Findings Of Fact On or about January 26, 1990, the Respondent sought competitive bids for Lease Number 590:2154 for the lease of certain office space in Brandon, Florida. The bid opening occurred on March 1, 1990, and Intervenor was determined to have submitted the lowest responsive bid. In addition to Intervenor's bid, the only other bid received in response to this invitation to bid was from Regina M. Hasey, for whom Petitioner purports to act as agent in this proceeding. A condition set forth in the invitation to bid was that bids would remain valid for a minimum of forty-five days following the bid opening. There is no dispute that Regina M. Hasey withdrew her bid and terminated her offer on April 18, 1990, after the expiration of this forty-five day period. Petitioner's representative admitted that he knew of Hasey's termination of her offer prior to the filing of this protest, and that he had been copied on the letter of April 18, 1990 withdrawing her bid. On or about May 8, 1990, the Department notified Hasey of its intent to award this lease to Intervenor, and on May 10, 1990, the Petitioner filed its notice of protest concerning this award claiming that Intervenor's bid was not responsive to the parking requirements in the invitation to bid. Petitioner is designated in the Hasey bid as agent for Hasey, and it is clear that Petitioner did not submit this bid in its own right, but rather solely as agent for Hasey. Petitioner's protest was filed without any reasonable inquiry by Petitioner into the facts surrounding the Respondent's invitation to bid, Intervenor's bid, and the legal consequences of the withdrawal of Hasey's bid. As a result of Petitioner's protest, the award of Lease Number 590:2154 to Intervenor has been delayed, at this stage of the proceeding, for almost three months, and the Respondent and Intervenor have had to incur legal expenses to oppose Petitioner's protest and proceed with this award. There is no evidence in this record to indicate that Petitioner filed this protest in an attempt to change the agency's mind regarding the award of this lease to Intervenor, and in fact there is no possible basis upon which this award could have been made to Petitioner after Hasey withdrew her bid. As such, Petitioner's protest was entirely frivolous. See Mercedes Lighting and Electrical Supply v. Department of General Services, et al., 12 F.A.L.R. 1912 (Fla. 1st DCA 1990).
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioner's protest for lack of standing, and awarding Lease Number 590:2154 to Intervenor. DONE AND ENTERED this 27th day of July, 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 27th day of July, 1990. APPENDIX Rulings on Intervenor's Proposed Findings of Fact: Adopted in Findings 1 and 2. Adopted in Finding 3. 3-4. Adopted in Finding 4. Rejected as procedural matters and otherwise as unnecessary. Adopted in Finding 3. Rejected as unnecessary. Adopted in Findings 3 and 4. Adopted in Finding 6. 10-11. A ruling has been reserved on the issue of an award of attorney's fees and costs, and these proposed findings are solely related to that issue which has not been addressed in this Recommended Order. Copies furnished: Jack Farley, Esquire District 6 Legal Office 4000 West Dr. Martin Luther King, Jr., Blvd. 5th Floor, Room 520 Tampa, FL 33614-9990 Alan Taylor P. O. Box 7077 Winter Haven, FL 33883-7077 Mark A. Brown, Esquire Theo J. Karaphillis, Esquire P. O. Box 3239 Tampa, FL 33601 R. S. Power, Agency Clerk 1323 Winewood Blvd. Building One, Room 407 Tallahassee, FL 32399-0700 John Miller, General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue in this case is whether the bid specifications, together with other applicable authority, require that a bid, in order to be responsive, contain any written list of subcontractors.
Findings Of Fact On September 26, 1989, Respondent issued a document entitled, Specifications for Replacement of Air Conditioning, West Orange High School, Winter Garden, Florida, Engineers Project No. 89-016. As amended by three addenda, the above-described specifications shall be referred to as the "ITB." Respondent duly advertised for bids ore September 26, October 3, and October 10, 1989. The advertisement did not state that Respondent reserved the right to waive minor irregularities. In response to the ITB, Florida Mechanical, Inc. ("FMI") and B & I Contractors, Inc. ("B & I") timely submitted bids. For the base work and alternate 1, which Respondent ultimately decided to select, FMI bid $1,439,000, B & I bid $1,438,000, and a third bidder, S. I. Goldman, Company bid $1,621,000. These bids are recorded on a Bid Tabulation Sheet prepared by the engineer retained by Respondent for the project. The Bid Tabulation Sheet contains eight columns. Four columns record bid amounts for the base work and various alternates. The remaining columns are entitled, "Bidder," "Bid Bond," "Addenda," and "Subs." Each of the three bidders were named in one of the rows beneath the "Bidder," column. Each bidder had one "X" in its "Bid Bond" column and three "X"s in its "Addenda" column. However, only FMI and S. I. Goldman Company had "X"'s in their "Subs" columns. By resolution adopted on November 29, 1989, Respondent directed that all bids were rejected and that the Superintendent would correct any ambiguities and uncertainties in the ITB and solicit new bids. The resolution noted that Respondents staff had recommended that, if any bid were accepted, it should be that of B & I. However, [FMI] submitted with its bid a list of Major Sub-contractors of the form displayed in the [ITB], and B & I did not submit wish its aid a list of Major Sub-contractors[.] The resolution concluded that Respondent based on advice of staff and counsel, found that the [ITB is) ambiguous and/or uncertain as to whether or not a bidder must submit along with his bid a list of Major Sub-contractors, (b) that because of such ambiguity and/or uncertainty, it would be unfair and/or improper for [Respondent] to accept either of the bids received by it, and (c) that as a result thereof [Respondent] should reject all bids received by it for ,the Project and should solicit new bids for the Project as soon as is reasonably feasible after correction by [Respondents] staff of any ambiguity and uncertainty as aforesaid in the [ITB]. FMI and B & I each timely filed a notice of intent to protest and formal written protest of Respondent's decision to reject each company's respective bid. S. I. Goldman did not protest the decision and is not a party to the subject case. At a meeting on December 12, 1989, Respondent elected to refer the bid protests to the Division of Administrative Hearings for a formal hearing., At the beginning of the hearing, the parties filed a written stipulation, which stated that the only issue for determination was which Petitioner should be awarded the contract and not whether Respondent should seek further bids or award the contract to another bidder. The stipulation also stated that the Petitioners and Respondent agreed to abide by the recommendation of the hearing officer. At the hearing, the parties further stipulated that the sole issue for determination is whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. In addition, the parties stipulated that both Petitioners had standing and the protests were timely and sufficient. The ITB requires that each bidder familiarize itself with all federal, state, and "Local Laws, ordinances, rules, and regulations that in any manner affect the work." Under the section entitled, "Preparation and Submission of Bids," the ITB states: "Each bidder shall use the Bid Form that is inserted herein, and may copy or reproduce the form on this own letterhead." Among other requirements, the ITB requires two bonds. The first is a "bid guarantee" of at, least five percent of the amount of the bid. The form of this guarantee may be cash or a Bid Bond." The other bond described in the ITB a 100% public construction bond. The surety on this bond must have been admitted to do business in Florida, must have been in business and have a record of successful continuous operation for at least five years, and must have at least a Bests Financial Rating of "Class VI" and a Bests Policyholder Ration of "A." The Bid Form contained in the ITB is two pages. Among other things, the Bid Form requires that the bidder receiving written notice of acceptance of its bid must provide the prescribed payment and performance bond and execute the contract within ten days after notification. The next document in the ITB is a single page entitled, "Form of Bid Bond." The provisions on this page identify the A.I.A. document to use and state that the Bid Bond "shall be submitted with the Bid Proposal Form." The next document in the ITB is a single page entitled, "List of Major Subcontractors." The List of Major Subcontractors states: Bidders shall list all major subcontractors that will be used if a contract is awarded. Additionally, bidders shall identify in the appropriate box whether or not that trade specialty is minority owned. Another paragraph defines minority ownership. The remainder of the form consists of ten rows for the "bidder" and nine major subcontractors, such as concrete, electrical, HVAC, and controls, and blanks where the bidder can indicate which of these entities are minority owned. The next document in the ITB is the Owner-Contractor Agreement, which is followed by tie Form of Construction Bond, General Conditions, and Supplementary General Conditions. Section 7.11 of the Supplementary General Conditions establishes certain requirements to be performed after the submission of bids. This section provides: Pre-Award Submittals: Before the Contract is awarded the apparent low bidder shall provide the following information to the owner. A copy of the Contractors current State of Florida General Contractor's or Mechanical Contractors License. Pre-Construction Meeting. After the Notice to Proceed and within eight (8) business days of the Owner [sic], the Contractor shall meet with the Owner, Engineer and Subcontractors that the Owner may designate... The Contractor shall provide the following to the Owner. * * * 2. A written list of all Subcontractors, material men and suppliers with such information as requested by the Owner or Engineer. * * * The remaining documents in the ITB are the technical specifications for the job. The three addenda supply additional technical information not relevant to this case. Respondent has promulgated rules with respect to the bidding process ("Rules"). The ITB does not refer to the Rules, which define and use many terms that are found in the ITB. For instance, Rule 1.1.25 defines the phrases, "Performance and Payment Bond," which is the same phrase used in the Bid Form in the ITB. The Rules define several other capitalized terms that are also used in the ITB, such as Bid Bond, Bid Guarantee, Bidder, and Contractor. Rule 4.1 similarly states that the bidder is familiar with federal, state, and "Local Laws, Ordinances, Rules and Regulations that in any manner affect the Work." Rule 6.1 describes the process by which a bidder is to prepare and submit bids and the Bid Guarantee in language similar to that contained in the ITB. Rule 6.2 discusses the listing of subcontractors. Rules 6.2.1 and 6.2.2 state: General Contractor shall include as an integral part of his bid a List of Subcontractors he proposes to use. The Bidder shall enclose this list in a 4" x 9" envelope, sealed and marked "List of Subcontractors" and identified ... The Bidder shall enclose said envelope with his bid proposal in the mailing envelope. The List of Subcontractors enclosed with tee Proposal of each Bidder will be examined by the ... Engineer before the Proposal is opened and read. In the event that the form is not properly executed and signed, the Proposal of that Bidder will be returned to him unopened... Rule 6.3 requires a Statement of Surety as another "integral part" of each bid. Rule 6.3.3 states: The Statement of Surety will be opened examined by the ... Engineer prior to the opening of the Proposal.... Although similar to Rule 6.2, Rule 6.3 lacks the warming that if the Statement of Surety is not "properly executed and signed, the Proposal of that Bidder will be returned to him unopened." Rule 19.1 sets forth the requirements, for the surety. These requirements are different than those set forth in the ITB. Rules 19.1.1 and 19.1.2 require, as does the ITB, that the surety be admitted to do business in the State of Florida and shall have been in business and have a record of successful continuous operations for at least five years. However, Rule 19.1.1 requires that the surety be represented by a reputable and responsible surety bond agency licensed to do, business in the State of Florida and have a local representative in the Orlando area. Rule 19.1.3 requires minimum Bests ratings of "A" in "management," and, as to "strength and surplus," "AAA+" in financial rating and $12,500,000 minimum surplus. Rule 19.1.3.3 also requires that the surety be listed on the U.S. Treasury Departments Circular 570. The bids of FMI and S. I. Goldman Company contained a completed List of Major Subcontractors. The bid of B & I did not. No bidder included a Statement of Surety with its bid.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Orange County enter a Final Order awarding the subject contract to Florida Mechanical, Inc. ENTERED this 15th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of FMI All of FMI's proposed findings have been adopted or adopted in substance. Treatment Accorded Proposed Findings of B & I 1-4: adopted or adopted in substance. 5: adopted, except that the staff recommended that, if the bid was to be awarded, that it be awarded to B & I. 6: adopted in substance. 7: rejected as conclusion of law and, to the extent fact, subordinate. 8-12: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as subordinate. 18: rejected as unsupported by the greater height of the evidence. 19-21: rejected as subordinate. 22: rejected as beyond the scope of the issues and irrelevant in view of the stipulation. In the stipulation, the parties agreed that the issue to be addressed would not be whether the intended agency action of Respondent was lawful (i.e., not arbitrary, fraudulent, dishonest, or otherwise improper), but rather whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. COPIES FURNISHED: James L. Schott, Superintendent The School Board of Orange County, Florida P.O. Box 271 Orlando, FL 32802 Charles Robinson Fawsett, P. A. Shutts & Bowen 20 North Orange Avenue Suite 1000 Orlando, FL 32801 James F. Butler, III Smith, Currie & Hancock 2600 Peachtree Center Harris Tower 233 Peachtree Street, N.E. Atlanta, GA 30043-6601 William M. Rowland, Jr., Esq. Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue P.O. Box 305 Orlando, FL 32803
The Issue : The issue to be resolved in this proceeding concerns whether the agency action in recommending award of the contract for a renovation of a National Guard Armory to Concrete Services, Inc. (CSI) was "clearly erroneous, contrary to competition, arbitrary or capricious." More specifically, it must be determined whether a specification requiring that all general and subcontractors visit the project site and examine the existing site conditions prior to bid submittal, and certifying to that fact, was a waivable or minor irregularity, not affecting the price of the proposal by giving an unfair competitive advantage to any bidder or proposed vendor.
Findings Of Fact The Department of Military Affairs (Department) issued an invitation to bid for certain renovation work at the National Guard Armory in Tallahassee. The invitation to bid was issued on March 2, 2008. It was accompanied by an advertisement number 207005 and addenda No. 1-3. These were the documents that defined the scope of the work proposed to be constructed by the Department and the various specifications, conditions, and criteria which were to guide and be relied upon by prospective vendors or bidders. The invitation to bid stated that the contract would be awarded to the lowest responsive and responsible bidder. The invitation to bid notified prospective bidders that the Department reserved the right to waive minor irregularities in a bid where they did not affect the price of the proposal. Thus, the Department stated in the Invitation to Bid "the Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award with or without further discussion of the proposals submitted or accept minor informalities or irregularities in the best interest of the State of Florida, which are considered a matter of form and not substance and the correction or waiver of which is not prejudicial to other proposals." The reasons stated in the Invitation to Bid and Addenda for disqualification of a bidder did not include the failure of the contractor or subcontractors to visit the project site. Rather, the invitation to bid and advertisement list placed on the discriminatory business list, the submission of an electronic bid and employment of unauthorized aliens as irregularities that would result in disqualification of a bidder. The invitation to bid defines minor irregularities as "those that will not have an adverse effect on the DMA's interest and will not affect the price of the proposal by giving a proposer an advantage or benefit not enjoyed by all other proposers." The Department thus did not make failure of a contractor or subcontractor to visit the site of the project an event that would result in disqualification. The Department's intent rather was to place contractors on notice that failure to visit the site would be at the sole risk of the general contractor/bidder if failure to visit the site resulted in an unforeseen problem, cost, or risk. The Department stated at Addendum 1, D-9 the following: D-9 site examination by contractor: The general contractor and all subcontractors as listed on Exhibit Five, shall visit the project site and examine the existing conditions affected by this work prior to submitting a bid. Any bid submitted without prior examination of on-site existing conditions will be at the sole risk of the general contractor. The contractor shall submit on its letterhead the following at time of bid, certifying that he and his subs thoroughly examined the project site: 'I (name of general contractor), do hereby certify that all associated general and subcontractor entities have visited the project site and thoroughly examined the on- site existing conditions prior to the submittal of the bid.' Lt. Col. Keating is the contract officer and manager. His duties include reviewing the bids and making final determination on bid proposals submitted to the Department for projects such as this renovation project. He reviewed the entire package of bid submissions after the bid opening in Tallahassee. These are his duties concerning every bid opening of the Department. Lt. Col. Keating reviewed the failure of CSI to submit the Addendum D-9 letter and determined that the absence of the letter did not give CSI an unfair competitive advantage. He determined that this was a minor irregularity which was waivable. Mr. Hersey was the construction consultant for the Department for this project. Mr. Hersey reviewed the CSI file after the bids were submitted, noting that CSI's bid did not include all the verbiage required by Addendum One, D-9. He determined, however, that the proposed included the "Exhibit 4" document which stated that CSI had "visited the site of the proposed project and familiarized himself with the local conditions, nature, and extent of the work." Mr. Hersey brought this omission to Lt. Col. Keating's attention. Lt. Col. Keating considered the failure of CSI to submit the Addendum 1, D-9 letter language and determined that the omission did not give CSI an unfair competitive advantage over other bidders and therefore that it was a minor irregularity. He determined that the fact that there was language in the bid submittal of CSI to the effect that the contractor had visited the site and familiarized himself with conditions, nature, and scope of the work made the bid actually responsive. The failure to include the language required in Addendum 1, D-9 did not render the bid unqualified or non- responsive, but, instead, the failure to include that language would have the consequence of making CSI responsible for any loss caused by the failure to visit the project site or have the subcontractors visit the project site before bidding. If that omission caused any additional cost or unforeseen circumstances which had a cost attributable to them, CSI would have to bear the risk of paying for any such expense itself under the terms of the specifications. It was thus determined that the failure to visit the site had the consequence of making the contractor assume resulting risks but was considered by the Department to be a quality assurance measure in the specifications, instead of a determining or qualifying factor for award of the project. Lt. Col. Keating determined that the failure to submit the required language in the letter did not give CSI an unfair competitive advantage. CSI's bid was $1,866,212.00. The bid of the Petitioner, Warren Building Company, Inc., was $1,944,000.00. Thus, CSI's bid was $77,788.00 lower than the bid submitted by the Petitioner Warren. In preparing his bid submittal, the Petitioner had not been charged by his subcontractors for their visiting the Tallahassee project site. His entire cost of submitting the response to the invitation to bid on behalf of Warren, was $10,000.00 or less. Thus, the failure by CSI to have subcontractors visit the site and evaluate the work was clearly not shown to have saved CSI costs, in an amount anywhere approaching the total difference in the amounts of the two bids. Only if the avoidance of such costs represented by the visits of the contractor and subcontractors to the job site was greater than or at least approximately equal to the $77,788.00 difference between the two bids, would the failure of CSI to entirely comply with this specification result in a change in the relative competitive positions of the two bidders. Put another way, there was no evidence to show that had CSI completely complied with the disputed specification, that it would not still have much the lowest-priced responsible and responsive bid. It was thus determined by Lt. Col. Keating that the $1,866,212.00 bid submitted by CSI was the lowest responsible and responsive bid. He therefore determined that the award of the contract should be give to CSI and an Agency decision to that effect was posted on April 11, 2008. The subject protest and proceeding ensued.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Military Affairs, awarding the contract for renovation work at the National Guard Armory in Tallahassee, Florida (No. 207005) to Concrete Services, Incorporated. DONE AND ENTERED this 20th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2008. COPIES FURNISHED: Thayer M. Marts, Esquire 1105 Hays Street Post Office Box 1814 Tallahassee, Florida 32302 Kim F. Heller, II, Esquire Elizabeth C. Masters, Esquire Florida National Guard Post Office Box 1008 St. Augustine, Florida 32085-1008 Elizabeth C. Masters, Lt. Colonel Florida Army National Guard 82 Marine Street St. Augustine, Florida 32084
The Issue The issue presented for decision in this case is whether Respondent, the District School Board of Collier County (the "School Board"), acted contrary to the agency’s governing statutes, rules or policies, or the bid specifications, in accepting the bid of Charron Sports Services, Inc. ("Charron") as the lowest responsive bid to School Board Invitation to Bid No. 197-3/02 (the "ITB").
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 3, 2002, the School Board published its first advertisement of ITB No. 197-3/02, Stadium Bleacher Renovations. The ITB sought bids for the rehabilitation and renovation of permanent grandstand structures at five Collier County high schools: Barron Collier High School, Naples High School, Lely High School, Gulf Coast High School, and Immokalee High School. The ITB had its origins in a biennial inspection of the grandstands conducted by Dr. Robert Mitchell, a consulting engineer, in January 2002. Pursuant to contract with the School Board, Dr. Mitchell has conducted these inspections since at least 1996. His inspection sought to identify hazardous conditions to users of the grandstands and to recommend repairs and renovations necessary to bring the structures into compliance with the National Fire Protection Association's National Fire Code, Chapter 102, "Standard for Grandstands, Folding and Telescopic Seating, Tents, and Membrane Structures," most recently updated in 1995. From his field notes, Dr. Mitchell compiled a recommended scope of work for the grandstand renovation project. His scope of work was the basis for the specifications of the ITB. The ITB generally sought to bring the grandstands into compliance with Chapter 102 of the National Fire Code as regards railing heights and the floor and wall openings of the stadiums. Under the heading "General Comments," the ITB stated: The floor and wall openings will be closed completely unless otherwise specified. Special attention will be given to closing openings around press boxes and steps. The chain link fencing must have no sharp ends exposed to the spectators. The wires at both the top and the bottom of the chain link fencing must be manufactured with their ends bent back if they are both inside the frame and thus in contact with the spectators. The chain link fencing must be 9 gauge, galvanized steel. This fencing must be tied to the stadium framing and rails every 12 inches along each rail and at the top and bottom of the fencing with 9 gauge aluminum wire ties. No chain link that is removed may be reused in this project unless it is explicitly allowed by the Engineer. The chain link that is removed is the property of the Contractor. The hardware used to replace corroded fasteners of seats, flooring and walls must be made of composition 316 stainless steel and be the same diameter as the fasteners existing now. The ends of the bolts that protrude through the nuts must be positioned so that they are under the stands and thus the screw threads cannot be encountered by the spectators. Attach new framing to existing framing with 5/8 inch diameter bolts. Lock washers are required on all bolts. All fasteners that are 3/8 inch diameter and smaller that are used on this project must be stainless steel. Fasteners larger than 3/8 inch diameter may be either galvanized steel or stainless steel. All sharp edges or corners on framing that spectators might encounter must be removed. Pressure wash all concrete piles. Remove cracked, loose concrete from the tops of damaged concrete piles. Mechanically remove the corrosion products that are found on the reinforcing steel that was found to be exposed. Do not crack, break or pry concrete that is not loose. It will not be possible to access all the steel that is corroded. Clean the corroded steel with Ph- Ospho-Ric or an Engineer approved equivalent. Prime the exposed steel with Rustoleum 769 Damp-Proof Primer or Engineer approved equivalent. Paint the steel with an industrial enamel. Allow the Engineer to inspect the coated steel before replacing the concrete. Replace the concrete leaving the center of the top of the pile higher than the edges so that water cannot collect around the steel. Seal the tops of all the piles with Silicone Acrylic Concrete Sealer to prevent water intrusion. There are about 300 piles to be pressure washed and sealed. Prime and paint all wood that you add to match the adjacent wood. The Contractor must verify all measurements and quantities given in these specifications prior to submission of his bid. The ITB also set forth five pages of specific work to be accomplished at each of the five high school stadiums. The ITB included the School Board's standard form of instructions to bidders. Standard provisions relevant to this proceeding include: BIDDING PROCEDURES: All bids must be prepared in the format of the PROPOSAL FORM supplied herewith and submitted in accordance with the INSTRUCTIONS TO BIDDERS. * * * c. Unless otherwise provided in any supplement to these INSTRUCTIONS TO BIDDERS, no bidder shall modify, withdraw or cancel his bid or any part thereof for forty-five (45) days after the time designated for the receipt of bids in the advertisement or INVITATION TO BID. * * * PREPARATION AND SUBMISSION OF BIDS: Each bidder shall copy the PROPOSAL FORM on bidder's letterhead, indicating bid prices and bid days thereon in proper spaces. The bid prices and bid days shall be for the entire work and for any alternates specified. Any erasures or other corrections in the proposal must be explained or noted over the signature of bidders. Proposals containing any conditions, mission, unexplained erasures, alterations, items not called for, or irregularities of any kind, may be rejected by the Owner at its sole, complete and unrestricted discretion. * * * Bid documents shall be placed in one envelope and addressed to the Owner at the place the bids are to be opened, with full identification of the bidder's name, project being bid upon, and time and date set for opening of bids, and shall include: Bid Proposal (2 copies), Bid Bond, List of Subcontractors, (See Florida Statute Section 255.0505 and attached form 00430)(2 copies), Unit Price Schedule, (2 copies) if applicable, Contractor's Qualification Statement Florida Trench Safety Act Certificate of Compliance. Copy of Contractor's Professional License (FSS 489) * * * BID GUARANTEE: Each bid must be accompanied by a BID BOND in an amount not less than five percent (5%) of the total amount of the bid as a guarantee that bidder will not withdraw his bid for a period of forty-five (45) days after the scheduled time for the receipt of bids and if awarded the contract, enter into a written contract with the Owner satisfactory in form to the Owner.... * * * REJECTION OF BIDS: The bidder acknowledges the complete and unrestricted right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding documents, or if the bid is in any way incomplete or irregular. AWARD OF CONTRACT: Owner will consider base bid and additive or deductive alternates as may produce a net amount which is acceptable to the Owner. Award of the contract, if it be awarded, will be within forty-five (45) calendar days after the opening of the bids. All bidders are advised that they are subject to the provisions of Collier County School Board Policy FEFF entitled "Protest Arising from the Contract Bidding Process." (copy attached) Collier County School Board Policy FEFF, entitled "Protest Arising from the Contract Bidding Process" and dated November 4, 1982, was attached to the standard instructions and provides: This rule shall apply to protests relating to any contract entered into by the School board with a contractor or subcontractor pursuant to the provision of Part 11 of Chapter 23, Chapter 255, Chapter 287, or Chapters 334-340 of the Florida Statutes. Whenever the School Board makes a decision or intends to make a decision concerning a bid solicitation or contract award, the superintendent or his designee shall give notice of the decision or intended decision by United States Mail or by hand-delivery to all bidders. Within the notice, the following statement shall appear "Failure to file a protest notice within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." For any other School Board decision falling within the ambit of this policy, notice of the decision or intended decision shall be given either by posting the bid tabulation at the location where the bids were opened or by sending the notice by certified United States Mail, return receipt requested, to the bidders. Florida Statute Section 120.53(5) requires that "Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120." (emphasis added) The quoted policy does not reflect that Chapter 96-159, Laws of Florida, repealed Section 120.53(5), Florida Statutes, and transferred its substance to Section 120.57(3), Florida Statutes. The "Standard Form for Bid Proposal" or "proposal form" referenced in the general instructions required a base bid of the total price to perform all the work at all five high schools. The form then required the bidder to bid a price for each of the following alternates: Delete all work except that at Barron Collier High School. Delete all work except that at Naples High School. Delete all work except that contained in Addendum One [regarding handicap facilities at Lely High School, discussed below]. The alternates were included because the School Board was concerned that its budget might not cover all of the work set forth in the ITB. Richard Malick, director of maintenance and operations for the School Board, was in direct charge of the project and was the employee who directed Dr. Mitchell to prepare the bid specifications. Before releasing the ITB for public bidding, the School Board sought a bid on the work from Gulfpoint Construction Company, Inc., a company already under contract to perform small projects for the School Board. On March 19, 2002, Gulfpoint proposed to complete the work for $493,000. David Lesansky, the School Board's executive director of facilities management and Mr. Malick's immediate superior, determined that this bid was too expensive and directed Mr. Malick to release the ITB for public bids. The alternatives were included so that some work could proceed even if the base bids exceeded the School Board's budget. Extensive and conflicting testimony was elicited at the hearing regarding the budget for this project. This issue is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed within budget. The proposal form required bidders to provide the number of calendar days required to achieve substantial completion of the work, and the number of calendar days required to achieve final completion of the work. However, also included in the ITB was a "Standard Form of Contract" that stated firm completion dates: substantial completion by August 5, 2002, and final completion by August 12, 2002. The project could not commence before July 1, 2002. On April 24, 2002, the School Board's project manager, Michael Johnson, conducted a pre-bid conference to discuss the project specifications. Thomas Lombroia, the president of Intercoastal, attended this conference, as did a representative of Charron. Mr. Lombroia testified that the prospective bidders at the pre-bid conference generally agreed that the project could not be completed by August 12, 2002. Mr. Lombroia testified that Mr. Johnson addressed the bidders' concern by pointing out that the standard form allowed them to enter their own estimates of the time the project would take, implying that the firm dates in the standard contract would be negotiable. At the hearing, Mr. Johnson denied discussing that the standard form allowed the bidders to enter their own estimates of the time for the project, or even telling the bidders to fill in that blank on the standard form. Mr. Johnson testified that he told Dr. Mitchell to put the firm dates into the ITB because it was essential that the work be finished by the first day of school on August 12, 2002, and that he told the bidders those dates were "benchmarks" from which no deviation would be accepted. The issue regarding the time of completion is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed by August 12, 2002, the final completion date in the ITB. On April 24, 2002, after Mr. Johnson conducted the pre-bid conference, Dr. Mitchell took the prospective bidders on a walk-through tour of four of the five work sites. Also on April 24, 2002, the School Board issued Addendum One to the ITB. This addendum called for the construction of a handicap ramp, platform, and six wheelchair parking spots across the front aisle of the home side grandstand at Lely High School. On April 25, 2002, the School Board issued Addendum Two to the ITB. This addendum modified several of the original ITB specifications, in response to questions and concerns raised by the prospective bidders at the pre-bid conference and walk- through on the previous day. At 2 p.m. on May 7, 2002, the bid opening was conducted in Naples by staff of the purchasing department, supervised by Mr. Johnson. Charron and Intercoastal were the only bidders. Mr. Lombroia drove from Miami to attend the bid opening on behalf of Intercoastal. Charron did not send a representative to the bid opening. Intercoastal filled out the proposal form as follows: Base bid: $428,000 Delete all work except that at Barron Collier High School: $154,700 Delete all work except that at Naples High School: $102,800 Delete all work except that contained in Addendum One: $34,848 Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 120 Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 180 Charron filled out the proposal form as follows: Base bid: $216,714.13 Delete all work except that at Barron Collier High School: [blank] Delete all work except that at Naples High School: [blank] Delete all work except that contained in Addendum One: [blank] Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 100 days Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 120 days Mr. Lombroia immediately questioned the responsiveness of Charron's bid because it left blank all three alternates. Mr. Johnson allowed Mr. Lombroia to review the Charron bid. Mr. Lombroia noted that Charron had included auxiliary pages that appeared to set forth prices for specific items of material and labor at each school, but he "couldn't make heads or tails of them." Mr. Johnson was noncommittal as to how the School Board would proceed. He told Mr. Lombroia that Nancy Sirko, the director of purchasing, would have to review the bid before any decision could be made. Mr. Johnson advised Mr. Lombroia to put his concerns in writing, and told Mr. Lombroia that he would telephone him later that afternoon. Mr. Lombroia left and began the drive back to Miami, with his cellular phone turned on to receive Mr. Johnson's call. After Mr. Lombroia left, Mr. Johnson called Ms. Sirko into the room to review the bids. Ms. Sirko reviewed the numbers set out in the auxiliary pages of the Charron bid. She added the prices for material and labor for Barron Collier High School, and arrived at a total of $75,324. She took this to be Charron's bid for the first alternate on the proposal form, i.e., "delete all work except that at Barron Collier High School." Ms. Sirko performed the same operation on the prices of material and labor for Naples High School, and arrived at a total of $45,215.40. She took this to be Charron's bid for the second alternate, i.e., "delete all work except that at Naples High School." Ms. Sirko totaled the labor and materials prices in the Charron bid for all five schools, and arrived at a figure of $211,428.42. Five percent of this amount is $10,571.42, which was the amount of the bid bond submitted by Charron. A summary sheet in the auxiliary materials stated that Charron's base bid was $211,428.42, jibing with Ms. Sirko's calculation. The summary sheet also stated that Charron added the cost of its bid bond ($5,285.71) to the base bid to arrive at a total of $216,714.13, the price set forth on the base bid line of Charron's proposal form. Ms. Sirko was unable to determine Charron's price for the third alternate, "delete all work except that contained in Addendum One." She stated that Mr. Johnson examined Charron's auxiliary pages for Lely High School and found three items of material and labor, totaling $16,760, that corresponded to the work required by Addendum One. Ms. Sirko took this to be Charron's bid for the third alternative. Ms. Sirko made no effort to match the items of labor and materials listed in Charron's auxiliary pages with the items set forth in the ITB's scope of work to determine whether Charron had bid on all the work, despite the fact that Charron's base bid was less than half the price bid by Intercoastal. Having determined a complete bid for Charron, Ms. Sirko concluded that Charron's was the lowest responsive bid. She prepared a notice of proposed bid award to Charron and posted it on the bid summary board outside the purchasing office on the afternoon of May 7, 2002. The notice included the prices bid by Intercoastal and Charron for the base bid and each of the three alternatives. The notice did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. As noted above, Mr. Lombroia was on his way back to Miami and had no way of seeing this posted notice. Ms. Sirko made no effort to notify Intercoastal by mail or hand-delivery. Mr. Johnson never made the promised telephone call to Mr. Lombroia on the afternoon of May 7, 2002. At some point on the afternoon of May 7, 2002, Mr. Johnson contacted a representative of Charron. He asked this person to fill in the blanks for the three alternates in the Charron bid and send him the completed form. On May 8, 2002, Charron returned a completed form with prices that matched the prices derived by Ms. Sirko. Mr. Johnson did not explain why this contact with Charron was necessary, if he and Ms. Sirko had already constructed Charron's alternate bids through their own efforts. Mr. Johnson simply stated that he wanted Charron to fill in the blanks to ensure that any mistakes were those of the bidder, not the School Board. On May 8, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko requesting a complete bid abstract listing the bidders, bid amounts, alternates, and bid bond. On May 9, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko stating, "We respectfully object to the proposal tendered by Charron Sports Services, Inc., as non-responsive." The letter stated that Charron had not completed the standard form, and that Charron's bid bond of $10,571.42 was less than five percent of the amount shown on the face of Charron's bid. As of May 9, Mr. Lombroia still had no idea that Ms. Sirko had posted a proposed award of the contract to Charron. Mr. Lombroia still believed that the responsiveness of Charron's bid was under discussion and that no award decision had been made. On or about May 9, 2002, having had no response from any employee of the purchasing department, Mr. Lombroia telephoned Dr. Mitchell to learn whether he knew anything about the status of the bid award. Dr. Mitchell knew nothing about the bid opening. On the afternoon of May 14, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated the previous day. Ms. Sirko enclosed a breakdown of pricing by school as she had compiled it from the auxiliary pages of the Charron bid, including the price for the work at each school and amounts for "freight" and "bid bond." The breakdown included a total price for the work at Lely High School, but did not break out the items Mr. Johnson had determined responded to Addendum One, the handicap ramp, platform, and six wheelchair parking spots. Ms. Sirko's letter stated, in relevant part: The spaces provided for "Delete" pricing were not filled out, which is considered a minor technicality that will be waived, as the submitted pricing breakdown by schools provides exact detail and exceeds the information required in the bid documents. The combined pricing for the schools adds back to the Base Bid of $216,714.13, which also makes the bid bond correct. All other required paperwork is present and in order and staff considers this a responsive and low bid. A recommendation for award will be presented at the June 6, 2002 meeting. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko testified that it had never been the School Board's practice to include the statutory notice in its correspondence with bidders. She stated that the statutory notice was contained in School Board Policy FEFF, and that the policy's inclusion in the ITB was sufficient notice to bidders of their protest rights. On May 14, 2002, Mr. Lombroia responded by letter to Ms. Sirko. He reiterated his contention that the Charron bid was non-responsive, noting that "Even your extrapolation of the submitted 'price breakdown by schools and freight and bond costs' fails to provide a bid for Alternate 3, the handicapped ramp, platform and wheelchair parking spots at Lely H.S." Mr. Lombroia contended that the submission of a price breakdown by school was itself contrary to the specifications and grounds for rejection of the Charron bid. Mr. Lombroia requested complete copies of all bid documents and correspondence submitted by Charron. On May 16, 2002, Ms. Sirko telephoned Mr. Lombroia to discuss the bidding of the alternates. She told Mr. Lombroia that Charron did not understand the instructions for bidding the alternates and so submitted its auxiliary documents with its price breakdown for each school. Ms. Sirko did not explain how she knew that Charron had misunderstood the instructions in the ITB. On May 23, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated May 16, 2002. The letter stated, in pertinent part: Per our phone conversation this afternoon, please find enclosed the entire bid packet of Charron Sports Services. I checked with our Facilities Department and the budget for this project is $200,000, well within the range of Charron's bid. Your bid was more than twice that amount. As you will see on page 2 of the bid, the initial grand total is $211,428.42, of which 5% is $10,571.42 or the amount of the bid bond. Page 3 adds to this total a charge of $5,285.71 for the cost of the bid bond, to come up with the total of $216,714.13, which is listed on the Bid Proposal Form as the base bid. As far as the Delete lines not being filled out, again as I said, this is a minor technicality which is being waived as the breakdown by schools is attached. The cost for Barron Collier is $75,324.00; the cost for Naples High is $45,215.40, and the first 3 items listed on Lely's breakdown, which equal the cost of the requirements in Addendum No.1, total $16,760.00. In response to the "items not called for" on page 00100-3, item No.6, paragraph a., if you continue to read, it states "may be rejected by the Owner as its sole, complete and unrestricted discretion." Why would I reject a bid that tells me exactly what I'm paying for? There is no question as to any of the costs submitted for this project and therefore, no reason to reject this bid. I also told you that neither of the letters you submitted on May 8 and 9 constitute filing a notice of protest. You stated that staff present at the bid opening told you to put your concerns in writing, which you did. Voicing your objections and stating your intent to file a protest are two different things. Page 00100.1-1 in the "Bidding and Contract Requirements" section of the bid packet provides direction on filing a bid protest and it is the bidder's responsibility to be familiar with this. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko's letter correctly and adequately explained the apparent discrepancy in the amount of Charron's bid bond. The documents in Charron's bid support the finding that Charron's bid bond was adequate to support its actual base bid of $211,428.42. Also on May 23, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Mr. Lombroia's letter of May 13, 2002. In a note attached to the fax, Mr. Johnson asked Dr. Mitchell to compose a letter recommending award of the contract to Charron for all of the work except the handicap work at Lely High School, at a price of $199,954.13. On May 24, 2002, Mr. Johnson faxed to Dr. Mitchell copies of the Intercoastal and Charron proposal forms. Mr. Johnson faxed the completed form that Charron submitted on May 8, not the original proposal form with blanks for the alternate bids. On May 24, 2002, Dr. Mitchell sent Mr. Johnson a letter on the stationery of Environmental Engineering & Training, Inc., recommending that the bid of Charron be accepted, less the work described in Addendum One, at a price of $199,954.13. At the hearing, Ms. Sirko testified that the School Board's rules do not require that a design professional such as Dr. Mitchell recommend award, but that it is the usual practice to obtain that recommendation. Ms. Sirko maintained that Dr. Mitchell's recommendation was merely confirmation of her own decision, made on May 7, 2002. Also on May 24, 2002, Intercoastal faxed to the School Board a detailed notice of bid protest, followed by a formal written protest on May 31, 2002. Intercoastal's protest alleged that Charron was not a certified, registered or licensed contracting company pursuant to Chapter 489, Florida Statutes, and thus was prohibited from performing the work specified in the contract. The protest alleged that Charron failed to include federal excise and Florida sales taxes in its bid, in contravention of the ITB's specifications. The protest further alleged that the pricing breakdown by school that Charron submitted in lieu of filling in the blanks on the proposal form omitted and/or altered significant work specified in the ITB. The specifications called for replacement of all galvanized steel fasteners that secured seats, steps, flooring and vertical panels on the Barron Collier High School grandstands with stainless steel fasteners. Charron's bid specified replacement only of corroded nuts and bolts. Charron's bid omitted the drilling of a 1.5-inch diameter hole through the concrete at the northwest gate of Barron Collier High School stadium to create a recess for the sliding vertical gate pipe. Charron's bid omitted the pressure washing, inspection, and sealing of the concrete piles at Naples, Lely, and Immokalee High Schools. Charron's bid omitted the requirement to remove the chain-link center gate at Lely High School, and omitted welding work specified on a galvanized angle gate at Lely. For Immokalee High School, Charron's bid omitted the requirement to replace missing seat board end caps, add a seat board to the top seats, replace missing seat, floor and vertical plate fasteners, and replace missing rail end caps at the north end of the press box. On May 28, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Intercoastal's notice of protest, requesting that Dr. Mitchell "review the complaint and let me know if it's valid." Mr. Johnson's fax also included the auxiliary pages from the Charron bid and the original proposal form with blanks for the three alternate bids. By letter dated May 30, 2002, Dr. Mitchell responded to Mr. Johnson as follows: Re: You requested me to examine Charron Sports Services bid documents and determine whether or not they indicated in them that they would preform [sic] all the work required in the specifications and addenda for Bid No. 197-3/02, Stadium Bleacher Renovations. Dear Mr. Johnson, Charron Sports Services in their bid documents indicate that they will preform [sic] the work described in the original specifications and the first addendum by quoting a base bid of $216,714.13. Charron further indicated that the work described in the first addendum is $16,760.00 of the base bid. My understanding is that [the School Board] intends to award just the work described in the original specifications. Thus Charron has indicated that they will do the work described in the original specifications for $199,954.13. The above is made clear on the STANDARD FORM FOR BID PROPOSAL. Charron's additional information as to the details of how they arrived at their bid was not required. This contributed information should have no effect on the scope of work defined by the Engineer in his specifications. Intercoastal Contracting is correct in saying that Charron's listing of the work in their bid documents is incomplete when compared with the specifications. Charron does not mention all the work listed in the specifications. (emphasis added) Dr. Mitchell's letter inaccurately stated that Charron's proposal form "made clear" that it would perform the work described in the original ITB for $199,954.13. In fact, the figure of $199,954.13 was part of Ms. Sirko's extrapolation, later confirmed by Charron. When questioned on this point at the hearing, Dr. Mitchell stated that he considered the proposal form plus the auxiliary pages to compose Charron's "standard form for bid proposal." Dr. Mitchell's testimony on this point is rendered incoherent by the next paragraph of his letter, which states that the auxiliary pages in the Charron bid are surplusage that should have no effect on the scope of the work. At the hearing, Ms. Sirko made a similar point: that Charron's auxiliary pages were essential for determining Charron's price bid on the three alternates, but they were irrelevant as to the scope of work to be performed. Again, this point is incoherent. The same pages cannot be both essential and irrelevant. The ITB specified the work to be performed, and required the bidders to submit a firm price for that work. Charron deviated from the ITB's instructions, and submitted a detailed list of work to be performed-- omitting several items specified in the ITB-- along with a list of prices for that listed work. Nothing in Charron's bid as submitted on May 7 allowed for the assumption that the price bid by Charron was for anything other than the work listed by Charron, which was less than all of the work specified in the ITB. The actions taken by Ms. Sirko and Dr. Mitchell contradict their testimony on this point. After receiving Dr. Mitchell's letter of May 30, Ms. Sirko telephoned him and asked him to "please touch base with Charron" to confirm that its price bid included all the work specified in the ITB, not just the work listed in Charron's bid. Dr. Mitchell made the call, and a representative of Charron told him that Charron did intend to perform all the work specified in the ITB. The evidence presented at the hearing established that the Charron bid was ambiguous. The actions of Ms. Sirko, Mr. Johnson, and Dr. Mitchell demonstrated that they understood the bid was ambiguous, despite their testimony at the hearing. At the bid opening, Mr. Johnson could not tell whether Charron had bid on the alternates because Charron left its proposal form blank. Ms. Sirko later pieced together from the auxiliary pages what she surmised was Charron's bid on the alternates, but she needed Mr. Johnson to call Charron to confirm her conclusion. Neither Ms. Sirko nor Mr. Johnson ever reviewed the itemized auxiliary pages of Charron's bid to make sure Charron was bidding on all the work. After Intercoastal pointed out that Charron's bid did not include all the items of work specified in the RFP, the School Board sought Dr. Mitchell's guidance. Dr. Mitchell confirmed that the auxiliary pages in Charron's bid did not include all the items of work, but maintained that was irrelevant because Charron's base bid committed it to perform all the work specified in the ITB. However, once again, Charron had to be contacted to confirm this interpretation of its bid. Intercoastal bid a clear price to perform all the work specified in the ITB. Charron's prices had to be pieced together from the auxiliary pages in its bid. Because Charron's auxiliary pages did not include all the work items specified in the ITB, it was unclear whether Charron intended to perform all the work or whether Charron was making a counter-offer to perform certain parts of the work at a reduced price. This ambiguity necessitated post-bid contacts and provided Charron with an opportunity to amend or even withdraw its bid, an opportunity not afforded Intercoastal, which submitted its bid in the prescribed format. The evidence did not establish that the actions of Mr. Johnson, Ms. Sirko, and Dr. Mitchell were motivated by any desire other than to secure the best price for the School Board. The ITB required the bidders to submit a "contractor's qualification statement" and a list of subcontractors. The School Board conceded that only a licensed contractor would be qualified to perform the work and that Charron was not licensed as a contractor in the State of Florida. Charron was a licensed contractor in South Carolina, North Carolina, Tennessee, and Virginia. At the time it submitted its bid, Charron had applied and been approved to sit for the examination for the "Specialty Structure Contractor" examination. A specialty structure contractor is permitted to install screen enclosures and aluminum framing, and to perform masonry and concrete work incidental to such installation, but is not permitted to engage in any work that alters the structural integrity of a building, such as altering roof trusses, lintels, load bearing walls or foundations. See Rule 61G4-15.015, Florida Administrative Code. A specialty structure contractor could not lawfully perform all of the work identified in the ITB. Charron's list of subcontractors included a Florida company, Golden Eagle Engineering Contractors, Inc. ("Golden Eagle"), which was listed under the heading, "Builders Hardware." This was the bid's sole express mention of Golden Eagle's proposed role in the work to be performed. Charron's "contractor's qualification statement" included a copy of the Florida general contractor's license of Heather Calligan of Golden Eagle. Ms. Sirko testified that she interpreted the inclusion of Ms. Calligan's license as an indication that Charron intended to perform the contract under the supervision of Golden Eagle, and that Charron was therefore able to perform the work identified in the ITB. At the hearing, Intercoastal contended that an unlicensed contractor may not enter a contract for a construction project and engage a licensed subcontractor to supervise the project, because it is inherent in the common meaning of the terms that a "subcontractor" may not supervise a "contractor." The salient fact is that Charron's bid does not support Ms. Sirko's supposition that Charron intended to work under the supervision of Golden Eagle. Whether or not Intercoastal's contention is correct, it highlights the oddity of an unlicensed general contractor performing under the supervision of its own licensed subcontractor. Even if lawful, such an unusual arrangement would have to be explained in the bid. The only express mention of Golden Eagle in the Charron bid is as a hardware subcontractor. The inclusion of Ms. Calligan's license in the bid package, without explanation or express commitment, does not reasonably lead to the conclusion reached by Ms. Sirko. The bid contained no express statement that Golden Eagle would act as a supervising contractor. Viewed in the light most favorable to Charron, the bid was ambiguous on this point. The ITB stated that the project was subject to federal excise and Florida sales taxes, and those taxes must be included in the bidder's bid. Charron's bid stated that its prices did not include taxes because "we are not currently set up to collect Florida tax." The School Board contended that the failure to include taxes was a minor deviation, because the School board itself could purchase the materials for the project pursuant to its own tax-exempt status. The undersigned agrees that the failure to include taxes was a minor deviation, though for different reasons. First, inclusion of sales taxes in Charron's bid would not have altered the fact that Charron's bid was significantly lower than Intercoastal's. Thus, Charron secured no competitive advantage from failing to include federal excise and Florida sales taxes in its bid. Second, Charron bid a fixed price, and was expressly instructed that its price must include taxes. Had Charron not expressly stated that its price did not include taxes, the School Board would have been unaware. Inclusion of the statement imposed no additional cost on the School Board. Charron's failure to include taxes in its price would not permit it to pass the taxes through to the School Board. Charron's price was fixed by its bid, and the School Board could require Charron to absorb any costs above the accepted price, including the cost of taxes. On June 25, 2002, the School Board filed a demand that Intercoastal immediately post a $25,000 bond "that complies with all requirements of F.S. 255.0516." Section 255.0516, Florida Statutes, authorizes school boards to require protest bonds in the amount of five percent of the lowest accepted bid for projects valued at less than $500,000. The $25,000 bond requirement applies only to projects valued at greater than $500,000. The School Board's demand, even if properly made, was excessive. The June 25, 2002, demand was the first notice provided by the School Board of an intent to require the posting of a protest bond. Intercoastal did not file a statutory bond.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the District School Board of Collier County enter a final order upholding the protest filed by Intercoastal Contracting, Inc. and withdrawing the proposed award of the contract for Invitation to Bid No. 197-3/02 to Charron Sports Services, Inc. DONE AND ORDERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 4th day of November, 2002.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. On October 11, 1991, DOT's District Four office let out for bid district contracts E4551 and E4554. Contract E4551 calls for the mechanical sweeping of Interstate 95 in Broward County. Contract E4554 calls for the mechanical sweeping of Interstate 95 in Palm Beach County. At a mandatory pre-bid conference, the bidders for the Contracts were provided with a packet which included a Notice to Contractors and Standard Specifications. The Notice to Contractors is a four page document which is specific to each contract. The Standard Specifications are the same for all district contracts. Both the Notice to Contractors and the Standard Specifications to the bidders required bidders to submit proof of the ability to acquire a performance and payment bond in an amount equal to the contract bid price. Bidders could satisfy this requirement by submitting a bid guarantee of 5% of the bid, submitting a notarized letter of intent from a bonding company or by providing a Certificate of Qualification issued by Respondent. The Notice to Contractors for both Contracts provided as follows: Failure to provide the following with each bid proposal will result in rejection of the contractor's bid.... District contracts of $150,000 or less require the following as proof of ability to acquire a performance and payment bond: A notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a performance and payment bond in the amount of your bid, should your firm be awarded the project; in lieu of a notarized letter the following may be substituted: (1) a bid guarantee of five percent (5%); or (2) a copy of the Contractor's Certificate of Qualification issued by the Department. (No emphasis added) Similarly, the first Standard Specification provides: 1.1 Bidders (contractors) A contractor shall be eligible to bid on this contract if:... (2) Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the District Contract Administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of your bid, should your firm be awarded the project.... The requirement to submit proof of the ability to acquire a performance and payment bond has been imposed on the Districts by DOT Directive 375-00-001-a (hereinafter the "Directive".) This Directive was in place at all times material to this proceeding. Section 3.2.2 of the Directive provides: A contractor shall be eligible to bid if: ...Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the minicontract administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of the bid, should the firm be awarded the project. A bid guaranty as specified above may substitute as proof of ability to obtain a performance and payment bond. This applies to bids amount over or under $150,000. A copy of the Contractor's Certificate of Qualification issued by the Department may be substituted in lieu of a notarized letter for those contracts not requiring a bid bond. The bids for the Contracts were opened on October 11, 1991 in Fort Lauderdale, Florida. Bids were received from four bidders: CPM, SCA, Florida Sweeping, Inc. and P. F. Gomez Construction Co., Inc. In its bid proposals, SCA included executed bid bonds in an amount sufficient to cover the amount of each bid proposal. Each bid bond cost $55.00. CPM did not submit executed bid bonds with its proposals. Instead, CPM submitted letters from Mark A. Latini dated September 25, 1991. Those letters were provided on the stationery of Bonina-McCutchen-Bradshaw, Insurance and indicate that Mr. Latini is the "bond manager." The letters provide as follows: Amwest Surety Insurance Company is the surety for the above-referenced contractor and stands ready to provide the necessary performance and payment bond for the referenced bid should Certified Property Maintenance, Inc., be low and awarded the referenced contract. All bonds are subject to normal underwriting requirements at the time of the bond request.... The letters submitted by CPM with its bid proposals were not notarized and were not binding obligations to issue bonds since they were conditioned upon meeting certain unspecified underwriting requirements at the time of the bond requests. The submitted bids were reviewed by the District Four Contractual Services Office. The bids submitted by CPM were the lowest for each contract. Its bid for Contract No. E4551 was $109,343.97. Its bid for Contract No. E4554 was $30,312.63. SCA's bids for the Contracts were $139,442.14 and $44,100.00, respectively. During the initial review of the bid proposals, the Contractual Services Office rejected CPM's bids for failure to have its bonding company "letters of intent" notarized. In addition, the bid proposals submitted by Florida Sweeping, Inc. were rejected for failure to note a required addendum and the bids submitted by P. F. Gomez Construction Co., Inc. were rejected because the "proposal bond was not of proper character". On October 18, 1991, DOT posted its Notice of Intent to Award the Contracts to SCA, the only bidder for the Contracts whose proposals had not been rejected. CPM timely filed protests of the proposed awards to SCA on October 22, 1991. The protests filed by CPM argued that its bids should not have been invalidated simply because the bonding company's letters did not include notary seals. At this point, the sole basis for the disqualification of CPM's bids was the failure to have the bonding company letters notarized. Respondent contends that, except for the absence of the notary seal, the letters submitted by CPM met the requirements of the Notice to Contractor and the Standard Specifications cited above. However, those letters are equivocal and do not evidence a binding commitment to issue a bond upon award of the contract. The DOT officials admit that they do not know what "normal underwriting requirements" would or could be required by CPM's bonding company. This conditional language makes it uncertain whether CPM could obtain the necessary bond. Therefore, it is concluded that those letters do not meet the requirements of the Notice to Contractors, the Standard Specifications or the Directive. A hearing on CPM's protest was not held. CPM's president, Raymond Hanousek, who prepared CPM's bid and attended the pre-bid meeting, called DOT's District office the day the bids were opened and was informed that his company's bid was low, but was rejected because its bond commitment letter was not notarized. Mr. Hanousek spoke with Joseph Yesbeck, the District's Director of Planning and Programs. After their conversation, Mr. Yesbeck reviewed the file and met with Teresa Martin, the District's contract administrator for construction and maintenance contracts, and other members of the contracting staff. Ms. Martin explained why CPM's bid had been disqualified, and the matter was thereafter discussed with the District and Department attorneys. After reviewing the situation, Mr. Yesbeck determined that the failure to submit notarized letters should be considered a non-material deviation and the bids submitted by CPM should be accepted and considered the low responsive bids. Mr. Yesbeck concluded that the absence of the notary seal did not give any competitive advantage to CPM and that defects of this nature are routinely allowed to be cured. Therefore, he reversed the contract administrator's decision to disqualify CPM on both Contracts. The District secretary concurred in the decision reached by Mr. Yesbeck to repost the award of the Contracts. Mr. Yesbeck prepared a joint letter of reposting which removed CPM's disqualification and declared CPM to be the low bidder for both Contracts. At the time Mr. Yesbeck made his decision, he had not reviewed the Directive from the Assistant Secretary's office stating that there must be a notarized letter showing proof of ability to obtain a performance and payment bond. Mr. Yesbeck did not review the Directive until his deposition was taken one week prior to the hearing in this case. According to Ms. Martin, the option to provide a notarized letter from a bonding company as an alternative to the posting of a 5% bid guarantee or obtaining prequalification was designed to promote participation in state contracting by small business and minority business enterprise applicants. While DOT was apparently trying to make it easier and cheaper for companies to bid by not requiring a bond to be posted, the DOT Directive and the bid documents still clearly required unconditional proof that a bid bond would be issued if the contract was awarded to the bidder. CPM was not prequalified nor did it post a bond. Thus, in order to meet the requirements of the Notice to Contractors and the Standard Specifications, CPM's only option was to submit a notarized letter showing proof of ability to obtain a performance and payment bond. DOT was never provided with any proof that CPM had been prequalified by the bonding company for a bond and/or that a bond would unconditionally be issued if CPM was awarded the Contracts. Because the letters stated they were "subject to normal underwriting requirements at the time of the bond request", there was some possibility CPM would not be able to obtain a bond. Such a condition was not permissible under the bid doucments. The decision to accept CPM's bid was contrary to the DOT Directive, the Notice to Contractors and the bid specifications which require that a bidder demonstrate proof of ability to obtain a performance and payment bond. Consequently, it is concluded that DOT's decision to accept the conditional, unnotarized letters submitted by CPM was arbitrary and capricious. There is some indication that other DOT Districts have, on occasion, waived the notarization requirement for the bond letter. However, it is not clear whether the language in the bid documents was the same or similar in those cases and/or whether the bond letters were conditional. In the past, whenever District Four has gotten a bid without a notarized bond letter, the bid was rejected. Apparently, there has never been a protest based on such a denial in District Four. Under Section 337.18, DOT does not need to require notarized, unconditional bond letters on contracts under $150,000. Indeed, there was a suggestion that some DOT Districts have dropped the requirement for certain contracts under $150,000. However, the bid documents in this case clearly required some proof that the bidder could acquire a performance and payment bond upon award of the Contracts. It was incumbent for all bidders to meet this requirement. It was arbitrary to delete this requirement after the bids were submitted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding the bids submitted by CPM to be non-responsive and rejecting those bids. Petitioner should enter into negotiations with SCA regarding the award of the contract. In the absence of a favorable negotiation, Petitioner should enter a Final Order rejecting all bids and opening the Contracts up for new bids. DONE and ENTERED this 24th day of March, 1992, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1992.
The Issue The Department of Corrections sought bids for construction of a health services building for a correctional facility. A discrepancy existed between the written specifications and the architectural drawings for the project. An addendum was issued to clarify the matter. The low bidder (Intervenor) did not acknowledge receipt of the addendum until several hours after the opening of bids. The Department accepted the Intervenor's bid. The Petitioner timely protested the action. The issue in this case is whether, in accepting the Intervenor's bid, the Department acted contrary to the requirements of law.
Findings Of Fact On July 31, 1990, the Department of Corrections (hereinafter "Department") issued an Invitation To Bid ("ITB") for PR-35-JRA, Project #90015, consisting of the construction of a Health Classification Building at the Columbia County Correctional Institution. In relevant part, the ITB requested price proposals for said construction, provided that the bid would be awarded to the responsive bidder submitting the lowest cost proposal, provided that "in the interest" of the Department, "any informality" in bids could be waived, and provided space on the bid form for acknowledgment of receipt of all addenda to the ITB. Bids were to be filed no later than 2:00 p.m. on September 11, 1990, the time scheduled for bid opening. Documents issued with the ITB included architectural drawings and written specifications for the building. The architectural firm of Jim Roberson and Associates, (hereinafter "JRA") had been employed by the Department to prepare the drawings and specifications. JRA was responsible for preparation and distribution of related addenda. Further, a JRA representative presided over the opening of bids on behalf of the Department. Following release of the ITB and supporting documents, JRA became aware of a conflict between sink faucets required by the drawings and those required by the written specifications. The specifications provided that sink faucets operated by hand levers or foot pedals were to be installed in the facility. The architectural drawings JRA indicated that sink faucets were to operate by means of "electric-eye" activators, rather than by hand levers or foot pedals. On September 10, 1990, JRA issued an addendum (identified as Addendum #2) 1/ to clarify that "electric-eye" type operators were to be included in the bids. The addendum was sent by telephone facsimile machine to all anticipated bidders. In part the addendum provides as follows: "This Addendum forms a part of the Contract Documents and modifies the original Specifications and Drawings, dated 31 July 1990, as noted below. Acknowledge receipt of this Addendum in the space provided on the Bid Form. Failure to do so may subject the Bidder to Disqualification." On September 11, 1990, the eight bids submitted in response to the ITB were opened by the JRA representative. The Intervenor, Custom Construction (hereinafter "Custom"), submitted the lowest bid at $898,898. The Petitioner, David Nixon (hereinafter "Nixon"), submitted the next lowest bid at $900,000. The bid form provided by the Department as part of the ITB materials to prospective bidders provided space for acknowledgment of addenda to the ITB documents. Upon opening the bid submitted by Custom, the JRA representative officiating at the opening noted that the Custom bid failed to acknowledge Addendum #2 in the appropriate space on the bid form. 2/ Robert L. Harris, president of Custom Construction, attended the bid opening. When the JRA representative noted the lack of acknowledgment of Addendum #2, Mr. Harris stated that he was unaware of the addendum. At hearing, Mr. Harris testified that his secretary told him that Addendum #2 was not received by his office. The JRA representative testified that his review of JRA's FAX transmission records indicated that the FAXed Addendum #2 was received by all bidders. The greater weight of the evidence establishes that Addendum #2 was transmitted to and received by, all bidders. Upon leaving the bid opening, Mr. Harris immediately contacted his plumbing subcontractor, Jerry Stratyon, and discussed the situation. Approximately two hours after the bid opening, and after talking with Mr. Stratton, Mr. Harris notified JRA, in a letter transmitted by FAX machine to JRA, that his bid price did include plumbing fixtures required by Addendum #2. Mr. Harris concluded the letter, "[w]hen can we start work. I know you don't want the alternate." On October 8, 1990, JRA recommended to the Department, that the Custom bid be accepted. The letter of recommendation, in part, provides: The apparent low bidder however, did not verify receipt of Addendum No. 2 on the Bid Proposal. Our office did receive a, facsimile after the bid verifying Addendum NO. 2 receipt from the Contractor's Office." However, the actual letter from Custom to JRA states, not that Addendum #2 was received, but that it was included in the price bid by Custom's plumbing subcontractor. Both Nixon and Custom obtained plumbing bids from the same subcontractor, Jerry Stratton. The cost increase attendant to the requirements of Addendum #2 is approximately $2,400 over the plumbing fixtures indicated in the written project specifications. Mr. Stratton was aware of Addendum #2 and testified that the requirements of Addendum #2 were reflected in his price quotes to both bidders. Mr. Stratton provided the same price bid to Nixon and Custom. Mr. Stratton also provided bids to Nixon and Custom for HVAC work. Mr. Stratton was accepted as Custom's HVAC subcontractor. Nixon's bid indicates that another HVAC subcontractor will perform the cork should Nixon receive the contract. The ITB provided that bid modification or withdrawal was permitted on written or telegraphic request received from a bidder prior to the time fixed for opening. Mr. Harris did not attempt to either withdraw or modify Custom's bid prior to bid opening. No bid modification was permitted subsequent to the bid opening. The Department's policy is to waive minor irregularities when to do so would be in the best interests of the State and would not be unfair to other bidders. The evidence does not establish that Custom Construction's failure to acknowledge the addendum was purposefully designed to permit withdrawal of their bid subsequent to the public bid opening. The omission of acknowledgment of Addendum #2 provided Custom an opportunity to withdraw the bid that was not available to other bidders. Custom could have informed the Department that the bid price did not include the requirements of Addendum #2, and the bid could have been withdrawn. Custom was therefore provided with a substantial advantage or benefit not enjoyed by the other bidders. The other bidders, all of whom acknowledged receipt of Addendum #2, had no opportunity to, and would not have been permitted to, withdraw their aids. The fact that Custom did not withdraw the bid is irrelevant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a Final Order rejecting the bid submitted by Intervenor as nonresponsive and awarding the contract to the Petitioner. DONE and RECOMMENDED this 15th day of January, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1991.
Findings Of Fact On March 15, 1988, the Department of Agriculture and Consumer Services issued an Invitation to Bid (ITB) number DOF-ADM-48. The Invitation to Bid's purpose was to secure a contractor to service and install water filters on private drinking water wells located in eight counties within the State of Florida. The filters were required to be installed by the Department for the removal of ethylene dibromide (EDB) from contaminated drinking water obtained from private wells. EDB is a constituent of pesticides and is a suspected carcinogen. The filter systems operate by running the water through a tank containing a pleated paper filter similar to a coffee filter. The pleated paper filter contains granular activated carbon (GAC). The GAC absorbs impurities such as EDB. The water is also passed through a sterilizer unit. The sterilizer unit disinfects the water by bombarding it with ultraviolet light. For instances of heavy pollution the water may be filtered through a double tank system or require pretreatment with another media filter in order to remove more concentrated impurities from the water. The Department sent its ITB to a number of vendors. The ITB invited the submittal of bids and set a bid ending date of April 27, 1989. The bid included the standard State of Florida Invitation to Bid Bidder Acknowledgment form, number PUR 7028, also referred to as a "yellow sheet." The acknowledgment form provides spaces for the vendor to list identify information and to sign the bid. It also sets forth, general conditions applicable to the bidding process. Among the General Conditions contained on the yellow sheet is General Condition 4(d) which states:,, It is understood and agreed that any item offered or shipped as a result of this bid shall be a new, current standard production model available at she time of the bid. ... Further, General Condition 7 provides: Any Manufacturers' names, trade names brand names, information and or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative which meets or exceeds the specifications for any items(s). If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. ... The ITB also contained a number of terms, specifications and special conditions geared towards the specific purpose of the contract. These included the following Additional Bid Conditions: PROOF OF EQUIVALENCY: Vendor shall provide written, documented proof of equivalency for their equipment where it differs from the named brands and equipment specified in the bid specifications. EQUIPMENT, COMPONENTS, SPECIFICA- TIONS AND DOCUMENTATION: Vendor shall provide full documentation and specifications on all equipment and components to be used in providing the GAC filter systems and maintenance as specified in the bid. In this case, proof of equivalency of equipment is important to maintain the integrity of the water filter systems, and to insure cost-effectiveness in servicing the system. The bid specification also contained civic requirements for the GAC. The GAC specifications governed such items as moisture content, particle size and distribution absorptive capacity. Absorptive capacity was measured by an iodine number. An "iodine number" reflects the milligrams of iodine absorbed per gram of carbon. The higher thin iodine number, the more absorptive the carbon. In this case, the GAC requirements ware as follows: Granular activated carbon, with thee exception of the standards below, shall comply with the "American Water Works Association Standard for Granular Activated Carbon" (AWWAC B604-54). The GAC standards are as follows: Impurities - No soluble compounds should be present that are capable of causing adverse effects on the health of the consumer. Moisture - Shall not exceed two (2) percent by weight of listed container contents. Apparent Density - Shall be 28.5 - 31.0 pounds/cubic foot. Particle size distribution - should range between U.S. standard sieve size NO. 8 and NO. 30. A maximum of 15% of the particles can exceed 8 in size and a maximum of 4% can, be less than NO. 30 in size. Abrasion Resistance - Retention of average particle size shall not be less than 75 percent as determined by either the stirring abrasion or the RO-Tap abrasion test. Adsorptive Capacity - The "iodine number shall not be less than 950 or equivalent adsorptive capacity. The GAC must be packed and rinsed at the successful vendor's facilities not at the well site. Virgin GAC must be stored in facilities that will protect it from weather and vandalism. The Department had used a GAC manufactured by Ceca Division of Atochem, Inc. The carbon was known as Cecacarbon GAC 30WE. GAC 30WE had consistently met the Department's requirements. Atochem labelled or named the carbon, "GAC 30WE," because it met certain product quality standards and in order to differentiate the carbon from other types of GACs it manufactures, such as GAC 830WE. GAC 830WE is the same size carbon particle as GAC 30WE, but it has a lower adsorptive capacity, i.e., iodine, than 30WE. About two years prior to this bid, Atochem quit intentionally manufacturing she carbon it labelled Cecacarbon GAC 30WE. At that time the current contractor, Continental, unilaterally, and without informing the Department, substituted another GAC for Cecacarbon GAC 30WE. The Department therefore has been using a GAC of unknown manufacture for the past two years without complaint. Section II of the ITB indicated that the UVL disinfectant light source "must be an Aquafine Model NO. DW-400 or its equivalent." It further stated that the water flow meter required as apart of the filter system must be "a badger Model 15 The ITB required that specifications for the individual equipment components "MUST BE PROVIDED WITH YOUR BID OR THE BID WILL BE DECLARED INCOMPLETE AND INELIGIBLE FOR CONSIDERATION." Section III of the ITB, concerning the "Type II" systems (those consisting of two filter tanks), contained the same provisions as to UVL sterilizer units, water meters and component specifications as Section II. The Aquafine DW-400 was the UVL system currently being used by the Department's contractor. The ITB also contained a pricing sheen for vendors to list unit prices on 20 different components of the filter system. By multiplying the unit price by the Department's estimate of the respective numbers needed of each limited component, a total bid price was arrived at by the bidder. On April 17, 1989, the Department issued the first addendum to the ITB. Addendum number 1 changed the estimated number of pleated paper filters on the pricing sheet from 6500 to 10,200. A new bid opening date of May 23, 1989 was bet. On May 23 1989, the Department issued the second addendum to the ITB. In addition to establishing a new bid opening date of June 21, 1989, the second addendum made several substantive changes. It required bidders to submit with their bid an EDB isotherm for the GAC medium being bid by each bidder. An isotherm is a graph showing the adsorptive capability of the GAC. Since the Department would have no knowledge of the performance capabilities of a previously unused carbon, the EDB isotherm was "critical" where the carbon proposed for use had not been used on a Department contract before. For a known GAC, i.e. one the Department had used before, the isotherm was not material. The second addendum also changed the "designated model number for the water meter from the Badger Model 15 or equivalent to the Badger Model 25L or equivalent. The water meter model number was changed because the Badger model 15 was no longer being produced. Additionally, the model number of the freeze housing was changed from the "AMTEK big blue filter" to the "AMTEK NO. 20 or equivalent." The freeze housing was made an optional component of the bid. The third addendum, dated June 13, 1989, reinstated the freeze housing as a required component of the budget but provided that the housing could be of either fiberglass or aluminum construction. It also clarified the testing required to justify installation of a media filter on a system, and clarified that upgrades of systems from Type I to Type II. A new bid opening date of June 28, 1989 was set. Due to the entry of a temporary restraining order by a circuit court judge, the June 28, 1989, bid opening did not transpire. When the restraining order was later lifted, the Department issued Addendum IV, which set a bid opening date of September 28, 1989, and which gave bidders who had submitted bid prior to the June entry of the restraining order the opportunity to submit a new bid. Petitioner, Continental Water Systems, Inc., (Continental) a Florida corporation, timely submitted a bid of $895,877.50 to the Department in response to the Department's Invitation to Bid. Intervenor, Global Marketing, Inc., a North Carolina corporation, doing business in the State of Florida, timely submitted a bid of $784,431.50 to the Department in response to the Department's Invitation to Bid Number DOF-ADN- 48. Petitioner and Intervenor were the only two bids submitted. The Department made a preliminary determination that both bids were responsive, and posted its bid tabulation on October 30, 1989. Global was the apparent low bidder and was awarded the contract by the Department. In its bid, Global indicated that it would use the Aquafine DW-400 UVL sterilizer unit and the Badger Model 15 water meter. It also indicated that it would use Cecarbon GAC 30WE. Global did not include an EDB isotherm with its bid. Continental's bid included specifications for both the Aquafine DW-400 and a UVL system manufactured by "Ultra Dynamics Corporation known as Model Number DW-15. For the GAC, Continental bid Alamo ABG-CWF a GAC medium manufactured by Calgon as Filtrasorb 300 GAC. The bid contained an EDB isotherm for the GAC product. It also included specification sheets showing its intent to use a Badger Model 25L water meter. Unknown to the Department, the Aquafine Corporation no longer produces the DW-400 UVL sterilizer unit as a standard production model. It ceased production of this model in June or July of 1989. It has enough materials on hand to produce another 45 to 50 units. Aquafine is under contract to sell those units to Continental. If requested to produce more DW-400's, Aquafine might again manufacture the DW-400. However, Aquafine would not begin such production unless ban order for at least 1000 units was made. At present, Aquafine manufactures only one model for drinking water systems. The model is the DW-8. No specifications were included in Global's bid for the DW-8 or any other potentially equivalent sterilizer unit from another manufacturer. In this case, the bid specifications clearly list the DW-400 as an acceptable submission. The evidence did not show that the DW-400 was no longer available, even though the model was no longer being produced. There is no newer prototype of the DW-400. A contract, which an ITB constitutes the offer portion of, must be interpreted to give effect to all of its language and clauses. Therefore, the specific reference to the DW-400 as an acceptable submission must be given effect as an exception to the general requirement that "any item offered or shipped . . . be a new, current, standard production model . . . Since Continental did not challenge the bid specifications in regard to the UVL system, the complaint of non-responsiveness. . . cannot be heard now. Global therefore was responsive to the Department's ITB on the UVL component of its bid. When the Department learned that the Badger Model 15 water meter was no longer being manufactured it decided to change its specifications due to the change in production. The specifications were changed from the "Badger Model 15 or equivalent" to the "Badger Model 25 or equivalent." Global's bid did not list the Badger Model 25, but listed she Badger Model 15. However, Continental did not preserve the issue regarding the responsiveness of Global's bid on the water meter in its Formal Written Protest. Therefore, no findings are made regarding the responsiveness of Global's bid on the water meter component. The heart of the whole filter system is the GAC. The carbon proposed to be used by Global, Cecarbon GAC 30 WE, is no longer produced by the manufacturer. It has not been in production since 1987. Global and the Department did Introduce into evidence a faxed copy of a letter from an Atochem sales representative indicating that an amount of GAC 830 carbon would be available "until the end of 1989" to meet the Department's bid specifications. However, GAC 830 is not the same product as that bid by Global and does not have the same manufacturing standards as the GAC 30WE bid by Global. Neither does Atochem now intentionally produce a carbon that meets the specifications for DOF-ADM-48. Specifically, Atochem does not produce a carbon with an 8 x 30 mesh size that has a minimum iodine number of 950. The 8 x 30 mesh size carbon that Atochem produces, GAC 30, has an iodine number of 900 to 920. Due to variation in the capabilities of different lots of GAC 830, some lots may have a 950 iodine number. The evidence did not show whether the company tests its GAC 830 beyond its manufacturing standards. Nor did the evidence show whether a higher adsorpting GAC 830 lot is available. A letter from a sales representative that such a lot is available does not rise to the level of competent evidence which would support the conclusion that Global had materially meet the Department's ITB on the GAC element. At a minimum the Department or Intervenor would have had to bring the Company's documentation, including an isotherm, for that particular GAC lot to demonstrate responsiveness for a product labelled with a name which carries a lower adsorptive standard. The only carbon manufactured by Atochem which has a minimum iodine number exceeding 950 is a different size carbon. This carbon has a mesh size of 12 x 40, and thus does not meet the DOF-ADN-48 specifications. Both the Aquafine sterilizer unit and the Ultra Dynamics units, bid by Continental, meet the specifications for this ITB. The GAC bid by Continental meets the specifications for this ITB. This particular carbon has also been accepted by the Department for use by continental on a previous Department contract in January 1988, where the specifications for the carbon were identical to those applicable here. Continental did submit an EDB isotherm. Global's bid was not responsive to the ITB. It offered a carbon element which is no longer in production. It will have to substitute another GAC not identified in its bid in order to perform under the contract. Global provided no technical literature with its bid to establish the equivalency of any other GAC. Additionally Global did not provide an EDB isotherm for the carbon it planned on using from Atochem. These omissions were material. Global's bid therefore cannot be said to be responsive to the Department's ITB.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order awarding the bid to Petitioner as the lowest and best bid. DONE and ENTERED this 17th day of April, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1990. APPENDIX TO CASE NUMBER 89-6372BID The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraph 27 of Petitioner's proposed Findings of Fact are adopted except for the parts pertaining to the UVL systems unresponsiveness. The facts contained in paragraphs 28 and 29 to Petitioner's Proposed Findings of Fact are irrelevant. The facts contained in paragraphs 1, 2, 3 and 5 of Intervenor's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 8 and 9 of Intervenor's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 6 and 7 of Intervenor's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: M. Christopher Bryant, Esquire Oertel, Hoffman, Fernandez, and Cole, P.A. 2700 Blair Stone Road Post Office Box 6507 Tallahassee, Florida 32314-6507 Clinton Coulter, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 James C. Barth, Esquire Callahan, Barth & Dobbins 5374 Highway 98 East, Suite C-1 Destin, Florida 32541 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
Findings Of Fact Respondent issued an invitation to bid on March 13, 1992. Bid number SB 92-244I involved the disassembly and removal of an existing walk-in freezer and the furnishing and installation of a new walk-in freezer at Coral Sunset Elementary School. The invitations to bid provided in paragraph Y of the Special Conditions: Failure to file a specification protest within the time prescribed in Florida Statutes 120.53 3.(b) shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (sic) Bid specifications were included in the invitations to bid issued on March 13, 1992. Twenty-three bids were solicited. There were five responses. One of the responses was submitted by Choice Restaurant Equipment, Inc. ("Choice"). Choice is a vendor for equipment manufactured by Petitioner, Nor-Lake, Inc. ("Nor-Lake"). Nor-Lake is an out-of-state corporation with manufacturer's representatives in numerous states including Florida. 4, Petitioner, CHD Marketing Group ("CHD"), is the manufacturer's representative for Nor-Lake in Florida. CHD represents no other manufacturer of the product included in the bid response. Choice is a sales agent for CHD and other manufacturer's representatives in Florida. Choice sells the products of a variety of manufacturers but is the exclusive sales agent for CHD pursuant to a verbal agency agreement. Choice timely submitted a bid for bid number SB 92-244I on April 8, 1992, prior to the bid deadline of 2:00 p.m. on the same day. The successful bidder submitted its bid by Federal Express at 4:51 p.m on April 8, 1992. Respondent's Department of Purchasing and Stores (the "Department") had stated on March 13, 1992, when the invitations to bid were issued, that bid responses must be received by the Department no later than 2:00 p.m. on April 8, 1992, at the Department's address at 3980 RCA Boulevard/Suite 8044, Palm Beach Gardens, Florida, 33410-4276. Prior to April 8, 1992, the Department relocated to a new facility at 3326 Forest Hill Boulevard, West Palm Beach, Florida. The new address was posted at the old location and Department representatives were present at the old address to accept walk-in bids. Federal Express first attempted to deliver the successful bid at the Department's old address at 10:30 a.m. on April 8, 1992. Federal Express delivered the successful bid to the Department's new address at 4:51 p.m. At 2:00 p.m. on the same day, The Department announced that all bids were in and opened the bids that had been delivered. The successful bid and one other bid were delivered on April 8, 1992, after the public opening conducted at 2:00 p.m. on the same day. Bids were tabulated on April 9, 1992. Bid tabulations were posted on April 13, 1992, and the successful bid was announced. The successful bid was for $8,174.00. Three bids were lower than the successful bid. Choice's bid was for $7,742.56. The other two lower bids were for $8,020.00 and $6,620.00. All three lower bids were rejected as non- responsive. Choice's bid was rejected because it did not meet bid specifications for 22 gauge steel, thermostatically controlled door heaters, and reinforced steel door panels. CHD filed a Notice of Protest on April 14, 1992, and a Formal Written Protest on April 24, 1992. CHD's protest alleges that: Choice's bid was lower than that of the successful bidder; the successful bid was not timely made; the bids were not opened publicly in violation of bidding procedure requirements; and the bid specifications were arbitrary and capricious, favored one bidder, and that Choice's bid was responsive. Neither a notice of protest nor a formal written protest was submitted by Choice or Nor-Lake. Neither Choice nor Nor-Lake attended the informal protest conference conducted on April 30, 1992. On May 7, 1992, Respondent's Office of General Counsel issued its written notice of proposed agency action. The written notice recommended that the bid be awarded to the successful bidder and that CHD's protest be dismissed for lack of standing. CHD requested a formal hearing on May 14, 1992, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 15, 1992. The bid submitted by Choice was prepared by CHD but signed by the president of Choice. Neither Nor-Lake nor CHD signed a bid or were otherwise bidders of record for bid number SB 92-244I. Neither Choice, CHD, nor Nor-Lake, filed a notice of protest concerning the bid specifications within 72 hours after Choice received the notice of the project plans and specifications on March 13, 1992. The sole basis upon which CHD claims it is substantially affected is the adverse economic impact caused to it by the proposed agency action. The proposed agency action will result in lost sales from this and future transactions. CHD will lose commissions from this and future transactions. The dealer relationship between CHD and Choice will be damaged because Choice will not want to sell a freezer that is not acceptable to Respondent. The marketing strategy developed between CHD and Nor-Lake will be damaged because it is conditioned upon the award of public contracts.
The Issue The issues are whether the bids submitted by Daffin and Gulf Coast were responsive, and whether the failure by the Department of Corrections to evaluate each proposal at the time the proposals were opened to determine if the proposal was responsive is fatal to consideration of the bids under the terms of the ITB.
Findings Of Fact The Department issued Invitation to Bid No. 94-DC-6279 (the ITB) on May 27, 1994. The ITB requested bidders to submit proposals to provide receipt, storage and delivery of frozen and non-frozen food products. The bid was separated into five distinct regions and vendors could bid on any or all of the regions. Proposals had to be filed with the Department by July 20, 1994, and were opened on that date. The bid was divided into two parts for purposes of point distribution. Sixty (60) points were allotted for price criteria, and forty (40) points were allotted for additional, non-price criteria. [Joint Exhibit A.] The Additional Criteria, which related to non-costs issues and were not mandatory criteria, were listed in Section 4.8.2. of the ITB as follows: Additional Criteria 40 Points Prior experience and history of timely deliveries Condition of equipment/type - # (number of) trucks-conditions Location of contractor's facilities Personnel/staffing [Joint Exhibit A.] Addendum 2 to the ITB further provided that: 4. Direct your attention to the additional criteria used for evaluation. The low bid will be 60 points (Note: 4.3 states erroneously 50 percent; 60 is correct). Forty [40.] will be for additional criteria listed in the ITB. We suggest that you list the information in additional criteria for consideration and evaluation. Jim Morris, Bureau Chief of General Services for the Department of Corrections, was the individual responsible for monitoring the ITB. [R. pg. 66, line 14-16; pg. 75, line 5-12.] Bill Bowers, Chief of Food Services for the Department of Corrections, participated in defining the scope of the contract, and assembled the criteria for the ITB. [R. pg. 108, lines 10-25; pg. 117, lines 18-21.] The Department's evaluations were conducted by Howell L. Winfree, III, J.L. (Joe) Murphy; Fred J. Boyd; Robert Sandal and Chris Dennard. [Joint Exhibit M and N.] The criteria used by the Department's evaluator were as follows: Prior experience and history of timely deliveries (15) (Length of time in distribution business and any known complaints by customers) Condition of Equipment/type (10) Task- related experience (Age of trucks/with freezer) Location of Contractor's facilities (10) (Location of distribution points in relation to regions being served) Personnel/Staffing (5) (Is sufficient staff available) [Joint Exhibit L.] The criteria scoring sheet used by the Department in evaluating the bids submitted, specifically Joint Exhibit L, was not included in the ITB. [Joint Exhibit A.] Six vendors submitted bids on the Department's five regions. Pride submitted a bid for all five (5) regions requested by the Department's ITB. [Joint Exhibit D.] After the evaluation of the bids was conducted by the Department, the following awards were made: Region I - Daffin Region II - C & W Region III and V - Gulf Coast Region IV - Pride [Joint Exhibit F.] COMPETITIVE BID PROCEDURE At the time the bids were publicly opened the Department did not make a determination that the bids were responsive. [R. pg. 73, lines 4-8.] No one in the legal office made a determination that the bids were responsive to the ITB. [R. pg. 77, lines 2-6; pg. 85, lines 2-17.] No one made a determination, written or otherwise, that the bids submitted in response to Invitation to Bid No. 94-DC-6279 were responsive to the ITB. [R. pg. 76, lines 6-10; pg. 97, lines 13 The Department transmitted the bids and evaluation materials to the evaluators after the bids were opened. There is no evidence that any of the bids failed to meet technical qualifications. [R. pg. 78, lines 4-8; pg. 79, line 17 through pg. 80 line 2; pg. 83, lines 18-25; pg. 85, lines 2-17.] Paragraph 4.11 of the ITB permitted the Department to obtain from a vendor information by questioning the vendors if necessary to resolve questions which might arise about the vendors' responses. None of the vendors controverted this provision in the ITB. The Department did seek and consider such additional information from Daffin during a site visit. [R. pg. 141, line 21 through 147.] Daffin's bid response included the following documents: Signed Invitation to Bid Cover Sheet Signed Public Entity Crimes Form One page memo re: Requested Criteria Signed Addendum #1-4 to the Invitation to Bid Signed Price Quote Sheet [Joint Exhibit C.] Daffin Supply Company (Daffin) and Pride were the only vendors that submitted bids for Region I in response to the ITB. [Joint Exhibit F and H.] Daffin's price was $1.389 per case for receipt, storage and delivery of the food items, and Pride's price was $2.5296 per case for receipt, storage, and delivery of the food items. Daffin received a total of 69.26 on its evaluation, and Pride received 46.49 on its evaluation for Region I. Daffin received the highest point score for its bid for Region I, and Pride received the second highest point score for its bid for Region I. [Joint Exhibit H.] In response to the Additional Criteria requirements, Daffin included only the following information: As additional criteria, we have been in the Supply and Distribution business for over twenty Drive in Panama City, Fla. The warehouse has three receiving docks and a large enclosed staging area. [Joint Exhibit C.] Howell L. Winfree, III, indicated regarding Daffin's bid that no information was available regarding the condition or type of Daffin's equipment or its personnel. J.L. Murphy's evaluation of Daffin's bid states, "Insufficient detail to evaluate properly." Chris Dennard's evaluation of Daffin's bid states, "This bidder did not provide sufficient information about their experience, equipment, personnel to give this evaluator an indication they could handle this bid if awarded." Fred Boyd's evaluation of Daffins bid states, "This vendor did not supply information which shows qualification for this bid." [Joint Composite Exhibit L.] Only one of the five evaluators gave Daffin points for these criteria, and Daffin received only 9.26 points of the 40 available non-costs criteria points. Pride received a significant number of the total points awarded for the non-costs criteria. However, Pride trailed Daffin by 23 points overall because Pride's cost was almost a dollar more per case. Subsequent to the bid evaluations, Mr. Morris and Mr. Bowers made a site visit to Daffin Supply Company. The purpose of the visit was to become familiar with the vendor, and to determine the company's capacity to store and transport the food items. R. pg. 75-76, lines 22-25; 1-2; pg. 85, line 18 through pg. 86, line 7; pg. 118, lines 4-14.] Until Mr. Morris and Mr. Bowers spoke to Mr. Daffin, the Department was not certain whether Daffin had facilities, truck and staff to carry out the bid. [R. pg. 114, lines 19-23.] After the site visit, the Department determined that Daffin could provide the services required by the bid for Region I. [R. pg. 118, lines 4- 18.] On September 1, 1994, subsequent to the bid opening, the Department received a letter from Daffin evidencing that they had an agreement with Ryder Truck Leasing company to lease trucks to carry out the services requested in the ITB; the letter is dated September 1, 1994. The Department did not conduct a site visit of Pride or any other bidder's facilities. Pride had been providing the services being bid upon to the Department prior to the ITB. The Department awarded Gulf Coast Food Service (Gulf Coast) the highest point score for its bid for Regions III (90.60 points) and V (90.60), and awarded Pride the second highest point score for its bid for Regions III (59.56 points) and V (59.56 points). Gulf Coast bid $1.63 per case and Pride bid $2.5296 per case to receive, store, and deliver the food items in both Regions III and V. [Joint Exhibit H.] Gulf Coast's bid response included the following documents: Signed Invitation to Bid Cover Sheet Signed Public Entity Crimes Form One page Letter re: Company Criteria Signed Addendum #1-4 to the Invitation to Bid Signed Price Quote Sheet Annual Report - Suncoast [Joint Exhibit B.] Gulf Coast's bid included the following information relating to the non-cost criteria: The Condition of the Equipment. The Bid stated "15 fully equipped [sic] temperature controlled trucks." [Joint Exhibit B; R. pg. 129, lines 1-3.] Prior Experience/Timeliness of Deliveries. The bid stated "8 years of excellent service to Foodservice Industry." [Joint Exhibit B; R. pg. 59, lines 9-13; pg. 129, lines 7-21.] Personnel/staffing attributed to the bid. The bid stated "Fully trained delivery staff with 5 years no accident safety record," and "Fully trained senior staff of buyers with over 90 years combined experience." [Joint Exhibit B; R. pg. 129, lines 7-21.] Pride's bid response included the following documents: Signed Invitation to Bid Cover Sheet. Unsigned Public Entity Crimes Form (Pride exempt.) Signed Addendum #1-4 to the Invitation to Bid. Signed Price Quote Sheet 29 page attachment covering the requirements of the bid and the additional criteria listed in Section 4.8.2 of the ITB. [Joint Exhibit D.] Pride listed the type of equipment by model name, size, and the quantity, as well as the condition of such equipment utilized for transportation and for the other requirements of the project [Joint Exhibit D; R. pg. 59, lines 18-21]; listed information regarding its shipping and receiving procedures; customer surveys to indicate prior experience and history of timely deliveries [Joint Exhibit D]; the staff positions that would be dedicated to the project for each location, and the location of all its facilities. [Joint Exhibit D; R. pg. 59, line 25 through pg. 60, line 5.] Pride submitted information relating to each of the criteria listed in the ITB. The total savings on the award of these three contracts to Daffin and Gulf Coast as opposed to Pride is $228,548.09. Pride filed a timely challenge to the award of the contracts for Regions I, III and V.
Recommendation It is, accordingly, RECOMMENDED, That the Petition of Pride be dismissed, and the bids be awarded to Gulf Coast and Daffin. DONE and ENTERED this 8th day of February, 1995. STEPHEN F. DEAN 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 February, 1995. APPENDIX The parties submitted proposed findings of fact which were read and considered. The following states which of those facts were adopted and which were rejected and why: PETITIONER'S FINDINGS RECOMMENDED ORDER Paragraph 1 Paragraph 1 Paragraphs 2,3 Paragraphs 7,8 Paragraph 4 Paragraph 4 Paragraph 5 Rejected as contrary to facts Paragraphs 7,8 Paragraphs 5,6 Paragraphs 6,9 Subsumed in 5,6 Paragraphs 10-19 Paragraphs 9-17 Paragraphs 20,21,22 Conclusions of Law Paragraphs 23-26 Paragraphs 18-21 Paragraph 27 Conclusion of Law Paragraph 28 Subsumed in 22 Paragraph 29 Paragraph 22 Paragraph 30 Irrelevant, and subsumed in 15 Paragraphs 31,32,34 Paragraph 23 Paragraph 33 Irrelevant. Although information may have been provided about staff, the evaluations had already been completed and there is no evidence that this added information changed the already completed evaluations. Paragraphs 35-37,39-41 Paragraphs 24-29 Paragraph 38,42 Contrary to facts. Paragraph 43-47 Paragraphs 30-33 RESPONDENT'S FINDINGS RECOMMENDED ORDER Paragraphs 1-3 Paragraphs 1-3 Paragraphs 4,5 Paragraph 12 Paragraph 6 Subsumed in 12 Paragraph 7 Paragraph 19 Paragraph 8 Subsumed in 35 Paragraph 9 Paragraph 20 Paragraph 10 Paragraph 27 Paragraph 11 Paragraph 35 Paragraphs 12,13 Paragraph 27 Paragraph 14 Subsumed in 35 Paragraph 15 Paragraph 27 Paragraphs 16,17 Paragraphs 34,35 Paragraph 18,19 Respondent's order deleted 18,19 Paragraph 20 The evaluation was proper; however, the Department did not follow Rule 60A-1.001, F.A.C. Paragraph 21 There was no evidence of fraud or dishonesty. See comments to Paragraph 20, above, and Conclusions of Law. Paragraph 22 Paragraph 22 Paragraph 23 Subsumed in 22 Paragraph 24 Paragraph 23 Paragraphs 25,26 Paragraph 22 Paragraph 27 Subsumed in 22 Paragraph 28 Paragraph 33 Paragraph 29 Subsumed in 22 and 27 Paragraph 30 Conclusions of Law Paragraph 31 Paragraph 12 Paragraphs 32,33 Conclusions of Law Paragraphs 34,35 Paragraph 23 Paragraph 36 Paragraph 24 Paragraph 37 Conclusion of Law Paragraph 38 Argument Paragraph 39 Conclusion of Law Paragraph 40 Paragraph 23 Paragraph 41 Conclusion of Law COPIES FURNISHED: Wilbur E. Brewton, Esquire I. Ed Pantaleon, Esquire 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Louis A. Vargas, General Counsel Steven Ferst, Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
