The Issue Whether, in issuing the Revised Recommendation/Tabulation for contracts for Items 1 and 3 for Invitation to Bid No. 15- 048E, Multifunctional Devices, Cost-Per-Copy, Respondent acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact On June 3, 2014, SBBC issued ITB No. 15-048E (the ITB) entitled "Multifunctional Devices, Cost-Per-Copy" for the provision and maintenance of copying devices during the contract term. The listed Submittal Requirements were: Manufacturer's Authorization Special Condition 8; Descriptive Literature Special Condition 6; and Material Safety Data Sheets Special Condition 16. A Bidder's Preference Statement was not identified as a Submittal Requirement. Section 4, Paragraph 2, of the ITB was entitled "TERM" and notified bidders that SBBC sought through the award of this bid to "establish a contract for the period beginning from the date of award and continuing through June 30, 2017." The Bid Summary Sheet found at Section 5 of the ITB requested bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months and for 36 months. Page 1 of the ITB contained a certification to be executed by each bidder's authorized representative which stated in pertinent part as follows: Bidder agrees to be bound to any and all specifications, terms and conditions contained in the ITB, and any released Addenda and understand that the following are requirements of this ITB and failure to comply will result in disqualification of bid submitted. All bidders submitted a signed bidder certification. Section 3, Paragraph 1(a), of the General Conditions of the ITB provided as follows: SEALED BID REQUIREMENTS: The "Bidder Acknowledgment Section" must be completed, signed and returned with the bid. The Bid Summary Sheet pages on which the Bidder actually submits a bid, and any pages, upon which information is required to be inserted, must be completed and submitted with the bid. The School Board of Broward County (SBBC) reserves the right to reject any bid that fails to comply with these submittal requirements. BIDDER'S RESPONSIBILITY: It is the responsibility of the Bidder to be certain that all numbered pages of the bid and all attachments thereto are received and all Addendum released are received prior to submitting a bid without regard to how a copy of this ITB was obtained. All bids are subject to the conditions specified herein on the attached bid documents and on any Addenda issued thereto. Section 3, Paragraph 6, of the General Conditions of the ITB provided as follows: AWARDS: In the best interest of SBBC, the Board reserves the right to: 1) withdraw this bid at any time prior to the time and date specified for the bid opening; 2) to reject any or all bids received when there are sound documented business reasons that serve the best interest of SBBC; 3) to accept any item or group of items unless qualified by Bidder; and 4) to acquire additional quantities at prices quoted on this ITB unless additional quantities are not acceptable, in which case, the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." On June 18, 2014, SBBC issued Addendum Number 1 for the ITB which replaced a number of pages within the bidding documents and contained responses to questions posed by prospective bidders. Addendum Number 1 included Question No. 6 in which Xerox inquired whether SBBC "would . . . consider a change to the contract term of the contract to 48 or 60-month term?" SBBC responded through Addendum Number 1 that it had amended the bid "to include additional pricing for 48 or 60-months term[s]," and SBBC continued to request proposals for a 36-month contract term. Addendum Number 1 revised Section 4, Paragraph 2, of the Special Conditions of the ITB to state as follows: TERM: The award of this bid shall establish a contract for the period beginning from the date of award and continuing through an award for a term of 36, 48 or 60 months. Bids will not be considered for a shorter period of time. All prices quoted must be firm throughout the contract period. Items will be ordered on an as needed basis. Addendum Number 1 included an Appendix A–Summary Cost Sheet which required bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months, 36 months, 48 months, and 60 months. On June 20, 2014, SBBC issued Addendum Number 2 for the ITB. The first page of Addendum Number 2 advised prospective bidders, "This Addendum amends the above referenced bid in the following particulars only: 1. DELETE: Appendix A–Cost Summary Sheet INSERT: Revised Appendix A–Cost Summary Sheet." The first page of Addendum Number 2 further cautioned bidders that "[i]t is important to include the REVISED page when submitting your response." Addendum Number 2 went on to provide a Revised- Appendix A-Summary Cost Sheet which stated "A Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months" and included a cost summary sheet for each of those three options. The ITB and addenda numbers 1 and 2 were released by SBBC via Onvia DemandStar, with email notices thereof to prospective vendors who subscribed to its bid notification service. Toshiba downloaded the ITB, Addendum Number 1, and at least the first page of Addendum Number 2 from DemandStar prior to the submission of its bid to SBBC. Again, the first page of Addendum Number 2 cautioned bidders that Appendix A–Summary Cost Sheet had been deleted and replaced and that it was "important to include the REVISED page when submitting your response." No bid specifications protest was filed by any person or entity concerning the ITB or addenda numbers 1 or 2. On July 3, 2014, SBBC opened bids timely submitted in response to the ITB by: Toshiba; ImageNet; Innovative; Lexmark International, Inc.; and Ricoh. Konica had also presented a bid to SBBC in the bid opening room prior to the opening of bids but after the announced time for submittal of bids. The Konica bid was delivered to SBBC but was not opened at the time of the bid opening. Toshiba, the incumbent, was the only bidder that violated the pricing requirements of the ITB. The bid submitted by Toshiba utilized the version of Appendix A-Summary Cost Sheet that was released under Addendum Number 1 and only offered cost- per-copy pricing for the 60-month term option. Toshiba's bid did not submit the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, nor did it contain any bids offering cost per copy pricing to SBBC for the 36 or 48-month term options. Although Toshiba's bid was not rejected as non-responsive for failing to bid on the 36 and 48-month term options and for failing to utilize and complete the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, SBBC's staff later concluded in hindsight that it should have been rejected for such non-compliance. Toshiba's bid included a "Pricing" note immediately prior to its Appendix A–Summary Cost Sheet that stated: [Toshiba] is proposing a 60 month CPC as a response to the [ITB]. Based on the fact the [ITB] has no minimum, cancellation for convenience, ability to upgrade and downgrade with no penalty, it is in the best interest of our organization to bid a term of 60 months. This term allows us to provide the most aggressive price to the [SBBC] and maintain the excellent service and support level in place. SBBC's staff recommended that an award be made under the ITB for pricing offered for a 36-month contract term for Items 1, 2, and 3 for a contract period of August 6, 2014, through September 30, 2017. On July 10, 2014, SBBC posted its initial ITB Recommendation/Tabulation which did not consider the Konica bid. The initial posted Recommendation/Tabulation notified bidders of SBBC's intended award of contracts for Items 1 and 2 to ImageNet as the primary awardee and to Innovative as the alternate awardee for a contract period of August 6, 2014, through September 30, 2017, and recommended the award of contracts for Item 3 to Ricoh as primary awardee and to ImageNet as alternate awardee for a contract period of August 6, 2014, through September 30, 2017. Timely bid protests and bid protest bonds were filed by Konica and by Toshiba concerning SBBC's initial Recommendation/Tabulation of July 10, 2014. SBBC's Bid Protest Committee conducted a meeting with the protestors on August 26, 2014, and determined that Konica's bid had been timely submitted and directed SBBC's Procurement and Warehousing Services Department (the Department) to evaluate Konica's bid for responsiveness. It also directed the Department to revise its recommendation on the ITB to reject Toshiba's bid for Item 2 as the device offered by Toshiba for that item did not meet the ITB's specifications which called for a single device capable of performing 95 copies per minute (cpm) and Toshiba instead offered two devices that performed at 85 cpm. After reviewing Konica's bid for responsiveness, SBBC posted a Revised Recommendation/Tabulation for the ITB on August 29, 2014, which (a) recommended award of Item 1 to ImageNet for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to Innovative as the alternate awardee; (b) recommended award of Item 3 to Ricoh for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to ImageNet as the alternate awardee; and (c) recommended the rejection of Toshiba's bid for Item 2 for its failure to meet the specifications for that Item. On September 4, 2014, Toshiba timely filed its notice of intent to protest the August 29, 2014, posted Revised Recommendation/Tabulation. On September 15, 2014, Toshiba timely filed its Amended Formal Petition Protesting Proposed Revised Recommendation/Tabulation. SBBC's Bid Protest Committee conducted a meeting with Toshiba on November 5, 2014, pursuant to section 120.57(3), SBBC Purchasing Policy 3320, and the ITB, and rejected Toshiba's bid protest. On November 10, 2014, Toshiba timely requested that SBBC forward its bid protest to DOAH for a formal hearing. Toshiba has presented a number of arguments in these proceedings seeking to avoid the circumstances Toshiba created for itself when it failed to comply with Addendum Number 2 and violated the ITB's pricing requirements and the ITB's requirement as to the term of the contract to be awarded, when Toshiba only submitted a single bid and restricted the contract term for which it would be considered to 60 months. First, Toshiba attempts to divest SBBC of its express authority to select proposals for any contract duration for which it solicited bids other than for a month term. Second, Toshiba argues that SBBC was somehow obligated to specify within the bid specifications those business considerations that would inform SBBC's selection of the duration of the contract term to be awarded under the ITB. Third, Toshiba argues that ImageNet was non-responsive regarding the ITB's specifications concerning manufacturer's certifications. Toshiba also argues that all bidders, including itself, were non- responsive with regard to the ITB's specifications regarding bidding preference laws. None of the arguments presented by Toshiba in opposition to SBBC's intended award of Items 1 and 3 are persuasive. The Selection of the 36-Month Term SBBC's recommended award for a 36-month contract period from October 7, 2014, through November 30, 2017, is consistent with the terms and conditions of the ITB and its addenda. At the very start of this competitive solicitation, SBBC informed bidders through Section 4, Paragraph 2, of the ITB and the Bid Summary Sheet at Section 5 of the ITB that it was seeking a contract through June 30, 2017-–i.e., a 36-month contract. SBBC also made it clear in its response to Question No. 6 of Addendum Number 1 that "[t]he contract will be for a full 36 months." Although SBBC revised the bid specifications through Addendum Number 1 to allow bidders to submit "additional pricing for 48 and 60 months term[s]," "to allow the School District to consider a 48 and/or 60 months term contract," and revised Section 4, Paragraph 2, of the ITB to provide for "an award for a term of 36, 48 or 60 months," it was clear under the ITB that SBBC contemplated that a 36-month contract could serve its needs. Addendum Number 2 further revised the bid specifications by providing the Revised–Appendix A–Summary Cost Sheet which informed bidders that "a Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months." SBBC intended to review the additional pricing offered for 48 and 60- month contract terms to determine whether those particular options were a better business decision for SBBC. Several factors were considered by SBBC in selecting the contract duration for the award under the ITB. The selection of the shorter 36-month contract term was consistent with the expressed terms of the ITB and addenda and the expressed preference of SBBC's governing board to refrain from entering into long-term contracts and enabled SBBC to be flexible in finding solutions to its copying needs and to take advantage of changes that may arise in technology; avoided problems the school district was currently experiencing with a long-term cost-per- copy contract which ranged from equipment performance issues to the long-term placement of technology in schools; and enabled the school district to conduct research to determine whether future implementation of a managed print solution would provide the school district with additional cost savings or financial benefits in contrast to the cost-per-copy services being procured through the ITB. Clearly, this selection was neither arbitrary nor capricious. SBBC's elected governing board has made it known by its actions taken at public meetings that it disfavors long-term contracts for the procurement of goods and services and has gone so far as to reduce the term of contracts from the dais. SBBC's staff determined that the pricing offered to SBBC for a 60-month contract term was not significant enough to recommend a contract longer than the 36-month term SBBC had been requesting since the release of the ITB. Any cost advantages offered by Toshiba's bids for Items 1, 2, and 3 were reduced by $525,000 per year due to the disqualification of its bid for Item 2, which failed to meet the ITB's specifications. Consideration of Managed Print Services Xerox Corporation informed SBBC that a managed print services (MPS) program could save millions of dollars per year and later submitted a no bid response to SBBC regarding the ITB because SBBC was not implementing a MPS program under the ITB. SBBC had also received proposals from vendors in October 2013 concerning a MPS program and concluded that there existed a potential annual savings of millions of dollars if such a program could be implemented. All of which were additional reasonable, rational reasons for SBBC to remain consistent with its decision to award the contracts for a term of 36 months and not something longer. The ITB contains standard terms and conditions which enable SBBC to terminate an awarded contract regardless of reason and with or without cause upon 30 days written notice to the other party. Toshiba wants SBBC to rescue Toshiba from its failure to submit required bids for 36-month and 48-month periods by forcing SBBC to award a contract obligating the agency for a longer duration under the ITB than desired by the agency and then have SBBC terminate the 60-month contract award for convenience after 36 months. SBBC includes termination for convenience provisions within its contracts for goods and services due to section 1011.14, Florida Statutes, which restricts the ability of district school boards to obligate public funds for a period beyond one year. The inclusion of the standard termination for convenience clauses in its ITBs enables SBBC to enter into contracts exceeding one year which affords the school district opportunities to obtain continuity of service and price advantages that would not be available under shorter contracts. While SBBC has the ability under the ITB to terminate contracts for convenience upon 30 days' notice, it rarely does so. SBBC has never exercised its right to terminate its two prior contracts for the services sought under this ITB. Any such termination requires action by SBBC's governing board during a public meeting. SBBC's staff would not engage in the sham of recommending a contract to its governing board for a contract term longer than the period for which it intends to procure services from a vendor. SBBC's procurement staff believes that using the termination for convenience clause in the manner Toshiba recommends can have an adverse effect upon the school district's ability to encourage bidders to participate in its competitive solicitations or to offer it their best pricing. Questions 1 and 59 of Addendum Number 1 of the ITB provide evidence of concern within the bidding marketplace that SBBC might exercise its termination for convenience clauses with regard to the services being procured under the ITB and support the perception of SBBC's that it should avoid a reputation for exercising such termination authority. Toshiba argues that SBBC somehow materially misled bidders through the ITB by stating in response to Question No. 3 concerning MPS of Addendum Number 1 that: The School District is not planning to implement a Managed Print Services at this time. The School District would like to receive Additional information regarding other districts that have implemented a Managed Print Services. There are no evaluation points associated with this ITB. SBBC's responses to Question No. 3 of Addendum Number 1 were accurate and did not mislead bidders. Toshiba is the only bidder to claim to have been misled. Section 6, Paragraph 10, of the ITB requested bidders provide SBBC with information about how the awardee could transition SBBC to a MPS model from the cost-per-copy model being offered under its bid. While SBBC requested such information from vendors within the bidding marketplace, there is no evidence that any bidder's provision or omission of such information within its bid submission was considered in the selection of the recommended awardees. In fact, ImageNet was recommended for award even though it did not provide this ancillary information about transition to a MPS delivery model. Rather, the recommended awardees for a 36-month contract term for Items 1 and 3 were determined solely on the basis of cost submitted for those items by the bidders, all in accordance with the ITB. A MPS program was a possible initiative being considered by SBBC's former Chief Information Officer prior to his departure from SBBC in February 2014, at which time the school district's current cost-per-copy contract was nearing its expiration. Although SBBC still had an interest in the possibility of a MPS program, it was not going in that direction at the time it needed to release a bid for copying services to replace its current expiring contract. Toshiba contends that SBBC was somehow required to disclose to bidders whether the potential future implementation of a MPS program might impact the contract award period that SBBC might choose under the ITB. A myriad of business considerations may inform an agency in selecting the length of its contracts for goods and services, and there is no law or rule that requires an agency to specify those factors within an ITB. Responsiveness of the Bidders Toshiba has attempted to argue that ImageNet, the recommended awardee for Item 1 and the alternate awardee for Item 3, was somehow non-responsive under the ITB and ineligible for award. In support of this argument, Toshiba has referenced Section 4, Paragraph 8, of the Special Conditions of the ITB which state as follows: MANUFACTURER'S CERTIFICATION: Bidder must submit with their ITB a notarized letter from manufacturer certifying that bidder is authorized to sell, service and warrant the multifunctional devices offered within this ITB. Failure of the bidder to provide this letter with their submitted bid or upon request shall result in disqualification of entire bid. If the bidder is the manufacturer, then bidder should state that their company is the manufacturer of the equipment provided in this bid (the letter does not need to be notarized). A bid is only disqualified under Section 4, Paragraph 8, of the ITB if (1) a notarized manufacturer's letter is omitted from the bid; and (2) the bidder fails to comply with a subsequent request from SBBC to provide the letter. No bidder, including Toshiba and ImageNet, included a notarized letter from a manufacturer with its bid. SBBC did not request any of the bidders to submit a notarized manufacturer's letter at any time after the submission of bids. As a result, none of the bids, including that of ImageNet, was non-responsive for a failure to satisfy Paragraph 8 of Section 4 of the ITB. Toshiba has also argued that all bids should be rejected due to Section 3, Paragraph 1(d), of the General Conditions of the ITB which concerns bidders' preference laws and states as follows: d) BIDDING PREFERENCE LAWS: ALL BIDDERS MUST COMPLETE AND SUBMIT THE LEGAL OPINION OF BIDDER'S PREFERENCE FORM IN ORDER TO BE CONSIDERED [sic] FOR AWARD. The State of Florida provides a Bidder's preference for Florida vendors for the purchase of personal property. The local preference is five (5) percent. Bidders outside the State of Florida must have an Attorney, licensed to practice law in the out-of-state jurisdiction, as required by Florida Statute 287.084(2), execute the "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form and must submit this form with the submitted bid. Such opinion should permit SBBC's reliance on such attorney's opinion for purposes of complying with Florida Statute 287.084. Florida Bidders must also complete its portion of the form. Failure to submit and execute this form, with the bid, shall result in bid being considered "non-responsive" and bid rejected. No bidder, including Toshiba, included an "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form with its bid. Each bidder's omission of that form was for good reason. Section 3, Paragraph 1(d), of the General Conditions of the ITB is a boilerplate provision within SBBC's standard bidding documents that is included pursuant to section 297.084(2), Florida Statutes, for any competitive solicitations in which personal property is to be purchased by SBBC. In instances in which it solicits bids to purchase personal property, SBBC includes a "Bidder's Preference Statement" form and includes that form among the checked "Submittal Requirements" listed in Section 2, Page 1, of the ITB. This ITB did not include a "Bidders Preference Statement" form among the bidding documents or list it as one of the required submittals. The state law and the boilerplate provision at Section 3, Paragraph 1(d), of the General Conditions of the ITB are only applicable to competitive solicitations for the purchase of personal property and do not extend to competitive solicitations for the purchase of services. As Section 4, Paragraph 12, of the Special Conditions of the ITB makes it clear that the multi-functional devices to be provided by the awardee under the ITB will "remain the property of the vendor," the standard bidder's preference provision contained within the ITB is plainly inapplicable to this procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by Toshiba Business Solutions (USA), Inc., and upholds the awards of contracts under the procurement for a 36-month term from October 7, 2014, through November 30, 2017, to ImageNet Consulting of Miami, Inc., as the primary awardee for Item 1 and to Innovative Software Solution, Inc., as the alternate awardee for Item 1, and to Ricoh USA, Inc., as the primary awardee for Item 3 and to ImageNet Consulting of Miami, Inc., as the alternate awardee for Item 3. DONE AND ENTERED this 15th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2015. COPIES FURNISHED: Robert Paul Vignola, Esquire Office of the General Counsel Eleventh Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) William G. Salim, Jr., Esquire Moskowitz, Mandell, Salim and Simowitz, P.A. 800 Corporate Drive, Suite 500 Fort Lauderdale, Florida 33334 (eServed) Eric J. Rayman, Esquire Genovese, Joblove and Battista, P.A. PNC Center, Suite 1110 200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed) Albert E. Dotson, Esquire Wendy Francois, Esquire Bilzin, Sumberg, Baena, Price and Axelrod, LLP 1450 Brickell Avenue, Suite 2300 Miami, Florida 33131 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Robert W. Runcie, Superintendent Broward County School Board Tenth Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) Pam Stewart Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Facts based on stipulation These proceedings concern Petitioner's Bid Protest in connection with that certain project known as Chiller Installation, Glades Campus, Project NO. 9237, PBCC No. 6812. Petitioner has taken all steps necessary to perfect its bid protest in a timely manner and has standing to bring this bid protest. Petitioner and Respondent met and were unsuccessful in an attempt to resolve the bid protest as required by Section 120.53(5), Florida Statutes. M. K. Mechanical, Inc., a Florida corporation, is a State of Florida Certified Mechanical Contractor and as such was a "Qualified Bidder." The original specifications for the subject project contained few electrical specifications and were silent as to how an electrical contractor was to be licensed. The bid was due on Tuesday, January 12, 1993, at 2:00 p.m. On Friday, January 8, 1993, at 3:42 p.m., via facsimile transmission, M. K. Mechanical, Inc., received supplementary electrical specifications, thirty (30) pages in length. Contained in these supplementary specifications, for the first time, was a requirement that the electrical subcontractor had to be "locally" licensed. M. K. Mechanical, Inc.'s, primary place of business is in Edgewater, Volusia County, Florida. M. K. Mechanical, Inc.'s, submitted bid was proper in all respects other than an electrical subcontractor's name was not given, instead "to be determined" was inserted. M. K. Mechanical, Inc., submitted the lowest bid. Electrical subcontractor is a "major" subcontractor on this project. The sole basis for the decision by Respondent that Petitioner's bid was "non-responsive" was the failure to list an electrical subcontractor. Additional facts regarding bid specifications The bid specifications include the requirement that bidders list all "major subcontractors" and that the category of "major subcontractors" includes electrical subcontractors. Section 5.2.1 of the Contract Documents within the Bid Specifications provides as follows: Unless otherwise required by the Contract Documents or the Bidding Documents the Contractor at the bid opening shall furnish to the Owner and Architect Form 00420, a written list of the major Subcontractors; Site Utilities, Structural Concrete, Masonry, Structural Steel & Steel Joists, Plumbing, HVAC, Electrical and Roofing, who he proposes to use on this work.
Recommendation On the basis of all the foregoing, it is RECOMMENDED that Palm Beach Community College enter a Final Order in this case denying the protest of the Petitioner, M. K. Mechanical, Inc., and awarding the contract in Project No. 9237, PBCC No. 6812 to the Intervenor, Hill York Corporation. DONE AND ENTERED this 15th day of July, 1993, in 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 15th day of July, 1993. COPIES FURNISHED: Sid C. Peterson, Jr., Esquire DeLoach & Peterson, P.A. Post Office Box 428 New Smyrna Beach, Florida 33170 James M. Adams, Esquire Gibson & Adams, P.A. Post Office Box 1629 West Palm Beach, Florida 33402 Herbert L. Dell, President Hill York Corporation Post Office Box 350155 Fort Lauderdale, Florida 33335 The District Board of Trustees Palm Beach Community College 4200 Congress Avenue Administration Building Lake Worth, Florida 33461 Attention: Mr. Dick Jones
The Issue Whether in making a preliminary decision to award a contract for the subject services under Invitation to Bid No. 12-039T – Refuse Services (the ITB) Respondent School Board of Broward County, Florida (the School Board) acted contrary to a governing statute rule policy or project specification; and if so whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner Ace Waste Services, LLC (Petitioner) challenges the determination that the bids submitted by the apparent low bidder, the apparent low second low bidder, and the apparent low third low bidder were responsive and responsible bids meeting the specifications contained in the ITB.
Findings Of Fact School Board Policy 3320 entitled "Purchasing Policies" is the agency's rule governing the purchasing of goods and services. On October 7, 2011, the School Board issued the ITB which was entitled "Refuse Services." On October 18, 2011, the School Board issued Addendum No. 1 to the ITB. The refuse services were to be provided to 58 district school sites, which were collectively referred to as Group 1. The Bidder Acknowledgement found at Section 1.0 of the ITB states in pertinent part as follows: I agree to complete and unconditional acceptance of this bid all appendices and contents of any Addenda released hereto; I agree to be bound to all specifications terms and conditions contained in this ITB . . .. I agree that this bid cannot be withdrawn within 90 days from due date. Section 3 of the ITB states as follows at General Condition 3(b): MISTAKES: Bidders are expected to examine the specifications delivery schedules bid prices and extensions and all instructions pertaining to supplies and services. Failure to do so will be at Bidder's risk. Section 3 of the ITB states as follows at General Condition 35: PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person desiring to protest the conditions/specifications of this Bid/RFP or any Addenda subsequently released thereto shall file a notice of intent to protest in writing within 72 consecutive hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest with ten calendar days after the date the notice of protest was filed. Saturdays Sundays legal holidays or days during which the school district administration is closed shall be excluded in the computation of the 72 consecutive hours. If the tenth calendar day falls on a Saturday Sunday legal holiday or day during which the school district administration is closed the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday Sunday legal holiday or days during which the school district administration is closed. Section 120.57(3)(b) Florida Statutes as currently enacted or as amended from time to time states that "The formal written protest shall state with particularity the facts and law upon which the protest is based." Failure to file a notice of protest or to file a formal written protest within the time prescribed by [section 120.57(3)(b)] or a failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. The failure to post the bond required by School Board Policy 3320 Part VI within the time prescribed by School Board Policy 3320 Part VI as currently enacted or as amended from time to time shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. Notices of protest formal written protests and the bonds required by School Board Policy 3320 Part VI shall be filed at the office of the Director of Supply Management and Logistics 7720 West Oakland Park Boulevard, Suite 323 Sunrise, Florida 33351 (fax 754-321-0936). Fax filing will not be acceptable for the filing of bonds required by School Board Policy 3320 Part VI. Section 3 of the ITB states as follows at General Condition 36: POSTING OF BID RECOMMENDATIONS/TABULATIONS: Any person who files an action protesting an intended decision shall post with the School Board at the time of filing the formal written protest a bond payable to the School Board of Broward County Florida in an amount equal to one percent (1%) of the Board's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours excluding Saturdays Sundays legal holidays and other days during which the School Board administration is closed of receipt of notice of intent to protest. The estimated contract amount shall be established on the award recommendation as the "contract award amount." The estimated contract amount is not subject to protest pursuant to [section 120.57(3)]. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond the School Board may accept a cashier's check official bank check or money order in the amount of the bond. If after completion of the Administrative Hearing process and any appellate court proceedings the School Board prevails the School Board shall recover all costs and charges which shall be included in the Final Order or judgment including charges made by the Division of Administrative Hearings but excluding attorney's fees. Upon payment of such costs and charges by the protestant the bond shall be returned. If the protestant prevails then the protestant shall recover from the Board all costs and charges which shall be included in the Final Order or judgment excluding attorney's fees. Section 3 of the ITB states as follows at Special Condition 1: INTRODUCTION AND SCOPE: The School Board of Broward County Florida (hereinafter referred to as "SBBC") desires bids on REFUSE SERVICES for solid waste removal as specified herein. Prices quoted shall include pick up at various schools departments and centers within Broward County Florida. Section 4 of the ITB states as follows at Special Condition 3: AWARD: In order to meet the needs of SBBC Bid shall be awarded in its entirety to one primary and one alternate responsive and responsible Bidders meeting specifications terms and conditions. The lowest Awardee shall be considered the primary vendor and should receive the largest volume of work. Therefore it is necessary to bid on every item in the group and all items (1-58) in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC reserves the right to procure services from the alternate Awardee if: the lowest Bidder cannot comply with service requirements or specifications; in cases of emergency; it is in the best interest of SBBC. After award of this bid any Awardee who violates any specification term or condition of this bid can be found in default of its contract have its contract canceled be subject to the payment of liquidated damages and be removed from the bid list and not be eligible to do business with this School Board for two years as described in General Conditions 22 and 55. Section 4 of the ITB states as follows at Special Condition 7: ADDING OR DELETING SITES: SBBC may during the term of the contract add or delete service wholly or in part at any SBBC location. When seeking to add a location SBBC shall request a quote from both Awardees. The lowest Bidder shall receive an award for the additional location. If additional service is requested for an existing site already receiving service the current service provider will be contacted to provide a new quote based on the pricing formula submitted in response to this ITB or a subsequent quote. Section 4 of the ITB states as follows at Special Condition 11: RECEPTACLES: The Awardee shall furnish receptacles in good repair. . . .The Awardee shall furnish any and all equipment materials supplies and all other labor and personnel necessary for the performance of its obligations under this contract. Design of all equipment is subject to the approval of the Manager Energy Conservation Utility Management or his designee and must be replaced upon notification without additional cost to SBBC. DESCRIPTION: All receptacles used for solid waste referenced in Group 1 on the Bid Summary Sheets and the Tamarac location listed in Section 5 Additional Information unless otherwise indicated shall be provided by the Awardee at no additional cost. Bin receptacles shall be provided for SBBC use in the cubic yard capacities as indicated on the Bid Summary Sheets. Receptacles shall be bin-type units steel or plastic lift-up lids NO SIDE DOORS unless specifically requested for 8 cu. yd. fitted for automatic loading on casters where necessary for chute operations. (Receptacles not on casters must have a 6" – 12" clearance from ground to bottom of bin for easy cleaning underneath.) TWO AND THREE YARD CONTAINERS: It will be necessary for The Awardee to supply the two (2) and three (3) yard containers to hold compacted refuse at a ratio of approximately 4:1. These containers are designed for front-end loading. THESE UNITS ARE IDENTIFIED ON THE BID SUMMARY SHEET BY A SINGLE ASTERISK (*) NEXT TO THE CONTAINER SIZE. Section 4 of the ITB states as follows at Special Condition 20: SMALL IN-HOUSE COMPACTION UNITS(approximately two yards): The following schools have in-house compaction units which will need to be provided by the Awardee. Waste is compacted at an approximate ratio of 3:1. Collins Elementary Oakridge Elementary Sheridan Hills Elementary Section 4 of the ITB states as follows at Revised Special Condition 14: PRICING – ALL INCLUSIVE COST GROUP 1 ITEMS 1– 58: Bidder shall submit fixed monthly costs where indicated on the Bid Summary Sheets for each location based on 4.33 weeks per month. (This number is derived by dividing 52 weeks by 12 months). Monthly costs stated shall be an all-inclusive cost for providing receptacles refuse removal and disposal including but not limited to all necessary labor services material equipment taxes tariffs franchise fees maintenance and applicable fees. SBBC agrees to pay the Broward County Disposal Adjustment (tipping fees) in effect at the time. Increases to this fee will be paid as assessed by Broward County. Any decreases in these rates shall be passed on to SBBC as well. No bid specification protest was filed by any person concerning the original ITB or Addendum No. 1. Nine companies submitted timely responses to the ITB. Each bidder submitted a monthly bid and an annual bid. The School Board thereafter ranked the respective bids. Intervenor was the apparent low bidder with a monthly bid of $39,576 and an annual bid of $474,918.38. All Service was the apparent second low bidder with a monthly bid of $40,540.90 and an annual bid of $486,490.80. WSI was the apparent third low bidder with a monthly bid of $47,671.71 and an annual bid of $572,060.52. Petitioner was the apparent fourth low bidder with a monthly bid of $50,177.73 and an annual bid of $602,132.76. On November 2, 2011, the School Board's Purchasing Department posted the agency's intended recommendation for award of the ITB. The intended decision was (A) to award to Intervenor as the primary vendor for Group 1 (1 through 58); and (B) to award to All Service as the first alternate for Group 1 (1 through 58). On November 4, 2011, Petitioner timely filed its Notice of Protest with the School Board's Purchasing Department. On November 14, 2011, Petitioner timely filed its Formal Bid Protest with the School Board's Purchasing Department and delivered the required bid protest bond. The School Board formed a Bid Protest Committee that met with Petitioner on December 19, 2011, to consider Petitioner's formal written protest in accordance with section 120.57(3)(d)(1) and School Board Policy 3320. The parties were unable to resolve the protest by mutual agreement and the School Board sent Petitioner a notice of non-resolution of dispute. Section 1 of the ITB precludes a bidder from withdrawing its bid within 90 days of its submission to the School Board. At the time of the formal hearing 106 days had passed since the submission of bids. No bidder, including Intervenor, has indicated that it committed an error in calculating its prices submitted under the ITB or asked the School Board to excuse it from the prices it offered under the ITB. To the contrary, Intervenor's counsel represented at the formal hearing that Intervenor was standing by its bid. Generally, compacted waste is heavier and more expensive to dispose of than non-compacted waste. The ITB identifies the number and size (in cubic yards) of the receptacles to be placed at each location and the number of pick-ups per weeks to occur for each receptacle. The ITB also informs the bidders whether a receptacle was compacted or non-compacted. If compacted the ITB set forth the ratio of compaction. Bidders were also asked to bid a monthly cost and any applicable fees charged by the facility receiving the waste to arrive at total monthly cost for each receptacle to be furnished. The bidders were required to provide a total monthly bid for the services and a total annual bid for the services. The bidders were to use the information set forth in the ITB to calculate their bids. Petitioner asserts that the bids submitted by Intervenor, All Service, and WSI were not responsible bids because those bids failed to factor in the higher costs of disposing of waste that had been compacted. Petitioner contends that the reference to compaction ratios constitute specifications by the School Board to require all bidders to calculate their pricing utilizing the compaction ratios. Petitioner describes the referenced compaction ratios as "multipliers" that needed to be used by the bidders in calculating their prices for handling and disposing of compacted waste. Petitioner is seeking to impose its interpretation of the ITB as requiring each of the bidders to calculate its bid using the same pricing methodology that Petitioner employed. There is no ambiguity in the ITB, and there is no factual basis to conclude that all bidders were required to prepare their bids in the same fashion as Petitioner. There is nothing set forth in the ITB that required the School Board to interpret its reference to the compaction ratios as being a specification of a "multiplier" for pricing as opposed to a description of the capacity of the receptacles to be used at each of the school locations. At no point is the word "multiplier" used in the ITB to specify that the bidders were required to engage in mathematics involving multiplying their prices against some unit price the bidders were specifying in their bids. The ITB specifies the frequency with which the varying container sizes needed to be picked up at each of the 58 schools with the weight or volume of the container not being a factor in setting the specification of how often the container is to be picked up by the awardee. No adjustments were to be made to the prices paid by the School Board based on the weight of the container when removed. The School Board did not specify in the ITB that a bidder was required to charge the same monthly cost at each school for a similarly-sized refuse container nor did the School Board require different pricing for compacted waste as compared to non-compacted waste. Petitioner's assertion that the bidders were required to use those ratios as a multiplier when bidding on the cost of disposing of compacted waste is rejected as being contrary to the plain language of the ITB. The compaction ratios were provided to the bidders as information only. There is no requirement that a bidder use a particular methodology in determining its bid amounts.
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 that adopts the findings of fact and conclusions of law contained herein, dismisses the protest filed by Petitioner Ace Waste Services LLC, and upholds the award of the procurement to Choice as primary awardee and to All Service as alternate awardee. DONE AND ENTERED this 20th day of March 2012, in Tallahassee Leon County Florida. S 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 20th day of March 2012.
The Issue Whether, when making a recommendation to award ITB No. 15C-26K (Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment, and Uniforms) to (1) Matty's Sports (Matty's), (2) Simmons Team Sports (Simmons), (3) D&J Commerce Solutions, Inc., d/b/a OLC Team Solutions (D&J), and (4) Palm Beach Sports (PB Sports), Respondent, School Board of Palm Beach County (School Board), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact ITB No. 15C-26K and the Bid Process On November 4, 2015, the School Board issued Invitation to Bid (ITB) No. 15C-26K entitled "Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment and Uniforms" for the provision of athletic equipment (hard goods) and athletic clothing, including uniforms (soft goods). The ITB offered prospective vendors the opportunity to bid on 26 items but did not require that a vendor offer a bid for each of the 26 identified items. The odd-numbered items were for hard goods and the even-numbered items were soft goods. Paragraph G,
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by BSN Sports, LLC, and upholds the awards of contracts ITB No. 15C-26K to Matty's Sports, Simmons Team Sports, D&J Commerce Solutions, Inc., and Palm Beach Sports. DONE AND ENTERED this 22nd day of July, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2015.
Findings Of Fact The Palm Beach County School Board (Respondent) issued an invitation to bid (ITB) on February 16, 1993, requesting bids for the removal, preparation, and installation of carpet-glue down on project SB93C-216T. The ITB provided that all bids were to be submitted by March 31, 1993, at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent sections of the ITB to the case at hand include a section entitled "Invitation To Bid" which provides in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as a result of this bid shall conform to applicable Florida Statutes. Another section entitled "General Conditions, Instructions and Information for Bidders" provides in pertinent part: 26. Any and all Special Conditions that may vary from these General Conditions shall have precedence. The section entitled "Special Conditions" provides in pertinent part: C. AWARD: Bid will be awarded to the lowest and best bidder meeting specifications, terms and conditions . . . The School Board shall elect to award to a primary and a secondary vendor . . . . * * * N. CONTRACTOR QUALIFICATIONS: The contractor must have at least three years of verifiable experience in the floor covering contracting business. The contractor must have in force the required occupational licenses from Palm Beach County and it's municipalities. All documentation of the above requirements must be submitted with the proposed bid by each bidding contractor. The contractor shall not sub-contract any portion of their work, outlined in this contract, to any person(s) or company, without advance written permission from the Carpentry Supervisor of the Department of Maintenance & Plant Operations. Another section of the ITB entitled "Additional Information" provides in pertinent part: Additional information will not be a determining part of the award of this bid except in the instance where the per square yard prices are too close to determine a clear awardee. In that instance we will look at the optional items in this section as the determining factor. (This usage is also based upon all other factors being equal.) . . . Cost of heavy patching. $ per sq. ft. . . . Cost of heavy patching. $ per sq. ft. . . . By March 31, 1993, eight bids were received. However, only seven bids were considered. Respondent's Department of Contracting & Procurement reviewed the bids. On April 12, 1993, the Department of Contracting & Procurement (Department) posted the bid tabulations, which showed, inter alia, that the apparent lowest bidder was Carpetech at $28,029.61, that the apparent second lowest bidder was Buy the Square Yard (Petitioner) at $32,107.32, and that the apparent highest bidder was Acousti Engineering of Florida (Intervenor). Additionally, the recommendation was that the bid be awarded to the "lowest and best bidder meeting specifications, terms, and conditions" with Carpetech being the "Primary" bidder and Petitioner being the "Secondary" bidder. Moreover, the bid tabulation sheet noted that the "price" of each bid was determined by using a "hypothetical" that was typical of a School Board project. This was the first time that the bidders were aware of a hypothetical being used. Respondent had not used a hypothetical in past bids for this type of work, and it was not included in the bid specifications At first, after the bids were opened, Respondent's Department used the base bid, which excluded any alternate work, to determine the apparent lowest bidder. The calculation showed Intervenor as the apparent lowest bidder at $11.03 sq. yd. and Petitioner as the apparent second lowest bidder at $11.08 sq. yd. Carpetech's base bid was $11.295 sq. yd. A discussion ensued as to whether the bids were "too close"; but, there was no consensus as to the meaning of "too close." However, the Department determined that, taking into consideration the alternate work which would have to be done, Intervenor was not the best bidder. The Department first considered recommending the rejection of all bids and readvertising, but decided upon using a hypothetical which included the base bid and the alternates in the calculations. As a result of using the hypothetical, Carpetech, not Intervenor, was the apparent lowest bidder. However, Carpetech, unlike any other bidder, changed one of the specifications in its bid from the "cost of heavy patching" to the "cost of light patching." Respondent admits that a clerical error had occurred and that particular specification should have been "light" patching, instead of "heavy" patching. Also, Carpetech failed to submit an occupational license with its bid. However, subsequent to the bid opening, Carpetech submitted an occupational license. Like Carpetech, Intervenor also failed to submit an occupational license with its bid. 2/ To the contrary, Petitioner submitted an occupational license with its bid. The occupational license forbade Petitioner to have employees at its location but allowed it to hire outside employees, which meant that it could hire contract labor to perform under the contract of the bid. 3/ Out of the three bidders--Carpetech, Petitioner and Intervenor--only Petitioner is a minority owned business. Initially, when Petitioner began its business in December 1991, it was owned by a minority female and a minority male. Subsequently, for financial purposes, the minority female became the sole shareholder/owner and the minority male became the business consultant (consultant), receiving consulting fees. On or about March 24, 1992, Petitioner was certified as a Minority Business Enterprise (MBE) by Palm Beach County, and on or about March 19, 1992, it was certified as a MBE by Respondent, with the certification effective from May 1992 to May 1993. Petitioner became incorporated in or around April 1992 and again in July 1992 when the minority female became the sole owner. Prior to Petitioner's formation, its consultant had his own flooring business (carpet and tile sales and insulation) for several years. The prior business had financial difficulties which resulted in court judgements against it. Petitioner's sole owner was never involved in the consultant's prior business. She provides Petitioner's financial security, and there have been no court judgments against Petitioner. Respondent's Department was familiar with flooring work of Petitioner's consultant before he became associated with Petitioner. He had performed flooring work for Respondent in the past, which was very satisfied with his work. The Department was not aware of the court judgements against the prior business of Petitioner's consultant. However, even if it was, the judgments would not have had a negative effect on Petitioner in the award process of the current contract. On or about April 14, 1993, Intervenor filed its written protest, which was timely. On or about April 22, 1993, Petitioner filed its written protest, which was timely. On April 28, 1993, Respondent held an informal meeting on the written protests. On May 3, 1993, Respondent's counsel issued its recommendation on the protests, which was to "reject all bids and rebid with new terms and conditions and specifications" in order for all bidders to be given "a fair playing field."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on project SB93C-216T and readvertise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of December 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December 1993.
The Issue Whether Petitioner's bid protest should be dismissed for failure to state with specificity the underlying facts of the protest or facts sufficient to form a basis for a bid protest.
Findings Of Fact The Petitioner filed a bid protest of Invitation To Bid (ITB) No. 13- 550-002-A for raised pavement markers. Petitioner was disqualified from award of the bid due to the failure to meet the requirement that the products bid must be on the Florida Department of Transportation Qualified Products List at the time of the bid opening. Petitioner's Formal Protest contains no specific allegations of fact and as such is not in conformance with Rule 60Q-2.004(3), Florida Administrative Code, and Section 120.53(5)(b), Florida Statutes. On December 20, 1995, the Hearing Officer, sua sponte, entered an order requiring Petitioner to file an amended Formal Protest stating with specificity the facts and law which form the basis for its protest. The document filed by Petitioner in response to the order in essence: States there are on-going discussions with the Florida Department of Transportation, ("FDOT") District V Secretary and the Florida Department of Transportation Secretary that should preempt any further litigation. Complains that Section 316.0745(4), of the Florida Statutes is being improperly interpreted by FDOT so that the State is being forced to purchase a highway safety product at a cost far in excess of prudent purchasing practices. Alleges that the Petitioner meets all the qualifications of laboratory and field testing required by the Florida Department of Transportation Materials Laboratory . . . The formal protest filed in this case by Pac-Tec does not provide such notice to the Department of Management Services. Therefore the Department of Management Services cannot prepare an adequate defense to the protest. The response does not cure the deficiencies in the formal protest.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Management Services issue a Final Order dismissing the Formal Protest filed by Petitioner. DONE and ENTERED this 24th day of January, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1996. COPIES FURNISHED: Cindy Horne, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 David H. Smith, Esquire Post Office Box 279 Astor, Florida 32101 Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 William H. Linder, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.
Findings Of Fact State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items. Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows: Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project. The prospective bidders were also given this information in the pre-bid meetings. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows: Bidder Total Bid D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500. Rovel Construction, Inc. $1,559,000. Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows: Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work. When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Robert A. Hingston, Esquire Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P. 901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134 Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health Miami-Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125 William G. Christopher, Esquire Brown Clark, A Professional Association 1819 Main Street, Suite 1100 Sarasota, Florida 34236
The Issue Whether Petitioners' protest should be sustained?
Findings Of Fact Based upon the evidence adduced at the final hearing, the parties' factual stipulations, and the record as a whole, the following Findings of Fact are made: The Parties The Department is a state agency responsible for, among other things, administering the State of Florida's abandoned property program. SMSC is a Delaware corporation authorized to do business in the State of Florida. McGladrey & Pullen, LLP, is an Iowa limited liability partnership licensed and registered to conduct business in the State of Florida. It has 70 offices nationwide (including offices in Fort Lauderdale and West Palm Beach, Florida) from which it provides accounting and consulting services to its clients. Garcia & Ortiz, P.A., is a Florida professional association licensed and registered to conduct business in the State of Florida. Like McGladrey & Pullen, LLP, it provides accounting and consulting services, but does so on a smaller scale. (It has approximately ten employees working out of two offices.) Garcia & Ortiz, P.A., is registered with the State of Florida as a certified minority business enterprise (providing "accounting, auditing, review, compilation services, tax services, management advisory services, [and] data processing services."). On July 29, 1993, McGladrey & Pullen, LLP, and Garcia & Ortiz, P.A., by written agreement, formed a joint venture known as the "McGladrey & Garcia Joint Venture" "for the purpose of submitting bids to the Resolution Trust Corporation ('RTC') to perform various services for the RTC under one or more contracts to be issued by the RTC." The Request for Proposals On or about January 17, 1997, the Department issued and advertised a Request for Proposal, RFP No. BF11/96-97 (RFP), soliciting the submission of proposals "for the providing of services for the receipt and processing of unclaimed property" for the period from June 1, 1997, through May 31, 2000,2 and, "upon mutual agreement in writing," "up to three additional years." The RFP contained the following statement of "purpose:" The purpose of this RFP is to solicit proposals and cost data from organizations that are interested in providing the services to meet all or part of the statement of need above in a modern business environment and who shall perform some or all of the following services: Process annual reports in various formats from holders of unclaimed property pursuant to Chapters 43.19, 402.17, 705.103, 717, 732.1101, 733.816, and 744.534, Florida Statutes and the State's vendors involved in the auditing for unclaimed property; . . . Handle and remit funds, tangible property as necessary and securities received with the annual reports to the State; Process inquiries from holders and distribute information to holders of unclaimed property; Make one attempt to locate owners of unclaimed property and mail claim forms to the apparent owners; Process inquiries from the public and distribute information to the citizens throughout the United States on unclaimed property being held by the Department; Process claim forms received from apparent owners of unclaimed property; Process and issue payment on approved claims to the owners; Process the denial of claims and send the proper documentation to the State upon a request for a hearing by the claimant regarding the denial; Provide access to the public records in accordance with the requirements of Chapter 119, Florida Statutes; . . . Provide a security plan which protects the information on the ADPB [Abandoned Property Database] from unauthorized access or change, and; Assist the Department with the advertising of unclaimed property pursuant to Chapter 717.118, Florida Statutes. Provide an accounting of funds, reports and claims to the Department's satisfaction. The further purpose of this RFP is to set forth the criteria and the process by which the Provider will be evaluated and the basis on which the selection is to be made. Section V.E) of the RFP set forth various "special conditions," including the following: 2. Mandatory Requirements The Department has determined that certain mandatory requirements must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicates a mandatory condition. The words "should" or "may" in this RFP indicates desirable attributes or conditions but are permissive in nature. Deviation from or omission of such a desirable feature will not itself cause rejection of the proposal, but may result in fewer points awarded by an evaluator. In this proposal process alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results will be considered and may be accepted. Such alternatives should be clearly identified by the Respondent in any proposal. 5. Non-Valid Proposals, Non-Responsible Respondents Proposals not meeting all mandatory requirements of this RFP or that fail to provide all required information, documents or materials will be rejected as non-valid. Respondents whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the requirements of the RFP may be rejected as non-responsible. The Department reserves the right to determine which proposals meet the material requirements of the RFP and which respondents are responsible. Legal Requirements Applicable provisions of all federal, state, county and local laws and administrative procedures, regulations, or rules shall govern the development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between persons submitting a proposal hereto and the Department. Lack of knowledge of the law or applicable administrative procedures, regulations or rules by any Respondent shall not constitute a cognizable defense against their effect. 14. Assignment of Contract The Contract cannot be assigned or subcontracted except with the prior written approval of the Department. Monies which become due thereunder are not assignable except with the prior written approval of the Department, and the concurrence of the Comptroller of the State of Florida. In the event of such approval, the terms and conditions hereof shall apply to and bind the party or parties to whom the Contract is assigned as fully and completely as the Provider is thereunder bound and obligated. No assignment, if any, shall operate to release the Provider from its liability for the prompt and effective performance of its obligations under the Contract. Section VI. of the RFP addressed the subject of the "evaluation of proposals." Its prefatory paragraph read as follows: The contract will be awarded to the Respondent at the sole discretion of the Department, whose proposal is determined to be the most advantageous to the Department and the people of Florida. The Respondent must demonstrate through the proposal that that it possesses the expertise and capabilities to perform the services specified herein; has the staff that possesses the experience that closely aligns with the expertise needed by the Department; and that has the integrity, honesty and responsibleness to complete all requirements of the RFP. Section VI.A) was entitled "Award Notice" and provided as follows: Notice of intent to award contract as a result of this Request for Proposals shall be posted in Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida on the date and time shown on the Calendar of Events. Issuance of this Request for Proposals does not oblige the State to select a Respondent or to award a contract. Section VI.B) was entitled "Legal Requirements for Proposals" and provided as follows: Applicable provisions of all Federal, State and County regulations shall govern development, submission and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes that may arise between persons submitting a proposal hereto and the Department, by and through its employees or authorized representatives. Lack of knowledge by any Respondent shall not constitute a recognizable defense against the legal effect thereof. All corporations seeking to do business with the State shall at the time of submitting a proposal in response hereto, be registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes. To be eligible for consideration, each corporation shall include as part of their required documentation, their corporate charter number, or if appropriate, have attached to their proposal a signed statement that said corporation is exempt from the requirements of Chapter 607, Florida Statutes. Similarly, partnerships seeking to submit a proposal shall have complied with the applicable provisions of Chapter 620, Florida Statutes. Section VI.C) was entitled "evaluation team" and provided as follows: The evaluation team will be established to assist the Department in selecting the best Provider for the services set forth in this RFP. The evaluation team will have a minimum of five members. At least two of the members will be from outside the Department. The team will be responsible for proposal evaluation including reference checks and other verifications as required. Section VI.D) was entitled "Evaluation Sheet" and provided as follows: The evaluation sheet to be used by each evaluator may be found in Appendix I. The evaluation sheet lists evaluation criteria and the specific indicators of criteria [that] will be used to assess the degree to which the Respondent's proposal meets the criteria identified in Section VII. Evaluation sheets will be weighted so that each response to the RFP can be numerically valued and the results compared. The "evaluation sheet . . . found in Appendix I" listed the following awards:" "evaluation criteria" and "possible [point] ITEM POSSIBLE AWARD 1) References 2 2) Experience of Principals 2 3) Financial Statements 1 TECHNICAL SUBMISSION Notification of Holders and Holder Seminar 2 Holder Information 2 Annual Reports 2 Penalties and Extensions 2 Holder Information and Inquiries 2 Receipt of Reports & Reconciliation 3 Record Retention of Reports 2 Contacting Apparent Owners 1 Handling Inquiries 2 Origination of Claims 1 Receipt of Claims 1 Initial Processing of Claims 2 Processing and Payment of Claims 3 Exceptions 1 Tracking 1 Records 2 Automation 4 Security Plan 3 Implementation Plan 2 Disaster Recovery Plan 2 Reports Processing Flow Chart and Narrative Procedures 3 Section VI.E) of the RFP described the "evaluation procedure" that the Department would follow in assessing proposals. It provided as follows: The evaluation process will take place in five phases: Phase I- Meeting of mandatory requirements Phase II- Technical evaluation of proposals Phase III- Oral Presentation Phase IV- Public Opening and Evaluation of Fee Schedules Phase V- Posting of Final Results Phase I Mandatory Documentation Worth 0 Points Total During Phase I of the evaluation process the Contract Manger will carefully evaluate all the proposals to ensure that all mandatory documents have been submitted. Failure of any organization or entity to submit all mandatory items will result in that proposal being withdrawn from further consideration. Upon completion of Phase I of the evaluation process each evaluation team member will be provided the proposals to evaluate. Phase IIA. Technical Evaluation Worth 50 Points Total During Phase II of the evaluation process the evaluators will rate selected criteria from each proposal in regard to the RFP. Each area specified on the evaluation sheet will be given a subjective score based on how well the proposal answers the minimum specifications, on the innovativeness and clarity of the response and on any extra benefit to the State where responses exceed minimum specifications. After each evaluator has independently completed his evaluation sheet (see Appendix I) [t]he total assigned points for each proposal will be averaged across all five evaluators. B. Minority Business Participation Worth 10 Points Total If twenty-four percent or more of the Contract value- 10 points. If less than 24 percent, proposed percentage divided by twenty-four, times []103 No participation by Certified Minority Business Enterprises (CMBEs), no points The Department of Banking and Finance wishes to encourage award of the Contract, or subcontracting of portions of the Contract to, or purchase of good[s] and services from, State of Florida CMBEs. Each Respondent must state whether or not Respondent is a CMBE, and if not, what percentage of the total Contract price will be spent with CMBE firms who will be supplying them. The CMBE participation claimed in the technical proposal must be substantiated in the price proposal, or points assigned for the unsubstantiated CMBE participation will be withdrawn. NOTE: Not all minority business enterprises are presently certified by the State. However, only certified CMBEs will be considered in evaluating this portion of a Respondent's proposal. The Issuing Officer has a directory of CMBEs which is available for review upon request. Respondents may also obtain information of CMBEs by contacting: Minority Business Advocacy and Assistance Office 107 Gaines Street Tallahassee, Florida 32399-0950 Telephone (904) 487-0915 The Contract Manager will average the points for each respondent upon completion of Phase II. Phase III Oral Presentations Worth 10 Points Total An oral presentation is required in accordance with the Calendar of Events. Respondents must address/discuss advantages/strengths of its proposal including but not limited to any of the following areas: Vendor Qualifications (Project experience/project team qualifications) Scope of Solution (Equipment/Software/Installation/Maintenance/ Training/Project Management and Liaison) The presentation will be allowed a maximum of four hours per Respondent and will be given to the assembled evaluation team who shall independently award points for the presentation. Presentations will be given in Room 547 of the Fletcher Building, Tallahassee, Florida. Points will be averaged across the evaluation team members. Phase IV Worth 30 Points Total The Fee Schedule must be submitted in a separate and sealed envelope and must be labeled "Request for Proposal for the Providing of Services for the Receipt and Processing of Unclaimed Property, RFP BF11/96-97." When Phases II and III have been completed and the scores averaged, the Purchasing Agent in accordance with the Calendar of Events will open the Fee Schedules. The Purchasing Agent will evaluate the fee schedules. The lowest cost proposal will be awarded a maximum of 30 points based on lowest overall cost (Block G on the Fee Schedule (Schedule J)). The instructions for filling out the form are as follows: The Abandoned Property Program has three easily measured outputs. The Department proposes to pay the Provider based on these three measurable outputs. Production under the contract may exceed anticipated levels in one output area but not in another. For that reason, Respondents are requested to estimate cost for each area of effort that is separately depicted on the Fee Schedule. The planned number of units for each area; 16,000 reports, 320,000 inquiries made by telephone, and 160,000 claims processed are the anticipated levels of effort for Fiscal Year 1997-98. The projected cost per unit in each area must include items that are ancillary or support functions associated with that portion of process. For example: The inquiries cost will be a per unit cost based on 320,000 transactions. For the inquiries section of the effort the measurable transaction will be defined as an incoming phone call on the 1-888/1-800 line. Ancillary or support services that must also be provided in the inquiries portion of the process would include, but not be limited to, such things as answering e-mail or surface mail inquiries, maintaining an Internet site, the amortized cost of the equipment placed in the public access spaces in Tallahassee, and the proportional cost of equipment, supplies and maintenance. The cost of inquiries support services will have to be figured into the gross cost of maintaining the inquiries section and then divided by 320,000 to arrive at a per unit cost. The gross cost of operating the inquiries unit must be entered into block D of the Fee Schedule. The per unit cost must be entered into block C. This procedure must be repeated for each of the three sections. The Provider will invoice the Department and be paid based upon performance of units performed in each area and the cost per unit. Costs under the contract may overrun the target amount in Block B or D or F but in no case shall the Provider without prior and specific written permission from the Department's Contract Manager exceed the block G amount. It is the responsibility of the Provider to keep the Contract Manager apprised of the status of the payments and to alert the Contract Manager as early as possible to the possibility that block B, D or F amounts may be exceeded. Add blocks B, D and F to get the total cost of the contract. Enter this figure in block G. Comparison between Respondent[]s will take place at the bottom line (Block G) Enter the annual cost of the equipment in the public records room (four workstations) and the proportional cost of the T-1 line into block H. The cost of the equipment and line identified in block H is for Departmental use only. The cost must included as an ancillary cost in block D. The purpose of this particular cost breakdown is to document contractor performance against measures of success. If activity in one area of the contract is significantly out of tolerance in comparison to expectation and it is evident that available funding will degrade performance, the Department may request increased spending authority based on performance to date. The Lowest Cost (LC) proposal block G divided by the Proposal being Considered (PC) block G cost will be multiplied by 30 to determine point value comparison. LC/PC x 30 = points for fee schedule In the event the result is not an integer, the values below .50 will be rounded down to the nearest integer. Values of .50 and above will be rounded up. The points awarded from the fee schedule evaluation will be added to the averaged scores of the evaluation team and used to determine the selection of a Provider. In the event of a tie the contract will be awarded in accordance with Section 60A-1.011, Florida Administrative Code (see Appendix K) The instructions for filling out the form are as follows: Example: Respondent A bids $3.0 M (block G) and Respondent B bids $4.0 M (block G) Respondent A gets: $3M/$3M x 30 = 30 points Respondent B gets: $3M/$4M x 30 = 23 points Phase V Posting Upon completion of Phase IV the intent to award will be posted at Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0350 Section VII. of the RFP listed the "documents required in submitting proposal." It provided as follows: For purposes of uniformity among proposals, documents must be arranged in this order. Original Form- PUR 7033 State of Florida- Request for Proposal Contractual Services Acknowledgment Designated Spokesperson for RFP The Respondent must designate, in writing, the official of the organization authorized to sign all applicable documents in this RFP. Proof of Legal Entity Respondent must provide evidence that the organization is a legal entity. Incorporated Respondents must provide either a copy of the corporation[']s[] most recent annual report on file with the appropriate state agency, or, if incorporated within the last 12 months, a copy of the corporation[']s[] Articles of Incorporation and Charter Number assigned by the appropriate agency. Businesses that are not incorporated must provide a copy of their business or occupational license. Partnerships must submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes. The proposal must include a sworn and signed statement that the Respondent will comply with all the terms and conditions of the RFP and applicable addenda. Conflict of Interest This contract is subject of Chapter 112, Florida Statutes regarding conflict of interest. The proposal must include a signed statement that the Respondent has no conflict of interest. The Respondent must disclose the name of any State employee who owns directly or indirectly, an interest of five percent (5%) or more in the Respondent's firm or any of its subsidiaries. This shall be an ongoing requirement for the life of the contract and failure to comply will subject the contract to cancellation. Designated work site within Florida. The Respondent shall include the geographic location of the site where the processing of reports and claims will take place. The Respondent must include a minimum of three references on the integrity and honesty and responsibility of the firm and their experience in processing data, handling inquiries and processing claims for payment. Include satisfaction with services provided, and the ability of the contractor to adapt and adjust to changing requirements in an innovative and positive manner. The Respondent must include a chart of the organization, indicating how the Respondent's staff will fit into the total organization. The Respondent must include a resume/vita for each principal of the business who will perform professional services for the proposed project. Financial Statements- The Respondent must provide evidence of sufficient financial resources and stability to provide the short term financing needed by the State of Florida. At a minimum this evidence must include financial statements audited by a certified public accountant that includes balance sheets and income statements for the Respondent's two most recent fiscal years. These documents should break out subsidiary data if the Respondent is part of a larger entity. Technical submission in response to Section II Scope of Services of the RFP, organized in response to each subheading in Section II. Security plan Implementation plan in accordance with Appendix E Disaster recovery plan Reports and receipts processing flow chart and narrative procedures. Depict separation of duties. Claims processing and payment flow chart and narrative procedures. Depict separation of duties. Proof of insurability to $1,000,000.00 per employee theft or malfeasance. Drug Free Workplace Certification Preference for Offerors with Drug-free Workplace Program: Pursuant to Section 287.087, Florida Statutes, preference must be given to offerors which certify having a drug-free workplace whenever two or more proposals which are equal with respect to price, quality, and service are received. Offerors must sign and return Appendix L with the proposal to qualify for this preference. Completed Fee Schedule- Sealed in a separate envelope marked "Fee Schedule for RFP BF11/96-97" Addendum Acknowledgment Forms Appendix L to the RFP (reference to which was made in Section VII.R.) read as follows: IDENTICAL TIE PROPOSALS- Pursuant to Section 287.087, Florida Statutes, preference shall be given to businesses with drug-free workplace programs. Whenever two or more proposals which are equal with respect to price, quality, and service are received by the State for the procurement of commodities and contractual services, a proposal received from a business that certifies it has implemented a drug-free workplace program shall be given preference in the award process. Established procedures for processing tie proposals will be followed if none of the offerors have a drug-free workplace program. In order to have a drug- free workplace program, a business shall: Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying actions that will be taken against employees for violations of such prohibitions. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. Give each employee engaged in providing the commodities or contractual services that are under proposal a copy of the statement specified in paragraph 1. In the statement specified in paragraph 1., notify the employees that, as a condition of working on the commodities and contractual services that are under proposal, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendre to, any violation of Chapter 893, Florida Statutes, or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this program. In order to qualify for this tie proposal preference, this certification must be completed and submitted with the proposal. As the person authorized to sign the statement, I certify that the offeror complies fully with the above requirements. Offerors's Name: Signature Name- Typed or Printed Date Bidders' Conference A bidders' conference was conducted by the Department on February 4, 1997. Among those in attendance at the conference were representatives of SMSC and State Street Bank & Trust Company (State Street).4 Neither McGladrey & Pullen, LLP, nor Garcia & Ortiz, P.A., sent a representative to the conference. The following discussion concerning the subject of subcontracting took place at the conference: Q: Page 30, Part V, Section 14: Does this section prohibit any subcontracting, or only subcontracting for those tasks specifically addressed by the RFP? Only those specifically addressed with Department approval. Q: Bill Gavin [one of State Street's representatives at the conference]- If Provider is considering sub-contracting during the relationship of the proposed bid, what does the Provider do for approval? Peter DeVries [bureau chief of the Department's Bureau of Abandoned Property]- Spell out the parts of the contract that are anticipated to be subcontracted. This is to protect us from someone who is not a corporate entity coming in and saying that he can do the whole job and we find out he is not doing anything. He is using subcontractors and trying to manage them as a shell corporation. It should be part of the proposal. SMSC's Proposal SMSC submitted one of the two proposals the Department received in response to the RFP.5 SMSC's proposal contained the following statement concerning "minority business participation:" SMSC is not a Florida Certified Minority Business Enterprise (CMBE). However, SMSC intends to subcontract with Interim Personnel of North Florida, Inc., a CMBE. They are already performing on an existing contract with SMSC in our Panama City Servicing Center. Their certification is shown below. The participation of Interim Personnel is reflected in the completed fee schedule in Section 20. They will provide at least 10 percent of the contract value. They will provide employees who will be located in our Panama City Servicing Center. Additionally, some $500,000 in equipment purchasing will be offered to minority firms and procured from them if their prices are equal or less than our standard prices. We expect this to equal 3% of the contract award over the life of the contract. The completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal reflected (in Block G) a "total annual cost" of $4,800,000.00 and (in Blocks J and K) "total annual CMBE purchases" of $980,000.00, amounting to 20.42% of the "total annual cost." The Other Proposal The cover page of the other proposal that the Department received in response to the RFP, which hereinafter will be referred to as the "MGS Proposal," indicated that it was "[p]resented by McGladrey & Garcia, Joint Venture [and] State Street Bank & Trust Company."6 Printed at the bottom of various pages of the MGS Proposal were "McGladrey and Garcia, Joint Venture/State Street Bank & Trust Company." The MGS Proposal contained an introductory letter signed by Mark Jones of McGladrey & Pullen, LLP, J. Edward Del Rio of Garcia & Ortiz, P.A., and William Gavin of State Street, which read, in part as follows: McGladrey & Garcia, JV, with its subcontractor, State Street Bank & Trust, is pleased to present its response to RFP BF11/96-97: Services for the Receipt and Processing of Unclaimed Property. The McGladrey/State Street team is exceptionally well qualified to assume responsibility for administering the State of Florida's Abandoned Property program. Our team brings the following experience and resources to this contract: . . . Experience of the Team: McGladrey & Garcia JV is a joint venture between McGladrey & Pullen LLP, and Garcia & Ortiz, PA. . . McGladrey & Pullen is the nation's 7th largest accounting and consulting firm. . . . Garcia & Ortiz is one of the largest independent accounting and consulting firms in the State of Florida. . . . State Street Bank & Trust is one of the leading servicers of financial assets in the world. . . . Section A. of the MGS Proposal contained a completed Original Form PUR 7033. Typed in under "vendor name" on the form were "McGladrey & Pullen, LLP[,] Garcia & Ortiz, P.A. and State S[t]reet Bank." The form included the following certification, which was signed by Mark Jones in his capacity as "[p]artner:" I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency of the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. Section B. of the MGS Proposal contained the following statement: Designated Spokesperson for RFP Mark A. Jones, a Partner of McGladrey & Pullen is authorized to negotiate and sign all applicable documents in the RFP, and any contractual documents that are party to this contract between the State of Florida and McGladrey & Pullen, LLP and Garcia & Ortiz, P.A.7 In Section C. of the MGS Proposal (dealing with "proof of legal entity"), reference was made to "the members of our team, including McGladrey & Pullen, Garcia & Ortiz, and State Street Bank." No mention was made of the McGladrey & Garcia Joint Venture, nor was any proof of the joint venture's existence as a legal entity included (along with the documentation that was provided relating to McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street), in this section of the proposal. The following witnessed, but unsworn, statement, signed by Mark Jones (and the witness), constituted Section D. of the MGS Proposal: Compliance With Terms and Conditions of RFP I, Mark A. Jones, Partner of McGladrey & Pullen, LLP, acknowledge and agree that we will comply with all terms and conditions of the RFP and applicable addenda. Section E. of the MGS Proposal consisted of an unsigned statement regarding "conflict of interest," which read, in part, as follows: Conflict of Interest Conflicts We understand that this contract is being awarded subject to the provisions of Chapter 112, Florida [S]tatutes. We affirmatively state that no officer, director, employee or agency of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank is also an officer or an employee of the Department, the State of Florida, or any of its agencies. We affirmatively state that no state officer or any employee owns, directly or indirect[ly], an interest of five percent (5%) or more of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank. We affirmatively state that neither McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank paid, or will pay, any compensation to any employee, agent, lobbyist, previous employee of the Department or any other person who has registered or is required to register under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Department in connection with this procurement. Litigation McGladrey & Pullen, LLP: . . . Garcia & Ortiz, PA: . . . State Street Bank: . . . The McGladrey and Garcia Joint Venture was not mentioned in this section of the MGS Proposal. Section F. of the MGS Proposal discussed a "designated work site within Florida." It read as follows: Designated Work Site Within Florida We propose to house our Unclaimed Property Processing operation in Tallahassee. We have identified seven suitable sites within a five mile radius of the Fletcher Building, and we will make our final selection upon notification of contract award. Although McGladrey & Pullen and its network affiliates have 10 offices in Florida that could house the Unclaimed Property Processing Function, the advantages of establishing our facility in Tallahassee are compelling. Our outsourcing experience has conclusively shown us that physical proximity is essential. Technology is wonderful, but nothing is an effective substitute for personal communication. We fully expect that during the transition period we will be meeting several times each week with the Department's oversight people, and there will routinely be the need to meet on short notice to resolve issues or special situations. Driving one or two hours to accomplish these meetings places an unnecessary roadblock to success. Further, we anticipate that the need for close, personal communication will continue throughout the term of the contract. The RFP refers to a number of future initiatives in technology, operations, and outreach. Close coordination between the Department and us is required; this will be greatly facilitated by placing our operation in Tallahassee. In addition, ongoing contract oversight and issues resolution (either holders or claimants) will be made much easier with a Tallahassee location. Finally, we will be seeking selected staff of the State's Unclaimed Property Bureau who will lose their jobs as a result of the outsourcing contract. We have successfully done this on other outsourcing contracts to the mutual benefit of us, the displaced employees, and client. Maintaining the operation in Tallahassee will greatly enhance our ability to attract good people to a career opportunity with our firm. In Section G. of the MGS Proposal, the qualifications of the "McGladrey/State Street team" were described. The McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street were all mentioned in this section of the proposal. Individuals expected to play key roles in the delivery of services under the contract, if awarded, were identified in Section H. of the MGS Proposal. The resumes of these individuals, who included employees of the McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street, were set forth in Section I. of the MGS Proposal. Section J. of the MGS Proposal contained unaudited financial statements for McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation (identified in Section J. as "a division within State Street Bank & Trust Company.")8 In Section Q. of the MGS Proposal, written proof of the insurability of McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation was provided. Section R. of the MGS Proposal consisted of a completed, signed (by Mark Jones) and dated (February 25, 1997) "Certification of Drug-Free Workplace Program" (Appendix L). Typed in on the line where the "[o]fferor's [n]ame" was to be indicated were "McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street Bank." Section S. of the MGS Proposal contained a completed Fee Schedule (Appendix J), which reflected (in Block G) a "total annual cost" of $7,520,000.00. Attached to this completed Fee Schedule was the following written statement: The firm or Garcia & Ortiz, P.A. is a certified Minority Business Enterprise (CMBE), certified by the Florida Minority Business Advocacy and Assistance office. Attached is a copy of the certification. Forty percent of the contract value will be spent with Garcia & Ortiz, P.A. Evaluation of the SMSC and MGS Proposals Both SMSC's proposal and the MGS Proposal were deemed to be responsive to the RFP. Copies of the two proposals, along with copies of the RFP, were submitted to the evaluation team on March 3, 1997. Phase IIA. A team of five evaluators evaluated the two proposals submitted in response to the RFP for technical merit. SMSC's proposal received scores of 23, 48, 49, 50 and 47 from the evaluation team members for a point total of 217, which, when "[a]veraged across all five evaluators," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 43.4 for Phase IIA. ("Technical Evaluation") of the "evaluation procedure." The MGS Proposal received scores of 50, 45, 50, 50 and 44 from the evaluation team members for a point total of 239, which, when "[a]veraged across all five evaluators," yields a score of 47.8. for Phase IIA. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase IIA., "rounded down" the SMSC score (of 43.4) to 43 and "rounded up" the MGS score (of 47.8) to 48. Phase IIB. In calculating the number of points to award SMSC's proposal for Phase IIB. ("Minority Business Participation") of the "evaluation procedure" set forth in Section VI.E) of the RFP, the Department used the "proposed percentage" of "Annual Contract to CMBE" (20.42) indicated in Block K of the completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal. The "proposed percentage" reflected participation by Interim Personnel of North Florida, Inc., ("10 percent of contract value," which, on an annual basis, would amount to $480,000.00) and, in addition, the "$500,000 in equipment purchasing" that SMSC represented in its proposal would "be offered to minority firms and procured from them if their prices [we]re equal or less than [SMSC's] standard prices." Dividing SMSC's "proposed percentage" by 24 and multiplying the result by 10 yields a score of 8.508, which the Department "rounded up" to 9, notwithstanding that Phase IIB. of the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding." If SMSC had received "Minority Business Participation" credit only for Interim Personnel of North Florida, Inc.'s, proposed participation in the project (and not for the "$500,000 in equipment purchas[es]" it indicated it would make, under certain conditions, from "minority firms" (hereinafter referred to as the "Minority Equipment Purchases"), it would have received, in accordance with the provisions of Section VI.E) of the RFP, 4.16 points for Phase IIB. Because the MGS Proposal provided for "Minority Business Particiapation" in excess of 24% of the "contract value," it was awarded the maximum number of points (10) for Phase IIB. Phase III Oral presentations were made (to the evaluation team) in support of each of the two proposals submitted in response to the RFP. The oral presentation made in support of SMSC's proposal received scores of 6, 10, 9, 5 and 10 from the evaluation team members for a point total of 40, which, when "[a]veraged across the evaluation team members," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 8 for Phase III. ("Oral Presentations ") of the "evaluation procedure." The oral presentation made in support of the MGS Proposal received scores of 10, 5, 8, 10 and 5 from the evaluation team members for a point total of 38, which, when "[a]veraged across the evaluation team members," yields a score of 7.6 for Phase III. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase III, "rounded up" the MGS score (of 7.6) to 8. Phase IV Of the two proposals submitted in response to the RFP, SMSC's proposal was the "lowest cost (LC)." Accordingly, in accordance with the provisions of Section VI.E) of the RFP, it was awarded the maximum number of points (30) for Phase IV of the "evaluation procedure." Dividing the amount in Block G on SMSC's completed Fee Schedule (Appendix J) by the amount in Block G on the completed Fee Schedule submitted as part of the MGS Proposal and multiplying the result by 30 yields a score of 19.148, which the Department "rounded down" to 19 in accordance with the provisions of Phase IV of the "evaluation procedure" set forth in Section VI.E) of the RFP, which, unlike the provisions of Phases II and III, provide for "rounding" when "the result is not an integer" ("down," in the case of "values below .50," and "up," in the case of "[v]alues of .50 and above.") Total Points for Phases IIA., IIB., III and IV According to the Department's calculations9 (which were determined, in writing, by its Office of the General Counsel, to have been "in substantial compliance10 with the evaluation methodology set forth in the RFP"), SMSC's point total for Phases IIA., IIB., III and IV combined was 90, compared to 85 for the MGS proposal. Had the Department not used the "rounding" provisions of Phase IV to calculate the points awarded for Phases IIA., Phase IIB. and Phase III, and had it determined (as Petitioners allege it should have) that the only CMBE participation for which SMSC was entitled to receive "Minority Business Participation" credit was the proposed ("10 percent of the contract value") participation of Interim Personnel of North Florida, Inc., SMSC would have received 85.56 total points for Phases IIA., IIB., III and IV combined, compared to 84.40 for the MGS proposal. Notice of Intended Award On March 18, 1997, the Department posted a bid/proposal tabulation sheet indicating its intent to award SMSC a contract pursuant to the RFP. The bid/proposal tabulation sheet reflected that the combined point totals for SMSC's proposal and the MGS Proposal were 90 and 85 points, respectively. Petitioners' Protest On March 20, 1997, Petitioners filed their Notice of Protest with the Department. The notice was filed within 72 hours after posting of the bid/proposal tabulation sheet. On March 28, 1997, (which was within ten days after the filing of the notice), Petitioners filed their formal written protest challenging the intended award of the contract advertised in the RFP to SMSC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioners' protest of the Department's decision to award the contract advertised in RFP No. BF11/96-97 to SMSC. DONE AND ENTERED this 30th day of May, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997.
The Issue On March 16, 1992, Petitioner filed motions for attorney's fees and costs pursuant to Sections 57.105 and 120.57(1)(b)5., Florida Statutes. At hearing, Petitioner conceded that Section 57.105 is inapplicable to administrative hearings and the case proceeded on the issue of entitlement under Subsection 120.57(1)(b)5., Florida Statutes. The issue of an appropriate amount of fees and costs is moot, for the reasons set forth below, although that issue was reserved for ruling, if necessary, after an evidentiary hearing.
Findings Of Fact The following findings are gleaned from the record in case number 92- 0247BID. On June 21, 1991, the Department of Health and Rehabilitative Services (HRS), Developmental Services Program Office, published its need for six (6) bed or less intermediate care facilities for the developmentally disabled (ICF/DD) throughout the state, in each of eleven HRS planning districts. The notice solicited competitive proposal applications for varying numbers of beds in each district. The notice stated that applications would be received in each district no later than 5:00 p.m., September 19, 1991, and that final awards would be made on November 22, 1991. Sunrise Community, Inc. (Sunrise), filed petitions for formal hearing in response to denial of its proposal applications in several HRS districts. On January 2, 1992, the petitions were dismissed by HRS with leave to amend. An amended notice of bid protest and petition for formal hearing was filed by Sunrise on January 9, 1992, as to HRS District VII, and was forwarded to the Division of Administrative Hearings (DOAH) for conduct of the hearing. DOAH number 92-0247BID was assigned to the undersigned Hearing Officer and was set for hearing on January 31, 1992, within the deadline required by Section 120.53(5), Florida Statutes. HRS filed a motion to dismiss the amended petition on January 22, 1992, alleging that Petitioner, with its third-ranked proposal, lacked standing to protest, and further alleging that the amended petition lacked specificity. On January 23, 1992, Salem Village MRDD, Inc. (Salem), filed a Petition to Intervene, as the apparent successful bidder in HRS District VII. The second-ranked bidder, Community Services of Orange and Seminole, Inc. (CSOS) also petitioned to intervene in DOAH Case number 92-0247BID and had filed a separate Amended Notice of Bid Protest on January 17, 1992. HRS' motion to dismiss was heard on January 27, 1992. An order was entered on January 29, 1992, consolidating the Sunrise and CSOS petitions, granting Salem's petition to intervene, and denying HRS' motion to dismiss, but requiring Petitioner, Sunrise, to provide specifics of its factual allegations either through responses to discovery or in an amended petition to be served on opposing counsel prior to commencement of the hearing on January 31st. In the meantime, the parties were engaging in discovery, filing motions related to discovery and were proceeding towards hearing in this and the other cases arising from Sunrise's bid protests in other HRS districts. On the afternoon of January 30, the day before the scheduled hearing, after learning that CSOS was dismissing its petition, Sunrise withdrew its challenge in this District VII case and notified the parties by telephone. The Hearing Officer was notified directly by telephone by counsel for CSOS and the hearing scheduled to commence in Tallahassee on January 31 was cancelled. Without the participation of the second-ranked bidder, CSOS considered its chances of prevailing, as third-ranked bidder, were substantially reduced. A "Modified Amended Notice of Bid Protest," clearly mailed prior to Sunrise's voluntary dismissal, was filed at the DOAH on January 31, 1992. The identical pleading was apparently filed in this party's other bid protest cases in the other HRS districts, as the certificate of service reflects service on various other HRS district counsel. The pleading provides in paragraph 6.(a)- (z), pages 6-8, some specifics of Sunrise's allegations of defects in Salem's proposal and the bid committee's evaluation. The bid protest of Sunrise filed, not simultaneously, but at least contemporaneously with the protest of CSOS, the second-ranked bidder, did not itself cause delay in the process, and it was orally dismissed within hours or minutes of the attorney's discovery of dismissal by CSOS. The substantial weight of evidence in the record supports a finding that Sunrise's initiation and pursuant of a bid protest in Case number 92-0247BID was not for an improper purpose. There was a delay of several weeks between the oral dismissal and the order entered on March 20, 1992, remanding the file to HRS and closing DOAH's file. This delay was occasioned by the Hearing Officer's reluctance to close a file without written confirmation of dismissal, particularly since pleadings were still being docketed, erroneously, under the DOAH file number 92-0247BID. Those pleadings were identical to pleadings filed in several other HRS district bid cases that were still active. Salem, a party in those other cases, one of which proceeded to formal hearing and is waiting a recommended order, has not demonstrated any prejudice by that delay.
The Issue The issues are: (1) whether the Petitioner's notice of bid protest filed on June 5, 1996, was timely under Section 120.53(5), Florida Statutes, and, if not, whether Petitioner has waived its right to participate in bid protest proceedings; and (2) if Petitioner's bid protest was timely filed, whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in rejecting the Petitioner's bid.
Findings Of Fact The Petitioner is a general contractor which operates in Alachua County and surrounding areas. The Respondent is the governing body of the school district in Alachua County. In April and May, 1996, the Respondent publicly advertised an Invitation to Bid on the Project which consists of hard courts for basketball, driveway paving and new drainage provisions. Petitioner and three other bidders timely submitted sealed bids to the Respondent at its office located at the E. Manning, Jr. Annex, 1817 East University Avenue, Gainesville, Florida. Petitioner's bid proposal included a Contractor's Qualification Statement setting forth Petitioner's experience and financial qualifications to act as the general contractor for the Project. There is no evidence that Petitioner is disqualified as a responsible bidder because: (a) it colluded with other bidders; (b) it based its proposal on bid prices which were obviously unbalanced; (c) it included any false entry in its bid proposal; or (d) it failed to completely fill out the required list of subcontractors. The Invitation to Bid does not set forth any other specific conditions which would disqualify an otherwise responsible bidder. However, Respondent reserves the right to reject any and all bids when it determines that such rejection is in its interest. Respondent publicly opened the bids and read them aloud at 2:00 P.M. on May 9, 1996 as required by the Invitation to Bid. Petitioner did not attend the opening of the bids. The Invitation to Bid specified that the bids would be "tabulated and evaluated by the Superintendent of Schools of Alachua County or member or members of his staff or other individual or individuals designated by him." Edward Gable is Respondent's Director of Facilities. The Superintendent designated Mr. Gable to evaluate bids received for facility projects and to formulate recommendations to Respondent. The Invitation to Bid does not set forth a time certain in which Respondent will notify bidders of its decision or intended decision. However, it does state as follows: At the next regular or special meeting of the Board or at the designated meeting thereafter, the bids, as so opened, tabulated and evaluated, and the recommend- ation of the Superintendent of Schools of Alachua County regarding them shall be presented to the lowest responsible bidder meeting the requirements of the law and the State Board of Education Regulations. In Section 19.1 of the Instructions to Bidders, Respondent informs bidders that it will award the contract to the lowest bidder as soon as possible provided that the lowest bid is reasonable and in Respondent's best interest. The Invitation to Bid provides bidders with the following notice relative to Respondent's decision or intended decision concerning a contract award: The Board shall provide notice of its decision or intended decision concerning a contract award. Notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statues, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written "Notice of Protest" within seventy-two (72) hours after posting or notification. A formal written protest shall be filed within ten (10) calendar days after filing the 'Notice of Protest.' Section 17.1 of the Instructions to Bidders contains the following language concerning Respondent's decision or intended decision: 17.1 The Board shall provide notice of its decision or intended decision concerning a contract award. For any other decision, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Section 18.1 of the Instructions to Bidders provides as follows: Bid tabulations with recommended awards will be posted for review by interested parties at the Planning and Construction Department, 1817 East University Avenue, Gainesville, Florida, following the bid opening, and will remain posted for a period of 72 hours. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute as (sic) waiver of proceeding under Chapter 120, Florida Statutes. The Invitation to Bid and the Instructions to Bidders distinguish between a protest concerning a contract award and a protest related to the specifications contained in an invitation to bid or in a request for proposals. In the latter context, a bidder must file a written protest within seventy-two (72) hours after receipt of the project plans and specifications. This case does not involve a protest of a bid solicitation. By virtue of the above referenced provisions in the Invitation to Bid and the Instructions to Bidders, Respondent gave all bidders sufficient and reasonable notice that a posted tabulation together with its recommendation constituted Respondent's intended decision. The bid specifications in the instant case required bidders to submit a bid on a base contract for certain school facility improvements with alternate bids relative to additional improvements in the event Respondent decided to include such features in the Project. Petitioner's base bid was $135,000; it was the lowest bid submitted. The next low bid was from Watson Construction Company, Inc. (Watson) at $133,345. Two additional bids were higher than Watson's bid. On the morning of May 30, 1996 one of Petitioner's employees, Roger "Dave" Williams" phoned Mr. Gable to inquire about the status of the bid award. Mr. Gable was unavailable to take the call. Mr. Williams left a message for Mr. Gable to return the call. Next, at approximately 10:00 a.m. on May 30, 1996, Mr. Williams called a member of Mr. Gable's staff who stated that, as far as he knew, Respondent had not made a decision on the contract. Mr. Gable completed his evaluation and posted the bid tabulation on May 30, 1996 at 3:00 p.m. Included on the bid tabulation was the following statement: RECOMMENDED ACTION: It is recommended that the Board reject the low base bid as submitted by D. E. Wallace Construction Corporation, Alachua, Florida, due to past unsatisfactory contract performance. It is recommended that the Board accept the base bid of $133,345. and award a contract for construction totaling $133,345. to Watson Construction, Gainesville, Florida. Completion of this project shall be within ninety (90) consecutive calendar days from the date indicated in the 'Notice to Proceed.' The bid tabulation clearly notes that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Respondent regularly posts notices of intended decisions concerning bid awards on a bulletin board in the main hallway of the E. D. Manning Annex. A title at the top of the bulletin board identifies it as the location for bid postings. Respondent posts a copy of Section 120.53(5), Florida Statutes, and a copy of the Respondent's Policy DJC--Bidding Requirements below the title of the bulletin board. Respondent has adopted Policy DJC as a rule through a formal rulemaking process. Policy DJC states as follows in pertinent part: The Board shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery. For any other Board decisions, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. The notice shall contain the following two paragraphs. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written notice of protest within 72 hours after the posting or notification. A formal written protest shall be filed within 10 calendar days after filing the notice of protest. . . . Failure to file a timely notice of protest or failure to file a timely formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Immediately below Policy DJC is a space where Respondent always posts its bid tabulations which include the recommended action on each project and notice that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The bottom of the board, in large letters, contains the following words: "Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." This permanent bulletin board, read as a whole, contains more than enough information to provide bidders with notice of an intended decision and the time frames within which a disappointed bidder must file a written protest. Although he was not required to do so, Mr. Gable telephoned Petitioner's office on the afternoon of May 30, 1996 to advise its president, D. Wallace, of the recommendation. Petitioner was not available to accept that call. Mr. Gable placed another courtesy telephone call to Petitioner on the morning of May 31, 1996. During that conversation, Mr. Gable informed Mr. Wallace of the recommendation for Respondent to reject Petitioner's bid and accept the next lowest bid. Petitioner's representative inspected the posting board in the afternoon on May 31, 1996. On June 3, 1996, Respondent sent Petitioner by facsimile transmission a copy of the agenda for Respondent's June 4 meeting, items H.1. of which was: H.1. Bid Award for Project SBAC CB436 - Newberry High School Site Improvements. Bids for the construction of this project were received on May 9, 1996. Recommendation will be presented. The seventy-two hour window in which a bidder may file a protest does not include Saturdays, Sundays or holidays. Therefore, the time in which a bidder could have filed a protest of Respondent's intended decision in this case, expired June 4, 1996 at 3:00 p.m. No bidder had filed a written protest at that time. Respondent held a regular meeting on June 4, 1996, at 7:00 p.m. When Respondent considered the bid award for Project SBAC CB 436, Mr. Gable presented the recommendation that the Board reject Petitioner's bid and accept Watson's bid due to Petitioner's past unsatisfactory contract performance. Petitioner's counsel spoke against the recommendation. At that time the Petitioner had not filed any written notice of protest. After discussion, Respondent voted to award the contract to Watson. Respondent and Watson executed a contract for the construction of the Project on June 4, 1996. The next day, on June 5, 1996, at 3:40 p.m., Petitioner filed with Respondent, by facsimile transmission, a Notice of Protest challenging the award of the contract for the Project to Watson. The filing of this protest was untimely. Therefore, Petitioner waived its right to protest Respondent's decision or intended decision on the Project. The basis of Respondent's intended decision and ultimate final decision to reject Petitioner's low bid was due to Petitioner's past unsatisfactory performance. The following facts support a finding that Petitioner was not a responsible bidder. Respondent awarded Petitioner the contract for a previous construction project, Project SBAC CA 149, Additions and Renovations for Terwillegar Elementary School. That project included the construction of a number of school buildings. The contract amount was approximately 5.1 million dollars. The last building in the Terwillegar project became "substantially complete" in September, 1995. In January, 1996, Mr. Gable wrote a letter to Petitioner, informing him of the outstanding punch list items for the Terwillegar project. A contractor must complete punch list items and have them approved prior to "final completion." In the Terwillegar Project, the contract provided for compilation of items on the punch list within thirty (30) days from "substantial completion." As of May 30, 1996, Petitioner had not responded to Mr. Gable's letter about the Terwillegar punch list, nor had it completed the punch list. Many of the items on the list were minor, but some of the items involved the safety or integrity of the building structure. The Terwillegar project contract also contained a project closeout section which listed a variety of documents and other materials that Petitioner had to provide to Respondent as part of the "final completion." Included in the Terwillegar project's closeout were items such as insurance change-over requirements, warranties, workmanship bonds, maintenance agreements, final certifications, a final payment request, consent of surety, maintenance manuals, record drawings, record specifications, record project date, and operating instructions. As of May 30, 1996, Petitioner had not provided any of the Terwillegar project closeout materials to the Respondent. The delay in project closeout, after substantial completion, is completely unacceptable to the Respondent. Prior to the opening of bids in this case, Petitioner filed a civil suit against Respondent seeking approximately $1,500,000 representing the unpaid contract balance, subcontractors' and material suppliers' claims for labor and material, and other delay-related damages on the Terwillegar project. Petitioner's claim that Respondent's intended decision and/or final decision was based on personal animosity and bias against Mr. Wallace is contrary to more persuasive evidence. Specifically, Petitioner's Exhibit 6 is not persuasive evidence of bias. The Petitioner's president, D.E. Wallace, has over 30 years in the construction field, including 22 years as an owner/operator of a general contractor company. He has completed more than 100 projects in north Florida in the past eighteen (18) years, including 30 school board construction projects. Mr. Wallace has worked on approximately nine (9) school board projects in Alachua County. He holds himself out as being "completely familiar and knowledgeable in government and building codes, ordinances, regulations, etc."
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Respondent enter a final order dismissing the Petitioner's protest as untimely. DONE and ENTERED this 9th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: David L. Worthy, Esquire 4128 Northwest 13th Street Gainesville, Florida 32609 Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
