Findings Of Fact In order to meet its need for new equipment in the new district administration building, the School Board advertised for competitive bid proposals for clerical, professional task, guest and conference chairs (task seating). Five bids were timely received by the School Board, two of which were determined to be responsive. The bid opening occurred on April 17 1990, and the Knoll Source was determined to be the lowest responsive bidder. In spite of this determination, the bid was rejected by the Director of Purchasing or the appointed designee because sales tax was not included in the bid. The Notice of Award was issued to Haworth, who submitted its bid showing the price it was willing to accept for the sale of the task seating, with and without sales tax. The initial decision to reject the Knoll Source bid, which was $10,393.72 less than Haworth in Sequence I; $12,231.94 less in Sequence II; and $994.17 less in Sequence III, was based upon Section 9.2.2.a in the "Instructions to Interior Bidders". This section of the bid documents provided that the contract for purchase of the task seating would not be exempt from sales tax. This bid specification is incorrect because the School Board does not pay sales tax on acquisitions of furnishings for the Pinellas County School System. Knoll Source was aware of the School Board's sales tax exemption prior to its bid submission. As Section 9.2.2.a of the instructions was inappropriate, the vendor relied on Section 9.2.2.c, and excluded sales tax from the bid because the cost of such tax was not applicable. Section 9.2.2.c instructed bidders to exclude inapplicable taxes from their bids. Pursuant to Section 5.3.1 of the bid instructions, the School Board has the right to waive any irregularity in any bid received and to accept the bid which, in the Board's judgment, is in its own best interest. The Knoll Source and Haworth bids can be comparatively reviewed, and Knoll Source is the lowest responsive bidder if the failure to include sales tax in the bid amount is waived by the School Board. It is in the Board's best interest to waive Knoll Source's failure to include a sales tax in the bid because sales tax does not apply to this purchase.
Findings Of Fact On October 26, 1976, the School Board of Orange County and ITEL Data Product Corporation (ITEL) entered into a lease agreement providing for the lease of data processing equipment to the Board from ITEL by which ITEL supplied a computer central processing unit (CPU) and related equipment. Concomitantly, by agreement, ITEL provided for servicing and maintenance of the equipment. In October, 1977, IBM announced its new 303X series of computers with delivery schedules to customers for the newly introduced equipment to take up to two years. IBM has had a long-standing policy, well-known in the data processing industry, of filling customer orders for equipment in the sequence in which they are received, called "sequential delivery." With public agency customers, such sequential orders are not envisioned by the agency nor IBM to be a firm order because of the often protracted procurement process, involving competitive bidding, that public bodies typically have to engage in before making such a major purchase. IBM therefore permits public agencies, such as the School Board in this case, to place non-binding orders in anticipation of a future procurement so that a sequential delivery position will be available to the public agency and thus cause no delay in acquisition of the equipment should IBM become the successful bidder upon a particular procurement. On October 6, 1977, the School Board placed a "reservation" for an IBM 3031 CPU and related data processing equipment. In a letter of October 11, 1978, the School Board informed IBM that this equipment would be needed in approximately November, 1979, subject to availability of funds and subject to IBM being selected as a winning vendor in a competitive bidding process. There was no executed contract or other commitment between IBM and School Board at this point in time. Sometime in the summer of 1979, the School Board, which had become dissatisfied with the service and maintenance it had received from ITEL pursuant to the ITEL lease, engaged certain members of its staff in a study regarding its future data processing equipment needs. The School Board staff study resulted in a determination by the staff, and ultimately by the Board, to acquire additional data processing equipment capacity in excess of the capacity supplied under the ITEL lease. On August 28, 1979, the School Board terminated the ITEL lease effective December 31, 1979, and on or about September 5th, notified ITEL of that termination. On or about October 2, 1979, after determining that it wished to lease new and greater capacity equipment, the School Board Issued an "Invitation to bid" to eleven vendors, providing for the leasing, with option to purchase, of an IBM 3031 CPU and related equipment "or their equal." In response to this invitation to bid, ITEL, Menrex Corporation, as well as IBM, submitted bids and on November 13, 1979, the School Board rejected all the bids as being not responsive, as it had reserved the right to do in the invitation to bid document. The rejection of these bids on November 13, 1979, provided only slightly over a month during which the School Board would have to acquire equipment by rental or purchase and have it installed, since the ITEL lease would be terminated on December 31, 1979. Accordingly, acting on the advice of counsel, the School Board determined that it could legitimately develop an interim emergency leasing plan for meeting its data processing needs upon the expiration of the ITEL lease starting December 31, 1979. This leased equipment was expected to be in place for approximately three to six months or until such time as a new bidding effort and procedure could be developed. The School Board, upon advice of counsel, determined that under its procurement regulations, it could rent equipment on a month to month basis without engaging in a competitive bidding process if it solicited quotations from at least three vendors. Thus, on November 13, 1979, the School Board solicited quotations from three potential vendors, Comdisco, ITEL and IBM, for purposes of securing an interim rental of an IBM 3031 CPU, "or equal", and related equipment. IBM and the Petitioner herein, NAS, which is the successor in interest to ITEL, responded to the solicitation of quotations and NAS informed the Board that it could not supply the particular equipment specified, but offered a NAS CPU at a monthly charge and suggested other related equipment to the Board that NAS considered to be suitable. The School Board staff informed NAS that the CPU unit itself would be a suitable alternative to the IBM 3031 CPU mentioned in the solicitation of quotations. On November 20, 1979, the School Board elected to select IBM's quotation and entered into the lease arrangement with IBM on a month-to-month rental basis. NAS did not challenge that action by the School Board. This rental agreement was entered into on or about December 7, 1979. It was a standard IBM lease and contained a provision whereby IBM offered the customer an option to purchase the equipment, although there was no obligation imposed therein on the customer to purchase the equipment, which was the subject of the lease. The agreement provided that the customer would be contractually entitled to certain "purchase-option credits" or accruals if it was leasing the equipment on a long-term basis and subsequently elected to exercise the option to purchase that same equipment. IBM grants such purchase-option credits as a general rule in month-to-month rental situations such as this, although they are not always a matter of contractual right on behalf of the customer. In any event, no consideration was shown to have been given at the time of entering this rental agreement to the existence or non-existence of any purchase-option credit provision since the only authorized contract at that time was a month-to- month rental agreement. No purchase or option to purchase which would be binding on either party was contemplated since both IBM and the School Board were aware that before a purchase of this magnitude could be made, that a competitive bidding procedure must be utilized. Equipment was installed pursuant to the rental agreement in December, 1979. Neither at the time of the contracting, nor at the time of the installation of the IBM 3031 CPU, did NAS or Comdisco challenge the award of the month-to-month rental contract to IBM. In early 1980, the rental agreement being only temporary, the School Board began studying various alternatives for making a permanent acquisition of needed data processing equipment. In early May of 1980, upon advice of its attorney and various staff members assigned to study the matter, the School Board determined that it would be more economical for the School Board to purchase a CPU and related equipment and service either by cash or installment payment, than to continue renting a CPU and related equipment or to lease those items with an option to purchase as had originally been contemplated in the October, 1979, aborted procurement effort. Thus, it was that on about April 20, 1980, the School Board appointed a committee of five persons to help draft technical specifications to ultimately be promulgated in bidding invitation documents with a view toward acquiring the required data processing equipment through competitive bidding and ultimate purchase. The committee included School Board employees and outside consultants with knowledge of the field of data processing. The members were: Louis Nall, Education Consultant with the Florida Department of Education; Kim Anderson, Information Systems Consultant with the Florida Department of Education; David Andrews, Coordinator, Systems Support, School Board; Mike Staggs, Coordinator, Operations for the School Board; and Craig Rinehart, Director of the Systems Development/Systems Support staff of the School Board. Upon this committee agreeing upon required specifications for the equipment to be acquired, the bidding documents or "invitation to bid" and related supporting documents were developed by the committee in conjunction with assistance of certain other members of the staff of the Board as well as the School Board's attorney. The bid documents were approved by the School Board on May 27, 1980, and they were issued on May 23, 1980, to eight potential vendors, including NAS, IBM, and Amdahl Corporation. The bid documents invited bids for the sale of an IBM 3031 CPU and related equipment "or their equal" (plus service and maintenance) for delivery no later than July 15, 1980. In addition to specifying an IBM 3031 CPU and related equipment "or their equal.," the pertinent specifications contained in the invitation to bid documents provided as follows: The manufacturer of the equipment described in the bid was required to currently manufacture it and offer for sale or lease along with it, an upgradable attached word processor subsystem the same as, or equal to, the IBM 3031 "attached pro- cessor." The Central Processing Unit, or CPU, being bid had to be capable of hosting or accommodating an attached processor. (The purpose of requiring this was so that the School Board could later ob- tain more processing capability if and when it needed it, rather than having to pay for more capacity than it needed at the time of the initial purchase. The vendors were not required by the bidding documents, however, to bid at the time of this procurement for the actual sale of such an attached processor, to be added later.) The School Board reserved the right to reject any and all bids and to waive any informal- ity in any bid. The bid documents initially stated that the School Board would not pay any separately stated interest or finance charges in arriving at its total purchase price for all equipment to be bid. Each bidder was required to offer a certain number of support or maintenance personnel in the Orlando area at the time the bid was submitted and the Board would enter into a separate service and maintenance agreement with the successful vendor. NAS did not protest the bid specifications contained in the invitation to bid documents. NAS did request and receive several interpretations and clarifications of the bid documents from the Board in a manner favorable to NAS. These favorable clarifications or interpretations were as follows: The unavailability of serial numbers for data processing equipment at the time the bid was prepared would not adversely affect the bid's validity. NAS could temporarily rent equipment from other manufacturers which it could not itself deliver by the July 15, 1980, date required in the bid documents. (emphasis supplied) NAS would be deemed by the Board to comply with the requirement that support personnel be present in the Orlando area, provided it had the required support personnel in the area at the time the equipment was actually delivered, rather than at the originally stated time of submission of the bid. The NAS 7000N CPU, which was a computer of greater capacity than the IBM 3031, even after the IBM had the attached processor added, was specifically determined by the Board to be con- sidered as equivalent to the IBM 3031 and thus ap- propiately responsive to that specification and the invitation to bid documents. NAS would be deemed by the Board to comply with the term "manufacturer" even though NAS did not in itself manufacture the equipment, but only marketed it for the maker, Hitachi Corporation. IBM also had a role in determining and securing clarifications or interpretations of the specifications in the invitation to bid from the School Board. Thus, it was that IBM suggested that the Board could save money if it allowed each vendor (not just IBM) to separately state an interest or finance charge in its bid, since IBM was of the opinion that the Internal Revenue Service would not tax as ordinary income to the vendor any separately stated interest charges or financing charges received by such vendor from a public governmental body such as the School Board. Thus, to the extent that vendors could save on income taxes from the total payment, if successful, then the School Board could reasonably expect all vendors to submit correspondingly lower bids in response to the invitation to bid. In response to IBM's request, the School Board amended the bid documents to allow a "separately stated time-price differential" for any item of equipment, not to exceed seven and one-half percent of that item of equipment. At NAS' request, the School Board also amended the bid documents to state that a single central processor (the NAS 7000N), with equivalent power to the IBM 3031 CPU, which was upgradable in the field, would be an acceptable alternative to the requirement that a separate processor must be capable of being attached to the CPU in order to increase data processing capacity. In fact, the NAS 7000N actually has somewhat greater data processing capacity than the IBM 3031. A further amendment to the bid documents provided that in determining the lowest and best bid, the Board would consider each vendor's total charges for service, maintenance and support of the equipment for a one- year period following the award of bids. Additionally, at the request of IBM, an amendment was approved to the bid documents stating that instead of seeking equipment "new and not refurbished," that that requirement would be changed to "new and not refurbished or not more than one-year old." These amendments were sent to all potential bidders. Prior to disseminating the May, 1980, invitation to bid documents, the School Board established an Evaluation Committee to review and analyze bids to be received in response to those documents. The Committee was composed of the following individuals: David Brittain, the Director of the Educational Technology Section, Florida Department of Education; William Branch, Director of Computer Service, University of Central Florida; Louis Nall, Education Consultant, Florida Department of Education; Ronald Schoenau, Director of Northeast Regional Data Center, Florida University System; Craig Rinehart, Director of Systems Development/Systems Support of the Orange County School Board; Mike Staggs, Coordinator, Operations of the School Board; David Andrews, Coordinator, Systems Support, School Board; Dale Brushwood, Director of Production Control, School Board; and David Brown, Attorney for the School Board. The Evaluation Committee was charged with conducting a review and analysis in accord with certain instructions given by the Board and to recommend to the Board the bid the Committee believed was the lowest and best bid. The Committee was instructed that objectivity is of prime importance. Five vendors submitted bids in response to the Invitation documents, as amended. They were NAS, IBM, Amdahl, CMI and Memorex. On June 17, 1980, the bids were opened by the Board. On a recommendation of the Evaluation Committee, the School Board found the bids submitted by CMI and Memorex to be not responsive to the bid documents. The bids submitted by NAS, IBM and Amdahl Corporation were found responsive to the bid document. The Evaluation Committee met for approximately 5 hours evaluating the bids by a number of different criteria, including the consideration of both a one-year and a three-year maintenance cost, as well as an assumption arguendo that the bid documents did not merely call for the IBM 3031 CPU upgradable by the addition of an attached processor, as the specifications actually requested, but instead that the $330,000 (estimated) attached processor was to be bought at the outset from IBM. The result was that the Evaluation Committee reported that the IBM bid was the lowest and best response, even if the cost of a $330,000 attached processor was added to their bid, which was not actually to be the case because the attached processor was not included in this procurement process. Even had that been added to the IBM bid, making it the second lowest dollar bidder, the Evaluation Committee still felt it to be the lowest, best bid. The IBM bid for the 3031 CPU and related equipment was $1,412,643 plus a time-price differential of $58,738 for a total of $1,471,381. The related bid for service, maintenance and support for the first year was $74,201.34, making a grand total for IBM's bid of $1,545,582.34. The NAS bid for the sale of an NAS 7000N CPU and related equipment was the next lowest bid at $1,575,751 plus a time-price differential of $74,722 for a total of $1,650,473. The accompanying bid for service, maintenance and support for the first year was $64,603. The total of the NAS bid was thus $1,715,076. The Amdahl Corporation's bid was higher than either IBM or NAS. In evaluating and in arriving at the decision that the IBM bid was the lowest and best, the Evaluation Committee was concerned with the previous poor record of maintenance and support provided by NAS's predecessor in interest, ITEL Corporation, as well as by the fact that there were then no NAS 7000N computer systems installed in the United States, so that some knowledge of its performance record could thus be gained. Further, the residual value for NAS' equipment had not yet been proven to the extent that IBM's had. Thus, the Committee determined that the IBM bid would still be the lowest and best even had the attached processor, at an estimated cost at time of $330,000, been added to the bid, making it the second lowest in dollar terms because the IBM bid combined the least risk, with the maximum equipment capacity growth flexibility at maximum benefit to the School Board in terms of financial flexibility. The NAS machine would provide more capacity than the Board needed for several years at higher cost, without the Board having an option regarding when that extra capacity should be obtained. The financial flexibility benefit of the IBM bid in terms of allowing for future capacity growth was borne out because the attached processor, by the time it was actually acquired from IBM in 1982, only cost $172,000, due to price decreases made possible by technological advances. The Evaluation Committee unanimously recommended acceptance of the IBM bid as the lowest and best received, and in official session on June 24, 1980, after hearing presentations by an NAS representative, the School Board unanimously voted to award IBM the contract for the subject equipment. On July 1, 1980, the contract submitted by IBM was executed by IBM and the School Board. It provided for a purchase by the Board of the equipment and services described above, payable in two installments, $600,000 on or before August 15, 1980, and the balance on or before July 5, 1981. On July 16, 1980, NAS filed a petition for administrative hearing with the Board, also filing an emergency motion for stay with the School Board, seeking a stay of all further agency action on the contracts with IBM, including any payment, pending disposition of the case. On July 29, 1980, the School Board, after hearing argument of NAS counsel, denied that petition for Administrative Hearing and motion for stay on the basis that the contract between the Board and IBM had already been executed and that the NAS request for a 120.57(1), Florida Statutes, hearing was not timely. On August 4, 1980, NAS appealed the Board's decision to deny a hearing to the Fifth District Court of Appeal and also filed an emergency motion for stay pending appeal. The emergency motion requested the court to prohibit any further action pursuant to the contract, including payment of any sums pending determination of the issues raised in the appeal. On August 15, 1980, the court granted the emergency motion for stay on the condition NAS post a supersedes bond on or before August 18, 1980. On August 26, 1980, the court vacated that order because of failure to timely post the supersedes bond. The School Board then paid IBM the first installment payment of $600,000, when due, shortly thereafter. On May 6, 1981 the Fifth District Court of Appeal ultimately rendered a decision that NAS ". . . should have an opportunity to present evidence and arguments, pursuant to Section 120.57(1)(b)4, Florida Statutes, (Supp. 1980), that its bid was the lowest and best response to the bid document." Thus, the case was remanded to the Board to conduct an administrative hearing, and the Board referred the matter to the Division of Administrative Hearings. On June 4, 1981, NAS filed with the Board a motion for stay to prevent the Board from making the final payment to IBM on the purchase price. After hearing arguments of NAS' attorney, the Board, on June 23, 1981, denied the motion for stay and NAS appealed. On July 3, 1981, the Fifth District Court of Appeal affirmed the School Board's denial of the stay. Final payment was thereafter made by the Board to IBM, thus completing the purchase and all performance of the contract.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is RECOMMENDED: That a final order be entered by the School Board of Orange County denying the relief requested by the Petitioner. DONE and ENTERED this 22nd day of September, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1983. COPIES FURNISHED: John A. Barley, Esquire 630 Lewis State Bank Building Post Office Box 10166 Tallahassee, Florida 32302 William M. Rowland, Esquire Post Office Box 305 Orlando, Florida 32802 Peter J. Winders, Esquire Nathaniel L. Doliner, Esquire Post Office Box 3239 Tampa, Florida 33601 Daniel E. O'Donnell, Esquire 400 Colony Square, Suite 1111 Atlanta, Georgia 30361 James L. Scott, Superintendent Orange County Public Schools Post Office Box 271 Orlando, Florida 32802
Findings Of Fact On February 28, 1990, Respondent issued an invitation to bid (ITB) on a construction project referred to as Florida Atlantic University Modulars. The ITB required a base bid and bids on five alternates to the base project. Each bidder was instructed that it must bid on the base project and on each alternate for its bid proposal to be considered responsive. On March 19, 1990, Addendum 1 to the ITB was issued to all prospective bidders. This was an informational addendum and advised the date, time, and location of the posting of the award recommendation. Addendum 1 was not required to be returned by the bidder as a part of the response to the ITB. On March 21, 1990, Addendum 2 to the ITB was issued to all prospective bidders. This was also an informational addendum and advised as to a non- mandatory, pre-bid conference to be held March 27, 1990. Addendum 2 was not required to be returned by the bidder as a part of the response to the ITB. On March 30, 1990, Addendum 3 to the ITB was issued to all prospective bidders. This addendum advised that the date and time for the bid opening had been changed to April 9, 1990, at 2:00 p.m. Addendum 3 also contained modifications, explanations and corrections to the original drawings and specifications which impacted the cost and scope of the project. Immediately above the signature line on the cover page of Addendum 3 was the following: This document must be returned in it's [sic] entirety with the bid. Please sign below to verify that you have read and understand all the changes. Item 2 on page ADD-1 of Addendum 3 required each bidder to submit its per unit price structure with its response to the ITB and provided, in pertinent part, as follows: ... The unit price shall not be included in Base Bid. Submit a separate sheet with bid package. The following instructions are given in Paragraph 1(c) of the Instructions to Bidder: NO ERASURES ARE PERMITTED. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids or corrections not initialed will not be tabulated. The instructions are repeated in Paragraph 1 of the General Conditions of the ITB: EXECUTION OF BID: ... No erasures are permitted. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids, or corrections not initialed will not be tabulated. The following is contained as part of the Instructions to Bidder: Failure to complete, sign, seal and return the required documents will result in rejection of your bid. Any questions should be directed to Susan Kuzenka, (305) 761-7460, Purchasing Department, Broward Community College. (Emphasis in the original.) Paragraph 8 of the General Conditions portion of the bid package provided, in pertinent part, as follows: 8. AWARDS. As the best interest of Broward Community College may require, the right is reserved to reject any and all bids and to waive any irregularity in bids received ... On April 9, 1990, Petitioner submitted a bid to Respondent in response to the ITB. Petitioner had received the complete bid package, including all instructions and addenda to the bid package. At the pre-bid conference held March 27, 1990, an employee of Respondent emphasized to the attendees that it was necessary for the bidders to return Addendum 3 in its entirety. Petitioner did not attend the non-mandatory, pre-bid conference. The base bid submitted by Petitioner was $1,085,790.00. The base bid of Double E Construction Co., the next low bidder and the bidder to whom Respondent intends to award the contract, was $1,113,300.00. Petitioner's bid for each of the alternates was lower than that of Double E Construction Co. Petitioner failed to return the entire Addendum 3 as instructed. On page four of the bid package Petitioner acknowledged that it had received Addendum 3, and it signed and returned the cover sheet to Addendum 3 under the language quoted in the foregoing Paragraph 4. Respondent considered this an important requirement because it wanted to prevent a bidder from later claiming that it had not received Addendum 3 or that it had received information different than that contained in Addendum 3. Petitioner made a correction to its bid for Alternate Number 3 found on page 5 of 13 of Petitioner's bid. Petitioner's bid for this alternate was $88,000. In the space for the written amount of the bid, Petitioner's president inserted by hand the words "Eighty-eight Thousand". In the space for the numerical insertion of the bid he initially wrote the sum $125,000 (which was the amount of Petitioner's bid for Alternate 4). He struck through the figure $125,000 and wrote above the stricken figure the figure $88,000. He did not initial his change. Respondent has never accepted changes to price quotations which were not initialed because it is concerned that uninitialed corrections on bids may result in challenges to the integrity of the bid process and may expose its staff to charges of collusion from a disgruntled bidder. Pioneer did not include a unit price structure in its bid as required by Addendum 3. The unit price structure is an informational item that is not separately considered by Respondent to determine the lowest bidder on this project. On April 6, 1990, Petitioner's estimator on this bid telephoned Susan Kuzenka regarding the unit price structure sheet to inquire as to the format that should be followed in submitting the unit price structure. Ms. Kuzenka is named in the Instructions to Bidder as the person in Respondent's purchasing department to whom questions about the bid process should be directed. Petitioner's estimator was told that the unit prices would be required to be submitted by the successful bidder at the pre-construction meeting after the bids were opened, but that the unit price structure need not be submitted with the bid. Petitioner's president verified this information on April 9, 1990, prior to the bid opening, during a telephone conference with the project engineer employed by Respondent for this project. In reliance on the information that was supplied by Respondent's agents, Petitioner did not submit its unit price structure sheet with its bid. Following its examination of all bids, the bid of Petitioner was disqualified on three grounds. The first reason cited by Respondent was that Petitioner failed to return the entire Addendum (3) as required. The second reason was that Petitioner did not initial a correction to a quoted price figure. The third reason was that Petitioner did not include the unit price structure as required in Addendum (3). Petitioner thereafter timely protested its disqualification and the intended award of the contract to Double E Construction Co. Petitioner contends that the reasons cited by Respondent for its disqualification are minor irregularities that should be waived by Respondent. Additionally, Petitioner contends that the third reason should not disqualify it because Petitioner acted in reliance upon the instructions of Respondent's agents in not submitting the unit price structure along with its bid package. This proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Broward Community College, enter a final order which denies the bid protest of Petitioner, Pioneer Contracting, Inc. DONE AND ENTERED this 29th day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1, 2. 6 and 7 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 10. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings in the last sentence of paragraph 4 are rejected as being unnecessary to the conclusions reached because of the clear instructions contained in Addendum 3. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order. The proposed findings in the last two sentences of paragraph 5 are supported by the evidence, but are not adopted as findings of fact because they are unnecessary to the conclusions reached. All proposed findings of fact submitted on behalf of the Respondent are adopted in material part. Copies furnished: Eric L. Dauber, Esquire Beyer & Dauber Suite 5300 2101 W. Commercial Boulevard Ft. Lauderdale, Florida 33309 James D. Camp III, Counsel Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301 Janet Rickenbacker Director of Purchasing Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301
Findings Of Fact Petitioner, E. J. Strickland Construction, Inc. (Petitioner), submitted to Respondent, Department of Transportation (Department), a bid on State Project No. 75030- 3518. Petitioner's was the lowest bid received by the Department. Petitioner's bid failed to meet the D.B.E. goals on State Project No. 75030-3518. The D.B.E. goal was 12 percent; under Petitioner's bid, only .04 percent of the contract would be performed by economically disadvantaged business enterprises. The only effort Petitioner made to secure bids of certified D.B.E. contractors to incorporate in its bid to the Department was to run a legal advertisement in the Orlando Sentinel on January 18, 19 and 20, 1986. The Department was scheduled to open all bids on January 22, 1986. Petitioner documented only the advertisements and the fact that it incorporated the only response to the advertisements in its bid in an effort to demonstrate good faith effort to meet the D.B.E. goals. 2/ There is no evidence that Petitioner acted with specific discriminatory intent in preparing its bid on State Project No. 75030-3518. Petitioner proved that it acted in this case precisely as it acted in the only other Department job on which it bid. In that case, Petitioner ordered from the Department plans and specifications and was sent plans, specifications and a bid package and was placed on the Department's list of prospective bidders. In accordance with the custom in the industry, the Florida Transportation Builders Association (FTBA) obtained from the Department the list of prospective bidders as of ten days before the bid letting date and distributed the list to its members. In accordance with the custom in the industry, several DBE and WBE contractors contacted Petitioner, verified that Petitioner was bidding on the project and submitted proposals for inclusion in Petitioner's bid. In that way, Petitioner received enough response from certified DBE and WBE contractors to meet the DBE and WBE goals on the job. In this case, in accordance with the Department's normal practice, the Department only sent Petitioner plans and specifications in response to Petitioner's December 30, 1985 request for plans and specifications. Also, since Petitioner did not specifically request a bid package, the Department did not include Petitioner on its list of prospective bidders. For that reason, no FTBA members, including the certified DBE contractor who bid on Petitioner's previous job with the Department, received notice that Petitioner was a prospective bidder on State Project No. 75030-3518. Had Petitioner been included on the FTBA list, Petitioner probably would have received enough response from certified DBE contractors to meet the DBE goals on this job, too. All four of the other bidders on State Project No. 75030-3518 met the DBE goals. One of them relied entirely on the FTBA list to notify prospective certified DBE contractors. One of them -- including the next lowest bidder, Cone Constructors, Inc. -- also sent a written request for a proposal to Pary, Inc., the same certified DBE contractor who previously had contracted with Petitioner on a Department job that was still ongoing. Another of the bidders on State Project No. 75030-3518 telephoned Pary, Inc., and asked for a proposal. Petitioner is not a member of the FTBA and did not inquire whether it was listed as a prospective bidder on the FTBA list. Petitioner did not make any effort to use the Department's DBE directory to directly contact certified DBE contractors concerning the job. Petitioner did not even contact Pary, Inc., to request a bid although Pary, Inc., was working for Petitioner at the time and had not responded to Petitioner concerning State Project No. 75030-3518. Petitioner's small effort to meet the DBE goals on State Project No. 75030-3518 did not rise to the level of good faith efforts. The evidence that Petitioner acted in this case precisely as it acted in the only other Department job on which it bid does not prove that Petitioner made a good faith effort in this case. To the contrary, it proved only that Petitioner was lucky to meet the DBE goals on the prior contract.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Transportation, dismiss the bid protest of Petitioner, E. J. Strickland Construction, Inc., and award the contract in State Project No. 75030-3518 to the lowest responsive bidder, Cone Constructors, Inc. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986.
The Issue This is a bid protest proceeding to determine which of several competing bidders should be awarded contracts to perform work related to the Everglades restoration activities of the Respondent. The primary issues litigated at the hearing related to the sufficiency of the bids of the Petitioner and of each of the Intervenors regarding the M/WBE requirements of the bid specifications.
Findings Of Fact On May 9, 1997, the District issued a RFB for project number C-ECP. The purpose of the RFB was to solicit responsive bids from responsible bidders for the construction of two stormwater treatment areas: STA-1W and STA-2. The STA-1W project involves the construction of a wetland of approximately 6700 acres, including more than 12 miles of canal and levee construction, concrete spillways, culverts, telemetry controls, and ancillary facilities. The STA-2 project involves the construction of approximately 6430 acres, including 45 miles of canal and levee construction/enlargement, concrete water control structures, culverts, telemetry controls, and ancillary facilities. Prior to the issuance of the RFB, the District put substantial time and effort into M/WBE outreach activities. These activities included: (1) coordinating with and identifying M/WBE resource agencies to assist contractors in finding available and interested M/WBE subcontractors; (2) hiring a consultant to contact M/WBE firms and inform them of the contracting opportunities available for the C-ECP project, including subcontractor work; (3) conducting workshops for contractors to meet potential M/WBE subcontractors; (4) expediting the M/WBE certification process of M/WBE applicant firms; and (5) holding both mandatory and voluntary pre-bid meetings to explain the requirements of the RFB specifications and the M/WBE requirements. The District made extensive efforts to ensure that contractors knew about the project and the availability of M/WBE subcontractors. Subsequent to issuance of the RFB, the District issued ten addenda. Addendum Number 1 established a minimum M/WBE participation goal of sixteen percent and included a list of M/WBE contractors (the "vendor list"). The vendor list was prepared by the District to identify M/WBE subcontractors who might be available to work on the project. It was prepared in consultation with the District’s project managers and identified work components of the project based on commodity codes located within the District’s database. Addendum Number 9 required the bidders to execute and submit a Good Faith Efforts Checklist form and included a revised vendor list. The RFB provided in the Supplemental Conditions, Basis for Bid Award, that: Bidders may bid on Option "A" STA-1W, and/or Option "B" STA-2, and/or Option "C" combination of STA-1W and STA-2. Bid award will be made based on the lowest responsive and responsible bid amount from Option "A" and Option "B", or the combined amount in Option "C", whichever is lower in total dollars for the completion of STA-1W and STA- 2, after considering bid incentives (as applicable) in accordance with the District’s M/WBE Rule 40E-7.628, F.A.C. The RFB identified the project as "C-ECP, Construction of STA-1W & STA-2, Palm Beach County, Florida." However, contractors and subcontractors used various names in identifying the project, including C-ECP, STA-1W, STA-2, and construction of STA-1W and STA-2. The RFB sets forth the M/WBE requirements for the project in Article 7 of the Instructions to Bidders. Section 7.03 provides in part that: Bidders not meeting the established M/WBE goal shall make and document the good faith efforts used to meet established goals. The Bidder’s efforts shall be designed to ensure that available M/WBE’s are identified, properly noticed, and provided the maximum opportunity to compete for and perform work under any contract awarded as a result of this solicitation. EVIDENCE OF GOOD FAITH EFFORTS IS REQUIRED TO BE SUBMITTED WITH THE BID IF THE BIDDER DOES NOT MEET THE SPECIFIED M/WBE GOAL. The original deadline for submission of bids was June 25, 1997, but the deadline was extended three weeks by Addendum Number 3. The new submission deadline for bids was July 15, 1997, at 2:30 p.m. Six bids were submitted for Option "A," six bids were submitted for Option "B," and three bids were submitted for Option "C." The low dollar bid for Option "A" was submitted by Harry Pepper in the amount of $18,334,100. The low dollar bid for Option "B" was submitted by the Petitioner in the amount of $24,537,450. The second low dollar amount was submitted by Bergeron in the amount of $24,570,500. The low dollar bid for Option "C" was submitted by the Petitioner in the amount of $42,577,669. The Petitioner’s bid for Option "C" was $326,931 lower than the sum of Harry Pepper’s bid for Option "A" and Bergeron’s bid for Option "B." When the lowest bidder does not meet the M/WBE participation goal, Rule 40E-7.628, Florida Administrative Code, mandates that the next lowest bidder(s) meeting that goal shall be awarded the contract if the difference in bid amounts between the lowest and next lowest bid(s) falls within the maximum bid incentive amount. For this RFB, the bid incentive for the project was one percent of the lowest bid amount which in this case resulted in a maximum bid incentive amount of $425,776. The difference between the combined sum of Harry Pepper’s bid for Option "A" and Bergeron’s bid for Option "B," and the amount of the Petitioner’s bid for Option "C," was less than the bid incentive amount of $425,776. Soon after the bids were opened on July 15, 1997, Carolyn Williams, Director of the Office of Supplier Diversity and Outreach ("SDO"), received the sections of the bids relating to compliance with the District M/WBE requirements for her review and analysis. Mrs. Williams is responsible for making the ultimate recommendation as to whether or not a bid is responsive with regard to the District’s M/WBE requirements. By the afternoon of July 16, 1997, Mrs. Williams had reached a final determination that the Petitioner’s bid was nonresponsive due to failure to meet the M/WBE requirements of the RFB. The specific analysis of the Petitioner’s failure to document good faith efforts was subsequently memorialized in a memorandum dated July 29, 1997, from Mrs. Williams to Glenn Miller of the District’s Office of Counsel. Subsequent to making the determination of nonresponsiveness, the SDO office surveyed firms listed on a spreadsheet submitted as part of the Petitioner’s good faith efforts documentation (the spreadsheet titled "Everglades Nutrient Removal Project Potential Quotations"). The purpose of contacting these firms was an effort to understand what had actually transpired in the course of the Petitioner’s efforts to meet the M/WBE requirements and to assist the District in future procurements. Information obtained from these subcontractors was not a factor in Mrs. Williams’ determination that the Petitioner’s bid was nonresponsive. On July 21, 1997, the District issued its Notice of Intent to Award a contract to Harry Pepper and Bergeron for Options "A" and "B," respectively, for the C-ECP project. The Petitioner’s low bids for Options "B" and "C" were deemed nonresponsive on the grounds that the Petitioner had failed to meet the minimum participation goal of 16 percent and that the Petitioner failed to document its good faith efforts to meet such goal. This determination was set forth in Mrs. Williams’ memorandum to the Procurement Director dated July 21, 1997, and attached to the Notice of Intent to Award On July 24, 1997, the Petitioner filed a Notice of Protest. Subsequently, the Petitioner filed a Formal Written Protest/Petition for Formal Hearing on August 8, 1997, and an Amended Formal Written Protest/Petition for Formal Hearing on August 22, 1997. Harry Pepper submitted a bid for Option "A" that indicated an M/WBE subcontractor participation of 16 percent. Harry Pepper’s Schedule of Subcontractor/Minority Business Enterprise (M/WBE) Participation ("Schedule of Participation") form indicated that two M/WBE subcontractors would be utilized by Harry Pepper to achieve the M/WBE participation goal of 16 percent: Suca Pipe Supply, Inc. ("Suca") and Atlantic Environmental Inc. ("AEI"). Harry Pepper provided executed Statement of Intent to Perform as a Subcontractor ("Statement of Intent") forms from both Suca and AEI. Suca and AEI were identified by the District as M/WBE businesses available for use by any bidder as set forth in addendum number 1 and addendum number 9 to the RFB. Suca’s Statement of Intent indicated that it would supply roller and slide gates and corrugated metal pipe to Harry Pepper. Suca is a stocker and distributor of underground utilities, pipes, valves, fittings, and construction related materials. In addition to supplying materials, Suca provides service activities to contractors, including handling of shop drawings, picking up materials from the manufacturer, getting missing parts to the job site and, on occasion, overseeing the installation of the materials. Suca maintains a warehouse and office facility of approximately 4,000 square feet with six offices and a conference room on approximately 1.5 acres of land. Bergeron submitted a bid for Option "B" that indicated an M/WBE subcontractor participation of 17 percent. Bergeron’s Schedule of Participation form indicated that one M/WBE subcontractor, Gulf Construction Group, Inc. ("Gulf"), would be utilized by Bergeron to achieve the M/WBE participation goal of 16 percent. Bergeron provided an executed Statement of Intent form from Gulf stating that it would provide "pipe and structures" for an agreed price of $4,176,985. Gulf was identified by the District as an M/WBE business available for use by any bidder as set forth in addendum number 1 and addendum number 9 to the RFB. In the blank space for the Project Number on the Statement of Intent form, Gulf wrote: "Construction of STA-1A Works & STA-2 Works."2 The name of the subject project as stated on the RFB is "Construction of STA-1W & STA-2, Palm Beach County, Florida." The number of the subject project as stated on the RFB is "C-ECP." Obviously, Gulf wrote the "name" of the project where it should have written the "number" of the project. The Statement of Intent Form does not request information as to whether the M/WBE subcontractor is agreeing to perform work on option "A," "B," or "C" of the subject project. Bergeron committed to using Gulf to perform $4,176,985 worth of work on the STA-2 contract by submitting the Schedule of Participation form, which indicates the total amount of work to be performed by Gulf and the total amount of Bergeron’s bid for that contract alone. In reviewing the Bergeron bid, the District considered the entirety of the bid package, including Bergeron’s Schedule of Participation form and the face of the bid, itself, which indicated that Bergeron was bidding only on Option "B." It was clear to the District that the documents submitted by Bergeron, including the documents from Gulf, were intended to apply only to the Option "B" bid. Gulf’s use of the project name instead of the project number is not a material deviation from the requirements of the RFB. Gulf’s use of the project name instead of the project number did not afford to Bergeron any competitive advantage not enjoyed by the other bidders. Gulf’s use of the project name instead of the project number did not provide the District with any more or any less information about what Gulf intended to do than if Gulf had used the project number. Gulf did not mark the box on the Statement of Intent form indicating whether it would perform as a corporation, partnership, individual, or joint venture. Gulf’s failure to mark the "corporation" box was not a material irregularity. There was no confusion created by the omission as Gulf obviously is not a partnership, individual, or joint venture. The abbreviation "Inc." is in Gulf’s name and appeared on the form. Moreover, it was apparent that Gulf was not proposing to perform in the capacity of a joint venture. The Petitioner submitted a bid for Option "C" that indicated an M/WBE subcontractor participation of 5.6 percent. The Petitioner’s Schedule of Participation form indicated that two M/WBE subcontractors, F.R.S. Associates, Inc. ("F.R.S.") and Contract Site Services, Inc., would be utilized. The Petitioner attached an executed quotation from both subcontractors to the Statement of Intent forms. However, because the Statement of Intent from F.R.S. was not signed by the subcontractor, as required by Section 7.05, A.2. of the RFB, the District reduced the Petitioner’s M/WBE participation to 4.78 percent.3 Inasmuch as the Petitioner’s M/WBE participation did not meet the 16 percent goal, the Petitioner submitted documentation of its good faith efforts as part of its bid. Until the last few hours before the bid submission deadline, the Petitioner intended to, and expected to, achieve the goal of at least 16 percent M/WBE participation. Only a few hours before the bid submission deadline the Petitioner realized that it would not be able to achieve the M/WBE participation goals, and that it would have to include documentation of its good faith efforts with its bid. The good faith efforts documentation submitted by the Petitioner included the following: a good faith efforts checklist executed by the President and CEO of the Petitioner; a cover document describing certain of the attached documentation and listing several newspapers in which the Petitioner purportedly advertised; a summary of the Petitioner’s M/WBE participation in federal contracts; a copy of the District’s M/WBE vendor activity report (Addendum 9, attachment 13 to the RFB) with annotations added by the Petitioner to indicate dates of contacts with M/WBE firms and notations of responses; a spreadsheet entitled Everglades Nutrient Removal Project Potential Quotations ("ENR spreadsheet") with columns indicating disciplines, names and dates of contacts, whether the firms were M/WBE’s, and notations of responses received; a form letter addressed to "All Offerors;" a copy of the District’s Commodity Vendor List, a copy of the District’s Detail Vendor Lists for Option "A" and Option "B," and a series of untitled lists of names and addresses (Enclosure One); a form letter "To Whom it May Concern" together with a list of M/WBE resource organizations (Enclosure Two); a copy of an announcement identified in the cover document as a posting on the Petitioner’s internet home page (Enclosure Three); a copy of the ABC Membership Directory/Buyers Guide and a copy of the Associated General Contractors of America Regional Membership Listing (Enclosure Four); and copies of a number of envelopes apparently returned to the Petitioner because of incorrect addresses. The Documentation of Good Faith Efforts Checklist required that a bidder providing documentation of good faith efforts include a written cover letter summarizing the bidder’s efforts and identifying the bidder’s attached support documentation. The Petitioner included a one-page cover document in its good faith efforts package to meet that requirement. The cover document stated that an announcement had been sent to firms on the District’s vendor lists, that M/WBE support organizations had been contacted, that an announcement had been posted on the Petitioner’s internet home page, that certain other contractors had been contacted and that advertisements had been placed in listed newspapers. The document further stated that 1131 total vendors and 531 M/WBE vendors had been contacted. The document did not indicate how many quotations had been received from M/WBE businesses. The Petitioner’s cover document did not identify all of the documents provided in the good faith efforts package. Further, the cover document did not explain the meaning of the annotations on the District’s vendor list, did not explain what the ENR spreadsheet represented, and did not explain the relationship between the vendor list and the spreadsheet. The good faith efforts documentation requirements are addressed in Section 7.08 of the RFB, which sets forth the material criteria of good faith efforts. For each of the criteria, the RFB first identifies the factors to be considered by the District in reviewing good faith efforts documentation and then describes the specific documents or evidence to be submitted. In determining what process the contractor used to identify M/WBE firms and contracting opportunities, Section 7.08, and 2. of the RFB contains the factors to be considered and states as follows: The Bidder shall identify available M/WBE firms and identify contracting opportunities for M/WBE participation. The Bidder shall be deemed to have made a good faith effort if documentation is provided that states the Bidder: selected portions of the project to be performed by available M/WBE firms, including dividing contracts or combining elements of work into economically feasible units, areas or quantities to facilitate maximum participation and increase the possibility of meeting the M/WBE goal; and determined M/WBE availability and developed a proposed M/WBE subcontractor/ supplier list by requesting and using the assistance of the DISTRICT’s SDO Office, state and local minority/woman business development agencies or contractor’s groups with knowledge of M/WBE availability. The "process" criterion requires the bidder to indicate to the District the process that the bidder used in identifying available firms and matching them to contracting opportunities for the project which have been identified by the bidder. The District assists the bidders in identifying contracting opportunities by providing them with a list of available M/WBE firms listed by commodity code as a starting point. The bidder is expected to review the project and apportion the work into subcontract units or components. The District also assists the bidder by providing a list of resource agencies for the bidder to use in identifying firms other than those on the District’s vendor list. The documentation needed to demonstrate compliance with Section 7.08, 1.A. is described in Section 7.08, 1.B.1 through 4 as follows: The DISTRICT, in determining good faith efforts made under subsection 1.A., shall require information including: copies of letters/transmittals to all resource agencies used to identify available M/WBE firms, including the proposed M/WBE subcontractor/supplier list developed; and the telephone numbers and the primary contact for each M/WBE firm listed; and a complete list of subcontract/supplier opportunities on the project; and identification of those opportunities for which available M/WBE firms were solicited. With respect to the requirement that the bidder provide copies of letters to all resource agencies used to identify available M/WBE firms, the Petitioner submitted with its good faith documentation package an undated form letter to the list of resource agencies which stated: To Whom it May Concern Please post and/or distribute the attached announcement conveying IT Corporation’s interest in receiving proposals from M/WBE organizations to support the South Florida Water management District’s project entitled, 'Construction of Stormwater Treatment Areas STA-1W and STA-2, Palm Beach County, Florida.' The District found the form letter to be insufficient because the letter was not drafted in a manner that was reasonably calculated to get an effective response from M/WBE organizations. It was unclear whether or not the letter was soliciting organizations for assistance in identifying available M/WBE firms or soliciting proposals from M/WBE organizations. Additionally, the letter failed to clearly state the purpose for which it was being sent, and there was no indication as to whether the letter was sent in sufficient time to elicit responses from resource agencies. With respect to the telephone numbers and the primary contact for each M/WBE firm listed, the Petitioner provided the ENR spreadsheet, the annotated copy of the District’s vendor list, and a series of untitled lists of names and addresses. The District found the Petitioner’s submission to be insufficient because it was difficult to determine whether the lists included in the good faith efforts submission included all M/WBE firms contacted. Additionally, the untitled lists did not identify which firms listed were M/WBE’s. The District was initially uncertain as to the applicability of the ENR spreadsheet to this project because it incorrectly referenced a project that the District had recently bid and awarded; consequently, there was a concern that the Petitioner had inadvertently included the spreadsheet from another project. The District was eventually able to confirm that the spreadsheet was relevant, by calling a number of the firms on the list to determine whether they had been contacted by the Petitioner. Nevertheless, the District found the document to be insufficient to meet the good faith efforts requirements. With respect to the requirement that a complete list of subcontractor opportunities for the project be provided, the Petitioner submitted the District’s annotated vendor list, which included District commodity codes, and the ENR spreadsheet, which included a column identifying disciplines in which quotations were being requested. The Petitioner utilized the scopes of work identified by the District and further broke the project down by Construction Specification Institute Code. It was the Petitioner’s expectation that the subcontractors would identify those parts of the project for which they wished to submit a quotation. The District found the Petitioner’s submission to be insufficient to meet the requirements of Section 7.08, 1.B.3. because the use of the District’s identification of scopes of work should only be a starting point in defining opportunities for subcontractors. Further, it is not sufficient for the bidder to rely solely on the M/WBE subcontractors, themselves, to identify portions of the project appropriate for subcontracting opportunities. It is the responsibility of the bidder to break out the project into potential subcontracting opportunities. With respect to those opportunities for which available M/WBE firms were solicited, the Petitioner submitted a form letter to "All Offerors" and the District’s annotated vendor list. The form letter read as follows: IT Request for Proposal No. 772125 FIELD(Contact Name) FIELD(Company) FIELD(Street Address) FIELD(City, State, Zip) FIELD(Telephone) TO ALL OFFERORS: IT Corporation is actively pursuing the following project: South Florida Water Management District Construction of STA-1W & STA-2 Palm Beach County, Florida Number: C-ECP DATE Therefore, your expression of interest in participating with us is being solicited. Your project scope letter, including any inclusions, exclusions, and terms and conditions must be received on or before: July 7, 1997 @ 2:00 p.m. Faxed proposals will be accepted. Contract documents, specifications, and drawings can be reviewed or purchased at the following locations: The South Florida Water Management District Procurement Office, B-1 Building 3301 Gun Club Road West Palm Beach, Florida 33406 561/687-6391 IT Corporation Miami Lakes Office 14505 Commerce Way, Suite 400 Miami Lakes, Florida 33016 305/819-2335 All technical questions for this solicitation should be directed to Phil Wasler or Frank Pescatore at 412/372- 7701. We look forward to receiving your proposal. IT Corporation 2790 Mosside Boulevard Monroeville, Pennsylvania 15146-2792 Fax No: 412/856-9912 Telephone No: 412/372-7701 It was the Petitioner’s position that the form letter adequately identified the project opportunities as construction work. The District found the letter to be insufficient, primarily because the letter was generic and did not identify specific portions of the project for which individual subcontractors were being solicited. In determining what methods the bidder has used in notifying M/WBE firms of opportunities, Section 7.08, 2.A.1. through 3. of the RFB contains the factors to be considered and states as follows: The methods used by the Bidder to notify and inform available M/WBE firms of the contracting opportunities shall be specified. The Bidder shall be deemed to have made a good faith effort under subparagraph 2. of this rule if: the Bidder provided written notice to available M/WBE firms concerning subcontract/supplier opportunities on the project in sufficient time (minimum two [2] weeks) to allow response and effective participation; and the Bidder advertised subcontract/supplier opportunities in general circulation, and/or minority-focused, media in sufficient time to allow response; and the Bidder followed up with interested M/WBE firms to provide detailed information about: presolicitation meetings; statement of work; Bidder’s project manager; assistance the Bidder offered subcontractors with insurance requirements; payment schedules; proposal addenda; minority/woman business assistance agencies, etc. The "methods" criterion is intended to ensure that the contractor used appropriate and effective methods to notify M/WBE firms of subcontracting opportunities. Since there is a perception in the M/WBE community that contractors often do not make a genuine effort to reach out to M/WBE subcontractors, it is important that the bidder use effective methods in matching identified subcontracting opportunities to available and capable M/WBE firms. The documentation needed to demonstrate compliance with Section 7.08, 2.A. is stated in Section 7.08, 2.B.1. through 4. as follows: The DISTRICT, in determining efforts made under subsection 2.A., shall require information with the sealed Bid, including: copies of individually addressed letters and/or requests for quotations issued to M/WBE firms; and the individual letters or requests for quotations must reference the type of work the M/WBE firms were being solicited to perform; and the advertisement or the tear sheet from newspapers used, the follow-up correspondence to M/WBE firms and/or minutes of meetings held with M/WBE subcontractors or suppliers. With respect to the requirement that the Petitioner submit copies of individual letters and/or requests for quotations issued to M/WBE firms which referenced the type of work the M/WBE firms were being solicited to perform, the Petitioner submitted a form letter to "All Offerors" stating the Petitioner’s intent to bid on construction of STA-1W and STA-2, and Enclosure One to the good faith efforts package, which contained various lists of firms, both M/WBE and non-M/WBE. The Petitioner did not include any copies of individually addressed letters. The Petitioner was of the view, based on modern business practice, that it was not important to provide copies of individually addressed letters since the form letter had blank fields to fill in the name, address, and telephone numbers of those to whom the letter was sent. There was no documentation indicating when letters might have been mailed other than dates on copies of a few returned envelopes that were submitted with the Petitioner’s good faith efforts package. The District found the Petitioner’s documentation to be insufficient because the Petitioner did not provide copies of any of the individual letters. The form letter that the Petitioner provided failed to identify specific services or products for which subcontractor proposals were being solicited. Further, it was not possible to determine from an undated letter whether notice had been given in sufficient time to allow M/WBE firms to respond to the solicitation. The form letter did not identify the scope of work for which any individual subcontractor was being solicited. Instead, the Petitioner expected the subcontractors to identify those parts of the project they were interested in. With respect to the requirement that the Petitioner provide a copy of the newspaper advertisement or tear sheets, the Petitioner submitted a cover document referencing seven newspapers in which it claimed to have placed advertisements. The failure to provide the actual advertisement or tear sheet was an oversight on the part of the Petitioner. The District found the Petitioner’s documentation to be insufficient because it was not possible to verify that the advertisements had been placed in the listed newspapers and several papers listed in the Petitioner’s cover document were not readily identifiable. Additionally, without proof of publication, the District could not determine whether any of the newspaper advertisements had been placed in sufficient time to allow M/WBE firms to respond. With respect to the requirement that the Petitioner submit documentation of follow-up correspondence to M/WBE firms or minutes of meetings with M/WBE subcontractors, the Petitioner submitted the ENR spreadsheet which contained a column labeled "Response." Under that column the Petitioner had made notations such as "will bid," "sent scope," or "will call back." The Petitioner’s good faith efforts package did not include any minutes of any meetings between the Petitioner and any M/WBE subcontractors. The District found the Petitioner’s submission to be insufficient because there were no documents in the good faith efforts package that constituted follow-up correspondence or minutes of meetings held with M/WBE subcontractors. The Petitioner’s own notations on the ENR spreadsheet are not sufficient to document whether follow-up correspondence was sent to or whether meetings were held with M/WBE subcontractors. In determining whether a bidder has used good faith efforts in evaluating the M/WBE firms and in contracting with them, Section 7.08, 3.A.1. through 3. of the RFB contains the factors to be considered and states as follows: The DISTRICT shall evaluate the good faith efforts used by the Bidder in evaluating each M/WBE subcontractor’s response and contracting with M/WBE firms. The Bidder shall be deemed to have made a good faith effort under subparagraph (3) of this rule if the Bidder: documented and considered all negotiations held from M/WBE subcontractors, not rejecting M/WBE subcontractors as unqualified without thoroughly investigating their capabilities; and documented reasons why quotations with M/WBE subcontractors were not used and followed up with notices to the unsuccessful M/WBE subcontractors indicating such reason(s); and has utilized M/WBE subcontractors or suppliers on major projects within the past 12 months. The "evaluation" criterion is intended to ensure that, once initial contacts have been made, firms are not rejected out of hand without fair consideration of their capabilities or because their price is a little higher than another non-M/WBE firm. To obtain that assurance, the District requires evidence of quotations actually received from M/WBE firms; documentation of attempts to assist the M/WBE firms to reach a competitive price; and an explanation of why quotations submitted by the M/WBE firms were not selected. The documentation needed to demonstrate compliance with Section 7.08, 3.A. is set forth in Section 7.08, 3.B. of the RFB and states as follows: The DISTRICT, in determining efforts made under subsection 3.A., shall require as part of its information: documentation on negotiations held with and quotations received from unsuccessful M/WBE subcontractors and a M/WBE Utilization Plan specifying the M/WBE firms that will be used during the project. With respect to the requirement that the Petitioner document its negotiations held with and quotations received from unsuccessful M/WBE subcontractors, the only documents the Petitioner submitted were the ENR spreadsheet and the annotated vendor list. The Petitioner provided a five-year summary of utilization of M/WBE subcontractors on major projects and a utilization plan showing that it intended to use two M/WBE subcontractors, F.R.S. and Contract Site Services. The District found that the Petitioner had submitted insufficient documentation to demonstrate compliance with this requirement because the District needed to see both actual quotations and substantive documentation regarding negotiations between the bidder and the subcontractor to determine whether an M/WBE subcontractor was properly evaluated by the bidder. While the column in the ENR spreadsheet labeled "Response" indicates that some M/WBE firms had submitted quotations, no copies of actual quotations were provided to the District. Moreover, there was no documentation explaining why M/WBE firms which had submitted quotations were not used. Although the "response" column on the ENR spreadsheet was intended to indicate that negotiations had taken place with some, but not all, of the listed M/WBE firms, that intent was not explained in the Petitioner’s cover document. Based on the foregoing, the District reasonably determined that the Petitioner’s good faith efforts documentation was insufficient to meet the standards set forth in each of the three areas of good faith efforts criteria.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the South Florida Water Management District issue a Final Order in this case to the following effect: Dismissing the petition and amended petition in this case and denying all relief requested by the Petitioner and awarding the subject contracts to the Intervenors. DONE AND ENTERED this 15th day of October, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1997.
The Issue : The issue to be resolved in this proceeding concerns whether the agency action in recommending award of the contract for a renovation of a National Guard Armory to Concrete Services, Inc. (CSI) was "clearly erroneous, contrary to competition, arbitrary or capricious." More specifically, it must be determined whether a specification requiring that all general and subcontractors visit the project site and examine the existing site conditions prior to bid submittal, and certifying to that fact, was a waivable or minor irregularity, not affecting the price of the proposal by giving an unfair competitive advantage to any bidder or proposed vendor.
Findings Of Fact The Department of Military Affairs (Department) issued an invitation to bid for certain renovation work at the National Guard Armory in Tallahassee. The invitation to bid was issued on March 2, 2008. It was accompanied by an advertisement number 207005 and addenda No. 1-3. These were the documents that defined the scope of the work proposed to be constructed by the Department and the various specifications, conditions, and criteria which were to guide and be relied upon by prospective vendors or bidders. The invitation to bid stated that the contract would be awarded to the lowest responsive and responsible bidder. The invitation to bid notified prospective bidders that the Department reserved the right to waive minor irregularities in a bid where they did not affect the price of the proposal. Thus, the Department stated in the Invitation to Bid "the Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award with or without further discussion of the proposals submitted or accept minor informalities or irregularities in the best interest of the State of Florida, which are considered a matter of form and not substance and the correction or waiver of which is not prejudicial to other proposals." The reasons stated in the Invitation to Bid and Addenda for disqualification of a bidder did not include the failure of the contractor or subcontractors to visit the project site. Rather, the invitation to bid and advertisement list placed on the discriminatory business list, the submission of an electronic bid and employment of unauthorized aliens as irregularities that would result in disqualification of a bidder. The invitation to bid defines minor irregularities as "those that will not have an adverse effect on the DMA's interest and will not affect the price of the proposal by giving a proposer an advantage or benefit not enjoyed by all other proposers." The Department thus did not make failure of a contractor or subcontractor to visit the site of the project an event that would result in disqualification. The Department's intent rather was to place contractors on notice that failure to visit the site would be at the sole risk of the general contractor/bidder if failure to visit the site resulted in an unforeseen problem, cost, or risk. The Department stated at Addendum 1, D-9 the following: D-9 site examination by contractor: The general contractor and all subcontractors as listed on Exhibit Five, shall visit the project site and examine the existing conditions affected by this work prior to submitting a bid. Any bid submitted without prior examination of on-site existing conditions will be at the sole risk of the general contractor. The contractor shall submit on its letterhead the following at time of bid, certifying that he and his subs thoroughly examined the project site: 'I (name of general contractor), do hereby certify that all associated general and subcontractor entities have visited the project site and thoroughly examined the on- site existing conditions prior to the submittal of the bid.' Lt. Col. Keating is the contract officer and manager. His duties include reviewing the bids and making final determination on bid proposals submitted to the Department for projects such as this renovation project. He reviewed the entire package of bid submissions after the bid opening in Tallahassee. These are his duties concerning every bid opening of the Department. Lt. Col. Keating reviewed the failure of CSI to submit the Addendum D-9 letter and determined that the absence of the letter did not give CSI an unfair competitive advantage. He determined that this was a minor irregularity which was waivable. Mr. Hersey was the construction consultant for the Department for this project. Mr. Hersey reviewed the CSI file after the bids were submitted, noting that CSI's bid did not include all the verbiage required by Addendum One, D-9. He determined, however, that the proposed included the "Exhibit 4" document which stated that CSI had "visited the site of the proposed project and familiarized himself with the local conditions, nature, and extent of the work." Mr. Hersey brought this omission to Lt. Col. Keating's attention. Lt. Col. Keating considered the failure of CSI to submit the Addendum 1, D-9 letter language and determined that the omission did not give CSI an unfair competitive advantage over other bidders and therefore that it was a minor irregularity. He determined that the fact that there was language in the bid submittal of CSI to the effect that the contractor had visited the site and familiarized himself with conditions, nature, and scope of the work made the bid actually responsive. The failure to include the language required in Addendum 1, D-9 did not render the bid unqualified or non- responsive, but, instead, the failure to include that language would have the consequence of making CSI responsible for any loss caused by the failure to visit the project site or have the subcontractors visit the project site before bidding. If that omission caused any additional cost or unforeseen circumstances which had a cost attributable to them, CSI would have to bear the risk of paying for any such expense itself under the terms of the specifications. It was thus determined that the failure to visit the site had the consequence of making the contractor assume resulting risks but was considered by the Department to be a quality assurance measure in the specifications, instead of a determining or qualifying factor for award of the project. Lt. Col. Keating determined that the failure to submit the required language in the letter did not give CSI an unfair competitive advantage. CSI's bid was $1,866,212.00. The bid of the Petitioner, Warren Building Company, Inc., was $1,944,000.00. Thus, CSI's bid was $77,788.00 lower than the bid submitted by the Petitioner Warren. In preparing his bid submittal, the Petitioner had not been charged by his subcontractors for their visiting the Tallahassee project site. His entire cost of submitting the response to the invitation to bid on behalf of Warren, was $10,000.00 or less. Thus, the failure by CSI to have subcontractors visit the site and evaluate the work was clearly not shown to have saved CSI costs, in an amount anywhere approaching the total difference in the amounts of the two bids. Only if the avoidance of such costs represented by the visits of the contractor and subcontractors to the job site was greater than or at least approximately equal to the $77,788.00 difference between the two bids, would the failure of CSI to entirely comply with this specification result in a change in the relative competitive positions of the two bidders. Put another way, there was no evidence to show that had CSI completely complied with the disputed specification, that it would not still have much the lowest-priced responsible and responsive bid. It was thus determined by Lt. Col. Keating that the $1,866,212.00 bid submitted by CSI was the lowest responsible and responsive bid. He therefore determined that the award of the contract should be give to CSI and an Agency decision to that effect was posted on April 11, 2008. The subject protest and proceeding ensued.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Military Affairs, awarding the contract for renovation work at the National Guard Armory in Tallahassee, Florida (No. 207005) to Concrete Services, Incorporated. DONE AND ENTERED this 20th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2008. COPIES FURNISHED: Thayer M. Marts, Esquire 1105 Hays Street Post Office Box 1814 Tallahassee, Florida 32302 Kim F. Heller, II, Esquire Elizabeth C. Masters, Esquire Florida National Guard Post Office Box 1008 St. Augustine, Florida 32085-1008 Elizabeth C. Masters, Lt. Colonel Florida Army National Guard 82 Marine Street St. Augustine, Florida 32084
Findings Of Fact Respondent issued an Invitation To Bid (ITB) for Bid No. 91-04, entitled "Granular Activated Carbon (GAC) Filter Installations and Exchanges" in September, 1990. Two bids were received in response to Respondent's ITB 91-04; one from Petitioner for a composite total price of $748,355.00 and one from Continental Water Systems, Inc. (Continental), for a total composite price of $904.475.00. An intended contract award was delayed until the bids were evaluated. Subsequently, Respondent determined to award the bid to Continental on October 12, 1990. The issue in the ensuing bid dispute in Division of Administrative Hearings Case No. 90-6962BID was the responsiveness of Petitioner's bid on carbon specifications to be used in water filters. The bid document did not require manufacturers' specifications, requiring instead only generic specifications or a description of the product to be used. Respondent awarded the bid to Continental after determining Petitioner's bid to be nonresponsive, although the bid appeared facially responsive. In the course of evaluating the bids, Respondent's personnel went beyond the bid submissions and telephoned the manufacturer of the carbon proposed to be used in Petitioner's bid submittal. The manufacturer confirmed the content of Petitioner's bid that a lot analysis and hand selection could be done to select lots of carbon of a specified iodine number of 950 or greater in satisfaction of Respondent's specifications. Absent such a selection process, no manufacturer in this country produces a standard carbon which meets Respondent's bid specifications. While the ITB required bidders to submit specifications for products, it did not require submission of manufacturer's specifications. However, Petitioner's bid submittal included the manufacturer's specification sheet for an activated charcoal product known as GAC 30. The iodine number 950 appeared on the sheet with an asterisk next to it. At the bottom of the page was a typed note explaining that lots with this iodine rating would be specifically selected to meet or exceed all bid requirements. In reviewing Petitioner's bid, Respondent's personnel were aware that Petitioner had been using selected lots of GAC 30 in fulfilling a previous bid award for the same project from the Department of Agriculture and Consumer Services which specified carbon with an iodine number of 950. Further, Respondent's personnel knew that lot analyses were provided to the Department of Agriculture and Consumer Services to confirm the carbon's standards. As a result of that knowledge, a provision for an analysis of each carbon lot to be used was included in Respondent's ITB. On October 9, 1990, when Respondent's employee telephoned the manufacturer whose specification sheet was submitted by Petitioner, he was orally informed that while the iodine number for GAC 30 is 900, the actual iodine number for GAC 30 is often above 950 and that lot selections of carbon could be made meeting or exceeding 950. Later, per the employee's request for written confirmation, he received a facsimile letter dated October 10, 1990, from the manufacturer. Without regard for these findings, Respondent rejected Petitioner's bid because the actual manufacturer's specification for the carbon proposed by Petitioner did not meet bid requirements. 1/ While Respondent's personnel deemed it appropriate to consider information from the manufacturer of GAC 30 that its actual specifications were different from those submitted by Petitioner, the manufacturer's confirmation of Petitioner's explanation that lots would be selected to meet bid requirements was rejected. Petitioner is a corporation which, at the time of the bid submittal, had its principal office in Winter Haven, Florida. At that time, Petitioner had 12 employees. Petitioner is a prevailing small business party and was awarded the bid by Final Order of Respondent dated February 18, 1991. In the course of the administrative litigation culminating in Respondent's Final Order, Petitioner incurred attorney's fees in excess of $15,000.
The Issue The issue in this case is whether the bid of Corporate Interiors, Inc. (Petitioner) is the lowest responsive bid which was received by the Pinellas County School Board (Petitioner) for stacking polypropylene and upholstered chairs for the New District Administration Building.
Findings Of Fact On or about February 27, 1990, the Respondent sought competitive bids for stacking polypropylene and upholstered chairs for the New District Administration Building. In response thereto, Respondent timely received four bids, two of which were determined to be responsive. The bid opening occurred on April 17, 1990, and Petitioner was determined to have submitted the lowest bid. However, the Petitioner's bid did not include an amount for sales tax, and on that basis alone, the Respondent indicated its intent to award this contract to another responsible bidders. There is no dispute that the Respondent does not pay sales tax on transactions involving the acquisition of furnishings for the Pinellas County School System. Nevertheless, Section 9.2.2 of the bid specifications erroneously stated that this contract would not be exempt from sales tax. The Respondent admitted at hearing that under Section 5.3.1 of its bid instructions, it should hake waived the Petitioner's failure to include sales tax in the bib amount since this is inapplicable to this acquisition. The Respondent, in effect, concedes error in its previous notice of intent to award this contract to another bidder, and does not contest the Petitioner's claim that it submitted the lowest responsive bid for stacking chairs.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order awarding the contract for stacking chairs for the New District Administration Building to Petitioner. DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 8th day of June, 1990. APPENDIX DOAH CASE NO. 90-2982 BID Petitioner filed a letter, but no proposed findings of fact upon which a ruling could be made. Rulings on Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 3. Adopted in Finding 1. 4-6. Adopted in part in Finding 2, but otherwise Rejected as unnecessary. Adopted in Finding 3. Adopted in part in Finding 2, but otherwise Rejected as unnecessary. COPIES FURNISHED: Allen D. Zimmerman, President Corporate Interiors, Inc. 1090 Kapp Drive Clearwater, FL 34625 Bruce P. Taylor, Esquire P. O. Box 4688 Clearwater, FL 34618-4688 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618
The Issue The two major issues in this case are as follows: Was the failure of Datamaxx to submit resumes of training and maintenance personnel as required by Performance Mandatory No. 10 of the Invitation to Bid a material deviation from the Invitation to Bid such as to render Datamaxx a nonresponsive bidder? If Datamaxx was a nonresponsive bidder, must the contract be awarded to Burroughs, or must DHRS, pursuant to Section 13A-1.002(3), Florida Administrative Code, have the contract rebid, or seek single source procurement or negotiation approval from the Division of Purchasing?
Findings Of Fact Based on the admissions of the parties, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence, I make the following findings of fact: For at least the past 10 years, the DHRS Data Communications Network has been maintained by Burroughs on a sole source basis. At the end of the previous Burroughs Terminal Maintenance contract with Burroughs, the Department of General Services (DOS) asked DHRS to bid the contract in lieu of sole source procurement, it being the belief of DOS that there was competition in this area. On or about September 19, 1986, DHRS published an Invitation to Bid which advised prospective bidders that sealed bids would be opened on October 20, 1986, for a contract, known as "Burroughs Terminal Maintenance" [Bid No. 86 ATM] regarding maintenance of the terminals of the DHRS Data Communications Network. The Special Conditions of the Invitation to Bid contained, among others, the following provisions: The State has established certain require- ments with respect to bids to be submitted by bidders. The use of "shall," "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this Invitation to Bid requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. (at p. 1) No negotiations, decision, or actions shall be initiated or executed by the bidder as a result of any discussions with any State employee. Only those communications which are in writing from the Department's Purchasing office may be considered as a duly authorized expression on behalf of the State. Also, only communications from bidders which are signed and in writing will be recognized by the State as duly authorized expressions on behalf of the bidder. (at p. 2) All personnel performing maintenance must be trained to service the equipment covered by this contract. Training shall be completed before the individual is assigned to service the equipment covered by this contract. Training shall be provided to whatever level is necessary to ensure the individual has the required qualifications to perform satisfactory maintenance service on Burroughs equipment listed in Attachment A of this Invitation to Bid. Bidder shall submit with their bid a summary of their Burroughs training program and resumes of personnel who will be performing this training and the resumes of personnel who will be per- forming the maintenance. (at p. 8) Bidder shall certify to the State, at the time the bid is submitted, that bidder has existing established service centers staffed with personnel trained to service the equipment covered by this contract . . . In lieu of this requirement, if bidder does not have existing established service centers, liaison office, and trained personnel, and bidder submits a plan for compliance, the required certification must be given the State no later than two (2) weeks prior to the anticipated starting date of the contract as indicated in the paragraph of this document entitled Calendar of Events. Failure to comply with this requirement shall result in rejection of the bid and award of the bid to the next lowest responsive bidder. The Invitation to Bid was drafted by the Department of Health and Rehabilitative Services. The only bidders on the contract (other than no- bids) were Burroughs and Datamaxx. DHRS found Burroughs and Datamaxx both to be responsive bidders and posted their bids making them public in the recognized manner of publicizing the bidder to be awarded a bid. Both bids were found to be responsive by DHRS at the time they were made public. The Datamaxx bid was the lowest bid and the Burroughs bid was the next to lowest bid. DHRS staff recommended the contract be awarded to Datamaxx. The Datamaxx bid was approximately $784,000 less than the Burroughs bid. In its bid Datamaxx indicated that it understood and agreed to all provisions of the Invitation to Bid, specifically including those dealing with Mandatory Requirements, Verbal Instruction Procedure, Rejection of Bids, Bid Evaluation, Performance Mandatories, and Certification. Datamaxx submitted the Certification required under the terms of the Invitation to Bid and did not submit a plan for compliance with its bid. Datamaxx never requested in writing that the requirement for resumes be waived, and DHRS never advised Datamaxx in writing that it did not have to submit the resumes. Datamaxx did not submit with its bid the resumes of training and maintenance personnel required under Performance Mandatory 10 of the Invitation to Bid. Performance Mandatory No. 10 required the submission of resumes with the bid, and did not concern an event that would take place after the bid had been let. DHRS considered the requirement for resumes to be a mandatory requirement. The qualifications of the persons who would be performing the maintenance under the contract would have a potentially significant effect on the quality of the maintenance provided. Nothing could be more material to the contract than the ability of the personnel to perform that contract. The difference in the dollar amount of the bids of Burroughs and Datamaxx influenced the decision of DHRS in finding Datamaxx to be a responsive bidder. This was a major reason Datamaxx was found to be a responsive bidder. In evaluating the Datamaxx bid, DHRS went outside the material provided in the Datamaxx bid. Subsequent to the posting of bids, DHRS met with Datamaxx and advised Datamaxx that its initial submission was deficient for not including resumes with the bid, that DHRS had waived the resumes, but that in order for DHRS to continue its recommendation that the bid be awarded to Datamaxx, DHRS had to have the resumes prior to the awarding of the bid. DHRS considered it an error and a deficiency in the bid that the resumes were not furnished. Datamaxx, on November 6, 1986, advised DHRS in a letter to Charles Ray that it would submit a plan which would address, among other things, service personnel resumes by November 17, 1986. DHRS could not have considered Datamaxx's letter of November 6, 1986, in evaluating whether Datamaxx was a responsive bidder, because that letter was not received until after DHRS had already found Datamaxx to be a responsive bidder and recommended that the contract be awarded to Datamaxx. Had Datamaxx not submitted the resumes prior to November 17, 1986, DHRS staff would have recommended that the award of the contract be withdrawn. The performance the State would receive under the contract would directly depend on the qualifications of the persons performing the service and the maintenance, and the resumes would be the only source of information regarding the qualifications of the personnel.
Recommendation For all of the foregoing reasons, it is recommended that a final order be entered to the following effect: Concluding that the bid submitted by Datamaxx USA Corporation on Bid No. 86 ATM should be rejected on the grounds that it is not responsive, Concluding that the bid submitted by Burroughs Corporation should be rejected on the basis of Rule 13A-1.002(3), Florida Administrative Code, and, Providing for the agency to issue a second invitation to bid/request for proposals or take other action provided by Rule 13A-1.002(3), Florida Administrative Code. DONE AND ENTERED this 25th day of June 1987, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4460B1D The following are my specific rulings on each of the proposed findings of fact submitted by both parties: Findings proposed by Petitioner Paragraphs 1 through 19 are accepted with a few minor editorial modifications. The first two lines of paragraph 20 are rejected as redundant. The remainder of paragraph 20 is accepted. Findings proposed by Respondent Paragraphs 1 and 2 are accepted in substance. Paragraph 3 is rejected as constituting unnecessary details. Paragraphs 4 through 7 are accepted. Paragraphs 8, 9, and 10 are rejected as irrelevant. Paragraph 11 is rejected in part as irrelevant and in part as contrary to the greater weight of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as constituting irrelevant and unnecessary details. COPIES FURNISHED: Robert L. Powell Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-205, relating to the removal and replacement of the public address system at Countryside High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, the ITB was issued by Respondent for work related to the removal and replacement of the public address system at Countryside High School in Clearwater, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-205 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $118,143.27. Petitioner submitted a bid in the amount of $108,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-205 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2013.
