The Issue Whether Cubic Western has standing to bring the bid challenge involved in these proceedings.
Findings Of Fact On or about March 31, 1989, CUBIC submitted a Proposal in response to DOT RFP-DOT-88-01 for a toll collection system for Florida's Turnpike. After reviewing this proposal, DOT determined CUBIC's proposal was nonresponsive to the RFP, and on May 18, 1989, advised CUBIC of the rejection of its proposal and of CUBIC's right to challenge this determination by filing a petition for administrative hearing. CUBIC timely filed a Formal Written Protest dated June 5, 1989 requesting an administrative hearing challenging this agency action. This protest was forwarded to the Division of Administrative Hearings by DOT order of July 20, 1989, and the case was scheduled to be heard August 4, 1989. On July 31, 1989, CUBIC filed a Notice of Voluntary Dismissal. The Division of Administrative Hearings entered an ORDER OF DISMISSAL closing the DOAH file and returning the matter to DOT for final disposition. DOT entered a Final Order dismissing CUBIC's bid protest. On October 5, 1989, CUBIC filed an Amended Complaint in the Circuit Court, Second Judicial Circuit, in and for Leon County, against DOT, which had been consolidated with an action filed by PRC against DOT as both cases stemmed from action taken by DOT on RFP-DOT-88-01. In this civil action, CUBIC seeks return of the RFP it submitted to DOT. In this civil complaint CUBIC asserts that since its proposal had been rejected by DOT as nonresponsive to the RFP, at that point in time "DOT and the public had no further interest in CUBIC's Proposal, and there is no public interest to be served by disclosing the CUBIC Proposal at this time." On November 21, 1989, DOT posted notice of its intended award of the contract based on the RFP to PRC. On December 6, 1989, CUBIC timely filed the Formal Written Protest that is the subject of this Motion.
Recommendation It is recommended that the Formal Written Protest dated December 6, 1989, submitted by Cubic Western Data, be dismissed. ENTERED this 2nd day of January 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1990. COPIES FURNISHED: Frank A. Shepherd, Esquire Gernard M. Kouri, Esquire Thomas H. Bateman, 111 Kimbrell and Hamann General Counsel Suite 900, Brickell Center Department of Transportation 799 Brickell Plaza 562 Haydon Burns Building Miami, FL 33131-2805 Tallahassee, FL 32399-0450 Robert Daniti, Esquire Ben G. Watts Department of Transportation Secretary Haydon Burns Building, MS 58 Department of Transportation Tallahassee, FL 32399-0458 Haydon Burns Building 605 Suwannee Street Deborah A. Getzoff, Esquire Tallahassee, FL 32399-0450 David Bressler, Esquire Fowler, White, et al. 101 N. Monroe Street Tallahassee, FL 32301
Findings Of Fact Since 1984 Respondent Department of Health and Rehabilitative Services (hereinafter "the Department") has served as the distributing agency for United States Department of Agriculture surplus foods to be distributed to needy people in the State of Florida. These foods are butter, processed cheese, non-fat dry milk, cornmeal, rice, flour, and honey. The Department contracts with companies in the food storage and distribution business-to store the surplus food and distribute it to emergency feeding organizations. The emergency feeding organizations then distribute the food to needy persons. Each year the Department enters into contracts for various regions within the State. Petitioner Wales Industries, Inc. (hereinafter "Wales"), Intervenor Mid-Florida Freezer Warehouses, Ltd. (hereinafter "Mid-Florida"); and Gulf Cargo Services, Inc. (hereinafter "Gulf Cargo"); have all been awarded contracts with the Department over the years for storage and distribution of the surplus foods in the various regions of the State. On or about June 12, 1987, the Department issued an Invitation for Bid (hereinafter "IFB 87-1") which advised prospective bidders that sealed bids would be opened on July 10, 1987 for a contract for the storage and distribution of the surplus foods for the period of October 1, 1987 to September 30, 1988. A bidder under IFB 87-1 would be required to store the above-described commodities in dry, chilled, and frozen storage. The provider must also be able to ship the commodities under dry, chilled, and frozen conditions to emergency feeding organizations throughout the state. The bid evaluation criteria set forth in Paragraph E of IFB 87-1 provide, in part, as follows: c. The bid will be awarded to the Bidder submitting the lowest delivered price per CWT for dry, cold, and frozen donated foods inclusive for each Region, combination of regions, or statewide as bid. The bid price for pick-up at the Provider's warehouse is informational, but is not a consideration in award of the bid. Paragraph numbered eight of the General Conditions of IFB 87-1 notifies actual or prospective bidders who dispute the reasonableness, necessity, or competitiveness of the terms and conditions therein or of the bid selection or contract award recommendation that they must file a protest within the time prescribed in section 120.53(5), Florida Statutes, or be deemed to have waived their right to do so. IFB 87-1 included an estimate of the number of cases and weights of commodities to be handled by a provider per region. This information was characterized as "History of 1986-1987 Cases and Pounds" but this characterization was amended to "Estimates of 1986-1987 Cases and Pounds" by letter of amendment dated June 18, 1987. IFB 87-1 provides elsewhere that these distribution rates are subject to change. By further letter of amendment dated June 23, 1987, the Department notified prospective bidders that bids based upon combinations of regions were acceptable, and revised bid sheets with blanks for the dollar bid for each of the three types of commodities were provided to prospective bidders with the letter of amendment. On June 26; 1987; the Department conducted a bidder's conference for IFB 87-1. Representatives from Wales and Mid-Florida attended the bidder's conference and asked questions of the Department's representatives concerning IFB 87-1. Wales, Mid-Florida, and Gulf Cargo (among others) submitted sealed bids by the deadline at 2:00 p.m., July 10, 1987. Gulf Cargo submitted a bid for Region I only. Wales submitted individual bids for each of Regions I through VI. Mid- Florida submitted individual bids for Regions II through VI and two bids combining various regions except for Region I. Gulf Cargo was awarded a contract for Region I, and Mid-Florida was awarded a contract based on its combined bid for Regions II through VI. The bid awards were announced on July 17, 1987. Wales' notice of intent to file formal written protest is dated July 23, 1987. Wales filed its formal written protest on July 31, 1987. The volume and type of surplus foods distributed through the program is solely dependent upon the commodities made available to the Department by the federal government. There is no guarantee that the State of Florida will receive any particular amount or mix of the commodities distributed through the program. Therefore, the data supplied by the Department to prospective bidders regarding the volume and type of surplus foods to be stored and distributed is based upon actual historical data and is the most accurate data available. Neither IFB 87-1 nor the contracts for previous years under this program guarantee the successful bidder any amount of revenue or any volume of goods to be handled. The method of bid evaluation that was set forth in IFB 87-1, which was emphasized at the bidder's conference, and which was memorialized in the Department's June 29, 1987 listing of questions and answers from the bidder's conference and sent to all prospective bidders was the same the Department would average the bid prices for each type of commodity, i.e., frozen, dry and chilled. The averaging method utilized results in the lowest cost accruing to Use State and actually resulted in a lower bid price for the 1987-88 contracts than the 1986-87 contracts. The actual cost to a provider of storing and transporting frozen, chilled, and dried commodities varies according to the facilities and equipment owned by each prospective bidder. The averaging method utilized by the Department for IFB 87-1 permits bidders to develop competitive bids based upon the bidder's individual costs, storage facilities and equipment; and the bidder's anticipation of the volumes and types of commodities likely to be received from the federal government. The information provided in IFB 87-1 as to drop sites for delivery by the providers was sufficient for prospective bidders to develop competitive bids. The requirement contained in IFB 87-1 that the provider would be responsible for providing off-loading facilities in Dade, Broward, and Duval counties did not prevent the formulation of competitive bids.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is, RECOMMENDED that a Final Order be entered dismissing the bid protest filed by Wales Industries Inc.; awarding the 1987-88 contract for Region I to Gulf Cargo Services, Inc.; and awarding the 1987-88 contract for Regions II-VI to Mid-Florida Freezer Warehouses Ltd. DONE and RECOMMENDED this 14th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3317BID The Department's proposed findings of fact numbered 1-3 and 7 have been adopted either verbatim or in substance in this Recommended Order. However, the Department's proposed findings of fact numbered 4-6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Mid-Florida's proposed findings of fact numbered 1-20 have been adopted either verbatim or in substance in this Recommended Order. Wales' proposed findings of fact numbered 1-4 and 9 have been adopted either verbatim or in substance in this Recommended Order. However, Wales' proposed findings of fact numbered 12-15 have been rejected as being contrary to the evidence in this cause; Wales' proposed finding of fact numbered 16 has been rejected as not being supported by the evidence in this cause; and Wales' proposed findings of fact numbered 5-8, 10, and 11 have been rejected as being subordinate to the issues under consideration herein. COPIES FURNISHED: Sam Powers Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Martin R. Dix Esquire Barnett Bank Building Suite 800 315 South Calhoun Street Tallahassee, Florida 32301 Robert Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32399-0700 Harold T. Bistline Esquire Building 1, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue On March 16, 1992, Petitioner filed motions for attorney's fees and costs pursuant to Sections 57.105 and 120.57(1)(b)5., Florida Statutes. At hearing, Petitioner conceded that Section 57.105 is inapplicable to administrative hearings and the case proceeded on the issue of entitlement under Subsection 120.57(1)(b)5., Florida Statutes. The issue of an appropriate amount of fees and costs is moot, for the reasons set forth below, although that issue was reserved for ruling, if necessary, after an evidentiary hearing.
Findings Of Fact The following findings are gleaned from the record in case number 92- 0247BID. On June 21, 1991, the Department of Health and Rehabilitative Services (HRS), Developmental Services Program Office, published its need for six (6) bed or less intermediate care facilities for the developmentally disabled (ICF/DD) throughout the state, in each of eleven HRS planning districts. The notice solicited competitive proposal applications for varying numbers of beds in each district. The notice stated that applications would be received in each district no later than 5:00 p.m., September 19, 1991, and that final awards would be made on November 22, 1991. Sunrise Community, Inc. (Sunrise), filed petitions for formal hearing in response to denial of its proposal applications in several HRS districts. On January 2, 1992, the petitions were dismissed by HRS with leave to amend. An amended notice of bid protest and petition for formal hearing was filed by Sunrise on January 9, 1992, as to HRS District VII, and was forwarded to the Division of Administrative Hearings (DOAH) for conduct of the hearing. DOAH number 92-0247BID was assigned to the undersigned Hearing Officer and was set for hearing on January 31, 1992, within the deadline required by Section 120.53(5), Florida Statutes. HRS filed a motion to dismiss the amended petition on January 22, 1992, alleging that Petitioner, with its third-ranked proposal, lacked standing to protest, and further alleging that the amended petition lacked specificity. On January 23, 1992, Salem Village MRDD, Inc. (Salem), filed a Petition to Intervene, as the apparent successful bidder in HRS District VII. The second-ranked bidder, Community Services of Orange and Seminole, Inc. (CSOS) also petitioned to intervene in DOAH Case number 92-0247BID and had filed a separate Amended Notice of Bid Protest on January 17, 1992. HRS' motion to dismiss was heard on January 27, 1992. An order was entered on January 29, 1992, consolidating the Sunrise and CSOS petitions, granting Salem's petition to intervene, and denying HRS' motion to dismiss, but requiring Petitioner, Sunrise, to provide specifics of its factual allegations either through responses to discovery or in an amended petition to be served on opposing counsel prior to commencement of the hearing on January 31st. In the meantime, the parties were engaging in discovery, filing motions related to discovery and were proceeding towards hearing in this and the other cases arising from Sunrise's bid protests in other HRS districts. On the afternoon of January 30, the day before the scheduled hearing, after learning that CSOS was dismissing its petition, Sunrise withdrew its challenge in this District VII case and notified the parties by telephone. The Hearing Officer was notified directly by telephone by counsel for CSOS and the hearing scheduled to commence in Tallahassee on January 31 was cancelled. Without the participation of the second-ranked bidder, CSOS considered its chances of prevailing, as third-ranked bidder, were substantially reduced. A "Modified Amended Notice of Bid Protest," clearly mailed prior to Sunrise's voluntary dismissal, was filed at the DOAH on January 31, 1992. The identical pleading was apparently filed in this party's other bid protest cases in the other HRS districts, as the certificate of service reflects service on various other HRS district counsel. The pleading provides in paragraph 6.(a)- (z), pages 6-8, some specifics of Sunrise's allegations of defects in Salem's proposal and the bid committee's evaluation. The bid protest of Sunrise filed, not simultaneously, but at least contemporaneously with the protest of CSOS, the second-ranked bidder, did not itself cause delay in the process, and it was orally dismissed within hours or minutes of the attorney's discovery of dismissal by CSOS. The substantial weight of evidence in the record supports a finding that Sunrise's initiation and pursuant of a bid protest in Case number 92-0247BID was not for an improper purpose. There was a delay of several weeks between the oral dismissal and the order entered on March 20, 1992, remanding the file to HRS and closing DOAH's file. This delay was occasioned by the Hearing Officer's reluctance to close a file without written confirmation of dismissal, particularly since pleadings were still being docketed, erroneously, under the DOAH file number 92-0247BID. Those pleadings were identical to pleadings filed in several other HRS district bid cases that were still active. Salem, a party in those other cases, one of which proceeded to formal hearing and is waiting a recommended order, has not demonstrated any prejudice by that delay.
The Issue The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.
Findings Of Fact State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items. Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows: Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project. The prospective bidders were also given this information in the pre-bid meetings. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows: Bidder Total Bid D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500. Rovel Construction, Inc. $1,559,000. Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows: Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work. When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Robert A. Hingston, Esquire Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P. 901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134 Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health Miami-Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125 William G. Christopher, Esquire Brown Clark, A Professional Association 1819 Main Street, Suite 1100 Sarasota, Florida 34236
The Issue 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 This cause has been resolved upon Intervenor's Motion to Dismiss for Petitioner's failure to timely file the formal written protest required by Section 120.53(5) F.S. [1990 Supp.] to protest award of Respondent Alachua County School Board's BID 341 "Bid Proposal For Furnishing Monitoring Security Systems" to Intervenor.
Findings Of Fact Request for Bid 341 "Bid Proposal For Furnishing Monitoring Security Systems" dated June 14, 1991 was issued by Respondent Alachua County School Board and received by Petitioner/protestant Universal Network, Inc. on or about that date. The bid-closing date was 1:30 p.m. July 2, 1991. No one challenged or protested the specifications prior to the bid submittal date. Universal Network, Inc. and Crime Prevention Security Systems were the only bidders who timely filed bids on or before June 2, 1991. The request for bid accompanied by bid specifications had notified all potential bidders that School Board personnel also intended to open the bids on July 2, 1991, and stated that "Bid tabulations with recommended awards will be posted . . . on or about the Monday following bid opening, . . ." The request for bid also provided "Failure to file a protest within the time prescribed in Section 120.53(5) Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." (HO Exhibit 6) The bids were opened July 2, 1991, and oral communications were made by Respondent's personnel to the effect that Crime Prevention Security Systems would probably be successful since it was low bidder. However, Respondent's personnel delayed posting a formal intent to award on Monday, July 8, 1991 because Petitioner orally announced itself aggrieved by the process. Eight days after the bid opening, on July 10, 1991, Respondent's personnel met with both bidders in an effort to resolve any issue that could result in a formal protest. This meeting was tape recorded by the Petitioner. After this meeting, Petitioner filed a letter dated July 11, 1991 stating that Petitioner "learned" through "verbal notification" as of the July 10 meeting that it would not be awarded the bid, outlining its own prior contract work for the Respondent School Board, attacking the bid specifications, and notifying the Respondent that Petitioner would cease to monitor security under the existing contract at midnight on July 31, 1991. At hearing, Petitioner acknowledged that it did not rely on this July 11, 1991 letter (HO Exhibit 1) as its notice of protest. Nothing was formally decided until, on July 16, 1991, Respondent, through its employee, David C. Hotary, formally posted its intent to award Bid 341 to Crime Prevention Security Systems. On that date, Respondent also wrote and hand-delivered a formal letter-notice of intent to Petitioner's president. That letter provided, in pertinent part: As follow-up to our meeting of July 10, and your letter of July 11, this is to advise that posting of the recommended bid award to crime prevention security systems occurred as of this date and will remain posted for a three day period. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes. (Emphasis supplied) (HO Exhibit 2) There is no dispute that Petitioner actually received this written notice of decision or intended decision on July 16, 1991. This procedure complied with Respondent's obligations to provide notice of the award and a window for Petitioner's bid protest under the provisions of Section 120.53(5)(a). F.S. [1990 Supp.] and Respondent's rule (HO Exhibit 5). On July 17, 1991, the Petitioner's president filed with the Respondent a letter bearing that date which provided, in pertinent part, This letter is to inform you that Universal Network, Inc. is now formally protesting BID 341 "Bid Proposal For Furnishing Monitoring Security Systems." We base our protest on unpublished bid variances. (HO Exhibit 3) There is no dispute that this letter was filed with the Respondent within 72 hours "after the posting of the bid tabulation or after receipt of the notice of agency decision or intended decision." It clearly constituted the "notice of protest" contemplated by Section 120.53(5)(b) F.S. [1990 Supp.] and is timely under that statute. Under that statute and pursuant to Respondent's rule, the 10 days for filing the required formal written protest would have run out on July 29, 1991, a Monday, allowing for Saturday and Sunday. On July 24, 1991, five days before the formal written protest was due, Respondent's personnel telephoned the Petitioner's president and a conversation ensued. Upon the representations at formal hearing of Petitioner's president Daniel Boudreau, it is found that this conversation encouraged him to file another letter to the Respondent on July 31, 1991. (HO Exhibit 4) Petitioner's president asserted that Respondent's July 24, 1991 phone call was only to urge him to file a letter setting out his grounds for protest more fully so that the issues between Petitioner and Respondent could be resolved informally. Filing a letter which sets out the grounds for a notice of protest is a fair description of what a formal written protest is supposed to do, and it was Respondent's position that the phone call was to urge Petitioner to file its formal written protest. Whether or not the filing of this July 31, 1991 letter could constitute a means of informal resolution of the bid dispute as asserted by Petitioner is a legal issue and is discussed in the Conclusions of Law, infra, but it is undisputed that Respondent's telephone call of July 24, 1991 actually encouraged Mr. Boudreau to file a more detailed letter and did nothing to discourage filing a formal written protest, which formal written protest is mandatory under the applicable statute and rule. Nonetheless, Petitioner filed nothing whatsoever in writing with the Respondent between July 17, 1991 (the date of the notice of protest) and July 31, 1991. On July 31, 1991, Petitioner filed with the Respondent its letter which provided, in pertinent part: This letter is to inform you that Universal Network, Inc. has formally protested BID 341 "Bid Proposal for Furnishing Monitoring Security Systems." We base our protest on unpublished bid variances. Universal Network, Inc. is now asking for a formal hearing and also will be willing to submit a new bid with the SBAC corrected bid specification. Petitioner's July 31, 1991 letter goes on to compare how Petitioner's bid would be altered as of July 31, 1991 if the original bid specifications had specified or clarified certain items or terms and to show that Petitioner's July 2, 1991 bid price would have been lower if that had been the case. (HO Exhibit 4) Petitioner's July 31, 1991 letter clearly constituted Petitioner's "formal written protest" as contemplated by Section 120.53(5)(b) F.S. [1990 Supp.] and the rule and is untimely under that statute and rule.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Alachua County enter a Final Order dismissing the protest/petition of Universal Network, Inc. RECOMMENDED this 19th day of September, 1991, 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 19th day of September, 1991. COPIES FURNISHED: Dale A. Boudreau, President Universal Network, Inc. 1031 NW 6 Street, Suite A-3 Gainesville, FL 32601 Thomas L. Wittmer, Staff Attorney School Board of Alachua County 620 E. University Avenue Gainesville, FL 32601 Robert E. Roundtree, Jr., Esquire 111 SE 1st Avenue Gainesville, FL 32602 Dr. Douglas Magann, Superintendent Alachua County School Board 620 East University Avenue Gainesville, FL 32601
The Issue Whether Petitioner's bid protest should be dismissed for failure to state with specificity the underlying facts of the protest or facts sufficient to form a basis for a bid protest.
Findings Of Fact The Petitioner filed a bid protest of Invitation To Bid (ITB) No. 13- 550-002-A for raised pavement markers. Petitioner was disqualified from award of the bid due to the failure to meet the requirement that the products bid must be on the Florida Department of Transportation Qualified Products List at the time of the bid opening. Petitioner's Formal Protest contains no specific allegations of fact and as such is not in conformance with Rule 60Q-2.004(3), Florida Administrative Code, and Section 120.53(5)(b), Florida Statutes. On December 20, 1995, the Hearing Officer, sua sponte, entered an order requiring Petitioner to file an amended Formal Protest stating with specificity the facts and law which form the basis for its protest. The document filed by Petitioner in response to the order in essence: States there are on-going discussions with the Florida Department of Transportation, ("FDOT") District V Secretary and the Florida Department of Transportation Secretary that should preempt any further litigation. Complains that Section 316.0745(4), of the Florida Statutes is being improperly interpreted by FDOT so that the State is being forced to purchase a highway safety product at a cost far in excess of prudent purchasing practices. Alleges that the Petitioner meets all the qualifications of laboratory and field testing required by the Florida Department of Transportation Materials Laboratory . . . The formal protest filed in this case by Pac-Tec does not provide such notice to the Department of Management Services. Therefore the Department of Management Services cannot prepare an adequate defense to the protest. The response does not cure the deficiencies in the formal protest.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Management Services issue a Final Order dismissing the Formal Protest filed by Petitioner. DONE and ENTERED this 24th day of January, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1996. COPIES FURNISHED: Cindy Horne, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 David H. Smith, Esquire Post Office Box 279 Astor, Florida 32101 Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 William H. Linder, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact In November, 1990, the Respondent, the Department of State, sought proposals for the lease of office space for its Division of Licensing. On or prior to December 7, 1990, the proposal opening date, at least six proposals were received by the Respondent. Those proposals were designated by the Respondent as "Tallahassee Associates" (the Petitioner's proposal), "Crossland Agency" (the Intervenor's proposal), "Woodcrest A", "Woodcrest B", "T.C.S." and "DeVoe". On January 2, 1991, the Respondent posted a standard form Bid Tabulation indicating that the following scores had been awarded to the following proposals: Proposal Score Woodcrest A 82 Woodcrest B 82 Tallahassee Associates 73 Crossland Agency 85 DeVoe 54 The proposal of T.C.S. was not evaluated by the Respondent because it was determined to be non-responsive. The Respondent also posted a copy of a memorandum dated January 2, 1991, with the January 2, 1991, Bid Tabulation. The memorandum was from John M. Russi, Director of the Division of Licensing, to Ira Chester, Chief of the Bureau of General Services. Mr. Russi indicated in the memorandum that the Intervenor would be awarded the lease. Attached to Mr. Russi's January 2, 1991, memorandum was a Lease Evaluation Worksheet which indicated the scores which had been awarded by the evaluation committee to the responsive bidders for each of the criteria to be considered in determining the winning bidder. Printed at the top-center of the January 2, 1991, Bid Tabulation was the following notice: FAILURE TO FILE A PROTEST WITHIN THE TIME PRESCRIBED IN SECTION 120.53(5), FLORIDA STATUTES, SHALL CONSTITUTE A WAIVER OF PROCEEDINGS UNDER CHAPTER 120, FLORIDA STATUTES. . . . The January 2, 1991, Bid Tabulation was posted at 1:00 p.m., January 2, 1991. Therefore, pursuant to Section 120.53(5), Florida Statutes, any bidder desiring to contest the Respondent's proposed award of the lease was required to file a notice of protest with the Respondent no later than 1:00 p.m., January 5, 1991, and a formal written protest on or before January 15, 1991. T.C.S. filed a notice of protest and a formal written protest to the January 2, 1991, Bid Tabulation within the time periods prescribed by Section 120.53(5), Florida Statutes. T.C.S. contested the Respondent's determination that it was not responsive. The Petitioner did not file a notice of protest or a formal written protest to the January 2, 1991, Bid Tabulation within the time periods prescribed by Section 120.53(5), Florida Statutes. Pursuant to Section 120.53(5), Florida Statutes, the Respondent reviewed the formal written protest filed by T.C.S. and agreed that T.C.S. was responsive. After agreeing that T.C.S. was responsive, the Respondent evaluated T.C.S.'s proposal and awarded points for each of the criteria to be considered. Toward the end of January, 1991, after deciding that T.C.S.'s proposal was to be evaluated, the Respondent notified all other bidders of its decision in a document titled Posting of Notice of Agency Decision. The Posting of Notice of Agency Decision was signed by the Respondent's General Counsel and was addressed to "All Responsive Bidders". The Posting of Notice of Agency Decision provided, in pertinent part: Notice is hereby given that the Florida Department of State, Division of Licensing, is reviewing the bid tabulation which was posted at 1:00 P.M., January 2, 1991 for Lease No. 450:0070. The revised bid tabulation will be posted at 8:00 A.M. on February 4, 1991 at the Purchasing Office of the Department of State . . . . Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceeding under Chapter 120, Florida Statutes. Any person interested in the new tabulation should contact . . . after the posting time listed above. The Petitioner filed a notice of protest and a formal written protest challenging the Posting of Notice of Agency Decision within the times prescribed by Section 120.53(5), Florida Statutes. The Respondent dismissed this formal written protest by final order dated February 22, 1991. On or about January 31, 1991, more than four weeks after the posting of the January 2, 1991, Bid Tabulation, Ocie Allen spoke by telephone with Phyllis Slater, the Respondent's General Counsel. Ms. Slater told Mr. Allen that all proposals would be reevaluated as a result of T.C.S.'s protest. Mr. Allen was a lobbyist for the Petitioner in January, 1991. On February 4, 1991, the Respondent posted another standard form Bid Tabulation indicating that the following scores had been awarded to the following proposals: Proposal Score Crossland Agency 83 Woodcrest A 80 Woodcrest B 80 Tallahassee Associates 71 T.C.S. 71 DeVoe 51 The differences in the scores of the proposals which had been listed on the January 2, 1991, Bid Tabulation, which are reflected in the February 4, 1991, Bid Tabulation were caused by automatic changes in the scores resulting from the addition of T.C.S. and the fact that T.C.S. had the lowest priced bid. The points awarded for the "rental" criterion, which was worth up to 25 points, were determined by a mathematical formula by which the scores of each bidder are calculated based upon the proposed rental charges of all bidders. The award of points for this criterion was determined objectively based upon the mathematical formula. By adding another bidder, T.C.S., the points awarded to all the proposals automatically changed. The scores of the proposals which had been listed on the January 2, 1991, Bid Tabulation, were not otherwise changed. Nor were the proposals of any bidder reevaluated. The Respondent also posted a copy of a memorandum dated January 24, 1991, with the February 4, 1991, Bid Tabulation. The memorandum was from John M. Russi, Director of the Division of Licensing, to Ira Chester, Chief of the Bureau of General Services. Mr. Russi indicated the following in the memorandum: Pursuant to the settlement stipulation signed by Counsel for T.C.S. Associates on January 23, 1991, in reference to the Bid Protest filed January 11, 1991, the attached "Lease Evaluation Work Sheet" is provided for you to re-post. After reevaluating six bid proposals, the evaluating committee concludes that Crossland Agency should be awarded this bid. Each bidder needs to be notified by certified mail of this action. . . . . Attached to Mr. Russi's January 24, 1991, memorandum was a Lease Evaluation Worksheet which indicated the scores of the responsive bidders which had been awarded by the evaluation committee for each of the criteria to be considered in determining the winning bidder. On February 6, 1991, the Petitioner filed a notice of protest to the February 4, 1991, Bid Tabulation. The Petitioner filed a Formal Written Protest, Request for Formal Hearing and Motion for Stay with the Respondent on February 18, 1991. These documents were filed within the time periods specified in Section 120.53(5), Florida Statutes. The Petitioner's Formal Written Protest was filed with the Division of Administrative Hearings by the Respondent on February 28, 1991. Crossland Agency, Inc., was allowed to intervene in the proceeding. On March 1, 1991, the Respondent and Intervenor filed a Motion to Dismiss. A motion hearing was conducted on March 6, 1991, to consider the Motion to Dismiss.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Respondent granting the Motion to Dismiss and dismissing this case, with prejudice. DONE and ENTERED this 22nd day of March, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3, 5 and 9. 2 12-13. 3 15-16 and 18-21. See 14. 15. The weight of the evidence failed to prove that the scores of the bidders for the "option period" criterion reflected on the January 2, 1991, Bid Tabulation were modified or reconsidered on the February 4, 1991, Bid Tabulation. The suggestion that "the department had discretion to change scores in any of the remaining eight categories" is a conclusion of law and is rejected. These proposed facts are not relevant to the issue raised in the Motion to Dismiss. Nor was any evidence presented to support these proposed findings. 12. The last sentence is a conclusion of law and is rejected. Proposed Findings of Fact of the Respondent and Intervenor Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 3 and 7. 5-6 and hereby accepted. 4 8-12. 5 See 14. 6 15 and 17. 18. The last sentence involves an issue not raised in the Motion to Dismiss or at the motion hearing. Nor was any evidence presented to support these proposed findings. See the Preliminary Statement. COPIES FURNISHED: Linda G. Miklowitz, Esquire 1589 Metropolitan Boulevard Tallahassee, Florida 32308 Benjamin E. Poitevent Assistant General Counsel Department of State The Capitol, MS #4 Tallahassee, Florida 32399-0250 M. Christopher Bryant, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
