The Issue Whether a bid dispute arising in connection with an emergency bid letting is an appropriate subject for formal administrative proceedings, in the absence of an administrative challenge to the fact of the emergency?
Findings Of Fact The parties stipulated that DOT had "received [Baxter's] notices of protest dated September 23, 1983, October 14, 1983, and December 16, 1983, protesting the Department of Transportation's determination that Baxter's Asphalt was not the lowest responsible bidder on this project and petitioning for formal administrative hearings." Baxter's bid was indeed the apparent low bid on Job No. 53030-3511, but DOT has taken the position that Baxter is not a responsible bidder, and has disregarded Baxter's bid on that account. The DOT has moved beyond proposed action and has actually awarded the contract to Gulf, the second low bidder. The parties stipulated: Pursuant to Section 120.53(5)(c) , Florida Statutes, the Department has decided to proceed with the award and execution of the contract with Gulf Asphalt Corporation in order to avoid what the Department perceived as an immediate and serious danger to the public health, safety, or welfare. DOT executed the contract with Gulf on January 6, 1984. As grounds for executing the contract, notwithstanding the pendency of formal administrative proceedings, the Secretary of the DOT stated: ...The conversion of this two lane roadway to a four lane facility is badly needed to increase the traffic capacity and improve the safety of the highway for the traveling public. This section of roadway has a structural rating of 35 which places it in the "Critical" range . . . [and] has an accident ratio of 1.244 which is almost 25 percent above the average rate. dditional funds were appropriated by the Florida Legislature so that work could proceed without delay. It is also imperative that these projects proceed in an orderly fashion to maximize the effective use of [DOT] construction in spection and supervisory personnel. Letter from Secretary Pappas to Baxter, December 23, 1983. Baxter does not concede that an emergency exists with respect to Job No. 53030- 3511, but did concede that the existence of an emergency was for the agency head to determine, subject only to judicial review. In its petition for formal administrative proceedings, Baxter did not raise the question whether an emergency exists. For purposes of the present administrative proceeding, there is no dispute or issue as to the existence of the emergency.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's formal written protest as moot. DONE and ENTERED this 9th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1984. COPIES FURNISHED: Frank A. Baker, Esquire Roberts and Baker P. O. Box 854 Marianna, Florida 32446 Robert I. Scanlan, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue in this case is whether the bid protest of Petitioner should be sustained.
Findings Of Fact Respondent owns and operates a city pool known as the George A. Pierce Swimming Pool at the Ferran Park complex in Eustis. The pool is nearly 40 years old and is in need of renovations and repairs. Deciding to renovate the old pool and build a new one next to it, Respondent obtained plans for the intended work from Project Engineering. These plans, which are dated January 31, 1990, consist of seven pages of blue-line drawings of the site, the existing pool, a new training pool, and various details, such as gutters (Blue Drawings). The Blue Drawings formed the basis of a request for proposals that Respondent issued at some point prior to the events at issue in the present case. The offers submitted in response to the request for proposals were unsuitable because they exceeded the money that Respondent had available for the job. At this point, employees of Petitioner learned that Respondent was seeking to repair and renovate the pool. Bill West, who is responsible for sales for Petitioner, visited with Norma Showley, who is in charge of purchasing for Respondent. She showed him the Blue Drawings and informed him that the proposals that had been submitted were double the budget. Mr. West agreed, at no charge, to prepare a new set of drawings for Respondent. Ms. Showley did not agree that Petitioner's drawings would necessarily be incorporated into a new request for proposals or invitation to bid. However, Ms. Showley explained that time was critical, and she needed his drawings in a hurry. She gave Mr. West the original set of Blue Drawings for his company to use in preparing the new drawings. Mr. West asked Jack Arthur to prepare the new drawings. Mr. Arthur does estimates and drawings for Petitioner and is a registered professional engineer licensed to practice in Florida and several other states. He is also a Florida-licensed commercial pool contractor. Mr. Arthur met with Ms. Showley a few days prior to March 12, 1990. Also attending this meeting was Harvey Spears, who, although not an employee of Respondent, assisted Ms. Showley on this project. Apparently, Mr. Spears was the contractor in charge of other work in the pool area, such as the construction of a bathhouse. Working 40-50 hours over the next three days, Mr. Arthur finished the plans, which bear the date of March 12, 1990 (Black and White Drawings). Mr. West then delivered the plans to Ms. Showley. Ms. Showley discussed with the City Comission the possibility of using the Black and White Drawings instead of the Blue Drawings as the basis of a new bid solicitation. The Commission directed her not to abandon the specifications contained in the Blue Drawings, but revise them as appropriate. No decision was ever made to use the Black and White Drawings, except for the purposes expressly indicated in the later-issued invitation to bid, such as to indicate the location of the bathhouse relative to the existing pool and the details of an alternate gutter system. On April 13, 1990, Respondent issued an invitation to bid, which was identified as Bid NO. 026-90. The invitation to bid was accompanied by the Blue Drawings and the Black and White Drawings. The text, Blue Drawings, and Black and White Drawings are collectively referred to as the "ITB." Each of the pages of the Black and White Drawings were marked "Attachment `A,' `B,' `C,' or `D."' The ITB required that the bids, which had to be sealed, were to be delivered to a certain place, where they would be opened at a specified time on May 14, 1990. The ITB provided for a "bid evaluation period" of up to 30 days after opening. Other relevant provisions in the unlabelled introductory section of the ITB include: ACCEPTABLE FORMAT--Bid format provided by "the City is the only acceptable format on which a bidder may return his bid. Bids submitted, on any other format shall be disqualified. (Any additional information relative to the bid, should be submitted on a separate format.) * * * CLARIFICATION/CORRECTION OF BID ENTRY--The City of Eustis reserves the right to allow for the clarification of questionable entries and for the correction of obvious mistakes. ADDITIONAL TERMS AND CONDITIONS--The City of Eustis reserves the right to reject bids containing any additional terms or conditions not specifically requested in the bid/proposal solicitation. * * * AWARD--This bid may be awarded in part or whole as best serves the interest of the City. All awards made as a result of this bid shall conform to all applicable ordinances of the City of Eustis. RESERVATION--The City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive minor technicalities or informalities in bids received. * * * For information regarding bid specification, contact Norma M. Showley, General Services, Coordinator [telephone number provided in ITB]. The Scope section of the ITB provides that this is a bid to provide all labor, materials, equipment, supplies and incidental necessary for the performance of all work required for the proper and professional renovation of the existing City Pool with an additive alternate for addition of a . . . training pool . . . The following are suggested methods of renovating the existing pool and constructing the new pool. Plans that differ will be considered for award if determined to be in the best interest of the City. The Scope section explains that the existing pool was built in 1951 and is a "poured-in place pool . . . with no flood inlets." This part of the ITB also informs the bidder that separate contracts have been executed for the construction of a new bathhouse, including a new chemical and filter room, and the work may be performed concurrently with the renovation of the existing pool. The bathhouse layout is shown on Attachment "A". NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before the end of October, 1990. The Scope section continues with a description of the base bid and alternates. The alternates are provided "[d]ue to the time restraint involved with the funding for this project" and Respondent's desire to complete the project quickly. The Scope section of the ITB states that the base bid for the renovation of the existing pool includes replacement of the filtering system with a D.E. filter system, replacement of the circulation system, replacement of the existing guttering system with a one foot open face overflow gutter, replacement of the Marcite on the walls, and addition of underwater lighting "as per plans prepared by Project Engineering (i.e., the Blue Drawings). Additive Alternate 1 eliminates the overflow gutter system and adds a stainless steel facing overflow system as shown on Attachment "B." Additive Alternate B eliminates the recirculating system shown in the Blue Drawings and provides for a proprietary system manufactured by Petitioner. Additive Alternate 3 eliminates the D.E. filter system, as shown in the Blue Drawings, and adds a high rate vacuum sand filter system. Deductive Alternate 1 eliminates the underwater lighting. The Scope section of the ITB describes the base bid for the new pool, which in fact is not an additive alternate, as located west of the existing pool and having a D.E. filter system and underwater lighting. Additive Alternate 1 eliminates the D.E. filter system and adds a pressure sand filter system. Deductive Alternate 1 eliminates underwater lighting. The next section of the ITB is the Instructions to Bidders. Among the provisions listed under the "Submittals" subsection are: License--Bidders shall submit with the bid response a copy of their license from the State of Florida Construction Industry Licensing Board. * * * Bidder Qualification-- * * * References shall be furnished with bid response Other relevant subsections of the Instructions to Bidders section of the ITB provide: Visit to Site--The bidder/contractor shall visit the site of the work to become fully informed as to the conditions that exist and under which he/she must work, and by bidding, represents that he/she has read and understands the bid documents. * * * Evaluation and Award--Bids will be evaluated on the basis of cost, bidder's ability to perform, previous experience, experience of personnel and required completion time. It is the City's intent to award a contract to the lowest responsive bidder. However, the City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive technicalities or informalities in bids received. NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before the end of October, 1990. Negotiation of Contract--If deemed in the best interest of the City, the City may, either before or after receipt of bids, select one or more persons or companies and negotiate a contract for the proposed work. The decision of the City as to the firm or firms with whom the City will negotiate will be final. During the negotiations, the right is also reserved to change the plans and specifications as the City may at that time determine to be in the best interest of the City. The section of the ITB devoted to Requirements and Specifications restates the base bids and alternates set forth above in the Scope section. Under the subsection entitled, "Work and Products Not Included," the ITB lists, among other items, "Concrete decking--bleacher area, bathhouse area." Under the subsection entitled, "Description of Work--Existing Pool," the ITB includes the demolition necessary to remove the existing overflow system, install a new one, and provide a recirculation system. Under a similar subsection for the new pool the ITB provides: Provide decking around new pool to match height of existing decking, 4" thickness, 3000 psi concrete, as shown on attachment showing pool layout. Decking shall slope three inches (3") in ten feet (10') away from pool or to deck drains. Minimum unobstructed deck width shall befour [sic] feet (4'). This subsection also refers the bidder to the Black and White Drawings for the curing of the floor of the new pool. For the renovation of the existing pool, the bid form contains blanks for the bidder to include prices for the base bid, three additive alternates, and one deductive alternate. For the construction of the new pool, the bid form contains blanks for the bidder to include prices for the base bid, one additive alternate, and one deductive alternate. Two bid addenda were issued. The first concerned additive alternate 3 for the existing pool and additive alternate 1 for the new pool. This addendum adds, respectively, a vacuum sand filter (instead of a high rate vacuum sand filter) and a high rate pressure sand filter system (instead of a pressure sand filter system). The second addendum, which was accompanied by "a new bid form for prices, adds an automatic water level sensor unit, as described in the Black and White Drawings, to the base bids for the existing and new pools. For the existing pool, the addendum added alternate 4, which replaces the existing main drain with a stainless steel drain, as described in the Black and White Drawings. The Blue Drawings contain four special notes and ten general notes. The first special note is that the final location of "pool and configuration of deck to be determined by architect." The first general note is that the bathroom floors, pool deck, and first 15 feet of connecting walkway are to be concrete or other impervious material, positively drained, and slip resistant. Three unrelated items are noted in red handwriting to be "in bathhouse contract," and one unrelated item is similarly noted to be "by City." Notes on the Black and White Drawings indicate that the contract does not include pool decking around the new pool and a retaining wall beside the new pool, which is in close proximity to a lake. The new pool clearly has to be built to the elevation of the existing pool because, among other reasons, the lake contributes to a high water table in the area of the pool. In order to achieve this elevation, the construction of the decking around the new pool would require either a retaining wall (with some fill) or a larger amount of fill sloped down to the ground level. Due to the close proximity of the lake, it is not entirely clear that the latter approach would work. Even though Mr. Arthur detected inconsistencies between the Black and White Plans and the remainder of the ITB, neither he, Mr. West, nor any other representative of Petitioner contacted Ms. Showley regarding the decking and retaining wall. Following the issuance of the ITB but before the submission of bids, Mr. West met with Ms. Showley, but the conversation involved only the replacement of the main drain and installation of the automatic water level sensor unit. Ms. Showley covered these matters by the addenda described above. They also discussed the possibility of alternate bids with one based exclusively on the Blue Drawings and one based exclusively on the Black and White Drawings. However, Ms. Showley's ability to deviate significantly from the specifications depicted in the Blue Drawings was limited by the lack of time and the earlier directive of the City Commission to revise, rather than abandon, the specifications in the Blue Drawings. Ultimately, timely bids were submitted by only Petitioner and Intervenor, ignoring one or two "no-bid" bids. Petitioner's base bid for the existing pool was $92,399. Additive alternate 1 added $22,897. Additive alternate 2 added $12,383. Additive alternate 3 added $18,500. Additive alternate 4, which was the replacement of the main drain, was included in the base bid and all alternates, even though the only alternate specifying that the main drain be replaced was Additive alternate In fact and as evident from the bid, Petitioner would not perform the job without replacing the main drain due to concerns about the durability of the existing main drain. Deductive alternate 1 subtracted $2500. For the new pool, the base bid was $38,389. Additive alternate 1 subtracted $3103. Deductive alternate 1 subtracted $798. Intervenor's base bid for the existing pool was $107,170. Additive alternate 1 was not bid. Additive alternate 2 added $25,601. The bid was apparently incorrectly filled out. Additive alternate 2, which was the proprietary system manufactured by Petitioner, in fact was not bid, and Additive alternate 1 was bid. Additive alternate 3 added $22 927. Additive alternate 4, which called for the replacement of the main drain, added $5340, but Intervenor noted on its bid form that it did not recommend this alternative. Deductive alternate 1 subtracted $3444. Intervenor's based bid for the new pool was $50,472. Additive alternate 1 was not bid. Deductive alternate 1 subtracted $920. Intervenor also bid three "Voluntary alternates." These alternates, which were not requested in the ITB, involved variations on equipment for the existing pool. Voluntary alternate 2, which totalled $143,253, included a full stainless steel gutter with grating and a high rate pressure sand filter with automatic backwashing feature. Petitioner's base bid for both pools was $130,788. Intervenor's base bid for both pools was $157,642. Intervenor's base bid for both pools, using Voluntary alternate 2, was $193,725. Both bid packages disclosed obvious problems. Petitioner had not bid on any decking or the retaining wall and fill. Ms. Showley and Mr. Spears called Mr. West and, after confirming these omissions, asked for a price. The additional labor and materials added $13,526 for the decking and fill, but apparently not the retaining wall as the slope approach would be used around the new pool. This would have raised Petitioner's base bid to $144,314. However, Petitioner still did not address the issue of the replacement of the main drain. Based on advice from Mr. Spears, Respondent did not want to replace the main drain. The process would require cutting the bottom of the pool. Due to the pool's location, age, and type (poured-in), Mr. spears felt, and Respondent agreed, that the main drain should not be disturbed. Intervenor's bid did not include a copy of its contractor's license or references. Ms. Showley obtained this information after the bid opening. She and Mr. Spears also spoke with Harold von Weller, owner and president of Intervenor, concerning the filtration and gutter systems described in Voluntary alternate 1 and where they had been used. In response to a question concerning the 2 approximate cost of the retaining wall and decking, for the purpose of making a deduction that would facilitate comparison with Petitioner's bid, Mr. Weller wrote a letter estimating the cost of these items as $7004.43. An informal committee consisting of Mr. Spears, Ms. Showley, the architect for the bathhouse, and the City Manager, Michael G. Steerman, considered the bids and determined, after consulting with staff, that Petitioner's bid was not responsive. The City Commission met on May 17, 1990, to award a contract for the renovation and construction of the pools. Mr. Steerman recommended that Respondent reject Petitioner's bid as nonresponsive and award the contract to Intervenor on its Voluntary alternate 2 bid for the existing pool and its base bid for the new pool less the Deductive alternate 1. The amount of $189,361 was derived by subtracting from the Voluntary alternate 2 amount of $143,253 the sum of $3444 for Deductive alternate 1, for a net amount of $139,809 for the existing pool. The new pool net of $49,552 thus generated a total figure of $189,361. It is not entirely clear whether Respondent viewed any of Intervenor's bids as responsive. Most likely, it was assumed by staff and the City Commission that the base bid and possibly the Voluntary alternate 2 bid were responsive. Petitioner and Intervenor are responsible bidders. They are highly qualified and experienced in the construction of commercial pools.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the City of Eustis enter a final order dismissing the bid protest of Petitioner. ENTERED this 18th day of July, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990.
The Issue The issues in this bid protest are whether Intervenor's bid was nonresponsive because Intervenor, a corporation formed in 2005, lacks the required five years' experience in the tree trimming business; and, if so, whether Respondent's preliminary decision to award Intervenor the contract at issue was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Pursuant to Invitation to Bid No. 27-054X (the "ITB"), which was issued on August 10, 2006, Respondent Broward County School Board ("School Board") solicited bids for "Tree Trimming, Planting, Hurricane Cleanup, and Removal Service." Interested vendors were instructed to bid prices on numerous items of service. The items were sorted into two groups, Group A and Group B. The School Board intended to designate a "primary vendor" for each group, who in the ordinary course of events would receive the largest volume of work, but it reserved the right to procure services from the second and third lowest bidders in each group should it become necessary or desirable to do so. Bids were due on September 13, 2006. Section 4 of the ITB contained "Special Conditions" applicable to this procurement. Of interest in this case is Special Condition No. 11, which specified the qualifications a vendor needed to be considered for an award: BIDDER'S QUALIFICATIONS: Bidder must have at least five years experience in tree trimming services within the Miami-Dade, Broward and Palm Beach tri-county area. Bidder must submit, with the bid or uponrequest, the attached Bidder's Profile form. This report must include a minimum of three references from commercial jobs. Each reference should include the address of the actual job, work accomplished and a phone number and contact person. (Emphasis in original.) The Bidder Profile form to which Special Condition 11 referred was located in Section 7 of the ITB as Attachment 1. At the top of the Bidder Profile appeared the following direction and warning: THIS INFORMATION MUST BE SUBMITTED WITH THE BID. FAILURE TO COMPLETE THIS SECTION WILLDISQUALIFY THE SUBMITTED BID. (Emphasis in original.) Paragraph 12 of the Bidder Profile form stated as follows: References Required. Contractor to provide a list of three references. Three references from jobs completed in each of the past three years. More than one dozen vendors timely submitted bids, which the School Board opened on September 13, 2006. Among the bidders were Petitioner Phil's Expert Tree Service, Inc. ("Expert") and Intervenor Innovative Environmental Services, Inc. ("Innovative"). After tabulating the bids, the School Board determined that Innovative was the lowest and best bid from a responsive, responsible bidder with regard to Group A, followed by Expert and All County Tree & Landscape Co., Inc. ("All County"), in that order. Thus, when the award recommendations were posted on September 27, 2006, Innovative was named the intended primary awardee for Group A, Expert the first alternate, and All County the second alternate.1 Innovative is a family business whose principals are Craig and Deborah Conway, husband and wife. In the year 2000, the Conways moved to South Florida from Pennsylvania, where, for more than 20 years, they had operated a tree trimming and land clearing business. After arriving in Florida, the Conways entered into a business arrangement with Donald Richter, a certified arborist, whereby they jointly provided tree trimming services under the name "ASAP Tree Service" or "Don Richter's ASAP Tree Service." In October 2002, the Conways formed a corporation called Independent Equipment South, Inc. ("Independent"). Independent operated an equipment sales and rental business whose inventory consisted of equipment that was not being used in the family's tree trimming operations. Eventually, the Conways' tree trimming service become part of Independent's business portfolio as well. In February 2005, Innovative was incorporated. At all times relevant to this procurement, Mrs. Conway has been the sole corporate officer, Mr. Conway the company's Director of Operations. In addition, at all relevant times, Innovative has employed or otherwise retained Mr. Richter as its certified arborist. Although Innovative and Independent are separate corporate entities, the two businesses operate out of the same location, have the same employees, and use the same equipment. The Conways commonly refer to their businesses as "IES," using that acronym interchangeably to mean either Innovative or Independent (or both). Innovative's Bidder Profile, which was submitted together with its bid, referred to——and incorporated——an attachment entitled, "Brief Company History." The Brief Company History provided background information on Innovative's provenance, albeit from a layperson's perspective. Written by nonlawyers, the summary was not always technically precise, from a legal standpoint, in its descriptions of the various business associations in which the Conways have been involved. Seizing on the least artful phrases, Expert contends that some of the statements in the Brief Company History were false and perhaps even fraudulent. The undersigned, however, finds otherwise. To the point, the Brief Company History reflects an honest attempt truthfully to describe the Conways' family businesses, which is reasonably accurate when read and understood from the perspective of the small-business owners who prepared it. That said, the undersigned finds and determines that Innovative——as distinct from its principals and/or personnel—— did not have five years' experience in the tree trimming business when it bid on the contract at hand, notwithstanding the wealth of tree trimming experience at its disposal. Indeed, having been in existence for fewer than two years at the time it submitted its bid, Innovative, as a separate legal entity, could not possibly have garnered, in its own right, five years' experience doing anything. For the same reason, though Innovative provided plenty of references, the ones that stemmed from jobs completed before February 2005 necessarily related to providers other than Innovative, such as ASAP Tree Service, who actually existed then. To be sure, the providers who earned the references from earlier jobs upon which Innovative relied either were predecessor business associations or individuals who would become personnel of Innovative——but they were not Innovative. Innovative simply could not have performed or completed any jobs before its creation. It is determined, therefore, as a matter of ultimate fact, that Innovative's bid did not strictly conform to the plain language of Special Condition No. 11. Like Innovative, Expert is a family-owned business. Founded in 1985 by Philip Simeone, Expert was incorporated in 1992. Though Expert clearly possesses the length of experience for which Special Condition No. 11 called, Expert failed in its Bidder Profile to provide three references "from jobs completed in each of the past three years," as instructed in paragraph 12 of the ITB's Section 7, Attachment 1. Instead, Expert gave two references from jobs completed in 2006 plus another from a job completed in 2004. Expert's bid did not contain a reference from a job completed in 2005. Expert contends that the School Board should have rejected Innovative's bid as materially nonresponsive (for lacking the requisite five years' experience) and awarded the contract to Expert as the lowest responsive bidder. The School Board and Innovative take the position that the School Board's decision to treat Innovative's bid as responsive was not clearly erroneous, arbitrary, or capricious. Turning the tables, the School Board and Innovative argue that Expert's own bid deviated from Special Condition No. 11, in that Expert failed to provide a reference from a job completed in 2005.2 Yet both assert that "it was reasonable for [the School Board] to waive the requirement of the Bidder Profile form that one . . . reference[] be [from] a job completed in the year 2005." Somewhat inconsistently, however, Innovative argues further that Expert's "bid proposal cannot be sustained"——evidently due to its material nonresponsiveness. This apparent inconsistency follows from Innovative's attempt to play down its alternative position, which is that if "a contrary conclusion [had] been reached as to [Innovative's] experience"—— meaning that if the School Board had chosen not to waive any irregularity concerning Innovative's length of corporate experience——then the "same analysis would apply to" Expert—— meaning that Expert's bid too should have been disqualified. Thus, even though Innovative maintains that the School Board reasonably waived any irregularities in Expert's bid, Innovative is unwilling to concede that the School Board did not err in determining that Expert's bid was responsive, evidently out of concern that such an admission might compromise its fallback position. Innovative's bottom line is that if Innovative's bid were to be disqualified as materially nonresponsive, then Expert's bid would need to be rejected, too.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that (a) declares Innovative's bid to be materially nonresponsive and, accordingly, rescinds the proposed award to Innovative; and (b) declares Expert's bid to be materially nonresponsive and, accordingly, rejects the same. Because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation as to whether the School Board should award the contract to All County (which was the putative "second alternate") or reject all bids and start over. DONE AND ENTERED this 19th day of March, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2007.
The Issue Whether Petitioner's response to invitation to bid 93C-116T was properly rejected.
Findings Of Fact An invitation to bid (ITB) for a contract to supply and for a contract to install acoustical ceiling tiles were solicited by Respondent on October 26, 1992. Bid proposals were filed by four bidders, one of which was the Petitioner. On November 18, 1992, bids were opened and posted, and it was determined that the apparent low bidders were bidders other than Petitioner. The bid submitted by Petitioner was rejected by Respondent on the grounds that Petitioner failed to sign the anti-collusion statement. Thereafter, Petitioner timely filed its bid protest to challenge the rejection of its bid. On December 16, 1992, an informal bid protest meeting was held which resulted in the issuance of a letter rejecting the informal bid protest. Thereafter, the bid protest was referred to the Division of Administrative Hearings, and this proceeding followed. On the first page of the ITB form used by Respondent, the bidder is to insert its name, address, telephone number, and federal employer identification number (or social security number). The bidder is also required to manually sign an anti-collusion statement and to type or print the name and title of the person who signed the statement. Petitioner failed to execute the anti- collusion statement and it did not furnish the information required by this section of the form. The anti-collusion statement is as follows: ANTI-COLLUSION: the signed bidder certifies that he or she has not divulged, discussed or compared his or her bid with other bidders and has not colluded with any other bidder or parties to a bid whatever. (NOTE: No premiums, rebates or gratuities [are] permitted either with, prior to, or after any delivery of materials. Any such violation will result in the cancellation and/or return of materials (as applicable) and the removal from the bid list(s). Also on the first page of the ITB form used by Respondent are certain "General Conditions, Instructions and Information for Bidders", including the following: EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above [the signature line for the anti-collusion statement]. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. ... Also on the first page of the ITB form used by Respondent is the following: AWARDS: In the best interest of the School Board, the Board reserves the right to ... waive any irregularity in bids received ... All awards made as a result of this bid shall conform to applicable Florida Statutes. After Petitioner's bid was rejected, Petitioner's bid was not further evaluated. The uncontroverted testimony on behalf of Petitioner was that its bid for the installation of the tile would have been the lowest bid had it been evaluated. Respondent's past practice has consistently been to reject bids where the anti-collusion statement is not properly executed by the bidder. The rationale for this practice is to safeguard against collusion among bidders. Petitioner's failure to execute the anti-collusion statement was an oversight on the part of Franklin C. Taylor, Jr., the officer who prepared the response on behalf of the Petitioner. Franklin C. Taylor, Jr., executed the "Drug-Free Workplace Certification" and the "Sworn Statement Pursuant to section 287.133(3)(a), Florida Statutes, On Public Entity Crimes" as required by the ITB and attached both certifications to Petitioner's response. Petitioner asserts that it is ready, willing, and able to perform the contract and that the failure to sign the anti-collusion statement was an error that can now be corrected or that can now be waived as a minor irregularity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which dismisses Petitioner's bid protest. DONE AND ENTERED this 9th day of March, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of March, 1993. COPIES FURNISHED: Franklin C. Taylor, Jr. Herbert J. Taylor Custom Ceilings of the Palm Beaches, Inc. Post Office Box 9592 Riveria Beach, Florida 33404 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica C. Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, Suite C 320 West Palm Beach, Florida 33406-5869 Abbey G. Hairston, General Counsel Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C 302 West Palm Beach, Florida 33406-5813
The Issue Whether the decision by the State of Florida, Department of Corrections (DOC) to reject all bids received in response to Request For Proposal 93-RIVHSD- 075 (RFP) was arbitrary, capricious, fraudulent, illegal or dishonest. Additionally, Intervenor challenges Petitioner's standing to bring this proceeding since Bio-Medical Applications, Petitioner's wholly-owned subsidiary corporation, submitted the bid at issue and because Petitioner would not be a party to any contract awarded pursuant to the RFP.
Findings Of Fact Standing In its response to the Request For Proposal at issue in this proceeding, Bio-Medical Applications of Florida, Inc. (BMA) provides the following regarding vendor name and address: Vendor Name: Bio-Medical Applications of Florida, Inc. Vendor Mailing Address: c/o National Medical Care, Inc. 1601 Trapelo Road Walthem, Massachusetts 02154 In the bidder acknowledgment and ownership interest portion of its response to the RFP, BMA disclosed the following: ... This bid is presented in good faith without collusion or fraud and Ernestine M. Lowrie, as signer of the bid from Bio-Medical Applications of Florida, Inc. has full authority to bind as the principal bidder. All stock of Bio-Medical Applications of Florida, Inc. is held by Bio-Medical Applications Management Company, Inc. and all the stock of the latter corporation is held by National Medical Care, Inc., 1601 Trapelo Road, Walthem, Massachusetts 02154. All of the stock of National Medical Care, Inc. is held by W. R. Grace and Company. The Dialysis Services Division of National Medical Care, Inc. (NMC) is the largest division of NMC. In each state in which NMC has an interest in dialysis services operations, Bio-Medical Applications is organized as a corporate entity and is part of the Dialysis Services Division of the parent corporation, NMC. Petitioner in this proceeding, NMC, is not currently organized and registered as a corporation under the laws of the State of Florida. At the final hearing in this case, NMC's representative testified that he was not aware that NMC was registered to do business in the State of Florida but thought NMC had been operating in Florida for about 20 years. BMA is wholly owned by NMC. The Respondent agency originally expressed its intent to award the contract at issue to BMA. NMC has a substantial interest in the RFP and the contract at issue, therefore, its substantial interests will be affected by the agency's proposed action to reject all bids. NMC has alleged that the agency's decision to reject all bids was arbitrary, illegal, dishonest, and fraudulent. Further, Petitioner also contends that the agency decision to reject all bids, after BMA's bid proposal has been disclosed to competitors, undermines the competitive purpose of the bid process. The Request for Proposal On August 27, 1993, the DOC issued RFP No. 93-RIVHSD-075. The RFP requested bidders to submit bids for a contract to perform peritoneal dialysis and hemodialysis treatment at the Department's Broward Correctional Institution and its South Florida Reception Center. The RFP required that bid proposals be filed with the DOC by September 30, 1993. The RFP provided that a bidder would receive up to 50 points for its price proposal and up to 50 points for its qualitative proposal for a total of 100 possible points. The RFP also provided that the DOC reserved the right to reject all bids when the DOC determined it was in its best interest to do so. The Bid Evaluation Upon initial review of the proposals submitted in response to the RFP, the DOC originally calculated that Petitioner's subsidiary, BMA, had received 49 out of 50 possible points from its price, as well as qualitative proposal for a total of 98 points. On October 22, 1993, the DOC sent written notice to all proposers of its intent to award the contract to National Medical Care, Inc. (Petitioner). At the time it mailed its notice of intent, the DOC believed that the difference between the Bio-Medical and the lowest price proposal (received by HealthInfusion) was $156,780 over the five year term of the proposed contract. HealthInfusion and an additional disappointed bidder filed protests contesting the DOC's notice of intent. Based upon input from the protestors, the DOC learned that it had miscalculated the cost of Bio-Medical's proposal. When the DOC corrected its initial error in calculation, BMA's proposal was $340,000 higher over the first three years of the proposed contract and $972,000 higher than the lowest bidder for the entire five year contract term. The Decision to Reject All Bids On November 24, 1993, the DOC notified all bidders of its intent to reject all bids. In addition to the initial miscalculation of price in the bid, the DOC discovered what it considers to be other irregularities in the evaluation in this case. BMA was the existing provider at the time the RFP issued. The bid evaluators worked closely on a day to day basis with Petitioner's employees. The DOC believes the evaluators preferred that Petitioner be awarded the contract and that the evaluators were not objective. During the process of evaluation, the evaluators were provided a letter from a party representing one of the bidders which contained allegations regarding negative background information on other bidders. The DOC believes that the letter should not have been given to the evaluators and that access to the letter further affected the evaluator's ability to be objective. Admitted Facts NMC and the Respondent DOC filed a Prehearing Stipulation in which the following facts are admitted by those parties: The DOC issued Request for Proposal No. 93-RIVHSD-075 ("RFP"). The RFP requested bidders to submit bids for peritoneal dialysis and hemodialysis treatment at Broward Correctional Institution and South Florida Reception Center. Bid proposals had to be filed with the DOC by September 30, 1993. On November 24, 1993, the Department notified all bidders of its intent to reject all bids. The Department rejected all bids due to significant irregularities in the bid evaluation process and the price difference between the winning bid and the low bid was too great. (Emphasis supplied.) On December 3, 1993, National Medical Care, Inc. filed its notice of intent to protest the DOC's decision to reject all bids. On December 13, 1993, National Medical Care, Inc. filed its formal written bid protest. Burden of Proof Petitioner has failed to prove, by the preponderance of evidence, that the DOC acted arbitrarily, illegally, fraudulently or dishonestly in making its decision to reject all bids.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Respondent enter a final order dismissing NMC's protest of its decision to reject all bids in response to request for Proposal No. 93-RIVHSD-075. RECOMMENDED this 16th day of March, 1994, at Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7111BID The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's PFOF 1 is adopted in paragraph 8 of the Recommended Order (RO). Petitioner's PFOF 2 is adopted in paragraph 9 of the RO. Petitioner's PFOF 3 is hereby adopted. Petitioner's PFOF 4 is hereby adopted. Petitioner's PFOF 5, to the extent not conclusory, is adopted in paragraph 1 of the RO. Petitioner's PFOF 6 is hereby adopted. Petitioner's PFOF 7 is adopted in paragraph 2 of the RO. 8-9. Petitioner's PFOFs 8 and 9 are hereby adopted. Sentence 1 of Petitioner's PFOF 10 is hereby adopted. Sentence 2 of this proposed finding is rejected as conclusory. Petitioner's PFOF 11 is adopted in paragraph 14 of the RO. 12-14. Petitioner's PFOFs 12, 13 and 14 are hereby adopted. Petitioner's PFOF 15 is adopted in paragraph 2 of the RO. Petitioner's PFOF 16 is hereby adopted. Petitioner's PFOF 17 is adopted in paragraph 26 of the RO and is a fact, in effect, stipulated to by Petitioner and Respondent. Petitioner's PFOF 18 is adopted in substance in paragraph 21. To the extent not adopted in the RO, the remainder of Petitioner's PFOF 18 is hereby adopted. Petitioner's PFOF 19 is adopted in paragraph 13 of the RO. Petitioner's PFOF 20 is adopted, in substance, in paragraph 16 of the RO. 21-24. Petitioner's PFOFs 21-24 are hereby adopted. Petitioner's PFOF 25 is rejected as a conclusion. Petitioner's PFOF 26 is rejected as conclusory and argumentative. This proposed finding is also irrelevant based upon facts admitted by Petitioner. Petitioner's PFOF 27 is rejected as irrelevant based upon facts admitted to by Petitioner. 28-34. Petitioner's PFOFs 28-34 are hereby adopted to the extent relevant. Based upon Petitioner's admission that the Respondent rejected all bids based on "significant irregularities," these proposals are for the most part irrelevant and unnecessary to the conclusions reached. 35. Petitioner's PFOF 35 is hereby adopted. 36-39. Petitioner's PFOFs 36-39 are adopted. 40-44. Petitioner's PFOFs 40-44 are cumulative and not necessary to the conclusions reached. Respondent's PFOF: 1-19. Respondent's PFOFs 1-19 are adopted in the RO. 20. Respondent's PFOF 20 is rejected as conclusory. 21-22. Respondent's PFOFs 21 and 22 are adopted in the RO. 23. Respondent's PFOF 23 is rejected as argument. 24-26. Respondent's PFOFs 24-26 are adopted in the RO. 27. Respondent's PFOF 27 is rejected as conclusory. 28-29. Respondent's PFOFs 28 and 29 are adopted in the RO. 30-32. Respondent's PFOFs 30-32 are rejected as conclusions and argument. Respondent's PFOF 33 is hereby adopted. Respondent's PFOF 34 is rejected as argument. Intervenor's PFOF: 1-21. Intervenor's PFOFs 1-21 are adopted in substance in the RO. Intervenor's PFOF 22 is adopted, in substance, in paragraph 4 of the RO. Intervenor's PFOF 23 is hereby adopted. Intervenor's PFOF 24 is adopted in substance. Intervenor's PFOF 25 is hereby adopted. However, Intervenor has failed to prove that the activity of NMC is not within one of the several exceptions to the requirements of Section 607.1501, Florida Statutes. COPIES FURNISHED: Seann M. Frazier, Esquire Jennifer Kujawa-Graner, Esquire PANZA, MAURER, MAYNARD & NEEL, P.A. 3081 East Commercial Avenue Fort Lauderdale, Florida 33308 R. Beth Atchison, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Timothy G. Schoenwalder, Esquire BLANK, RIGSBY & MEENAN, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
The Issue The ultimate issue for determination at formal hearing was whether the intended action by the Palm Beach County School Board to award the bid on Project No. 93-238V to LaPlant-Adair, as the lowest responsive bidder, departs from the essential requirements of law.
Findings Of Fact On March 15, 1993, Palm Beach County School Board (Respondent) issued an Invention to Bid (ITB), soliciting bids for the relocation of portable classroom structures for Project No. 93-238V. All sealed bids were required to be received by 2:00 p.m. on April 7, 1993. The ITB contained a provision that Respondent had the right to reject any and all bids. The "General Conditions, Instructions and Information for Bidders" section of the ITB notified bidders of Respondent's "minority/women business enterprise participation goal" and its "special conditions" which provided as follows: 24. ADMINISTRATIVE DIRECTIVE D-6.202: Pursuant to School Board Policy 6.146, Minority/Women Business Enterprise Program, a minimum goal of 15 percent has been established for certified minority/women business enterprise participation. The School Board strongly encourages active minority/women business enterprise participation on all contracts, proposals, bids professional services and other goods. The School Board of Palm Beach County is an Equal Opportunity Employer. * * * 26. SPECIAL CONDITIONS: Any and all Special Conditions that may vary from these General Conditions shall have precedence. The "Special Conditions" section of ITB provides, pertinent to this case: AWARD: Items in groups as marked, will be awarded by group. Therefore, it is necessary for a bidder to bid on every item in the particular group in which the bidder submits a bid in order to have a bid considered. It is also required that the bidder carefully consider each item, and make sure that each one meets the specifications as indicated. In the event that one item does not meet such specifications the entire group bid will be disqualified. It is anticipated that this bid will be awarded at the May 5, 1993, board meeting. TERM OF CONTRACT: The term of this contract shall be during the period June 20, 1993, through June 19, 1994, with the option to renew annually for a period of one (1) additional year. Annual renewal acceptance will be based on the successful bidder agreeing to terms, conditions and maintaining firm prices for the forthcoming year no later than April 15 in each contract year and acceptance of same by the School Board. All prices shall remain firm for the duration of this contract. SCOPE OF WORK: The successful bidder (hereinafter referred to as the contractor) shall furnish, at their expense, all supervision, equipment, machines, tools, materials, labor, transportation, and other facilities and services necessary to accomplish relocation of portable structures as specified herein . . . The contractor shall be responsible for correction/replacement, according to local codes and School Board's satisfaction, of all water lines, sanitary lines, electrical lines, curbs, sidewalks, streets, parking lots, grassed areas, structures, etc., broken or damaged as the result of contractor's operations . . . Contractor shall be responsible for complete and total relocation of portables to include tie down straps and any and all accessories attached to portable structures . . . Contractor shall provide transport and placement of all precast concrete foundation blocks . . . * * * U. ADMINISTRATIVE DIRECTIVE D-6.202: Pursuant to School Board Policy 6.146, Minority/Women Business Enterprise Program, a minimum goal of 15 percent has been established for certified minority/women business enterprise participation. The School Board strongly encourages active minority/women business enterprise participation on all contracts, proposals, bids, professional services and other goods. School Board Policy 6.146--Minority/Women Business Enterprise Policy-- provides in pertinent part: (2) DISTRICT GOAL To increase the participation of minority and women's business enterprises in the school district's contracts related to procurement, goods and non-professional services, construction, maintenance and renovation, and professional services. (5) PERFORMANCE OBJECTIVES * * * The MBE programs will implement a voluntary 15 percent participation goal of the total amount of funds allocated for school board purchases, professional services and contracts to be awarded to certified M/WBES upon School Board approval. The goals are reviewed annually by the M/WBE council Appropriate language including but not limited to minority participation and goals will be included in all bid documents. * * * All contract and bid documents will include procedural documentation of good faith efforts to include M/WBES to participate as associates, joint-ventures, and subcontractors. * * * Establish a program where staff may provide bonus points for companies employing M/WBES on joint ventures, and as subcontractors to enhance minority participation. (m) Establish a mechanism to delete and/or amend "option to renew" clauses in contracts to vendors once the bid time is completed. Respondent solicited nine bids and received six responses. Of the responses, three returned the ITB with bids and three returned the ITB with a no bid. The three that bid were Gainsborough Construction, Inc., LaPlant-Adair Company and Petitioner. The bids were opened on April 7, 1993. No evidence of irregularities at the bid opening was presented, and neither of the parties contend that there were any irregularities. The bids were reviewed by Respondent's Contracting & Procurement (CP) and its Maintenance and Plant Operations (MPO). CP's buyer/purchasing agent who determines the responsiveness of bids and prepares the tabulation sheet determined that all bids were responsive and that LaPlant-Adair Company was the apparent lowest bidder at a bid of $14,245; whereas, Gainsborough Construction, Inc., submitted a bid of $24,412, and Petitioner a bid of $24,432. However, because of the differences among the bidders in the cost per mile for moving the different structures, Respondent's CP and MPO staff, specifically, CP's buyer/purchasing agent and MPO's major project team leader, determined that an analysis also needed to be developed to provide a fair assessment of the bids to make certain that Respondent was not being over charged, i.e., to make certain that LaPlant-Adair was the lowest and best bid. The ITB provides that eight different types of portable structures were to be moved. Realizing that relocation of the portable classrooms depended upon the student population at each school in the district and the shift of the population, Respondent's staff determined that there was no way to know which portable classrooms would be relocated, the number of each to be relocated and the distance of the relocation. Hence, they formulated an analysis to fairly assess the situation, which consisted of (1) using the percentage of portables in each size in Palm Beach County's school system and the average number of miles portables had been moved over the past year, which was approximately 10 miles, and (2) applying these figures to the ITB's quoted figures by each bidder for "set-up, mobilization, unloading, and tie-down charge." The results showed that LaPlant-Adair's bid was the lowest bid and satisfied Respondent's staff that there was no overcharge. LaPlant-Adair remained the apparent lowest and best bidder. The bid specifications were silent on the use of any mathematical analysis to be used by Respondent. Of the three bids submitted, only Petitioner met and exceeded the minority/women business enterprise (M/WBE) participation goal of 15 percent. Petitioner's minority participation was 16 percent, and it provided supporting documentation with its bid. Because Petitioner included M/WBE participation in its bid, Petitioner's bid quote increased. Petitioner interpreted Respondent's M/WBE participation goal as being mandatory for bids. For several years, Petitioner has been involved in bidding for state and county projects, and both have minority participation requirements. Petitioner's experience was that if the minority participation percentage was not met, the bidder was not awarded a contract even if the bidder was the lowest bidder. Respondent's M/WBE participation is a "goal," not a requirement, and not mandatory. It has not been used in Respondent's prior ITBs. This was the first bid in which it had been included by Respondent. In 1991, Respondent awarded to Petitioner, over LaPlant-Adair, the contract for relocating portable classrooms. The contract had an option to renew. For the 1992-93 contract year, Petitioner renewed its option and continued as the contractor until 1993 at which time Respondent stopped renewing options and placed contracts on a one year term. During the term of Petitioner's contract, Respondent was satisfied with Petitioner's performance. At the time of the protest, Petitioner was using LaPlant-Adair as a subcontractor relocating portable classrooms for Respondent under the 1992-93 contract. As subcontractor, LaPlant-Adair performed 75 percent to 80 percent of the work involved in the relocating. Prior to Petitioner being awarded the 1991 contract and prior to being the subcontractor to Petitioner, LaPlant-Adair had been awarded the contract by Respondent for relocating portable classroom structures. Respondent was satisfied with LaPlant-Adair's performance under the contract. Based upon the bid quotes, the analysis performed, and responsibleness, LaPlant-Adair was recommended to be awarded the contract, as the lowest responsive and responsible bidder. The second lowest responsive and responsible bidder was Gainsborough Construction, and Petitioner was third. On April 16, 1993, Petitioner filed a protest of the intended action to award the contract to LaPlant-Adair and requested a hearing. Subsequently, on April 26, 1993, Petitioner filed a formal protest in letter form providing the basis for its protest: (1) LaPlant-Adair skewed the numbers in its bid; and neither LaPlant-Adair nor Gainsborough Construction, the second lowest responsive and responsible bidder, met the minority participation goal and, in fact, showed no attempt to do so. On May 13, 1993, an informal hearing was held by Respondent in an attempt to resolve the protest. At the informal hearing, Petitioner included an additional challenge which was that the recommendation process for awarding the contract varied from the bid specifications. Respondent determined that Petitioner's claims were without merit and that LaPlant-Adair would be recommended for award of the contract at Respondent's meeting on June 2, 1993. Both Petitioner and LaPlant-Adair are ready, willing and able to perform the work in accordance with their bid documents.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting Petitioner's protest and awarding the bid on the portable classrooms relocation Project No. 93-238V to LaPlant-Adair. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of Sepember 1993. ERROLL H. POWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1993.
The Issue The issue is whether Respondent Department of Corrections acted in a manner contrary to its governing statutes, rules or policies, or the bid specifications in giving notice of its intent to award the contract for Invitation to Bid No. 96-DC- 6847R to Intervenor Behring Diagnostics, Inc.
Findings Of Fact On February 19, 1996 the Department issued an ITB for the provision of automated drug testing equipment, an automated data management system, and drug assays for the analysis of urine specimens collected at the Department’s major institutions and community facilities. After receiving and reviewing bids from Roche, Behring, and Abbott Laboratories (Abbott), the Department issued a Notice of Intent to Reject All Bids on April 10, 1996. On April 30, 1996 the Department issued ITB 96-DC-6847R for the same services. The same three vendors, Roche, Behring and Abbott, submitted bids which were opened on June 5, 1996. On its face, Roche’s bid of $.60 per test was the lowest cost of the three bids. Behring submitted a bid of $.90 per test. The Department’s evaluation committee correctly determined that bids submitted by Roche and Abbott were not responsive to the bid specifications. Roche’s bid was not responsive because: (1) it failed to include the cost of a printer at each site as part of the equipment package; and (2) it failed to indicate the vendor’s unconditional willingness to provide litigation support at no cost to the Department in defense of a legal challenge to the vendor’s technology. The bid specifications clearly required that printers be included as part of the computer hardware. Roche did not list printers anywhere in the narrative portion of its bid response. Roche’s response stated that it covered all items pertaining to the system hardware portion of the bid. The response indicated that Roche would provide the Department with Antek-LabDAQ report management software and listed specific items of hardware that would be included. But Roche did not list a printer. Roche’s bid response stated that the LabDAQ system would print reports. Roche included copies of a sample report sheets. Roche submitted other information describing the LabDAQ system that contained pictures of a printer. It also submitted a magazine article reviewing the LabDAQ system which listed an “Okidata printer” as part of the required hardware. However, the article noted that the software could be purchased separately. Submittal of this information was insufficient to indicate that Roche’s bid included the cost of a printer. Roche’s failure to include a printer in its bid was a material deviation from the bid requirements. The ITB clearly required the vendor to provide unequivocal litigation support at no cost to the Department if someone challenged the provider’s technology in a court action. This was a material requirement in the ITB. Roche responded that “upon request from the State and if deemed necessary Roche will provide documentation, affidavits and sworn testimony to substantiate the performance of the technology incorporated in the OnLine system.” (Emphasis added.) This ambiguous response was not an absolute commitment for Roche to provide the litigation support required by the specifications. In one section of Roche’s response it stated that it was “not aware of any past or present lawsuits that have been filed in connection to the COBAS MIRA Plus or the OnLine reagents.” In another section, Roche responded that a federal district court upheld drug testing results provided from a COBAS/Online system. These inconsistent statements may have resulted in a minor deviation from the bid specification. However, they are sufficient to further undermine confidence in Roche’s bid as submitted. During the hearing, Roche presented testimony that it intended for its bid of $.60 per test to include both printers and unconditional litigation support. This testimony constitutes an inappropriate attempt to amend Roche’s bid response. It does not change the fact that Roche’s bid, on its face, was not responsive as submitted. On the other hand, Behring’s bid was responsive to the specifications. It contained only one minor irregularity that provided no advantage to Behring. Roche has presented no evidence to the contrary. The Department’s evaluation committee did not complete the scoring process to compare the three vendors’ scores. Such a comparison is unnecessary where there is only one responsive bidder. By letter dated August 26, 1996 the Department again informed the vendors that it intended to reject all bids and issue a new request for proposals in September. Even though the Department had determined that Behring was the only responsive bidder, the letter did not address the responsiveness of any of the bids. The letter stated that the Department anticipated making changes to the specifications that would require a more structured response, i.e. revise the ITB to include a checklist for every required item which the bidder would cross-reference in its bid response. There is no evidence that the Department anticipated making changes to the substance of the specifications. On or about September 5, 1996 Behring sent the Department a Notice of Intent to protest the rejection of all bids and subsequently filed a timely formal written protest. In its formal protest, Behring referred to the Department’s conclusions in a memorandum dated August 23, 1996 that Behring was the only bidder to submit a conforming bid. Roche did not file a protest of the decision to reject all bids. On or about September 26, 1996 the Department sent Roche notice of Behring’s protest and enclosed a copy of Behring’s formal protest in Division of Administrative Hearings Case Number 96-4475BID. Roche did not intervene in the bid protest. The final hearing in the bid protest was scheduled for final hearing on October 23, 1996. The day before the hearing, representatives of the Department and Behring met to discuss the possibility of settling the case. Shortly before the settlement conference, the Department’s counsel called a Roche representative, Betty Bennett, and informed her that Behring had requested a meeting to attempt to resolve the protest. He was unable to make contact with an Abbott representative. No one from Roche attended the meeting. The Department did not issue any formal written notice that it intended to settle the case with Behring. The Department did not know prior to the meeting what the parties would discuss. The Department did not attend the meeting expecting to “negotiate a contract.” At the meeting, Behring initially took the position that the Department should award the contract to Behring at $.90 per test and not seek further competitive bids. The Department took the position that the contract should be subject to additional competitive bidding to determine what the result would be with more than one competitive bid. After further discussion, Behring offered to lower its bid price. The Department’s representatives left the room to discuss the offer. Upon their return, Department representatives made Behring a lower counteroffer. Behring and the Department eventually arrived at an oral settlement under which the Department would award the contract to Behring at a price of $.77 per test and Behring would dismiss its protest. The Department based its decision to settle the bid protest with Behring on the following: (a) the risk of losing the bid protest and being required to pay Behring $.90 per test; (b) the desire not to further extend the existing contract at the current price of $1.07 per test; (c) the risk that a third attempt to solicit competitive bids would result in another protest and further delay; (d) the fact that Behring had submitted responsive bids to the two previous solicitations; (e) the assumption that subsequent bids by Roche and Abbott would be higher when they included the omitted items that caused their rejection. There is no persuasive evidence to indicate that the Department’s reasons for settling Behring’s bid protest were pretextual or otherwise invalid. The Department correctly concluded that it might have to pay Behring $.90 per test if it lost the bid protest regardless of the applicable standard of proof in that proceeding. The Department also was justified in assuming that Roche’s bid price would be higher when it included the previously omitted printers. For these and other reasons set forth above in the Findings of Fact, the Department’s decision to settle the case by negotiating a lower contract price with Behring was in the best interest of the state of Florida. On October 23, 1996 the Administrative Law Judge in Case No. 96-4475BID entered an order closing the file of the Division of Administrative Hearings and relinquishing jurisdiction to the Department. The Department did not issue a Final Order setting forth the final disposition of the case. By letter dated October 30, 1996 the Department informed Roche and Abbott that it had negotiated a satisfactory contract with Behring pursuant to Rule 60A-1.018(1)(b), Florida Administrative Code. This letter advised Roche that the Department intended to award the contract to Behring. In the letter, the Department gave Roche the opportunity to request a hearing pursuant to Chapter 120, Florida Statutes, to protest the intended agency action. By letter dated November 8, 1996, Roche protested the notice of intended award to Behring. Without objection, Roche submitted an amended petition on December 10, 1996. Behring filed a petition for leave to intervene on November 27, 1996. An order dated December 11, 1996 granted that motion.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order awarding the contract for ITB No. 96-DC-6847R to Behring Diagnostic, Inc., and dismissing the protest of Roche Diagnostic Systems. DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 12th day of February, 1997.
The Issue Should Petitioner Elizabethan Development, Inc. prevail in its challenge of Respondent Department of Health and Rehabilitative Services' Invitation to Bid (ITB) pursuant to Section 120.53(5) F.S. and Rule 10-13.011 F.A.C.?
Findings Of Fact On May 15, 1990, HRS mailed its ITB which is the subject of this proceeding. The ITB sought an existing facility for the agency to lease in Cross City, Florida, for use as a full client service center. Upon the face of the ITB documents, a preproposal conference was scheduled for May 23, 1990. Petitioner Elizabethan Development, Inc. received the ITB on May 16, 1990, as evidenced by a certified mail return receipt for that date. Petitioner filed its written intent to protest dated July 13, 1990 with the HRS agency clerk on July 16, 1990. Petitioner filed nothing with HRS prior to that date. Under the terms of the ITB, sealed bids were due to be received by HRS no later than 2:00 p.m. July 18, 1990. Petitioner filed no bid in response to the ITB prior to bid closing, nor at any other time. HRS proceeded to open and award the lease on July 18, 1990, despite Petitioner's July 16, 1990 intent to protest. Petitioner filed its formal protest dated July 24, 1990 with the agency clerk on July 26, 1990. Petitioner currently leases to HRS the building HRS now occupies in Cross City, Florida, and which HRS occupied at the time the ITB was issued. The July 16, 1990 intent to protest contained no specific information as to the nature of Petitioner's protest. The main thrust of the allegations contained in the July 26, 1990 formal written protest is that the specifications in the May 1990 ITB were so narrowly drawn that only one potential bidder (not Petitioner) could be responsive and that Petitioner could become responsive if ITB specification changes were negotiated. Additionally, the written protest alleged a number of problems which are, in essence, disputed issues with regard to the existing lease contract between Petitioner and HRS, which issues should more properly be brought before an Article V court. Petitioner admitted that its delay in filing its intent to protest and formal protest was occasioned by its conscientious preparation of its protest through undertaking an investigation of the existing available buildings in Cross City, Florida. Petitioner further admitted that its delay in filing its intent to protest and formal protest was voluntary and not induced by any representations by HRS or its employees.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order determining the Petitioner's intent to protest and formal written protest to be untimely and dismissing same. DONE and ENTERED this 27th day of September, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1990. Copies furnished to: Alan Taylor Elizabethan Development, Inc. Post Office Box 7077 Winter Haven, Florida 33883 Frances S. Childers, Esquire HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, Florida 32609 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Request for Proposals Through the issuance and distribution of a Request for Proposal and/or Proposal Submittal Form (RFP), the Department's Region IV solicited the submission of proposals from prospective lessors interested in leasing to the Department office space in an area (more particularly described in the RFP) in Broward County. The RFP contained the following "General Specifications and Requirements," among others: Net square footage required: 9,196 (within plus 3 percent tolerance) measured in accordance with the Standard Method of Space Measurement (Attachment A). NOTE: restrooms and mechanical rooms are not to be included in calculating net rentable square footage. BIDDER RESPONSE: Net square feet available (Space offered must be within the +3 percent required) . . . Space to be located in the County of Broward, Florida depicted in the following boundaries: NORTH: N.W. 2nd Street, N.E. 2nd Street SOUTH: Davie Boulevard EAST: Federal Highway, U.S. 1 WEST: S.W. 4th Avenue, N.W. 7th Avenue (See attached map (Attachment B). ) Proposals (bids) shall be considered responsive if the space is within or abutting the specified boundaries. Space for purpose of this paragraph means the net square footage to be leased. BIDDER RESPONSE: (address of proposed location- mark location on Attachment B also). Include zip code. The offered space represents entire building. percent of the Space to be made available on July 1, 1997 or within 90 days after notification of award of proposal, whichever occurs last. . . . Term of lease: Five (5) years with an option to renew for an additional Five (5) Years. Services: Full Services to be provided by lessor, including utilities, interior and exterior maintenance, recycling services, garbage disposal, janitorial services and supplies as specified in Attachment C. . . . Photographs and Floor Plans: As part of the bidder's submittal, bidders are to provide: A clear photograph or prospectus showing exterior front, sides and rear of the proposed facility. A floor plan to scale . . . showing present configurations with measurements that equate to the net rentable square footage. The final floor plan will be as described in the specifications and as identified through consultation with the Department. BIDDER RESPONSE: Floor Plan and Photograph(s) are included as a part of this proposal. . . . Existing building. The proposed space must be an existing building. To be considered as existing the proposed space must be dry and measurable (capable of being physically measured). To be considered as "Dry and Measurable" the construction area of all floors of the building including bathrooms, basement, mechanical equip- ment rooms, stairways, penthouses, and the like must be enclosed with floor, finished roof and exterior walls with windows and doors installed, so that the interior of the building will remain dry during adverse weather conditions. The areas mentioned must be clearly defined within the building, but are not required to be completed, to allow the actual occupiable (rental) area of the building to be measured at the time of pro- posal submittal. Renovations to bring the facility into compliance with all applicable Federal, State and local codes and regulations and/or to meet the desired arrangements are permitted, if carried out in accordance with prescribed procedures. The facility must comply or be renovated to comply with the requirements for Accessibility by Handicapped Persons as mandated by Chapter 553, Sections 553.501-553.513, Florida Statutes, and the latest Accessibility Requirements manual published by the Department of Community Affairs, (DCA) Florida Board of Building Codes and Stan- dards, as well as the requirements of Public Law 101-336, July 26, 1990 known as the "Americans with Disabilities Act of 1990" Appendix A to Part 36, "Standards for Accessible Design." The Lessor agrees that the de[v]ised premises now conform, or that, prior to Lessee's occupancy, that said premise[s] shall, at the Lessor's expense, be brought into compliance with all specified requirements. (Attachment D). Successful bidder will provide a floor plan including a site plan of the parking areas for ADA review. . . . The RFP contained the following "Space Requirement Criteria," among others: Plans review fees for State leased buildings: Floor plans are to be a joint effort of departmental staff and the successful bidder. The successful bidder is to provide architectural services by a licensed architect to prepare renovation plans per the 1991 Edition of NFPA 101. The final floor plan is subject to department determination and State Fire Marshall review and approval. . . . See floor plan, Attachment H, for suggested configuration of offices and rooms. 5 Offices not to exceed 120 sq. ft. each- 600 net sq/ft 55 Offices not to exceed 64 sq. ft each- 3,520 net sq/ft File Areas- 84 net sq/ft Reception Areas- 300 net sq/ft Conference Room- 550 net sq/ft Storage Areas with floor to ceiling shelves- 180 net sq/ft Copy and Mail Distribution Room- 100 net sq/ft Employee Lounge with sink/cabinets/counter top- 90 net sq/ft Inactive File Room w/open shelves- 2,000 net sq/ft Drug Testing Room*- 100 net sq/ft MIS & Office Automation Terminals and Printers- 255 net sq/ft Firearm Storage- 40 net sq/ft Internal Circulation- 1,377 net sq/ft *Must include: Adjoining restroom, stainless steel sink, viewing window between testing room and restroom, storage shelves and cabinets, and dead bolt lock on testing room. This bathroom is additional to restrooms referenced under "Restrooms" . . . 8. Restrooms: (must meet requirements of Americans with Disability Act of 1990 and the requirements of the Accessibility by Handicapped Persons, Section 553.504(12-13), Florida Statutes- Attachment D): Waterclosets- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Urinals- 1 Men's (Public); 1 Men's (Staff) Lavatories w/mirrors- 1 Men's (Public); 1 Men's (Staff); 1 Women's (Public); 1 Women's (Staff) Note: If space is offered on more than one floor, restroom facilities must be provided to code on each floor in conformance with occupancy and code requirements whichever is greater. . . . The RFP contained the following "General Provisions," among others: 2. All bids accepted by the State are subject to the State's terms and conditions and any and all additional terms and conditions submitted by bidders are rejected and shall have no force and effect. . . . 5. All Proposal sheets must be executed and submitted in a sealed and titled envelope, enclosed in an outer envelope. The face of the inner envelope shall contain, in addition to the Department's address . . ., the date and time of the bid opening and the lease number. PROPOSALS NOT SUBMITTED ON THIS PROPOSAL SUBMITTAL FORM SHALL BE REJECTED. All proposals are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. Each proposal shall be signed by the owner(s), corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). . . . The Department agrees to enter into a lease agreement based on submission and accep- tance of the proposal in the best interest of the Department and the State. The Department reserves the right to reject any and all proposals for reason which shall include, but not be limited to, the agency's budgetary constraints; waive any minor infor- mation or technicality in proposals, to accept the proposal deemed to be the lowest and in the best interest of the State, and if necessary, to reinstate procedures for soliciting competitive proposals. . . . Late proposals, modification of proposals, or withdrawal of proposals: Any proposal received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. A proposal may be withdrawn in person by a proposer or his/her authorized representative provided his/her identity is made known and he/she signs a receipt for the proposal, but only if the withdrawal is made prior to the exact time set for the receipt of proposals. . . . Sealed proposals will be received until 10:00 a.m. on August 21, 1996 by Maria L. Cortes at 3810 Inverrary Blvd., Bldg. C, Suite 101 Conference Room, Lauderhill, FL 33319, at which time all proposals will be publicly opened and read aloud. Notification of award will be made within 30 calendar days and shall be given either by posting the proposal tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. . . . A preproposal conference . . . will be held at 10:00 a.m. on July 17, 1996 at 3810 Inverrary Blvd., Bldg C, Suite 101, Conference Room, Lauder- hill, FL 33319 "Attachment A" to the RFP was the "Standard Method of Space Measurement," which was referenced in the "Net square footage required" provision of the RFP's "General Specifications and Requirements." "Attachment A" read as follows: STANDARD METHOD OF SPACE MEASUREMENT The purpose of this standard is to permit communication and computation on a clear and understandable basis. Another important purpose is to allow comparison of values on the basis of a generally agreed upon unit of measurement (net square footage). It should also be noted that this standard can and should be used in measuring office space in old as well as new buildings, leased office space as well as State-owned office space. It is applicable to any architectural design or type of construction because it is based on the premise that the area being measured is that which the agency may occupy and use for its furnishings and its people. This standard method of measuring office space measures only occupiable space, undistorted by variance in design from one building to another. It measures the area of office building that actually has usable (rental) value and, therefore, as a standard can be used by all parties with confidence and with a clear understanding of what is being measured. Area measurement in office buildings is based in all cases upon the typical floor plans, and barring structural changes which affect materially the typical floor, such measurements stand for the life of the building, regardless of readjustments incident to agency layouts. All usable (rentable) office space, leased or State-owned, shall be computed by: Measuring to the inside finish of permanent outer building walls to the office side of corridors and/or other permanent partitions, and to the center of partitions that separate the premises from adjoining usable areas. This usable (rentable) area shall EXCLUDE: bathrooms, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closet, electrical closets-- and such other rooms not actually available to the tenant for his furnishings and personnel--- and their enclosing walls. No deductions shall be made for columns and projections necessary to the building. Pre-Proposal Conference A pre-proposal conference was held, as scheduled, to give prospective lessors the opportunity to receive from the Department answers to questions they had regarding the RFP. The Department emphasized to those prospective lessors who attended the pre-proposal conference that, as indicated in the "Net square footage required" provision of the RFP's "General Specifications and Requirements," it would not accept a proposal offering space with a "net square footage" of less than 9,196 square feet. Petitioner did not send a representative to the pre-proposal conference. Petitioner's Proposal Two proposals were submitted in response to the RFP. One of these proposals was submitted by Petitioner, which offered the Department the entire space in a two-story building located at 609 South Andrews Avenue in Fort Lauderdale, Florida (Petitioner's Building). In its proposal, Petitioner indicated that the "net square feet available" in its building was 9,370. Along with its proposal, Petitioner submitted to the Department existing and proposed floor plans. There are currently two restrooms on the first floor of Petitioner's Building and two restrooms on the second floor of the building. None of these restrooms meets the accessibility requirements prescribed in the RFP. It is Petitioner's intention, if it is awarded the lease by the Department, to eliminate these existing restrooms and replace them with restrooms to be constructed adjacent to the existing structure in space that is not now, nor was it at the time of the submission of Petitioner's proposal, "Dry and Measurable," as that term is defined in the "Existing building" provision of the RFP's "General Specifications and Requirements." These intentions of Petitioner's were reflected in the materials Petitioner submitted to the Department along with its proposal. The Department's Initial Evaluation of the Responsiveness of the Two Proposals Douglas Sweredoski is the Facilities Services Manager Assistant for the Department's Region IV. He is a certified real estate appraiser. On or about September 15, 1996, Sweredoski went to Petitioner's Building and measured the dimensions of the building (and certain of its component parts), using an electronic measuring device, to ascertain whether the building had the "net square footage required" by the RFP. Employing the "Standard Method of Space Measurement," Sweredoski reasonably determined that Petitioner's Building had less than the "net square footage required" by the RFP and that therefore Petitioner's proposal was not responsive to the RFP. The other proposal that the Department received was also deemed to be non-responsive (a determination that has not been challenged). The Department's Notice of Rejection of Proposals Having determined that both proposals it had received were materially non-responsive, the Department, by letter dated September 19, 1996, informed Petitioner of the following: This letter is to inform you that the Department of Corrections has determined that it is in the best interest of the State of Florida to reject all bids submitted for the above referenced lease [Lease No. 700:0754]. A new Request for Proposal will be issued soon. This letter constitutes agency action concerning the referenced bid. You have seventy-two (72) hours from receipt of this letter to file a written notice of protest to this action, and ten (10) days after filing such written notice of protest to file a formal written protest. All documents should be addressed to the undersigned at 3810 Inverrary Boulevard, Building C, Suite 101, Lauderhill, Florida 33319. Failure to file a protest within the times prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Protest Petitioner timely protested the Department's decision to reject Petitioner's proposal and to issue a new RFP. Sweredoski's Return to Petitioner's Building On or about October 1, 1996, Sweredoski returned to Petitioner's Building to verify the accuracy of the measurements that he had obtained (using an electronic device) during his earlier visit to the building. On this follow-up visit to the building, Sweredoski used a mechanical device (more specifically, a tape measure) to measure the dimensions of the building (and certain of its component parts). The measurements he obtained during this second visit were "very close" to the measurements he had obtained during his previous visit. Sweredoski, employing (as he had during his earlier visit) the "Standard Method of Space Measurement," reasonably determined that Petitioner's Building had a "net square footage" of 8,731 net square feet (a "gross square footage" of 9,369 square feet minus: 271 square feet for the existing stairway leading from the first to the second floor; 110 square feet for the existing telephone/mechanical closet on the second floor; and 257 square feet for the existing bathrooms on the first and second floors). Referral of Petitioner's Protest to the Division On October 10, 1996, the Department referred Petitioner's protest to the Division.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order denying Petitioner's protest of the Department's decision to reject all proposals (including Petitioner's) submitted in response to the Department's request for proposals for Lease No. 700:0754. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November, 1996. 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 21st day of November, 1996.
Findings Of Fact The Respondent, Department of Corrections ("Department"), conducted the bid opening for the proposed award of lease number 700:0487 on June 27, 1989. The bids submitted by Petitioner, Miami International Commerce Center ("MICC"), and Intervenor, Luis Sanchez ("Sanchez") were the only two timely responses received to the bid solicitation for this lease. At the bid opening, the Department rejected MICC's bid on the grounds that it was unresponsive. The Department contends that MICC's bid was not responsive because: The map included in the proposal form on which the bidder was supposed to depict the location of the project was not included as an attachment to the package submitted. However, the MICC bid package did include a map from which the location of the project could easily be determined. The package submitted did not include adequate evidence of compliance with the energy performance index. The package submitted did not include a clear photo of the building demonstrating that the building was "dry and measurable". Mary Goodman, the Chief of the Bureau of Property Management for the Department of General Services, was called as a witness by the Department to testify regarding MICC's bid submittal. Ms. Goodman has been Chief of the Bureau of Property Management for 18 years and has been involved in leasing for state projects since 1958. She drafted the proposal form and the schedule of required attachments thereto. In September of 1988, she sent a letter to the state agencies involved in leasing (including the Department) advising them as to the mandatory nature of the proposal form and the need to insist upon strict adherence to the requirements set forth in the proposal. This directive was applied by the Department in rejecting MICC's bid. After testifying regarding the deficiencies in the MICC's bid submittal, Mrs. Goodman reviewed the energy performance certification included as part of the Intervenor's submittal package. Mrs. Goodman testified that the certification letter included in that package was inadequate, and therefore, the Intervenor's bid was also nonresponsive. Both the bid submitted by Petitioner and the bid submitted by Intervenor failed to include acceptable energy performance certifications and were therefore nonresponsive.
Recommendation Based upon the foregoing, it is RECOMMENDED that both bids submitted in connection with the proposed award of Lease No. 700:0487 be deemed nonresponsive and the Department of Corrections rebid the lease. DONE and ENTERED this 25th of August, 1989, at Tallahassee, Florida. J. STEPHEN MENTON 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 25th day of August, 1989. APPENDIX The Petitioner has filed a Proposed Recommended Order which does not comply with the format anticipated in Rule 221- 6.031, Florida Administrative Code. However, the undersigned has reviewed the Proposed Recommended Order and it has been considered in the preparation of this Recommended Order. The first two pages of the Proposed Recommended Order consist of background information and quotes from the bid documents. These two pages do not constitute proposed findings of fact. Page three of the Proposed Recommended Order includes proposed findings of fact and they have been adopted in the Findings of Fact set forth above. Page four of the Proposed Recommended Order constitutes legal argument. COPIES FURNISHED: Charles Fritz, Designated Representative 8181 Northwest 14th Street Miami, FL 33126-1899 Luis Sanchez, Pro Se P. O. Box 34021 Tallahassee, FL 33134 Drucilla E Bell, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, FL 32399-2500
