The Issue The primary issue for determination is whether Respondent's decision to rescind a previous notice of award of a bid to Petitioner First Master Lessors, Inc., on the basis that the original bid was nonresponsive, was appropriate. If rescission of that bid award was proper, a secondary issue is whether Respondent was also justified in rejecting the competing bid submitted on behalf of Petitioner DSJ Realty Company Inc.
Findings Of Fact Respondent issued an Invitation To Bid in order to obtain a leasehold of 15,397 square feet of office space to house operations of its child support enforcement office in Lakeland, Florida, for a term of seven years with an option to renew the lease for two additional three year periods. The Invitation To Bid (ITB) states Respondent's reservation of the right to reject, if in the best interest of the State of Florida, any and all bids. Further, the invitation states a number of conditions that submitting bidders must meet in order for their bids to be deemed responsive. Among the stated conditions is the requirement that bids be submitted on the standardized bid submittal form enclosed in the ITB in compliance with conditions specified on that form. Further, bidders are directed to complete the bid submittal form providing acknowledgements requested by the form. Another stated condition of the ITB is the requirement that a bidder be the owner of record of the facility and parking areas offered for lease; or, if a lessee seeking to sublease, submit with the bid proposal documentation of authority to sublease the facility and parking areas. A further ITB condition requires each bid to be signed by the owner, corporate officers or legal representative of the bidding entity. Corporate, trade or partnership titles of the bidding entity are to be stamped or typewritten beside the actual signature. Bid submissions signed by an agent are required to be accompanied by written evidence from the owner of record documenting the agent's authority. All bid submittal signatures are to be notarized. Page 4 of the standardized bid submittal form enclosed in the ITB requires, in paragraph 11, that any bid offering premises for consideration (including parking areas), which are presently occupied or which will covered by other active leases on the anticipated lease effective date, must be accompanied by documentation executed by those tenants indicating their acknowledgement of the bid and their ability to vacate the premises by the proposed lease effective date. Submitting bidders are required to indicate whether this requirement is applicable to their bid. Page 4 of the standard bid submittal form contains a number of other conditions which require agreement by the submitting bidder. Proof of the bidder's agreement to those conditions is to be documented by the bidder's initials on each page of the bid submittal package and the bidder's notarized signature on page 16, the submittal form's concluding page. Among the conditions on Page 4 of the form is the agreement of the successful bidder to provide leased space to Respondent for exclusive use on a 24 hour basis, seven days per week during the term of any lease resulting from the bid. This condition further explicitly states that the space to be leased will be fully occupied during normal working hours of 8 a.m. to 5 p.m. during the week and may be fully or partially occupied at other times as necessary in Respondent's discretion. Respondent's bid request specified that bidders must offer a minimum of 65 parking spaces in conjunction with premises proposed for lease. Of those spaces, two spaces were required to meet requirements of accessibility for handicapped parking. Of the remaining spaces, 52 spaces were required to accommodate full size automobiles. All parking was required to be provided as part of the lease cost to Respondent and under the "control of the bidder, off street, suitably paved and lined." On May 16, 1989, five bids were opened, including those submitted on behalf of Petitioner DSJ Realty Company Inc. (DSJ), and Petitioner First Master Lessors, Inc. (MASTER). Out of the five bids opened, only the bids of MASTER and DSJ were determined to be responsive. After evaluation of the bids by Respondent's personnel, the bid was awarded to MASTER on July 6, 1989. On July 11, 1989, and in response to the award to MASTER, a notice of intent to protest the award was filed by counsel for Dale S. Jones, as trustee; DSJ; and Elizabethan Development, Inc. (ELIZABETHAN). By letter dated July 12, 1989, Alan Taylor filed a protest of the lease award to MASTER. That letter simply stated its efficacy as a protest with the words "[w]e hereby protest the award of lease # 590:2087 to First Master Lessors, Inc." No particular factual or legal basis for the protest was stated. Taylor is associated with ELIZABETHAN and his letter is typed on stationary of that business entity. Taylor, designated the bidder on page one of the DSJ bid submittal, was authorized to act solely on behalf of DSJ in the submission of its bid by its president, Dale S. Jones, Jr. Documentation of that authority is contained in a May 8, 1989 memorandum attached to the bid package. There is no documentation in the bid submittal package of DSJ that Taylor was empowered to act on behalf of ELIZABETHAN, or that ELIZABETHAN was authorized to act on behalf of any entity in regard to the bid submittal. While not set forth in the bid package, testimony at the final hearing establishes that Jones is the sole owner of DSJ. Subsequent to the filing of the DSJ protest, Respondent determined to reject the bids of MASTER and DSJ as nonresponsive. By letter dated August 28, 1989, Respondent informed both counsel for DSJ and MASTER of this decision. As set forth in the August 28, 1989 letter, Respondent's decision to reject the bid of DSJ was based upon the failure of DSJ's bid submittal to reflect that its agent, Alan Taylor, or the proposed lessee designated in that bid submittal, DSJ Realty Company, had control of the property offered for lease to Respondent. The August 28, 1989 letter also stated Respondent's rejection of MASTER's bid due to a lack of control of the property sought to be leased, specifically control over parking spaces to be provided in conjunction with the premises to be leased. MASTER's bid submittal stated that the bid requirements in paragraph 11 of the bid submittal form requiring documentation of acknowledgements by any existing tenants of the premises (including parking areas) offered for lease, and ability of those existing tenants to vacate the premises, was not applicable. In response to the bid requirement for 65 parking spaces, MASTER's bid proposed 17 "exclusive" spaces on site and 48 "nonexclusive" spaces off site. An attachment to the bid response was a copy of a letter dated June 10, 1983, from the First Christian Church to a predecessor of MASTER, First Bank of Lakeland. The church, located across the street from the site proposed to be leased to Respondent by MASTER, granted "permission to the First Bank of Lakeland to use our parking lot for the convenience of their employees." Subsequent to the opening of bids and receipt of DSJ's bid protest, MASTER provided Respondent with another letter from the church reciting permission for MASTER to use 48 spaces within the church parking lot for the parking of Respondent's employees and clients, provided that the church reserved the right to use those spaces at any time upon the giving of one week's written notice to MASTER. The church also reserved the right to cancel the agreement at any time upon the giving of 60 days written notice. The letter was dated May 15, 1989. Also, as established at the final hearing, yet another letter was sent to MASTER's authorized agent from the church. That letter documents the rejection by the church of any "formalization" of a reciprocal parking arrangement with regard to the premises proposed to be leased by MASTER. However, the letter, dated July 20, 1989, restated the church's consent to the use of the parking lot by tenants of the premises proposed for lease by MASTER in accordance with its previous letter of May 15, 1989. Another letter attached to the bid submittal of MASTER, is also dated May 15, 1989. Directed to Respondent's facilities services manager, this letter is signed by an individual named Geneva Pettus as "[a]gent for First Master Lessors, Inc." The letter signed by Pettus references the 1983 letter from the church and states in pertinent part: We further guarantee your parking requirements during the term of the lease and will accommodate such spaces either within our own building or other locations if changes in the above parking facilities should occur. The MASTER bid submittal contains no documentation of authority of Geneva Pettus to act as agent for MASTER. Further, as established by the proof at final hearing, the vast majority of on site spaces controlled by MASTER are leased to present tenants or their employees. Remaining unencumbered parking spaces are inadequate to meet Respondent's bid requirements. The "guarantee" by Pettus, absent her lack of authorization to act for MASTER, is further invalidated by failure of MASTER to provide acknowledgements, as required by paragraph 11 of the bid submittal form, from the existing lessees of those parking spaces controlled by MASTER which would have to be vacated in order to comply with bid requirements. The proof establishes that MASTER did not have control of a portion of the property submitted for lease consideration by Respondent, specifically the proposed parking areas. Such lack of control is nonresponsive to Respondent's bid requirements. Notably, the May 15, 1989 date of Pettus' letter coincides with the May 15, 1989 letter to MASTER from the church. Respondent's facilities service manager, involved in evaluation of the bid submittals, was understandably concerned that this letter's existence was not disclosed to Respondent's personnel prior to August 17, 1989. The position of the church as reflected in the letter caused Respondent's personnel to reevaluate the issue of whether MASTER's bid demonstrated the requisite control over the property submitted for bid consideration and concluded that such control was absent. The DSJ bid submittal contains the notarized signature of Dale S. Jones, Jr., in the space on page 16 reserved for the signature of the bidder. His signature is followed by the title "PARTNER." That term is not further described, nor is a partnership or connection of that partnership with Jones identified in the bid package. At the final hearing, Jones confirmed his signature. However, the proof fails to establish that the required initials on each page of the DSJ bid package are those of Jones. Jones was unacquainted with the bid package submitted on his behalf, having merely looked through the package before affixing his signature. Further, the bid submittal form, on page 16, has a blank space for insertion of the name of the bidder submitting the bid package. The bid package submitted on behalf of DSJ contains no name in this portion of the submittal form. Page 16 of the bid submittal form also requires that the bidder indicate the name of the entity in whose name the subsequent lease is to be written, if that entity is one other than the bidder. The bid, signed by Jones and submitted by Taylor on behalf of DSJ, contains the statement that any future lease resulting from the bid should be titled in the name of "DSJ REALTY COMPANY as managing and Leasing Agent for Crystal Lake 301 and 302 Joint Venture." Also attached to the DSJ bid submittal package is a copy of an instrument entitled "DEED TO TRUSTEE UNDER TRUST AGREEMENT." By terms of that instrument, the fee simple title to the property and appurtenances of the site of the building proposed to be leased by DSJ, was purportedly conveyed to Dale S. Jones, Jr., as "Trustee under Land Trust Agreement dated June 15, 1987". By terms of the deed, Jones is granted specific authority to convey, lease or otherwise exercise those rights to property which are commensurate with ownership. The grantor of the deed, dated July 7, 1987, is Florida Southern College. The bid package of DSJ contains no documentation that either Jones or DSJ is authorized to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." Further, the bid package of DSJ offers no explanation as to the identity of this entity. As established by Jones' testimony at hearing, the entities "Dale S. Jones, Trustee" and DSJ Realty, Inc., are not interrelated businesses. The DSJ bid submittal further contains no documentation of authority for ELIZABETHAN or Taylor to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." It is found that the bid submittal of DSJ is nonresponsive to the requirements of Respondent's ITB. In response to Respondent's letter rejecting the bids of Petitioners, counsel for both parties filed petitions dated September 8, 1989, protesting the decision and requesting administrative proceedings. The petition filed on behalf of DSJ, ELIZABETHAN, and Dale S. Jones, as Trustee, was entitled "PETITION FOR FORMAL HEARING AND FORMAL BID PROTEST" and alleges the submitting bidder to be ELIZABETHAN. The document, in support of the July 12, 1989 protest of the bid award to MASTER, sets forth specific grounds for that protest. Further, it is alleged in the petition that DSJ was appointed to act as the agent of Dale S. Jones, as trustee, in appointing ELIZABETHAN as his agent. It is found that these allegations, with regard to the identity of the submitting bidder, are not supported by any competent substantial proof; that Dale S. Jones, as trustee was not a submitting bidder; and that ELIZABETHAN was not a submitting bidder. Each petition filed in opposition to Respondent's August 28, 1989 rejection letter, was accompanied by a $5,000 cashier's check payable to Respondent. MASTER subsequently substituted this check with a surety bond. DSJ's July 12, 1989 protest of the bid award was not accompanied by any bond.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding the bids of MASTER and DSJ to be unresponsive; finding the cancellation of the award to MASTER to be justified; dismissing ELIZABETHAN and Dale S. Jones, as trustee, as petitioners in this proceeding; and rejecting all bids. DONE AND ENTERED this 14th day of November, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner Master's Proposed Findings. Petitioner MASTER's proposed findings consisted of 21 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, MASTER's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, MASTER's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Petitioner DSJ's Proposed Findings. Addressed in substance, remainder rejected as unnecessary. Rejected, unsupported by the evidence. Addressed in substance. Rejected, unnecessary to result. 7.-1I. Adopted in substance. Rejected, unsupported by the evidence. Addressed in substance. Adopted by reference. Adopted in substance. 16.-21. Not relevant inasmuch as Jones, in an individual capacity or the legal capacity of trustee or partner, was not a bidder. 22.-23. Adopted in substance. Rejected, legal conclusion, relevancy. Addressed in substance. 26 Rejected, not supported by the evidence. Taylor was authorized to act on behalf of DSJ Realty, Inc., by the corporate president. 27.-28. Rejected, not supported by the evidence; no evidence that Jones was a bidder. 29.-32. Rejected as unnecessary in view of result. 33.-42. Adopted in substance. Respondent's Proposed Findings. 1-12. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esq. Department of Health and Rehabilitative Services 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, FL 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller, Esq. General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Bruce Marger, Esq. 1700 66th Street, North Suite 501 St. Petersburg, FL 33710 David H. Simmons, Esq. 120 South Orange Avenue P.O. Box 67 Orlando, FL 32602 =================================================================
Findings Of Fact The Department of Community Affairs has its headquarters in the Rhyne Building on Centerview Drive in the City of Tallahassee. The Rhyne Building is one of a cluster of office buildings in the Koger Center which is owned by Koger Properties, Inc. One of the organizational units in the Department is the Energy Office, which was organizationally located within the Office of the Governor until 1991. At that time, the Energy Office was transferred by the Legislature to the Department, and the Department temporarily located the Energy Office organizationally as one of the components in the Office of the Secretary. The Secretary of the Department has decided to organizationally and physically integrate the Energy Office into the Department's Division of Housing and Community Development, having determined that the Energy Office programs are functionally related to that Division's programs. The Energy Office was physically housed in a building owned by Petitioner on Bronough Street in the City of Tallahassee. After the Energy Office was merged with the Department, the Department decided to move the Energy Office to the Rhyne Building. Officials of the Department responsible for supervision of the Energy Office had found it inconvenient to travel the distance between the Bronough Street and Centerview Drive locations and were experiencing difficulty in getting Energy Office personnel and other Department personnel to meet with each other and coordinate related duties. Accordingly, on January 31, 1993, the Department moved the Energy Office out of the Bronough Street building and into the Rhyne Building. As a result of that move, Petitioner has filed a lawsuit against the Department, alleging, inter alia, that the Department breached its lease with Petitioner. That litigation is still pending. Another organizational component of the Department is the Florida Housing Finance Agency. That Agency is physically located in the Marathon Building on Seagate Drive in the City of Tallahassee, part of the Koger Center. That Agency is in need of additional office space caused by new programs and by additional employees. The Agency does not have adequate space for its employees in its current location. The Agency and senior Department officials desire that the Agency remain in close physical proximity to the Rhyne Building since the Agency, like the other components of the Department, receives its administrative and other support services, including fiscal, legal, personnel, and procurement, from the Department. Further, the Agency, like the other divisions of the Department, have a number of interrelated programs which require a close working relationship. Although there were a number of possible solutions to the overcrowding faced by the Agency, splitting its different components into different locations was determined to be impracticable. Accordingly, several proposals to relocate other components of the Department were considered. Ultimately, the Department decided to lease additional office space for the Agency and locate the Energy Office in the Rhyne Building. A state agency which needs private office space of 3,000 square feet or more is required to engage in competitive bidding procedures. A state agency initiates such a process by submitting a Request For Prior Approval of Space Need ("RSN") to the Department of Management Services ("DMS") to show its need for additional space. Attached to the RSN is a Letter of Agency Staffing, which is used to determine the additional space needed based on the number and pay grade of agency employees and other variables. When an RSN is submitted, DMS first determines whether there is suitable state office space to meet the needs of the agency. If state-owned space is not available, the agency may solicit competitive bids from private lessors for the proposed lease by using a Request For Proposal ("RFP"). The state agency prepares the specifications used in the RFP, using the guidelines of DMS. Such specifications include a functional description of the type of space needed, the square footage, and the area of acceptable locations. The area of location of the premises is outlined by geographic boundaries on a map of the city or county where the space is needed, and the map is attached to the RSN and the RFP. The RFP also contains the evaluation criteria created by the agency soliciting bids for determining the score for each bidder's proposal. Each criterion is assigned a specific score, and the total possible score for all criteria is 100. The Department's interest in keeping its component programs in close proximity to each other and to the Office of the Secretary in the Rhyne Building at the Koger Center for supervisory, management, and operational effectiveness is strong. The amount of additional space needed, however, made the Department's acquisition of additional space subject to competitive bidding. The Department employee responsible for obtaining the additional space, Kirby Bass, advised senior management officials that in order for the Department to realize its desire to locate all of its components in proximity to the Office of the Secretary in the Koger Center, the Department could simply expand its current leases in the Koger Center in yearly increments below 3,000 square feet, thereby avoiding the requirement that the Department engage in the competitive bidding process. Rather than following the incremental approach, Bass' supervisor, Lynn Ekholm, directed him to prepare appropriate specifications for a new lease to accommodate 55 new and transferred employees needing approximately 14,000 square feet of additional space. Bass began gathering the information and preparing the paperwork to obtain the additional office space under the direction and supervision of Ekholm, the Department's Director of Administrative Services, and Mary Anne McMullen, the Department's Assistant Secretary, who had been charged with resolving the Department's office space problems. Bass contacted Randall Baker at DMS and discussed with him that Department's requirements for procuring additional office space. He also contacted the purchasing agents at the Department of Revenue and at the Department of Labor and Employment Security ("DLES") to determine how best to prepare the requisite documentation to meet the lease parameters desired by his Department. He discussed his Department's desire to obtain office space in an existing building in or near the Koger Center. Bass discovered that DLES had two leases obtained through competitive bidding within a small geographic area encompassing the Koger Center. One lease encompasses in excess of 15,000 square feet and is dated December 13, 1990; the other lease encompasses in excess of 16,000 square feet and is dated November 19, 1992. In both of those bid solicitations, DLES had received bid proposals from only two bidders located within that boundary -- Koger Properties, Inc., and Parkway-Oakland General Partnership. Each of those bidders received one of those two bid awards. Bass also made telephone inquiries to owners of buildings within the geographic area utilized by DLES to obtain those two leases and drove through the area. Bass did not go into any of the buildings that he drove past to inquire of the rental agents whether they in fact had any space available. He did notice a sign located at or near the complex east of the Oakland Complex advertising space available for up to 18,000 square feet. The evidence is unclear as to the exact buildings with the sign. If the sign related to the buildings known as the Parkway-Oakland Complex, no space was available, according to the testimony of one of the Department's witnesses. If that sign related to the Parkway Terrace Building, that building is owned by one of Petitioner's related companies, and that building is full. As a result of Bass' driving in the area, the Department did not discover any vacant space in any existing building within the geographic boundaries utilized by DLES. As a result of Bass' telephone contacts to owners of existing buildings within the geographic boundaries utilized by DLES, the only rental agent who represented that he had sufficient space available at that time was the rental agent for the Koger Center. That rental agent further advised Bass that although he had sufficient space available in the Koger Center, the rental rate would not be competitive with rates charged by other landlords. Accordingly, at the time that the Department drafted the geographic boundaries and evaluation criteria which are the subject of this proceeding, it knew that the Koger Center had sufficient space available although the Koger Center's rental agent did not consider his rates to be competitive, and the Department knew of no other available space within the boundaries. The Department prepared its RSN, utilizing the geographic boundaries which DLES had used. As stated in the RSN and in the subsequent RFP, the geographic boundaries selected by the Department are as follows: Beginning at the intersection of Capital Circle and Governor's Court Road, proceed west on Governor's Court Road until it ends. Continue on a projection, due west, to the intersection with Blair Stone Road. Proceed south on Blair Stone Road to Paul Russell Road. Proceed east on Paul Russell Road to Monday Street. Continue east on Monday Street to Capital Circle. Go north on Capital Circle to Governor's Court Road, the point of beginning. The RSN also represented that the Department was seeking a new lease for 14,193 square feet, more or less, to house 55 employees from June 1, 1993, through March 31, 1997. The Department submitted its RSN to DMS where it was reviewed by Randall Baker. DMS is authorized to approve an RSN submitted by a state agency seeking to lease private office space. DMS checks to determine if there is space available in a state-owned building, and, if there is not, approves the request of an agency to lease private space. DMS also checks to verify that the amount of space being requested is appropriate for the number and types of employees who will occupy the desired space. DMS does not have the authority to approve or disapprove other components of the RSN; for example, DMS can only make recommendations regarding such items as geographic boundaries. Baker reviewed the RSN, determined that there was no space available in a state-owned building, determined that the amount of space requested was appropriate for the number and types of employees to be housed in the additional space, and determined that the RSN form was properly completed. Baker was concerned about the small geographic area from which the Department would accept bids. He noted, for example, that the northern boundary cuts through a residential area and is not a commercial thoroughfare. He checked the vendor list maintained by DMS and found that there were other properties which were available but which were outside the boundaries to be utilized by the Department. Based upon his experience, he knew that an expanded radius for bid submittal would be likely to obtain a better rental rate for the Department. Baker sent the Department a letter, dated December 30, 1992, which states as follows: While we are approving your Request for Space Needs, it should be noted that the boundaries are rather restricted and may eliminate bidders who have quality space available. The Department employees who received and/or reviewed that letter did not consider Baker's letter to be a criticism of the Department's desired geographic boundaries. Accepting the first half of the sentence and ignoring the second half of the sentence, the Department determined that Baker's letter represented approval of its RSN and the geographic boundaries set forth therein. Accordingly, on January 26, 1993, the Department issued its RFP for its proposed Lease No. 520:0062. The bid specifications contained in that RFP called for 14,193 square feet of office space, more or less, to be available for occupancy not later than June 1, 1993. In addition, the RFP specified that the office space must be located in the City of Tallahassee inside the same geographic boundaries described in the Department's RSN. The RFP also contained the criteria by which bid submittals would be evaluated. Those criteria are as follows: C. EVALUATION CRITERIA (AWARD FACTORS) The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below. Rental, using Total Present Value methodology for basic term of lease (see #D, General Provisions Items 3 and 4) applying the present value discount rate of 5.38 percent. (Weighing: 30) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space. (Weighing: 15) Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid. (Weighing: 15) Frequency and availability of satisfactory public transportation within one block of the offered space. (Not to exceed a weight of 10 award factors) (Weighing: 4) Availability of adequate dining facilities within one mile of the offered space. (Weighing: 5) Proximity of offered space to Department of Community Affairs, Secretary's Office, Rhyne Building, Koger Center. (Weighing: 25) Moving cost (furniture, equipment, etc.) (Weighing: 1) Aggregate square footage in street level space. (Weighing: 5) Total award factors = 100 The bid specifications contain no other guidelines or information on how each criterion will be evaluated or how points will be awarded within the point spread for each criterion. Other state agencies have utilized proximity as an evaluation criterion, and DMS considers proximity a legitimate and potentially important criterion. However, the proximity that is usually referred to is proximity to the clients being served, not, as in this case, proximity to the Office of the Secretary. At first blush, the bid specifications allocate the highest score to cost and the second highest score to the proximity of the leased space to the Rhyne Building. The evaluation criteria in the RFP place almost as much weight on proximity to the Office of the Secretary (criterion 6), assigning 25 points, as on the rental amount bid (criterion 1), assigning 30 points. Yet, criterion 2 with its weight of 15 points may also relate to proximity to the Office of the Secretary by its use of vague terms about the area surrounding the building and the efficient and economical conduct of the Department's operations. It may well be, therefore, that the proximity to the Office of the Secretary offers a maximum score of 40 points, while the amount of rent only offers 30 points. Some state agencies awarding points for proximity include in their bid specifications a grid showing how many points are to be awarded for each incremental distance that a space being offered is from the target. Such a grid discloses to potential bidders in advance the number of points a bidder could expect to receive, for example, for a building located ten miles from the target as compared with how many points a bidder would receive for a building located one mile away. The Department's RFP contains no such grid system. In the RFP under consideration herein, it is certain that Koger Center would receive the maximum number of points allowable for proximity since the Office of the Secretary is located there. There is no requirement that any other bidder receive any points for the proximity criterion. Upon reviewing the bid specifications under consideration herein, Anagram Corporation timely filed its notice of protest and its formal protest challenging those bid specifications. By operation of law, the timely filing of the formal protest has caused the bidding process to be stayed until the resolution of this proceeding. Leonard Pepper is an officer and shareholder in Anagram Corporation. He is also an officer, shareholder or partner in other business entities which offer commercial space for rent in Tallahassee. Pepper and his companies have been leasing buildings to the State for the last 25 years. During that period, Pepper and his companies have won bid awards approximately 18 to 20 times. Neither Pepper nor Anagram has available office space within the geographic boundaries contained within the RFP. The Anagram building recently vacated by the Energy Office is still available. It, together with two other small buildings on adjacent parcels also owned by Anagram, would have sufficient space to respond to the RFP, but they are outside the geographic area specified. Gemini Associates, one of Pepper's related businesses, owns two buildings in what is known as the old FDLE Complex on Adams Street midway between the Capitol and the Governor's Mansion. One of those buildings has 27,000 square feet available and the other has 32,000 square feet available. Those buildings are also outside the geographic boundary specified in the RFP. Pepper has already made arrangements, however, for Gemini Associates to transfer title to those buildings to Anagram if Anagram so desires. Accordingly, Petitioner owns or controls property which meets the bid specifications but for the geographic boundaries contained in the RFP. The more potential bidders there are in a bid solicitation process, the more competitive the bidders will be. Accordingly, expanding the radius from the restrictive boundaries contained in the Department's RFP is likely to result in obtaining a better rental rate. The Department's choice of geographic boundaries after ascertaining that only Koger Center was known to have available space although not at competitive rates, after learning that those boundaries on two different occasions had produced only two bids, and after being cautioned by DMS that the boundaries were restrictive enough to preclude available quality space, leads to only one reasonable conclusion: that the Department intended to award the bid to the Koger Center if Koger submitted a bid. The bid specifications drawn by the Department were likely to achieve the Department's intended goal to have all of its organizational components physically housed in close proximity to the Office of the Secretary in the Koger Center, despite the requirement that the Department solicit competitive bids.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Petitioner's protest to the bid specifications of proposed Lease No. 520:0062, declaring those bid specifications to be void, and terminating any bid solicitation process based upon those bid specifications. DONE and ENTERED this 12th day of May, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-0854BID Petitioner's proposed findings of fact numbered 1-6 and 9-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as not being supported by the weight of the competent, credible evidence in this cause. Petitioner's proposed finding of fact numbered 8 has been rejected as being subordinate to the issues involved herein. Petitioner's proposed findings of fact numbered 12-14 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed findings of fact numbered 1-7, 9-11, 14-17, 22, and 23 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 12 and 13 have been rejected as not being supported by the weight of the competent, credible evidence in this cause. Respondent's proposed finding of fact numbered 18 has been rejected as being subordinate to the issues involved herein. Respondent's proposed findings of fact numbered 19-21 and 24-28 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony. Respondent's proposed finding of fact numbered 8 has been rejected as been irrelevant to the issues herein. COPIES FURNISHED: A. Eugene Lewis, Esquire Marlow V. White, Esquire Lewis & White Post Office Box 1050 Tallahassee, Florida 32302 Alfred O. Bragg, III, Esquire Robert C. Byerts, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 William A. Friedlander, Esquire Friedlander & Mattox 3045 Tower Court Tallahassee, Florida 32303 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue The issue for consideration in this matter is whether Respondent's intended award of a lease for office space to Intervenor, Anthony Abraham Enterprise, is arbitrary and capricious and whether the proposal of the Petitioner, Adlee Developers, the current lessor, is responsive.
Findings Of Fact The parties agreed that on April 7, 1991, the Department issued an Invitation to Bid entitled, "Invitation To Bid For Existing Facilities State Of Florida Lease Number 590:2286, Dade County" This procurement was for the provision of 30,086 net rentable square feet to be used for office space in Dade County. A 3% variance was permitted. The facility was to house the District's Aging and Adult Services office which has been a tenant in Petitioner's building for several years and remained there during the pendancy of this protest process. According to the published advertisement, a pre-proposal conference was to be held on April 22, 1991, with all bids due by the bid opening to be held at 10:00 AM on May 30, 1991. The pre-bid conference was conducted by Philip A. Davis, then the District's facilities service manager and included not only a written agenda but also a review of the evaluation process by which each responsive bid would be examined. Petitioner asserts that the potential bidders were told, at that conference, that annual rental increases for the ten year lease period could not exceed five per cent (5%) and claims that Abraham's bid exceeded those guidelines. Thorough examination of the documentary evidence presented and the transcript of the proceedings, including a search for the reference thereto in Petitioner's counsel's Proposed Findings of Fact, fails to reveal any support for that assertion as to an increase limitation. The ITB for this procurement, in the section related to the evaluation of bids, indicated that pursuant to the provisions of Sections 5-3 and 5-11 of HRSM 70-1, dealing with the procurement of leased space, the responsive bids would be reviewed by an evaluation committee which would visit each proposed facility and apply the evaluation criteria to it in order to determine the lowest and best bidder. The evaluation criteria award factors listed in the ITB defined a successful bid as that one determined to be the lowest and best. That listing of evaluation criteria outlined among its categories associated fiscal costs, location, and facility. As to the first, the committee was to look at rental rates for both the basic term of the lease and the optional renewal period. The rates were to be evaluated using present value methodology applying the present value discount rate of 8.08% and rates proposed were to be within projected budgeting restraints of the Department. The total weight for the rental rate category was to be no more than 40 points with 35 points being the maximum for the basic term and 5 points for the option. Evaluation of the location was to be based on the effect of environmental factors including the physical characteristics of the building and the area surrounding it on the efficient and economical conduct of the operations planned therefor. This included the proximity of the facility to a preferred area such as a co-location, a courthouse, or main traffic areas. This item carried a maximum weight of 10 points. Also included in location were the frequency and availability of public transportation, (5 points); the proximity of the facility to the clients to be served, (5 points); the aesthetics of not only the building but the surrounding neighborhood, (10 points); and security issues, (10 points). The third major factor for evaluation was the facility itself and here the committee was to examine the susceptibility of the offered space to efficient layout and good utilization, (15 points), and the susceptibility of the building, parking area and property as a whole to possible future expansion, (5 points). In that regard, the Bid Submittal Form attached to the ITB called for the successful bidder whose property did not have appropriate zoning at the time of award to promptly seek zoning appropriate to the use classification of the property so that it might be used for the purposes contemplated by the department within 30 days. In the event that could not be done, the award could be rescinded by the department without liability. The committee could award up to 100 points. The basic philosophy of this procurement was found in paragraph 1 of the Bid Award section of the ITB which provided: The department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interest of the department and the state. After the bid opening, three of the four bids received, excluding Petitioner's which was initially determined to be non-responsive, were evaluated by the Department's bid evaluation committee according to the above point system which allowed no discretion or deviation from the formula in comparing rental rates between bidders. Once Petitioner's bid was thereafter determined to be responsive, it, too was evaluated by the committee. At this second evaluation session, relating to Adlee's bid only, the committee scored the bid and added its scores to the original score sheets upon which the other three bidders' scores had been placed. Abraham had the lowest rental rates for the basic term of the lease and received the maximum award of 35 points for that category while Adlee received points. Abraham received an additional 2.29 points for the optional period rates while Adlee got 0. In the other categories, "location" and "facility", which comprised 60% of the points, Adlee's facility was routinely rated superior to Abraham's except for the area related to susceptibility for future expansion in which Abraham was rated higher by a small amount. Overall, however, Adlee was awarded 620.41 points and Abraham 571.03 points and as a result, Adlee was rated by the committee to be the lowest and best bidder. RCL, another bidder, was rated second, with Abraham third and DCIC fourth. Thereafter, the committee chairman, Mr. VanWerne, forwarded the new (and complete) evaluation results to the District Administrator on June 14, 1991 by an addendum dated June 27, 1991 which recommended award of the bid to Petitioner, Adlee Developers. No award was made at the time. Several factors not pertinent to the issues here caused that delay. Among the major of these was pending legislation which would have transferred the operation needing this space to another agency. This transfer was never consummated, however. On or before March 20, 1992, the new District Administrator, Mr. Towey, who had been appointed to his office in December, 1991, and who was made aware that this procurement had not been finalized, requested all available material on it so that he could study it and make his decision based on his own review of the submission. As a part of his determination process, he visited and inspected both the Adlee and the Abraham sites. One of the factors he considered was what appeared to be the significant monetary discrepancy between the two pertinent bids. Initial calculations indicated that Abraham's bid was approximately $835,000.00 lower than Adlee's over the ten year basic term of the lease. This amount was subsequently determined to be somewhat lower but the discrepancy is still significant. Nonetheless, because of that difference, Mr. Towey called a meeting with the members of the evaluation committee which had evaluated the bidders and had recommended Adlee. His stated reason for calling that meeting was to allow him to hear their reasons for rating the submissions as they had done and to take that information into consideration when he made his final decision. None of the committee members who testified at the hearing at Petitioner's behest indicated any feelings of pressure or intimidation by Mr. Towey. During his meeting with the committee members, Mr. Towey went over several of the evaluation criteria award factors to determine the committee's rationale. Of major importance was the issue of cost, of the availability of the facility to transportation to and from the building, employee security and the ability to control access to the facility, and the availability of on-site parking without cost to both employees and clients. It appears the Adlee facility is a multistory building with some parking available on site and would be easier to control. In addition, it is closer to public transportation access points. There is, however, some indication that on-site parking for clients would not be free and the closest free parking is some distance away. According to Adlee's representative, this matter would not be a problem, however, as adequate, free on site parking, which apparently was not initially identified as a problem, could be provided in any new lease. The Abraham facility is a one story building surrounded by on-site parking. In that regard, however, at hearing, Petitioner raised the claim that the Abraham site did not, in actuality, provide adequate parking because the zoning requirements of the City of South Miami, the municipality in which the facility is located, did not permit the required number of parking spaces to accommodate the prospective need. Petitioner sought and received permission to depose the Building and Zoning Director for the city, Sonia Lama, who ultimately indicated that the Abraham site was grandfathered in under the old zoning rule and, thereby, had adequate parking available. In any case, had this not been true, under the terms of the ITB, any zoning deficiencies could have been corrected after award, or the award rescinded without penalty to the Department. After the meeting with the committee, Mr. Towey indicated he would probably go against the committee's recommendation. One of his reasons for doing so, as he indicated to them, was the appearance certain amenities in the facility would give. In the period between the time the committee met and Mr. Towey was ready to decide, there were several newspaper articles published in the Miami area which were negative in their approach to Department leasing policies and this publicity had an effect on him. In his response to a reporter's question, in fact, Mr. Towey indicated he would not permit the lease of any property which contained such amenities while he was District Director. There is some evidence that the wet bar referred to here was a sink and counter used by agency employees to make coffee. However, before making his decision, Mr. Towey also met with Herbert Adler of Adlee. Mr. Towey advised him he was concerned about the fact that the Adlee property provided a wet bar, a private bathroom and some other amenities in that suite of offices occupied by the Department. Mr. Towey was adamant in his public and private pronouncements on the subject that there would be no such amenities in HRS offices in his District while he was in charge. At the meeting in issue, Mr. Adler made it very clear he was willing to remove all the offending amenities to bring the space into conformity with Mr. Towey's standards. Mr. Towey obviously took Adler at his word as he did not consider this matter to be an issue when he evaluated the bids. Based on his independent evaluation of the proposals, and considering all the pertinent factors, Mr. Towey decided not to concur with the committee's recommendation and instead recommended to the Department's Office of General Services that the bid be awarded to Abraham. Because his recommendation differed from that of the evaluation committee, under the provisions of Section 5-13, HRS Manual 70-1, he was required to forward additional justification for his position. In his forwarding memorandum dated March 20, 1992 to Mr. King Davis of the Department's Office of General Services, Mr. Towey listed as his reasons for disagreement with the committee's recommendation, (1) the lower term cost of Abraham's bid, (2) his opinion that the one story floor plan of Abraham was more convenient and accessible to clients, and (3) the provision for ample free parking at the Abraham site as opposed to the limited parking at the Adlee building. Petitioner claims that Mr. Towey's justification for disagreement was improper because, (a) the rental difference he cited was not based on the ITB formula and did not consider the difference in square footage offered; (b) the rental rate comparison compared a proposed lease with an existing lease, not with a proposal; and (c) the reference to on-site parking referred to the situation under the existing lease with Adlee and not to what could occur under a new lease. The major factor in Mr. Towey's decision was the price differential between the two offerings. While the difference may not have been as great as presented initially by the department staff, even taken in its most conservative light of about half that amount, and considering the appropriate figures, the difference was still considerable and significant. In the continuing period of budgetary austerity under which state operations have been and must continue to be conducted, the financial consideration loomed large in his thinking. As for the parking situation, no change for the better was provided for in Adlee's proposal and even if it were, it was but one of several factors. When Mr. Towey's March 20, 1992 memorandum in justification of his disagreement was evaluated at the Office of General services, it was determined that his decision was rational and objectively justified. Thereafter, by letter dated April 2, 1992, the Office of General Services authorized District 11 to award the lease to Abraham and this decision was transmitted to all responsive bidders by letter dated April 7, 1992. It was this action which prompted Petitioner's protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered dismissing the protest by Adlee Developers, Inc., of the award of procurement No. 590:2286 to Anthony Abraham Enterprises. RECOMMENDED this 10th day of July, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2798 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted. Accepted that the pre-bid conference was held but reject the finding that a 5% limit was mentioned. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 11. Accepted and incorporated herein. 12. - 14. Accepted and incorporated herein. 15. - 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted except for the next to last sentence which is rejected. Accepted. Accepted and incorporated herein. Accepted but not probative of any material issue. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 30. Rejected. - 33. Accepted and incorporated herein. FOR THE RESPONDENT AND INTERVENOR: & 2. Accepted and incorporated herein. 3. - 5. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 16. Accepted and incorporated herein. 17. - 19. Accepted and incorporated herein. 20. & 21. Accepted and incorporated herein. Accepted and incorporated herein. - 25. Accepted. COPIES FURNISHED: Melinda S. Gentile, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell 200 East Broward Blvd. P.O. Box 1900 Fort Lauderdale, Florida 33302 Paul J. Martin, Esquire Department of Legal Affairs The Capitol - Suite 1501 Tallahassee, Florida 32399-1050 Peter W. Homer, Esquire Greer, Homer & Bonner, P.A. 3400 International Place 100 S.E. 2nd Street Miami, Florida 33131 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether the Department of Health and Services acted fraudulently, arbitrarily, capriciously, illegally or dishonestly in issuing an award of bid or HRS Lease No. 590:2069 to Harpaul S. Ohri.
Findings Of Fact Sometime before March, 1989, the Department of Health and Rehabilitative Services (HRS) requested and received approval from the Department of General Services (DGS) for additional office space to provide social services in the western portion of Orlando, Orange County, Florida, including a food stamp distribution office. HRS was authorized to procure, through competitive bidding, a lease for 17,250 net rentable square feet of existing office space, plus or minus 3 percent. The said lease was to provide for a full service period of seven years and two options to renew for three years each at specified rates, with occupancy no later than December 1, 1989 or 175 days after the bid award is finalized. The geographic area designated in the bid package for the office space was limited to the following area of Orange County, Florida: Beginning at the intersection of Colonial Drive and Kirkman Road to the intersection of L.B. McLeod Road, then east on L.B. McLeod Road to the, intersection of Rio Grande Avenue then north on Rio Grande Avenue to the, intersection of Colombia Street,, then east on Colombia Street to Interstate 4, then north on Interstate 4 to the intersection of Colonial Drive, then west on Colonial Drive to the point of Beginning. Public notice that HRS was seeking competitive bids was given and HRS prepared a document entitled Invitation to Bid for Existing Office Space (ITB), which set forth in detail all of HRS requirements. The purpose of the ITB was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. Specific areas of importance to Respondent as reflected in the ITB and addressed by the evidence herein were as follows: 17,250 net rentable square feet (plus or minus 3 percent) of existing office space. General office use for use, as a client service center. Seven year term with two options to renew of three years each. 120 off-street, on-site, full size parking spots designated exclusively for use of Department employees and clients, suitably paved and lined, with a minimum of two for the handicapped. Availability of public transportation within reasonable proximity. Availability to adequate dining facilities within two miles. Photographs of the exterior front of the facility, along with documentation of present facility configuration and parking areas including access and egress to public roadways. Availability of elevator for multi-story use. i). Space requirement criteria: Minimum telephone requirements. Back-up interior emergency lighting. Three separate sets of rest rooms, male and female, one meeting the needs of the handicapped General security requirements. Specific security requirements for food stamp distribution center. Window covering over exterior widows to allow both sunlight and energy control; if bidded space without existing windows, then all rooms comprising the exterior of the building would require windows measuring approximately 24 x 36, all secured and inoperable. Full Service including all utilities and janitorial. The evaluation factors and their relative weights were stated in the ITB as follows: Evaluation Criteria The successful bid will be that one determined to be the lowest and best. All bids will be evaluated on the award factors enumerated below: Associated Fiscal Costs Rental rates for basic term of lease Evaluated using present value methodology by application of the present value discount rate of 8.69 percent. (Weighting: 25) Rental rates for optional renewal of terms of lease. Rates proposed are within projected budgeting restraints of the department. (Weighting: 10) Associated moving costs, i.e., furniture, equipment, telephone systems, etc,. (Weighting: 5) Location Proximity of offered space in central or preferred area of map boundaries. (Weighting: 10) Frequency and availability of satisfactory public transportation within proximity of the offered space. (Weighting: 10) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of the departmental operations planned for the requested space. (Weighting: 10) Facility Susceptibility of design of the space offered to efficient layout and good utilization. (Weighting 15) Provision of the aggregate square footage in a single building. Proposals will be con- sidered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. (Weighting: 10) TOTAL POSSIBLE 100 percent The bid package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Sealed bids were submitted by three bidders, Petitioner, Harpaul S. Ohri and Kensington Gardens Builders Corp. The bids were opened on April 25, 1989, and Ernie Wilson, HRS District 7 Facilities Services Manager, determined that all three bids were responsive, and within the mandatory geographical area designated in the bid package. The District Administrator appointed a bid evaluation committee to review and grade, the responsive bids under the criteria established in the bid package, and to recommend to him the committees choice of the lowest and best bid. Four individuals who were familiar with the type of work to be done in the proposed space and familiar with the bid process were appointed to the Committee. On or about May 1, 1990 the bid evaluation committee determined that the bid of Harpaul S. Ohri was the "lowest and best bid" and submitted its determination, in writing, to the District Administrator who, subsequently approved the selection. On or about June 26, 1989, on behalf of the Department, Ernie Wilson, Facilities Services Manager, notified the bidders of the Departments intent to award the bid to Harpaul S. Ohri, as being in the best interest of the Department. The bid evaluation committee consisted of four representatives of the Department who visited two of the three bidders sites and questioned the bidders representatives. The members of the committee were familiar with the Petitioners site from previous experience. They choose not to make an on-site visit prior to completing the bid evaluation sheet, although instructed to do so on the Evaluation Committee Duties and Responsibilities/Real Property, Leasing instruction sheet. Each committee member completed an evaluation sheet and gave a higher total score to Mr. Ohri. The three major bid evaluation criteria were Fiscal Cost, Location and Facility. Under the Fiscal Cost criterion were three sub-categories: Rental Rates, Renewal Rates, and Moving Costs. For Rental Rates, Petitioner received an average of 22.7 points out of 30 possible,, while Ohri received 21.7, and Kensington Gardens received 23.7 points. The points were individually assessed by the evaluation committee, after the rental rates were compared by Ernie Wilson based on the present value analysis of bidders proposed rates. For Renewal Rates, each of the bidders, including Petitioner, received 5 points out of 10 possible. The present value analysis was not applied, as was noted in the ITB. However, even a cursory examination of the renewal rates submitted by the bidders shows that there is a 15 percent to 33 percent yearly differential in the rates, with the Petitioners rates as the lowest and Kensington Gardens as the highest. Although the committee assigned all three bidders an equal rating, the renewal rates submitted by the bidders were not equal should the Department wish to exercise its options, the rates submitted by Petitioner were substantially lower than the other two bidders and would result in a cost savings to the Department of several hundred thousand of dollars. The award factor points should not have been awarded equally. For Moving Costs, Petitioner received 5 points on each of the committee members sheets, while Ohri received 4 points and Kensington Gardens received, an average of 3.7 points. The maximum points possible was 5 points. Petitioner was awarded the maximum points because HRS is presently in the same building and no moving costs would be experienced. The other two bidders were awarded 4 points each by committee members. That determination was based on each members personal experiences. No cost or time lost data was provided or requested. The LOCATION criterion also had three sub-categories: Proximity to other governmental agencies - 10 points - with all three bidders receiving the same rating; Public Transportation -10 points - with all three ,bidders, receiving the same rating; and Environmental Factors - 10 points - out of which Petitioner received an average of 5.7 points; Ohri - 9.7 points and Kensington Gardens - 6.5 points. In considering the proximity to other governmental agencies of each of the facilities being considered, the committee relied on their own knowledge of the area. They determined that since each was within the geographical area designated in the ITB, each was equally distant from the most frequently visited government agencies in the vicinity. However, Petitioners facility is the most centrally located of the three facilities offered, while the two other facilities were considerably distant from other government agencies. The award factor points should not have been awarded equally. For Public Transportation, the committee determined that local bus service went near each of the three facilities. They were neither provided, nor did they request, route maps, schedules or passenger capacity for buses servicing each facility. Petitioners facility is centralized in the area served within the bid district, and serviced by, numerous bus lines which pass near the facility ten times per hour. The bus service to the other two facilities are limited to four buses per hour, with buses having a smaller capacity. In addition, most clients would be required to travel to the central bus terminal and transfer to a different route in order, to reach the Ohri or Kensington Gardens facilities, making bus transportation a very time-consuming process. No other form of transportation is available, except for taxi service. In addition, in order for a client to walk from the nearest bus stop to the Ohri facility, a person would cross two heavily traveled six lane streets and then walk across an open shopping center parking lot. This would require approximately a fifteen minute walk. In order to reach Petitioners facility, a client would require approximately a five minute walk utilizing public sidewalks. The committee did not consider these facts in its evaluation. The award factor points should not have been awarded equally. (c)(1). For Environmental Factors, the committee considered each buildings physical characteristics and the surrounding area. The committee, in their letter to the District Administrator, dated May 1, 1989, identified this category as "a very critical area for the new lease." The letter also stated: "The committee took the following into account when evaluating this section: Cleanliness of the building aid surrounding areas. Lack of traffic congestion by motorized vehicles close to the facility. Easiness of getting to and from the facility by vehicle. Safety for clients and staff walking to and from the facility. Upkeep of the surrounding buildings or other sections of the bidders building." The following was also taken into account when evaluating this section, but was not so stated in the letter. At least one committee member believed the lack of window space in Petitioners facility was disabling to his bid, and that the willingness of the Ohri representative to install windows on exterior walls was a significant factor in her determination of award. At least one committee member indicated that future expansion was a substantial factor in her favoring the Ohri bid, and that there was janitorial and security problems at Petitioners facility. The committee received no other information other than the committee members opinion regarding the same. The committee as a whole erroneously believed that the extra square footage visible at the Ohri facility at the time of their inspection would necessarily be available to HRS if and when it might expand its offices. Future expansion was specifically removed from the ITB at the pre-bid conference and it was clearly erroneous for them to have included this factor in their bid evaluation. The ITB specifically calls for the installation of exterior windows by the winning bid prior to occupancy. However, none of the committee members reviewed the ITB or the actual bids submitted. They relied primarily on the synopsis of the bids prepared by Ernie Wilson. The ITB states substantial general and specific security requirements in detail; however, the evaluation criteria forms do not provide a category for evaluating security other than generally under the sub-category of environmental factors. The ITB, under General Specifications and Requirements, called for the availability of adequate dining facilities within two miles of the proposed facility. The evaluation criteria did not provide a category for the committee to rate dining facility availability. In consideration of the environmental factors, the committee overlooked or failed to consider a hazardous unfenced high voltage transmission station adjacent to the Ohri facility. In addition, the photographs submitted by Ohri as the front of the building (as required by the ITB) are in fact the rear of the building which was not offered as part of the proposed leased facility. Of the three sub-categories under FACILITY, out of 15 possible points, Petitioner received an average rating of 9.5, Ohri received an average of 13.7 and Kensington Gardens received 11.2 for Layout/Utilization. Ohri received the most points because his building configuration was a, shell and was more flexible and could be reconfigured for more efficient layout to suit the Departments needs. All three bidders submitted proposals wherein the total square footage of rentable space was to be contained in a Single Building. Therefore, all three bidders received the maximum 10 points. A maximum 5 points was provided for facilities with Street-level space. All three bidders were awarded the maximum 5 points. However, a portion of Petitioners space was offered on the second floor, a fact which the committee overlooked. The Petitioner should not have received the full 5 points for having street-level space. The unanimous recommendation of the evaluation was to award the lease to Ohri. In reaching that conclusion, the committee did not properly utilize the weighted bid criteria and, in addition, included improper bid considerations in their evaluation of the three facilities. Some of the reasons given by the committee for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. However, others were erroneous and improper.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Secretary of the Department of Health and Rehabilitative Services enter a Final Order rejecting all bids for lease number 590:2069 and issue a new invitation to bid. DONE AND ENTERED this 12th day of February, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact submitted by the Petitioner: Accepted: paragraphs 1, 2, 3, 5, 6, 7, 9 (in substance, except for subparagraphs f, g, j and k which are not relevant), 10 (in substance), 12(a), (b), (f-in substance), (g-in substance), (h-in substance), (j), (k-in substance), (l-in substance), (p-in substance). Rejected: Not relevant: paragraphs 4, 12(c), (d), (e), (m), (n), (o), (p- the proposed future location of the Greyhound Station; insure wooded area nearby), (q), (r). Argument: paragraphs 11 and 13. Procedural matters, covered in the preliminary statement: paragraphs 8 and 14. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Terrence W. Ackert, Esquire 201 East Pine Street Suite 1402 Orlando, Florida James Sawyer, Jr., Esquire District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Findings based on stipulation The School Board of Broward County, Florida, ["Board"] issued bid number 94-307D [Lease of School Board Owned Parking Lot - Term Contract] on the 22nd day of November, 1993. Three bidders responded to the invitation to bid. They were: Bliss Parking, Inc., a Florida Corporation ("Bliss"); Fort Lauderdale Transportation, Inc., d/b/a USA Parking Systems ("USA"); and Carl A. Borge. An initial review of the tabulations of the bids indicated that Bliss and USA had submitted the identical percentage of shared revenue to the Board in their respective bids. After the review of the bids, Board staff posted a recommendation to award the bid to USA. [See the "remarks" portion of Exhibit B.] A bid protest was filed by Bliss because of the "remarks" portion of Exhibit B. After a review of Bliss' bid protest, Board staff amended its recommendation to reject all bids because of the issues raised in Bliss' protest. After Board staff notified all bidders of this amended recommendation, USA filed a notice and formal protest. The Board, at its meeting on March 1, 1994, heard the presentation of USA and Board staff. The Board, after deliberating the matter, deferred the item until the meeting of March 15, 1994, wherein seven Board members would be present. At the March 15, 1994, Board meeting, by a vote of 4 to 3, the Board granted USA's protest and awarded the bid to USA whom the Board had determined was the highest bidder meeting bid specifications. All bidders were notified of the Board's action and on the 16th day of March 1994 Bliss timely filed its notice of protest and its formal written protest. Bliss appeared with counsel before the Board on the 5th day of April 1994. After considering arguments of counsel for Bliss and reviewing the material in Agenda Item H-1 and in consideration of its previous actions, it voted to reject Bliss' protest seeking the rejection of all bids received and re-bidding of the item. Bliss subsequently requested a formal hearing under Chapter 120.57, Florida Statutes. Findings based on evidence adduced at hearing The General Conditions portion of the Invitation To Bid includes the following provision: INTERPRETATIONS: Any questions concerning conditions and specifications must be submitted in writing and received by the Department of Purchasing no later than five (5) working days prior to the original bid opening date. If necessary, an Addendum will be issued. A related provision in the Special Conditions portion of the Invitation To Bid reads as follows: 21. INFORMATION: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mrs. Sharon Swan, Purchasing Agent, Purchasing Department, (305) 765-6086 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mrs. Swan nor any employee of the SBBC is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Questions should be submitted in accordance with General Condition #7. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. The Special Conditions portion of the subject Invitation To Bid includes the following provisions: REFERENCES: A minimum of three (3) references must be provided by completing page 14 of the bid. Failure to provide references with the bid or within five (5) days of request by the Purchasing Department will be reason for disqualification of bid submitted. All references will be called. SBBC reserves the right to reject bid based on information provided by references. Page 14 of the Invitation To Bid has three sections, each of which reads as follows: COMPANY NAME: STREET ADDRESS: CITY: STATE: ZIP: TELEPHONE NUMBER: CONTACT PERSON'S NAME: NUMBER OF PARKING SPACES: LENGTH OF CONTRACT: At page 12 of the Invitation To Bid, the following note appears under the Bid Summary Sheet portion of the document: "NOTE: Calculation of high bidder shall be the bidder offering the highest percent of shared revenue meeting all specifications and conditions of this bid." The Special Conditions portion of the Invitation To Bid also contains a procedure for resolving tie bids, which reads as follows, in pertinent part: TIE BID PROCEDURES: When identical prices are received from two or more vendors and all other factors are equal, priority for award shall be given to vendors in the following sequence: A business that certifies that it has implemented a drug free work place program shall be given preference in accordance with the provisions of Chapter 287.087, Florida Statutes; The Broward County Certified Minority/ Women Business Enterprise vendor; The Palm Beach or Dade County Certified Minority/Women Business Enterprise vendor; The Florida Certified Minority/Women Business Enterprise vendor; The Broward County vendor, other than a Minority/Women Business Enterprise vendor: The Palm Beach or Dade County vendor, other than a Minority/Women Business Enterprise vendor; The Florida vendor, other than a Minority/Women Business Enterprise vendor. If application of the above criteria does not indicate a priority for award, the award will be decided by a coin toss. The coin toss shall be held publicly in the Purchasing Department; the tie low bid vendors invited to be present as witnesses. The Petitioner filled out all three sections on page 14 of the Invitation To Bid and submitted that page with its bid. The three references listed by the Petitioner were companies for whom the Petitioner provided parking services or parking facilities, but none of the three references listed by the Petitioner was a land owner from whom the Petitioner leased land for the operation of a parking facility. Mr. Arthur Smith Hanby is the Director of Purchasing for the School Board of Broward County. In that capacity he is in charge of the bidding process for the School Board. Specifically, he was in charge of the bidding process for the subject project. In the course of evaluating the bids on the subject project, the evaluation committee reached the conclusion that there was a problem with the bid submitted by the Petitioner with respect to the references listed in the Petitioner's bid. In the original bid tabulation and recommendation posted on January 4, 1994, the recommendation was that the contract be awarded to the Intervenor, whose bid amount tied with the Petitioner's bid amount. 4/ The reasons for the recommendation were described as follows in the "remarks" portion of the tabulation and recommendation form: REJECT BID FROM BLISS PARKING, INC. REFERENCES WERE GIVEN ON PAGE 14 OF BID. ALL REFERENCES WERE CALLED. BASED UPON INFORMATION PROVIDED BY THESE REFERENCES AND IN ACCORDANCE WITH SPECIAL CONDITION #10, IT IS RECOMMENDED THAT THE BID FROM BLISS PARKING, INC. BE REJECTED. EVALUATION OF THIS BID CEASED AT THIS TIME. THERE MAY BE ADDITIONAL REASONS WHY THIS BID COULD NOT BE ACCEPTED. The sole reason for the rejection of the Petitioner's bid was that the references listed by the Petitioner were not the types of references the evaluation committee wanted to receive. The evaluation committee wanted references from entities who, like the School Board, were land owners who had leased land to a parking lot operator. The evaluation committee was of the opinion that references from other sources would not adequately protect the interests of the School Board. There is nothing in the Invitation To Bid that addresses the issue of who should be listed as references. Specifically, there is nothing in the Invitation To Bid requiring that references be submitted from land owners who had leased land to a parking lot operator. At the time of the issuance of the subject Invitation To Bid, the Petitioner was operating the subject parking lot for the School Board. There were no material differences in the bids submitted by the Petitioner and the Intervenor other than the differences in the types of references they listed. The Petitioner's references who were contacted did not provide any adverse information about the Petitioner. The evaluation committee spoke to two of the references listed by the Petitioner, but did not speak to the third listed reference. The third reference listed by the Petitioner was a court reporting firm located across the street from the location of the subject parking lot. The evaluation committee did not speak to anyone at the court reporting office because the telephone number listed for that reference was not a working number. The evaluation committee made an unsuccessful attempt to locate the telephone number of the court reporting firm in the telephone book.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Petitioner's bid is responsive to the Invitation To Bid and that the School Board then take one of the courses of action described in paragraph 26, above. DONE AND ENTERED this 23rd day of June 1994 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June 1994.
Findings Of Fact In June 1987 The School Board of Lee County, Florida invited the submission of sealed bids for grading and drainage improvements at the new Multipurpose Building at Fort Myers High School. In addition to requiring grading, the project involves the erection or placement of structures in the nature of a drainage system consisting of culverts, pipes, and concrete inlets with grates, to be tied into the existing drainage system off School Board property across a county right-of-way into a culvert for discharge across the street, and which on School Board property attaches to and becomes a part of an existing building. Sealed bids were submitted by Systems Technologies Co. of Ft. Myers, Inc. (hereinafter "Systems Technologies") and by Ledo Lines, Inc. Respondent determined Systems Technologies to be the lowest responsible bidder and advised Ledo Lines, Inc., that it would be awarding the contract to Systems Technologies. Warren W. Hunt is the president and the qualifying agent of Systems Technologies. Hunt has an underground utilities contractor's license which has been inactive since it was obtained by him in March, 1986, being inactive therefore both at the time that Hunt submitted the bid on behalf of Systems Technologies and at the time of the final hearing in this cause. The inactive status results from Hunt's failure to complete the license process with the State of Florida. Since Hunt's license was inactive due to being incomplete at the times material to this cause, neither Hunt nor Systems Technologies was a licensed contractor and Systems Technologies was not a responsible bidder at the time that the bid was submitted. The contract specifications set forth the method by which the bids would be evaluated. Paragraph numbered 2.9 on page PD-4 provides as follows: Comparison of Proposals - Proposals will be compared on the basis of total computed price for each division of work. Total computed price equals the sum of the prices for the lump sum Contract Item, plus the sum of the total prices for the unit price Contract Items for each Division of work. The total price for each unit price Contract Item will be obtained by multiplying the estimated quantity of each item by the correspond- ing unit price set forth in the Proposal form[.] That provision, accordingly, requires that the bids be evaluated based upon the sum of all line items rather than based only upon their total or "bottom line" figure. Respondent's Director of Facilities Planning admitted that he failed to comply with this provision of the contract specifications in evaluating the two bids submitted to him and in determining that the bid should be awarded to Systems Technologies. In Systems Technologies' bid, the sum of the prices for the lump sum contract items plus the sum of the total prices for the unit price contract items amounts to $30,109.60. However, in submitting its bid Systems Technologies incorrectly added its column of figures and incorrectly computed its Total Contract Price (Estimated) to be $29,768. Since the contract specifications envision a unit price bid rather than a lump sum bid, the amount of the bid of Systems Technologies is in fact the amount of $30,109.60. The bid of Ledo Lines, Inc., is for $29,913.84. Ledo Lines, Inc., is, therefore, the low bidder on this project. The contract specifications when read in their entirety clearly require that the low bid be determined by adding the unit price and lump sum components rather than relying on the lump sum "bottom line" figure shown for Total Contract Price (Estimated). Employees of the consultant who Prepared the specifications testified that they expect to be able to hold the bidders to the unit prices but not to the Total Contract Price (Estimated) because the estimated quantities may change. Thus, the evidence is uncontroverted that the determination of low bidder pursuant to the contract specifications is based upon the total of the unit price provisions and not by the single figure at the bottom of the page which adds those individual prices and which was added erroneously in this case by Systems Technologies. In their Prehearing Stipulation, the parties stipulated that the School Board is subject to mandatory competitive bidding for this project. They further stipulated that where there is mandatory competitive bidding, the contract must be awarded to the lowest qualified, responsive bidder. Since Systems Technologies is neither a qualified, responsive bidder nor the lowest bidder, it is clear that Ledo Lines, Inc., is the lowest responsive bidder for the project in question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered determining Ledo Lines, Inc., to be the lowest responsive bidder and awarding the contract for grading and drainage improvements to the Multi- purpose Building at Fort Myers High School to Ledo Lines, Inc. DONE and RECOMMENDED this 25th day of September, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1987. COPIES FURNISHED: James E. Melvin, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901 E. G. Couse, Esquire Post office Drawer 1647 Fort Myers, Florida 33902 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
The Issue Whether the Petitioner was the lowest responsive bidder in Lease No. 590:1975, and therefore entitled to the contract award.
Findings Of Fact In 1988, the Department made the determination that it would not exercise its option on leased space owned by the Petitioner Dyess, in Clewiston, Florida. Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. The Department included Dyess in its solicitations. He was sent an Invitation to Bid for Existing Facilities by the Department. This bid package contained all of the bid documents for the bid referred to as Lease Number 590:1975. The Invitation to Bid was issued by the Department for approximately 7,962 square feet of net rentable office space in Clewiston, Florida. The invitation was prepared using HRS Facilities Form R01-87. The form used by the Department for soliciting and accepting competitive proposals for the leased space was required to comply with all conditions and requirements adopted by the Department of General Services, as set forth in Rule 13M-1.015(3)(e), Florida Administrative Code. The Department of General Services is the agency which administers real property leasing for the State of Florida for leased space of 2,000 square feet or more in privately owned buildings. During the bidders' conference held on April 26, 1988, Mr. Michael J. Sedgwick, the agency's representative, was questioned about the agency's interpretation of the term "dry and capable of being physically measured" which is set forth on page two of the Invitation to Bid and page three of the Bid Submittal Form. Page two of the Invitation to Bid is a glossary which defines various terms used within the bid documents. The term "existing building" is defined as follows: To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rental square footage at the time of the bid submittal. Paragraph 10 on page three of the Bid Submittal Form reiterates the definition of an "existing building" as set forth in the Invitation to Bid. The language in the bid documents which defines the term "existing building" is identical to the language in Form BPN 4136, which has been promulgated as a rule by the Department of General Services as the format for specifications for the solicitation of leased spaces by the State of Florida. In response to the request for an interpretation, Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for the Department in Tallahassee, and obtained the following definition: "Dry and measurable" consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress. The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988. The Petitioner timely submitted a bid in Lease Number 590:1975 on the Department's Bid submittal Form by May 24, 1988. On page three of this form, each bidder was required to acknowledge the bid requirements contained on that page by placing his initials in the bottom right hand corner. The Petitioner Dyess acknowledged the requirement that the proposed space must be an "existing building" at the time of the bid submittal. On May 24, 1988, the date of the bid opening, Petitioner's building did not meet the requirements of an existing building as defined within the bid documents or the Department's verbal clarification of the definition. The building did not have a roof, a slab, or a valid building permit. After the bids were opened, the District VIII Bid Evaluation Committee visited each of the proposed lease locations. When the Petitioner's proposed location was reviewed by the committee two days after the close of bids, the addition was found to consist of the following: two partially completed block walls which connected the two existing buildings. The existing buildings were still intact, but it was apparent that an expansion was taking place, and that the completed project would be one building. A slab had not yet been poured in the addition, and it was without a roof. The plans submitted to the Department with the Petitioner's bid suggested that this expansion was capable of producing the square footage required by the Department. The City of Clewiston was aware of the Petitioner's expansion project, but he was not required by this authority to have a building permit at the time the project was viewed by the committee and evaluated by the Department. The Petitioner's bid was rejected by the Department because, on the date of the bid submittal, the proposed addition was not an "existing building" as defined by the bid documents and the further verbal interpretation by the agency. The bid submitted by the Intervenor Tibbetts did not contain the complete contract for the purchase of the property. However, the right to purchase was evidenced by a document submitted with the bid. Full Disclosure Statements of Ownership are not required under Rule 13N-1.015, Florida Administrative Code, until after a bid is awarded. The property was not properly zoned at the time of the Intervenor Tibbetts' bid submittal.
The Issue The issue for determination is whether the School Board of Broward County, Florida (“SBBC”) improperly awarded a contract pursuant to Invitation to Bid No. 21-244H for “Photo ID Card and Printing System Supplies” (“ITB”) to Intervenor, Identicard Systems, Inc. (“Identicard"). Petitioner Plasco, Inc. ("Plasco") contends that the recommended award to Identicard is clearly erroneous, contrary to competition, arbitrary, capricious, or contrary to the specifications of the ITB. The resolution of the ultimate issue turns on whether the uninitialed corrected figures contained within Plasco’s bid response for both the unit price and the total cost of Item 1(N) were a material deviation from the bid specifications requiring rejection of the bid.
Findings Of Fact SBBC desired to procure photo identification card and printing systems supplies to prepare identification cards for school district employees, students in selected schools, and outside vendors. SBBC has adopted School Board Policy 3320 which governs its purchasing of goods and services. On or about April 30, 2001, SBBC released the ITB. General Condition 1(c) of the ITB stated in pertinent part: EXECUTION OF BID: . . . If a correction is necessary, draw a single line through the entered figure and enter the corrected figure or use an opaque correction fluid. All corrections must be initialed by the person signing the bid even when using opaque correction fluid. Any illegible entries, pencil bids or corrections not initialed will not be tabulated. . . . General Condition 2 of the ITB stated in pertinent part: PRICES QUOTED: . . . Give both unit price and extended total. Prices must be stated in units to quantity specified in the bidding specification. In case of discrepancy in computing the amount of the bid, the Unit Price quoted will govern. . . . General Condition 7 of the ITB stated in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to withdraw this bid at any time prior to the time and date specified for the bid opening; to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder. . . . All awards made as a result of this bid shall conform to applicable Florida Statutes. Special Condition 3 of the ITB states as follows: AWARD: Bid shall be awarded by GROUP to the lowest responsive and responsible bidder meeting specifications, terms and conditions. Therefore, it is necessary to bid on every item in the group, in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC may need to order an individual component within a group. All items within a group must have an individual cost. Failure to state the individual cost for an item within a group will result in disqualification of the group. Bidder should carefully consider each item for conformance to specifications. In the event that one item in the group does not meet the specifications, the entire group will be disqualified. On June 7, 2001, Plasco, Identicard, and seven other companies submitted responses to the ITB. After receiving the bid responses, SBBC’s Purchasing Department examined and computed the figures submitted by each bidder for each item listed in the Bid Summary Sheets. For each item, a quantity figure had been supplied by SBBC in the bid specifications. The bid was structured so that the specified quantity would be multiplied by a unit price furnished by the bidder on its Bid Summary Sheets. The bidder was also required to furnish a total cost for each individual item in its Bid Summary Sheets. The bids submitted by both Identicard and Plasco contained a number of uninitialed corrections. Although such uninitialed corrections violated General Condition 1(c), the SBBC properly deemed such errors to be immaterial in every instance where only one figure per specified Item was tainted by a violation of this General Condition. For example, where a particular component of the bid required the bidder to specify a unit cost and a total cost for the quantity of goods specified in that particular component, the SBBC was willing to perform the mathematical calculation necessary to confirm the correctness of the uninitialed figure. As applied to this particular type of uninitialed correction, SBBC staff would multiply or divide the quantity specified in the ITB by the "untainted" number provided by the bidder to confirm the correctness of the uninitialed corrected figure submitted in violation of General Condition 1(c). The Bid Summary Sheet submitted by Plasco for Item 1(N) contained a different violation of General Condition 1(c), to wit, it contained two uninitialed corrected figures. The corrections were accomplished through the use of correction fluid. Plasco's Bid Summary Sheet with respect to Item 1(N) stated in pertinent part as follows: UNIT TOTAL PRICE COST * * * FARGO ACCESSORIES N. 3 each 81524 Thermal Printhead $389.35 ea $1,168.05 for Cheetah/Cheetah II/ Pro/Pro-L/Presto! Quatro/ Presto! System The Unit Price of $389.35 as well as the Total Cost of $1,168.05 for Item 1(N) set forth in Plasco’s bid was a corrected price and was not initialed by the person signing the bid on behalf of Plasco. Notwithstanding this "double correction," it was possible within the four corners of Plasco's bid to verify the unit price of the Item and thus to confirm, mathematically, a total price. The Item in question, a printhead, was the subject of four additional bid items. In each instance, Plasco bid $389.35 per printhead, a number which matched Plasco's corrected figure in Item 1(N). SBBC was not misled by Plasco's failure to initial either or both corrections in Item 1(N). Correctly using Plasco's uninitialed corrections as set forth in Item 1(N), SBBC accurately performed the calculations necessary to verify Plasco's bid; therefore the Bid Summary prepared by SBBC staff accurately reflected that Plasco was the low bidder at $93,449.68. The responses to the ITB were reviewed by school district staff on or about June 7, 2001. The so-called "double correction" in Item 1(N) was SBBC's sole basis for its decision to reject Plasco's low bid, and to recommend that Identicard's next lowest bid of $100,720.12 be accepted. At no time relevant to this case did SBBC have a written policy which compels that any bid containing two uninitialed corrections be excluded from consideration. The evidence establishes that SBBC was able to and in fact did accurately account for the individual numbers contained in Item 1(N), as well as any and all other numbers affected by the numbers supplied by Plasco in response to Item 1(N). Under the facts of this case, Plasco's error in failing to initial the corrections in Item 1(N) was immaterial. SBBC maintains that it must enforce its unwritten policy of excluding bids containing two uninitialed corrections within a single item in order to protect the integrity of the bid process. There is no evidence that the integrity of the bid process in this case was compromised in any way. No good faith argument was made that there was any type of collusion or improper conduct in connection with this bid. Instead, the evidence establishes that Plasco's bid was responsive and responsible in all material respects, inasmuch as SBBC staff was able to accurately ascertain, to the penny, the amount of Plasco's low bid. Plasco timely filed its Notice of Protest with SBBC on June 18, 2001. Plasco timely filed a Formal Written Protest with SBBC on June 27, 2001. Pursuant to Section 120.57(3)(c), Florida Statutes, and School Board Policy 3320, SBBC provided an opportunity for Plasco to meet with the agency’s Bid Protest Committee in an attempt to resolve the protest by mutual agreement. The Bid Protest Committee conducted a duly-noticed public meeting with Petitioner Plasco on July 9, 2001. Upon consideration, the Bid Protest Committee rejected the protest of Plasco and upheld the recommendation to award the bid to Identicard.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida, enter a Final Order awarding the ITB to Plasco, and, upon submission of documentation contemplated in the parties' stipulation regarding costs, assess costs of this action in Plasco's favor in its Final Order pursuant to School Board Policy 3320, VI (n). DONE AND ENTERED this 9th day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 9th day of October, 2001. COPIES FURNISHED: Mitchell W. Berger, Esquire David L. Ferguson, Esquire Berger Singerman 350 East Las Olas Boulevard Suite 1000 Fort Lauderdale, Florida 33301 Robert Paul Vignola, Esquire Steven H. Feldman, Esquire Broward County School Board K.C. Wright Administration Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Mark A. Emanuele, Esquire Panza, Maurer, Maynard & Neel, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308 Dr. Franklin Till, Jr., Superintendent Broward County School Board K.C. Wright Administration Building 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Department of Corrections, by advertisement in a Jackson County, Florida newspaper on March 27, March 30 and April 6, 1988, sought bids for the provision of office space for the Department's offices in Marianna. The bid specifications, including, as pertinent hereto; minimum square footage, a requirement that Energy Performance Index calculations and certification thereof by an architect or engineer be shown, and the requirement that all parking spaces be on site, was made available to potential bidders on March 28. A pre-proposal conference of potential bidders was held on March 31 to explain and clarify the specifications. Bids were submitted by the two Petitioners, and the bids were opened on April 14, 1988. On or about April 19 or 20, Wendell Beall and Robert Sandall evaluated the bid proposals and made a preliminary determination that the Rainbow bid was non-responsive in three areas. It was determined that the required square footage depicted on the Rainbow bid was inadequate; the parking provision was inadequate in that not enough "on-site" spaces were shown on the bid; and the Energy Performance Index calculations and certification by an architect or engineer was not supplied. On April 21, 1988, the lease committee, chaired by Thomas Young, met and reviewed both bid packages submitted by the Petitioners and affirmed Mr. Beall and Mr. Sandall's findings, with the result that the agency decided to award the contract to Brooks. The bid specifications required a minimum of 12,756 net square feet of rentable office space. Only 11,862 square feet could be identified as net rentable square footage on the Rainbow bid's floor plan, as calculated in compliance with the "standard method of space measurement." This square footage calculation was consistent with the actual measurements of the building made by Mr. Beall himself. The Brooks' bid depicted an adequate amount of square footage in compliance with the specifications. Mr. Beall calculated the net rentable interior square footage by utilizing the standard method of space measurement provided for in the rules of the Department of General Services and, after deducting nonusable, nonrentable space under that standard, rule mandated method, he arrived at the net rentable office space figure of 11,862 square feet. Rainbow at no time has presented any conflicting measurement or alleged any specific errors in Mr. Beall's calculations. Item A-10 of the bid specifications requires a floor plan to be submitted showing the present configurations of the building, with measurements that equate to the required net rentable square footage. This means that the minimum square footage must be shown in the floor plan attached and submitted with the bid specifications, even if the building may contain more square footage. The Department supplied a specific number of offices of various sizes and a required configuration no floor plan in order to depict work units that should be constructed and/or arranged together, as part of the specifications in the Invitation to Bid documents. The purpose of this agency floor plan was to give potential bidders a guide to calculate the cost of remodeling existing space to meet the agency's needs so that those potential bidders could amortize that cost as part of the rental amount involved. Therefore, the proposed floor plan included in a bidder's package should not vary substantially from the final plan used to actually remodel the leased space in accordance with the agency's requirements. Accordingly, the only submittal of plans which is permissible subsequent to the bid opening, as contemplated by the bid specifications, are the final plans developed by a successful bidder in consultation with the agency after the bid award. No floor plan may be unilaterally submitted by a bidder after the bid opening since that would constitute an illegal amendment of the bid. Only a floor plan done in consultation with the agency in order to make final adjustments so that all office space and other related space will comply with the agency's precise requirements may be done after the bid is actually awarded, and this must be based upon the floor plan originally submitted in the bid itself in conformance with the bid specifications regarding office layout, square footage and the like. The Rainbow bid simply contained an inadequate amount of square footage necessary to be a responsive bid in this regard. An additional bid specification at issue concerns the requirement of 77 exclusive use, on-site parking spaces. The Rainbow bid only made provision for 27 on-site exclusive parking spaces, with the remaining 50 spaces of the required 77 being off the proposed building site, approximately 155 feet away, without sidewalk access to the proposed office building. The Brooks' bid incorporated all required parking spaces on the site, as required by the specifications. The Rainbow bid was non-responsive concerning the parking space specification as well. Mr. Beall prepared the bidding documents as Budget Manager for the Department of Corrections' Region I. He was the person designated in the bidding documents to answer any questions requiring clarification by prospective bidders before bids were prepared and submitted. Mr. Beall established that the intent of the agency with regard to this parking space requirement was to require all 77 parking spaces to be on-site. No bidder or prospective bidder asked any questions of Mr. Beall concerning this specification prior to the submittal of any of the bids. Mr. Brooks, however, did consult with Mr. Beall on the question of the Energy Performance Index specification item before he submitted his bid. Mr. Brooks is a former physics and advanced mathematics teacher with some 20 years experience in construction. He has been a licensed general contractor and master builder for residential, commercial and industrial types of construction for 11 years. He typically designs and draws his own plans, including those submitted with the bid at issue. He spent approximately 100 hours of his time on preparation of this bid. Mr. Brooks had previously been awarded a rid by the Department of Corrections on which he simply invalid the item concerning the Energy Performance Index (EPI) specification. That item was found to be responsive by the Department, and the bid was awarded to Mr. Brooks. On a subsequent bid on a different job, Mr. Brooks again merely initialed the EPI specification, which he intended to mean that he would perform the job at issue such that the EPI requirements would be met. He was not awarded the bid on that particular job, but upon his informally notifying the Department of Corrections that he might protest the decision to award the bid to a different bidder, the Department personnel advised him that they might choose to raise the issue of his responsiveness to the EPI specification in that situation. With this history in mind, Mr. Brooks, before submitting his bid, contacted Mr. Beall to inquire as to what would be considered an appropriate response to the EPI specification on the bidding documents. The EPI has been calculated by Mr. Brooks on numerous projects in the past, and he is capable of calculating it as to this project. He found, however, that it would be impossible to calculate a precise and accurate EPI specification response, because he would not have the final floor plan from which to calculate it, with all the information that would give him concerning room configurations, size, location and size of windows, size and type of heating and air-conditioning equipment and many other factors. Mr. Brooks could, however, give his certification that the energy performance requirement would be met, once the final plans were completed in conjunction with discussion with the agency after award of the bid, which comports with standard agency policy and practice. Because he was concerned that any energy performance calculations he might supply would not necessarily be accurate in the final analysis, in relation to the final "to be constructed" plans, Mr. Brooks contacted Mr. Beall to obtain his guidance about what would be considered a proper response to this specification item. Mr. Beall advised him that a letter certifying that he would comply with the specification as to this issue would be an appropriate alternative to simply initialing the specification. The same opinion was also voiced at the lease committee meeting. Mr. Beall's advice to Mr. Brooks in this regard was based upon advice given him by Mr. Edwin Johnson of the Department of General Services and was based upon past agency policy concerning treatment of this issue on previous bids considered by the lease committee. Previous bids had indeed been accepted in the form submitted by Mr. Brooks and had not been found to be nonresponsive as to the EPI issue. Thus, Mr. Brooks, in addition to initialing the specification concerning the EPI, also supplied the referenced letter certifying that he would comply with that specification and agency requirement. Rainbow, on the other hand, merely initialed that item in the specification and bidding document. Thus, the Brooks' bid is the more responsive on the issue of the EPI than the Rainbow bid. The bid award to Brooks was posted on May 2, and on May 4, Rainbow filed a Notice of Protest of she award which was received by the Department, timely on May 5. Shortly after that date, counsel for Rainbow requested that the Department's representatives and counsel meet with him and Mr. Jett, his client, of Rainbow Properties, to discuss the agency's award to Brooks and rejection of Rainbow's bid. On May 10, 1988, the Department's regional representatives and its counsel met with Mr. Jett of Rainbow Properties and his attorney, Mr. Barley. Mr. Jett used this opportunity to explain how he felt that the Rainbow bid had complied with the bid specifications in the three specific areas discussed above. The Department's counsel explained on that occasion that the bid could not be amended after opening and posting of the bids. Mr. Jett's bid had only shown 11,862 square feet identifiable as rentable space in the floor plan submitted with the bid, although 12,756 square feet were required by the bid specifications. Additionally, as discussed above, of the 77 required on-site parking spaces, only 27 were provided on site with 50 of them being off site, with Rainbow not establishing that it had ownership or right of control to the off site spaces. Additionally, as discussed above, there was the problem of no calculations or assurances being provided regarding the EPI specification, it merely having been initialed in Rainbow's bid submittal. At the May 10 meeting, Mr. Jett was given the opportunity to explain how his bid complied with the specifications at issue and to discuss how he felt the Department had misinterpreted his response or made an error in measuring or calculating the square footage available in his building. He provided no alternative calculations or measurements of the building, however, which would depict more than the 11,862 square feet measured by the Department's staff or which would show that measurement was incorrect. He was reminded that the only possible information he could legally provide the agency after the opening of bids was in the nature of minor clarification concerning how he had calculated the square footage. He was instructed that he could not revise his plans in order to establish that more square footage was available because that would be an illegal amendment of his bid after the bids were open and posted. At the May 10 meeting Mr. Jett also maintained that the Department had allowed for other than on site parking; however, but the bidding document or Invitation to Bid only contained one blank, and only one subsection on the bidding form, for the bidders to indicate 77 spaces designated as on site spaces. Mr. Jett maintained that since the Department had provided option "(A)" under this on-site parking specification item, that he was therefore free to add other options. Using that logic, however, it would also appear that he could have submitted a bid depicting spaces literally on the other side of town and still had a responsive bid. That clearly is not the correct interpretation of that specification. He also maintained that the EPI was impossible to calculate at the time of bidding, in view of the fact that final plans were not available to support the ultimate calculation. In any event, at the conclusion of this meeting, Department personnel informed Mr. Jett and his counsel that would inform him of its decision within a few days. The Department did not inform Mr. Jett that he would be permitted to amend his bid after obtaining professional help and redrawing his blueprint in an effort to show that the minimum square footage was available. Indeed, Rainbow and Mr. Jett did obtain the services of an architect and drew a new floor plan which it offered as PR-1 at the hearing. If the floor plan originally attached to Rainbow's bid, consisting of Exhibit PR-2 in evidence, is compared with the blueprint submitted by the architect after the meeting with the Department representatives on May 10, it can be discerned that the blueprint is not a mere refinement or clarification of the initial floor plan, but rather that major modifications have been made to the initial floor plan submitted with the bid. These consist of walls which have been moved, small rooms in some areas which have been eliminated, restrooms which have been deleted and an existing spiral staircase area which was eliminated, and a hallway enclosed, in order to add additional rentable square footage where new offices could be added. Thus, this blueprint offered at hearing was not a mere refinement or clarification of the original floor plan submitted with the Rainbow bid, but rather sufficiently different from original floor plan as to constitute a material amendment or modification to the bid. It therefore cannot be considered. The floor plan submitted with the bid was nonconforming to the bid specifications as to the square footage item and Rainbow cannot be permitted to rectify and correct that with the architect's new blueprint and floor plan offered at the time of the hearing. 1/ In short, insufficient square footage was depicted and that is not a minor waivable irregularity. Soon after this May 10 meeting, the Department changed its position, decided that both bids were not responsive and rejected them. Its alleged basis for doing so was that the Brooks bid was nonresponsive as to the energy performance index criteria and that the Rainbow bid was nonresponsive as to that criteria, as well as to those concerning minimum square footage and on-site parking availability; the same as the original grounds for rejecting Rainbow's bid. Timely formal protests of that second agency action were filed by both Brooks and Rainbow. In that connection, Rainbow's formal written protest of the original award to Brooks, which was announced and noticed on May 2, 1988, was untimely. The formal written protest must be filed within ten days of the notice of protest. Rainbow's original notice of protest was filed with the agency on May 5 and the formal written protest was not filed until May 17. Rainbow, in conjunction with its filing, filed a motion for leave to late-file the formal protest with the agency on the basis that it had mistakenly filed the formal protest with the Division of Administrative Hearings. That petition was filed with the Division on May 16th. The deadline for filing the formal protest was May 15th. Petitioner Rainbow, however, did not learn of the second intended agency action until May 16th, however, and may have been somewhat misled about the necessity of filing its formal protest by May 15th because of the informal discussion of May 10th. It is also true, however, that the informal meeting was improper, as discussed herein and was called at the behest of Rainbow without assurance that the filing time was tolled.
Recommendation In consideration of the above findings of fact and evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor RECOMMENDED that the petition of Rainbow Properties, a Florida general partnership, should be denied and dismissed for the reasons found and concluded above, and that the petition of C. Leon Brooks be GRANTED and that the subject bid be awarded to C. Leon Brooks. DONE and ENTERED this 27th day of October, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1988.
The Issue The issue addressed in this proceeding is whether Petitioner or Intervenor submitted the lowest and best bid.
Findings Of Fact On December 20, 1989, the District Board of Trustees, Okaloosa-Walton Community College, issued an Invitation to Bid (ITB) for Phase I Construction of the OWCC-WUF Joint Use Campus. The total project was estimated to cost about $5,000,000.00. The funds for the project would come in large part from the Public Education Capital Outlay Funds appropriated by the legislature and passed into law in the State's budget and to a limited extent from the college's renovation fund. Up to the time of hearing, the legislature had appropriated $3,000,000.00 for the project. The college's renovation fund contained approximately $70,000.00. The board hopes that the additional funding needed for the project (approximately $2,000,000.00) will be appropriated by the legislature this summer. However, until the additional funds are appropriated, the Board, by statute, is prohibited from contracting for projects in excess of the amount of money which has been appropriated for such projects. See Section 235.42, Florida Statutes. Michael Richardson, of Bullock-Tice Associates Architects, Inc., was the architectural project manager. Each bidder was asked to provide a base bid and a separate bid on each of ten alternatives. Eight bids were submitted in response to the original solicitation. All eight bids were rejected. The bids were rejected because all eight bids for the base bid without the addition of any alternates exceeded the funds available for the project. The Board decided to rebid the project. The second ITB was issued on March 26, 1990. The second ITB was restructured in an effort to obtain a base bid within the amount of money which had been appropriated for the project. Alternates could then be added to the base bid until the funds ran out. Specifically, the project was revised to provide for a base bid and separate bids on six alternates. The base bid essentially provided for construction of a classroom (Building No. 3) and a utility plant. Alternates 1 and 2 provided for outside civil, electrical, and landscaping work related principally to the buildings covered by the base bid. Alternates 3 and 4 related principally to the construction of two additional buildings and landscaping related to those buildings. Alternates 1-4 added work to the project. Alternates 5 and 6 deleted certain work from the project. Paragraph 1A of the Instructions to Bidders required that: To receive full consideration, all bids must be executed and submitted in strict accordance with the "INSTRUCTIONS TO BIDDERS. Paragraphs 7C and 7D of the Instructions to Bidders required that: Unit Prices: Each bidder shall state in the schedule provided on the Form of Proposal the amount he proposes for each applicable Unit Price requested. Unit price amounts shall include all costs of material, labor, equipment, insurance, bonds, taxes, overhead and profit and shall be used for determining amounts to be paid for all additional work on the project. Credits for any work omitted shall be determined by Unit Price at the amount scheduled. The Owner reserves the right to reject any Unit Price if considered excessive or unreasonable, or to accept any and all such Unit Prices which may be considered fair and reasonable. Alternates: In order that the Owner may discern an alternative use or type of material, or an increase or decrease in the scope of the Project, such items will be defined as Alternates and will be specifically described by the Drawings and/or Specifications. Alternates will be listed in the Form of Proposal in such a manner that the bidder will be able to clearly indicate the sums that will be added to or deducted from the Base Bid. Alternates shall include all costs of materials, taxes, bonds, handling, overhead, and profits and the acceptance of any alternate shall be in strict accordance with applicable Specification Sections. At some point after the initial bid instructions were sent out, and prior to the bid opening, the project architect drafted and sent to bidders a document entitled "Clarification to All Bidders." This document stated: It is the intention of the Owner to award all add Alternates upon receipt of additional funding this Summer. Due to this circumstance, the determination of Low Bidder will most likely be based upon the Base Bid plus Alternate 1 through 4 and 5 & 6 if so desired. This procedure is in accordance with rules of the Florida State Board of Education for Educational Facilities. (emphasis supplied) No bidder challenged the clarification's inclusion in the specifications for the project. Bidders generally interpreted this "Clarification" to mean that the Board of Trustees intended to award a contract for the total project, and thus would make its determination of low bid based on the total sum of the bids for base bid and alternates 1-4. However, bidders were not uniform in their application of that language to developing their specific bids and were not uniform in their interpretation of whether the Board's method of award of the bid as set out in the clarification was guaranteed by the clarification's language. In other words, some bidders realized that the use of the words "most likely" in the clarification meant exactly what it said and was not a guarantee that the project would be awarded according to the method established in the clarification. Petitioner, on the other hand, at its peril ignored the words "most likely" and altered its normal method of calculating its bid. In any event, no bidder received any advantage over another bidder due to the clarification's issuance and no bidder was favored or discriminated against because of the clarification. All bidders received the clarification and reacted to it in the normal course of their businesses and prepared their bids according to those dictates. Six bids were received on the second ITB, including Jack Moore & Company, Inc. and Sharpe, Inc. The bids on the base bid and the various alternates were as follows: CONTRACTOR BASE BID TOTAL SEE ATTACHED EXHIBIT 1 Under the method of determining low bidder set out in the clarification, Jack Moore & Company was the low bidder. However, the Petitioner's bid, as well as all other bidders' bids, exceeded the amount of money that the Board had on hand for construction of the project. Therefore, the Board of Trustees felt that it could not award the contract according to the method set out in the clarification and examined the bids to determine the amount of construction which could be accomplished for the amount of money it had on hand ($3,000,000.00 from the legislature and $70,000.00 from the renovation fund). By using only the $3,000,000.00 from the legislature, Opus South would have been the low bidder on the base bid. However, by adding approximately $25,000.00 from the renovation fund, the college had enough money to award the base bid plus alternates 1 and 2. Money for alternates 3 and 4 was not available. The Board decided to award the base bid plus alternates 1 and 2. Sharpe, Inc. was the low bidder on the base bid plus alternates 1 and 2. The Board awarded the contract to Sharpe. Petitioner was approximately $100,000 over the amount bid by Sharpe on the base bid plus alternates 1 and 2. The Board's reasoning was not arbitrary or capricious in the award of the bid to Sharpe. Since the language of the clarification was not binding on the Board, the method used by the Board was within the specifications. Finally, there was no substantial evidence of fraud or collusion on the part of the Board in its award of the bid to Sharpe and no evidence was submitted that Sharpe was not responsive to the ITB. In fact, all the bidders responded to the exact same specifications, thereby affording the Board an exact comparison between the various bids submitted to it for the project. The only difference in the bids was in how each individual bidder calculated its bid to arrive at it's price. Such differences occur in all bid situations and do not serve to lessen the exact comparison of the bids on the specifications. Therefore, Sharpe, having presented the lowest and best bid, should be awarded the contract on the base bid plus alternates 1 and 2.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board enter a final order finding Sharpe, Inc., submitted the lowest and best bid and awarding the bid on the base bid plus alternates 1 and 2 to Sharpe, Inc. DONE and ENTERED this 13th day of July, 1990 in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1990.
