence. The preponderant, persuasive evidence shows that the irregularity in Close's bid did not affect the price of the bid or truly deprive the District of assurance that the contract would be entered into and performed according to all the terms of the RFB, including addenda. The evidence established that Close actually included the $40,000.00 discretionary cost allowance in its final bid price. It merely did not show it as a separate itemization, because it did not use the revised form providing that itemization line. The fact that the discretionary allowance was itemized in the revised bid form, as part of the bid amount, does not equate to an effect on the contract price as a result of Close's using the original Bid form. Close's error, by mistakenly submitting its bid on the original bid form, did not alter the price of its bid. The evidence clearly established that the bid price for Close's bid would be the same regardless of which form it used. Moreover, the preponderant, persuasive evidence establishes that the use of the original Bid form by Close did not deprive the District of assurance that the contract would be performed in accordance with the all bid documents. Close's bid, secured by its bid bond, clearly acknowledged and agreed to the express terms of Addendum No. Two in their entirety, which included the terms under which the discretionary cost allowance could be applied. Close considered itself bound to the terms of the RFB and assured the Agency that it was so bound by the written acknowledgement and agreement it submitted to the Agency as part of its bid, concerning the elements of Addendum No. Two. The evidence demonstrated that Close understood that the $40,000.00 amount was a discretionary cost allowance and that Close would not be entitled to it unless the District decided to use it. Despite the opinion of Agency witnesses to the contrary, the error in Close's bid was a technical one and non- material because it did not confer a competitive advantage upon Close. Close's use of the wrong form did not alter the price of its bid. Its mistake in the use of the original bid form could only change the relative, competitive positions of Close and Worth if the amount of the discretionary cost allowance was greater or equal to the difference between those two bids, i.e., the $146,650.00 amount by which Worth's bid exceeded the bid of Close. 1/ The bid of Worth exceeds Close's bid by an amount far greater than the amount at issue in the discretionary cost allowance identified in Addendum No. Two and expressly itemized in the revised Bid form, i.e. $40,000.00. The District contends that Close gained some competitive economic advantage over other bidders by having the means by which it could optionally withdraw its bid, based upon alleged non-responsiveness, in not substituting the revised Bid form which would contain the itemization of the $40,000.00 cost allowance. It is difficult to see how it could gain a competitive advantage versus other bidders through some perceived ability to deem itself non-responsive, at its option, and withdraw its bid, thus denying itself the contract. The competitive bidding laws are designed to prevent a firm from gaining a competitive advantage in obtaining a contract versus the efforts of other bidders, not in depriving itself of the opportunity to get the work. Moreover, concerning the argument by the District that this may confer the advantage to Close of allowing it to withdraw its bid at its option and still obtain a refund of its bid bond; even if that occurred, it would not confer a competitive advantage vis-à-vis other bidders. It would merely involve a potential pecuniary advantage to Close's interest, versus that of the Agency itself, which obviously is not a bidder. Moreover, it should again be pointed out that Cone and Graham was allowed to provide additional information concerning its bid elements, and even to meet with the District staff, following the opening of the bids. It was then allowed to withdraw its bid without forfeiting its bid bond. If the District had inquired, by way of verification of Close's bid, as to whether the discretionary cost amount was included in it's bid, that inquiry does not equate to allowing Close to unlawfully supplement its bid. Indeed, if in response to such an inquiry, Close announced that the discretionary allowance was not included in its bid, its bid at that point would be materially non-responsive to the specifications. If Close was then allowed to supplement its bid by changing its price to add the allowance, such would indeed be an unfair competitive advantage and a violation of law on the part of Close and the Agency. The evidence does not show that such happened or was proposed by any party. If a verification inquiry had been made and Close announced that, indeed, its bid price did include the subject discretionary cost allowance, without further response to the specifications being added, then no competitive advantage would be afforded Close and no legal violation would occur. In fact, however, as pointed out above, the verification request, pursuant to the District's policy manual, was never made. This was despite the fact that the District's witness, Mr. Reynolds, acknowledged that the use of the original bid form was an apparent mistake on the face of the bid, when considered in conjunction with Close's express agreement to construct the project in strict conformance with all contract documents, and particularly with regard to Addenda Numbers One and Two. The non-judgmental mistake, involving use of the original bid form in lieu of the revised bid form, could have been easily clarified by a verification inquiry. That policy was not followed, based solely on the fact that the wrong bid form was used, even though the preponderant, persuasive evidence shows that in all material and substantive respects the bid was a conforming, responsive bid and included in its price the discretionary cost allowance. The preponderance of the evidence shows that the mistaken use of the original Bid form was a non- material irregularity under the District's policies and the terms of the RFB. The District's actions in failing to uniformly apply its own bid verification policy when, in fact, it had allowed verification to one of the other bidders, and when, according to its own witness, it perceived an apparent mistake, was clearly erroneous. It is true that Close may not supplement its bid by changing material terms, but it is permitted to verify whether, in light of the mistaken use of the original Bid form, its bid price, as submitted, included the $40,000.00 discretionary allowance or not. Providing such "yes or no" type of additional information in order to clarify, and only clarify, information already submitted in the bid, in response to an inquiry by the District does not constitute "supplementation" of the bid for purposes of Section 120.57(3)(f), Florida Statutes (2008). NCS Pearson, Inc. v. Dept of Education, 2005 WL 31776, at page 18 (DOAH, Feb. 8, 2005). Even without verification of the bid, the bid on its face agrees to compliance with all terms and specifications, including Addendum No. Two. It is thus determined that there is no material irregularity. The bid submitted by Close does not afford it any competitive advantage vis-à-vis the other bidders and it is responsive.
Recommendation Having considered the foregoing Findings of Fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the South Florida Water Management District, awarding the subject contract for RFB 6000000262 to the Petitioner herein, Close Construction, Inc. DONE AND ENTERED this 5th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2010.
Findings Of Fact Lee County School District (District) Invitation to Bid #4908 (ITB) was provided to the vendors on December 9, 1992. The ITB sought bids for 61 hardware and tool items to be used in the District Supply Department. The District maintains an inventory of hundreds of miscellaneous hardware items. Quantities of available materials are monitored through a computerized system which is used to generate a list of items which need to be replenished. The District has historically utilized ITB's to acquire hardware items in order to maintain appropriate inventory levels. Eight sealed bids were opened on January 6, 1993 at 2:00 p.m. Bids were submitted by Parker-Mahn Ace Hardware, W.W. Grainger, Action Bolt & Tool, Biscayne Electric & Hardware Distributors, Bob Dean Supply, Scotty's, Shadbolt & Boyd, and the Petitioner. The ITB states that the School District of Lee County: reserves the right to waive minor variations to specifications, informalities, irregularities and technicalities in any bids; to reject any and all bids in whole or in part with or without cause, and/or to accept bids that in its judgement will be in the best interest of the District. The District further reserves the right to make awards on a multiple, lump sum, or individual item basis or combination as shall best serve the interest of the District unless otherwise stated. Three of the vendors bid on all 61 items. The remaining vendors bid on some but not all of the items. The bids were tabulated by personnel in the Purchasing Department. The information in the bids is set forth in tabulation sheets which facilitate comparison of buds. On January 7, 1993, the Petitioner sent a letter to the Respondent stating that there were only "two authentic submissions: Ace Hardware and S.W. Supply, Inc." The tabulation sheets and additional materials included in the bid responses were forwarded to the Supply Department where supply personnel reviewed the submissions and made recommendations to the Purchasing Department as to which vendors should receive awards. As part of the evaluation of the bid proposals, the District determined that the cost of the total bid award would be lower if the awards were made on an individual item basis. The District considered prompt payment discounts in making this determination. The total amount of the proposed awards to the eight vendors is $7,104.55. Were the Petitioner to receive awards for all items, the total amount of the award would be $7,965.00, accounting for the Petitioner's proposed prompt payment discount. The Purchasing Department posted a Notice of Intention to Award on January 15, 1993. The proposed awards were made on an individual item basis. All eight vendors received awards. The parties have stipulated that the Petitioner timely filed a notice of protest. Subsequent to the January 15 posting, the Petitioner discovered several errors in determining the proposed awards. In the Petitioner's formal protest, four awards are identified as incorrect. Despite the Petitioner protest, the first item identified was correctly awarded because the Petitioner failed to account for the prompt payment discount offered by the winning vendor. A second item protest was based on clerical error and was withdrawn by the Petitioner. The two remaining items were resolved and were addressed in a corrected Notice of Intention to Award posted February 16, 1993. There is no evidence that the errors were other than mistakes made in calculation or transcription of bid data from the vendor's documents to the bid tabulation form. No further specifically challenged items were identified by the Petitioner prior to the hearing. General condition 1.d. of the ITB states as follows: For purposes of evaluation, the bidder must indicate any variances from specifications, terms and/or conditions regardless of how slight. If variations are not stated in the proposal, it will be assumed that the product or service fully complies with the specifications, terms and conditions herein. (emphasis supplied) General condition 6 of the ITB states as follows: Use of brand names, trade names, make, model, manufacturer, or vendor Catalog Number in the specifications is for the purpose of establishing a grade or quality of material only. It is not the District's intent to rule out other competition; therefore, the phrase OR APPROVED EQUAL is added. However, if a product other that specified is bid, it is the vendor's responsibility to submit with the bid brochures, samples and/or detailed specifications on item(s) bid. The District shall be the sole judge concerning the merits of bids submitted. If a bidder does not indicate what he is offering in the proper blank and if the bidder is successful in being awarded the item(s) then the bidder shall be obligated to furnish the specified item(s). If packing is different from that specified, the bidder must note manner and amounts in which packing is to be made. (emphasis supplied) Only one vendor, Parker-Mahn Ace Hardware, proposed to supply all items exactly as specified in the ITB. The remaining vendor proposals included at least some items which varied in some respects from the items identified in the ITB. Where a vendor fails to identify that a product bid is "not as specified", the proposal is evaluated as if all specifications have been met, in which event, price is the determining factor in determining the award. Where a vendor identifies a variance related to a specified item, the proposal is evaluated as if all specifications other than the identified variance are met. If the product is determined by the Supply Department to be the equivalent of the product identified in the ITB, price is again the determining factor in determining the award. Where the ITB specifies a brand name followed by the word "ONLY", the vendor may not bid another brand. Where the ITB does not qualify the brand name as "only", the vendor may propose an equivalent product. Where a vendor does not identify the brand name of the item to be supplied, the vendor presumed to be bidding an item which will meet the specifications. If the vendor delivers goods which are not as specified, the District rejects delivery and cancels the order. The evidence establishes that, where bid items were not as specified in the ITB, the District had access to sufficient information to permit a determination of equivalency and an award of bids. The evidence fails to establish that, except as stated herein, the Petitioner should have received an award other that as set forth in the February 16, 1993, Notice of Intent to Award. General condition 5 of the ITB states as follows: Cash discount for prompt payment of invoices will be considered in making awards. The District prefers cash discount items which allow at least twenty (20) days for approval and payment of invoices. Four vendors included proposals for prompt payment discounts in the responses. One vendor offered a 2 percent discount for payment within 20 days, one offered a 1 percent discount for payment within 15 days and one offered a 1 percent discount for payment within 10 days. The Petitioner offered a 12 per cent discount for payment within five days, but only if the Petitioner received the award for all items bid. The District preference for a 20 day payment period reflects the time needed to accept delivery, process invoices and make payment for goods received. The District has accepted a five day prompt payment discount when the purchase was for a single item and the delivery date was specified. Such payment is otherwise difficult and results in other vendor payments being delayed. There is no evidence that based on the costs of goods involved in this bid, the savings are of such event as to warrant such extraordinary treatment of deliveries and invoices. General condition 16 of the ITB states as follows: Any and all special conditions that may vary from these General Conditions shall have precedence. Special condition 1 of the ITB states as follows: A SAMPLE OR COMPLETE SPECIFICATION SHEET MUST ACCOMPANY EACH BID ITEM THAT IS NOT "AS SPECIFIED." IF AN ITEM CANNOT BE EVALUATED, IT WILL BE DISQUALIFIED. Parker-Mahn Ace Hardware submitted product brochures or other materials related to items bid. The Petitioner submitted an extensive selection of photocopies pages from a hardware product catalog. W.W. Grainger submitted an index of part numbers and identified where such parts could be located in the Grainger catalog, which was on file with the District. Action Bolt and Tool included product information by brand name and model number in the ITB response. The remaining four vendors (Biscayne Electric & Hardware Distributors, Bob Dean Supply, Scotty's, and Shadbolt & Boyd) attached no specification sheets or other descriptive materials for items bid. As stated previously, the ITB directed vendors to submit specification sheets for "not as specified" items. The request for such information was intended to facilitate the review of the bids by eliminating the need for District personnel to consult vendor product catalogs already in the District files. The ITB also provided for disqualification where an item could not be evaluated. The Petitioner asserts that the failure to submit such product information materials with the bids is a material defect which cannot be waived and which renders the bids nonresponsive. The evidence fails to support the assertion. Of the four vendors which included no specification sheets, all four had product catalogs on file in the Purchasing and/or Supply Departments of the Lee County School Board. The District had sufficient information to evaluate the bids submitted by the vendors with catalogs on file. The Petitioner asserts that it was disadvantaged by the District's decision to waive the failure to attach specification sheets where catalogs were on file, because it was allegedly not possible to compare his bid to those submitted by the other vendors. The evidence does not support the assertion. The relevant catalogs are on file in the Purchasing and Supply Departments of the District and are available for public inspection. There is no evidence that the Petitioner sought at any time to reference the materials on file. The fact that the omitted specification sheets made such a comparison less convenient than it would have been had such sheets been attached to the bids does not render the bid proposals nonresponsive. At hearing, the Petitioner challenged many of the individual intended awards announced by the District. Prior to the hearing, the Petitioner had not asserted that such items were inappropriately awarded. The evidence fails to establish that the Petitioner would be entitled to an award of any of the additional items challenged at hearing. In the case of individual items, a bidder other than the Petitioner would be entitled to the award if the Petitioner's challenge succeeded. None of the other bidders challenged the proposed bid awards. No vendors intervened in this proceeding. Accordingly the Petitioner is not affected by such individual awards and is without standing to challenge the items first identified at hearing. The Petitioner asserted that if the low bidder for each identified product is disqualified, and the next lowest bid included in the total bid calculation, the Petitioner's total bid, including the prompt payment discount, would be lower than the total of individual bids, and that accordingly, he would be entitled to an award of all items. The evidence fails to support the assertion. The Petitioner identified one item at hearing for which the Petitioner should have received the award. The ITB sought bids to supply 24 galvanized one quart metal funnels, item #58115. One of the vendors proposed to supply a plastic funnel at a cost of .56 each. The next lowest bidder was the Petitioner which proposed to supply the metal funnel requested at a cost of $1.44 each. On a previous bid, a plastic funnel was proposed by a vendor and rejected by the District as not meeting the specifications. Although in the instant case, purchasing personnel were informed by supply personnel that a plastic funnel would serve the same purpose and was acceptable, the vendors were not provided the opportunity to bid on the provision of the plastic funnels. General condition 9.c. of the ITB states as follows: If the material and/or services supplied to the District is found to be defective or does not conform to specifications, the District reserves the right to cancel the order upon written notice to the seller and return the product to the seller at the seller's expense. In other words, the District has the right to reject delivery and cancel orders for items which are not as specified in the ITB and for which no variance was identified by the successful vendor. A vendor delivering goods which are not as specified in the vendor's proposal will not be invited to participate in the ITB process for an indeterminate period of time. At hearing, the Petitioner asserted that item #58800 (a plastic sheet of twelve garden hose washers) was mistakenly awarded to a vendor whose proposal was for individual washers rather than the sheet. The Respondent acknowledged that accordingly the proposed vendor's bid was not the lowest. The next two lowest bids (one of which is an "as specified" bid) were received from vendors other than the Petitioner. The Petitioner therefore would not receive this award. The Petitioner asserts that some bidders did not complete "drug-free workplace" forms. Although correct, the assertion is irrelevant. Such forms are used to determine award winners where there are identical bids ("ties"). There were no tie bids related to this case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The School Board of Lee County enter a Final Order directing that the District Purchasing Department refrain from purchasing item #58115 pending the next invitation to vendors to submit bids for miscellaneous hardware supplies and otherwise DISMISSING the Petitioner's Notice of Bid Protest. DONE and RECOMMENDED this 2nd day of June, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 June, 1993. APPENDIX TO CASE NO. 93-1260BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 7. Rejected, irrelevant. Item #58038 does not require that ONLY an Ace Hardware item may be bid. Based on the ITB, it is clear that the item bid by Action Bolt & Tool meets the specifications set forth in the proposal. 11-12. Rejected, irrelevant. 14. Rejected, irrelevant. The evidence fails to establish that the Petitioner attempted to obtain the materials used by District personnel to evaluate the bids. 16-17. Rejected, irrelevant. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 9. Rejected, immaterial. 23. Rejected, irrelevant. 28. Rejected, unnecessary. COPIES FURNISHED: Dr. James A. Adams Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Garey F. Butler, Esquire Humphrey & Knott 1625 Hendry Street Fort Myers, Florida 33907 Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-030, and therefore entitled to the contract award.
Findings Of Fact The invitation to bid in Bid No. 88-030 contains specifications for two separate pieces of equipment which are to be used in the Respondent's print shop. These two items are: a) an offset duplicator with a "swing away," second color printing unit, and b) a camera/platemaker capable of processing silver masters. The Petitioner timely submitted bids on both items. On June 14, 1988, when the bids were opened, the Petitioner was the low bidder upon the equipment. The Petitioner's bids were disqualified by the Respondent, because the equipment offered did not meet the minimum specifications set forth in the bidding documents. A comparison of the minimum specifications for the duplicator and the manufacturer's specifications for the A.B. Dick #9850 duplicator that was bid by the Petitioner reveals the following differences: The specifications require the bidder to provide the Respondent with a duplicator that contains a 1 horsepower, D.C., drive motor. The A. B. Dick #9850 duplicator contains a 3/4 horsepower, A.C., drive motor. A 1/2 horsepower pump motor is required by the specifications. The literature attached to the Petitioner's bid does not reveal whether the A.B. Dick #9850 duplicator contains a pump motor. During the administrative hearing, Charles K. Hill testified that the A. B. Dick #9850 duplicator does have a pump motor. However, the size of the pump motor was not given. The specifications require a conveyor board with a jogging registration system. The A.B. Dick #9850 duplicator does not contain that type of paper feed system. Instead, the Petitioner's duplicator has a direct feed with a registration board. The paper travels only one-half of an inch in the duplicator so a conveyor board and joggers are not needed. Grippers accurately control the paper during the short travel distance. The Respondent specifically chose to require a conveyor board with a jogging registration system on a duplicator because the Respondent wants to have all of the controlling mechanisms it is possible to obtain on a duplicator within a certain price range. The conveyor board with a jogging registration system is a feature that is provided on duplicators in addition to a gripper margin adjustment and feeder bar system. The failure to provide this additional system is an omission as opposed to an alternate provision of a comparable system. The Petitioner submitted a bid upon a duplicator that did not conform in all material respects to the minimum bid specifications. The Petitioner' substituted a less expensive product with fewer features that ran on a different electrical current than the product sought in the invitation to bid. The comparison of the minimum specifications for the camera/platemaker and the A.B. Dick #148 camera manufacturer's specifications reveals the following differences: The specifications state that a reduction range of 60 percent and a magnification range of 125 percent are required. The A. B. Dick #148 camera has a reduction range of 64 percent and a magnification range of 105 percent. The specifications require a copy size of 20 1/2" x 33". The A. B. Dick #148 camera has a copy size of 23 1/2" x 26". The Petitioner submitted a bid upon a camera that did not conform in all material respects to the minimum bid specifications. The Respondent seeks a camera with a greater, and consequently more expensive, resizing range than the one bid upon by the Petitioner. The invitation to bid was liberal enough in its minimum bid specifications to allow competitive responsive bidding on comparable products from various vendors for the equipment and features sought by the Respondent. The bid posted by the Respondent from Standard Graphics, Inc., the apparent responsive low bidder, conforms in all material respects to the invitation to bid.
The Issue This case considers whether Petitioner's response to Invitation to Bid, No. 94-014, as revised, issued by the Respondent, is responsive to the terms of the Invitation to Bid. If Petitioner is found responsive, then the question is raised whether Petitioner has offered the lowest and best response to the invitation to bid.
Findings Of Fact On May 26, 1994, Respondent provided a memorandum to prospective vendors concerning Bid No. 94-014, as revised. This memorandum informed the prospective vendors that the new bid due date was June 6, 1994. The memorandum attached the bid instructions. Under general conditions to the invitation to bid the prospective vendors were reminded in Paragraph 7 that the Respondent could ". . . reject any or all bids or waive any minor irregularity or technicality in bids received." Under the heading "Special Provisions" prospective vendors were informed that "The charge per 1,000 for individual items under Exhibit A shall be the rates for the contract with the successful bidder." The prospective bidders were instructed as follows: REQUIRED ITEMS TO BE SUBMITTED WITH BID: The bidder must complete all required items below and submit as part of the bid package. Any bid in which these items are not used or in which these items are improperly executed, may be considered non-responsive and the bid may be subject to rejection. Among the items to be submitted with the bid was Exhibit A. The bidders were informed about the process of EVALUATION/AWARD. There it was stated: Bids will be evaluated and awarded on an all or none basis to one bidder. Award will be based on the total costs of four (4) theoretical jobs (See Exhibit B-Bid Total) requiring varying services and on the bidder's qualifications to best serve the Department's needs. The prospective bidders were then reminded a second time that: "THE DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS AND TO WAIVE ANY MINOR IRREGULARITIES IN BIDS RECEIVED." Within Exhibit A to the bid document was a category referred to as "Tabbing", calling for the charge per 1,000 for that service. Within Exhibit B under the fourth theoretical job was a requirement to quote the subtotal cost for 200,000 newsletter preparations to include "Tabbing." Three vendors submitted responses to the invitation to bid. Those responses were opened on June 6, 1994. The vendors who responded were Petitioner, Educational Clearinghouse, Inc. and Mail Masters of Tallahassee, Inc. In the subtotal for costs for 200,000 newsletter preparations, in activity four, concerning theoretical jobs, found within Petitioner's Exhibit B to the response to the invitation to bid, Petitioner made a mistake. It misplaced the decimal point and described the subtotal cost for 200,000 newsletter preparations as $73.80 instead of $7,380.00. Respondent characterized this as a typographical error or nominal mistake. In fact, this error constituted a minor irregularity which did not preclude the ability to understand Petitioner's response so that it might be compared to the responses by the competition. Petitioner made a second error. This error occurred when Petitioner failed to indicate the amount that it would charge per 1,000 for "Tabbing" within Exhibit A. Respondent did not consider this to be a minor irregularity and rejected Petitioner's bid as non-responsive for the failure to include a quotation for the charge per 1,000 for "Tabbing." This resulted in the intent to award the contract to Educational Clearinghouse, Inc. whose bid total for the four theoretical jobs under Exhibit B was $9,137.25 compared to Petitioner's bid total of $8,374.62. In preparing Exhibit B, activity four, Petitioner included a theoretical charge for "Tabbing" in the amount of $8.00 per 1,000. Petitioner contends that the $8.00 per 1,000 found within that entry may be correlated with the missing information concerning "Tabbing" in Exhibit A to its response to the invitation to bid. In the instructions to the vendors, Respondent has informed the vendors that the charge per thousand for individual items identified in Exhibit A constitutes the rate that the Respondent would expect to pay under a contract with the successful bidder. By contrast, the function of the information provided in Exhibit B is for purposes of awarding the contract based upon total costs of the four theoretical jobs and on the basis of the vendor's qualifications to best serve the Respondent's needs. Although not stated in the invitation to bid it can be inferred that similar references within Exhibits A and B, such as the reference to "Tabbing", calls for a comparable price to be set forth for the item in both Exhibit A and Exhibit B. Otherwise vendors would have the opportunity to quote low prices in completing Exhibit B as a means to win the cost comparison with their competitors for purposes of the award and then have the opportunity to charge higher costs per 1,000 as reflected in Exhibit A when establishing the charges for the contract with the Respondent following the competition contemplated in the comparison of the theoretical bid total under Exhibit B. Therefore, it would be reasonable for the Respondent to expect that the Petitioner would charge $8.00 per 1,000 for "Tabbing" under a contract between the Petitioner and Respondent based upon information that was set forth in the response to Exhibit B, activity four, "Tabbing." In summary, Petitioner's oversight in leaving out reference to the tabbing charge in Exhibit A does not affect the comparison of bid responses as contemplated by the instructions to the vendors, a function performed by comparing the respective Exhibits B. Otherwise, Respondent may gain the necessary understanding of Petitioner's charge per 1,000 for "Tabbing" as contemplated in instructions concerning Exhibit A as a means for entering into the contract. This understanding is achieved by transposing the $8.00 per 1,000 "Tabbing" quotation in Exhibit B to the "Tabbing" charge within Exhibit A as $8.00 per 1,000. With this adjustment, Modern Mailers, Inc. is the lowest responsive bidder and best able to serve Respondent's needs pertaining to Invitation to Bid No. 94-014, as revised.
Recommendation Based upon the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which finds that Petitioner is a "qualified" and "responsible" bidder who is the lowest and best responsive bidder to Invitation to Bid, No. 94-014, as revised and is entitled to the award of the contract contemplated by that invitation to bid. DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 September, 1994. APPENDIX The following discussion is given concerning the proposed findings of fact of the Parties: Petitioner's Facts: Paragraph 1 is subordinate to facts found. Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 5 are subordinate to facts found. Paragraphs 6 and 7 are rejected to the extent that they are intended to establish an excuse for the Petitioner not providing information related to the cost for tabbing called for in Exhibit A in the invitation to bid. Paragraph 8 is subordinate to facts found. Paragraphs 9 through 12 are not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found. Paragraph 14 is rejected to the extent that it suggests that Petitioner may amend its response to the invitation to bid to specifically set forth the amount attributable to the tabbing charges per 1,000 in Exhibit A. Nonetheless one may infer that the cost per 1,000 for tabbing is the same as is set forth in Exhibit B. Paragraphs 15 through 17 are subordinate to facts found. Paragraph 18 constitutes legal argument. Respondent's Facts: Paragraph 1 is subordinate to facts found. Paragraph 2 is contrary to facts found Paragraph 3 is rejected in fact and law. Paragraph 4 is rejected in the suggestion that the Petitioner does not have the ability to perform the contract. COPIES FURNISHED: Daniel W. Dobbins, Esquire Callahan & Dobbins 433 North Magnolia Drive Tallahassee, FL 32308 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 George Stuart, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Informational Copies: Ronald W. Brooks, Esquire Brooks and LeBoeuf, P.A. 863 East Park Avenue Tallahassee, FL 32301 Joan Reeves, Vice President Educational Clearinghouse Post Office Box 3951 Tallahassee, FL 32315
Findings Of Fact After its initial review of the bids, Respondent determined that Petitioner was the apparent low bidder, with a total bid of $344,971.53. Subsequently, however, it found an inconsistency in one of Petitioner's item prices and recomputed the subtotal which had the effect of increasing Petitioner's bid to $346,851.53. As a result of this recomputation, Intervenor became the apparent low bidder with its bid of $346,371.06. Respondent discovered that Intervenor had also made a similar error in one of its item prices which, had the subtotal been recalculated, would have increased Intervenor's bid by over $12,000. However, Respondent waived the error and allowed Intervenor's bid to stand. Respondent's bid forms specify various quantities of material required. Each quantity listed is followed by three columns which the bidder must complete. The first column is the unit bid in words (e.g. five dollars and no cents). The second column is the unit bid in numbers (e.g. $5.00). The final column, referred to as the "extension" is the total bid on the item in numbers (e.g. 30 units required times $5.00 per unit equals $150.00) Respondent's item number 10275 specified 1,890 construction signs. Petitioner entered one dollar and fifty cents in the unit bid (words) column, followed by $1.50 in the unit bid (numbers) column. Petitioner's extension column entry was $945.00. Respondent determined that 1,890 signs times one dollar and fifty cents each totalled $2,835.00, rather than $945.00, and raised Petitioner's bid accordingly. Respondent's item number 285710367 specified 7,070 square yards of material. Intervenor entered twelve dollars and no cents in the unit bid (words) column followed by $12.00 and $10.25 in the unit bid (numbers) column. A black line was drawn through the number $12.00, but was not initialed. Intervenor's extension column entry was $72,467.50. Here, Respondent determined that the $10.25 unit price should be permitted since 7,070 square yards times $10.25 did, if fact, equal the stated extension price. Using red ink, Respondent drew a second line through the number $12.00, and initialed this change. Respondent also drew lines through the words twelve (dollars) and no (cents), and wrote the words ten (dollars) and twenty-five (cents) and initialed this correction. Respondent's published policy on bid procedures is contained in its Standard Specifications Manual. Section 3-1 provides in part: In the event of any discrepancy in the three entries for the price for any item. the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, in which case they shall govern over the unit price shown in words. Respondent applied the above procedure to reject Petitioner's extension price on the signs since it did not agree with the unit price in figures or in words. Respondent applied the above procedure to accept Intervenor's extension price on the material since the $10.25 unit price in figures agreed with the extension. Acceptance of the $10.25 unit price figure (rather than the other entry of $12.00) was essential since no attempt had been made to change the twelve dollar unit price in words. Respondent's policy on bid procedures as set forth in its Standards Specification manual requires initialling of all changes made by the bidder. Section 2-5.1 provides in part: In case a change is made in a word or figure after it has been written in ink or typewritten, the bidder shall write his initials by the change. Intervenor failed to initial the change in its unit price figure. However, Respondent did not consider this to be a significant error and accepted the uninitialed change. Respondent's Standards Specifications Manual, Section 3-1, provides in part: Until the actual award of the contract, however, the right will be reserved to reject any or all proposals and to waive technical errors as may be deemed best for the interest of the State. This policy permits Respondent to reject either or both of these bids because of the errors discussed herein. Conversely, Respondent could consider either or both errors to be merely technical errors and waive them. Respondent's testimony and documentary evidence demonstrated that it does not enforce the policy requiring initialling of corrections. Additionally, Respondent's evidence established that it rigorously applies the procedure in Section 3-1 requiring the unit price in words to prevail where there are discrepancies except when the unit price in numbers and the extension agree. Respondent argues that the unit price figure is critical since the State may wish to order more of a given item and would not want to be bound by an erroneously high unit price. However, a stated unit price would not be binding where there is an error. Rather, the presumably correct extension price could be divided by the bid quantity to determine the correct unit price. The primary purpose of the policy which requires agreement of numbers and initialling of corrections is the prevention of conspiracy between bidders and State employees to alter bids. A further policy consideration, which is the stated basis for waiver of technical errors, is the furtherance of State interest. See Section 3-1, quoted above. In this regard, it should be noted that since Petitioner's original bid is the lowest, acceptance thereof would be in the interest of the State.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent enter a Final Order rejecting existing bids and reissuing its bid proposal. DONE and ENTERED this 16th day of February, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1984. COPIES FURNISHED: Carl R. Pennington, Jr., Esquire 325 John Knox Road, Suite L-101 Tallahassee, Florida 32303 Mark A. Linsky, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Ronald W. Brooks, Esquire 863 West Park Avenue Tallahassee, Florida 32301 Paul Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
