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SMITH AND JOHNS, INC. vs A. F. BUSINESS BROKERAGE, INC., AND TITAN INDEMNITY COMPANY, 93-007164 (1993)
Division of Administrative Hearings, Florida Filed:Hastings, Florida Dec. 27, 1993 Number: 93-007164 Latest Update: Sep. 15, 1994

The Issue Whether or not Petitioner (complainant) is entitled to recover $10,134.72 or any part thereof against Respondents dealer and surety company.

Findings Of Fact This cause is governed by the four corners of the November 2, 1993 complaint. It involves only two loads out of twenty loads of potatoes. Petitioners are growers of potatoes and qualify as "producers" under Section 604.15(5) F.S. Respondent A.F. Business Brokerage is a broker-shipper of potatoes and qualifies as a "dealer" under Section 604.15(1) F.S. A.F. Business Brokerage, Inc. is a corporation engaged in the business of brokering (purchasing and re-selling) potatoes and operates under one or more of the following names: A.F. Business Brokerage, Inc., Washburn Corp., and/or Ben Albert Farms. The contract at issue herein listed the name of the broker as "Albert Farms d/b/a Washburn Corporation." Payments made by the Respondent broker to Petitioner for potatoes received under the terms of the contract were in the form of checks drawn on the account of A.F. Business Brokerage, Inc. For purposes of this litigation, "Albert Farms d/b/a Washburn Corporation," and "A.F. Business Brokerage, Inc." will be considered as describing the same party. Although Titan Indemnity Company received notice of the filing of Petitioner's Complaint and failed to request a formal hearing pursuant to Section 120.57(1) F.S., no evidence or admission was presented at formal hearing which would permit a finding that Titan Indemnity Company was surety for Respondent A.F. Business Brokerage at all times material. That is not to say that Titan Indemnity is found not to be the surety for Respondent A.F. Business Brokerage. The foregoing finding only means that this case in the administrative forum cannot resolve the issue of indemnity as between Respondents because insufficient evidence on that issue has been presented, and it may be necessary for that issue to be litigated in Circuit Court pursuant to the surety contract/bond, if any. On or about December 28, 1992, Petitioner and Respondent broker confirmed in writing the terms of a telephoned agreement, whereby Petitioner agreed to sell and the broker agreed to purchase twenty truckloads of potatoes. The agreement/contract, prepared by Respondent broker was titled "Standard Confirmation of Sale". It specified in pertinent parts: "Unless the seller or buyer makes immediate objection upon receipt of his copy of this Standard Confirmation of Sale, showing that contract was made contrary to authority given the Broker, he shall be conclusively presumed to agree that the terms of sale as set forth herein are fully and correctly stated. Sale made (F.O.B. or Delivered): F.O.B. Special Agreement, if any: Potatoes shipped are for potato chipping and must cook on arrival to be subject to this agreement. This confirmation is issued and accepted in agreement with, and subject to the rules and regulations and definitions of terms as recognized and approved by the U.S. Secretary of Agriculture under the Perishable Agriculture Commodities Act. *4 Truckloads chipping potatoes, April $7.75 FOB 16 Truckloads chipping potatoes, May, June $7.00 FOB *Loads not shipped by seller in April apply to May, June portions of agreement." (Petitioner's Exhibit 1) Under Section 672.319 F.S., The Uniform Commercial Code, the abbreviation "F.O.B." means "free on board" and is interpreted differently, dependent upon what words follow the abbreviation. Regardless of what words follow the abbreviation, the term "F.O.B." places shipping responsibility and shipping costs upon a "seller" as opposed to the one accepting delivery, the ultimate buyer. Testimony and arguments by the parties at formal hearing and in their respective proposals suggest that if "F.O.B." had been used by itself, in place of the word "delivered," and without more, the contract would have signified that sale herein occurred at the time of pickup in the field by the broker/shipper, and that title to the produce would have transferred from the producer to the broker/shipper at that point in time as opposed to title transferring at the time the broker/shipper delivered the produce to its ultimate destination. However, here, the Respondent broker elected the term "F.O.B." and rejected the term "Delivered," and also added the requirement that the potatoes cook to chips at their destination. Petitioner made potatoes available for pick up by the broker at Petitioner's fields beginning in May, 1993 in accord with the contract and the price specified therein. Without incident, the broker picked up and accepted the first eighteen loads of potatoes which it had agreed to purchase. All arrangements for shipment of the potatoes at issue were controlled and paid for by the Respondent broker. These arrangements made and controlled by the Respondent broker included the method of transportation, the exact date when the potatoes would be picked-up from Petitioner's fields, the place to which the potatoes ultimately would be transported, and the time during which the potatoes would remain "in transit". This unilateral control by the broker suggests that the parties were treating the potatoes as if title thereto had passed to Respondent broker when it picked them up in Petitioner's field and clearly shows that the broker had control over what condition the potatoes were in when they reached the retailer at their ultimate destination. As of the time Petitioner began to honor the contract by making potatoes available for pick up by the broker, Petitioner could have sold potatoes on the "open market" for $25.00 per hundred-weight instead of the $7.00 per hundred-weight called for under the terms of the contract. Nonetheless, Petitioner honored its contract with Respondent broker by making potatoes available to the Respondent broker and by reserving a sufficient amount of Petitioner's crop so as to fulfill the entire contract with Respondent broker. As of the time the Respondent broker made arrangements for pick up of the last two loads of potatoes, potatoes on the open market were selling for $1.75 per hundred-weight, meaning that the broker was paying Petitioner more for potatoes under the terms of their contract than the broker would have had to pay to purchase similar potatoes on the "open market". Respondent broker contacted Petitioner immediately prior to June 17, 1993 and asked that Petitioner cancel the contract between them because of the reduced price potatoes were yielding on the open market. Petitioner rejected the proposal. This strongly suggests that the Respondent broker felt bound by the contract to pay Petitioner at the rate agreed under the contract regardless of what rate the broker sold the potatoes for upon delivery and also suggests that the parties were treating the potatoes as if title to the potatoes passed to the Respondent broker when the broker picked up the potatoes in Petitioner's field. The date selected by the Respondent broker for pick up of the last two loads of potatoes was unusual. The broker picked up the last two loads of potatoes on Thursday, June 17, 1993. However, the Respondent broker's standard practice was not to pick up potatoes in St. Johns County, Florida on Thursdays because of the increased risk that potatoes loaded in the fields on Thursdays would reach the ultimate retail destination assigned by this particular broker at a time when processing plants in that locale would be closed for the weekend, thereby increasing the time the loaded potatoes would remain enclosed in the transport truck and accordingly increasing the risk of spoilage. The method of transport selected by the Respondent broker for the potatoes loaded June 17, 1993 was also unusual and destined to increase the risk of spoilage. On that occasion, the broker sent "pigs" a/k/a "piggy-back rail cars" rather than conventional trucks or refrigerated trucks. On June 17, 1993, Petitioner also loaded two trucks for H.C. Schmieding Produce, a broker not involved in this litigation. Petitioner's potatoes loaded upon Schmieding's trucks and the potatoes loaded on Respondent broker's trucks came from the same fields and "lot" of potatoes. One of Schmieding's trucks was loaded before Respondent broker's trucks, and one of Schmieding's trucks was loaded after Respondent broker's trucks. The potatoes purchased and loaded by Schmieding on June 17, 1993 were received in good condition in Illinois and Tennessee, respectively, and Petitioner received full payment for them. Respondent broker's loads were ultimately refused in Massachusetts. June 21-23, 1993 were all weekdays, and presumably "work days." The best date that can be reconstructed for the date that the potatoes in question were dumped by the Respondent broker is June 22 or 23, 1993, so their "arrival" in Massachusetts must have preceded dumping. By undated letter postmarked June 28, 1994, the Respondent broker notified Petitioner of the rejection of the two loads of potatoes picked up by the Respondent broker from Petitioner on June 17, 1993. The letter also informed Petitioner of the broker's intent to assess charges for inspection and dumping of the potatoes and of the broker's intention not to pay Petitioner for the potatoes. This letter was the first notice received by Petitioner advising of the rejection of the two loads of potatoes in question, 1/ and contained a copy of a U. S. Department of Agriculture Inspection Report dated June 22, 1993 showing 60-100 percent soft rot. 2/ Petitioner's principal had left his home and place of business on June 24, 1993, a date clearly 24 to 48 hours after dumping had already occurred and probably much longer after arrival of the potatoes in Massachusetts. Petitioner did not learn of the Respondent broker's June 28, 1993 letter or the Inspection until July 4, 1993. By July 4, 1993 Petitioner had terminated all harvest operations and was not able to tender two replacement loads of potatoes to the broker. As of the time that Petitioner received the June 28, 1994 notice that the two loads in question were being rejected, the Respondent broker had already disposed of the potatoes. Consequently, Petitioner had no opportunity to avail itself of any alternative or other option regarding disposition of the potatoes. Prompt notification of the broker's rejection of the two loads of potatoes might have allowed Petitioner to negate its losses by marketing the potatoes at a reduced price to other processing plants in Massachusetts or to tender two replacement loads of potatoes to the Respondent broker. After all deductions and calculations, the rejected two loads of potatoes resulted in damages of $10,135.47 to Petitioner producer.

Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Agriculture enter a final order that: Awards Petitioners $10,134.42 and binds A.F. Business Brokerage Inc. d/b/a Albert Farms d/b/a Washburn Corporation to pay the full amount to Petitioner. Sets out any administrative recourse Petitioner or Respondent broker may have against Titan Indeminity Co. RECOMMENDED this 19th day of July, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1994.

USC (1) 7 CFR 46 Florida Laws (3) 120.57604.15672.319
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MAGIC FOODS DISTRIBUTORS, INC. vs DEPARTMENT OF CORRECTIONS, 96-003040BID (1996)
Division of Administrative Hearings, Florida Filed:Gainesville, Florida Jun. 28, 1996 Number: 96-003040BID Latest Update: Oct. 16, 1996

Findings Of Fact On May 3, 1996, the DEPARTMENT issued an Invitation to Bid, Bid Number 9596-RDC-011, titled "Bagged Snacks and Snack Crackers." The snacks were to be resold in the inmate canteens located throughout the DEPARTMENT's Region 2 facilities. The effective date of the awarded contract was from July 1, 1996 through June 30, 1997. Inmate canteens are small grocery stores located in prison facilities that are operated for the convenience of the general prison population. The Invitation to Bid (ITB) contained eighteen different bagged snacks and snack crackers including, BBQ corn chips, pork rinds, potato chips, pretzels, tortilla chips, beef jerky products, peanuts, popcorn, and crackers. While the ITB was not brand name specific, it did contain specific size and flavor requirements. In addition, the ITB required price quotations and samples for each of the eighteen products. Except for Item 7, the ITB stated a weight that each product bid must meet or exceed. The product bid may weigh more than the amount stated in the ITB, but a product that weighs less is deemed non-responsive. Bid packages were sent to 28 vendors, and the DEPARTMENT received four bids. Bids were submitted by WISE, JOE WALKER, MAGIC, AND STEWART DISTRIBUTION. The remaining 24 vendors did not respond to the ITB. No protest challenging the terms and conditions of the ITB were filed. On May 29, 1996, the bids were opened, and MAGIC submitted the lowest bid at $673,564.97. WISE submitted the second lowest bid at $757,608.98. WALKER submitted a bid of $1,146,196.81 and STEWART submitted a bid of $1,417,208.42. Subsequently, on June 3, 1996, the DEPARTMENT disqualified MAGIC as unresponsive because it did not bid items as specified and because it did not provide samples for all the items that were bid. As a result of MAGIC's non-responsive bid, the DEPARTMENT issued an intent to award the bid to WISE. On June 14, 1996, MAGIC timely filed a protest to the award of the contract, asserting (1) that it submitted the lowest bid, (2) that it complied with the material requirements of the bid, (3) that any deviation was minor, and (4) that the award of the bid to WISE was arbitrary, capricious or illegal. The DEPARTMENT and WISE raised a series of arguments countering the allegations raised by MAGIC. Specifically, the DEPARTMENT and WISE asserted that MAGIC violated the terms of the ITB by not providing and marking samples, by failing to bid on certain products contained in the ITB, and by failing to meet the weight and size specifications of the ITB. In short, the DEPARTMENT and WISE asserted that MAGIC's bid was nonresponsive. The first issue raised by the DEPARTMENT and WISE related to samples of snacks provided by MAGIC. The DEPARTMENT and WISE asserted that the MAGIC proposal was unresponsive to the ITB because it did not provide a sample of every snack included within the ITB and that it failed to label the samples provided to the DEPARTMENT. On this issue, section 12 of the Special Conditions of the ITB provides that: On or before the scheduled bid opening date, the bidder shall forward, and/or otherwise cause to be delivered one (1) sample of each item to be considered to Regional Distribution Center, Region.... The section further provides: All samples must be marked with bidder's name, group number, item number, and bid number. Items not so marked may be disqualified. [Failure to submit all required samples shall be grounds for disqualification.] [emphasis provided]. MAGIC failed to meet the first requirement of section 12 of the Special Conditions of the ITB by failing to provide samples of each item bid. The testimony of DEPARTMENT personnel indicated that WISE presented its samples in an unsealed box. The testimony further indicated that the box was placed in a secure facility prior the opening and evaluation of the contents of the box. 4/ While MAGIC offered testimony that it did provide samples for all the snack products, the testimony was inconsistent and did not have the same reliability as the testimony of the DEPARTMENT'S personnel. Specifically, DEPARTMENT personnel Jesse Mosley and Carla Harris offered credible testimony that supports the finding that they properly reviewed samples from MAGIC, that they inventoried the samples, and that they discovered that some of the samples were missing. Failure to provide samples, alone, was grounds for the DEPARTMENT's disqualification of MAGIC. In addition to failing to provide adequate samples, MAGIC violated the second requirement of section 12 of the ITB by failing to properly mark its samples. A review of the samples submitted by MAGIC indicates that MAGIC failed to label any of its samples. 5/ Because MAGIC did not label its products, the DEPARTMENT was forced to guess as to which products corresponded with the list of products contained in the ITB. 6/ The absence of labels on the MAGIC samples also serves as grounds to disqualify each unmarked product. The other responsive bidders (WISE, WALKER, and STEWART) all complied with the requirements of Section 12 by providing and marking samples of each product bid. The second and third issues raised by the DEPARTMENT and WISE were that MAGIC's bid was nonresponsive because it failed to bid all the items contained in the ITB and the samples provided did not adequately comply with the size requirements of the ITB. As stated above, because MAGIC failed to mark its samples, it was difficult for the DEPARTMENT to match the samples provided with the item list. In some instances the DEPARTMENT, by a process of elimination, was forced to guess which MAGIC sample corresponded with an item on the item list. For example, the first item on the ITB list was "cheese flavored crackers" with a net weight of not less than 1-1/4 ounces. (Identified as Item 1-1). 7/ MAGIC specified in its bid that the product offered for the "cheese flavored crackers" weighed 1.5 ounces. Unfortunately, because the MAGIC samples were not marked, it was difficult to determine if MAGIC had complied with the bid size requirements relating to "cheese flavored crackers." It appears that MAGIC's bid was non-responsive as it relates to "cheese flavored crackers" because the product bid and found in the sample box, "Cheetos Cheesey Checkers," weighed only 1.0 ounce, less than the required 1-1/4 ounces provided by the ITB. In contrast to the MAGIC bid, WISE, STEWART, and WALKER all supplied samples that met or exceeded the requirements for "Cheese Flavored Crackers." A second example of non-compliance relates to Item 1-10, Pretzels. MAGIC failed to provide any samples for review by the DEPARTMENT in violation of section 12 of the Special Conditions of the ITB. A third example of non-compliance with the ITB relates to Item 2, "Beef Jerky." The ITB requires beef jerky with a specified weight of 1/4 ounce. A review of the sample submitted by MAGIC indicates that MAGIC was non- responsive to this item. Specifically, MAGIC provided samples for "Double Salami" (Exhibit 9-k). "Double Salami" is not beef jerky and it does not comply with the requirements of the ITB. A fourth example of non-compliance relates to Item 3, beef jerky in a single-serving size not less that .52 ounces in weight. MAGIC submitted "Beef and Cheese Sticks" (Exhibit 9-l). While the product exceeds the weight requirement of the ITB, "Beef and Cheese Sticks" are not beef jerky and do not comply with the requirements of the ITB. A fifth example of non-compliance related to Item 7, "saltine crackers." MAGIC is in non-compliance because it failed to provide a sample of the cracker. In addition, MAGIC failed to inform the DEPARTMENT of the size of the saltines being bid and therefore it was impossible for the DEPARTMENT to determine if MAGIC could comply with the minimum weight requirements contained in the bid. WISE bid on each of the eighteen items. Each product bid by WISE, and the corresponding sample that WISE submitted, equalled or exceeded the minimum requirements set forth in the ITB for that item. 8/

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered accepting the proposal filed by WISE, in response to ITB No. 9596-RDC-011. DONE and ENTERED this 30th day of September, 1996, at Tallahassee, Florida. WILLIAM A. BUZZETT, 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 30th day of September, 1996.

Florida Laws (2) 120.53120.57
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WALES INDUSTRIES, INC. vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 87-003317BID (1987)
Division of Administrative Hearings, Florida Number: 87-003317BID Latest Update: Oct. 14, 1987

Findings Of Fact Since 1984 Respondent Department of Health and Rehabilitative Services (hereinafter "the Department") has served as the distributing agency for United States Department of Agriculture surplus foods to be distributed to needy people in the State of Florida. These foods are butter, processed cheese, non-fat dry milk, cornmeal, rice, flour, and honey. The Department contracts with companies in the food storage and distribution business-to store the surplus food and distribute it to emergency feeding organizations. The emergency feeding organizations then distribute the food to needy persons. Each year the Department enters into contracts for various regions within the State. Petitioner Wales Industries, Inc. (hereinafter "Wales"), Intervenor Mid-Florida Freezer Warehouses, Ltd. (hereinafter "Mid-Florida"); and Gulf Cargo Services, Inc. (hereinafter "Gulf Cargo"); have all been awarded contracts with the Department over the years for storage and distribution of the surplus foods in the various regions of the State. On or about June 12, 1987, the Department issued an Invitation for Bid (hereinafter "IFB 87-1") which advised prospective bidders that sealed bids would be opened on July 10, 1987 for a contract for the storage and distribution of the surplus foods for the period of October 1, 1987 to September 30, 1988. A bidder under IFB 87-1 would be required to store the above-described commodities in dry, chilled, and frozen storage. The provider must also be able to ship the commodities under dry, chilled, and frozen conditions to emergency feeding organizations throughout the state. The bid evaluation criteria set forth in Paragraph E of IFB 87-1 provide, in part, as follows: c. The bid will be awarded to the Bidder submitting the lowest delivered price per CWT for dry, cold, and frozen donated foods inclusive for each Region, combination of regions, or statewide as bid. The bid price for pick-up at the Provider's warehouse is informational, but is not a consideration in award of the bid. Paragraph numbered eight of the General Conditions of IFB 87-1 notifies actual or prospective bidders who dispute the reasonableness, necessity, or competitiveness of the terms and conditions therein or of the bid selection or contract award recommendation that they must file a protest within the time prescribed in section 120.53(5), Florida Statutes, or be deemed to have waived their right to do so. IFB 87-1 included an estimate of the number of cases and weights of commodities to be handled by a provider per region. This information was characterized as "History of 1986-1987 Cases and Pounds" but this characterization was amended to "Estimates of 1986-1987 Cases and Pounds" by letter of amendment dated June 18, 1987. IFB 87-1 provides elsewhere that these distribution rates are subject to change. By further letter of amendment dated June 23, 1987, the Department notified prospective bidders that bids based upon combinations of regions were acceptable, and revised bid sheets with blanks for the dollar bid for each of the three types of commodities were provided to prospective bidders with the letter of amendment. On June 26; 1987; the Department conducted a bidder's conference for IFB 87-1. Representatives from Wales and Mid-Florida attended the bidder's conference and asked questions of the Department's representatives concerning IFB 87-1. Wales, Mid-Florida, and Gulf Cargo (among others) submitted sealed bids by the deadline at 2:00 p.m., July 10, 1987. Gulf Cargo submitted a bid for Region I only. Wales submitted individual bids for each of Regions I through VI. Mid- Florida submitted individual bids for Regions II through VI and two bids combining various regions except for Region I. Gulf Cargo was awarded a contract for Region I, and Mid-Florida was awarded a contract based on its combined bid for Regions II through VI. The bid awards were announced on July 17, 1987. Wales' notice of intent to file formal written protest is dated July 23, 1987. Wales filed its formal written protest on July 31, 1987. The volume and type of surplus foods distributed through the program is solely dependent upon the commodities made available to the Department by the federal government. There is no guarantee that the State of Florida will receive any particular amount or mix of the commodities distributed through the program. Therefore, the data supplied by the Department to prospective bidders regarding the volume and type of surplus foods to be stored and distributed is based upon actual historical data and is the most accurate data available. Neither IFB 87-1 nor the contracts for previous years under this program guarantee the successful bidder any amount of revenue or any volume of goods to be handled. The method of bid evaluation that was set forth in IFB 87-1, which was emphasized at the bidder's conference, and which was memorialized in the Department's June 29, 1987 listing of questions and answers from the bidder's conference and sent to all prospective bidders was the same the Department would average the bid prices for each type of commodity, i.e., frozen, dry and chilled. The averaging method utilized results in the lowest cost accruing to Use State and actually resulted in a lower bid price for the 1987-88 contracts than the 1986-87 contracts. The actual cost to a provider of storing and transporting frozen, chilled, and dried commodities varies according to the facilities and equipment owned by each prospective bidder. The averaging method utilized by the Department for IFB 87-1 permits bidders to develop competitive bids based upon the bidder's individual costs, storage facilities and equipment; and the bidder's anticipation of the volumes and types of commodities likely to be received from the federal government. The information provided in IFB 87-1 as to drop sites for delivery by the providers was sufficient for prospective bidders to develop competitive bids. The requirement contained in IFB 87-1 that the provider would be responsible for providing off-loading facilities in Dade, Broward, and Duval counties did not prevent the formulation of competitive bids.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is, RECOMMENDED that a Final Order be entered dismissing the bid protest filed by Wales Industries Inc.; awarding the 1987-88 contract for Region I to Gulf Cargo Services, Inc.; and awarding the 1987-88 contract for Regions II-VI to Mid-Florida Freezer Warehouses Ltd. DONE and RECOMMENDED this 14th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3317BID The Department's proposed findings of fact numbered 1-3 and 7 have been adopted either verbatim or in substance in this Recommended Order. However, the Department's proposed findings of fact numbered 4-6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Mid-Florida's proposed findings of fact numbered 1-20 have been adopted either verbatim or in substance in this Recommended Order. Wales' proposed findings of fact numbered 1-4 and 9 have been adopted either verbatim or in substance in this Recommended Order. However, Wales' proposed findings of fact numbered 12-15 have been rejected as being contrary to the evidence in this cause; Wales' proposed finding of fact numbered 16 has been rejected as not being supported by the evidence in this cause; and Wales' proposed findings of fact numbered 5-8, 10, and 11 have been rejected as being subordinate to the issues under consideration herein. COPIES FURNISHED: Sam Powers Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Martin R. Dix Esquire Barnett Bank Building Suite 800 315 South Calhoun Street Tallahassee, Florida 32301 Robert Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32399-0700 Harold T. Bistline Esquire Building 1, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700

Florida Laws (2) 120.53120.57
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GLORIA J. EDWARDS vs SUNDANCE CARRIAGE CORPORATION, D/B/A DOLLAR RENT A CAR, 91-006394 (1991)
Division of Administrative Hearings, Florida Filed:Tampa, Florida Oct. 04, 1991 Number: 91-006394 Latest Update: Mar. 10, 1994

The Issue Whether or not Petitioner, Gloria J. Edwards, was unlawfully discriminated against by Respondent, Dollar Rent A Car, based on her race (Black) in violation of Title VII of the Civil Rights Act of 1964, as amended.

Findings Of Fact Petitioner, Gloria J. Edwards, a black female, during times material to September 3, 1990, was employed by Respondent, Sundance Carriage Corporation, d/b/a Dollar Rent A Car (Sundance) as a daily business report auditor in Tampa, Florida. On September 3, 1990, Sundance was terminated as a licensee by Dollar Systems and ceased operations as a Dollar Rent A Car licensee. On October 1, 1990, Scamp Auto Rental, Inc. obtained a license to engage in business as Dollar Rent A Car in several Florida locations including Tampa, from Dollar Systems, Incorporated. Petitioner, although a member of a protected class, failed to establish that she was unfairly assigned duties by Respondent; that she was unfairly denied either a pay raise or a promotion or that she was assigned a larger workload based on her race. Likewise, there was no showing that she was unlawfully placed on probation. Although Scamp hired some of Respondent, Sundance's former employees, Petitioner was not among those employees who was retained. Scamp is a corporation, unrelated to Sundance, with no common officers or directors. The license agreement between Sundance and Dollar Rent A Car System reveals that Sundance was licensed to use a plan or system known as the Dollar Rent A Car system in the conduct of its vehicle renting business. That agreement provides that Sundance is an independent contractor and is not the partner, co-venturer, agent or associate of Dollar Systems and that Sundance has no authority whatsoever to bind Dollar Systems to any of the obligations or responsibilities or to incur debts for, or on behalf of, Dollar Systems. At no time has Dollar Systems controlled, or had the right to control, the method or mode of operation of Sundance's business on a day-to-day basis. At no time during the performance of the license agreement has Dollar Systems held any property interests in the Sundance operation. Dollar System has not owned any of Sundance's stock. All trade names, service marks, and trademarks used in connection with the Dollar Rent A Car System have, at all times, remained the exclusive property of Dollar. Dollar Rent A Car Systems, Inc., has authorized Dollar Systems to license the use of the tradenames, service marks, and trademarks. Sundance was allowed the use of such items only in accordance with the license agreement. Dollar Systems has not shared in Sundance's profits or losses but instead Dollar Systems received, pursuant to the license agreement, an administrative fee from Sundance based on a percentage of Sundance's recorded gross time and mileage charges from rental of automobiles. This fee was paid by Sundance as a cost of doing business regardless of whether Sundance operated at a profit or loss or whenever Sundance received payment from a renter for any particular rental. Dollar Systems has not participated in, or had the right to participate in, the hiring, firing, or supervision of Sundance's personnel. At no time has Dollar Systems participated in, or had the right to participate in, determining the wages of the employee benefits provided to Sundance employees. Finally, Dollar Systems terminated Sundance's licenses on September 3, 1990. In view thereof, it is concluded that Scamp Auto Rental is not a successor of Sundance and cannot be held legally liable for alleged discriminatory actions of Sundance.

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 Petition for Relief filed herein. DONE and ENTERED this 4th day of August 1993 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of August, 1993. COPIES FURNISHED: Gloria J. Edwards P. O. Box 260751 Tampa, Florida 33685-0751 Margaret D. Mathews, Esquire Connie Harvey, Esquire Stagg, Hardy, Ferguson Murnaghan & Mathews P. O. Box 959 Tampa, Florida 33601-0959 William F. Flynn c/o Dollar Rent A Car 4707 W. Spruce Street Tampa, Florida 33607 Sharon Moultry Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149

Florida Laws (3) 120.57760.02760.10
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WAYNE BLACKWELL AND COMPANY, INC. vs. M. D. FORSYTHE CONSTRUCTION COMPANY AND DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 79-001486 (1979)
Division of Administrative Hearings, Florida Number: 79-001486 Latest Update: Apr. 11, 1980

Findings Of Fact As project architect under contract to HRS, Greenleaf/Telesca Planners, Engineers, Architects, Inc. (Greenleaf) prepared a project manual (manual). The manual invited contractors to bid on a contract for construction of the forensic services building at the South Florida State Hospital in Pembroke Pines, Florida, project No. HRS-0278. The manual contained specifications for a base contract covering construction of the building itself, and for four alternate additive bids, covering various equipment and furnishings. The first alternate called for installation of mess hall tables and seats. For the first alternate, the manual specified tables and seats manufactured by Folger Adam Company, their model number 522, or "upon prior approval" the equivalent. From the floor plan it is clear that 24 tables and corresponding seats would be required. The language of the manual describing alternate No. 1 presents no particular ambiguity or difficulty. The Folger Adam Company is well known in the construction business. Harold Wayne Blackwell, petitioner's president, used the manual in preparing Blackwell's bid for the contract. Blackwell bid on the base contract and on each of the four alternates. There are seven or eight contract hardware suppliers in Dade and Broward Counties, all of whom have access to Folger Adam Company products. Folger Adam Company does not have exclusive distributors. To determine the price of the tables, Mr. Blackwell telephoned several contract hardware suppliers, including Christensen Hardware Services, Inc. (Christensen). Christensen quoted Blackwell a price of ten thousand eight hundred dollars ($10,800.00) for twenty-four sets of Folger Adam model number 522 tables and seats. Blackwell submitted a bid of eleven thousand dollars ($11,000.00) on alternate No. 1. Forsythe bid on the base bid but did not bid on alternate No. 1, because Forsythe failed to obtain a quote on the tables and seats, before preparing its bid. Richard B. Solomon, Greenleaf's project manager for the forensic services building, opened the bids on March 20, 1979. As tabulated by Greenleaf, the bids were: Base Bid Alt. No. 1 Alt. No. 2 Alt. No. 3 Alt. No. 4 M.D. Forsythe Construction Co. $375,000 $ --- $50,842 $27,220 $33,020 Porfiri Construction Co. 406,200 7,000 45,534 25,315 44,130 Wayne Blackwell and Co., Inc. 397,735 11,000 47,000 25,000 35,000 Ed Ricke & Sons, Inc. 405,000 14,900 52,000 28,300 47,650 McKee Construction Co. 407,000 --- 45,000 28,000 --- L.G.H. Construction Corp. 524,176 18,014 43,464 24,712 35,048 Creswell Construction Co. 394,000 41,000 43,000 23,000 33,000 Petitioner's exhibit No. 2. On the base bid, Forsythe was lowest, Creswell Construction Company next lowest, and Blackwell third lowest. Among contractors who bid on the base bid and all alternates, Blackwell's combined bids were lowest for the base bid plus alternate No. 1, the base bid plus alternates Nos. 1 and 2, the base bid plus alternates Nos. 1, 2 and 3, and the base bid plus alternates Nos. 1, 2, 3 and 4. Mr. Solomon was aware of two telephone calls received by Greenleaf during the time for preparation of the bids, inquiring about the price of the tables and seats. In examining the bids, he noticed that two contractors had not bid on alternate No. 1, and that the base bids as well as the bids on alternates Nos. 2, 3 and 4 were "pretty tight" as compared to the range of bids on alternate No. 1. From looking at the bids on alternate No. 1, it was hard for Mr. Solomon to tell what a reasonable price for the tables and seats was. Mr. Solomon recommended to HRS that the bids on alternate No. 1 be thrown out. Charles Robert Yates, an architect employed by HRS, concurred in Mr. Solomon's recommendation. He was under the impression that funding for the project would not be available unless the contract was let before April 1, 1979. Mr. Yates could not recall such diversity among bids in his thirty-year career, yet he had no difficulty learning what the tables and chairs cost when he called architectural firms to find out. After the bids were opened, Blackwell promptly protested Forsythe's bid. Under the heading of alternates, the manual states: If the Base Bid is within the amount of funds available to finance the construction contract and the Owner wishes to accept alternate additive bids, then contract award will be made to that responsible Bidder submitting the low combined bid, consisting of the Base Bid plus alternate additive bids (applied in the numerical order in which they are listed in the Bid Form). Petitioner's exhibit No. 1, Paragraph B-9, Alternates. HRS wrote Blackwell on April 3, 1979, denying Blackwell's protest and stating, as reasons: M.D. Forsythe Construction Co., Inc. did not ignore Alternate No. 1, but completed that section of their bid by stating "No bids received on this item." Proposals for Alternate No. 1 ran the gamut for "No Bid" to prices extending from $7,000 to $41,000. The Department holds, as concurred in by the attached letter from our consultants, that there was confusion in the marketplace regarding the intent of Alternate No. 1, as attested to by the disparity among the proposals, and therefore we choose not to consider Alternate No. 1. Provisions for this deletion include Sections B-17, B-22 and B-24 of the Contract Documents. Petitioner's exhibit No. 3. HRS then awarded the base contract and additive alternates Nos. 2 and 3 to Forsythe, and gave orders to proceed with construction on May 7, 1979. After construction began, Mr. Solomon wrote Forsythe to inquire what Forsythe would charge to install the tables and seats called for by additive alternate No. 1. Forsythe eventually agreed to do it for eleven thousand dollars ($11,000.00), after first quoting a higher price. On August 1, 1979, Greenleaf prepared a change order at HRS' behest, directing Forsythe to install the tables and seats originally called for by additive alternate No. 1, at a price of eleven thousand dollars ($11,000.00). Other provisions of the manual relied on by the parties include the following: B-17 PREPARATION AND SUBMISSION OF BIDS Each Bidder shall copy the Proposal Form on his own letterhead, indicate his bid prices thereon in proper spaces, for the entire work and for alternates on which he bids. Any erasure or other correction in the proposal may be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternations, items not called for or irregularities of any kind may be rejected by the Owner. . . DISQUALIFICATION OF BIDS Any or all proposals will be rejected if there is reason to believe that collusion exists among the Bidders and no participants in such collusion will be considered in future proposals for the same work. Proposals in which the prices obviously are unbalanced will be rejected. Falsification of any entry made on the Contractor's bid proposal will be deemed a material irregularity and will be grounds, at the Owner's option, for rejection. REJECTION OF BIDS The Owner reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the proposal of a Bidder who is not in position to perform the contract. AWARD OF CONTRACT The contract will be awarded as soon as possible to the lowest qualified Bidder provided his bid is reasonable and it is in the best interest of the Owner to accept it. The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The lowest bidder will be determined by adding to the Base Bid such alternates, in numerical order, as available capital funds will allow. The Agreement will only be entered into with responsible contractors, found to be satisfactory by the Owner, qualified by experience, and in a financial position to do the work specified. Each Bidder shall, if so requested by the Owner, present additional evidence of his experience, qualifications, and ability to carry out the terms of the contract, including a financial statement. Petitioner's exhibit No. 1. At no time did Forsythe attempt to influence the award of the contract improperly. At the time of the final hearing, the project was approximately 95 percent complete.

Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, in the future, HRS adhere to the letter of language like that contained in paragraph B-9 of the manual whenever such language is used in an invitation for bids. DONE and ENTERED this 6th day of March, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Louis L. LaFontisee, Jr., Esquire 200 South East First Street, Suite 802 Miami, Florida 33131 Leonard Helfand, Esquire 401 North West 2nd Avenue Room 1040 Miami, Florida 33128 Richard Morgentaler, Esquire 1600 North East Miami Gardens Drive North Miami Beach, Florida 33179 =================================================================

Florida Laws (3) 120.54120.57120.68
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DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD vs RAFAEL PEREZ, 07-002500PL (2007)
Division of Administrative Hearings, Florida Filed:Miami, Florida Jun. 05, 2007 Number: 07-002500PL Latest Update: Nov. 12, 2019

The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

Findings Of Fact Respondent is a registered mechanical contractor, having been issued license number RM 14016953 by the Florida Construction Industry Licensing Board. He is licensed to do business as PRT Cool Service, Inc., license number QB 45554. The Miami-Dade County Building Code Compliance Office (hereinafter "Compliance Office") is responsible for licensing construction contractors who work within Miami-Dade County, Florida. To engage in a particular type of construction trade within Miami-Dade County, an individual is required to apply for and be issued a competency card from the Compliance Office. That Office has employees who can assist applicants with questions concerning the application and application process, including persons who speak Spanish. The Compliance Office licenses approximately 40 to 50 types of construction trades. These trades fall into two categories: "tested" or "non-tested." For trades within the tested category, an applicant must take and pass a written examination in order to be licensed. The refrigeration and air conditioning mechanical contractor trade falls within the tested category, and an applicant for licensure in that trade in Miami-Dade County must take an examination as part of the application process. The Code of Miami-Dade County does not permit substituting experience for that examination. To obtain a competency card in the refrigeration and air conditioning trade in Miami-Dade County, an applicant must first submit a completed application, a $315 application fee, personal identification, letters of experience, and a W-2 form to the Compliance Office. Upon receipt of those documents, the Compliance Office creates a physical file for the applicant, and the application is reviewed for deficiencies. If none are found, the applicant will be approved to take the examination. The Compliance Office then places the applicant's name on a roster as being exam-eligible, which roster is then sent to a private exam school to administer the examination. The Compliance Office also sends the applicant a letter advising that the applicant can take the exam and providing the applicant with contact information for the private school. The applicant is required to contact the private exam school to schedule and then sit for the exam. If the applicant passes the exam, the private exam school notifies both the applicant and the Compliance Office by letter. Upon being notified that an applicant has passed the exam, the Compliance Office then contacts the applicant to determine if the applicant chooses to work in an individual capacity or as a business. If as a business, the applicant is required to fill out a business application, provide the necessary forms to identify the business, and pay a $250 fee. The Compliance Office then reviews the business application and supporting documents and obtains a credit report directly from a reporting company. If the business application is approved, the Compliance Office notifies the applicant by letter and instructs the applicant to provide proof of liability insurance and worker's compensation coverage. Upon receipt of that proof, the Compliance Office issues to the applicant a competency card. In approximately August 2004, Respondent contacted the Compliance Office by telephone and requested an application for a refrigeration and air conditioning competency card and a State of Florida application for a registered mechanical contractor license. In that conversation he made specific inquiry regarding the examination he knew he was required to take to obtain the competency card. Respondent made no further contact with the Compliance Office concerning the application or the application process for the refrigeration and air conditioning competency card. Rather, Respondent went to a private business which advertised in Spanish that it could obtain licenses and insurance and gave an individual named Daniel the application forms he received from the Compliance Office for both the County's competency card and the State's registration thereafter. Daniel requested Respondent to bring him various financial documents and asked Respondent about his work experience. He did not translate the questions on the application forms for Respondent or go over the information in those forms. Daniel completed the applications. He did not go through the questions and answers with Respondent, but simply gave Respondent the documents to sign. Respondent did not inquire as to the contents of the applications or the information provided. He merely signed the applications and gave Daniel $2,000 in cash, the form of payment required by Daniel. When Daniel informed Respondent his competency card was ready, Respondent picked it up from Daniel. Respondent never submitted his application for the refrigeration and air conditioning competency card to the Compliance Office. Respondent never took the required examination for the refrigeration and air conditioning competency card. The Compliance Office has no record of Respondent applying for a competency card. The competency card Respondent received from Daniel was not issued by the Compliance Office. Respondent's refrigeration and air conditioning competency card is fraudulent. Following receipt of the competency card from Daniel, Respondent never contacted the Compliance Office to verify that he had satisfied all the requirements for the issuance of the card or that the card was valid. Rather, he submitted to Petitioner Department of Business and Professional Regulation his application for registration of that competency card in December 2005. A registration issued by the Department to an individual formally registers the competency card issued to that individual by a local government licensing board. An individual must be issued a registration by the Department before engaging in contracting services in the jurisdiction where that individual received a competency card. A registration will not be issued by the Department without a valid competency card from a local government licensing board. The competency card informs the Department that the individual has demonstrated the appropriate competence to engage in a particular construction trade as deemed by the local government licensing board through examination, experience, or a combination of those two requirements. A copy of an individual's competency card from a local government licensing board must be included with an application for registration. The Department has personnel who can assist applicants with questions concerning the application and registration process, including personnel who can assist persons who speak Spanish. Along with his application for registration, Respondent submitted a copy of his fraudulent refrigeration and air conditioning competency card. Included within the application for registration is a statement by the applicant attesting that the applicant has successfully completed the requisite education and experience. Because of the number of local government licensing boards in Florida and the varying requirements each imposes on the issuance of a competency card, the applicant has the burden of verifying his or her successful completion of all the requirements for the particular construction trade with the particular local government licensing board. The attest statement must be acknowledged, read, signed, and notarized. Respondent signed the attest statement, and his signature was notarized. At the time the Department received and processed Respondent's application, the Department had no knowledge that Respondent's refrigeration and air conditioning competency card was fraudulent and not issued by the Compliance Office. The Department, therefore, approved Respondent's application, and Respondent was issued a registration. Had the Department known Respondent's competency card was fraudulent, the Department would not have approved his registration. The total investigative costs, excluding costs associated with any attorney's time, incurred by the Department in this case are $32.66.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking Respondent's registration, imposing an administrative fine of $5,000, and requiring Respondent to pay the Department's costs in the amount of $32.66 by a date certain. DONE AND ENTERED this 6th day of September, 2007, in Tallahassee, Leon County, Florida. S 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 6th day of September, 2007. COPIES FURNISHED: P. Brian Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Yehuda D. Bruck, Esquire Law Offices of Schwartz & Associates 200 Southeast 1st Street Miami, Florida 33131 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (6) 120.569120.57120.68455.227489.127489.129 Florida Administrative Code (3) 61G4-15.00861G4-17.00161G4-17.002
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STIMSONITE CORPORATION vs DEPARTMENT OF MANAGEMENT SERVICES, 93-004191BID (1993)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jul. 27, 1993 Number: 93-004191BID Latest Update: Jan. 05, 1994

Findings Of Fact On April 16, 1993, the Department of Management Services (DMS) issued an Invitation to Bid (ITB) No. 158-550-590A seeking to enter into a 12 month contract for the purchase of sign materials, including reflective sheeting and other related materials used in construction of road signs. The ITB projects an anticipated expenditure for the materials of approximately $2.3 million. The DMS issued the ITB on behalf of the Department of Transportation (DOT) and county and municipal governments who purchase materials under the contract. Materials included in a bid are required to be listed on the Florida Department of Transportation (DOT) Qualified Products List (QPL). The QPL is a compilation of vendor products which have been tested and determined acceptable by the DOT pursuant to the requirements of the Florida DOT Standard Specifications for Road and Bridge Construction. On page 24 of the ITB, the DMS sets forth the specifications for commodity number 550-590-350-0100, the material at issue in this proceeding. Vendors were directed to supply a manufacturer or brand name and a product number/series number. The specification for the material is as follows: Sheeting, reflective Type IIIA, or Type IIIC sizes 1" through 48" by 50 yds, with a precoated pressure sensitive adhesive backing (Class I). Primer Not Required. Sheeting (Both Types) shall be available in no less than the following colors: blue, brown, green, orange, yellow, and silver-white. Type III sheeting is a highly reflective sheeting used as a background for road signs, onto which are applied either inked or pre-cut letters and symbols. Type IIIA sheeting is manufactured by 3M. Type IIIC sheeting is manufactured by Stimsonite. In response to the ITB, Stimsonite, 3M, and Vulcan, Inc. timely submitted bids. The bids were opened by the DMS on May 21, 1993. The Vulcan bid was rejected as non-responsive and is not at issue in this proceeding. An apparently cursory review determined that the 3M and Stimsonite bids were responsive. The 3M bid proposal for the Type III sheeting commodity was $3.74 per square foot for 3M Scotchlite Brand Series 3870 roll sheeting. The Stimsonite bid proposal for the Type III sheeting commodity was $3.74002 per square foot for Stimsonite Series 4200 roll sheeting. The DMS ITB required that bidding vendors submit a computer diskette which includes a Manufacturer's or Dealer's Published Price Lists, Authorized Dealer's List, and Authorized Service Center Locations for specified items, including the reflective sheeting at issue in this proceeding. The DMS instituted the diskette requirement to avoid reliance on printed catalog materials submitted by vendors which were apparently often confusing. On June 14, 1993, the DMS posted a bid tabulation indicating that the 3M bid was rejected as non-responsive. Based on obsolete information, the DOT initially determined that the 3M product bid was cutout lettering rather than reflective sheeting. On June 22, 1993, 3M filed a formal written protest challenging the DMS determination that the bid was non-responsive. Neither the DMS nor the DOT reviewed the 3M computer diskette material prior to determining that the 3M material bid was not responsive. The DOT determination was erroneous. The DMS review of the computer diskette material submitted by 3M revealed that the material bid was indeed roll sheeting and was included on the DOT QPL. On June 29, 1993, the DMS posted a revised bid tabulation identifying 3M as the low responsive bidder. Stimsonite timely protested the DMS revised posting. At an informal meeting held in an attempt to resolve the protest, DMS first became aware that the DOT was in need of two forms of reflective sheeting. Reflective sheeting is produced and sold in rolls known as roll sheeting. Reflective sheeting is also produced with perforations punched along the outside edges of the material. This material is known as perforated sheeting and is used by DOT in sign machines to produce cutout letters and symbols which are applied to the reflective sheeting. There is no difference between roll sheeting and perforated sheeting but for the holes punched along the outside edge of the perforated form. The DOT needs to be able to purchase perforated sheeting under the state contract. On July 26, 1993 Stimsonite filed an amended protest challenging the re-posting of the bids and the DMS intent to award the contract to 3M as lowest responsive bidder. On July 27, 1993, the Stimsonite protest was referred by the DMS to the Division of Administrative Hearings. On July 27, 1993, the DMS filed an answer to the Stimsonite protest wherein the DMS stated that the 3M bid was not responsive because the 3M bid was limited to non-perforated reflective sheeting. Apparently, at or around the time of the informal bid protest resolution meeting, the DMS became convinced that the language in the ITB required that perforated sheeting be available with no price differential from roll sheeting. The DMS position is based on the fact that the ITB makes no distinction between perforated sheeting and non-perforated sheeting. Otherwise stated, "sheeting is sheeting." Prior ITBs and state contracts fail to support the DMS position. The ITB language at issue in this proceeding is identical to that set forth in the previous ITB. Under the existing state contract between the state and 3M, perforated sheeting is not sold to the state at the roll sheeting contract price. Perforated sheeting is sold as an accessory commodity at a higher price. Nothing in the ITB at issue in this proceeding indicates that the DMS will alter its previous interpretation of ITB requirements. The ITB does not require perforated sheeting to be bid at the roll sheeting contract price. The ITB does not address the issue of perforation at all. At the time of the bid, 3M produced and routinely sold a perforated Type III reflective sheeting (Scotchlite Series 3860), however, the product bid (Scotchlite Series 3870) is non-perforated roll sheeting. There is no bid for perforated sheeting set forth in the 3M proposal. At the time of the bid, Stimsonite did not routinely sell a perforated Type III reflective sheeting material. The Stimsonite bid does not indicate that Series 4200 includes perforated sheeting. After the bids were opened and the matter of perforated sheeting became relevant, a DMS official orally inquired as to whether Stimsonite Series 4200 included perforated sheeting. A Stimsonite official stated that it did. However, Stimsonite has not commonly sold perforated sheeting under the Series 4200 moniker. The greater weight of the evidence establishes that, at least at the time the bid was submitted, Series 4200 was non-perforated roll sheeting. There is no bid for perforated sheeting set forth in the Stimsonite proposal. Because the ITB fails to require that vendors supply bids on both roll sheeting and perforated sheeting, and because the DOT sign shop and potentially other buyers have need for perforated sheeting material, the ITB fails to address the actual needs of the DOT and other purchasers. In relevant part, ITB General Condition Paragraph 9 provides as follows: As the best interest of the State may require, the right is reserved to make award(s) by individual item, group of items, all or none, or a combination thereof; on a geographical district basis and/or on a statewide basis with one or more suppliers; to reject any and all bids or waive any minor irregularity or technicality in bids received. 3M Series 3870 is the material currently being purchased as roll reflective sheeting under the existing state contract. The DMS reviewed the 3M bid to determine whether it included a bid for perforated reflective sheeting in its proposal. 3M did not include a specific perforated sheeting bid in its proposal, however, as previously set forth, the ITB failed to require that vendors submit a bid for perforated sheeting. The 3M bid proposal met the requirements of the ITB. There has been no review of the Stimsonite bid to determine responsiveness. The DMS asserted that because the DOT did not object to the Stimsonite bid, any irregularities were considered minor. The evidence fails to establish that either the DOT or DMS reviewed the Stimsonite bid for responsiveness. Stimsonite's bid proposal lacks sufficient detail to permit a determination that the complete range of products required by the ITB are available. On page 24 of the ITB, the DMS sets forth the specifications for commodity number 550-590-370-0000, accessory items for use with commodity number 550-590-350-0100 (the Type III reflective sheeting at issue in this proceeding.) The specification for the material is as follows: Accessories for use with the above commodity number 550-590-350-0100 (reflective sheeting Type IIIA, or Type IIIC colors, inks, clears, thinners, cut-out letters, numbers, symbols, radius corners, non-reflective films, and other miscellaneous items shall be available from the sheeting contractor and shall be compatible with the sheeting bid. (Materials List Shall Be Furnished With the Bid With Net Delivered Prices). 550-590-370-0550 Sign Letters 550-590-370-0560 Sign Numbers 550-590-370-0590 Inks, Colors, Clears 550-590-370-0604 Thinners 550-590-370-0950 Non-Reflective Film Stimsonite does not manufacture non-reflective film and did not include a non-reflective film. The paragraph clearly states that non-reflective film is one of the items which "shall be available from the sheeting contractor and shall be compatible with the sheeting bid." The word "shall" means that the vendor must make such items available. The DOT sign shop routinely uses non-reflective film in sign production.

Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Management Services enter a Final Order REJECTING all bids. DONE and RECOMMENDED this 13th day of October, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4191BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6. Rejected, not supported by the greater weight of credible evidence. 8-9. Rejected, unnecessary. Rejected, not supported by the greater weight of credible evidence. The responsiveness of one vendors bid is not based on the availability of materials from a second vendor. Rejected, not supported by the greater weight of credible evidence. There is no language in item 7 which indicates that only accessories offered by bidders be listed on the diskette. Interpretation to the contrary is unsupported by the ITB. 14. Rejected, unnecessary. Statement "...it came to light that sheeting called for by the specification included both perforated and nonperforated..." is rejected as not supported by the greater weight of evidence. Accepted, however contrary to the implication, it should be noted that the 3M perforated sheeting is currently billed to and paid for by the state as an accessory, not at the roll sheeting price. Rejected, unnecessary. Specification does not require provision of perforated sheeting at roll sheeting price. Rejected, subordinate. 26. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-6. Rejected, not supported by the greater weight of the evidence, which establishes that computer diskette data was required, not for all commodities in the ITB, but only for items 1, 2, 7, and 8. 7, 10-14. Rejected, subordinate. 15-16. Rejected, contrary to greater weight of the evidence which establishes that DMS was unaware of distinction between roll sheeting and perforated sheeting prior to this meeting. Stimsonite "confirmation" that it "shared DMS conception of roll sheeting" is not credible. Rejected, unnecessary. Rejected, subordinate. Rejected, unnecessary. 20-22. Rejected, unnecessary. A review of the diskette data required by the DMS apparently would have resolved the confusion. Rejected, not supported by the greater weight of the evidence. Given that computer diskette data was required, not for all commodities in the ITB, but only for items 1, 2, 7, and 8, it is incorrect to state that the failure to include an item on the diskette would preclude a buyer from ordering it. Rejected, unnecessary. Rejected, contrary to greater weight of the evidence which fails to establish that Stimsonite Series 4200 includes perforated roll sheeting. 28-29. Rejected, unnecessary. Intervenor The Intervenor's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 18. Rejected, unnecessary. 19-20. Rejected, cumulative. 26-27. Rejected, subordinate. The hearing is de novo. Rejected, unnecessary. Rejected in part as recitation of testimony. 31-33. Rejected, unnecessary. The offers to supply materials after bids are opened is likely an impermissible amendment of a bid document. The fact that such discussion was necessary is indicative of the lack of clarity on the part of DMS as to what the agency's needs were when letting the ITB. 38-39. Rejected, unnecessary. 40, 42-46. Rejected in part as recitation of testimony, unnecessary. 47-48. Rejected, argumentative. Rejected, cumulative. Rejected, contrary to the greater weight of the evidence which establishes that the 3M bid did not include perforated Type III sheeting. 52-58. Rejected, cumulative. 59-64. Rejected in part as recitation of testimony, cumulative, unnecessary. 65-70. Rejected, cumulative, unnecessary. 71. Rejected, contrary to greater weight of the credible evidence which establishes that in the previous year, 3M bid a series of Scotchlite Type III sheeting which included both perforated and nonperforated product, contrary to the bid in the instant case which was only nonperforated Type III sheeting. 73-77. Rejected, cumulative. 78-80. Rejected, argumentative. 81-82. Rejected, not supported by the greater weight of credible evidence. The agency is not required to waive defects. The requirement to provide the information on the computer diskette was not optional. Failure to comply mandates disqualification of a bid proposal. 83. Rejected, argumentative. 87. Rejected, argumentative. 88-95. Rejected, in part as recitation of testimony, cumulative, unnecessary. 96-97, 99. Rejected, cumulative, unnecessary. 103, 105-106. Rejected, conclusion of law. 107-111. Rejected, argumentative. Goes to credibility of agency determination as addressed herein. 112-116. Rejected, cumulative, unnecessary. 118. Rejected, conclusion of law. COPIES FURNISHED: William H. Lindner, Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 General Counsel Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 W. Robert Vezina, Esquire Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 Cindy Horne, Esquire Sylvan Strickland, Esquire Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, Florida 32399-0950 Geoffrey D. Smith, Esquire Jay O. Barber, Esquire Blank, Rigsby & Meenan, P.A. 204-B South Monroe Street Post Office Box 11068 Tallahassee, Florida 32302-3068

Florida Laws (2) 120.53120.57
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RICHARD BALLARD vs. THE SOUTHLAND CORPORATION-SEVEN ELEVEN STORES, 85-002754 (1985)
Division of Administrative Hearings, Florida Number: 85-002754 Latest Update: Jan. 10, 1986

Findings Of Fact The Southland Corporation is a corporation engaged in the operation of convenience food stores under the name "Seven Eleven Food Stores." Petitioner, Richard V. Ballard, was employed by Southland in March of 1984. Michael Jones, Supervisor of Southland, hired Ballard. Jones interviewed Ballard and reviewed his application prior to hiring him. At the time he interviewed Ballard, Jones noticed a gap on the application in Ballard's employment which he asked Ballard about. Ballard stated he had some operations on his arm and leg and that he had omitted a job with Huntley Jiffy Foods Stores where he had been terminated unfairly and had filed a handicap complaint against them. Jones asked him if he had left anything else out, to which Ballard replied no. Ballard had been previously employed part-time at Citgo, another convenience food store, and failed to reveal this on his application. He also failed to tell Jones about this previous employment when Jones questioned him prior to his being hired by Southland. Southland was aware that Ballard was handicapped when he was hired. In fact, Jones had a discussion with Ballard at the time he was hired about any possible limitations which would have an affect on his job performance. Ballard has cerebral palsy. Jones hired Ballard knowing that he was handicapped and knowing that he had filed a handicap complaint against Huntley Jiffy Foods. After he was employed, Ballard received two raises including a $0.20 merit increase, which was the highest increase for which he was eligible, and the increase was approved by Jones on May 25, 1984, effective May 11, 1984. Subsequent to his receiving the merit increase, Ballard was counseled for several incidents involving his job performance. On September 14, 1984, Jones became aware through a conversation with a former supervisor of Ballard's that Ballard had worked for Citgo previous to his working with Southland. Jones double-checked Ballard's application and found that he had omitted his employment with Citgo from his application and he had failed to disclose the Citgo employment to Jones during the interview. Ballard was suspended on September 14, 1984, pending a meeting with Jones on September 17, 1984. At the meeting on September 17, 1984, Ballard admitted that he had worked for Citgo and that he had omitted it from his application because he did not think he would be hired if he put it on his application because he would have been terminated from two previous jobs. Ballard had omitted two previous jobs in his application, Huntley Jiffy Foods and Citgo. The application which Ballard filled out contained the statement "I certify the facts set forth in my application for employment are true and complete. I understand that, if employed, false statements on this application shall be considered sufficient cause for dismissal." Southland has a policy prohibiting falsification of applications and providing for termination of employees for falsifying their applications. Southland had terminated employees other than Ballard for falsification of applications. While Ballard alleges that he was terminated because he had filed a discrimination complaint against Citgo, in fact, Jones had no knowledge at the time he terminated Ballard that Ballard had filed a charge against Citgo. Southland did not learn that Ballard had filed a discrimination charge against Citgo until sometime in October, 1984, after it terminated Ballard. Southland learned of the charge against Citgo from the documents Ballard filed charging retaliation in this case. Southland purchased a part of City Service (Citgo) in September, 1983, including the Kwik Mart facilities where Petitioner had worked previously. However, it did not incur liability for charges filed against City Service. The discrimination charge filed by Ballard against City Service is being defended by City Service. Southland is not involved in the that matter in any way.

Florida Laws (2) 120.57760.10
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SCHOOL FOOD SERVICE SYSTEMS, INC. vs BROWARD COUNTY SCHOOL BOARD, 01-000612BID (2001)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Feb. 13, 2001 Number: 01-000612BID Latest Update: Jul. 30, 2001

The Issue The issue in this bid protest is whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly when it decided to reject all of the bids it had received on a contract to deliver food and supplies to the public school cafeterias in Broward County.

Findings Of Fact The evidence presented at final hearing established the facts that follow. The Invitation to Bid On September 28, 2000, the Board issued ITB 21-076B for procurement of “Mainline Foods and Supplies for Cafeterias.” Through this solicitation the Board sought to let a four-year contract, renewable for two additional one- year periods, pursuant to which the successful bidder would deliver food and supplies to the approximately 192 public school cafeterias in Broward County, Florida. Sysco is the incumbent supplier of foods and supplies for the Board’s cafeterias. The ITB listed and described the desired foods and supplies in two separate sections, Section 5.09 and Section 6.02. Bidders were required to bid on each of the 186 individual items listed in the Product Bid Sheets that comprise Section 5.09. In contrast, bidders were instructed not to quote prices for the 130 items listed in Section 6.02; rather, the ITB provided that “[t]he awardee, once selected, shall submit to the [Board] product costs and selling prices for items in Section 6.02.” This protest focuses on particular specifications of the Product Bid Sheets in Section 5.09 and is not concerned with Section 6.02. The Product Bid Sheets in Section 5.09 were composed of tables consisting of eight columns and, in total, 189 rows — one row for each item and three empty or "open" rows requiring no response. The first three columns, from left to right, set forth information that identified each item sought. At each row, Column 1 contained the “Sequence Number” that the Board had assigned to each product “for tracking purposes.” Column 2 in each row contained a description of the product to be purchased. So-called “approved brands” for each item were listed in Column 3. The ITB identified “approved brands” in several ways. The most specific identification was by brand name and product code or number, for example “Tony’s 78642.” This form of identification designated a particular manufacturer’s particular product. The term “approved branded product” will be used herein to refer to this type of specific product identification in Column 3. For many items, an approved brand was identified by manufacturer’s name only, without an accompanying product code, e.g. “Lykes ________.” The ITB instructed bidders that “[i]f a code number, name, or color is not listed by [the Board] along with an approved brand[,] the bidder shall enter the code by the brand in the space provided.” (ITB, Section 5.03.) In this Recommended Order, the term “brand-only approval” will denote a brand approval that lacked a specific product code. Finally, the ITB identified a large number of approved brands in Column 3 of Section 5.09 by the term “Distributor’s Choice,” meaning the distributor’s brand of choice. Bidders were instructed to “enter, in the space provided, the brand and code” when quoting a Distributor’s Choice. (ITB, Section 5.03.) For 84 of the 186 items listed in the Product Bid Sheets, the approved brands in Column 3 were identified exclusively as Distributor’s Choice.1 Thus, for nearly half of the Section 5.09 items, the bidder needed to select a brand and product that fit the specifications set forth in Column 2. For another 15 items, Column 3 contained brand-only approvals, meaning that the bidder was required to select an appropriate product from the approved manufacturer’s line. Brand-only approvals were combined with a Distributor’s Choice option in Column 3 for ten additional items. Consequently, there were 109 items — 59% of the total — on which the bidders were not given the option of bidding an approved branded product. Conversely, for 23 items Column 3 listed just one approved branded product, leaving the bidders no alternative but to bid on a particular manufacturer's particular product. Similarly, for 26 additional items, at least two approved branded products were listed, giving bidders a choice but not requiring them to compare the specifically designated brand- name products with the product descriptions in Column 2. In sum, bidders were obligated (and entitled) to bid an approved branded product on at least 49 items. There were 28 items for which Column 3 combined an approved branded product (or products) with either a brand- only approval (or approvals) or a Distributor’s Choice option.2 Accordingly, a bidder could, in theory, have quoted prices on as many as 77 approved branded products. At the other extreme, a bidder could have bid 137 items for which it had selected brand, product code, or both. Of the 186 items listed in Section 5.09, four are at the heart of the instant dispute. Ignoring for present purposes the sequences above and below the at-issue items, these four were described as follows in the first three columns of the Product Bid Sheets:3 1 SEQ NO. 2 PRODUCT DESCRIPTION 3 APPROVED BRANDS 1009 Breakfast Pizza (F). Crust topped with cheese, gravy, scrambled eggs and bacon. Minimum size 3 oz. to meet 1 meat/meat alternate plus 1 bread serving. CN Label. Tony’s 63564 Nardone’s 80MSA-100 Size of portion oz. 1036 Pizza, French Bread, Southland Bagel Pepperoni (F): 50-50 8953S Mozzarella blend. Minimum Prestige 30215 5.45 oz. to meet 2 oz. Nordone’s _________ meat/meat alternative and 2 KT Kitchen ________ bread servings. CN label. Size portion oz. 1037 Pizza, Mexican Style (F). Tony’s 63669 Minimum 5 ounces to meet 2 Nordone’s 100MA oz. meat/meat alternate and 1 KT Kitchens 01476 ½ bread serving. With or w/o VPP. CN label. Size portion oz. 2010 Pancake and Sausage (F) Pancake batter around a link sausage on a stick. 2.5 oz. State Fair 70601 Leon’s 28002 Foster Farms 96113 Minimum weight to meet 1 oz. meat/meat alternative and 1 bread serving. CN Label. Size of portion: oz. Other provisions of the ITB are relevant to this protest as well. Section 7 of the General Conditions of the ITB stated in pertinent part as follows: AWARDS: In the best interest of the School Board, the Board reserves the right to withdraw this bid at any time prior to the time and date specified for the bid opening; to reject any and all bids and to waive any irregularity in bids received; to accept any items or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets shall be noted “BID IS FOR SPECIFIED QUANTITY ONLY.” All awards made as a result of this bid shall conform to applicable Florida Statutes. Section 1.03 of the ITB’s Special Conditions stated in pertinent part as follows: AWARD: A contract shall be awarded IN ITS ENTIRETY to the lowest responsive, responsible bidder (See Section 4.01) with the lowest initial product cost plus fixed fee and meeting all specifications terms and conditions of the bid. It is necessary to bid on every item on the Product Bid Sheets (Section 5.09) in order to have your bid considered for award. Product costs shall be stated in the spaces provided in the Product Bid Sheets (Section 5.09). All items shall have an individual cost. Failure to state the individual cost for an item shall result in disqualification of bid submitted. Bidder shall carefully consider each item for conformance to specifications. Any item that does not meet the specifications shall be disqualified. Section 1.10 of the ITB stated as follows: INTERPRETATIONS: Any questions concerning any condition or requirement of this bid shall be received in the Purchasing Department in writing on or before October 11, 2000. Submit all questions to the attention of the individual stated in Section 1.37 [sic] of this Bid. If necessary, an Addendum shall be issued. Any verbal or written information which is obtained other than by information in this bid document or by Addenda shall not be binding on the School Board. Section 1.12 of the ITB stated as follows: BRAND STANDARDIZATION: The specified brands and product numbers listed on the Product Bid Sheets have been approved by SBBC Food and Nutrition Services Department and bids shall be accepted only on these approved items, except where “Distributor’s Choice” is indicated. If a bidder wishes to have an item placed on this approved list for future bidding, the bidder shall furnish Food and Nutrition Services Department samples of the item for testing purposes. If approved, the Food and Nutrition Services Department shall include the new item on the future list of approved items. In the event that any approved item supplied under this bid does not prove satisfactory, that item shall be removed from the approved list until such time as correction is made to the satisfaction of the Food and Nutrition Services Department. Section 1.13 of the ITB stated as follows: PRODUCT NUMBER CORRECTIONS: If the product number for the brand specified on the Product Bid Sheets is: a) no longer available and has been replaced with a new updated number with new specifications, the bidder should submit complete descriptive literature on the new product number; or b) incorrect, the corrected product number should be noted on the Product Bid Sheets, in the space provided. Section 1.35 of the ITB stated as follows: INFORMATION: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mr. Charles High, Purchasing Agent, Purchasing Department, (954) 765-6107 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mr. High nor any employee of [the Board] is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Questions should be submitted in accordance with Special Condition 1.10. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. Section 2.03 of the ITB stated as follows: ADDING AND DELETING ITEMS: Food and non- food items utilized by SBBC Food and Nutrition Services Department may be subsequently added, deleted or transferred from or to the lists in Sections 5.09 and 6.0, individually or in groups, at the discretion of SBBC Food and Nutrition Services Department Section 5.02 of the ITB provided in pertinent part as follows: COLUMN 2: (Product Description) This column provides bidder with descriptions of the products to be purchased, including portion or serving sizes or grades and standards, as may be applicable. Bidders should fill in the information wherever indicated on portion, serving size, etc., and provide manufacturers’ certificates of grades or compliance whenever “CR” is shown. If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. [W]hen evaluating bids, [staff] may request that a bidder furnish, within three days of request, further confirmations of grades and standards, copies of specification sheets, and other product data, as may be required. (Underlining supplied). For ease of reference, the underlined sentence above — which will prove pivotal — will be called the "Reconciliation Clause" in this Recommended Order. Section 5.03 of the ITB stated in pertinent part as follows: COLUMN 3: (Approved Brands*) Prior to acceptance of a bid, all bid brands are subject to review by SBBC Food and Nutrition Services Department for compliance with the bid product requirements. If a code number, name, or color is not listed by SBBC along with an approved brand; the bidder shall enter the code by the brand in the space provided. Whenever quoting a “Distributor’s Choice”, a bidder shall enter, in the space provided, the brand and code. Whenever an approved brand, other than “Distributor’s Choice”, is listed, the bidder should indicate in Column 3 the brand bidding, (circle the brand). IMPORTANT: Some of the codes listed may be obsolete or incorrect, in which case the bidder is to enter the correct code. After award, SBBC may request the awardee to obtain prices and samples for brands and codes not listed. The decision as to whether a product does or does not meet the requirements of Column 2 is at the discretion of SBBC. A bidder may be requested, prior to bid award, to furnish acceptable confirmation from a packer that a product meets the requirements set forth in Column 2. Section 5.11 of the ITB stated in pertinent part as follows: CN Label: When a product is CN (Child Nutrition) labeled, it is “certified” by the packer to conform to the nutritional requirements of the USDA Food and Nutrition Service (FNS). The label shows the contribution made by a given amount of product toward meal requirements. When CN label is noted in Column 2 of the Product Bid Sheets, it is understood that the CN label must be in place for the product to be bid. Particular Responses to the Invitation to Bid A. Sequence No. 1009 – Breakfast Pizza At Sequence No. 1009, Column 3 of the Product Bid Sheet contained two approved branded products: Tony’s 63904 and Nardone’s 80MSA-100. School Food quoted a price of $28,500 on the specifically approved Nardone’s product. In preparing its bid, Sysco obtained a product description from Nardone Bros. Baking Co. Inc. ("Nardone") for its 80MSA-100 product. Sysco believed that Nardone’s 80MSA- 100 failed to meet the product description set forth in Column 2 and therefore offered the other approved branded product, Tony’s 63564, at a price of $33,000. A third bidder, Mutual Wholesale Co. ("Mutual Wholesale"), offered to provide the approved Tony’s product at a price of $33,012.00. Sequence No. 1036 – French Bread Pepperoni Pizza The product description in Column 2 of the item listed at Sequence No. 1036 required that a CN label be in place for a product to be bid. A CN label signifies compliance with certain U.S. Department of Agriculture guidelines. The Board must obey these guidelines to obtain reimbursement for its food services program from federal funding sources. School Food offered the Prestige 30215 approved branded product in its response to Sequence No. 1036 at a price of $30,750. In preparing its response to the ITB, Sysco learned that the Prestige 30215 approved branded product had been submitted for CN label approval but lacked that approval at the time of bidding. Perceiving a conflict between the product description in Column 2 and the approved branded product in Column 3, Sysco concluded that it could not quote a price for Prestige 30215. Instead, Sysco offered to provide another approved brand, KT Kitchen’s 01093, at a cost to the Board of $36,397.50. Like School Food, Mutual Wholesale bid on the Prestige 30215 brand name product, quoting a price of $30,000. As of November 29, 2000, the approved branded product, Prestige 30215, had obtained CN approval from the U.S. Department of Agriculture. Sequence No. 1037 – Mexican-Style Pizza In its response to Sequence No. 1037, School Food offered an approved branded product, Nardone's 100MA, quoting a price of $206,620. During its bid preparation, Sysco learned that Nardone used another code for this product — namely, "96MCSA." Sysco believed that it could not bid on "Nardone’s 100MA," even though it was an approved branded product. Thus, in its bid Sysco offered to provide another approved branded product, Tony's 63669, at a price to the Board of $229,800. In its response to Sequence No. 1037, Mutual Wholesale quoted a price of $214,020 for yet another approved branded product, KT Kitchen’s 01476. "Nardone's 100MA" is an actual product code used internally by Nardone to denote an actual, available product that is referred to externally (or "on the street") as "Nardone's 96MCSA." In other words, "Nardone's 100MA" and "Nardone's 96MCSA" refer to the same product. Sequence No. 2010 – Pancake and Sausage In response to Sequence No. 2010, School Food offered to provide an approved branded product, Leon’s 28002, at a cost to the Board of $14,858. Sysco discovered through its bid preparation research that there might be a conflict between the product description in Column 2 of Sequence 2010 and the approved Leon’s 28002 brand name product, which was unambiguously designated in Column 3, because Leon’s 28002 consisted of a "frankfurter" wrapped in a pancake, and Sysco did not consider a "frankfurter" to be a "link sausage."4 As the Board has conceded, unless a bidder knew the products well or made a comparison of the approved branded products to the product description in Column 2, it would not have perceived the possible conflict between that description and the approved Leon’s 28002 brand name product listed in Column 3. Around October 20, 2000, Sysco notified the Board of its concern regarding Sequence No. 2010. In so doing, however, Sysco failed to comply with Section 1.10 of the ITB, which required that questions about the bid specifications be submitted in writing on or before October 11, 2000. In violation of Section 1.10, a Sysco employee named Elaine Blaine, who was responsible for preparing Sysco's bid, left a telephone message with the Board's Purchasing Agent, Charles High, inquiring about Leon's 28002 and letting him know that, in Sysco's opinion, this approved branded product did not match the description in Column 2 of Sequence No. 2010. Mr. High returned Ms. Blaine's phone call on or around October 24, 2000, leaving a message on her voice mail to the effect that Leon's 28002 was not the correct item and advising that another brand name product, Leon's 28012, should be bid in its place. As Section 1.35 of the ITB made plain, however, Mr. High had no authority whatsoever to render an opinion such as this. Although Mr. High's communication with Ms. Blaine was improper, it had no effect on the competitive process. Clearly, Sysco could not reasonably have relied on Mr. High's unauthorized opinion, and anyway it did not do so. Thus, in short, while Mr. High's irregular contact with Ms. Blaine cannot be condoned, his ex parte advice to Sysco fortunately conferred no competitive advantage on any bidder and hence was immaterial. In the end, Sysco offered another approved branded product, State Fair 70601, in lieu of Leon's 28002, quoting a price of $20,111. Mutual Wholesale also bid on State Fair 70601, quoting a price of $20,119.50. Issuance of Addenda and Submission of Bids The Board issued two addenda to the ITB. Addendum No. 1, among other things, inserted the code number for the approved KT Kitchen’s brand name product listed in Column 3 for Sequence No. 1036, and it also changed the approved Foster Farms branded product listed in Sequence No. 2010. The addenda made no other changes to either Sequence Nos. 1009, 1036, 1037, or 2010. On October 31, 2000, the Board opened the four bids that it had received in response to the ITB. Bids were submitted by Big Bamboo, Inc., Mutual Wholesale, Sysco, and School Food. Big Bamboo, Inc. failed to submit a complete proposal and thus its bid was disqualified as non-responsive. The remaining bids, which were determined to be responsive, offered, respectively, the following total annual contract prices: Mutual Wholesale $9,757,284.86 Sysco $9,656,770.21 School Food $9,263,170.42 Accordingly, School Food was the lowest bidder, its bottom line beating the closest competitor by nearly $400,000 per year. On November 9, 2000, the Board's Purchasing Department posted its recommendation that the contract be awarded to School Food. The Sysco Protest of the Recommended Award On November 13, 2000, Sysco timely filed a notice of intent to protest the recommended award to School Food. Sysco timely filed its formal written protest with the Board on November 22, 2000. Pursuant to rule, a Bid Protest Committee comprised of three administrators is required to meet with a bid protester in accordance with Section 120.57(3)(d), Florida Statutes, to attempt a resolution of the protest by mutual agreement. By rule, the Bid Protest Committee has been delegated the agency’s authority to perform this function. Consequently, pursuant to School Board Policy 3320 and Section 120.57(3)(d), Florida Statutes, a Bid Protest Committee convened on December 1, 2000, in an attempt to mutually resolve any disputed issues arising out of Sysco's protest. Despite the fact that the thrust of Sysco's protest was an attack on the responsiveness of School Food's bid, School Food was not invited to attend the December 1, 2000, meeting of the Bid Protest Committee, which apparently was not conducted as a public meeting. A court reporter was present, however, and the transcript of the committee's December 1, 2000, meeting is in evidence. The Bid Protest Committee restricted its review of the procurement to consideration of whether the ITB suffered from defective specifications in Sequence Nos. 1009, 1036, 1037, and 2010, even though Sysco’s protest had raised broader issues concerning the responsiveness of School Food's bid. At the December 1, 2000, meeting of the Bid Protest Committee, a Board employee named Raymond Papa, whose title is Supervisor of Field Services for Food and Nutrition Service, made the following representations concerning the sequence numbers in question: 1009 (Breakfast Pizza). Mr. Papa claimed to have erred by listing Nardone's 80MSA-100 in Column 3 of Sequence No. 1009. This approved branded product, Mr. Papa told the committee, should have been identified in Column 3 of Sequence No. 1008, which is also a breakfast pizza but has a different product description. 1036 (French Bread Pepperoni Pizza). Mr. Papa informed the committee that Prestige 30215 was approved by the U.S. Department of Agriculture but did not have a CN label "at this time." 1037 (Mexican Style Pizza). Mr. Papa advised the committee that there seemed to be some confusion arising from the ITB's use, in Column 3 of Sequence No. 1037, of the Nardone's product code 100MA, which was the manufacturer's internal code for the approved branded product, instead of the more common "street number" (96MCSA) used in the company's literature. Mr. Papa further explained: "Apparently that code [referring to 100MA] would have given me the right product" — in fact, it would have, see Paragraph 33 above — "but it needs more clarification on my part." 2010 (Pancake and Sausage). Mr. Papa pointed out the purported conflict between the product description in Column 2 of Sequence 2010 and the approved Leon's 28002 brand name product identified in Column 3. He claimed to have been seeking a pancake with a sausage inside, not a frankfurter, asserting that the two meat products were substantially different. The Board’s counsel informed the committee that the specifications for Sequence Nos. 1009, 1036, 1037, and 2010 had created sufficient confusion to adversely affect the competition. He urged the committee to remedy this purported confusion by voting to reject all bids so that the contract could be re-advertised with revised specifications. The committee was not asked to consider the Reconciliation Clause of Section 5.02 of the ITB. The three members did not discuss this provision. It is reasonable to infer, and the trier of fact so finds, that the committee paid no attention to the Reconciliation Clause in weighing the merits of staff's recommendation to reject all bids. With little discussion, the three-member Bid Protest Committee voted unanimously to rescind the recommendation to award School Food the contract and to reject all bids on the ground that the specifications were defective and hence that revisions were needed to "level the playing field." A revised recommendation to reject all bids was posted on December 12, 2000. School Food's Protest of the Rejection of All Bids On December 15, 2000, School Food timely filed its notice of intent to protest the Board's preliminary decision to reject all bids. This was timely followed by a formal written protest, which was filed with the Board on December 22, 2000. The revised recommendation posted on December 12, 2000, accurately announced the Board's intention to reject all bids. As noted in School Food's formal bid protest, however, the revised recommendation erroneously stated that the action was taken because “no acceptable bids were received.” To remedy this problem, a corrected revised recommendation was posted by the Board on January 12, 2001. It stated that the rejection of all bids was “due to inaccuracies within the bid specifications.” On January 16, 2001, School Food timely notified the Board of its intent to protest the corrected revised recommendation. Thereafter, on January 24, 2001, School Food timely filed its formal protest of the corrected revised recommendation to reject all bids. School Food posted a bid protest bond in the amount of $5,000 in accordance with School Board Policy 3320. This bond is conditioned upon School Food's payment of the Board's litigation costs should the Board prevail. Pursuant to School Board Policy 3320 and Section 120.57(3)(d), Florida Statutes, the Board's Bid Protest Committee conducted a meeting with School Food on February 9, 2001, in an attempt to mutually resolve any matters in dispute. The Bid Protest Committee was composed of two persons who had participated in the December 1, 2000, meeting and a third member who had not attended that earlier meeting. Sysco received advance notice of the February 9, 2001, meeting of the Bid Protest Committee, and its lawyer was permitted to attend as a witness. These courtesies, tellingly, had not been extended to School Food in connection with the committee meeting that had been held on December 1, 2000, to discuss the original Sysco bid protest. As before, a court reporter was present, and the transcript of the February 9, 2001, meeting is in evidence. The Bid Protest Committee was again informed of staff's opinion that the ITB contained defective specifications in Sequence Nos. 1009, 1036, 1037 and 2010. At the February 9, 2001 meeting, the Board's counsel argued vigorously in support of the decision to reject all bids. For the most part, his argument was an expanded version of that which had been advanced in favor of rejection at the December 1, 2000, meeting. More emphasis was placed, the second time around, on the concern that the supposedly defective specifications would or might, in some cases, result in the Board not receiving the food items that it had desired. Once again, the committee was not asked to consider the Reconciliation Clause of Section 5.02 of the ITB. And once more, the committee members did not discuss this provision. It is reasonable to infer, and the trier of fact so finds, that the committee failed to take account of the Reconciliation Clause in weighing the merits of staff's recommendation that the previous decision to reject all bids be adhered to. By a vote of two to one, the Bid Protest Committee upheld the recommendation to reject all bids. The contemporaneous comments from the members in the majority, together with other evidence introduced at hearing, reveal that the committee was persuaded that the field of play had been tilted by the purportedly defective bid specifications; its decision clearly was based on a desire to “level the playing field.” Ultimate Factual Determinations All of the purported deficiencies in the bid specifications fall squarely within the operation of the ITB’s plain and unambiguous Reconciliation Clause which, to repeat for emphasis, provided as follows: If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. (ITB, Section 5.02.)5 There is no evidence that the Reconciliation Clause misrepresented the Board's true intent or was the product of a mistake. The administrative law judge has determined as a matter of law that the Reconciliation Clause is clear and unambiguous; therefore, as a matter of fact, it manifests the Board's intent that a Column 2 description must yield to the identification of an approved branded product in Column 3 in the event of conflict between them. By providing in clear terms a straightforward, easily applied, bright-line rule for resolving the very type of conflict that the Board now urges justifies a rejection of all bids, the ITB reasonably ensured that no such ambiguity or uncertainty would imperil the competitive process. No reasonable bidder could possibly have been confused by the unambiguous Reconciliation Clause. All bidders, of course, were entitled to protest the Reconciliation Clause, and any other bid specifications, within 72 hours after receiving the ITB. See Section 120.57(3)(b), Florida Statutes; see also ITB, Section 1.21. None did. If Sysco believed, as Ms. Blaine testified, that it could not bid on certain approved branded products listed in Sequence Nos. 1009, 1036, 1037, and 2010, then its belief was unreasonable. Confusion that is objectively unreasonable in fact, as Sysco's was, is not evidence of deficiencies in the bid specifications or of a breach in the integrity of the competitive process. In sum, the purported "deficiencies" upon which the Board based its intended decision to reject all bids are not deficiencies in fact. Thus, the Board's professed reason for starting over — that flaws in Sequence Nos. 1009, 1036, 1037, and 2010 put bidders to the Hobson's choice of either risking disqualification by bidding on an approved branded product that did not strictly conform to the description in Column 2 or offering a higher-priced product meeting the Column 2 description — is factually unfounded and illogical.6 It should be observed, also, that, in view of the unambiguous Reconciliation Clause, the approved branded products upon which School Food bid in response to Sequence Nos. 1009, 1036, 1037, and 2010 are conforming goods in every respect. That is, School Food did not "mis-bid" these items. Indeed, the Board having identified specific approved branded products; having instructed bidders that "bids shall be accepted only on these approved items, except where ‘Distributor's Choice’ is indicated," see ITB, Section 1.12; and having made clear, in the Reconciliation Clause, that any conflict between an approved branded product and a product description shall be resolved in favor of the approved branded product, it would be arbitrary and capricious to disqualify School Food's bid for non-responsiveness in connection with these items. See Footnote 6, supra. The evidence regarding which particular products the Board truly wanted to purchase in connection with the sequences at issue is in conflict. On the one hand, there is the ITB itself, which is strong evidence of the Board's desires. As a written expression of the Board's intent, the ITB gives voice not merely to the opinions of one person, but rather speaks for the whole Board as an organization. (The latter point is underscored by Section 1.35, which plainly stated that no single employee of the Board was authorized unilaterally to interpret the ITB.) The ITB's reliability is further enhanced by the fact that it was prepared before the bids were opened, before it was known that the incumbent vendor was not the apparent low bidder, before the first protest was filed, and before this administrative litigation commenced. On the other hand, there is Mr. Papa's testimony that he made mistakes in Sequence Nos. 1009, 1036, 1037, and 2010, listing approved branded products that, in hindsight, he claimed should not have been listed. Casting doubt on Mr. Papa's credibility, however, is the fact that he did not discover these so-called mistakes until after the Sysco protest helpfully brought the matters to his attention. Also, in deciding how much weight to give Mr. Papa’s testimony, the trier paid particular attention to the picayune nature of the purported conflicts in the specifications. Indeed, it is seriously debatable whether there really were any conflicts in Sequence Nos. 1009, 1036, 1037, and 2010.7 Additionally, having observed Mr. Papa’s demeanor and having given thoughtful consideration to the substance of his testimony, the trier of fact formed the distinct impression that this witness was a bit too anxious to grasp at a plausible excuse — even these hyper-technical “conflicts” — to scuttle the process and do it over. In weighing Mr. Papa's testimony, the trier has factored in a discount for reasonably inferred bias. Further, Mr. Papa's testimony was premised on the view that Column 2 expressed the Board's true intent, taking priority over Column 3 in cases of conflict. To fully credit Mr. Papa's testimony would require that the Reconciliation Clause be turned on its head — which, incidentally, would constitute an impermissible material change in the bid specifications.8 There is absolutely no basis in this record for doing that. In resolving the conflict in the evidence regarding which goods the Board really wanted, the trier of fact has considered the totality of circumstances and has chosen to give the greatest weight to the plain and unambiguous Reconciliation Clause in the ITB which, when read in conjunction with the clear designations of approved branded products in Column 3 at the sequences in question, makes manifest the Board's intent. This clear provision speaks for itself and proves that the Board, as an entity, made a reasoned and conscious decision to deem approved branded products in Column 3 of the Product Bid Sheets to be the goods intended for purchase in those instances where a Column 2 product description might suggest a different desire. Neither Mr. Papa's testimony nor any other evidence persuasively calls into question the reliability and credibility of the Reconciliation Clause as an accurate expression of the Board's intent. Thus, under the evidence presented, the following items are approved branded products that, as a matter of fact, the Board wanted to purchase: Nardone's 80MSA-100, Prestige 30215, Nardone's 100MA, and Leon's 28002. Moreover, if the Board decides that one or more of these approved branded products are not what it wants after all, it has the right, pursuant to Section 2.03 of the ITB (see Paragraph 17, supra), to arrange for the purchase and delivery of different products. The argument of the Board and Sysco that the Board's exercise of its right to add and delete items would constitute an impermissible material alteration of the bid specifications is, in the context of the present circumstances, plainly wrong in fact and illogical. To explain why this is so, let us stipulate that it would be arbitrary for the Board, say, to delete several items from each bidder's proposal because, for example, one or more bidders had mis-bid those items, and then to re-tabulate the bids to determine which bidder would now be the low bidder.9 Similarly, it would be arbitrary for the Board, under the guise of adding items, to designate as approved branded products certain non-conforming goods offered by a bidder as Distributor's Choices, thereby allowing a bid that otherwise would be disqualified to be considered responsive. As a final example, it would be arbitrary for the Board to delete an approved branded product from the product list and use such deletion as the basis for disqualifying a bidder that had quoted the now-deleted item. Each of these hypothetical situations involves a material change to the specifications on which the bidders based their proposals, which is not allowed, for good reason. It is a different kettle of fish, however, for the Board to add or delete items after making an award to the lowest responsive, responsible bidder in accordance with the terms and conditions of the ITB. When the bids are judged pursuant to the rules clearly spelled out in advance in the ITB — which would not be the case in the examples set forth in the immediately preceding paragraph — there is simply no change in the specifications, material or otherwise. In the instant case, therefore, if the Board awards the contract to School Food and decides that it does not want a hot dog pancake for Sequence No. 2010, then all it need do is delete Leon's 28002 from the product list and add the desired Leon's product or require the distributor to deliver one of the remaining approved branded products.10 Nothing about that course of action requires or effects a change in the bid specifications. To the contrary, all of the bidders were notified, upon entering this competition, that such post- award additions and deletions of product were possible. All of the bidders, moreover, could have quoted a price for the hot dog pancake, which was unambiguously designated as a conforming product. If the hot dog pancake were a less expensive item, then Sysco could have and should have bid on it. Put another way, if School Food secured a competitive advantage by bidding on the lower-priced approved branded product, it was a legitimate advantage under the plain rules of the contest — rules that applied equally to all. In a nutshell, the Board is in no reasonable danger of receiving a food product that it does not desire to purchase. The Board's preliminary decision to reject all bids is not supported by facts or logic. Indeed, the Board's analysis of the situation failed to account for the Reconciliation Clause — a clearly relevant factor. When the Reconciliation Clause is considered, together with the rest of the evidence in the record, the following become clear: The ITB's specifications were clear and unambiguous. The competitive playing field was level. The Board will obtain the goods that it intended to purchase. At bottom, the Board's decision here cannot be justified by any analysis that a reasonable person would use to reach a decision of similar importance. It is arbitrary.11

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board award the contract advertised in the subject ITB to the lowest responsive, responsible bidder, in accordance with the terms and conditions of the ITB. It is further recommended that the Board, pursuant to its own rules, return School Food’s protest bond and, in the Final Order, award School Food the costs Petitioner has incurred in prosecuting this matter. If a dispute arises concerning the amount of such costs, the matter may be referred to the Division of Administrative Hearings for further proceedings. DONE AND ENTERED this 31st day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ JOHN G. VAN LANINGHAM 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 31st day of May, 2001.

Florida Laws (4) 120.53120.569120.576.02
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