The Issue The issue in this bid protest is whether Respondent acted arbitrarily when it decided to reject all of the bids it had received in response to a solicitation seeking bids on a contract for roof repairs.
Findings Of Fact On January 10, 2008, the Florida Department of Environmental Protection (the "Department" or "DEP") issued an Invitation to Bid (the "ITB"), the purpose of which was to solicit competitive bids from qualified contractors on a project whose scope of work envisioned repairs to the wind-damaged roofs of several buildings located on the grounds of the Hugh Taylor Birch State Park in Fort Lauderdale, Florida. Some of the buildings to be repaired were single-family residences. Work on these structures accordingly needed to conform to the requirements prescribed in the 2007 Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures (the "Manual"), which the Florida Building Commission (the "Commission"), following an explicit legislative directive, see Section 553.844(3), Florida Statutes,1 recently had adopted, by incorporative reference, as a rule. See Fla. Admin. Code R. 9B-3.0475 (2007).2 The Rule had taken effect on November 14, 2007, giving the Manual's contents the same status and force as the Florida Building Code. Id. Just before the Department issued the ITB, the Commission had approved, at a meeting on January 8, 2008, a modified version of the Manual, which it called the 2007 Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures, Version 2 (the "Revised Manual"). In consequence of the Commission's approval of the Revised Manual, the Florida Department of Community Affairs ("DCA") caused a Notice of Proposed Rule Development to be published on January 25, 2008, in the Florida Administrative Weekly. This official advertisement announced that the Commission intended to amend Rule 9B-3.0475, so that its incorporative reference would mention the Revision Manual instead of the Manual. See 34 Fla. Admin. W. 461-62 (Jan. 25, 2008).3 DCA caused a Notice of Proposed Rule respecting the intended revision of Rule 9B-3.0475 to be published on February 1, 2008, in the Florida Administrative Weekly. See 34 Fla. Admin. W. 605 (Feb. 1, 2008).4 On February 5, 2008, the Department issued Addendum No. 4 to the ITB (the "Addendum"). The Addendum provided in pertinent part as follows: Bidders shall bid the project as specified despite the recent change in Rule 9B-3.0475 relating to hurricane mitigation retrofits. Any additional water barrier will be accomplished by Change Order after award of the contract. (The foregoing provisions of the Addendum will be referred to hereinafter as the "Directive"). On February 12, 2008, the Department opened the bids it had received in response to the ITB. Ten (out of 12) of the bids submitted were deemed responsive. The bid of Petitioner Spinella Enterprises, Inc. ("Spinella") was one of the acceptable bids. On February 19, 2008, DEP posted notice of its intent to award a contract to the lowest bidder, namely Spinella, which had offered to perform the work for $94,150. The second lowest bidder was The Bookhardt Group ("Bookhardt"). Bookhardt timely protested the intended award, raising several objections, only one of which is relevant here. In its formal written protest, dated March 3, 2008, Bookhardt alleged that "[t]he new State of Florida law F.S. 553.844 was not part of the solicitation." On April 4, 2008, Rule 9B-3.0475, as amended to incorporate by reference the Revised Manual, took effect. See Fla. Admin. Code R. 9B-3.0475 (2008). On May 16, 2008, DEP posted notice of its intent to reject all bids received in response to the ITB. (Bookhardt's protest, which remained pending, had never been referred to DOAH for a formal hearing.) Spinella timely protested the Department's decision to reject all bids. In an email sent to Spinella on July 22, 2008, DEP's counsel explained the rationale behind the decision: The reason the Department rejected all bids follows. When the Department posted the notice of intent to award the contract to Spinella Enterprises, Inc., the second low bidder (Bookhardt Roofing) protested the intent to award. The second low bidder's basis for protesting the intended award was that Addendum 4 directed bidders to ignore certain rules of the Construction Industry Licensing Board [sic], which had become effective after the bid opening, which was not in accordance with the law. As a result, this may have caused confusion and the Department had no assurance that bidders were bidding the project correctly. In addition, the statement in Addendum 4 that the Department would add the required moisture barrier afterward by change order set up a situation where bidders had no idea how much the Department would be willing to pay for the change order. Further, the moisture barrier was not the only thing required by the new rules. Potential bidders may not have bid due to these uncertainties. The Department agreed with Bookhardt's assertions and rejected all bids . . . . Notwithstanding Spinella's protest, the Department issued a second invitation to bid on the project in question. As of the final hearing, the bids received in response to this second solicitation were scheduled to be opened on August 12, 2008. Ultimate Factual Determinations The Department's decision to reject all bids is premised, ultimately, on the notion that the Directive told prospective bidders to ignore an applicable rule in preparing their respective bids.5 If this were true, then the Directive could have been a source of potential confusion, as the Department argues, because a prudent bidder might reasonably hesitate to quote a price based on (possibly) legally deficient specifications. The Directive, however, did not instruct bidders to ignore an applicable, existing rule. Rather, under any reasonable interpretation, it instructed bidders to ignore a proposed rule and follow existing law. Such an instruction was neither confusing nor inappropriate. To be sure, the first sentence of the Directive——at least when read literally——misstated a fact. It did so by expressing an underlying assumption, i.e. that Rule 9B-3.0475 recently had been changed, which was incorrect. In fact, as of February 5, 2008, the Rule was exactly the same as it had always been. (It would remain that way for the next two months, until April 6, 2008).6 DEP's misstatement about the Rule might, conceivably, have confused a potential bidder, at least momentarily. But DEP did not factor the potential for such confusion into its decision to reject all bids, and no evidence of any confusion in this regard was offered at hearing.7 More important is that the unambiguous thrust of the Directive was to tell bidders to rely upon the "not recently changed" Rule 9B-3.0475, which could only have meant Florida Administrative Code Rule 9B-3.0475 (2007) as originally adopted, because that was the one and only version of the Rule which, to that point, had ever existed. Thus, even if the Department were operating under the mistaken belief, when it issued the Addendum, that Rule 9B-3.0475 recently had been amended; and even if, as a result, DEP thought it was telling prospective bidders to ignore an applicable, existing rule, DEP nevertheless made clear its intention that prospective bidders follow the original Rule 9B- 3.0475, which was in fact the operative Rule at the time, whether or not DEP knew it. Indeed, as any reasonable potential bidder knew or should have known at the time of the Addendum, (a) the Commission recently had approved the Revised Manual, but the contents thereof would not have the force and effect of law unless and until the Revised Manual were adopted as a rule, which had not yet happened; (b) the Commission had initiated rulemaking to amend Rule 9B-3.0475 so as to adopt the Revised Manual as a rule, but the process was pending, not complete; (c) Rule 9B-3.0475 had not been amended, ever; and, therefore, (d) the Manual still had the force and effect of law. See endnote 6. The Directive obviously could not alter or affect these objective facts. At bottom, then, a reasonable bidder, reviewing the Directive, would (or should) have concluded either (a) that the "recent change" which DEP had in mind was the Commission's approval of the Revised Manual (or the subsequent announcement of the proposed amendment to Rule 9B-3.0475) or (b) that DEP mistakenly believed the Rule had been changed, even though it had not been. Either way, a reasonable bidder would (or should) have known that the Department wanted bidders to prepare their respective bids based not on the Revised Manual, but the Manual. In other words, regardless of what DEP subjectively thought was the existing law, DEP clearly intended (and unambiguously expressed its intent) that bidders follow what was, in fact, existing law. This could not have confused a reasonable bidder because, absent an instruction to exceed the minimum required legal standards (which the Directive was not), a reasonable bidder would have followed existing law in preparing its bid, just as the Directive required. Once it is determined that the Directive did not, in fact, instruct bidders to ignore an applicable, existing law, but rather told them to rely upon the applicable, existing law (notwithstanding that such law might change in the foreseeable future), the logic underlying the Department's decision to reject all bids unravels. Simply put, there is no genuine basis in logic or fact for concluding that the Addendum caused confusion. The other grounds that DEP has put forward do not hold water either. Contrary to the Department's contention, the possibility that a Change Order would be necessary if an "additional water barrier" were required could not possibly have confused potential bidders or caused them to be uncertain about how much money the Department would be willing to pay for such extra work. This is because Article 27 of the Construction Contract prescribes the procedure for entering into a Change Order, and it specifies the method for determining the price of any extra work. See ITB at 102-05. The fact that the proposed amendment to Rule 9B-3.0475, if it were to be adopted and become applicable to the instant project, might require other additional work, besides a water barrier, likewise could not reasonably have caused potential bidders to refrain from bidding, for the same reason: The Construction Contract contains explicit provisions which deal with the contingency of extra work or changes in the work. Id. In sum, DEP's intended decision to reject all bids cannot be justified by any analysis that a reasonable person would use to reach a decision of similar importance. It is, therefore, arbitrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that its decision to reject all bids was arbitrary. Because the Department elected not to comply with the statutory directive to abate this procurement pending the outcome of Spinella's protest, with the result that the contract at issue possibly has been awarded already to another bidder; and because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation regarding the means by which DEP should rectify the harm to Spinella, but he urges that other appropriate relief be granted if Spinella cannot be awarded the contact. DONE AND ENTERED this 2nd day of October, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2008.
The Issue The issue in this case is whether the bid protest of Petitioner should be sustained.
Findings Of Fact Respondent owns and operates a city pool known as the George A. Pierce Swimming Pool at the Ferran Park complex in Eustis. The pool is nearly 40 years old and is in need of renovations and repairs. Deciding to renovate the old pool and build a new one next to it, Respondent obtained plans for the intended work from Project Engineering. These plans, which are dated January 31, 1990, consist of seven pages of blue-line drawings of the site, the existing pool, a new training pool, and various details, such as gutters (Blue Drawings). The Blue Drawings formed the basis of a request for proposals that Respondent issued at some point prior to the events at issue in the present case. The offers submitted in response to the request for proposals were unsuitable because they exceeded the money that Respondent had available for the job. At this point, employees of Petitioner learned that Respondent was seeking to repair and renovate the pool. Bill West, who is responsible for sales for Petitioner, visited with Norma Showley, who is in charge of purchasing for Respondent. She showed him the Blue Drawings and informed him that the proposals that had been submitted were double the budget. Mr. West agreed, at no charge, to prepare a new set of drawings for Respondent. Ms. Showley did not agree that Petitioner's drawings would necessarily be incorporated into a new request for proposals or invitation to bid. However, Ms. Showley explained that time was critical, and she needed his drawings in a hurry. She gave Mr. West the original set of Blue Drawings for his company to use in preparing the new drawings. Mr. West asked Jack Arthur to prepare the new drawings. Mr. Arthur does estimates and drawings for Petitioner and is a registered professional engineer licensed to practice in Florida and several other states. He is also a Florida-licensed commercial pool contractor. Mr. Arthur met with Ms. Showley a few days prior to March 12, 1990. Also attending this meeting was Harvey Spears, who, although not an employee of Respondent, assisted Ms. Showley on this project. Apparently, Mr. Spears was the contractor in charge of other work in the pool area, such as the construction of a bathhouse. Working 40-50 hours over the next three days, Mr. Arthur finished the plans, which bear the date of March 12, 1990 (Black and White Drawings). Mr. West then delivered the plans to Ms. Showley. Ms. Showley discussed with the City Comission the possibility of using the Black and White Drawings instead of the Blue Drawings as the basis of a new bid solicitation. The Commission directed her not to abandon the specifications contained in the Blue Drawings, but revise them as appropriate. No decision was ever made to use the Black and White Drawings, except for the purposes expressly indicated in the later-issued invitation to bid, such as to indicate the location of the bathhouse relative to the existing pool and the details of an alternate gutter system. On April 13, 1990, Respondent issued an invitation to bid, which was identified as Bid NO. 026-90. The invitation to bid was accompanied by the Blue Drawings and the Black and White Drawings. The text, Blue Drawings, and Black and White Drawings are collectively referred to as the "ITB." Each of the pages of the Black and White Drawings were marked "Attachment `A,' `B,' `C,' or `D."' The ITB required that the bids, which had to be sealed, were to be delivered to a certain place, where they would be opened at a specified time on May 14, 1990. The ITB provided for a "bid evaluation period" of up to 30 days after opening. Other relevant provisions in the unlabelled introductory section of the ITB include: ACCEPTABLE FORMAT--Bid format provided by "the City is the only acceptable format on which a bidder may return his bid. Bids submitted, on any other format shall be disqualified. (Any additional information relative to the bid, should be submitted on a separate format.) * * * CLARIFICATION/CORRECTION OF BID ENTRY--The City of Eustis reserves the right to allow for the clarification of questionable entries and for the correction of obvious mistakes. ADDITIONAL TERMS AND CONDITIONS--The City of Eustis reserves the right to reject bids containing any additional terms or conditions not specifically requested in the bid/proposal solicitation. * * * AWARD--This bid may be awarded in part or whole as best serves the interest of the City. All awards made as a result of this bid shall conform to all applicable ordinances of the City of Eustis. RESERVATION--The City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive minor technicalities or informalities in bids received. * * * For information regarding bid specification, contact Norma M. Showley, General Services, Coordinator [telephone number provided in ITB]. The Scope section of the ITB provides that this is a bid to provide all labor, materials, equipment, supplies and incidental necessary for the performance of all work required for the proper and professional renovation of the existing City Pool with an additive alternate for addition of a . . . training pool . . . The following are suggested methods of renovating the existing pool and constructing the new pool. Plans that differ will be considered for award if determined to be in the best interest of the City. The Scope section explains that the existing pool was built in 1951 and is a "poured-in place pool . . . with no flood inlets." This part of the ITB also informs the bidder that separate contracts have been executed for the construction of a new bathhouse, including a new chemical and filter room, and the work may be performed concurrently with the renovation of the existing pool. The bathhouse layout is shown on Attachment "A". NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before the end of October, 1990. The Scope section continues with a description of the base bid and alternates. The alternates are provided "[d]ue to the time restraint involved with the funding for this project" and Respondent's desire to complete the project quickly. The Scope section of the ITB states that the base bid for the renovation of the existing pool includes replacement of the filtering system with a D.E. filter system, replacement of the circulation system, replacement of the existing guttering system with a one foot open face overflow gutter, replacement of the Marcite on the walls, and addition of underwater lighting "as per plans prepared by Project Engineering (i.e., the Blue Drawings). Additive Alternate 1 eliminates the overflow gutter system and adds a stainless steel facing overflow system as shown on Attachment "B." Additive Alternate B eliminates the recirculating system shown in the Blue Drawings and provides for a proprietary system manufactured by Petitioner. Additive Alternate 3 eliminates the D.E. filter system, as shown in the Blue Drawings, and adds a high rate vacuum sand filter system. Deductive Alternate 1 eliminates the underwater lighting. The Scope section of the ITB describes the base bid for the new pool, which in fact is not an additive alternate, as located west of the existing pool and having a D.E. filter system and underwater lighting. Additive Alternate 1 eliminates the D.E. filter system and adds a pressure sand filter system. Deductive Alternate 1 eliminates underwater lighting. The next section of the ITB is the Instructions to Bidders. Among the provisions listed under the "Submittals" subsection are: License--Bidders shall submit with the bid response a copy of their license from the State of Florida Construction Industry Licensing Board. * * * Bidder Qualification-- * * * References shall be furnished with bid response Other relevant subsections of the Instructions to Bidders section of the ITB provide: Visit to Site--The bidder/contractor shall visit the site of the work to become fully informed as to the conditions that exist and under which he/she must work, and by bidding, represents that he/she has read and understands the bid documents. * * * Evaluation and Award--Bids will be evaluated on the basis of cost, bidder's ability to perform, previous experience, experience of personnel and required completion time. It is the City's intent to award a contract to the lowest responsive bidder. However, the City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive technicalities or informalities in bids received. NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before the end of October, 1990. Negotiation of Contract--If deemed in the best interest of the City, the City may, either before or after receipt of bids, select one or more persons or companies and negotiate a contract for the proposed work. The decision of the City as to the firm or firms with whom the City will negotiate will be final. During the negotiations, the right is also reserved to change the plans and specifications as the City may at that time determine to be in the best interest of the City. The section of the ITB devoted to Requirements and Specifications restates the base bids and alternates set forth above in the Scope section. Under the subsection entitled, "Work and Products Not Included," the ITB lists, among other items, "Concrete decking--bleacher area, bathhouse area." Under the subsection entitled, "Description of Work--Existing Pool," the ITB includes the demolition necessary to remove the existing overflow system, install a new one, and provide a recirculation system. Under a similar subsection for the new pool the ITB provides: Provide decking around new pool to match height of existing decking, 4" thickness, 3000 psi concrete, as shown on attachment showing pool layout. Decking shall slope three inches (3") in ten feet (10') away from pool or to deck drains. Minimum unobstructed deck width shall befour [sic] feet (4'). This subsection also refers the bidder to the Black and White Drawings for the curing of the floor of the new pool. For the renovation of the existing pool, the bid form contains blanks for the bidder to include prices for the base bid, three additive alternates, and one deductive alternate. For the construction of the new pool, the bid form contains blanks for the bidder to include prices for the base bid, one additive alternate, and one deductive alternate. Two bid addenda were issued. The first concerned additive alternate 3 for the existing pool and additive alternate 1 for the new pool. This addendum adds, respectively, a vacuum sand filter (instead of a high rate vacuum sand filter) and a high rate pressure sand filter system (instead of a pressure sand filter system). The second addendum, which was accompanied by "a new bid form for prices, adds an automatic water level sensor unit, as described in the Black and White Drawings, to the base bids for the existing and new pools. For the existing pool, the addendum added alternate 4, which replaces the existing main drain with a stainless steel drain, as described in the Black and White Drawings. The Blue Drawings contain four special notes and ten general notes. The first special note is that the final location of "pool and configuration of deck to be determined by architect." The first general note is that the bathroom floors, pool deck, and first 15 feet of connecting walkway are to be concrete or other impervious material, positively drained, and slip resistant. Three unrelated items are noted in red handwriting to be "in bathhouse contract," and one unrelated item is similarly noted to be "by City." Notes on the Black and White Drawings indicate that the contract does not include pool decking around the new pool and a retaining wall beside the new pool, which is in close proximity to a lake. The new pool clearly has to be built to the elevation of the existing pool because, among other reasons, the lake contributes to a high water table in the area of the pool. In order to achieve this elevation, the construction of the decking around the new pool would require either a retaining wall (with some fill) or a larger amount of fill sloped down to the ground level. Due to the close proximity of the lake, it is not entirely clear that the latter approach would work. Even though Mr. Arthur detected inconsistencies between the Black and White Plans and the remainder of the ITB, neither he, Mr. West, nor any other representative of Petitioner contacted Ms. Showley regarding the decking and retaining wall. Following the issuance of the ITB but before the submission of bids, Mr. West met with Ms. Showley, but the conversation involved only the replacement of the main drain and installation of the automatic water level sensor unit. Ms. Showley covered these matters by the addenda described above. They also discussed the possibility of alternate bids with one based exclusively on the Blue Drawings and one based exclusively on the Black and White Drawings. However, Ms. Showley's ability to deviate significantly from the specifications depicted in the Blue Drawings was limited by the lack of time and the earlier directive of the City Commission to revise, rather than abandon, the specifications in the Blue Drawings. Ultimately, timely bids were submitted by only Petitioner and Intervenor, ignoring one or two "no-bid" bids. Petitioner's base bid for the existing pool was $92,399. Additive alternate 1 added $22,897. Additive alternate 2 added $12,383. Additive alternate 3 added $18,500. Additive alternate 4, which was the replacement of the main drain, was included in the base bid and all alternates, even though the only alternate specifying that the main drain be replaced was Additive alternate In fact and as evident from the bid, Petitioner would not perform the job without replacing the main drain due to concerns about the durability of the existing main drain. Deductive alternate 1 subtracted $2500. For the new pool, the base bid was $38,389. Additive alternate 1 subtracted $3103. Deductive alternate 1 subtracted $798. Intervenor's base bid for the existing pool was $107,170. Additive alternate 1 was not bid. Additive alternate 2 added $25,601. The bid was apparently incorrectly filled out. Additive alternate 2, which was the proprietary system manufactured by Petitioner, in fact was not bid, and Additive alternate 1 was bid. Additive alternate 3 added $22 927. Additive alternate 4, which called for the replacement of the main drain, added $5340, but Intervenor noted on its bid form that it did not recommend this alternative. Deductive alternate 1 subtracted $3444. Intervenor's based bid for the new pool was $50,472. Additive alternate 1 was not bid. Deductive alternate 1 subtracted $920. Intervenor also bid three "Voluntary alternates." These alternates, which were not requested in the ITB, involved variations on equipment for the existing pool. Voluntary alternate 2, which totalled $143,253, included a full stainless steel gutter with grating and a high rate pressure sand filter with automatic backwashing feature. Petitioner's base bid for both pools was $130,788. Intervenor's base bid for both pools was $157,642. Intervenor's base bid for both pools, using Voluntary alternate 2, was $193,725. Both bid packages disclosed obvious problems. Petitioner had not bid on any decking or the retaining wall and fill. Ms. Showley and Mr. Spears called Mr. West and, after confirming these omissions, asked for a price. The additional labor and materials added $13,526 for the decking and fill, but apparently not the retaining wall as the slope approach would be used around the new pool. This would have raised Petitioner's base bid to $144,314. However, Petitioner still did not address the issue of the replacement of the main drain. Based on advice from Mr. Spears, Respondent did not want to replace the main drain. The process would require cutting the bottom of the pool. Due to the pool's location, age, and type (poured-in), Mr. spears felt, and Respondent agreed, that the main drain should not be disturbed. Intervenor's bid did not include a copy of its contractor's license or references. Ms. Showley obtained this information after the bid opening. She and Mr. Spears also spoke with Harold von Weller, owner and president of Intervenor, concerning the filtration and gutter systems described in Voluntary alternate 1 and where they had been used. In response to a question concerning the 2 approximate cost of the retaining wall and decking, for the purpose of making a deduction that would facilitate comparison with Petitioner's bid, Mr. Weller wrote a letter estimating the cost of these items as $7004.43. An informal committee consisting of Mr. Spears, Ms. Showley, the architect for the bathhouse, and the City Manager, Michael G. Steerman, considered the bids and determined, after consulting with staff, that Petitioner's bid was not responsive. The City Commission met on May 17, 1990, to award a contract for the renovation and construction of the pools. Mr. Steerman recommended that Respondent reject Petitioner's bid as nonresponsive and award the contract to Intervenor on its Voluntary alternate 2 bid for the existing pool and its base bid for the new pool less the Deductive alternate 1. The amount of $189,361 was derived by subtracting from the Voluntary alternate 2 amount of $143,253 the sum of $3444 for Deductive alternate 1, for a net amount of $139,809 for the existing pool. The new pool net of $49,552 thus generated a total figure of $189,361. It is not entirely clear whether Respondent viewed any of Intervenor's bids as responsive. Most likely, it was assumed by staff and the City Commission that the base bid and possibly the Voluntary alternate 2 bid were responsive. Petitioner and Intervenor are responsible bidders. They are highly qualified and experienced in the construction of commercial pools.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the City of Eustis enter a final order dismissing the bid protest of Petitioner. ENTERED this 18th day of July, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990.
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.
Findings Of Fact The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close. No requests were made to the Department to place its explanation in writing and no written interpretation was provided. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not.. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.
The Issue Whether Petitioners' protest should be sustained?
Findings Of Fact Based upon the evidence adduced at the final hearing, the parties' factual stipulations, and the record as a whole, the following Findings of Fact are made: The Parties The Department is a state agency responsible for, among other things, administering the State of Florida's abandoned property program. SMSC is a Delaware corporation authorized to do business in the State of Florida. McGladrey & Pullen, LLP, is an Iowa limited liability partnership licensed and registered to conduct business in the State of Florida. It has 70 offices nationwide (including offices in Fort Lauderdale and West Palm Beach, Florida) from which it provides accounting and consulting services to its clients. Garcia & Ortiz, P.A., is a Florida professional association licensed and registered to conduct business in the State of Florida. Like McGladrey & Pullen, LLP, it provides accounting and consulting services, but does so on a smaller scale. (It has approximately ten employees working out of two offices.) Garcia & Ortiz, P.A., is registered with the State of Florida as a certified minority business enterprise (providing "accounting, auditing, review, compilation services, tax services, management advisory services, [and] data processing services."). On July 29, 1993, McGladrey & Pullen, LLP, and Garcia & Ortiz, P.A., by written agreement, formed a joint venture known as the "McGladrey & Garcia Joint Venture" "for the purpose of submitting bids to the Resolution Trust Corporation ('RTC') to perform various services for the RTC under one or more contracts to be issued by the RTC." The Request for Proposals On or about January 17, 1997, the Department issued and advertised a Request for Proposal, RFP No. BF11/96-97 (RFP), soliciting the submission of proposals "for the providing of services for the receipt and processing of unclaimed property" for the period from June 1, 1997, through May 31, 2000,2 and, "upon mutual agreement in writing," "up to three additional years." The RFP contained the following statement of "purpose:" The purpose of this RFP is to solicit proposals and cost data from organizations that are interested in providing the services to meet all or part of the statement of need above in a modern business environment and who shall perform some or all of the following services: Process annual reports in various formats from holders of unclaimed property pursuant to Chapters 43.19, 402.17, 705.103, 717, 732.1101, 733.816, and 744.534, Florida Statutes and the State's vendors involved in the auditing for unclaimed property; . . . Handle and remit funds, tangible property as necessary and securities received with the annual reports to the State; Process inquiries from holders and distribute information to holders of unclaimed property; Make one attempt to locate owners of unclaimed property and mail claim forms to the apparent owners; Process inquiries from the public and distribute information to the citizens throughout the United States on unclaimed property being held by the Department; Process claim forms received from apparent owners of unclaimed property; Process and issue payment on approved claims to the owners; Process the denial of claims and send the proper documentation to the State upon a request for a hearing by the claimant regarding the denial; Provide access to the public records in accordance with the requirements of Chapter 119, Florida Statutes; . . . Provide a security plan which protects the information on the ADPB [Abandoned Property Database] from unauthorized access or change, and; Assist the Department with the advertising of unclaimed property pursuant to Chapter 717.118, Florida Statutes. Provide an accounting of funds, reports and claims to the Department's satisfaction. The further purpose of this RFP is to set forth the criteria and the process by which the Provider will be evaluated and the basis on which the selection is to be made. Section V.E) of the RFP set forth various "special conditions," including the following: 2. Mandatory Requirements The Department has determined that certain mandatory requirements must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicates a mandatory condition. The words "should" or "may" in this RFP indicates desirable attributes or conditions but are permissive in nature. Deviation from or omission of such a desirable feature will not itself cause rejection of the proposal, but may result in fewer points awarded by an evaluator. In this proposal process alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results will be considered and may be accepted. Such alternatives should be clearly identified by the Respondent in any proposal. 5. Non-Valid Proposals, Non-Responsible Respondents Proposals not meeting all mandatory requirements of this RFP or that fail to provide all required information, documents or materials will be rejected as non-valid. Respondents whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the requirements of the RFP may be rejected as non-responsible. The Department reserves the right to determine which proposals meet the material requirements of the RFP and which respondents are responsible. Legal Requirements Applicable provisions of all federal, state, county and local laws and administrative procedures, regulations, or rules shall govern the development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between persons submitting a proposal hereto and the Department. Lack of knowledge of the law or applicable administrative procedures, regulations or rules by any Respondent shall not constitute a cognizable defense against their effect. 14. Assignment of Contract The Contract cannot be assigned or subcontracted except with the prior written approval of the Department. Monies which become due thereunder are not assignable except with the prior written approval of the Department, and the concurrence of the Comptroller of the State of Florida. In the event of such approval, the terms and conditions hereof shall apply to and bind the party or parties to whom the Contract is assigned as fully and completely as the Provider is thereunder bound and obligated. No assignment, if any, shall operate to release the Provider from its liability for the prompt and effective performance of its obligations under the Contract. Section VI. of the RFP addressed the subject of the "evaluation of proposals." Its prefatory paragraph read as follows: The contract will be awarded to the Respondent at the sole discretion of the Department, whose proposal is determined to be the most advantageous to the Department and the people of Florida. The Respondent must demonstrate through the proposal that that it possesses the expertise and capabilities to perform the services specified herein; has the staff that possesses the experience that closely aligns with the expertise needed by the Department; and that has the integrity, honesty and responsibleness to complete all requirements of the RFP. Section VI.A) was entitled "Award Notice" and provided as follows: Notice of intent to award contract as a result of this Request for Proposals shall be posted in Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida on the date and time shown on the Calendar of Events. Issuance of this Request for Proposals does not oblige the State to select a Respondent or to award a contract. Section VI.B) was entitled "Legal Requirements for Proposals" and provided as follows: Applicable provisions of all Federal, State and County regulations shall govern development, submission and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes that may arise between persons submitting a proposal hereto and the Department, by and through its employees or authorized representatives. Lack of knowledge by any Respondent shall not constitute a recognizable defense against the legal effect thereof. All corporations seeking to do business with the State shall at the time of submitting a proposal in response hereto, be registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes. To be eligible for consideration, each corporation shall include as part of their required documentation, their corporate charter number, or if appropriate, have attached to their proposal a signed statement that said corporation is exempt from the requirements of Chapter 607, Florida Statutes. Similarly, partnerships seeking to submit a proposal shall have complied with the applicable provisions of Chapter 620, Florida Statutes. Section VI.C) was entitled "evaluation team" and provided as follows: The evaluation team will be established to assist the Department in selecting the best Provider for the services set forth in this RFP. The evaluation team will have a minimum of five members. At least two of the members will be from outside the Department. The team will be responsible for proposal evaluation including reference checks and other verifications as required. Section VI.D) was entitled "Evaluation Sheet" and provided as follows: The evaluation sheet to be used by each evaluator may be found in Appendix I. The evaluation sheet lists evaluation criteria and the specific indicators of criteria [that] will be used to assess the degree to which the Respondent's proposal meets the criteria identified in Section VII. Evaluation sheets will be weighted so that each response to the RFP can be numerically valued and the results compared. The "evaluation sheet . . . found in Appendix I" listed the following awards:" "evaluation criteria" and "possible [point] ITEM POSSIBLE AWARD 1) References 2 2) Experience of Principals 2 3) Financial Statements 1 TECHNICAL SUBMISSION Notification of Holders and Holder Seminar 2 Holder Information 2 Annual Reports 2 Penalties and Extensions 2 Holder Information and Inquiries 2 Receipt of Reports & Reconciliation 3 Record Retention of Reports 2 Contacting Apparent Owners 1 Handling Inquiries 2 Origination of Claims 1 Receipt of Claims 1 Initial Processing of Claims 2 Processing and Payment of Claims 3 Exceptions 1 Tracking 1 Records 2 Automation 4 Security Plan 3 Implementation Plan 2 Disaster Recovery Plan 2 Reports Processing Flow Chart and Narrative Procedures 3 Section VI.E) of the RFP described the "evaluation procedure" that the Department would follow in assessing proposals. It provided as follows: The evaluation process will take place in five phases: Phase I- Meeting of mandatory requirements Phase II- Technical evaluation of proposals Phase III- Oral Presentation Phase IV- Public Opening and Evaluation of Fee Schedules Phase V- Posting of Final Results Phase I Mandatory Documentation Worth 0 Points Total During Phase I of the evaluation process the Contract Manger will carefully evaluate all the proposals to ensure that all mandatory documents have been submitted. Failure of any organization or entity to submit all mandatory items will result in that proposal being withdrawn from further consideration. Upon completion of Phase I of the evaluation process each evaluation team member will be provided the proposals to evaluate. Phase IIA. Technical Evaluation Worth 50 Points Total During Phase II of the evaluation process the evaluators will rate selected criteria from each proposal in regard to the RFP. Each area specified on the evaluation sheet will be given a subjective score based on how well the proposal answers the minimum specifications, on the innovativeness and clarity of the response and on any extra benefit to the State where responses exceed minimum specifications. After each evaluator has independently completed his evaluation sheet (see Appendix I) [t]he total assigned points for each proposal will be averaged across all five evaluators. B. Minority Business Participation Worth 10 Points Total If twenty-four percent or more of the Contract value- 10 points. If less than 24 percent, proposed percentage divided by twenty-four, times []103 No participation by Certified Minority Business Enterprises (CMBEs), no points The Department of Banking and Finance wishes to encourage award of the Contract, or subcontracting of portions of the Contract to, or purchase of good[s] and services from, State of Florida CMBEs. Each Respondent must state whether or not Respondent is a CMBE, and if not, what percentage of the total Contract price will be spent with CMBE firms who will be supplying them. The CMBE participation claimed in the technical proposal must be substantiated in the price proposal, or points assigned for the unsubstantiated CMBE participation will be withdrawn. NOTE: Not all minority business enterprises are presently certified by the State. However, only certified CMBEs will be considered in evaluating this portion of a Respondent's proposal. The Issuing Officer has a directory of CMBEs which is available for review upon request. Respondents may also obtain information of CMBEs by contacting: Minority Business Advocacy and Assistance Office 107 Gaines Street Tallahassee, Florida 32399-0950 Telephone (904) 487-0915 The Contract Manager will average the points for each respondent upon completion of Phase II. Phase III Oral Presentations Worth 10 Points Total An oral presentation is required in accordance with the Calendar of Events. Respondents must address/discuss advantages/strengths of its proposal including but not limited to any of the following areas: Vendor Qualifications (Project experience/project team qualifications) Scope of Solution (Equipment/Software/Installation/Maintenance/ Training/Project Management and Liaison) The presentation will be allowed a maximum of four hours per Respondent and will be given to the assembled evaluation team who shall independently award points for the presentation. Presentations will be given in Room 547 of the Fletcher Building, Tallahassee, Florida. Points will be averaged across the evaluation team members. Phase IV Worth 30 Points Total The Fee Schedule must be submitted in a separate and sealed envelope and must be labeled "Request for Proposal for the Providing of Services for the Receipt and Processing of Unclaimed Property, RFP BF11/96-97." When Phases II and III have been completed and the scores averaged, the Purchasing Agent in accordance with the Calendar of Events will open the Fee Schedules. The Purchasing Agent will evaluate the fee schedules. The lowest cost proposal will be awarded a maximum of 30 points based on lowest overall cost (Block G on the Fee Schedule (Schedule J)). The instructions for filling out the form are as follows: The Abandoned Property Program has three easily measured outputs. The Department proposes to pay the Provider based on these three measurable outputs. Production under the contract may exceed anticipated levels in one output area but not in another. For that reason, Respondents are requested to estimate cost for each area of effort that is separately depicted on the Fee Schedule. The planned number of units for each area; 16,000 reports, 320,000 inquiries made by telephone, and 160,000 claims processed are the anticipated levels of effort for Fiscal Year 1997-98. The projected cost per unit in each area must include items that are ancillary or support functions associated with that portion of process. For example: The inquiries cost will be a per unit cost based on 320,000 transactions. For the inquiries section of the effort the measurable transaction will be defined as an incoming phone call on the 1-888/1-800 line. Ancillary or support services that must also be provided in the inquiries portion of the process would include, but not be limited to, such things as answering e-mail or surface mail inquiries, maintaining an Internet site, the amortized cost of the equipment placed in the public access spaces in Tallahassee, and the proportional cost of equipment, supplies and maintenance. The cost of inquiries support services will have to be figured into the gross cost of maintaining the inquiries section and then divided by 320,000 to arrive at a per unit cost. The gross cost of operating the inquiries unit must be entered into block D of the Fee Schedule. The per unit cost must be entered into block C. This procedure must be repeated for each of the three sections. The Provider will invoice the Department and be paid based upon performance of units performed in each area and the cost per unit. Costs under the contract may overrun the target amount in Block B or D or F but in no case shall the Provider without prior and specific written permission from the Department's Contract Manager exceed the block G amount. It is the responsibility of the Provider to keep the Contract Manager apprised of the status of the payments and to alert the Contract Manager as early as possible to the possibility that block B, D or F amounts may be exceeded. Add blocks B, D and F to get the total cost of the contract. Enter this figure in block G. Comparison between Respondent[]s will take place at the bottom line (Block G) Enter the annual cost of the equipment in the public records room (four workstations) and the proportional cost of the T-1 line into block H. The cost of the equipment and line identified in block H is for Departmental use only. The cost must included as an ancillary cost in block D. The purpose of this particular cost breakdown is to document contractor performance against measures of success. If activity in one area of the contract is significantly out of tolerance in comparison to expectation and it is evident that available funding will degrade performance, the Department may request increased spending authority based on performance to date. The Lowest Cost (LC) proposal block G divided by the Proposal being Considered (PC) block G cost will be multiplied by 30 to determine point value comparison. LC/PC x 30 = points for fee schedule In the event the result is not an integer, the values below .50 will be rounded down to the nearest integer. Values of .50 and above will be rounded up. The points awarded from the fee schedule evaluation will be added to the averaged scores of the evaluation team and used to determine the selection of a Provider. In the event of a tie the contract will be awarded in accordance with Section 60A-1.011, Florida Administrative Code (see Appendix K) The instructions for filling out the form are as follows: Example: Respondent A bids $3.0 M (block G) and Respondent B bids $4.0 M (block G) Respondent A gets: $3M/$3M x 30 = 30 points Respondent B gets: $3M/$4M x 30 = 23 points Phase V Posting Upon completion of Phase IV the intent to award will be posted at Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0350 Section VII. of the RFP listed the "documents required in submitting proposal." It provided as follows: For purposes of uniformity among proposals, documents must be arranged in this order. Original Form- PUR 7033 State of Florida- Request for Proposal Contractual Services Acknowledgment Designated Spokesperson for RFP The Respondent must designate, in writing, the official of the organization authorized to sign all applicable documents in this RFP. Proof of Legal Entity Respondent must provide evidence that the organization is a legal entity. Incorporated Respondents must provide either a copy of the corporation[']s[] most recent annual report on file with the appropriate state agency, or, if incorporated within the last 12 months, a copy of the corporation[']s[] Articles of Incorporation and Charter Number assigned by the appropriate agency. Businesses that are not incorporated must provide a copy of their business or occupational license. Partnerships must submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes. The proposal must include a sworn and signed statement that the Respondent will comply with all the terms and conditions of the RFP and applicable addenda. Conflict of Interest This contract is subject of Chapter 112, Florida Statutes regarding conflict of interest. The proposal must include a signed statement that the Respondent has no conflict of interest. The Respondent must disclose the name of any State employee who owns directly or indirectly, an interest of five percent (5%) or more in the Respondent's firm or any of its subsidiaries. This shall be an ongoing requirement for the life of the contract and failure to comply will subject the contract to cancellation. Designated work site within Florida. The Respondent shall include the geographic location of the site where the processing of reports and claims will take place. The Respondent must include a minimum of three references on the integrity and honesty and responsibility of the firm and their experience in processing data, handling inquiries and processing claims for payment. Include satisfaction with services provided, and the ability of the contractor to adapt and adjust to changing requirements in an innovative and positive manner. The Respondent must include a chart of the organization, indicating how the Respondent's staff will fit into the total organization. The Respondent must include a resume/vita for each principal of the business who will perform professional services for the proposed project. Financial Statements- The Respondent must provide evidence of sufficient financial resources and stability to provide the short term financing needed by the State of Florida. At a minimum this evidence must include financial statements audited by a certified public accountant that includes balance sheets and income statements for the Respondent's two most recent fiscal years. These documents should break out subsidiary data if the Respondent is part of a larger entity. Technical submission in response to Section II Scope of Services of the RFP, organized in response to each subheading in Section II. Security plan Implementation plan in accordance with Appendix E Disaster recovery plan Reports and receipts processing flow chart and narrative procedures. Depict separation of duties. Claims processing and payment flow chart and narrative procedures. Depict separation of duties. Proof of insurability to $1,000,000.00 per employee theft or malfeasance. Drug Free Workplace Certification Preference for Offerors with Drug-free Workplace Program: Pursuant to Section 287.087, Florida Statutes, preference must be given to offerors which certify having a drug-free workplace whenever two or more proposals which are equal with respect to price, quality, and service are received. Offerors must sign and return Appendix L with the proposal to qualify for this preference. Completed Fee Schedule- Sealed in a separate envelope marked "Fee Schedule for RFP BF11/96-97" Addendum Acknowledgment Forms Appendix L to the RFP (reference to which was made in Section VII.R.) read as follows: IDENTICAL TIE PROPOSALS- Pursuant to Section 287.087, Florida Statutes, preference shall be given to businesses with drug-free workplace programs. Whenever two or more proposals which are equal with respect to price, quality, and service are received by the State for the procurement of commodities and contractual services, a proposal received from a business that certifies it has implemented a drug-free workplace program shall be given preference in the award process. Established procedures for processing tie proposals will be followed if none of the offerors have a drug-free workplace program. In order to have a drug- free workplace program, a business shall: Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying actions that will be taken against employees for violations of such prohibitions. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. Give each employee engaged in providing the commodities or contractual services that are under proposal a copy of the statement specified in paragraph 1. In the statement specified in paragraph 1., notify the employees that, as a condition of working on the commodities and contractual services that are under proposal, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendre to, any violation of Chapter 893, Florida Statutes, or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this program. In order to qualify for this tie proposal preference, this certification must be completed and submitted with the proposal. As the person authorized to sign the statement, I certify that the offeror complies fully with the above requirements. Offerors's Name: Signature Name- Typed or Printed Date Bidders' Conference A bidders' conference was conducted by the Department on February 4, 1997. Among those in attendance at the conference were representatives of SMSC and State Street Bank & Trust Company (State Street).4 Neither McGladrey & Pullen, LLP, nor Garcia & Ortiz, P.A., sent a representative to the conference. The following discussion concerning the subject of subcontracting took place at the conference: Q: Page 30, Part V, Section 14: Does this section prohibit any subcontracting, or only subcontracting for those tasks specifically addressed by the RFP? Only those specifically addressed with Department approval. Q: Bill Gavin [one of State Street's representatives at the conference]- If Provider is considering sub-contracting during the relationship of the proposed bid, what does the Provider do for approval? Peter DeVries [bureau chief of the Department's Bureau of Abandoned Property]- Spell out the parts of the contract that are anticipated to be subcontracted. This is to protect us from someone who is not a corporate entity coming in and saying that he can do the whole job and we find out he is not doing anything. He is using subcontractors and trying to manage them as a shell corporation. It should be part of the proposal. SMSC's Proposal SMSC submitted one of the two proposals the Department received in response to the RFP.5 SMSC's proposal contained the following statement concerning "minority business participation:" SMSC is not a Florida Certified Minority Business Enterprise (CMBE). However, SMSC intends to subcontract with Interim Personnel of North Florida, Inc., a CMBE. They are already performing on an existing contract with SMSC in our Panama City Servicing Center. Their certification is shown below. The participation of Interim Personnel is reflected in the completed fee schedule in Section 20. They will provide at least 10 percent of the contract value. They will provide employees who will be located in our Panama City Servicing Center. Additionally, some $500,000 in equipment purchasing will be offered to minority firms and procured from them if their prices are equal or less than our standard prices. We expect this to equal 3% of the contract award over the life of the contract. The completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal reflected (in Block G) a "total annual cost" of $4,800,000.00 and (in Blocks J and K) "total annual CMBE purchases" of $980,000.00, amounting to 20.42% of the "total annual cost." The Other Proposal The cover page of the other proposal that the Department received in response to the RFP, which hereinafter will be referred to as the "MGS Proposal," indicated that it was "[p]resented by McGladrey & Garcia, Joint Venture [and] State Street Bank & Trust Company."6 Printed at the bottom of various pages of the MGS Proposal were "McGladrey and Garcia, Joint Venture/State Street Bank & Trust Company." The MGS Proposal contained an introductory letter signed by Mark Jones of McGladrey & Pullen, LLP, J. Edward Del Rio of Garcia & Ortiz, P.A., and William Gavin of State Street, which read, in part as follows: McGladrey & Garcia, JV, with its subcontractor, State Street Bank & Trust, is pleased to present its response to RFP BF11/96-97: Services for the Receipt and Processing of Unclaimed Property. The McGladrey/State Street team is exceptionally well qualified to assume responsibility for administering the State of Florida's Abandoned Property program. Our team brings the following experience and resources to this contract: . . . Experience of the Team: McGladrey & Garcia JV is a joint venture between McGladrey & Pullen LLP, and Garcia & Ortiz, PA. . . McGladrey & Pullen is the nation's 7th largest accounting and consulting firm. . . . Garcia & Ortiz is one of the largest independent accounting and consulting firms in the State of Florida. . . . State Street Bank & Trust is one of the leading servicers of financial assets in the world. . . . Section A. of the MGS Proposal contained a completed Original Form PUR 7033. Typed in under "vendor name" on the form were "McGladrey & Pullen, LLP[,] Garcia & Ortiz, P.A. and State S[t]reet Bank." The form included the following certification, which was signed by Mark Jones in his capacity as "[p]artner:" I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency of the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. Section B. of the MGS Proposal contained the following statement: Designated Spokesperson for RFP Mark A. Jones, a Partner of McGladrey & Pullen is authorized to negotiate and sign all applicable documents in the RFP, and any contractual documents that are party to this contract between the State of Florida and McGladrey & Pullen, LLP and Garcia & Ortiz, P.A.7 In Section C. of the MGS Proposal (dealing with "proof of legal entity"), reference was made to "the members of our team, including McGladrey & Pullen, Garcia & Ortiz, and State Street Bank." No mention was made of the McGladrey & Garcia Joint Venture, nor was any proof of the joint venture's existence as a legal entity included (along with the documentation that was provided relating to McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street), in this section of the proposal. The following witnessed, but unsworn, statement, signed by Mark Jones (and the witness), constituted Section D. of the MGS Proposal: Compliance With Terms and Conditions of RFP I, Mark A. Jones, Partner of McGladrey & Pullen, LLP, acknowledge and agree that we will comply with all terms and conditions of the RFP and applicable addenda. Section E. of the MGS Proposal consisted of an unsigned statement regarding "conflict of interest," which read, in part, as follows: Conflict of Interest Conflicts We understand that this contract is being awarded subject to the provisions of Chapter 112, Florida [S]tatutes. We affirmatively state that no officer, director, employee or agency of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank is also an officer or an employee of the Department, the State of Florida, or any of its agencies. We affirmatively state that no state officer or any employee owns, directly or indirect[ly], an interest of five percent (5%) or more of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank. We affirmatively state that neither McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank paid, or will pay, any compensation to any employee, agent, lobbyist, previous employee of the Department or any other person who has registered or is required to register under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Department in connection with this procurement. Litigation McGladrey & Pullen, LLP: . . . Garcia & Ortiz, PA: . . . State Street Bank: . . . The McGladrey and Garcia Joint Venture was not mentioned in this section of the MGS Proposal. Section F. of the MGS Proposal discussed a "designated work site within Florida." It read as follows: Designated Work Site Within Florida We propose to house our Unclaimed Property Processing operation in Tallahassee. We have identified seven suitable sites within a five mile radius of the Fletcher Building, and we will make our final selection upon notification of contract award. Although McGladrey & Pullen and its network affiliates have 10 offices in Florida that could house the Unclaimed Property Processing Function, the advantages of establishing our facility in Tallahassee are compelling. Our outsourcing experience has conclusively shown us that physical proximity is essential. Technology is wonderful, but nothing is an effective substitute for personal communication. We fully expect that during the transition period we will be meeting several times each week with the Department's oversight people, and there will routinely be the need to meet on short notice to resolve issues or special situations. Driving one or two hours to accomplish these meetings places an unnecessary roadblock to success. Further, we anticipate that the need for close, personal communication will continue throughout the term of the contract. The RFP refers to a number of future initiatives in technology, operations, and outreach. Close coordination between the Department and us is required; this will be greatly facilitated by placing our operation in Tallahassee. In addition, ongoing contract oversight and issues resolution (either holders or claimants) will be made much easier with a Tallahassee location. Finally, we will be seeking selected staff of the State's Unclaimed Property Bureau who will lose their jobs as a result of the outsourcing contract. We have successfully done this on other outsourcing contracts to the mutual benefit of us, the displaced employees, and client. Maintaining the operation in Tallahassee will greatly enhance our ability to attract good people to a career opportunity with our firm. In Section G. of the MGS Proposal, the qualifications of the "McGladrey/State Street team" were described. The McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street were all mentioned in this section of the proposal. Individuals expected to play key roles in the delivery of services under the contract, if awarded, were identified in Section H. of the MGS Proposal. The resumes of these individuals, who included employees of the McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street, were set forth in Section I. of the MGS Proposal. Section J. of the MGS Proposal contained unaudited financial statements for McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation (identified in Section J. as "a division within State Street Bank & Trust Company.")8 In Section Q. of the MGS Proposal, written proof of the insurability of McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation was provided. Section R. of the MGS Proposal consisted of a completed, signed (by Mark Jones) and dated (February 25, 1997) "Certification of Drug-Free Workplace Program" (Appendix L). Typed in on the line where the "[o]fferor's [n]ame" was to be indicated were "McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street Bank." Section S. of the MGS Proposal contained a completed Fee Schedule (Appendix J), which reflected (in Block G) a "total annual cost" of $7,520,000.00. Attached to this completed Fee Schedule was the following written statement: The firm or Garcia & Ortiz, P.A. is a certified Minority Business Enterprise (CMBE), certified by the Florida Minority Business Advocacy and Assistance office. Attached is a copy of the certification. Forty percent of the contract value will be spent with Garcia & Ortiz, P.A. Evaluation of the SMSC and MGS Proposals Both SMSC's proposal and the MGS Proposal were deemed to be responsive to the RFP. Copies of the two proposals, along with copies of the RFP, were submitted to the evaluation team on March 3, 1997. Phase IIA. A team of five evaluators evaluated the two proposals submitted in response to the RFP for technical merit. SMSC's proposal received scores of 23, 48, 49, 50 and 47 from the evaluation team members for a point total of 217, which, when "[a]veraged across all five evaluators," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 43.4 for Phase IIA. ("Technical Evaluation") of the "evaluation procedure." The MGS Proposal received scores of 50, 45, 50, 50 and 44 from the evaluation team members for a point total of 239, which, when "[a]veraged across all five evaluators," yields a score of 47.8. for Phase IIA. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase IIA., "rounded down" the SMSC score (of 43.4) to 43 and "rounded up" the MGS score (of 47.8) to 48. Phase IIB. In calculating the number of points to award SMSC's proposal for Phase IIB. ("Minority Business Participation") of the "evaluation procedure" set forth in Section VI.E) of the RFP, the Department used the "proposed percentage" of "Annual Contract to CMBE" (20.42) indicated in Block K of the completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal. The "proposed percentage" reflected participation by Interim Personnel of North Florida, Inc., ("10 percent of contract value," which, on an annual basis, would amount to $480,000.00) and, in addition, the "$500,000 in equipment purchasing" that SMSC represented in its proposal would "be offered to minority firms and procured from them if their prices [we]re equal or less than [SMSC's] standard prices." Dividing SMSC's "proposed percentage" by 24 and multiplying the result by 10 yields a score of 8.508, which the Department "rounded up" to 9, notwithstanding that Phase IIB. of the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding." If SMSC had received "Minority Business Participation" credit only for Interim Personnel of North Florida, Inc.'s, proposed participation in the project (and not for the "$500,000 in equipment purchas[es]" it indicated it would make, under certain conditions, from "minority firms" (hereinafter referred to as the "Minority Equipment Purchases"), it would have received, in accordance with the provisions of Section VI.E) of the RFP, 4.16 points for Phase IIB. Because the MGS Proposal provided for "Minority Business Particiapation" in excess of 24% of the "contract value," it was awarded the maximum number of points (10) for Phase IIB. Phase III Oral presentations were made (to the evaluation team) in support of each of the two proposals submitted in response to the RFP. The oral presentation made in support of SMSC's proposal received scores of 6, 10, 9, 5 and 10 from the evaluation team members for a point total of 40, which, when "[a]veraged across the evaluation team members," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 8 for Phase III. ("Oral Presentations ") of the "evaluation procedure." The oral presentation made in support of the MGS Proposal received scores of 10, 5, 8, 10 and 5 from the evaluation team members for a point total of 38, which, when "[a]veraged across the evaluation team members," yields a score of 7.6 for Phase III. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase III, "rounded up" the MGS score (of 7.6) to 8. Phase IV Of the two proposals submitted in response to the RFP, SMSC's proposal was the "lowest cost (LC)." Accordingly, in accordance with the provisions of Section VI.E) of the RFP, it was awarded the maximum number of points (30) for Phase IV of the "evaluation procedure." Dividing the amount in Block G on SMSC's completed Fee Schedule (Appendix J) by the amount in Block G on the completed Fee Schedule submitted as part of the MGS Proposal and multiplying the result by 30 yields a score of 19.148, which the Department "rounded down" to 19 in accordance with the provisions of Phase IV of the "evaluation procedure" set forth in Section VI.E) of the RFP, which, unlike the provisions of Phases II and III, provide for "rounding" when "the result is not an integer" ("down," in the case of "values below .50," and "up," in the case of "[v]alues of .50 and above.") Total Points for Phases IIA., IIB., III and IV According to the Department's calculations9 (which were determined, in writing, by its Office of the General Counsel, to have been "in substantial compliance10 with the evaluation methodology set forth in the RFP"), SMSC's point total for Phases IIA., IIB., III and IV combined was 90, compared to 85 for the MGS proposal. Had the Department not used the "rounding" provisions of Phase IV to calculate the points awarded for Phases IIA., Phase IIB. and Phase III, and had it determined (as Petitioners allege it should have) that the only CMBE participation for which SMSC was entitled to receive "Minority Business Participation" credit was the proposed ("10 percent of the contract value") participation of Interim Personnel of North Florida, Inc., SMSC would have received 85.56 total points for Phases IIA., IIB., III and IV combined, compared to 84.40 for the MGS proposal. Notice of Intended Award On March 18, 1997, the Department posted a bid/proposal tabulation sheet indicating its intent to award SMSC a contract pursuant to the RFP. The bid/proposal tabulation sheet reflected that the combined point totals for SMSC's proposal and the MGS Proposal were 90 and 85 points, respectively. Petitioners' Protest On March 20, 1997, Petitioners filed their Notice of Protest with the Department. The notice was filed within 72 hours after posting of the bid/proposal tabulation sheet. On March 28, 1997, (which was within ten days after the filing of the notice), Petitioners filed their formal written protest challenging the intended award of the contract advertised in the RFP to SMSC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioners' protest of the Department's decision to award the contract advertised in RFP No. BF11/96-97 to SMSC. DONE AND ENTERED this 30th day of May, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997.
The Issue The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.
Findings Of Fact State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items. Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows: Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project. The prospective bidders were also given this information in the pre-bid meetings. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows: Bidder Total Bid D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500. Rovel Construction, Inc. $1,559,000. Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows: Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work. When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Robert A. Hingston, Esquire Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P. 901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134 Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health Miami-Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125 William G. Christopher, Esquire Brown Clark, A Professional Association 1819 Main Street, Suite 1100 Sarasota, Florida 34236
Findings Of Fact In November, 1990, the Respondent, the Department of State, sought proposals for the lease of office space for its Division of Licensing. On or prior to December 7, 1990, the proposal opening date, at least six proposals were received by the Respondent. Those proposals were designated by the Respondent as "Tallahassee Associates" (the Petitioner's proposal), "Crossland Agency" (the Intervenor's proposal), "Woodcrest A", "Woodcrest B", "T.C.S." and "DeVoe". On January 2, 1991, the Respondent posted a standard form Bid Tabulation indicating that the following scores had been awarded to the following proposals: Proposal Score Woodcrest A 82 Woodcrest B 82 Tallahassee Associates 73 Crossland Agency 85 DeVoe 54 The proposal of T.C.S. was not evaluated by the Respondent because it was determined to be non-responsive. The Respondent also posted a copy of a memorandum dated January 2, 1991, with the January 2, 1991, Bid Tabulation. The memorandum was from John M. Russi, Director of the Division of Licensing, to Ira Chester, Chief of the Bureau of General Services. Mr. Russi indicated in the memorandum that the Intervenor would be awarded the lease. Attached to Mr. Russi's January 2, 1991, memorandum was a Lease Evaluation Worksheet which indicated the scores which had been awarded by the evaluation committee to the responsive bidders for each of the criteria to be considered in determining the winning bidder. Printed at the top-center of the January 2, 1991, Bid Tabulation was the following notice: FAILURE TO FILE A PROTEST WITHIN THE TIME PRESCRIBED IN SECTION 120.53(5), FLORIDA STATUTES, SHALL CONSTITUTE A WAIVER OF PROCEEDINGS UNDER CHAPTER 120, FLORIDA STATUTES. . . . The January 2, 1991, Bid Tabulation was posted at 1:00 p.m., January 2, 1991. Therefore, pursuant to Section 120.53(5), Florida Statutes, any bidder desiring to contest the Respondent's proposed award of the lease was required to file a notice of protest with the Respondent no later than 1:00 p.m., January 5, 1991, and a formal written protest on or before January 15, 1991. T.C.S. filed a notice of protest and a formal written protest to the January 2, 1991, Bid Tabulation within the time periods prescribed by Section 120.53(5), Florida Statutes. T.C.S. contested the Respondent's determination that it was not responsive. The Petitioner did not file a notice of protest or a formal written protest to the January 2, 1991, Bid Tabulation within the time periods prescribed by Section 120.53(5), Florida Statutes. Pursuant to Section 120.53(5), Florida Statutes, the Respondent reviewed the formal written protest filed by T.C.S. and agreed that T.C.S. was responsive. After agreeing that T.C.S. was responsive, the Respondent evaluated T.C.S.'s proposal and awarded points for each of the criteria to be considered. Toward the end of January, 1991, after deciding that T.C.S.'s proposal was to be evaluated, the Respondent notified all other bidders of its decision in a document titled Posting of Notice of Agency Decision. The Posting of Notice of Agency Decision was signed by the Respondent's General Counsel and was addressed to "All Responsive Bidders". The Posting of Notice of Agency Decision provided, in pertinent part: Notice is hereby given that the Florida Department of State, Division of Licensing, is reviewing the bid tabulation which was posted at 1:00 P.M., January 2, 1991 for Lease No. 450:0070. The revised bid tabulation will be posted at 8:00 A.M. on February 4, 1991 at the Purchasing Office of the Department of State . . . . Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceeding under Chapter 120, Florida Statutes. Any person interested in the new tabulation should contact . . . after the posting time listed above. The Petitioner filed a notice of protest and a formal written protest challenging the Posting of Notice of Agency Decision within the times prescribed by Section 120.53(5), Florida Statutes. The Respondent dismissed this formal written protest by final order dated February 22, 1991. On or about January 31, 1991, more than four weeks after the posting of the January 2, 1991, Bid Tabulation, Ocie Allen spoke by telephone with Phyllis Slater, the Respondent's General Counsel. Ms. Slater told Mr. Allen that all proposals would be reevaluated as a result of T.C.S.'s protest. Mr. Allen was a lobbyist for the Petitioner in January, 1991. On February 4, 1991, the Respondent posted another standard form Bid Tabulation indicating that the following scores had been awarded to the following proposals: Proposal Score Crossland Agency 83 Woodcrest A 80 Woodcrest B 80 Tallahassee Associates 71 T.C.S. 71 DeVoe 51 The differences in the scores of the proposals which had been listed on the January 2, 1991, Bid Tabulation, which are reflected in the February 4, 1991, Bid Tabulation were caused by automatic changes in the scores resulting from the addition of T.C.S. and the fact that T.C.S. had the lowest priced bid. The points awarded for the "rental" criterion, which was worth up to 25 points, were determined by a mathematical formula by which the scores of each bidder are calculated based upon the proposed rental charges of all bidders. The award of points for this criterion was determined objectively based upon the mathematical formula. By adding another bidder, T.C.S., the points awarded to all the proposals automatically changed. The scores of the proposals which had been listed on the January 2, 1991, Bid Tabulation, were not otherwise changed. Nor were the proposals of any bidder reevaluated. The Respondent also posted a copy of a memorandum dated January 24, 1991, with the February 4, 1991, Bid Tabulation. The memorandum was from John M. Russi, Director of the Division of Licensing, to Ira Chester, Chief of the Bureau of General Services. Mr. Russi indicated the following in the memorandum: Pursuant to the settlement stipulation signed by Counsel for T.C.S. Associates on January 23, 1991, in reference to the Bid Protest filed January 11, 1991, the attached "Lease Evaluation Work Sheet" is provided for you to re-post. After reevaluating six bid proposals, the evaluating committee concludes that Crossland Agency should be awarded this bid. Each bidder needs to be notified by certified mail of this action. . . . . Attached to Mr. Russi's January 24, 1991, memorandum was a Lease Evaluation Worksheet which indicated the scores of the responsive bidders which had been awarded by the evaluation committee for each of the criteria to be considered in determining the winning bidder. On February 6, 1991, the Petitioner filed a notice of protest to the February 4, 1991, Bid Tabulation. The Petitioner filed a Formal Written Protest, Request for Formal Hearing and Motion for Stay with the Respondent on February 18, 1991. These documents were filed within the time periods specified in Section 120.53(5), Florida Statutes. The Petitioner's Formal Written Protest was filed with the Division of Administrative Hearings by the Respondent on February 28, 1991. Crossland Agency, Inc., was allowed to intervene in the proceeding. On March 1, 1991, the Respondent and Intervenor filed a Motion to Dismiss. A motion hearing was conducted on March 6, 1991, to consider the Motion to Dismiss.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Respondent granting the Motion to Dismiss and dismissing this case, with prejudice. DONE and ENTERED this 22nd day of March, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 22nd day of March, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3, 5 and 9. 2 12-13. 3 15-16 and 18-21. See 14. 15. The weight of the evidence failed to prove that the scores of the bidders for the "option period" criterion reflected on the January 2, 1991, Bid Tabulation were modified or reconsidered on the February 4, 1991, Bid Tabulation. The suggestion that "the department had discretion to change scores in any of the remaining eight categories" is a conclusion of law and is rejected. These proposed facts are not relevant to the issue raised in the Motion to Dismiss. Nor was any evidence presented to support these proposed findings. 12. The last sentence is a conclusion of law and is rejected. Proposed Findings of Fact of the Respondent and Intervenor Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 3 and 7. 5-6 and hereby accepted. 4 8-12. 5 See 14. 6 15 and 17. 18. The last sentence involves an issue not raised in the Motion to Dismiss or at the motion hearing. Nor was any evidence presented to support these proposed findings. See the Preliminary Statement. COPIES FURNISHED: Linda G. Miklowitz, Esquire 1589 Metropolitan Boulevard Tallahassee, Florida 32308 Benjamin E. Poitevent Assistant General Counsel Department of State The Capitol, MS #4 Tallahassee, Florida 32399-0250 M. Christopher Bryant, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
The Issue Whether the Department’s intended award of contract E2K97 for Asset Maintenance of the Duval County Roadways is contrary to the agency’s governing statutes, the agency rules or policies or the bid or proposal specifications.
Findings Of Fact The following facts were agreed between the parties in their Joint Pre-Hearing statement: On June 18, 2007, FDOT posted the solicitation for asset maintenance of the Duval County Roadways through procurement E-2K97. The RFP requested technical proposals and bids for a five-year contract for maintenance of identified roads in Duval County. The RFP provides that the scoring of the technical proposals is to be weighted as follows: Administration Plan (20%), Management and Technical Plan (30%), Operation Plan (30%), and Plan for Compliance with Standards (20%). ESI did not file a protest of the RFP's terms, conditions, specifications, or provisions governing the method of ranking proposals within 72 hours of the posting of the solicitation. A mandatory pre-bid meeting was held on July 10, 2007. The technical and price proposals for this project were due by August 9, 2007. Four firms submitted timely proposals in response to the RFP. They were ESI, DBI, Infrastructure Corporation of America (ICA) and VMS. The proposals were evaluated by three registered civil engineers who are employed by FDOT: Jerry Ausher, Julius Rinosa, and Mark Kuhn. All four firms were determined to be responsive and received scores on their technical proposal and price proposal. DBI's average score on its technical proposal was 88, the highest of the four firms. ESI's average score on its technical proposal was 75.33, the lowest of the four firms. ESI's price proposal bid was $44,759,500.00, the lowest of the four firms. DBI's price proposal bid was $48,748,886.00, the second lowest of the four firms. After combining the technical scores and price proposal scores, the total proposal scores for the four firms were as follows: DBI = 89.14, VMS = 85.19, ESI = 82.73, and ICA = 82.68. On September 4, 2007, FDOT posted its notice of intended award to DBI as the winning bidder. ESI filed a notice of intent to protest on September 7, 2007, followed by a formal written protest on September 17, 2007. DBI filed a Petition to Intervene which was granted on November 7, 2007. As the intended awardee, DBI has a substantial interest in the outcome of this proceeding and thus, has standing to intervene.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner’s Amended Formal Written Bid Protest be dismissed. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2008. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Denise Johnson, Esquire Assistant General Counsel Florida Department of Transportation Office of the General Counsel Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire 2104 Delta Way, Suite 9 Tallahassee, Florida 32303 J. Reuben Hamlin, Esquire Post Office Box 1620 Newberry, Florida 32669 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Whether, when making a recommendation to award ITB No. 15C-26K (Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment, and Uniforms) to (1) Matty's Sports (Matty's), (2) Simmons Team Sports (Simmons), (3) D&J Commerce Solutions, Inc., d/b/a OLC Team Solutions (D&J), and (4) Palm Beach Sports (PB Sports), Respondent, School Board of Palm Beach County (School Board), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact ITB No. 15C-26K and the Bid Process On November 4, 2015, the School Board issued Invitation to Bid (ITB) No. 15C-26K entitled "Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment and Uniforms" for the provision of athletic equipment (hard goods) and athletic clothing, including uniforms (soft goods). The ITB offered prospective vendors the opportunity to bid on 26 items but did not require that a vendor offer a bid for each of the 26 identified items. The odd-numbered items were for hard goods and the even-numbered items were soft goods. Paragraph G,
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by BSN Sports, LLC, and upholds the awards of contracts ITB No. 15C-26K to Matty's Sports, Simmons Team Sports, D&J Commerce Solutions, Inc., and Palm Beach Sports. DONE AND ENTERED this 22nd day of July, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 22nd day of July, 2015.
The Issue At issue in this proceeding is whether the Department of Environmental Protection's decision to reject all bids submitted for the project entitled BDRS 52-01/02 was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Parties Petitioner, All America Homes of Gainesville, Inc. (All America), is a corporation doing business in the State of Florida. All America submitted a timely written bid in response to the Department's ITB and filed timely protests to the Department's actions. The Respondent, the Department of Environmental Protection, is an agency of the State of Florida which manages and operates state parks under its jurisdiction, and solicits construction projects in state parks, pursuant to Chapter 258, Part I, Florida Statutes, through its Division of Recreation and Parks, Bureau of Design and Recreation Services. The ITB In November, 2001, the Department issued an ITB on a construction project entitled Hillsborough River State Park Concession Building, project number BDRS 52-01/02. The ITB included the Bid Specifications for the project. Bids were required to be submitted no later than 3:30 p.m. on Tuesday, December 18, 2001, at the Bureau's Tallahassee, Florida, office. The written Specifications define several terms, including, but not limited, to the following: ADDENDUM: A written explanation, interpretation, change, correction, addition, deletion, or modification, affecting the contract documents, including drawings and specifications issued by the OWNER [Department] and distributed to the prospective Bidders prior to the bid opening. ALTERNATE BID: Separate optional bid item for more or less project requirement used for tailoring project to available funding. Also may consist of alternate construction techniques. BASE BID: Formal bid exclusive of any alternate bids. BID FORM: The official form on which the OWNER requires formal bids to be prepared and submitted. ORAL STATEMENTS: Verbal instruction. NOTE: No oral statement of any person, whomever shall in any manner or degree modify or otherwise affect the provisions of the contract documents.[1] SEALED BID: The formal written offer of the Bidder for the proposed work when submitted on the prescribed bid form, properly signed and guaranteed. The Bid Specifications also contained the following relevant sections: Alternatives If the OWNER wishes to learn the relative or additional construction cost of an alternative method of construction, an alternative use of type of material or an increase or decrease in scope of the project, these items will be defined as alternates and will be specifically indicated and referenced to the drawings and specifications. Alternates will be listed in the bid form in such a manner that the Bidder shall be able to clearly indicate what sums he will add to (or deduct from) his Base Bid. The OWNER will judge for himself that such alternates are of comparable character and quality to the specified items. The Order of the alternate may be selected by the Department in any sequence so long as such acceptance out of order does not alter the designation of the low bidder. ADDENDA If the Consultant[2] finds it would be expedient to supplement, modify or interpret any portion of the bidding documents during the bidding period, such procedure will be accomplished by the issuance of written Addenda to the bidding documents which will be delivered or mailed by the OWNER'S Contracts section to all bidders who have requested bidding documents. Interpretation No interpretation of the meaning of the drawings, specifications or other bidding documents and no correction of any apparent ambiguity, inconsistency or error therein will be made to any Bidder orally. Every request for such interpretation or correction should be in writing, addressed to the Consultant. All such interpretations and supplemental instructions will be in the form of written Addenda to the bidding documents. Only the interpretation or correction so given by the Consultant in writing and approved by the OWNER shall be binding, and prospective Bidders are advised that no other source is authorized to give information concerning, or to explain or interpret, the bidding documents. B-16 Bid Modification Bid modification will be accepted from Bidders, if addressed as indicated in Advertisement for Bids and if received prior to the opening of bids. No bid modification will be accepted after the close of bidding has been announced. Modifications will only be accepted if addressed in written or printed form submitted with the bid in sealed envelopes. Telegrams, facsimiles, separate sealed envelopes, written on printed modifications on the outside of the sealed envelopes will not be accepted. All bid modifications must be signed by an authorized representative of the Bidder. Modification will be read by the OWNER at the opening of formal bids. B-21 Rejection of Bids The OWNER reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the bid of a bidder who the OWNER determines is not in a position to perform the work. B-23 Award of Bid . . .The qualified Bidder submitting the lowest bid will be that Bidder who has submitted the lowest base bid plus any selected alternates. . . . The OWNER reserves the right to waive any minor irregularities in bids received when such waiver is in the interest of the OWNER. The Award of Bid will be issued by the OWNER only with responsible Bidders, found to meet all requirements for Award of Bid, qualified by experience and in a financial position to do the work specified. Each bidder shall, if so requested by the OWNER, present additional evidence of his experience, qualifications and ability to carry out the terms of the Agreement. (Emphasis in original, except for Section B-10.) The Bid Form is included with the Specifications and provides in part: Base Bid: Furnish labor, equipment, Lump Sum $ supervision and material to construct a new concession building of 2940 square feet located at the Hillsborough River State Park along with the alteration of the existing concession building according to plans and specifications. Alternate #1: Furnish labor, equipment, Add Amt.$__ supervision and material to renovate the existing concession building according to plans and specifications. There is a separate section for "Allowances," i.e., Section 01210, for the Hillsborough State Park. This section provides in part: SECTION 01210 – ALLOWANCES * * * 1.2 SUMMARY This Section includes administrative and procedural requirements governing allowances. Certain materials and equipment are specified in the Contract Documents and are defined by this [sic] specifications as material and labor to be provided against a pre-determined allowance. Allowances have been established in lieu of additional requirements and to defer selection of actual materials and equipment to a later date when additional information is available for evaluation. If necessary, additional requirements will be issued by Change Order. * * * 3.3 SCHEDULE OF ALLOWANCES A. Allowance #1: Include in the base bid an allowance for the purchase and installation of. . . kitchen equipment. . . . The total dollar amount of the allowance to be included shall be $12,000.00. There is also a separate section for "Alternates," i.e., section 01230, for Hillsborough River State Park, which provides in part: SECTION 01230 – ALTERNATES * * * 1.3 DEFINITIONS Alternate: An amount proposed by bidders and stated on the Bid Form for certain work defined in the Bidding Requirements that may be added to or deducted from the Base Bid amount if OWNER decides to accept a corresponding change either in the amount of construction to be completed or in the products, materials, equipment, systems, or installation methods described in the Contract Documents. The cost or credit for each alternate is the net addition to or deduction from the Contract Sum to incorporate alternate into the Work. No other adjustments are made to the Contract Sum. . . . . 3.1 SCHEDULE OF ALTERNATES A. Alternate No. 1: Renovate the existing concession building in its entirety as shown in the drawings and specified herein. (emphasis added.) At this stage of the bidding documents, the contractor/bidder is requested to provide a Base Bid/Lump Sum on the Bid Form to "[f]urnish labor, equipment,. . .to construct a new concession building," and to provide an additional and separate amount for Alternate No. 1 to "[f]urnish labor, equipment, . . . to renovate the existing concession building." On December 13, 2001, the Bureau issued "Addendum No. One (1)" (written by the architect) to the ITB on the "Hillsborough River State Park – Concession Building." The Addendum contained the following relevant sections: Specification Section 01210: Allowances Add the following new paragraph 3.3.B: ”Allowance #2: Include in the base bid an allowance for the renovations of the existing concession building; renovations shall be defined by the Owner. The total dollar amount of the allowance to be included shall be $25,000." Specification Section 01230: Alternates Modify paragraph 3.1.A. as follows: "Alternate No. 1: Renovate the existing concession building as defined by the Owner, and as provided for under Section 01210, Allowances." (emphasis added.) Each contractor was required to sign the Addendum and attach it to the bid. By definition, and pertinent here, an addendum is an additional written instruction to a contractor during the bidding process. Based on the weight of the evidence, the purpose of this Addendum was to require the contractor to include a $25,000.00 Allowance (for Allowance # 2) in the Base Bid, for the work which might be performed if the Department requested the work to be performed for Alternate No. 1, i.e., for the renovation of the existing concession building.3 (The Department's architect decided it would cost approximately $25,000.00 to renovate the existing concession building, hence Allowance # 2.) In other words, the Addendum does not have a specific dollar amount to be included for Alternate No. 1. Rather, the $25,000.00 is an Allowance for the work described as Alternate No. 1, but the amount is to be included in the Base Bid and not as a separate line item, dollar amount. But, importantly, the Addendum did not delete the potential work to be performed as described in Alternate No. 1, although Mr. Bowman and others believed that the Addendum deleted Alternate No. 1. It deleted the necessity to place a specific dollar amount on the Bid Form for Alternate No. 1. (Mr. Bowman is a registered Professional Engineer and a licensed contractor. He has worked for the Department for 15 years and has served as Bureau Chief for two years. He supervises the contract section and the design section, which was responsible for preparing the technical plans and specifications and bidding out the job.) Mr. Bowman offered the following explanation why he believed the Addendum was confusing: Okay. I think the confusion that was created, you know, I think the addendum in itself, you know, said add $25,000 to the base bid, but then on the bid form, it still had the space down there for alternate number one, which alternate number one, which alternate number one had become $25,000 that was to be allowed for the concession building, and I think that's where the confusion came in because I think they were still confused, that they weren't really sure that they should not put that 25 down there but they knew they had been told in the addendum to do it and I think that's the reason for the notes and we got to the correspondence on the bid form, was they wanted to make sure that that's what we were wanting to do. And I think that's where the confusion came in. Like I said, it's always, if you could go back and do it again, it would be much wiser just to issue a whole new bid form and then we wouldn't be here today. But, we didn't do that. Okay. So, that's why we are here. The language in this Addendum, when read with the original Bid Specifications, apparently caused confusion with some of the bidders on the project. Several bidders called Marvin Allen (an architect and project manager for the Department's Bureau of Design and Recreation Services) prior to the submission of the bids, to clarify how the $25,000.00 Allowance should be shown on the Bid Form. (Mr. Allen did not author any of the specifications, including the Addendum.) He was listed as a contact person. He did not contact any bidders. But, Mr. Allen recalled telling each bidder who asked that the Allowance of $25,000.00 should be included in the Base Bid. But, he does not recall the names or numbers of the bidders who called, "possibly" three, four or five. Mr. Allen believed the Addendum was clear. According to Mr. Allen, the bidders who called him found the Addendum confusing. The oral responses to the bidders can be construed as interpretations of the Addendum. However, pursuant to Section B- 10 of the Specifications, any such interpretations were required to "be in the form of written Addenda to the bidding documents." Also, any such questions should have been in writing. If Section B-10 were complied with, all bidders would have been potentially on the same footing, or, at the very least, would have had access to a written clarifying document. Opening of the Bids On December 18, 2001, the bids were opened by Mike Renard, Contracts Manager with the Bureau of Design and Recreation Services, and Susan Maynard, Administrative Assistant. Mr. Dwight Fitzpatrick, a representative of All America, also attended the bid opening. The Bid Form submitted by Nelco showed a Base Bid of $355,478.00 (Lump Sum $355,478.00), and also showed an amount of $25,000.00 on the Alternate # 1 line (Add Amt. $25,000.00). See Finding of Fact 6. (It was clear to Mr. Renard that the $25,000.00 should have been included on Nelco's Base Bid. But Mr. Renard believed that Nelco submitted a responsive bid because the Department only accepted the Base Bid. Mr. Bowman agreed.) Nelco was the only one of five bidders to have a dollar amount in the Alternate #1 line under "Add Amt. $ ." All America submitted the second lowest Base Bid of $362,000.00. There was also a hand-written note on the All- America Bid Form that stated: "Addenda # 1 instruction to place $25,000 allowance in both Base Bid and as alternate # 1." Another hand written note was located below the "Add Amt. $-0-" line: "amount added in Base Bid with $25,000 allowance per Marvin Allen." The Department considered All America's bid responsive. It is a fair inference that three out of five of the other Bid Forms contained language indicating that the bidders were relying on Addendum No. One by placing the $25,000.00 Allowance in the Base Bid.4 It is uncertain whether they did so in light of the instructions of Mr. Allen concerning how to complete the Bids Forms. However, given the nature of the calls to Mr. Allen, there is a reasonable inference that there was some confusion among some of the bidders. The Department determined that Nelco submitted the lowest Base Bid, but the Department's staff had a question as to whether Nelco had included the $25,000.00 in its Base Bid. After conferring with his superiors, Mr. Renard was instructed to call Nelco to make certain that its Base Bid included the Allowance amount ($25,000.00). Mr. Renard spoke with Steve Cleveland, Nelco's Project Manager, "to verify the fact that [Nelco] had the allowance in their base bid." Mr. Cleveland orally confirmed that Nelco's Base Bid included the $25,000.00 Allowance. Mr. Renard asked Mr. Cleveland to send him a letter verifying this statement. Mr. Renard viewed this inquiry as a request for clarification or verification, not an opportunity for Nelco to modify its bid. Mr. Bowman agreed. (Mr. Renard did not believe Addendum No. 1 was confusing.) In a letter dated December 20, 2001, Mr. Cleveland confirmed that Nelco’s Base Bid of $355,478.00 included the Allowance amount and that Nelco could still perform the contract if the $25,000 Allowance was removed from its Base Bid pursuant to the ITB, i.e., that Nelco would perform the contract for $355,478.00 less $25,000.00, or $330,478.00, if the Department did not accept Alternate # 1 and the Allowance. (An alternate does not have to be accepted by the Department.) According to Mr. Renard, Mr. Cleveland never mentioned modifying, changing, or altering Nelco's bid. The Department only accepted the Base Bid for each bid. Mr. Renard did not consider it unusual to call a bidder or contractor to verify information to determine whether they can or cannot perform the work at the stipulated price. He considered it common to make this inquiry. Also, it was common in Mr. Bowman's experience to call a bidder to get clarification. Mr. Renard was not aware of any statute or rule which authorizes the Department to request clarification from a bidder after the bids are opened. Mr. Renard was more familiar with the bid forms than Mr. Allen. After receiving Mr. Cleveland's letter, the Department determined that Nelco submitted the lowest Base Bid and that the $25,000.00 amount that Nelco wrote on the Bid Form Alternate # 1 line, was a minor irregularity in the bid which the Department, as the Owner, could waive pursuant to the ITB. On December 20, 2001, the Department posted the Tabulation of Bids showing the anticipated award of the contract to Nelco. At the hearing, an unsigned letter on Department letterhead was introduced, which was addressed to Nelco and stated that Nelco submitted the apparent low bid. However, Mr. Renard testified that these letters are prepared routinely, but not mailed out without his signature. Mr. Renard did not recall signing the letter or ever sending out such a letter to Nelco. On December 21, 2001, the Department received a Notice of Intent to Protest letter from Allen E. Stine, the President of All America. In his letter, Mr. Stine stated that Nelco’s bid should have been rejected for failure to follow the specified format as per Addendum No. 1, or adjusted to have the $25,000.00 amount added to their Base Bid. Bid Protests All America filed a written formal bid protest on January 4, 2001. On January 9, 2001, Cindy Otero of All America, notified Mr. Renard by letter, and stated that Mr. Stine was available for a hearing regarding the bid protest. On January 28, 2002, Mr. Renard returned All America's check for the bond, stating that it was unnecessary. Mr. Stine recounted a number of unanswered telephone calls after the first protest was filed. During one conversation, Mr. Renard recalled Mr. Stine saying to him, "You can't do this, you can't do this." After receiving the first formal protest, the Department staff consulted with legal staff and reviewed the documents and bid procedures. Based on the number of questions received concerning the Addendum and the hand-written notes on several of the bid forms, Mr. Bowman, Bureau Chief, determined that the bid documents were confusing and ambiguous. (Mr. Bowman stated that this was their first bid protest in his 15 years with the Department.) Therefore, Mr. Bowman decided that it would in the best interest of the State of Florida to reject all of the bids pursuant to the Bid Specifications. Mr. Bowman felt that the ITB should be re-written in order to make it clearer and allowing all of the bidders to re-bid the project without any confusion or ambiguity. Mr. Stine stated that his "senior estimator" told him that the bid language "could be confusing." He and his "senior estimator" had a discussion about whether the Allowance should have been placed in the Base Bid or not. At the time of submission of All America's bid, Mr. Stine was clear that the Allowance should be placed in the Base Bid, especially after calling Mr. Allen. But, his senior estimator was not so clear. In order to appease him, Mr. Stine placed the hand-written note on All America’s proposal. Mr. Stine essentially, "cleaned" up his proposal. At the hearing, Mr. Bowman testified Rule 60D-5.0071, Florida Administrative Code, see Conclusion of Law 59, does not list "confusing or ambiguous bid specifications" as one of the circumstances allowing for the rejection of all bids. However, Mr. Bowman later stated during the hearing that he believed the circumstances listed in Rule 60D-5.0071 were not the only circumstances authorizing the Department to reject all bids. Mr. Bowman testified that he believed that general confusion among the bidders caused by the ambiguous ITB constituted sufficient grounds for rejecting all bids. Mr. Bowman was advised by legal counsel that rejecting all of the bids would probably result in another bid protest by Nelco, All America, or both. Thus, the Department decided to delay addressing All American’s first protest until after posting the rejection of all bids and receiving the subsequent protests, so that all of the protests could be resolved at once in an efficient and economical manner. Notwithstanding the Department's justifications for rejecting all bids and not proceeding on All America's initial protest, the record is unclear why the Department waited several months to reject all bids. On May 13, 2002, the Department posted the rejection of all bids. On May 16, 2002, the Department received a formal written protest of the rejection of all bids filed by All America. On May 17, 2002, Jerome I. Johnson, attorney for the Department, contacted Mr. Robert A. Lash, All America's counsel at the time, concerning the resolution of All America’s formal protest. (Before the final hearing, Mr. Lash, with All America's consent, withdrew as counsel for All America.) The parties agreed to suspend formal bid protest procedures until a meeting could be held between the parties in an attempt to resolve the protests. Mr. Johnson sent a letter dated May 21, 2002, to Mr. Lash confirming this conversation. On June 26, 2002, a meeting was held among the Department staff, legal staff, and Mr. Lash and Mr. Stine, representing All America. The parties were unable to resolve the protests. At the conclusion of the meeting, the parties agreed that formal protest procedures would not be implemented until Mr. Stine could confer further with his counsel. In a letter dated July 5, 2002, Mr. Lash stated that his client wished to proceed with formal protest procedures and requested an administrative hearing on the protests. Are the Specifications and Bid Documents Ambiguous and Was There Confusion? The parties stipulated that "[t]he Addendum language was confusing," notwithstanding the testimony of several witnesses that they were not confused. The Department's determination that the bid Specifications, including the Addendum, and the Bid Form, which remained unchanged after the Addendum was issued, were confusing and ambiguous, is supported by the weight of the evidence. This is particularly true regarding the Bid Form. The Addendum required the bidder to include an Allowance of $25,000.00 in the Base Bid for work described as Alternate # 1. But the Bid Form was unchanged to reflect the Addendum changes. The Bid Form retained a line for the bidder to submit an additional amount for Alternate # 1. Further, it appears that several bidders were confused, including, Mr. Stine, who spoke with Mr. Allen and requested and received clarification. Further, it is unclear whether all of the bidders, including Nelco, were aware of the oral interpretations or clarifications of the Addendum rendered to some of the bidders. Rejection of All Bids Based upon the foregoing, given the standard of review in this proceeding discussed in the Conclusions of Law, the weight of the evidence indicates that the Department's action, in rejecting all bids, was not illegal, arbitrary, dishonest, or fraudulent. The Department's staff was well-intended and made some mistakes along the way, e.g., by not changing the Bid Form, which they readily admit. But there was a rationale for rejecting all bids under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department issue a final order dismissing All America’s Petition to Prevent Rejection of Bids and Award Contract to Petitioner and denying All America's request for attorney’s fees and costs. DONE AND ENTERED this 24th day of September 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September 2002.
