The Issue The issue in this proceeding is whether the Respondent, the Department of Insurance, acted illegally, arbitrarily, fraudulently, or dishonestly in rejecting all bids for lease #460:0119 and not awarding subject lease to Petitioner.
Findings Of Fact The Department of Insurance established a requirement to lease 5371 square feet of office space in Daytona Beach, Florida, and a "Request for Space Need" was approved by the Department of Management Services on February 11, 1998. The Department of Insurance subsequently issued a Request for Proposal (RFP) for lease #460:0119 (Respondent's Exhibit 1). A non-mandatory pre-bid conference was held on June 1, 1998, in Daytona Beach and two prospective bidders, Petitioner and Nova Village Market partnership attended. The RFP provided that proposals which did not meet all mandatory requirements of the RFP would be rejected as non- responsive. The RFP provided for evaluation criteria are awards factors. The awards factors totaled 100 points with no minimum point total required. Ten of the points were allotted for moving costs defined as the costs of relocating communications, networks, furniture and other equipment. This factor gave the current landlord an automatic 10-point advantage since there would be no relocation costs. Moving costs provisions tend to discourage the presentation of bids because the bidders have to overcome an automatic 10-point advantage provided the current landlord. The RFP also provided that all proposals could be rejected, however, such "rejection shall not be arbitrary, but be based on strong justification." None of the conditions of the RFP were questioned or challenged by interested parties. Two responses were received by the Department of Insurance in response to the RFP and these were opened in Respondent's Tallahassee office on July 8, 1998, by Mr. Kip Wells of the Department. One was received from the current landlord, Nova Village Partnership, hereafter Nova, and the other from the Petitioner. The Nova proposal was deemed non-responsive. Neither Nova nor Petitioner contested the determination that Nova's proposal was non-responsive. Only one responsive proposal, the Petitioner's proposal, remained. On July 9, 1998, the Department representative, Mr. Kip Wells, called Petitioner to schedule an appointment for 9:00 a.m., on July 10, 1998, to visit and evaluate the proposed facility. No persons from the Department appeared at the scheduled appointment. At 10:45 a.m., on July 10, 1998, Kip Wells called Petitioner to say that since Petitioner's proposal was the only responsive proposal received, and that "all bids" were being rejected. Mr. Wells testified at hearing. His reason for rejecting the remaining bid was: When I saw that it was obvious the current landlord was not going to be very cooperative, I decided that one choice was not enough. If we were going to have to make a move, we needed more than one thing to choose from. So, I immediately - - since I had already set up with local people in Daytona to tell them that I was coming down to evaluate the bids, I sent them an E-mail and told them that I would not be meeting the following day to evaluate the bids. Mr. Wells decided to reissue the RFP without any moving costs criteria, and redistribute those 10 points among the other award factors. Petitioner filed a Notice of Intent to Protest and then a Formal Protest, both in a timely fashion. There is no state policy prohibiting the award of a lease to a sole bidder on a RFP. The "Leasing Policy" of the Department of Insurance states that "The Lease Administrator, with assistance from the Division employees, will establish bid or quote specifications. These specifications will include special needs for the Division(s) as well as the evaluation criteria upon which to evaluate the proposals." Neither the Department's Lease Policy (Petitioner Exhibit 3) nor the State's Real Property Leasing Manual (Petitioner's Exhibit 4) give the Lease Administrator the authority to reject or evaluate bid responses. Neither does he have a vote in the bid evaluation process. His responsibility is to coordinate the process. Randall Baker, Manager of Private Sector Leasing of the Bureau of Property Management of the Department of Management Services (hereinafter DMS), testified. The DMS prepares a manual as a guideline for user agencies to assist in the leasing of property. The DMS manual is not binding on agencies and DMS has no review oversight; however, their comments on agencies' leases are reviewed by the state auditing authorities and failure to follow the guidelines can result in audit criticism. Baker confirmed that the agency's written procedures as outlined in the RFP were consistent with the DMS guidelines. The DMS manual states as follows regarding the receipt of only one responsive proposal: When only one responsive proposal is received it may be considered and accepted providing the following conditions are documented: Adequate competition was solicited. The rate is within established rental rate guidelines. The proposal meets stated requirements. The proposal was processed as though other proposals were received. The Petitioner's bid was responsive to the RFP and the lease rate bid by the Petitioner was less than the average rate for state leases in the Daytona area and less than the amount budgeted by the Department for this lease. The lease rate by the Petitioner was reasonably priced and competitive. Although the agency failed to complete the process as envisioned, see paragraph 20 below, this was in no way the fault of Petitioner. The Department's leasing policy requires that the lowest and best response to an RFP be determined through cost analysis and evaluation by an evaluation committee. Mr. Wells did not forward Petitioner's bid to or discuss with the evaluation committee Petitioner's bid, but unilaterally rejected it. It was clear from Mr. Wells' testimony that this was his individual decision and was based upon his personal belief that it was the best thing to do.1 At hearing, the stated justification for rejecting "all bids" was that it gave the Department the opportunity to delete the requirement of moving costs from the awards factors; however, the evidence does not indicate that the moving cost provision result in non-competitive bids. The sole responsive bidder was within the local lease price range and within budget. Neither the Respondent nor DMS has established a policy prohibiting the acceptance of a sole responsive bid if there is competition solicited. The Department of Insurance has accepted a sole bid on at least one project in the past. There was no evidence that the RFP was not an open and fair competition. The evidence shows that it was properly advertised, that all conditions were known, and that all interested parties had an equal opportunity to participate. In sum, there was adequate competition in submitting the bids. Mr. Baker testified regarding the policy of DMS. The DMS policy is that if there is one responsive bidder, there has been competitive bidding. The RFP provides that the Respondent may reject all bids if it has strong justification. See paragraph 5 above. Mr. Baker also provided examples of "strong justification for rejecting proposals." His examples include facilities which are proposed outside the required geographic area, prices considerably in excess of state guidelines and agency budgets, specification changes due to modification of the agency's program requirements, and "intervening external forces." No evidence establishing a strong justification for rejecting the Petitioner's bid was presented. Without completing the process and evaluating the Petitioner's bid, the agency never considered whether the bid was in the state's best interest. However, this was not the fault of the Respondent, and the agency's failure to follow its procedures should not inure to its benefits. Further, Because there was no minimum score required on the evaluation criteria of the RFP, there is no need to evaluate Petitioner's proposal because it is the only responsive proposal. For all the reasons stated above, the rejection of Petitioner's bid was contrary to the terms of the RFP, contrary to state policy, and arbitrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That a Final Order be entered which finds that: Respondent's actions in rejecting Petitioner's responsive bid were arbitrary; The Respondent did not follow the requirements set forth in the Department of Insurance Leasing Policy, nor the Department of Management Services Real Property Leasing Manual, or the Request for Proposal itself; That no adverse interest to the State or the Department would have occurred had Petitioner's responsive bid been accepted; and therefore, Petitioner's claim shall be upheld as the lowest cost and best proposal for RFP #460:0119, and that the Department of Insurance shall award Petitioner Lease #460:0119. DONE AND ENTERED this 30th day of October, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1998.
The Issue : The issue to be resolved in this proceeding concerns whether the agency action in recommending award of the contract for a renovation of a National Guard Armory to Concrete Services, Inc. (CSI) was "clearly erroneous, contrary to competition, arbitrary or capricious." More specifically, it must be determined whether a specification requiring that all general and subcontractors visit the project site and examine the existing site conditions prior to bid submittal, and certifying to that fact, was a waivable or minor irregularity, not affecting the price of the proposal by giving an unfair competitive advantage to any bidder or proposed vendor.
Findings Of Fact The Department of Military Affairs (Department) issued an invitation to bid for certain renovation work at the National Guard Armory in Tallahassee. The invitation to bid was issued on March 2, 2008. It was accompanied by an advertisement number 207005 and addenda No. 1-3. These were the documents that defined the scope of the work proposed to be constructed by the Department and the various specifications, conditions, and criteria which were to guide and be relied upon by prospective vendors or bidders. The invitation to bid stated that the contract would be awarded to the lowest responsive and responsible bidder. The invitation to bid notified prospective bidders that the Department reserved the right to waive minor irregularities in a bid where they did not affect the price of the proposal. Thus, the Department stated in the Invitation to Bid "the Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award with or without further discussion of the proposals submitted or accept minor informalities or irregularities in the best interest of the State of Florida, which are considered a matter of form and not substance and the correction or waiver of which is not prejudicial to other proposals." The reasons stated in the Invitation to Bid and Addenda for disqualification of a bidder did not include the failure of the contractor or subcontractors to visit the project site. Rather, the invitation to bid and advertisement list placed on the discriminatory business list, the submission of an electronic bid and employment of unauthorized aliens as irregularities that would result in disqualification of a bidder. The invitation to bid defines minor irregularities as "those that will not have an adverse effect on the DMA's interest and will not affect the price of the proposal by giving a proposer an advantage or benefit not enjoyed by all other proposers." The Department thus did not make failure of a contractor or subcontractor to visit the site of the project an event that would result in disqualification. The Department's intent rather was to place contractors on notice that failure to visit the site would be at the sole risk of the general contractor/bidder if failure to visit the site resulted in an unforeseen problem, cost, or risk. The Department stated at Addendum 1, D-9 the following: D-9 site examination by contractor: The general contractor and all subcontractors as listed on Exhibit Five, shall visit the project site and examine the existing conditions affected by this work prior to submitting a bid. Any bid submitted without prior examination of on-site existing conditions will be at the sole risk of the general contractor. The contractor shall submit on its letterhead the following at time of bid, certifying that he and his subs thoroughly examined the project site: 'I (name of general contractor), do hereby certify that all associated general and subcontractor entities have visited the project site and thoroughly examined the on- site existing conditions prior to the submittal of the bid.' Lt. Col. Keating is the contract officer and manager. His duties include reviewing the bids and making final determination on bid proposals submitted to the Department for projects such as this renovation project. He reviewed the entire package of bid submissions after the bid opening in Tallahassee. These are his duties concerning every bid opening of the Department. Lt. Col. Keating reviewed the failure of CSI to submit the Addendum D-9 letter and determined that the absence of the letter did not give CSI an unfair competitive advantage. He determined that this was a minor irregularity which was waivable. Mr. Hersey was the construction consultant for the Department for this project. Mr. Hersey reviewed the CSI file after the bids were submitted, noting that CSI's bid did not include all the verbiage required by Addendum One, D-9. He determined, however, that the proposed included the "Exhibit 4" document which stated that CSI had "visited the site of the proposed project and familiarized himself with the local conditions, nature, and extent of the work." Mr. Hersey brought this omission to Lt. Col. Keating's attention. Lt. Col. Keating considered the failure of CSI to submit the Addendum 1, D-9 letter language and determined that the omission did not give CSI an unfair competitive advantage over other bidders and therefore that it was a minor irregularity. He determined that the fact that there was language in the bid submittal of CSI to the effect that the contractor had visited the site and familiarized himself with conditions, nature, and scope of the work made the bid actually responsive. The failure to include the language required in Addendum 1, D-9 did not render the bid unqualified or non- responsive, but, instead, the failure to include that language would have the consequence of making CSI responsible for any loss caused by the failure to visit the project site or have the subcontractors visit the project site before bidding. If that omission caused any additional cost or unforeseen circumstances which had a cost attributable to them, CSI would have to bear the risk of paying for any such expense itself under the terms of the specifications. It was thus determined that the failure to visit the site had the consequence of making the contractor assume resulting risks but was considered by the Department to be a quality assurance measure in the specifications, instead of a determining or qualifying factor for award of the project. Lt. Col. Keating determined that the failure to submit the required language in the letter did not give CSI an unfair competitive advantage. CSI's bid was $1,866,212.00. The bid of the Petitioner, Warren Building Company, Inc., was $1,944,000.00. Thus, CSI's bid was $77,788.00 lower than the bid submitted by the Petitioner Warren. In preparing his bid submittal, the Petitioner had not been charged by his subcontractors for their visiting the Tallahassee project site. His entire cost of submitting the response to the invitation to bid on behalf of Warren, was $10,000.00 or less. Thus, the failure by CSI to have subcontractors visit the site and evaluate the work was clearly not shown to have saved CSI costs, in an amount anywhere approaching the total difference in the amounts of the two bids. Only if the avoidance of such costs represented by the visits of the contractor and subcontractors to the job site was greater than or at least approximately equal to the $77,788.00 difference between the two bids, would the failure of CSI to entirely comply with this specification result in a change in the relative competitive positions of the two bidders. Put another way, there was no evidence to show that had CSI completely complied with the disputed specification, that it would not still have much the lowest-priced responsible and responsive bid. It was thus determined by Lt. Col. Keating that the $1,866,212.00 bid submitted by CSI was the lowest responsible and responsive bid. He therefore determined that the award of the contract should be give to CSI and an Agency decision to that effect was posted on April 11, 2008. The subject protest and proceeding ensued.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Military Affairs, awarding the contract for renovation work at the National Guard Armory in Tallahassee, Florida (No. 207005) to Concrete Services, Incorporated. DONE AND ENTERED this 20th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2008. COPIES FURNISHED: Thayer M. Marts, Esquire 1105 Hays Street Post Office Box 1814 Tallahassee, Florida 32302 Kim F. Heller, II, Esquire Elizabeth C. Masters, Esquire Florida National Guard Post Office Box 1008 St. Augustine, Florida 32085-1008 Elizabeth C. Masters, Lt. Colonel Florida Army National Guard 82 Marine Street St. Augustine, Florida 32084
The Issue The two major issues in this case are as follows: Was the failure of Datamaxx to submit resumes of training and maintenance personnel as required by Performance Mandatory No. 10 of the Invitation to Bid a material deviation from the Invitation to Bid such as to render Datamaxx a nonresponsive bidder? If Datamaxx was a nonresponsive bidder, must the contract be awarded to Burroughs, or must DHRS, pursuant to Section 13A-1.002(3), Florida Administrative Code, have the contract rebid, or seek single source procurement or negotiation approval from the Division of Purchasing?
Findings Of Fact Based on the admissions of the parties, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence, I make the following findings of fact: For at least the past 10 years, the DHRS Data Communications Network has been maintained by Burroughs on a sole source basis. At the end of the previous Burroughs Terminal Maintenance contract with Burroughs, the Department of General Services (DOS) asked DHRS to bid the contract in lieu of sole source procurement, it being the belief of DOS that there was competition in this area. On or about September 19, 1986, DHRS published an Invitation to Bid which advised prospective bidders that sealed bids would be opened on October 20, 1986, for a contract, known as "Burroughs Terminal Maintenance" [Bid No. 86 ATM] regarding maintenance of the terminals of the DHRS Data Communications Network. The Special Conditions of the Invitation to Bid contained, among others, the following provisions: The State has established certain require- ments with respect to bids to be submitted by bidders. The use of "shall," "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this Invitation to Bid requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. (at p. 1) No negotiations, decision, or actions shall be initiated or executed by the bidder as a result of any discussions with any State employee. Only those communications which are in writing from the Department's Purchasing office may be considered as a duly authorized expression on behalf of the State. Also, only communications from bidders which are signed and in writing will be recognized by the State as duly authorized expressions on behalf of the bidder. (at p. 2) All personnel performing maintenance must be trained to service the equipment covered by this contract. Training shall be completed before the individual is assigned to service the equipment covered by this contract. Training shall be provided to whatever level is necessary to ensure the individual has the required qualifications to perform satisfactory maintenance service on Burroughs equipment listed in Attachment A of this Invitation to Bid. Bidder shall submit with their bid a summary of their Burroughs training program and resumes of personnel who will be performing this training and the resumes of personnel who will be per- forming the maintenance. (at p. 8) Bidder shall certify to the State, at the time the bid is submitted, that bidder has existing established service centers staffed with personnel trained to service the equipment covered by this contract . . . In lieu of this requirement, if bidder does not have existing established service centers, liaison office, and trained personnel, and bidder submits a plan for compliance, the required certification must be given the State no later than two (2) weeks prior to the anticipated starting date of the contract as indicated in the paragraph of this document entitled Calendar of Events. Failure to comply with this requirement shall result in rejection of the bid and award of the bid to the next lowest responsive bidder. The Invitation to Bid was drafted by the Department of Health and Rehabilitative Services. The only bidders on the contract (other than no- bids) were Burroughs and Datamaxx. DHRS found Burroughs and Datamaxx both to be responsive bidders and posted their bids making them public in the recognized manner of publicizing the bidder to be awarded a bid. Both bids were found to be responsive by DHRS at the time they were made public. The Datamaxx bid was the lowest bid and the Burroughs bid was the next to lowest bid. DHRS staff recommended the contract be awarded to Datamaxx. The Datamaxx bid was approximately $784,000 less than the Burroughs bid. In its bid Datamaxx indicated that it understood and agreed to all provisions of the Invitation to Bid, specifically including those dealing with Mandatory Requirements, Verbal Instruction Procedure, Rejection of Bids, Bid Evaluation, Performance Mandatories, and Certification. Datamaxx submitted the Certification required under the terms of the Invitation to Bid and did not submit a plan for compliance with its bid. Datamaxx never requested in writing that the requirement for resumes be waived, and DHRS never advised Datamaxx in writing that it did not have to submit the resumes. Datamaxx did not submit with its bid the resumes of training and maintenance personnel required under Performance Mandatory 10 of the Invitation to Bid. Performance Mandatory No. 10 required the submission of resumes with the bid, and did not concern an event that would take place after the bid had been let. DHRS considered the requirement for resumes to be a mandatory requirement. The qualifications of the persons who would be performing the maintenance under the contract would have a potentially significant effect on the quality of the maintenance provided. Nothing could be more material to the contract than the ability of the personnel to perform that contract. The difference in the dollar amount of the bids of Burroughs and Datamaxx influenced the decision of DHRS in finding Datamaxx to be a responsive bidder. This was a major reason Datamaxx was found to be a responsive bidder. In evaluating the Datamaxx bid, DHRS went outside the material provided in the Datamaxx bid. Subsequent to the posting of bids, DHRS met with Datamaxx and advised Datamaxx that its initial submission was deficient for not including resumes with the bid, that DHRS had waived the resumes, but that in order for DHRS to continue its recommendation that the bid be awarded to Datamaxx, DHRS had to have the resumes prior to the awarding of the bid. DHRS considered it an error and a deficiency in the bid that the resumes were not furnished. Datamaxx, on November 6, 1986, advised DHRS in a letter to Charles Ray that it would submit a plan which would address, among other things, service personnel resumes by November 17, 1986. DHRS could not have considered Datamaxx's letter of November 6, 1986, in evaluating whether Datamaxx was a responsive bidder, because that letter was not received until after DHRS had already found Datamaxx to be a responsive bidder and recommended that the contract be awarded to Datamaxx. Had Datamaxx not submitted the resumes prior to November 17, 1986, DHRS staff would have recommended that the award of the contract be withdrawn. The performance the State would receive under the contract would directly depend on the qualifications of the persons performing the service and the maintenance, and the resumes would be the only source of information regarding the qualifications of the personnel.
Recommendation For all of the foregoing reasons, it is recommended that a final order be entered to the following effect: Concluding that the bid submitted by Datamaxx USA Corporation on Bid No. 86 ATM should be rejected on the grounds that it is not responsive, Concluding that the bid submitted by Burroughs Corporation should be rejected on the basis of Rule 13A-1.002(3), Florida Administrative Code, and, Providing for the agency to issue a second invitation to bid/request for proposals or take other action provided by Rule 13A-1.002(3), Florida Administrative Code. DONE AND ENTERED this 25th day of June 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4460B1D The following are my specific rulings on each of the proposed findings of fact submitted by both parties: Findings proposed by Petitioner Paragraphs 1 through 19 are accepted with a few minor editorial modifications. The first two lines of paragraph 20 are rejected as redundant. The remainder of paragraph 20 is accepted. Findings proposed by Respondent Paragraphs 1 and 2 are accepted in substance. Paragraph 3 is rejected as constituting unnecessary details. Paragraphs 4 through 7 are accepted. Paragraphs 8, 9, and 10 are rejected as irrelevant. Paragraph 11 is rejected in part as irrelevant and in part as contrary to the greater weight of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as constituting irrelevant and unnecessary details. COPIES FURNISHED: Robert L. Powell Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue This case concerns a challenge to the validity of Rules 13A-1.001(12), 13A- 1.002(1)(b) and 13A-1.002(3) , Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.
Findings Of Fact In the fall of 1988, the State of Florida, Department of Transportation (DOT) put out a Request for Proposals (RFP) as RFP-DOT-88-0l. Through this RFP the agency sought to acquire a new barrier and ticket toll collection system which would automate the toll collection operations and retrieval of audit data, having in mind increased reliability and performance. The project is principally one which envisions the purchase of commodities. It has an associated service component. Section 287.062(1)(e), Florida Statutes together with Section 287.073(3), Florida Statutes, established the basic authority for the award of RFP-DOT-88-01. The agency received responses in March, 1989, from three companies. The offerors were Petitioner and Intervenor and one other concern. The other company was AGS Informations, Inc. (AGS). Following evaluation DOT determined on May 18, 1989 to reject the Intervenor's proposal as nonresponsive. This rejection was followed by the Intervenor's notice of protest on Nay 25, 1989. A formal written protest was made on June 6, 1989. On July 31, 1989, Intervenor filed a notice of voluntarily dismissal of the formal written protest. This was addressed by the DOT final order of August 2, 1989 which dismissed the formal written protest. On November 21, 1989, DOT posted its intent to award a contract to Petitioner. This statement of intent to award was met by a notice of protest filed by Intervenor on November 27, 1989, followed by a formal written protest on December 6, 1989. The case was sent to the Division of Administrative Hearings for consideration and through response to a motion to dismiss the Hearing Officer in that case, DOAH Case NO. 89-6926B1D, entered a recommended order of dismissal. On January 22, 1990 DOT entered a final order dismissing Intervenor's petition and stating its intent to award the contract to Petitioner. An amendment to the January 22, 1990 order was made on February 21, 1990 reminding all concerned that the contract award was subject to review and approval by the Governor and Cabinet sitting as the State of Florida, Department of General Services to decide the propriety of the subject purchase which was an information technology resources purchase under Section 287.073, Florida Statutes. On February 21, 1990, DOT sent notice to the three offerors that it was rejecting all proposals submitted. As described in the notice of agency decision, DOT was operating on the basis that a further review of the proposals revealed that the proposals by AGS and Intervenor were nonresponsive. It went on to say that to have competitive offerors there must be two or more offers submitted by responsive and qualified offerors. In this instance DOT felt that it did not have two acceptable proposals and did not have a competitive offer. Because the commodities sought were available from more than one source, it had decided to withdraw its notice of intent to award which was contingent upon the approval of the Governor and Cabinet. On February 27, 1990, Petitioner gave a notice of protest of the DOT decision to reject all bids. This was followed by a formal written protest on March 9, 1990. Although the decision to reject all proposals was not opposed by Intervenor, the motion by the Intervenor to intervene in DOAH Case No. 90- 1583BID was granted allowing limited participation in support of the DOT decision to reject all proposals. That outcome tended to create the opportunity for Intervenor to participate in any re-advertisement for proposals. As revealed in the final hearing in DOAH Case No. 90-1583BID, DOT utilizes Chapter 13A, Florida Administrative Code, in the procurement process. Intervenor participated in the final hearing in DOAH Case NO. 90- 1583BID. The DOT decision to reject all proposals in which reliance upon the rules under challenge are perceived to support that decision has an adverse impact on Petitioner. By that arrangement Petitioner loses the opportunity for the contract. Additionally, it is placed in a disadvantaged position in that the particulars of its method of responding to the RFP have been revealed and are now known to the competitors who might be expected to utilize that information in a setting where a re-advertisement takes place. Under the circumstances, Petitioner filed its challenge to the existing rule on March 28, 1990. Intervenor sought the opportunity to intervene in this case on April 4, 1990, and that opportunity was granted on April 6, 1990. Intervenor intends to participate in any re-advertisements of the RFP. In his testimony at hearing William Monroe, Director of the Division of Purchasing for Respondent, established that in governmental purchasing the terms "offers" and "proposals" are synonymous. This opinion is accepted. Mr. Monroe also established that Respondent believed that it was implementing Section 287.012(15), Florida Statutes, when promulgating Rule 13A- 1.001(12), Florida Administrative Code. Through the promulgation of Rules 13A- 1.002(1)(b), and 13A-1.002(3), Florida Administrative Code, Respondent believed that it was implementing Section 287.062, Florida Statutes. Respondent interprets Section 287.062, Florida Statutes, to require an agency making a commodity purchase to use competitive sealed proposals in instances where invitations to bid are not used. Mr. Monroe in speaking for Respondent indicated that this interpretation gained support from the language set out in Section 287.001, Florida Statutes. According to Mr. Monroe the circumstance in which less than two responsive and qualified offerors respond to an RFP is one in which the procuring agency must reject all proposals or seek the approval from Respondent to negotiate with the one responsive offeror or where no responsive offerors were received to negotiate with someone whom the agency has chosen. Likewise, a sole source purchase negotiation must be approved by Respondent. Mr. Monroe's testimony, in speaking for Respondent, indicates that Respondent interprets the terminology within Section 287.062(2), Florida Statutes, "no competitive" to modify the words "bids" and "proposals." Thus, it is incumbent upon an agency to receive authority to negotiate in those instances where it receives less than two proposals submitted by responsive and qualified offerors who are responding to a RFP in acquiring commodities.
The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-206, relating to the removal and replacement of the public address system at Pinellas Park High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, ITB was issued by Respondent for work related to the removal and replacement of the public address system at Pinellas Park High School in Largo, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-206 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $130,756.66. Petitioner submitted a bid in the amount of $116,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-206 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of October, 2013.
The Issue Whether the Department of Transportation can reject all bids on State Project No. 37906-9007?
Findings Of Fact In response to an invitation to bid, petitioner C & S Chemical Company (C&S) submitted a bid, No. 9059-86, offering to undertake complete maintenance operations to ensure Rest Area facilities located on State Road 93 (1-75) in Suwannee and Hamilton Counties are maintained in a safe, attractive, clean and sanitary manner." Respondent's Exhibit No. 1. Invitations to bid were mailed in October of last year, (T.9), and bids were to have been opened on December 2, 1987. C&S's bid price was $14,860.76 monthly or $178,329.12 for the year. By letter dated December 9, 1986, however, the Department of Transportation (DOT) advised C&S that all bids had been rejected, stating that the "Department reserved the right to reject any/or all bids when it is determined to be in the best interest of the Department. Petitioner's Exhibit No. 1. C&S mailed notice of protest the same day it received the Department's advice that all bids had been rejected. C&S's formal written protest took the form of a letter, dated December 18, 1986, in which C&S inquired: [H]ow can the Department of Transportation offend and deprive legitimate contractors of this work by negotiating a Contract with a non-profit organization after the bid prices have been made public knowledge? Petitioner's Exhibit No. 2. In this letter, C&S took the position that DOT should not reject all bids: We feel that if the non-profit organizations are going to get Department of Transportation contracts, they should either bid compet[i]tively with private enterprises, or that certain contracts should be set aside for them well advance of the bidding process. At hearing, Mr. Sperring narrowed or clarified the grounds of the protest when he stated, "I have no objection to the concept of the nonprofit organizations as long as they are set aside," (T.12) before bids are invited. The parties agree that, after bids were solicited, DOT decided to award the contract for Project No. 37906-9007 to intervenor Florida Association of Rehabilitative Facilities, Inc. (FARF), even though FARF never bid on the project. By agreement dated August 21, 1985, the Commission for Purchase for the Blind and other Severely Handicapped designated FARF "the central nonprofit agency of the Commission . . . [and its] sole agent." Intervenor's Exhibit No. 2. The day before, DOT Secretary Thomas E. Drawdy had signed a policy statement proclaiming DOT's intention "to procure commodities or services from qualified nonprofit agencies for the blind or other severely handicapped when feasible unless otherwise restricted by budgetary constraints." Intervenor's Exhibit No. 1.
The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-205, relating to the removal and replacement of the public address system at Countryside High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, the ITB was issued by Respondent for work related to the removal and replacement of the public address system at Countryside High School in Clearwater, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-205 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $118,143.27. Petitioner submitted a bid in the amount of $108,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-205 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of October, 2013.
Findings Of Fact Respondent advertised for bids for work to be performed on the Statewide Regional Juvenile Detention Center located in Pasco County identified as Project Number HRS 85-300000. In response to this advertisements Petitioner and Intervenor timely submitted bids on January 23, 1966. According to calculations performed by Respondent, Petitioner was low bidder and Intervenor was the next lowest bidder. The construction budget for this job is $1.5 million, and both bids are considered by Respondent to be within budget. Depending on the alternatives chosen within each bid, Petitioner's bid is lower than Intervenor's by between approximately $6,000 and $40,000. Section B-14 of the advertisement for bids requires each bidder to submit a list of the subcontractors who will perform work on the job for him and specifies that only one subcontractor shall be listed for each phase of the work. Section D of the advertisement for bids specifies the work areas for which a subcontractor must be listed and states that said list is an integral part of each bid submitted. The subcontracting areas include electrical plumbing, mechanical, roofing security control systems, food service equipment and fire protection. Petitioner's bid was rejected on February 4, 1986, because its bid failed to include a roofing subcontractor's name as required in the advertisement for bids. Petitioner does not dispute that its bid was incomplete when submitted since it failed to identify a roofing subcontractor. However, Petitioner contends this omission was a result of clerical error in typing the bide and that, in fact, it had selected Republic Roofing as its subcontractor. John Breen, Petitioner's project manager, testified that it was his intent to use Republic Roofing when he submitted the bide that he had a firm bid from Republic Roofing, and that when this omission was brought to his attention after bids were opened, he identified Republic Roofing in writing on January 24 and 29, 1986, to Brian Seufert an intern architect working for Respondent's project architect. Seufert confirms Breen's testimony through affidavit jointly filed by the parties. Seufert indicates that the project architect has no reason to believe that Petitioner could not perform the work required by the project. By affidavit jointly filed by the parties, Joyce Kleja secretary for Petitioners also supports Breen's testimony about her clerical error in omitting the roofing subcontractor when she typed the bid. Ray Scerbo, an estimator for Republic Roofing, disputes the testimony of Breen through jointly filed affidavit. Scerbo indicates it was not until a couple of days after the bid opening that he was told by Petitioner that Republic Roofing "had the job" if Petitioner was awarded the contract. This conflicts with the first written notice from Breen to Seufert dated January 24, 1986, as well as Seufert's affidavit that Petitioner told Seufert on January 24, 1986, that Republic Roofing had been selected. Scerbo is no longer employed by Republic Roofing. After considering all of the evidence, it is specifically found that Petitioner's omission of Republic Roofing from its list of subcontractors was through clerical error and that Petitioner had firmly decided to use Republic Roofing for subcontracting work prior to submission of its bid. The advertisement for bid required all subcontractors to be listed in any bid in order to allow Respondent to review prior performance and licensure of subcontractors, and also to prevent "bid shopping". Bid shopping is a practice which inflates a general contractor's bid and therefore the actual award by encouraging subcontractors to initially submit high bids to the general contractor and then negotiate a lower price with the general contractor who has received the award. The general contractor's bid remains inflated however and in this way the cost to the state is increased.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order awarding Project Number HRS 85-300000 to Intervenor. DONE and ENTERED this 1st day of April 1986, at Tallahassee Florida. DONALD D. CONN 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 1st day of April 1986. APPENDIX (DOAH CASE NO. 86-0495B1D) Petitioner has submitted a memorandum and a Proposed Recommended Order, both of which appear to set forth proposed findings of fact in unnumbered paragraphs. For purposes of ruling thereon, the unnumbered paragraphs which appear to set forth proposed findings have been consecutively numbered. Memorandum: Introductory material and not a proposed finding of fact. Adopted in part in Findings of Fact 1, 2, 3, 4, but otherwise rejected as cumulative and unnecessary. Adopted in Findings of Fact 5, 7. Rejected as simply a summary of testimony and evidence and not a proposed finding of fact. Rejected as irrelevant. Adopted in part in Findings of Fact 5, 6. Adopted in part in Finding of Fact 4, but rejected in part in Finding of Fact 2 and otherwise rejected as not based on competent substantial evidence. Proposed Recommended Order: Adopted in part in Findings of Fact 1, 3, but otherwise rejected as unnecessary and irrelevant. Rejected as irrelevant. Adopted in part in Finding of Fact 2, but otherwise rejected as contrary to Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 7. Adopted in Finding of Fact 4. Rulings on Respondent's and Intervenor's jointly filed Proposed Findings of Fact: Adopted in Findings of Fact 1, 3. Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 8. , 6. Adopted in Findings of Fact 6, 7. COPIES FURNISHED: Dennis R. Long Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Sam Powers Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 William Page; Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 John P. Fons Esquire Post Office Drawer 11307 Tallahassee, Florida 32302
Findings Of Fact Respondent issued an invitation to bid on March 13, 1992. Bid number SB 92-244I involved the disassembly and removal of an existing walk-in freezer and the furnishing and installation of a new walk-in freezer at Coral Sunset Elementary School. The invitations to bid provided in paragraph Y of the Special Conditions: Failure to file a specification protest within the time prescribed in Florida Statutes 120.53 3.(b) shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (sic) Bid specifications were included in the invitations to bid issued on March 13, 1992. Twenty-three bids were solicited. There were five responses. One of the responses was submitted by Choice Restaurant Equipment, Inc. ("Choice"). Choice is a vendor for equipment manufactured by Petitioner, Nor-Lake, Inc. ("Nor-Lake"). Nor-Lake is an out-of-state corporation with manufacturer's representatives in numerous states including Florida. 4, Petitioner, CHD Marketing Group ("CHD"), is the manufacturer's representative for Nor-Lake in Florida. CHD represents no other manufacturer of the product included in the bid response. Choice is a sales agent for CHD and other manufacturer's representatives in Florida. Choice sells the products of a variety of manufacturers but is the exclusive sales agent for CHD pursuant to a verbal agency agreement. Choice timely submitted a bid for bid number SB 92-244I on April 8, 1992, prior to the bid deadline of 2:00 p.m. on the same day. The successful bidder submitted its bid by Federal Express at 4:51 p.m on April 8, 1992. Respondent's Department of Purchasing and Stores (the "Department") had stated on March 13, 1992, when the invitations to bid were issued, that bid responses must be received by the Department no later than 2:00 p.m. on April 8, 1992, at the Department's address at 3980 RCA Boulevard/Suite 8044, Palm Beach Gardens, Florida, 33410-4276. Prior to April 8, 1992, the Department relocated to a new facility at 3326 Forest Hill Boulevard, West Palm Beach, Florida. The new address was posted at the old location and Department representatives were present at the old address to accept walk-in bids. Federal Express first attempted to deliver the successful bid at the Department's old address at 10:30 a.m. on April 8, 1992. Federal Express delivered the successful bid to the Department's new address at 4:51 p.m. At 2:00 p.m. on the same day, The Department announced that all bids were in and opened the bids that had been delivered. The successful bid and one other bid were delivered on April 8, 1992, after the public opening conducted at 2:00 p.m. on the same day. Bids were tabulated on April 9, 1992. Bid tabulations were posted on April 13, 1992, and the successful bid was announced. The successful bid was for $8,174.00. Three bids were lower than the successful bid. Choice's bid was for $7,742.56. The other two lower bids were for $8,020.00 and $6,620.00. All three lower bids were rejected as non- responsive. Choice's bid was rejected because it did not meet bid specifications for 22 gauge steel, thermostatically controlled door heaters, and reinforced steel door panels. CHD filed a Notice of Protest on April 14, 1992, and a Formal Written Protest on April 24, 1992. CHD's protest alleges that: Choice's bid was lower than that of the successful bidder; the successful bid was not timely made; the bids were not opened publicly in violation of bidding procedure requirements; and the bid specifications were arbitrary and capricious, favored one bidder, and that Choice's bid was responsive. Neither a notice of protest nor a formal written protest was submitted by Choice or Nor-Lake. Neither Choice nor Nor-Lake attended the informal protest conference conducted on April 30, 1992. On May 7, 1992, Respondent's Office of General Counsel issued its written notice of proposed agency action. The written notice recommended that the bid be awarded to the successful bidder and that CHD's protest be dismissed for lack of standing. CHD requested a formal hearing on May 14, 1992, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 15, 1992. The bid submitted by Choice was prepared by CHD but signed by the president of Choice. Neither Nor-Lake nor CHD signed a bid or were otherwise bidders of record for bid number SB 92-244I. Neither Choice, CHD, nor Nor-Lake, filed a notice of protest concerning the bid specifications within 72 hours after Choice received the notice of the project plans and specifications on March 13, 1992. The sole basis upon which CHD claims it is substantially affected is the adverse economic impact caused to it by the proposed agency action. The proposed agency action will result in lost sales from this and future transactions. CHD will lose commissions from this and future transactions. The dealer relationship between CHD and Choice will be damaged because Choice will not want to sell a freezer that is not acceptable to Respondent. The marketing strategy developed between CHD and Nor-Lake will be damaged because it is conditioned upon the award of public contracts.
The Issue Whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in determining that Intervenor's bid was responsive.
Findings Of Fact On March 16, 1994, the Respondent issued an invitation to bid (ITB) for security guard services. The desired services were described in detail by the bid documents. Bids from eleven bidders, including a bid from Petitioner and a bid from Intervenor, were opened on April 13, 1994. After the bids were evaluated, the Respondent determined that Intervenor's and Petitioner's bids were responsive. Intervenor was determined to be the lowest bidder and Petitioner was determined to be the second lowest bidder. Respondent thereafter notified all bidders that it intended to award the bid to Intervenor. Pertinent to this proceeding, the bid document contained the following general condition: AWARDS; In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received . . . [Emphasis has been added.] Pertinent to this proceeding, the bid document contained the following special conditions: G. OCCUPATIONAL LICENSE: Each bidder, by submitting a bid, certifies that they possess a Class B license issued by the State of Florida as well as town and county occupational license. ALL BIDDERS MUST SUBMIT PROOF OF THE ABOVE REFERENCED LICENSE WITH THEIR BID (PHOTOCOPY) IF IT IS TO BE CONSIDERED FOR AWARD. * * * J. QUALIFICATIONS: The bidder will have maintained continual work experience in security guard services for a period of three years prior to the bid date. Bidder must submit written documentation with bid or within three days upon request, substantiating experience requirement. The bidder will have a place for contact by the owner during normal working days. [Emphasis in the original.] Petitioner timely protested the intended award of the bid to Intervenor on the ground that the Intervenor did not have an occupational license issued by Palm Beach County at the time of its response as required by Special Condition G. Intervenor submitted with its bid a copy of its Class B license issued by the State of Florida, Division of Licensing, and a copy of its occupational licenses issued by Broward County. Because Intervenor did not have any business in Palm Beach County at the time it submitted its bid, it did not have an occupational license issued by Palm Beach County. Respondent determined that Special Condition G. was met when Intervenor submitted a copy of its Class B license. Respondent has the discretion to waive as a minor irregularity the fact that Intervenor did not have a Palm Beach County occupational license at the time it submitted its bid. There was evidence that Respondent waived similar irregularities in the occupational licenses of other bidders, including an irregularity pertaining to the Petitioner. There was no evidence that the Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in determining that Special Condition G. had been met. Intervenor was not afforded an unfair advantage in the bid process by this determination. Petitioner also timely protested the intended award of the bid to Intervenor on the ground that the Intervenor had not been incorporated for three years at the time of the bid and that it did not meet the experience condition contained in Special Condition J. The Intervenor was incorporated August 27, 1992. At the time of the bid, the Intervenor had been a viable business for more than two years but less than three years. Mr. Inyang, the president of the corporation, submitted documentation that established that his qualifications and experience exceeded the requirements of Special Condition J. Respondent acted within its discretion in determining that the experience of the president of the corporation satisfied the requirement that the bidder "... have maintained continual work experience in security guard services for a period of three years prior to the bid date" as required by Special Condition J. There was no evidence that the Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in making this determination as to Intervenor's experience. Intervenor was not afforded an unfair advantage in the bid process by this determination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent dismiss Petitioner's bid protest. DONE AND ENTERED this 18th day of July, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1994. COPIES FURNISHED: Donald H. Neff, President Southern Star Event Services, Inc. 316 Flamingo Road West Palm Beach, Florida 33401 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Robert E. Inyang, President Michael Graziano, Investigator Supreme Intelligence Agency, Inc. 4700 North State Road 7, Suite 120 Lauderdale Lakes, Florida 33319 Dr. C. Monica Ulhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
