The Issue Whether the Department of Transportation’s decision to reject all bids for Financial Project No. 209278-1-52-01 (J. Turner Butler Blvd.) a major interchange in Duval County, Florida, was exercised illegally, arbitrarily, dishonestly or fraudulently.
Findings Of Fact On April 1, 2004, the Department of Transportation advertised its Bid Solicitation Notice (BSN), for the JTB Project. H. W. Lochner, Inc. (Lochner) designed the JTB Project. Petitioner, Superior Construction, and Archer Western Contractors, LTD, submitted bids on May 26, 2004. Petitioner had the apparent low bid, and Superior had the second apparent low bid. On or about May 27, 2004, Robert Burleson, President of the Florida Transportation Builders Association (“FTBA”), contacted the State Construction Engineer, Ananth Prasad, P.E., and alerted him to potential issues regarding MOT phasing. (T. p. 876, lines 18-24; p. 880, lines 14, 15). Richard Ayers, of Superior Construction, called the Jacksonville Urban Office of the Department of Transportation, District 2, alerting the District to the concerns regarding the maintenance of traffic issues. Ayers had reviewed the bid and plans generally to assess its bid in light of the Petitioner's bid, and had discovered in the process MOT issues that he believed would add substantially to the costs and time required to construct the project. As a result of these calls, Robert Hansgen, P.E., District 2 Resident Engineer, was directed by someone within the Department to review the MOT plans. On June 1, 2004, Mr. Hansgen forwarded to Henry Haggerty and Al Moyle a memorandum outlining seven areas of MOT concern relating to the "constructability" and safety of the JTB project. On June 1, 2004, Hansgen's memorandum was forwarded to Mohammed Majboor, P.E., Design Consultant Engineer for the Department, who forwarded the memo to Lochner. Lochner reviewed its plans in light of the Hansgen memorandum and forwarded its response on June 3, 2004, to Hansgen, who reviewed the responses and added his comments. He e-mailed Henry Haggarty seven concerns he had with the MOT plans. On June 2, 2004, Allen Moyle, Jacksonville Construction Engineer, received Hansgen's and Lochner's responses regarding the MOT plans and determined that the project plans needed revisions because of safety issues. Moyle concluded that all the bids needed to be rejected in light of the MOT revisions. He transmitted a request to Cathy Thomas at the Department's headquarters to arrange a meeting with Lochner to commence revision of the plans at the earliest possible date. On June 8, 2004, Hansgen briefed the District 2 Secretary, Schroeder, and other District 2 staff members on the issues regarding maintenance of traffic issues based on his memo, a marked-up copy of the MOT sheets, and pictures. Rejection of all bids was discussed at this meeting. Mr. Hansgen testified at the formal hearing concerning his findings and his actions with the aid of the original memorandum and Respondent's Exhibits 1 and 2. Mr. Hansgen's concerns were about safety issues and included the reduction of traffic lane widths in areas to 11 feet where barrier walls would be erected on both the inside and outside medians where traffic would be traveling at 55 miles per hour. Another concern was the length of these lanes that would be restricted by concrete barriers. These barriers prevented easy access of emergency vehicles in these areas, which presented a significant hazard at this interchange, which accesses a major hospital complex. Mr. Hansgen’s also identified an inconsistency regarding where the contractor could work in an area close to the barrier wall; a portion of the roadway where a cross slope or tilting of the traveling lane created dangerous vehicle control issues; and plans to widen a portion of the roadway while vehicles traveled on the same portion of roadway which would require further narrowing of lanes. Because the State of Florida has one of the highest fatality records in the nation in work zones, the Department is very concerned about this issue. After the meeting on June 2, 2004, the Jacksonville Urban Office for District 2 recommended rejection to DOT in Tallahassee of all bids based on the need to “clarify uncertainties within the phasing of the maintenance of traffic (MOT) plans.” The recommendation of District 2 was reviewed by the Technical Review Committee, which is comprised of six voting members. On June 9, 2004, the Technical Review Committee recommended rejection of all bids on the JTB Project to the Contract Awards Committee based upon MOT safety issues. The Contracts Award Committee, composed of three voting members, met on June 15, 2004, to consider the recommendations regarding the JTB Project of the Technical Review Committee and District 2. The Contracts Award Committee concurred with the recommendations of the Technical Review Committee and District 2 and rejected all bids based upon MOT safety issues. The Department posted its notice of intent to reject all bids on June 17, 2004. The Petitioner filed a Notice of Intent to Protest the Department’s rejection of all bids with a Formal Written Protest, filed on July 1, 2004, including an appropriate protest bond. The Department’s engineers met with engineers from H.W. Lochner, Inc., to discuss the issues of concern raised in the Hansgen memorandum. The Department commissioned Lochner to revise the plans to enhance the safety features for MOT, and certain other enhancements. Lochner and the Department entered into Supplement Agreement #13 that included both the requested enhancements and the changes to accommodate the concerns referenced in the Hansgen Memorandum. Richard Kelly testified regarding “animus,” and “dislike” displayed by employees of the Department. He pointed to past decisions and actions of Department employees as proof of “dislike” and “animus." These included a Letter of Concern to the Petitioner, on April 16, 2004, from the Department outlining five areas the Department had identified as important in making a determination on the pre-qualification of the Petitioner for bidding on Department contracts for the 2004-2005 fiscal year. Also mentioned were disputed issues between the Department and the Petitioner arising during construction of the I-95/I295 Interchange Project, including Jacksonville ordinances on noise ordinance, and trees and deficiency letters from the Department to AMEC Civil. In addition, the disqualification of Morse Diesel, LLC, as the Petitioner was formerly named, from bidding on construction contracts with the State of Florida, and in 2002, the revocation of the pre-qualification of the Petitioner to bid on DOT projects were described. Ananth Prasad, P.E., who was identified by the Petitioner's witnesses as a primary source to opposition to the Petitioner, testified that he did not hold the position of State Construction Engineer in 2000, and was not involved in the decision to deny pre-qualification of Morse Diesel. Mr. Prasad also was not involved with the initial decision to revoke the pre-qualification of AMEC in 2002. Mr. Prasad does not personally hold a position on the Technical Review Committee. Mr. Prasad did not vote on the decision to recommend rejection of all bids on the JTB project. The decision to reject all bids for the JTB Project was made by the Contracts Award Committee based on recommendations from the Technical Review Committee, and District 2. The Department’s Contracts Award Committee exercised its statutory authority to reject all bids based on concerns regarding the MOT phasing.
Recommendation Based on the foregoing findings of fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a final order dismissing Petitioner’s Formal Written Protest concerning the bid rejection for the project in this litigation. DONE AND ENTERED this 28th day of December, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 28th day of December, 2004. COPIES FURNISHED: F. Alan Cummings, Esquire S. Elysha Luken, Esquire Smith, Currie & Hancock, LLP 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32302-0589 Mike Piscitelli, Esquire Vezina, Lawrence & Piscitelli, P.A. 305 East Las Olas Boulevard, Suite 1130 Fort Lauderdale, Florida 33301 Calvin C. Johnson, Esquire C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.
Findings Of Fact State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items. Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows: Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project. The prospective bidders were also given this information in the pre-bid meetings. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows: Bidder Total Bid D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500. Rovel Construction, Inc. $1,559,000. Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows: Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work. When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Robert A. Hingston, Esquire Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P. 901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134 Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health Miami-Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125 William G. Christopher, Esquire Brown Clark, A Professional Association 1819 Main Street, Suite 1100 Sarasota, Florida 34236
The Issue Whether, in issuing the Revised Recommendation/Tabulation for contracts for Items 1 and 3 for Invitation to Bid No. 15- 048E, Multifunctional Devices, Cost-Per-Copy, Respondent acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact On June 3, 2014, SBBC issued ITB No. 15-048E (the ITB) entitled "Multifunctional Devices, Cost-Per-Copy" for the provision and maintenance of copying devices during the contract term. The listed Submittal Requirements were: Manufacturer's Authorization Special Condition 8; Descriptive Literature Special Condition 6; and Material Safety Data Sheets Special Condition 16. A Bidder's Preference Statement was not identified as a Submittal Requirement. Section 4, Paragraph 2, of the ITB was entitled "TERM" and notified bidders that SBBC sought through the award of this bid to "establish a contract for the period beginning from the date of award and continuing through June 30, 2017." The Bid Summary Sheet found at Section 5 of the ITB requested bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months and for 36 months. Page 1 of the ITB contained a certification to be executed by each bidder's authorized representative which stated in pertinent part as follows: Bidder agrees to be bound to any and all specifications, terms and conditions contained in the ITB, and any released Addenda and understand that the following are requirements of this ITB and failure to comply will result in disqualification of bid submitted. All bidders submitted a signed bidder certification. Section 3, Paragraph 1(a), of the General Conditions of the ITB provided as follows: SEALED BID REQUIREMENTS: The "Bidder Acknowledgment Section" must be completed, signed and returned with the bid. The Bid Summary Sheet pages on which the Bidder actually submits a bid, and any pages, upon which information is required to be inserted, must be completed and submitted with the bid. The School Board of Broward County (SBBC) reserves the right to reject any bid that fails to comply with these submittal requirements. BIDDER'S RESPONSIBILITY: It is the responsibility of the Bidder to be certain that all numbered pages of the bid and all attachments thereto are received and all Addendum released are received prior to submitting a bid without regard to how a copy of this ITB was obtained. All bids are subject to the conditions specified herein on the attached bid documents and on any Addenda issued thereto. Section 3, Paragraph 6, of the General Conditions of the ITB provided as follows: AWARDS: In the best interest of SBBC, the Board reserves the right to: 1) withdraw this bid at any time prior to the time and date specified for the bid opening; 2) to reject any or all bids received when there are sound documented business reasons that serve the best interest of SBBC; 3) to accept any item or group of items unless qualified by Bidder; and 4) to acquire additional quantities at prices quoted on this ITB unless additional quantities are not acceptable, in which case, the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." On June 18, 2014, SBBC issued Addendum Number 1 for the ITB which replaced a number of pages within the bidding documents and contained responses to questions posed by prospective bidders. Addendum Number 1 included Question No. 6 in which Xerox inquired whether SBBC "would . . . consider a change to the contract term of the contract to 48 or 60-month term?" SBBC responded through Addendum Number 1 that it had amended the bid "to include additional pricing for 48 or 60-months term[s]," and SBBC continued to request proposals for a 36-month contract term. Addendum Number 1 revised Section 4, Paragraph 2, of the Special Conditions of the ITB to state as follows: TERM: The award of this bid shall establish a contract for the period beginning from the date of award and continuing through an award for a term of 36, 48 or 60 months. Bids will not be considered for a shorter period of time. All prices quoted must be firm throughout the contract period. Items will be ordered on an as needed basis. Addendum Number 1 included an Appendix A–Summary Cost Sheet which required bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months, 36 months, 48 months, and 60 months. On June 20, 2014, SBBC issued Addendum Number 2 for the ITB. The first page of Addendum Number 2 advised prospective bidders, "This Addendum amends the above referenced bid in the following particulars only: 1. DELETE: Appendix A–Cost Summary Sheet INSERT: Revised Appendix A–Cost Summary Sheet." The first page of Addendum Number 2 further cautioned bidders that "[i]t is important to include the REVISED page when submitting your response." Addendum Number 2 went on to provide a Revised- Appendix A-Summary Cost Sheet which stated "A Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months" and included a cost summary sheet for each of those three options. The ITB and addenda numbers 1 and 2 were released by SBBC via Onvia DemandStar, with email notices thereof to prospective vendors who subscribed to its bid notification service. Toshiba downloaded the ITB, Addendum Number 1, and at least the first page of Addendum Number 2 from DemandStar prior to the submission of its bid to SBBC. Again, the first page of Addendum Number 2 cautioned bidders that Appendix A–Summary Cost Sheet had been deleted and replaced and that it was "important to include the REVISED page when submitting your response." No bid specifications protest was filed by any person or entity concerning the ITB or addenda numbers 1 or 2. On July 3, 2014, SBBC opened bids timely submitted in response to the ITB by: Toshiba; ImageNet; Innovative; Lexmark International, Inc.; and Ricoh. Konica had also presented a bid to SBBC in the bid opening room prior to the opening of bids but after the announced time for submittal of bids. The Konica bid was delivered to SBBC but was not opened at the time of the bid opening. Toshiba, the incumbent, was the only bidder that violated the pricing requirements of the ITB. The bid submitted by Toshiba utilized the version of Appendix A-Summary Cost Sheet that was released under Addendum Number 1 and only offered cost- per-copy pricing for the 60-month term option. Toshiba's bid did not submit the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, nor did it contain any bids offering cost per copy pricing to SBBC for the 36 or 48-month term options. Although Toshiba's bid was not rejected as non-responsive for failing to bid on the 36 and 48-month term options and for failing to utilize and complete the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, SBBC's staff later concluded in hindsight that it should have been rejected for such non-compliance. Toshiba's bid included a "Pricing" note immediately prior to its Appendix A–Summary Cost Sheet that stated: [Toshiba] is proposing a 60 month CPC as a response to the [ITB]. Based on the fact the [ITB] has no minimum, cancellation for convenience, ability to upgrade and downgrade with no penalty, it is in the best interest of our organization to bid a term of 60 months. This term allows us to provide the most aggressive price to the [SBBC] and maintain the excellent service and support level in place. SBBC's staff recommended that an award be made under the ITB for pricing offered for a 36-month contract term for Items 1, 2, and 3 for a contract period of August 6, 2014, through September 30, 2017. On July 10, 2014, SBBC posted its initial ITB Recommendation/Tabulation which did not consider the Konica bid. The initial posted Recommendation/Tabulation notified bidders of SBBC's intended award of contracts for Items 1 and 2 to ImageNet as the primary awardee and to Innovative as the alternate awardee for a contract period of August 6, 2014, through September 30, 2017, and recommended the award of contracts for Item 3 to Ricoh as primary awardee and to ImageNet as alternate awardee for a contract period of August 6, 2014, through September 30, 2017. Timely bid protests and bid protest bonds were filed by Konica and by Toshiba concerning SBBC's initial Recommendation/Tabulation of July 10, 2014. SBBC's Bid Protest Committee conducted a meeting with the protestors on August 26, 2014, and determined that Konica's bid had been timely submitted and directed SBBC's Procurement and Warehousing Services Department (the Department) to evaluate Konica's bid for responsiveness. It also directed the Department to revise its recommendation on the ITB to reject Toshiba's bid for Item 2 as the device offered by Toshiba for that item did not meet the ITB's specifications which called for a single device capable of performing 95 copies per minute (cpm) and Toshiba instead offered two devices that performed at 85 cpm. After reviewing Konica's bid for responsiveness, SBBC posted a Revised Recommendation/Tabulation for the ITB on August 29, 2014, which (a) recommended award of Item 1 to ImageNet for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to Innovative as the alternate awardee; (b) recommended award of Item 3 to Ricoh for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to ImageNet as the alternate awardee; and (c) recommended the rejection of Toshiba's bid for Item 2 for its failure to meet the specifications for that Item. On September 4, 2014, Toshiba timely filed its notice of intent to protest the August 29, 2014, posted Revised Recommendation/Tabulation. On September 15, 2014, Toshiba timely filed its Amended Formal Petition Protesting Proposed Revised Recommendation/Tabulation. SBBC's Bid Protest Committee conducted a meeting with Toshiba on November 5, 2014, pursuant to section 120.57(3), SBBC Purchasing Policy 3320, and the ITB, and rejected Toshiba's bid protest. On November 10, 2014, Toshiba timely requested that SBBC forward its bid protest to DOAH for a formal hearing. Toshiba has presented a number of arguments in these proceedings seeking to avoid the circumstances Toshiba created for itself when it failed to comply with Addendum Number 2 and violated the ITB's pricing requirements and the ITB's requirement as to the term of the contract to be awarded, when Toshiba only submitted a single bid and restricted the contract term for which it would be considered to 60 months. First, Toshiba attempts to divest SBBC of its express authority to select proposals for any contract duration for which it solicited bids other than for a month term. Second, Toshiba argues that SBBC was somehow obligated to specify within the bid specifications those business considerations that would inform SBBC's selection of the duration of the contract term to be awarded under the ITB. Third, Toshiba argues that ImageNet was non-responsive regarding the ITB's specifications concerning manufacturer's certifications. Toshiba also argues that all bidders, including itself, were non- responsive with regard to the ITB's specifications regarding bidding preference laws. None of the arguments presented by Toshiba in opposition to SBBC's intended award of Items 1 and 3 are persuasive. The Selection of the 36-Month Term SBBC's recommended award for a 36-month contract period from October 7, 2014, through November 30, 2017, is consistent with the terms and conditions of the ITB and its addenda. At the very start of this competitive solicitation, SBBC informed bidders through Section 4, Paragraph 2, of the ITB and the Bid Summary Sheet at Section 5 of the ITB that it was seeking a contract through June 30, 2017-–i.e., a 36-month contract. SBBC also made it clear in its response to Question No. 6 of Addendum Number 1 that "[t]he contract will be for a full 36 months." Although SBBC revised the bid specifications through Addendum Number 1 to allow bidders to submit "additional pricing for 48 and 60 months term[s]," "to allow the School District to consider a 48 and/or 60 months term contract," and revised Section 4, Paragraph 2, of the ITB to provide for "an award for a term of 36, 48 or 60 months," it was clear under the ITB that SBBC contemplated that a 36-month contract could serve its needs. Addendum Number 2 further revised the bid specifications by providing the Revised–Appendix A–Summary Cost Sheet which informed bidders that "a Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months." SBBC intended to review the additional pricing offered for 48 and 60- month contract terms to determine whether those particular options were a better business decision for SBBC. Several factors were considered by SBBC in selecting the contract duration for the award under the ITB. The selection of the shorter 36-month contract term was consistent with the expressed terms of the ITB and addenda and the expressed preference of SBBC's governing board to refrain from entering into long-term contracts and enabled SBBC to be flexible in finding solutions to its copying needs and to take advantage of changes that may arise in technology; avoided problems the school district was currently experiencing with a long-term cost-per- copy contract which ranged from equipment performance issues to the long-term placement of technology in schools; and enabled the school district to conduct research to determine whether future implementation of a managed print solution would provide the school district with additional cost savings or financial benefits in contrast to the cost-per-copy services being procured through the ITB. Clearly, this selection was neither arbitrary nor capricious. SBBC's elected governing board has made it known by its actions taken at public meetings that it disfavors long-term contracts for the procurement of goods and services and has gone so far as to reduce the term of contracts from the dais. SBBC's staff determined that the pricing offered to SBBC for a 60-month contract term was not significant enough to recommend a contract longer than the 36-month term SBBC had been requesting since the release of the ITB. Any cost advantages offered by Toshiba's bids for Items 1, 2, and 3 were reduced by $525,000 per year due to the disqualification of its bid for Item 2, which failed to meet the ITB's specifications. Consideration of Managed Print Services Xerox Corporation informed SBBC that a managed print services (MPS) program could save millions of dollars per year and later submitted a no bid response to SBBC regarding the ITB because SBBC was not implementing a MPS program under the ITB. SBBC had also received proposals from vendors in October 2013 concerning a MPS program and concluded that there existed a potential annual savings of millions of dollars if such a program could be implemented. All of which were additional reasonable, rational reasons for SBBC to remain consistent with its decision to award the contracts for a term of 36 months and not something longer. The ITB contains standard terms and conditions which enable SBBC to terminate an awarded contract regardless of reason and with or without cause upon 30 days written notice to the other party. Toshiba wants SBBC to rescue Toshiba from its failure to submit required bids for 36-month and 48-month periods by forcing SBBC to award a contract obligating the agency for a longer duration under the ITB than desired by the agency and then have SBBC terminate the 60-month contract award for convenience after 36 months. SBBC includes termination for convenience provisions within its contracts for goods and services due to section 1011.14, Florida Statutes, which restricts the ability of district school boards to obligate public funds for a period beyond one year. The inclusion of the standard termination for convenience clauses in its ITBs enables SBBC to enter into contracts exceeding one year which affords the school district opportunities to obtain continuity of service and price advantages that would not be available under shorter contracts. While SBBC has the ability under the ITB to terminate contracts for convenience upon 30 days' notice, it rarely does so. SBBC has never exercised its right to terminate its two prior contracts for the services sought under this ITB. Any such termination requires action by SBBC's governing board during a public meeting. SBBC's staff would not engage in the sham of recommending a contract to its governing board for a contract term longer than the period for which it intends to procure services from a vendor. SBBC's procurement staff believes that using the termination for convenience clause in the manner Toshiba recommends can have an adverse effect upon the school district's ability to encourage bidders to participate in its competitive solicitations or to offer it their best pricing. Questions 1 and 59 of Addendum Number 1 of the ITB provide evidence of concern within the bidding marketplace that SBBC might exercise its termination for convenience clauses with regard to the services being procured under the ITB and support the perception of SBBC's that it should avoid a reputation for exercising such termination authority. Toshiba argues that SBBC somehow materially misled bidders through the ITB by stating in response to Question No. 3 concerning MPS of Addendum Number 1 that: The School District is not planning to implement a Managed Print Services at this time. The School District would like to receive Additional information regarding other districts that have implemented a Managed Print Services. There are no evaluation points associated with this ITB. SBBC's responses to Question No. 3 of Addendum Number 1 were accurate and did not mislead bidders. Toshiba is the only bidder to claim to have been misled. Section 6, Paragraph 10, of the ITB requested bidders provide SBBC with information about how the awardee could transition SBBC to a MPS model from the cost-per-copy model being offered under its bid. While SBBC requested such information from vendors within the bidding marketplace, there is no evidence that any bidder's provision or omission of such information within its bid submission was considered in the selection of the recommended awardees. In fact, ImageNet was recommended for award even though it did not provide this ancillary information about transition to a MPS delivery model. Rather, the recommended awardees for a 36-month contract term for Items 1 and 3 were determined solely on the basis of cost submitted for those items by the bidders, all in accordance with the ITB. A MPS program was a possible initiative being considered by SBBC's former Chief Information Officer prior to his departure from SBBC in February 2014, at which time the school district's current cost-per-copy contract was nearing its expiration. Although SBBC still had an interest in the possibility of a MPS program, it was not going in that direction at the time it needed to release a bid for copying services to replace its current expiring contract. Toshiba contends that SBBC was somehow required to disclose to bidders whether the potential future implementation of a MPS program might impact the contract award period that SBBC might choose under the ITB. A myriad of business considerations may inform an agency in selecting the length of its contracts for goods and services, and there is no law or rule that requires an agency to specify those factors within an ITB. Responsiveness of the Bidders Toshiba has attempted to argue that ImageNet, the recommended awardee for Item 1 and the alternate awardee for Item 3, was somehow non-responsive under the ITB and ineligible for award. In support of this argument, Toshiba has referenced Section 4, Paragraph 8, of the Special Conditions of the ITB which state as follows: MANUFACTURER'S CERTIFICATION: Bidder must submit with their ITB a notarized letter from manufacturer certifying that bidder is authorized to sell, service and warrant the multifunctional devices offered within this ITB. Failure of the bidder to provide this letter with their submitted bid or upon request shall result in disqualification of entire bid. If the bidder is the manufacturer, then bidder should state that their company is the manufacturer of the equipment provided in this bid (the letter does not need to be notarized). A bid is only disqualified under Section 4, Paragraph 8, of the ITB if (1) a notarized manufacturer's letter is omitted from the bid; and (2) the bidder fails to comply with a subsequent request from SBBC to provide the letter. No bidder, including Toshiba and ImageNet, included a notarized letter from a manufacturer with its bid. SBBC did not request any of the bidders to submit a notarized manufacturer's letter at any time after the submission of bids. As a result, none of the bids, including that of ImageNet, was non-responsive for a failure to satisfy Paragraph 8 of Section 4 of the ITB. Toshiba has also argued that all bids should be rejected due to Section 3, Paragraph 1(d), of the General Conditions of the ITB which concerns bidders' preference laws and states as follows: d) BIDDING PREFERENCE LAWS: ALL BIDDERS MUST COMPLETE AND SUBMIT THE LEGAL OPINION OF BIDDER'S PREFERENCE FORM IN ORDER TO BE CONSIDERED [sic] FOR AWARD. The State of Florida provides a Bidder's preference for Florida vendors for the purchase of personal property. The local preference is five (5) percent. Bidders outside the State of Florida must have an Attorney, licensed to practice law in the out-of-state jurisdiction, as required by Florida Statute 287.084(2), execute the "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form and must submit this form with the submitted bid. Such opinion should permit SBBC's reliance on such attorney's opinion for purposes of complying with Florida Statute 287.084. Florida Bidders must also complete its portion of the form. Failure to submit and execute this form, with the bid, shall result in bid being considered "non-responsive" and bid rejected. No bidder, including Toshiba, included an "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form with its bid. Each bidder's omission of that form was for good reason. Section 3, Paragraph 1(d), of the General Conditions of the ITB is a boilerplate provision within SBBC's standard bidding documents that is included pursuant to section 297.084(2), Florida Statutes, for any competitive solicitations in which personal property is to be purchased by SBBC. In instances in which it solicits bids to purchase personal property, SBBC includes a "Bidder's Preference Statement" form and includes that form among the checked "Submittal Requirements" listed in Section 2, Page 1, of the ITB. This ITB did not include a "Bidders Preference Statement" form among the bidding documents or list it as one of the required submittals. The state law and the boilerplate provision at Section 3, Paragraph 1(d), of the General Conditions of the ITB are only applicable to competitive solicitations for the purchase of personal property and do not extend to competitive solicitations for the purchase of services. As Section 4, Paragraph 12, of the Special Conditions of the ITB makes it clear that the multi-functional devices to be provided by the awardee under the ITB will "remain the property of the vendor," the standard bidder's preference provision contained within the ITB is plainly inapplicable to this procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by Toshiba Business Solutions (USA), Inc., and upholds the awards of contracts under the procurement for a 36-month term from October 7, 2014, through November 30, 2017, to ImageNet Consulting of Miami, Inc., as the primary awardee for Item 1 and to Innovative Software Solution, Inc., as the alternate awardee for Item 1, and to Ricoh USA, Inc., as the primary awardee for Item 3 and to ImageNet Consulting of Miami, Inc., as the alternate awardee for Item 3. DONE AND ENTERED this 15th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2015. COPIES FURNISHED: Robert Paul Vignola, Esquire Office of the General Counsel Eleventh Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) William G. Salim, Jr., Esquire Moskowitz, Mandell, Salim and Simowitz, P.A. 800 Corporate Drive, Suite 500 Fort Lauderdale, Florida 33334 (eServed) Eric J. Rayman, Esquire Genovese, Joblove and Battista, P.A. PNC Center, Suite 1110 200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed) Albert E. Dotson, Esquire Wendy Francois, Esquire Bilzin, Sumberg, Baena, Price and Axelrod, LLP 1450 Brickell Avenue, Suite 2300 Miami, Florida 33131 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Robert W. Runcie, Superintendent Broward County School Board Tenth Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) Pam Stewart Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact In July, 1989 the District published its request for bids (number 8980) for an atomic absorption spetrophotometer in local newspapers and to prospective interested parties, as shown in joint Exhibit 1 in evidence. The specifications for the instrument were included in the bid package and were authored by Mark Rials, the District's Laboratory Supervisor. The District received two bids for the instrument in response to the request for bids, one from Varian for approximately $57,000 and one from Perkin-Elmer for approximately $59,900. Mark Rials evaluated the bids. Upon evaluation it was determined that the Varian instrument proposal did not meet bid specifications in three major areas. The specifications required a system capacity of 40 megabytes, hard drive capability. The capacity offered by Varian in its bid was for 20 megabytes. The specifications required a combination of a 5 1/4 inch disk drive for its computer system as well as a 3 1/2 inch disk drive. Varian only bid the 3 1/2 inch diskdrive. It did not offer the 5 1/4 inch disk drive which was required. Additionally, at item IX of the specifications, the District required that a list be submitted with the bid which stated, on an item-by-item basis, how the instrument met or exceeded the specifications. Each item in the specifications had been carefully selected to insure optimum performance for the laboratory so that exceptions to the specifications were required to be noted and attached in the bid response. Varian failed to conform to this item of the specifications. This item allowed a vendor to describe in its bid response how it could differently meet the specifications in a better manner or even exceed the specifications, but Varian failed to provide this itemized list. It was also determined that the Varian bid did not conform with the specifications of item IV page 4 of the invitation to bid document concerning the provision of service manuals, system and application software documentation, methods, manuals, parts catalogs, supplies, accessories, catalog, and training manuals. Conversely, it was determined that the Perkin-Elmer bid was responsive in all respects, met the bid specification in these major categories and was the most responsive bidder. After witness Rials conducted the evaluation of the bids, in terms of compliance with the specifications, he and the District determined that the Perkin-Elmer bid was the lowest, responsive bidder which met all specifications. It duly published the intended award and notified all bidders of the bid results. In this evaluation and award process it was demonstrated that the District followed all applicable procedures in its rules and policies concerning evaluation and award. Varian timely filed an objection to the award of the bid; and in accordance with its normal bid protest procedures, the District scheduled a conference between representatives of Varian and District representatives to review Varian's bid. Varian made several statements at that meeting which constituted a substantial deviation from the bid package it had earlier submitted and amounted to an attempted restructuring of its bid in an effort to meet bid specifications. The District declined to countenance this effort and adhered to its initial intent to reject the bid which was submitted by Varian and to not allow the attempted material deviations to be ascribed to Varian's bid, after the point of bid opening and announcement of award. In summary, based upon the bid specifications issued by the District the evaluator's determination concerning the specifications that the evaluator drafted was that the Varian instrument failed to meet bid specifications because of the major deficiencies in the areas found above, regarding systems capacity, computer disk drive availability, and specification response. It has clearly been demonstrated by competent substantial evidence that the District's decision to reject Varian's bid was a reasonable one. It was based solely on a fair comparison of the response of the two bids to the specifications contained in the invitation to bid and notice to all potential vendors. In consideration of the facts established by the evidence in this record, it is found that the bid by Perkin-Elmer substantially met all bid requirements or specifications, even though the Perkin-Elmer bid was the second low bidder in terms of dollar cost. Since the low-cost bidder, Varian, failed to meet major bid specifications, the facts demonstrate that the Perkin-Elmer bid was the most responsive of the two bids at issue and is, therefore, the best bid. Consequently, award should be given to the Perkin-Elmer bid for the instrument in question.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties it is therefore RECOMMENDED: That the Southwest Florida Water Management District issue a final order denying the petition filed by Varian Instrument Group and awarding bid number 8980 to Perkin-Elmer Corporation, as the lowest, responsive bidder. DONE and ENTERED this 6th day of February, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of February, 1990. APPENDIX Respondent's Proposed Findings of Fact 1-9 are accepted. Petitioner Filed No Proposed Findings of Fact. COPIES FURNISHED: Mr. Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Mickey McAllister District Sales Manager Varian Instrument Group 505 Julie Rivers Road, Suite 150 Sugar Land, TX 77478 A. Wayne Alfieri, Esquire Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
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 the protest herein is premature under the terms of the Request for Proposals and Section 120.53(5) F.S.
Findings Of Fact This proceeding concerns a protest by Amdahl regarding DHSMV's "notice of intent to benchmark" with Unisys pursuant to RFP 046-95 REBID. The RFP was issued on April 5, 1995. Meetings concerning the specifications were held on April 14 and 18, 1995. No protests were timely filed with regard to the specifications. On May 4, 1995, the agency issued its notice of intent to benchmark as more specifically described below. The RFP is divided into three sections: the technical proposal, the price proposal, and the benchmark. So far, all proposals have been evaluated and ranked by DHSMV based on technical and price criteria. At this stage, Unisys is ranked first, and Amdahl is ranked second. When it had determined that Unisys had received the highest combined score on the technical and price proposals, DHSMV posted the tabulated scores of all proposers and notified them of the agency's intent to proceed to the benchmark evaluation phase of the RFP with Unisys. In an abundance of caution, the agency included in its notice of intent to benchmark, to which was attached the final point tabulation for all competing vendors, the notice of a right to protest within 72 hours pursuant to Section 120.53 (5) F.S. Amdahl timely filed its notice of protest and its formal protest. Without unnecessary elaboration, the thrust of Amdahl's protest is directed to Sections 3.23 and 6.0 of the RFP and DHSMV's scoring of the technical and price proposals. That protest includes, but may not be limited to, an accusation that the agency improperly permitted Unisys to manipulate its certified minority business enterprise compliance after the submittal of its response to the RFP. Amdahl further asserted that since a tabulation was attached to the notice of intent to benchmark and due to the wording of Section 120.53(5)(b) F.S., DHSMV Rule 15-2.003(2), and RFP General Condition 5 and Special Condition 3.5, Amdahl was required to challenge the DHSMV scoring and tabulation at this point in time or be presumed to have waived its right to protest. Pursuant to Sections 4.1 and 4.2 of the RFP, the highest ranked proposer (as determined by the scoring system thus far) next must participate in a month-long benchmark designed to demonstrate the highest ranked proposer's ability to perform. If the highest ranked proposer fails the benchmark, DHSMV will eliminate the highest ranked proposer and the next ranked proposer will be given the opportunity to perform the benchmark. If the second ranked proposer fails, the third can try benchmarking, and so on. Once some proposer passes the benchmark tier of evaluation, the recommendation to award will be posted. Specifically, RFP specifications 4.1 and 4.2 which were not challenged by a protest within 72 hours of the last explanatory meeting thereon, read as follows: CONTRACT AWARD It is the intent of the DHSMV to require the qualified proposer scoring the highest number of points after the Technical evaluation, and Costs evaluation of the proposals to benchmark all proposed hardware and software on the configurations proposed . The Benchmark will be performed at the DHSMV, Kirkman Data Center, Tallahassee, Florida. Upon successful completion of the Benchmark described in ATTACHMENT-B , a recommendation to award the contract resulting from RFP 046-95-REBID will be submitted to the Governor and Cabinet of the State of Florida. Final award of a contract for this RFP will be contingent upon the agency obtaining third party financing. MANDATORY BENCHMARK REQUIREMENT The hardware and software proposed in this RFP shall be benchmarked using the performance criteria set forth in ATTACHMENT-B. This benchmark shall be performed utilizing ORACLE asw the DHSMV data- base standard. It is the responsibility of the proposer to insure that all hardware and software proposed meet this requirement. In the event any non conformity or noncompatibility is encountered at any time, the proposer will be eliminated from further consideration and the next highest points scoring proposer will be given the opportunity to perform the benchmark. (Emphasis in the original) DHSMV asserted unequivocally that in the present case, if Unisys does not pass the benchmark, then Unisys will be eliminated and Amdahl will be permitted to benchmark. It is equally clear that if Unisys passes the benchmark, then a recommendation to award will be issued. All concerned seem to recognize the foregoing as the natural flow of the RFP award procedure as contemplated by the RFP. Even the prayer for relief contained in Amdahl's petition states, in pertinent part, ". . . Amdahl requests that DHSMV suspend further action with respect to the contract award process until this protest is resolved by final agency action; . . . That a DOAH recommended order and a DHSMV final order be entered selecting Amdahl as the winning proposal for benchmarking and ultimate award of the contract; . . . . Amdahl asserts that it is both fairer and more efficient to score the competing proposals and resolve all scoring issues pertaining to the technical and price portions before benchmarking the interim winner, rather than providing an opportunity for the interim winner to negotiate the manner in which its products can be integrated to achieve conformance and compatibility with the agency's purposes; that the benchmarking procedure directed to Unisys cannot be monitored by Amdahl for possible protest purposes at a later stage; and that benchmarking permits Unisys to make further adjustments towards qualifying a minority enterprise that was not certified at the time Unisys submitted its proposal. Amdahl did not raise any of these issues prior to submitting its own bid.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the current petition without prejudice to its appropriate issues being raised within the statutory time frame after the agency's recommendation to award contract described in Section 4.1 of the RFP is issued and prior to that recommendation to award being sumitted to the Governor and Cabinet. DONE and RECOMMENDED this 6th day of June, 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 6th day of June, 1995 COPIES FURNISHED: David K. Miller M. Stephen Turner Jay Adams BROAD AND CASSEL P.O. DRAWER 11300 215 South Monroe St. Ste 400 Tallahassee, Florida 32302 Enoch J. Whitney Judson Chapman Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 Mary Piccard W. Robert Vezina III Cummings, Lawrence & Vezina, P.A. 1004 De Soto Park Drive PO Box 589 Tallahassee, Florida 32302 Charles J. Brantley Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399
The Issue Whether Respondent should sustain Petitioners' challenge to the preliminary determination to reject their bid as not responsive to Respondent's Invitation to Bid for Lease No. 590: 2286? 1/
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: Earlier this year, Respondent issued an Invitation to Bid for Lease No. 590: 2286 (hereinafter referred to as the "ITB"). The first page of the ITB contained the Bid Advertisement, which read as follows: The State of Florida, Department of Health and Rehabilitative Services is seeking an existing facility in Dade County to lease for use as office space containing approximately 30,086 net rentable square feet. The space proposed must be an office environment. Converted factories/warehouses in industrial areas are not acceptable. The facility shall be located within the following boundaries: North By S.W. 8th Street, South By S.W. 88th Street, East By S.W. 37th Avenue, Southeast By South Dixie Highway, and West By S.W. 87th Avenue. Any facility located on a parcel of land which abuts any of the street boundaries is consider[ed] within the boundaries. Occupancy date of 8/01/91. Desire a Ten (10) year lease with three (3)- two (2) year renewal options. Information and specifications may be obtained from Mr. Philip A. Davis, Facilities Services Manager, 401 N.W. 2nd Avenue, Suite S721, Miami, Florida 3312, (305) 377-5710. Please reference lease number 590: 2286. Program requirements will be discussed at a pre-proposal conference to be held at 10:00 a.m. on 4/22/91 at 401 N.W. 2nd Avenue, Suite S721 Miami, Florida 33128. Bid opening date will be on 5/30/91 at 10:00 a.m. at the above mentioned address. Minority business enterprises are encouraged to attend the pre-proposal conference and participate in the bid process. The Florida Department of Health and Rehabilitative Services reserves the right to reject any and all bids and award to the bid judged to be in the best interest of the state. The second page of the ITB contained the definitions of various terms used in the ITB. Among the terms defined were "dry and measurable" and "existing building." "Dry and measurable" was defined as follows: These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measurable" the proposed space must be enclosed with finished roof and exterior walls in place. Interior floors need not be completed. Exterior windows and doors need not be installed. The proposed area is not required to be completed. These characteristics conform to standard lessor construction practices. This definition is identical to the definition of this term found on page 1-5 of Respondent's leasing manual, HRSM 70-1. "Existing building" was defined as follows: To be considered as existing the entire space being bid must be dry and capable of being physically measured to determine net rentable square footage. at the time of bid submittal. On the ninth page of the ITB, the following advisements, among others, were given: The department reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida. Such rejec- tion shall not be arbitrary, but be based on strong justification which shall be communi- cated to each rejected bidder by certified mail. * * * The department reserves the right to waive any minor informalities or technicality and seek clarification of bids received when such is in the best interest of the state, but not limited to the correction of simple mistakes or typo- graphical errors. Such corrections will be initiated [sic] and dated on the original bid submittal by the bidder. Attached to the ITB and incorporated therein was a document entitled "Standard Method of Space Measurement." It read as follows: 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 variances 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 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, private sector leased, State-owned, or other publicly 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, public corridors, stairs, elevator shafts, flues, pipe shafts, vertical ducts, air-conditioning rooms, fan rooms, janitor closets, electrical closets, telephone equipment rooms, - - 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 structurally necessary to the building. The attached typical floor plan illustrates the application of this standard. 3/ Petitioners submitted a bid in response to the ITB. 4/ In their bid they proposed to lease to Respondent space on the first and second floors of a building located at 8500 S.W. 8th Street in Miami, Florida. The space offered by Petitioners is currently occupied. At the time of bid submittal, all of the proposed space on the second floor was "dry and measurable," as that term is defined in the ITB. It encompassed a total of 26,540 square feet. At the time of bid submittal, only a portion of the proposed space on the first floor, amounting to 4,400 square feet, was "dry and measurable," as that term is defined in the ITB, inasmuch as the proposed space on this floor included a breezeway area that did not have either a front or back exterior wall in place. 5/ Subsequent to the submission and opening of bids, Petitioners enclosed this breezeway area by erecting exterior walls. Accordingly, the entire space offered by Petitioners was not "dry and measurable" at the time of bid submittal as required by the ITB. Bids were opened by Respondent on May 30, 1991. By letter dated June 18, 1991, Respondent notified Petitioners that their bid had been deemed non-responsive. The letter read as follows: The bid you submitted for lease No. 590: 2286 has been determined to be non-responsive because the proposed space is not dry and measurable. The breezeway area proposed on the ground level of your premises at 8500 S.W. 8 Street, Miami, does not have exterior walls in place. The invitation to bid on lease No. 590: 2286 provides on page 2: "Dry and Measurable- These are essential characteristics to describe "existing" proposed space. To be considered as "dry and measur- able," the proposed space must be enclosed with finished roof and exterior walls in place. You have the right to file a protest. The protest must be filed in accordance with S.120.53(5), Florida Statutes and Chapter 10-13.11 Florida Administrative Code. 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. To comply with the referenced statute, a written notice of intent to protest must be filed with the contact person listed on the Invitation to Bid for lease No. 590: 2286 within 72 hours after receipt of this notice. Within ten calendar days after the notice of protest is filed, a formal written protest and protest bond must be filed with the contact person. The bond must be payable to the department in an amount equal to one percent of the total lease payments over the term of the lease or $5,000, whichever is less. This determination was the product of, not any unlawful bias or prejudice against Petitioners, but rather the honest exercise of the agency's discretion. Petitioners subsequently filed a protest of this preliminary determination to find their bid non-responsive. It is this preliminary determination that is the subject of the instant bid protest proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Health and Rehabilitative Services enter a final order rejecting Petitioners' bid for Lease No. 590: 2286 on the ground that said bid is non-responsive. RECOMMENDED in Tallahassee, Leon County, Florida, this 25th day of September, 1991. STUART M. LERNER 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 September, 1991.
The Issue Whether, when making a recommendation to award ITB No. 15C-26K (Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment, and Uniforms) to (1) Matty's Sports (Matty's), (2) Simmons Team Sports (Simmons), (3) D&J Commerce Solutions, Inc., d/b/a OLC Team Solutions (D&J), and (4) Palm Beach Sports (PB Sports), Respondent, School Board of Palm Beach County (School Board), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact ITB No. 15C-26K and the Bid Process On November 4, 2015, the School Board issued Invitation to Bid (ITB) No. 15C-26K entitled "Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment and Uniforms" for the provision of athletic equipment (hard goods) and athletic clothing, including uniforms (soft goods). The ITB offered prospective vendors the opportunity to bid on 26 items but did not require that a vendor offer a bid for each of the 26 identified items. The odd-numbered items were for hard goods and the even-numbered items were soft goods. Paragraph G,
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by BSN Sports, LLC, and upholds the awards of contracts ITB No. 15C-26K to Matty's Sports, Simmons Team Sports, D&J Commerce Solutions, Inc., and Palm Beach Sports. DONE AND ENTERED this 22nd day of July, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2015.
The Issue The issue in this case is whether Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2010).
Findings Of Fact At the hearing, the parties stipulated to the facts numbered 1-4, as follows: Petitioner was terminated from his employment with Respondent on March 13, 2009. Petitioner's deadline for filing his complaint with the Florida Commission on Human Relations (FCHR) was March 14, 2010. Petitioner emailed a Technical Assistance Questionnaire to the FCHR on February 18, 2010. Petitioner signed an Employment Complaint of Discrimination and dated it March 24, 2010. In addition to the stipulated facts, the undersigned noted that the Complaint is stamped received by the FCHR at 10:48 a.m. on March 25, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lacey Hofmeyer, Esquire Danielle Garno, Esquire Greenberg Traurig 1221 Brickell Avenue Miami, Florida 33131 James Jean-Francois, Esquire Law Offices of James Jean-Francois, PA 6100 Hollywood Boulevard, Suite 211 Hollywood, Florida 33024
