The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-206, relating to the removal and replacement of the public address system at Pinellas Park High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, ITB was issued by Respondent for work related to the removal and replacement of the public address system at Pinellas Park High School in Largo, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-206 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $130,756.66. Petitioner submitted a bid in the amount of $116,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-206 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2013.
The Issue Whether the Department of Management Services acted arbitrarily, fraudulently, illegally or dishonestly in rejecting the bid proposed by Petitioner Stimsonite Corporation; and Whether the Department of Management Services' proposed award of a contract to Minnesota Mining and Manufacturing, Inc. was arbitrary, illegal, fraudulent or dishonest.
Findings Of Fact On or about October 30, 1995, DMS mailed to interested vendors ITB No. 20-550-590-A for Sign Material, Reflective Sheeting & Related Materials. Stimsonite and 3M were among the vendors who received copies of the ITB. After receiving the ITB, no interested vendor, including Stimsonite and 3M, requested that DMS clarify any of the ITB's general or special terms and conditions. Similarly, no one timely filed any protest to challenge any ITB terms or conditions. On or about December 28, 1995, DMS opened the bids submitted in response to the ITB. Thereafter, DMS evaluated the bids and determined which were responsive to the ITB requirements. Stimsonite and 3M were the only vendors to submit bid prices for ITB Item Nos. 13, 15, and 22, which pertain to reflective sheeting. DMS's bid tabulations reflect that 3M and Stimsonite offered the following bid prices, per square foot, for reflective sheeting under ITB Item Nos. 13, 15, and 22: Item No. 13 15 22 Stimsonite $3.5489 $3.2199 $3.2199 3M $3.588 $3.25 $3.25 On or about January 23, 1996, DMS posted the bid tabulations. DMS's bid tabulations specify an NAS (not as specified) code indicating reasons why it rejected certain bids. Stimsonite's bids on ITB Item Nos. 13, 15, and 22 were rejected as non-responsive with an indication of NAS Code 1. NAS Code 1 provides: "Vendor did not submit diskette as required by the bid." Stimsonite admittedly did not include a computer diskette with its 1995 bid. Because of the absence of the diskette, the Stimsonite bid had neither a price list nor a material list. No responding vendor, except 3M, included a computer diskette in response to the 1995 ITB. l3. DMS consistently rejected all bids submitted in response to its 1995 ITB which failed to include the required computer diskette(s). In evaluating the 1995 bids, DMS reviewed the material list information that 3M submitted with its bid in hard copy and on computer diskette. DMS posted its intent to award the bid to the only fully responsive bidder, 3M. Shortly after DMS posted the 1995 bid tabulations with its intent to award to 3M as the only responsive bidder, Stimsonite urged DMS to accept a materials list that Stimsonite had prepared on computer diskette. DMS refused to accept this diskette, which Stimsonite was offering nearly a month after the 1995 bid opening date. DMS rejected Stimsonite's late offering of the diskette because it was offered after bid opening, because it was offered after evaluation of bids, and because DMS's intent to award already had been posted. However, the greater weight of the evidence is that Stimsonite's after-offered diskette would not have met the 1995 ITB specifications even if it had been submitted simultaneously with Stimsonite's bid response. The after-offered diskette failed to offer the required size widths of reflective sheeting or the accessory items used with the sheeting such as process colors, inks, clears, and thinners. Stimsonite timely challenged the rejection of its 1995 bid as non- responsive and timely challenged DMS's intent to award the contract to 3M. Stimsonite contended, with regard to its failure to timely submit a conforming diskette, that the clear language of the 1995 ITB did not require the submission of a diskette for the items Stimsonite had chosen to bid on, and that submission of such a diskette could legitimately be made only by the successful bidder after bid opening. The 1995 ITB, which is at issue in this proceeding, contains the following Special Conditions directly related to a material list on Page 4: FORMAT FOR SUBMISSION OF BID On all bids which require any of the following documents: Manufacturer's or Dealer's Published Price Lists, Authorized Dealer's List Authorized Service Center Locations. Bidder shall provide these documents, with his bid, in a letter quality text response and with computer diskette media. The format for the computer diskette media shall be: WordPerfect 5.1 file format using an IBM Compatible Personal Computer, On 8-1/2" x 11" paper with portrait orientation, Margins: Left: minimum .3 inch; Right: minimum .8 inch, Top & Bottom: minimum .5 inch, Font: Courier 10 cpi, 3.5 or 5.25 inch diskette media, No landscape, No Tables or Columns, No Line Draw, No pictures, No strike- throughs and No Graphics allowed. These documents shall be submitted in hard copy as well as on 3.5 or 5.25 inch diskette media. [Failure to comply with this requirement will result in disqualification of your bid.] [Emphasis supplied] MATERIAL LIST A material list shall be provided on diskette formatted as specified in the Special Cond- ition "FORMAT FOR SUBMISSION OF BID" along with a print out of same for each item bid. The information must include product number for color, and size specified sheeting under the DMS thirteen (13) digit commodity number. If prices are included on the materials list they must be contract prices. [This list may be included on the same diskette as "Format for Submission of Bid" listed above.] (Emphasis supplied) Some other provisions of the 1995 ITB which affect the issues in this case are as follows: General Condition 4(b) on page 1 of the ITB specifies: ELIGIBLE USERS: Under Florida Law use of State contracts shall be available to political sub- divisions (county, local county board of public instruction, municipal or other local public agency or authority) and State Univer- sities, which may desire to purchase under the terms and conditions of the contract. General Condition 5 provides: ADDITIONAL TERMS AND CONDITIONS: No addition- al terms and conditions included with the bid response shall be evaluated or considered and any and all such additional terms and condi- tions shall have no force and effect and are inapplicable to this bid. If submitted either purposely through intent or design or inadver- tently appearing separately in transmittal letters, specifications, literature, price lists or warranties, it is understood and agreed the general and special conditions in this bid solicitation are the only conditions applicable to this bid and the bidder's autho- rized signature affixed to the bidder acknow- ledgment form attests to this. General Condition 7 states: INTERPRETATIONS/DISPUTES: Any questions con- cerning conditions and specifications shall be directed in writing to this office for receipt no later than (10) days prior to the bid opening. Inquiries must reference the date of the bid opening and the bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full comp- liance with this provision. . . General Condition 15 states: LEGAL REQUIREMENTS: Applicable provisions of all Federal, State, county and local laws, and of all ordinances, rules and regulations shall govern development, submittal and evalua- tion of all bids received in response hereto and shall govern any and all claims and dis- putes which may arise between person(s) hereto and the State of Florida, by and through its officers, employees and authorized represent- atives, or any other person natural or other- wise; and lack of knowledge thereof shall not constitute a legal defense against the effect thereof. General Condition 26 provides that: [THE SUCCESSFUL BIDDER(S) MUST PROVIDE: a copy of any product literature and price list, in excellent quality black image on white paper.] [Emphasis supplied] On the bottom of page 2, after the list of General Conditions, there is a note which states: [ANY AND ALL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE.] THIS SHEET AND THE ACCOMPANYING BID CONSTITUTE AN OFFER FROM THE BIDDER. IF ANY OR ALL PARTS OF THE BID ARE ACCEPTED BY THE STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, AN AUTHORIZED REPRESENTATIVE OF THE DIVISION OF PURCHASING OF THE DEPARTMENT OF MANAGEMENT SERVICES, SHALL AFFIX HIS SIGNATURE HERETO, AND THIS SHALL THEN CONSTITUTE THE WRITTEN AGREEMENT BETWEEN PARTIES. THE CONDITIONS OF THIS FORM BECOME A PART OF THE WRITTEN AGREEMENT BETWEEN THE PARTIES. [Emphasis supplied] Page 2A of the ITB contains a Vendor Bid Preparation Checklist. No. 16 thereof reminds all bidders to review the FORMAT FOR SUBMISSION OF BID for compliance with bid requirements. After the list of General Conditions, the Special Conditions begin on page 3 of the ITB. Among the Special Conditions of note in addition to the FORMAT FOR SUBMISSION OF BID and MATERIAL LIST, stated above, are: PURPOSE: ...to establish a 12 month contract by all State of Florida agencies and other eligible users ... TECHNICAL DOCUMENTATION: ... When technical documentation is required by this ITB, its pur- pose is to demonstrate compliance of the pro- duct bid with applicable technical require- ments of the ITB and to allow a technical evaluation of the product. [Failure to provide the required technical documentation with the bid submittal shall make the bidder nonre- sponsive], unless the Division of Purchasing, in its sole discretion and in the best inte- rest of the State, determines the accept- ability of the products offered through technical documentation available within the Division [as of the date and time of bid opening]. ... [Emphasis supplied] ACCESSORIES: [Inks, colors, clears, and thinners, required for use with non-perfor- ated commodities shall be included in the price per square foot bid price.] [Emphasis supplied] BALANCE OF LINE: [The bidder shall bid a balance of line which will include options and accessories at a fixed discount. Only vendors awarded specified sheeting items will be eligible for a balance of line award. Items in the balance of line which are dupli- cative of those specified will be deleted. The balance of line price list must be in effect on the date and time of the bid opening]. [Emphasis supplied] The Specification Summary and Bid Price Sheets for bidding items 13, 15, and 22 of the ITB are found on pages 25, 26, and 27 of the ITB and were as follows: SPECIFICATION SUMMARY AND PRICE SHEET COMMODITY NUMBER AND DESCRIPTION NET DELIVERED PRICE 550-590-350-0100 Sheeting, not perforated, reflective, Type IIIA, or Type IIIC sizes 1" through 48" by 50 yds, with a precoated pressure sensitive adhesive backing (Class I). Primer Not Required. Sheeting (Both Types) shall be available in no less than the following colors: blue, brown, green, yellow, and silver-white. Sheeting Manufacturer: Product No./Series: FDOT Qualified Products List Approval No. $ PER SQ. FT. (13 [Inks, colors, clears and thinners for use with non-preforated commodities shall be in- cluded in the per square foot price bid]. [Emphasis supplied] VENDOR: SPECIFICATIONS SUMMARY AND PRICE SHEET COMMOD- ITY NUMBER AND DESCRIPTION NET DELIVERED PRICE 550-590-350-0120 Sheeting, not perforated, reflective, Type IIIA, or Type IIIC sizes 1" through 48" by 50 yds, with a precoated pressure sensitive adhesive backing (Class I). Primer Not Required. Sheeting (Both Types) shall be available in no less than the following color: orange Sheeting Manufacturer: Product No./Series: FDOT Qualified Products List Approval No. $ PER SQ. FT. (15 [Inks, colors, clears and thinners for use with non-preforated commodities shall be included in the per square foot price bid.] [Emphasis supplied] VENDOR: SPECIFICATION SUMMARY AND PRICE SHEET COMMODITY NUMBER AND DESCRIPTION NET DELIVERED PRICE 550-590-760-2600 Reflective sheeting, construction barricade sheeting, Type IIA, or IIIA, or IIIB, or IIIC pressure sensitive adhesive backing (Class I). 4" or 6" orange and white or orange and silver strips running diagonally across the sheeting at a 45 degree angle, size 12", 24" and 36" by 50 yds. Sheeting Manufacturer: Product No./Series: FDOT Qualified Products List Approval No. $ PER SQ. FT. (22 [Inks, colors, clears and thinners for use with non-preforated commodities shall be in- cluded in the per square foot price bid.] [Emphasis supplied] VENDOR: After the item-by-item specifications, the ITB provides a page (page 39) of specification summary and price sheet for bidding the "balance of line discount offered for directly related sign material, not specified on the Bid Price Sheet." That format requires that the bidder state a fixed percentage discount from the price list for balance of line items. "Balance of Line" as used by DMS in the ITB refers to any and all accessories that might be used with the individual Items that are bid. Stimsonite's bid supervisor claimed that Stimsonite's failure to submit a diskette containing a material list was a reasonable, and indeed a clear and unambiguous, reading of the 1995 ITB. He had read the ITB to provide that the three categories of list (a manufacturer's or dealer's published price list, authorized dealer list, or authorized service center location list) which were named under the Special Condition, FORMAT FOR SUBMISSION OF BID, on page 4 were required to be submitted on a diskette with the bid, but he also considered that the diskette was not required for the three items that Stimsonite bid upon (Items 13, 15, and 22 on pages 25, 26, and 27 at Finding of Fact 20 supra) because none of the categories of list under FORMAT were required specifically within those Item No. specifications on the subsequent specification pages. Apparently due to the admonition at the bottom of ITB page 2 of the General Conditions [see Finding of Fact 19(f)], he assumed that the Item No. instructions on the specifications and price summary sheets on pages 25, 26, and 27 took precedence over, i.e. supplanted, the Special Condition MATERIAL LIST paragraph requiring a material list for every item in both hard copy and on diskette which also included the requirement of including product numbers for color, size, and DMS commodity numbers. Stimsonite's bid supervisor also asserted that because the Special Condition MATERIAL LIST paragraph and the Item No. specifications of pages 25, 26, and 27 did not specifically reiterate that the material list diskette must be submitted with the bid, the material list diskette legitimately could be submitted after the bid award, as was attempted by Stimsonite. He ostensibly interpreted General Condition 26, applicable to successful bidders, to mean that only successful bidders must provide a price list and a material list. Accordingly, Stimsonite further argued in the alternative that even if the ITB could be construed to require submission of a material list on diskette, Stimsonite's failure to submit the diskette to DMS with the rest of its bid response was only a minor irregularity unworthy of being ruled unresponsive because DMS had no substantive need for the information on the material list diskette until it decided which bidder was going to be the successful bidder. The bid supervisor's perception that the information on the diskette was not needed for bid evaluation purposes was another reason he ostensibly did not timely submit a diskette. Stimsonite has not asserted that late submission was a waiveable irregularity. 1/ In fact and to the contrary, the diskette is used by DMS to evaluate bids for responsiveness. This evaluation technique was introduced in 1994. It allows the reviewer, in this case, Ms. Boynton, to use the material list on the diskette to determine if each bidder has actually bid everything DMS asked for in the item by item specifications. Without a diskette, the reviewer cannot confirm that a bid matches the ITB. DMS uses the bidder's material list on diskette to confirm that the bidder currently manufactures the full range of sheeting widths and sizes (1 inch through 48 inches by 50 yards), as the ITB requires, which is a nonstandard range in the reflective sheeting industry. Additionally, DMS uses the material list diskette to confirm that the bidder proposes to make the full range of required sheeting widths and sizes available to state and local government purchasers. (See General Condition (4)(b) ELIGIBLE USERS and Special Condition PURPOSE in the ITB) DMS also uses the material list diskette to ensure that the bidder will make the required range of inks, clears, colors, and thinners available at the bid price. After the bid has been awarded, Ms. Boynton also uses the diskette for dissemination to contract users for ordering purposes on the electronic contract system. The diskette system saves DMS the time and cost of wordprocessing data from hard copy and avoids transcription erors. This was one of the purposes behind DMS' decision to start requiring a diskette in 1994. It comports with General Condition 4(b) ELIGIBLE USERS and Special Conditions PURPOSE. The Stimsonite bid supervisor did not have a manufacturer's price list and was not offering any accessories other than those inks, etc. covered under the Special Condition ACCESSORIES paragraph and those stated on pages 25, 26, and 27. Therefore, he did not read the Special Condition BALANCE OF LINE paragraph saying duplicates listed on page 39 for balance of line would be disregarded by DMS as an indicator that DMS expected any balance of line bids to include more than just the inks, etc. listed under ACCESSORIES and on pages 25, 26, and 27. Because he could not conceive of any balance of line more extensive than the inks, etc. which seemed to him to be excluded by the language on the specifications summary and price sheets for each Item No. (ITB pages 25, 26, and 27) and the balance of line summary and price sheet (page 39), and because Stimsonite was offering these inks, etc. within the price per square foot of sheeting at no extra charge on pages 25, 26, and 27, Stimsonite's bid supervisor felt that the diskette was not needed to evaluate these prices. Therefore, when he showed a balance of line on the balance of line summary sheet (ITB page 39) he showed no discount and he submitted no material list or price list on diskette. The ITB required a discount if a balance of line was offered under Special Condition BALANCE OF LINE. According to DMS employees, a price list was only necessary if a balance of line was bid. If a balance of line was bid, then a price list was necessary. The result of Stimsonite's interpretation of the 1995 ITB was that Stimsonite submitted a bid without a diskette which therefore contained neither a price list nor a material list. The hard copy offered a balance of line with no discount from a price list. Responsiveness in bidding Item Nos 13, 15, and 22 in 1995 did not require that vendors submit an authorized dealer's list or service center location list. The ITB used the language "shall submit" with regard to bidding a balance of line, but according to Ms. Boynton, the evaluator, and Mr. Barker, Chief of DMS's Bureau of Procurement, submission of a balance of line was not mandatory. Ms. Boynton speculated that if DMS did not get a balance of line bid from a responding bidder, DMS "might possibly find it was a minor irregularity." Clearly, the ITB provided that if there were any duplications on the balance of line offering, the agency could unilaterally delete them. However, if a vendor did bid a balance of line, DMS would need a price list, since with a balance of line and no price list, there was no way to evaluate the bid because DMS then could not calculate what the percentage reduction would be based upon. Therefore, under this situation in 1995, Stimsonite's balance of line bid with no price list on diskette was rejected as nonresponsive. 2/ The greater weight of the credible evidence, particularly but not exclusively that of Ms. Boynton, Mr. Barker, and Mr. Johnson, is that allowing any bidder to turn in the diskette after bid opening and award would give that bidder the advantage of changing the balance of line prices. If permitted to submit the material list after award, the bidder could elect to offer only one size which would impose an additional cost on the contract users to provide labor and expertise to cut to size, thus lowering the bidder's cost. Under a scenario which required only successful bidders to submit a diskette, DMS would not have the opportunity to reject the bid if the information on the diskette was nonconforming to the bid specifications. The bidder who delayed or never submitted a diskette also could exclude cities and counties from the cost-saving electronic contract system and could take telephone orders from the Department of Transportation, one of the agencies eligible to tie-in to DMS's electronic contract. Requiring a diskette only after award might permit the successful bidder to limit the sizes and colors offered. By not submitting a diskette at all, even late, a bidder could even disqualify its bid and back out of the contract if that bidder unilaterally decided its bid was too low or if the price of raw materials increased. Experience with successful bidders who ultimately failed to submit a material list at all was another reason for DMS's decision to start requiring a diskette in 1994. Any of the foregoing situations creates an advantage to the bidder who files a diskette late or the bidder who never files a diskette. Any of the foregoing situations increases costs to the state agency and contract users. Factually, this is a material irregularity. Stimsonite alleged that 3M was unresponsive because its bid transmittal letter contained a paragraph on terms and conditions of sale and warranties. However, it appears that the warranty language in 3M's transmittal letter actually enhances its bid. Also, it is standard practice for DMS to ignore these letters pursuant to ITB General Condition 5, which states that transmittal letter variances are of no force and effect. Factually, since 3M's letter cannot be relied upon by 3M either to enhance or diminish its bid, and since all such letters are disregarded in the bid evaluation/tabulation, the transmittal letter is a minor, nondisqualifying irregularity as to the 3M bid. Stimsonite asserted that the 3M diskette was not responsive to the ITB specifications. There is no dispute that the diskette 3M submitted was in the wrong font. However, since font size can be customized by a "click" on a computer mouse, and since Ms. Boynton was able to use 3M's diskette for the purposes intended by the ITB specifications, the irregular font size of 3M's diskette is found factually to constitute an immaterial flaw not worthy of declaring 3M's bid nonresponsive. Finally, Stimsonite contended that because the 3M bid failed to answer an ITB question that requested information about why a vendor's price list was item by item higher or lower than previous years, the entire 3M bid was unresponsive. This contention was not acknowledged as viable by the agency witnesses. DMS, like 3M, viewed this question as only information gathering for some cost trend analysis by the agency apart from bid evaluation. The information requested could not alter the bid price offered by 3M and is not necessary to DMS's evaluation of its bid or comparison of its bid with other bids. It is a flaw systematically ignored by the agency in bid evaluation. There was no evidence that any bid has ever been rejected for such a flaw. The absence of such information does not affect the cost to the agency nor does its absence provide an advantage to 3M. Factually, it is a minor irregularity.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services enter a final order ratifying its award of ITB 20-550-590-A Item Nos. 13, 15, and 22 to Minnesota Mining and Manufacturing, Inc. and dismissing the bid protest Petition of Stimsonite. RECOMMENDED this 14th day of June, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1996.
The Issue The issue in this case is whether the Department of Transportation's proposed award of a contract to Daniels Janitorial Service is contrary to the agency's governing statutes, the agency's rules or policies, or the specifications of the Invitation to Bid (ITB).
Findings Of Fact In April 2004, DOT issued ITB-DOT-04/05-5002-PDW (the ITB) seeking to contract for janitorial services at two state office buildings in DeLand, Florida. The ITB included a "bid blank," upon which vendors were directed to submit their cost proposals. The bid blank was titled "MONTHLY JANITORIAL SERVICES PER SCOPE OF SERVICES." The bid blank included three spaces where each bidder was to provide cost information. The three spaces were titled as follows: "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and "TOTAL YEARLY AMOUNT BOTH BUILDINGS." In response to the ITB, DOT received 18 bids. The bids were opened at 3:00 p.m. on April 29, 2004. The lowest bid was $5,185.76, submitted by Daniels Janitorial Service, including: $4,895.76 for "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," $200.00 for "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and $5,186.76 identified as "TOTAL YEARLY AMOUNT BOTH BUILDINGS." The second lowest bid was $10,686.00, submitted by Jan-Pro Cleaning Systems, including: $9,971.00 for "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," $715.00 for "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and $10, 686.00 identified as "TOTAL YEARLY AMOUNT BOTH BUILDINGS." The third lowest bid was $67,777.77, submitted by the Petitioner. The remainder of the bids ranged between $69,600.00 to as much as $201,464.64. At the time of the opening, Diane Warnock, a DOT District Contract Specialist and Purchasing Agent in charge of the bid opening, observed that two of the bids (the Daniels Janitorial Service and the Jan-Pro Cleaning Systems bids) appeared to be very low in relation to the other bids. Ms. Warnock believed that the two lowest bids submitted were likely set forth on a monthly basis rather than annual amount, and that the bidders had failed to extend the monthly charges to an annual cost. Ms. Warnock contacted David Callaway, a DOT Procurement Analyst with statewide contract responsibilities, to discuss her observations. Mr. Callaway advised Ms. Warnock that she could contact the two low bidders and ascertain whether the bids submitted reflected a monthly or an annual cost. Ms. Warnock separately contacted each of the individuals responsible for submitting the low bids and inquired as to whether the bids reflected a monthly cost or an annual cost. Ms. Warnock learned that each vendor had submitted a monthly bid amount. Ms. Warnock multiplied the monthly amounts submitted by the two vendors by 12 to arrive at an annual cost. On the bid tabulation form, Ms. Warnock included the bid amount submitted by each bidder. For the two bidders who submitted monthly cost information, Ms. Warnock included the monthly costs submitted and the annual cost figures she had calculated. Based on annual costs, the lowest vendor was Daniels Janitorial Service with an annual bid amount of $62,229.12. Section 13.2 of the ITB provides as follows: 13.2 RESPONSIVENESS OF BIDS Bids will not be considered if not received by the Department on or before the date and time specified as the due date for submission. All bids must be typed or printed in ink. A responsive bid is an offer to perform the scope of services called for in this Invitation to Bid in accordance with all requirements of this Invitation to Bid. Bids found to be non- responsive will not be considered. Bids may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A bid may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, modifying the bid requirements, submitting conditional bids or incomplete bids, submitting indefinite or ambiguous bids, or executing forms or the bid sheet with improper and/or undated signatures. Section 13.4 of the ITB provides as follows: 13.4 WAIVERS The Department may waive minor informalities or irregularities in bids received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other bidders. Minor irregularities are defined as those that do not have an adverse effect on the Department's interest and does not effect the price of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order awarding the contract for ITB-DOT-04/05- 5002-PDW to Daniels Janitorial Service. DONE AND ENTERED this 25th day of August, 2004, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of August, 2004. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Anthony Payne 1031 Eagles Forrest Drive Apopka, Florida 32712 James C. Myers, Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-205, relating to the removal and replacement of the public address system at Countryside High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, the ITB was issued by Respondent for work related to the removal and replacement of the public address system at Countryside High School in Clearwater, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-205 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $118,143.27. Petitioner submitted a bid in the amount of $108,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-205 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2013.
The Issue The first issue to be determined is whether the BOARD can reject all bids, with or without cause. The second issue is to determine if the BOARD is required to have cause, was there a sufficient basis for the rejection of all bids in Bid NO. 3996?
Findings Of Fact On December 14, 1987, the BOARD sent invitations to bid to a list of approved vendors in Bid NO. 3996. The purpose of the invitation was to obtain the lowest responsible bid on a purchase of one hundred and fifty typewriters. The bids were to be submitted prior to January 11, 1988 at 2:00 P.M.. They were opened by the BOARD on the same day. OFFICE did not receive an invitation to bid despite its request to be placed on the approved vendor's list in November of 1987. When OFFICE learned of the outstanding invitation to bid, its representative, Mr. Richard Foss, went to the BOARD's Purchasing Department and requested a bid package. The bid documents given to OFFICE mistakenly gave January 14, 1988 at 2:00 P.M. as the deadline for the bid submission. Because of the later date given by the BOARD to OFFICE, the company's bid was received after the opening of the bids. When the results of the bidding were made known at the public bid opening, NAPLES bid was the lowest received. On January 14, 1988, after 10:42 A.M., it was discovered by the BOARD that OFFICE's bid price was lower than the price submitted by NAPLES. At this time, NAPLES bid had not yet been accepted by the BOARD, and no formal announcement had been made awarding the contract to NAPLES. During the BOARD's Purchasing Department's bid analysis, a request was made to reject all bids in Bid NO. 3996. The reason given by Purchasing for the request for rejection was that the specifications were being revised. The bids were rejected on the same date. The written reason sent to the vendors on January 14, 1988 for the bid rejection was that one vendor had been given an incorrect opening date. Attached to the written notice to the vendors was a new bid invitation for Bid NO. 4013. The BOARD explained its mistake was unfair to the one vendor. A new bid opening date was given of February 1, 1988. On January 14, 1988, in addition to the required bid documents, OFFICE submitted a letter which listed additional offerings or incentives that OFFICE would give the BOARD if OFFICE was awarded the contract. These additional purchasing incentives were: wall charts and teacher/student manuals for each typing classroom in the county. OFFICE also informed the BOARD that one of the BOARD's own service personnel was already trained in the servicing of Swintec typewriters. The bid submitted by OFFICE did not meet either the weight or the print wheel specifications as set forth in Bid NO. 3996. The specifications as written in Bid NO. 3996 were not written to eliminate all other typewriters but the Brothers 511-11. Weight specifications required were below the Brother's minimum weight, and at least two other manufacturers provide protected drop-in cassette print wheels in electronic typewriters. The Invitation to Bid contained specific provisions which encouraged the bidding of typewriters other than the Brother 511-11, and set up procedures under which other typewriters, which substantially meet the specifications, could be reviewed on their merits. NAPLES was the lowest responsible bidder for the electronic typewriter contract in the prior school year. The BOARD had rejected all bids at that time because of the decision to consider a different brand of typewriter once bids were opened. A notice of protest was filed by NAPLES, and the BOARD agreed to honor NAPLES bid and award the company the contract. The BOARD revised its bid specifications from last year prior to its solicitations for bids in Bid NO. 3996. The protected drop-in cassette print wheel and the weight requirements were two new technical specifications. During the hearing, the BOARD was unable to determine whether the weight factor or the protected drop-in cassette print wheel requirement will continue to be included in future revisions of the specifications.
Recommendation Based on the foregoing, it is RECOMMENDED: That the BOARD reject the bid submitted by OFFICE as it was nonconforming and sought an advantage not enjoyed by the other bidders. Reinstate the bids which were rejected in Bid NO. 3996, consider the bids, and make an award of the contract to NAPLES. DONE and ENTERED this 30th day of March, 1988, in Tallahassee, Florida. VERONICA D. DONNELLY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988. COPIES FURNISHED: Stephen Emens, President Naples Business Equipment and Systems, Inc. 859 4th Avenue South Naples, Florida 33940 Harry A. Blair, Esquire 2138-40 Hoople Street Ft. Myers, Florida 33901 Richard Foss, Typewriter Sales Manager 8A-Del Prado Boulevard Cape Coral, Florida 33904 Karl Engel, Superintendent Lee County Public Schools The School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901
Findings Of Fact Sometime before January, 1989, The Department of Health and Rehabilitative Services (HRS) requested and received approval from the Department of General Services (DGS) for additional office space to provide for social services in Haines City, Florida. HRS was authorized to procure, through competitive bidding, a lease of 9041 square feet of existing office space, plus or minus 3%. Public notice that HRS was seeking competitive bids was given by advertisement in four central Florida newspapers. HRS had prepared a document entitled Invitation to Bid for Existing Facilities (ITB), which set forth in detail all of HRS' requirements. The purpose of the ITB was to inform all potential bidders of the minimum requirements for submitting a responsive bid, and the specific criteria by which the bids would be evaluated. The evaluation factors and their relative weights were stated in the ITB: Evaluation Criteria The successful bid will be that one determined to be the lowest and best. All bids will be evaluated on the award factors enumerated below: Associated Fiscal Costs Rental rates for basic term of lease. Evaluated using present value methodology by application of the present value discount rate of % (Weighting: 30) Rental rates for optional renewal of terms of lease. Rates proposed are within projected budgeting restraints of the department. (Weighting: 5) Associated moving costs i.e. furniture, equipment, telephone systems, etc. (Weighting: 0) Location Proximity of offered space in central or preferred area of map boundaries. (Weighting: 10) Frequency and availability of satisfactory public transportation within proximity of the offered space. (Weighting: 5) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of the departmental operations planned for the requested space. (Weighting: 20) Facility Susceptibility of the design of the space offered to efficient layout and good utilization. (Weighting: 20) Provision of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 15 yards of each other. (Weighting: 10) TOTAL POSSIBLE 100% The bid package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Specific areas of importance to Respondent in the selection of its office space were: rental rates environmental factors efficient space layout The above areas were important to HRS since the agency would render indigent services to several hundred people every month. The majority of Respondent's clients are served within a 10 day period each month. A great deal of pressure is placed on the surrounding area due to the influx of people. Because of servicing so many people, factors two and three received a great deal of weight under HRS's consideration of the property it desired to lease and occupy. All of the above areas were covered by Respondent's weighted bid evaluation criteria. Sealed bids were submitted by Intervenor, Unirealty Services, Inc. (bid A), and Petitioners, Messrs. Matthews and Walker (bid B). The bids were opened February 20, 1989, and Mr. Michael T. Akridge, former Facilities Services Manager, District VI HRS, determined both bids were responsive. At the time the Intervenors submitted their bid, they included documentation which showed that they had an option contract to purchase the subject facility, and an authorization from the optionees (two principals of Intervenors) for Unirealty to act as their agent. Both Petitioner's and Intervenor's property were within the mandatory geographical area designated in the bid package. Both bids were responsive under the minimum bid specifications and bidder qualifications. The District Administrator appointed a bid evaluation committee to review and grade the responsive bids under the criteria established in the bid package, and to recommend to him the committee's choice of lowest and best bid. The purpose in establishing the bid evaluation committee was to secure input from a cross section of people who had a variety of backgrounds and knowledge that would be material in evaluating the office space, in light of the uses for which it was intended and the relative public worth of the work space. Six individuals who were familiar with the type of work to be done in the proposed space, as well as persons familiar with the bid process were appointed to the Committee. The bid evaluation committee determined that the bid of Unirealty was the "lowest and best." The bid evaluation committee consisted of six representatives of the Department who visited each bidders' site and questioned the bidders' representatives. Each of the committee members worked with or supervised HRS programs that were to be located in the leased space. The solicitation for bids provided each bidder, among other things, with the bid evaluation criteria, a 100 point scale, which the committee used to evaluate the bids. Each committee member's evaluation scores were averaged and totaled to score Petitioners at 90.8, and Unirealty at 83.9. Each committee member gave a higher score to Unirealty. The three major bid evaluation criteria were FISCAL COSTS, LOCATION and FACILITY. Under the FISCAL COST criterion were three sub-categories: Rental Rates, Renewal Rates, and Moving Costs. For Rental Rates, Petitioners received 30 points out of 30 possible, and Unirealty got 23.1. For Renewal Rates, Petitioners got 5 out of 5 possible points, and Unirealty received 3.7 points. No points were awarded for Moving Costs. The evaluation committee did not assess points for Rental or Renewal Rates. These were scored by Michael T. Akridge, bid manager, based on a present value analysis of bidders' proposed rates. Mr. Akridge did not give the Committee the points for Rental and Renewal Rates until after they had completed their evaluations of the LOCATION and FACILITY criteria. The LOCATION criterion also had three sub-categories: Central Area-- 10 points--with both bidders receiving 9.3; Public Transportation--5 points-- which both bidders received; and, Environmental Factors--20 points--out of which Petitioners received 12.8 points and Unirealty 20 points. The Environmental Factors sub-category included building physical characteristics and surrounding area and their effect on the efficient and economical conduct of Department operations. Unirealty received a higher score than Petitioner because the committee believed its building had a better appearance, and was in better shape. The area surrounding the building was more open, while Petitioners' building was in a less desirable neighborhood with a bar or liquor store and bus station nearby which could create problems for clients because of transients. It had far more window space which creates a better work environment, and allows staff to be watchful of clients and their children outside, and the windows would be tinted. The windows at Petitioner's site were limited and no more could be added. Unirealty had more adjacent parking spaces, with handicapped parking closer to the building, and part of it was fenced which provided added protection to clients and staff. Petitioners' site had adjacent businesses whose patrons were using some of the parking spaces which the committee felt could create a problem. The Unirealty building could have an outside food stamp issuance facility which would be far more accessible to clients and to make the lobbies less crowded. It had an existing alarm system. It did not have side streets adjacent to the building, thus there would be less traffic congestion and therefore safer for clients; and, it had outside gathering areas where clients could go to smoke. Of the three sub-categories under FACILITY, Petitioners received 11.8 points out of 20 for Layout/Utilization and Unirealty received 19.7 points; for Single Building, both bidders received 10 points out of 10 possible. For the Layout/Utilization sub-category Unirealty received more points because its building configuration was more flexible and conducive to design of interior space, with less maze effect. The members of the committee each testified that it was important that the Unirealty building had no support poles to get in the way as they did in Petitioners' building. The support poles in Petitioner's building created a safety problem for clients and inhibited the location of desks and corridors. At Unirealty's site each worker could have a window, and mechanical and service areas could be put in the center of the building, with a playroom for clients' children. It provided a better restroom location near the front of Petitioner's building and lobby areas, and clients would not have to wander through work areas to get to the restrooms. Unirealty's building provided better control of clients' movements and thus better security. Members of the committee also upgraded the Unirealty building because its pitched roof was less likely to leak and its air conditioning was zoned thus providing better air quality and temperature control. At Unirealty there was better ingress and egress, and entry ways could be added. This could not be done at Petitioners' site. The Unirealty building could have different entrances for each HRS program, with separate lobbies for each program with less client congestion and better control. During the Committee members inspection of the sites they were told of an existing security alarm system already in place at the Unirealty site and were told that system would remain in place. When asked, the Petitioner's representative was unsure if his client would install a similar system at their site. A security system for the entire building was not included in the bid specifications, and it was improper for the committee to give Unirealty extra points for this unsolicited item. The proposed lease agreement calls for 9041 square feet of office space and a minimum of 66 parking spaces. Unirealty offered 72 parking spaces and Petitioner offered 75. The committee awarded more evaluation points to the Unirealty site based on future expansion capability of the building and the existing additional on-site parking spaces which were visible at the site at the time of inspection. The committee erroneously believed that the extra square footage of building space and extra parking spaces would necessarily be available to HRS if and when it might expand its offices. Future expansion was not in the bid specifications and it was clearly erroneous for them to have included this factor in their bid evaluation. The evaluation committee included the improper bid considerations in their evaluation of the Unirealty property. The two improper factors cannot be considered here. The unanimous recommendation of the evaluation committee was clearly to award the lease to the Intervenor. The evaluation committee based its decision on the scores attributed to each property on the Bid Synopsis sheet by the individual committee members. The committee utilized all the weighted bid criteria. However, two factors were of primary importance. One was its determination that the property offered by the Petitioners presented greater problems for design and flexibility due to the rectangular configuration of the building. The other consideration was that the physical characteristics of the Unirealty site and the surrounding area were considered far superior to the Petitioner's site. A close review of each evaluation sheet and the testimony of each committee member at the hearing shows that the improper factors were not so heavily weighted as to invalidate the committee recommendation. The reasons given by the individual committee members for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. Each individual member gave a rational and reasonable basis for the scoring he or she used on the Bid synopsis score sheets. The scoring was done by each member after inspection of the two buildings and without influence from the other committee members. In essence, the committee felt that Intervenor's property was the better property for the money. Importantly, every committee member came to the conclusion that Intervenor's property was the lowest and best bid. There is no statutory or rule requirement that one scoring method be preferred over another. The only requirement is that the method be rational and reasonable especially where highly subjective, but legitimate criteria are involved in the selection of a piece of property. On these facts, the individual scoring methods used by individual committee members were not arbitrary and capricious, but were very rational and reasonably related to the relative importance the committee members gave the above factors. Over an eight year period the Petitioner's rental cost was significantly lower than the Intervenor's. However, it is clear the legitimate considerations of the committee were crucial enough to override awarding the lease to the lowest bidder. The conclusion that the above factors can and do outweigh price and cost considerations in these facts is not an arbitrary and capricious decision, even though others may disagree with that decision. After the committee recommendation was scored and tabulated, Mr. Akridge requested the committee chair, Ms. Gail Newell, to prepare a draft letter of the proposed bid award. This was done in collaboration with the other committee members. Mr. Michael T. Akridge then prepared the bid award letter for the signature of the Administrative Services Director based on the draft letter. In it the two improper considerations were mentioned. The authority to award the lease to Unirealty was approved on March 8, 1989, by King W. Davis, Director of General Services for HRS based on the bid award letter, dated February 26, 1989.
Recommendation Based on the foregoing, the Hearing Officer recommends that the Secretary of the Department of Health and Rehabilitative Services enter a final order awarding lease number 590:2057 to Unirealty Services, Inc., as the lowest and best bidder. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 21st day of July, 1989. APPENDIX Petitioner's Proposed Findings of Fact: The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 15, 23, 26, 27, 28, 30, 34, 38, 39 (in part), 40, 41, 42, 45, 46, 47, 48, 49, 50, 51, 53, 64, 65, 67, 69, 70, 71, 76, 77, 81, 83 (in part) are adopted in substance in so far as material. Paragraphs 14, 16, 17, 18, 21, 22, 24, 25, 29, 33, 36, 37, 73, 74, 80 are rejected as conclusions of law. Paragraphs 13, 19, 20, 44, 54, 59, 60, 61, 63, 68, 72, 75, 778, 82, are rejected as not supported by the evidence. Paragraphs 31, 32, 35, 43, 52, 55, 56, 57, 58, 62, 66 are rejected assubordinate or immaterial. Respondent's Proposed Findings of Fact: The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 are adopted in substance in so far as they are material. Intervenor's Proposed Findings of Fact: The facts contained in paragraphs 1-17 are adopted in substance in so far as they are material. COPIES FURNISHED: Edward D. Matthews, Jr. 2405 Hideaway Court Tallahassee, Florida 32303 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Jack Emory Farley, Esquire HRS District VI Legal Counsel 4000 West Buffalo Avenue, Room 500 Tampa, Florida 33614 Neal A. Sivyer, Esquire Paul J. Ullom, Esquire Shackleford, Farrior, Stallings and Evans, P. A. 501 East Kennedy Boulevard Suite 1400 Tampa, Florida 33601 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, FL 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, FL 32399-0700
Findings Of Fact The Department of Corrections (Corrections) initially published an Invitation to Bid (ITB) 90-Region-001 for the provision of a recyclable baling machine which had an opening date and time of 1:00 p.m., August 22, 1989. Upon opening and evaluation of the bids filed in response to ITB 90- Region-001, Corrections' purchasing and technical staff determined that the specifications for this initial ITB had been drafted too narrowly for them to validly and reasonably compare the bids submitted. This was Corrections' first attempt to meet certain recycling mandates and the agency personnel were initially unfamiliar with all of the machinery available in the marketplace. Lack of technical literature from some bidders was also a problem. In comparing the five bid responses received, it became apparent to Barbara Stephens, Corrections' Purchasing Director, that the specifications she had initially drafted worked against agency interests in that they were so narrow that different models could not be compared. In Ms. Stephens' words, one could not even compare "apples and apples," let alone "apples and oranges." The line item on Page 6 defied comparison and other line items presented significant comparison problems. After a review by Corrections' General Services Specialist Bob Sandall, it was determined that it was to the agency's advantage, as well as advantageous to the competitive bidding process, to rebid on more general specifications instead of specifications solely geared to one single model of one type of baler already owned by the agency, a McDonald single phase baler. For the foregoing reasons, Corrections elected to reject all bids received in response to ITB 90-Region-001 and rebid the item so as to broaden the eligibility base through new specifications, thereby ensuring that more than a single manufacturer could compete while making line item comparisons by the agency possible. Line item comparisons were considered advantageous to all potential bidders and to the agency and essential to a fair competitive bidding process. Considering purely bottom-line cost, Petitioner Solid Waste was the low bidder on initial ITB No. 90-Region-001 if its mathematical error were ignored and its bid were recorded as $23,960.00 instead of as $35,970.00. There were apparently some other problems with Solid Waste's bid response. These were not clearly addressed by any witness' testimony, but it is apparent that the requested manufacturer's specification sheet was included with Solid Waste's response to ITB 90-Region-001. Corrections did not reach any of the potential bid defects of Solid Waste because the agency elected to discard all the bids almost immediately. Rule 13A-1.002(9) F.A.C. provides that an agency shall reserve the right to reject any and all bids and shall so indicate in its invitation to bid. Corrections followed this requirement in General Condition 10 of ITB No. 90- Region-001, which provides in pertinent part, as follows: As the best interest of the State may require, the right is reserved to reject any and all bids . . Bob Sandall and Barbara Stephens redrafted the bid specifications for the recyclable baling machine more broadly, primarily to encourage greater competition of bidders. Corrections properly published these new specifications in ITB No. 90-Region-001 on or about September 18, 1989. Bids were to be opened on October 3, 1989. On October 3, 1989, the bids submitted in response to ITB No. 90- Region-001 were opened and checked for completeness. Upon opening the bid packet submitted by Petitioner Solid Waste, Corrections personnel discovered that the manufacturer's specification sheet which had been required in both initial ITB No. 90-Region-001 and in rebid ITB No. 90- Region-001R was missing. Based on the missing specification sheet, Petitioner's bid on ITB No. 90-Region- 001R was rejected as unresponsive. General Condition 7 in ITB 90-Region-001R provided in pertinent part: Bidder shall submit with his bid, cuts, sketches, and descriptive literature and/or complete specifications. Reference to literature submitted with a pervious bid will not satisfy this provision. The State of Florida reserves the right to determine acceptance of item(s) as an approved equivalent. Bids which do not comply with these requirements are subiect to reiection. (Emphasis supplied) Special Condition VI of ITB 90-Region-001R, "Submission of Mandatory Forms/Literature," further provided that: 5. Complete Technical Data on items other than as specified shall be provided with bid by the vendor, for evaluation purposes, otherwise bid will not be considered. Nowhere in ITB 90-Region-001R is there any suggestion that responses thereto are supplemental to those filed for ITB 90-Region-001 or that "carryovers" or "reactivations" of earlier ITB 90-Region-001 responses would be considered. Corrections rejected other bidders' responses for other acts of non- responsiveness, and it was not necessary to waive any condition in order to award the bid to any of the bidders who were in full compliance with ITB 90- Region-001R. Petitioner timely filed a formal written protest to Corrections' bid tabulation of ITB 90-Region-001R on October 23, 1989. In this protest, Petitioner also included its only and untimely challenge to the agency's rejection of all bids for ITB 90-Region-001.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Corrections enter a Final Order dismissing Petitioner's protest and ratifying its rejection of all bids for ITB 90-Region- O01R and its tabulation of bids for ITB 90-Region-001R. DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5854BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1. is accepted except for the ultimate conclusion of law. See Conclusions of Law. 2-3, 5-7 are rejected as mere legal argument or proposed conclusions of law. See Conclusions of Law. 4 is rejected as characterization of testimony. Respondent' s PFOF: 1-7 are accepted. COPIES FURNISHED: W. K. Lally, P.A. 6160 Arlington Expressway Jacksonville, Florida 32211 Perri M. King Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Courtesy copy to: Richard L. Dugger, Secretary Thomas W. Riggs, President Department of Corrections Municipal Sales and Leasing 1311 Winewood Boulevard Inc. Post Office Box 90306 Tallahassee, Florida 32399-2500 Lakeland, Florida, 33804 Louis A. Vargas, General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
Findings Of Fact Prior to June, 1988, HRS determined that it needed 32,000 square feet of office space to house some of its indigent social services for southern Escambia County. Since the desired office space is greater than 2,000 square feet HRS was required to competitively bid lease number 590:1984. Towards that end, Respondent prepared an Invitation to Bid and a bid submittal package. The package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Specific areas of importance to Respondent in the selection of its office space were: client safety one building to house all its units employee morale moving costs traffic flow within the building public access Many of the above areas were important to HRS since the agency would render indigent services to approximately 17,000 people a month, many of whom are handicapped or lack good mobility due to age or infirmity. Employee morale was important because of high employee burn out due to rendering aid to so many people who have so little and supplying a pleasant environment conducive to the work of the employees. Moving costs were important should HRS be required to find other space to operate in while necessary remodeling took place in the selected building, or be required to incur the expense of moving to a new building. 1/ All of the above areas were covered by one of Respondent's weighted bid evaluation criteria. The District Administrator of HRS, Chelene Schembera, is ultimately responsible for bidding, selection and leasing of all HRS facilities within District I, including Escambia County, Florida. In order to accomplish this task, Ms. Schembera appointed a bid evaluation committee to review and grade the responsive bids under the criteria established in the bid package, and to recommend to her the committee's choice of the lowest and best bid. Ms. Schembera's purpose in establishing the bid evaluation committee was to secure a cross section of input from people who had a variety of backgrounds and knowledge that would be material in evaluating the office space under the uses for which it was intended and the relative public worth of the work space. Ms. Schembera appointed individual who were familiar with the type of work to be done in the proposed space, as well as a persons familiar with the bid process. Ms. Schembera assigned to serve on the committee Charles Bates, Deputy District Administrator; Jim Peters, to provide a fiscal and overall administrative perspective as well as bid expertise; two citizens from the District Advisory Council to assure objectivity and to look at the properties from the perspective of a private citizen; Mamun Rashied, a program manager; Darlene McFarland, a program manager; Cherie Neal, a unit supervisor and program worker; and Stacey Cassidy, a clerical employee. Ms. Schembera did not personally know Cherie Neal or Stacey Cassidy. These staff members were designated by the supervisors upon Ms. Schembera's direction that she wanted persons who were both intelligent and respected by their peers. One private citizen member of the committee did not participate. The committee as constituted showed a great deal of thought on Ms. Schembera's part to ensure the objectivity of the bid process she was engaging in and to ensure the maximum amount of input from persons who had experience relevant to the overall review of the proposed real estate and to the decision they were being asked to make. The selection of the bid evaluation committee members was neither an arbitrary nor capricious act on Ms. Schembera's part. In fact, the evidence demonstrated the merit in constituting the committee as she did for the input she sought. The bid evaluation committee members, minus Mr. Bates, were briefed on their duties by Joe Pastucha, Facilities Services Manager. Mr. Pastucha is part of the staff responsible for the bid process at HRS. He provided these committee members with the weighted bid evaluation criteria found at page 15 in the bid package. He also gave the committee members a copy of Chapter 5 of the HRS manual containing guidelines for the bid process. His verbal instructions on specific procedures to follow in the evaluation process were limited since he did not wish to improperly influence the committee members. On July 20, 1988, HRS received three bids responding to its invitation to bid on Lease Number 590:1984. Bid A was submitted by Phillips and Company, the apparent second lowest bidder and Intervenor in this case. Its property consisted of one multi-story building located at 1740 North Palafox Street, Pensacola, Florida. Bid B was not responsive and therefore was not considered by HRS and is not a part of this litigation. Bid C was submitted by Petitioner Carmon S. Boone, and was the apparent low bid. Mr. Boone's property consisted of two buildings located at 401 and 411 North Baylen Street, Pensacola, Florida. The Boone property is the present location of Respondent's offices. Both Bid A and Bid C were within the mandatory geographical area designated in the bid package. Once the bids were received the bid evaluation committee began its work. The committee members, minus Mr. Bates, visited the Phillips property. However, the members did not visit the Boone property. There was no need. Four of the members currently worked at the Boone property and the other members had previously visited the Boone property on various other occasions. Mr. Bates was likewise already familiar with both properties. All members were sufficiently familiar with the cogent aspects of each property to allow them to make a rational decision. The bid evaluation committee, minus Mr. Bates, met as a group to evaluate each property in accordance with the weighted bid evaluation criteria. Each individual scored their sheets separately and the general consensus was supportive of recommending the Phillips property. Five committee members scored Mr. Phillips' property higher than the Boone property. The one exception was Mr. Peters who felt that HRS could not support a bid awarded for other than monetary reasons, i.e., he felt the lowest bid had to be accepted. Mr. Bates later reviewed all the bid synopsis sheets of the committee members and discussed the bid award with Mr. Peters and Mr. Pastucha. Mr. Bates felt that the Phillips property was the lowest and best bid. At about the same time, the staff responsible for providing technical assistance to the committee and the District Administrator were made aware that the general consensus of the committee was leaning towards the second lowest bidder, Phillips and Company, as the lowest and best bid. The staff members, one of whom was a bid committee member, disagreed with the award of the bid to Phillips and Company because the Boone property was the lower bid. The staff members sought to head off the committee's intended recommendation. The staff personnel held a meeting with some of the committee members in order to get them to join in a recommendation to Ms. Schembera of the Boone property. Mr. Boone was invited and attended the meeting. He was allowed to improperly bolster his bid by agreeing to convert the two buildings to one and other lesser additions. /2 The potential decision was discussed, but no committee member changed his or her mind. However, through a total lack of communication, a run away staff somehow rationalized themselves into a position of being authorized to submit a letter for Ms. Schembera's signature which awarded the Boone property the lease. Ms. Schembera became aware of her staff's attempt to subvert the bid process she had established. She refused to sign the letter submitted by the staff. She removed the staff member of the committee as a voting member. The staff member had supported the Boone property. She also removed a committee member who supported the Phillips property as a voting member. Ms. Schembera feared that her staff had improperly influenced this member to such an extent that his objectivity had been affected. Both members could still participate in committee discussions. Ms. Schembera thereby reasonably ensured the ongoing objectivity of the bid evaluation committee. The committee was reconvened, minus one member. It recommended the Phillips and Company property. Every reason given by the individual committee members for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. Each individual member gave a rational and reasonable basis for the scoring he or she used on the bid synopsis score sheets. The scoring was done by each member after discussion of the two buildings and without influence from the other committee members. In essence, the committee felt that the Phillips property was the better property for the money. The Phillips property allowed working units to be located in one area with each such unit having its own access. It provided flat safe parking areas and sidewalks, bigger and more elevators, wide halls and windows which presented a bright, happy and pleasant working environment. The Boone property was in two buildings which could not accommodate co-located working units with their own access no matter how much remodeling took place. Parking and sidewalks are on a hill which is slippery when wet. It had one small elevator and narrow halls which did not adequately accommodate more than one wheel chair, and one ground floor where no windows could ever be remodeled into the building leaving a dark, dingy and unpleasant environment. Importantly, every committee member except for the staff member came to the conclusion that the Phillips and Company property was the lowest and best bid. There is no statutory or rule requirement that one scoring method be preferred over another. The only requirement is that the method be rational and reasonable especially where highly subjective, but legitimate criteria are involved in the selection of a particular piece of property. On these facts, the individual scoring methods used by the individual committee members were not arbitrary and capricious, but were very rational and reasonably related to the relative importance the committee members gave the above factors. After reviewing and considering information from the bid evaluation committee, the information on the bid synopsis sheet, and the oral recommendations of Mr. Bates, Mr. Peters and Mr. Pastucha, Ms. Schembera concluded that the Phillips property was vastly better, even considering costs. She found it to be materially superior in terms of construction, organization, client accessibility, handicap accessibility, repairability (in terms of walls), and maneuverability for clients and staff. She felt the Phillips' building's qualities would offer more "humanity" to the process of serving the Department's clients. Additional facts she considered when making her decision included the morale of the staff and their productivity; the ability of staff and clients to conduct their business in a reasonably pleasant, comfortable, safe, and easy to understand and comprehend environment; and the desire to provide a minimally adequate work space. In addition to other monetary costs, she considered energy costs and life cycle costs as reflected on the bid synopsis sheet. The bid synopsis sheet defined minimal energy and life cycle costs to be anything less than 55 BTU's per square feet per year. In this case, the Boone property reflected 39.5 BTU's per square feet and the Phillips property reflected 53.5 BTU's per square feet. Both properties were under the 55 BTU cutoff established by HRS. Translated into monetary figures (life cycle costs) the Boone property reflected a cost of $26,735.00 and the Phillips property reflected a cost of $41,160.00. It was the difference between the energy figures which caught Ms. Schembera's eye. In her layman's opinion, it was incomprehensible that the two buildings would have such a wide divergence of energy costs. /3 She learned from her staff that the information used to compute these costs was supplied by the bidders who had vested interests in the outcome. Ms. Schembera concluded the cost difference was minimal and not of overriding concern in relation to the physical characteristics of the two buildings and how they compared to each other. She quite correctly felt the two buildings were not comparable. In essence, the two buildings' differences in design location and construction rendered neither building comparable to the other building as a like facility under Section 255.254, Florida Statutes. 4/ Based on that information she gave the energy figures relatively little weight. More importantly, however, before the final bid award was made by HRS, the Division of General Services within HRS in its failsafe role in reviewing bids considered the life cycle cost figures of the two bids. The minimal language of Section 255.254, Florida Statutes, has been interpreted by HRS to mean that anything under 55 BTU's is minimal and except in one instance not applicable here, numerical differences under 55 BTU's are immaterial. The Division, without getting into the issue of the likeness of the facilities, concluded that both bids met the Department's interpretation of the "minimal" language of Section 255.254, Florida Statutes, and the relative numerical difference in the energy costs was immaterial. Ms. Schembera is entitled to rely on other more expert HRS Division staff to ensure a proper analysis of highly technical bid specifications such as the energy cost analysis required under Section 255.254, Florida Statutes. It does not matter that the review took place after Ms. Schembera had made her preliminary decision. What is important is that the review be made either personal or vicariously through staff before the final award is made. A proper review of energy costs was, therefore, made by Respondent before the final award was made. Likewise, Ms. Schembera's ultimate decision that the buildings were not comparable like facilities was a proper review of energy costs even though that conclusion was arrived at through a layman's unsophisticated, but more accurate intuition and common sense. To that extent, the energy cost data had no impact on the ultimate choice made by the District Administrator and were properly considered by the District Administrator. 5/ A letter for Ms. Schembera's signature adopting the committee's recommendation was drafted by Mr. Pastucha. The letter was signed and sent to the Department's Division of General Services for review. The District was requested to provide additional justification for its choice by the Department's Division of General Services. Mr. Rashied was directed to draft the response. He simply reorganized the original memorandum into a format more compatible with the Division's direction, clarified a few points and without significantly changing the content, submitted the response as directed. The Division acquiesced in Ms. Schembera's decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order dismissing Case NO. 88-4900BID, and awarding lease number 590:1984 to Phillips and Company as the lowest and best bidder. DONE and ORDERED this 5th day of January, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1988.
The Issue The issue in this case is whether Respondent properly rejected the bid of Petitioner.
Findings Of Fact Respondent issued on February 28, 1990, an invitation to bid concerning the installation of bleachers at a high school ("ITB"). The ITB was duly advertised. Among the bidders was Interkal, Inc., which is a manufacturer of bleachers. The Interkal bid, which was timely submitted, was executed by its president. The Interkal bid contained a bid bond naming Interkal as principal and a certification from the secretary of Interkal reflecting a corporate resolution authorizing the execution of all bid documents on behalf of Interkal by its corporate officers. The Interkal bid disclosed two subcontractors. The supplier was shown as Interkal, and the erector was shown as Petitioner. Petitioner is the authorized factory representative for Interkal in Florida. As such, Petitioner solicits business and installs and removes bleachers on behalf of Interkal. As compensation, Petitioner receives commissions for such work from Interkal. However, the shareholder and chief executive officer of Petitioner is not a shareholder or officer of Interkal. In addition, Petitioner is not authorized to execute bid documents on behalf of Interkal. Petitioner is no more than a Subcontrator of Interkal. The bidder in this case was Interkal, not Petitioner, even though Petitioner handled much of the paperwork or its manufacturer. When an unrelated bidder was awarded the contract, Petitioner filed a formal written protest in its name. Interkal has not participated as a party in the subject proceeding.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent enter a Final Order dismissing the petition of Diversified Design Enterprises. ENTERED this 22nd day of May, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1990. COPIES FURNISHED: Ned N. Julian Stenstrom, McIntosh, et al. P.O. Box 1330 Sanford, FL 32772-1330 William Merkel, President Diversified Design Enterprises 321 N.E. Second Avenue Delray Beach, FL 33444 Robert W. Hughes, Superintendent Seminole County School Board 1211 Mellonville Avenue Sanford, FL 32771
The Issue The issues are 1) Whether the Department of Health and Rehabilitative Services (HRS) properly rejected all bids on Lease Bid No. 590:2133, and 2) Whether either Petitioner is entitled to award of Lease Bid No. 590:2133 as the lowest and best responsive bidder.
Findings Of Fact On October 16, 1989, HRS issued an Invitation to Bid (ITB) on Lease Bid No. 590:2133 for 43,634 net square feet of office space in Ocala, Marion County, Florida. The bid package contained specifications, evaluation criteria, and numerical weight to be assigned to each criteria. The bid package indicated the area of emphasis placed on the facility by HRS which focused on client safety, public access, availability of public transportation, and parking. The emphasis on each area was indicated by the weighted points to be given in each area. On January 24, 1990, HRS received bids from both Wharton and Curtis. Both bids were responsive. Curtis submitted the apparent low bid and Wharton submitted the apparent second lowest bid. Curtis, as Trustee, is the owner of the property which is presently occupied by HRS in Ocala, Florida. The lease on these premises was awarded in 1980 and expires in 1990. Curtis purchased the leasehold in April of 1988 while HRS was a tenant and subject to the existing lease. Philip J. Procacci is the President of Procacci Development which is the general partner in Wharton Investment Group. The actual bids submitted were not offered into evidence by any party in this proceeding. Susanne Casey, the District Administrator of HRS District 3, is ultimately responsible for the leasing of all HRS facilities in the district, including facilities in Marion County. Casey appointed a bid evaluation committee to review and evaluate the responsive bids based on the criteria stated in the bid package. The committee was to make a recommendation regarding the lowest and best bidder. Before the bids were opened, the bid evaluation committee met and agreed upon objective parameters for each of the evaluation criteria. These parameters established standards against which each committee member could independently evaluate and award points on each bid. The evaluation criteria in the bid package assigned points in three major categories: associated fiscal costs, location, and facility. Associated fiscal coasts were further broken down into (a) rental rates for the basic lease term, (b) rental rates for optional renewal terms, and (c) associated moving costs. The maximum points available in each of these categories were fixed in the bid package and could not be altered by the committee. These criteria are standard in a lease procurement through out the state. State regulations require that all bids for lease space in the state evaluate rental rates using present value methodology. See Rule 13M-1.029, Florida Administrative Code. This means that the proposed rental rates in all bids are calculated to present value dollars for the purpose of comparison. The Department of General Services has a computer program, the sole function of which is to calculate the present value of the rental rates. The program has nothing to do with the assignment of points under the criteria, but is used as a tool to allow comparison of the bids. The present value of the Curtis bid was $662,464 lower than the present value of the Wharton bid. The rental rates were awarded points under criterion 1a of associated fiscal costs. The committee awarded the full 20 points to Curtis and awarded 5 points to Wharton. The committee members awarded these points in accordance with the standards and formula they had agreed on prior to the bid opening. The formula the committee used was not the more commonly used formula, but it was reasonable and rational and it was fairly applied to the bids in this case. There is no rule or policy of HRS or of the Department of General Services (DGS) that mandates that a particular formula be used in awarding points for the rental rate criterion 1a. There is a formula that HRS and DGS recommend as guidance of a methodology that is appropriate and reasonable, but the recommendation is not binding on the committee or on the District Administrator. There was another criterion of associated moving costs considered as part of the associated fiscal costs. Each committee member awarded 10 points to Wharton and 8 points to Curtis on this item. Wharton received 10 points because it sent a letter with its bid in which it offered to pay all moving costs incurred by HRS in a move to its building. Curtis received 8 points because HRS already occupied two of its buildings and would have limited moving costs in moving into the two additional buildings included in its bid. The bid specifications and bid package contained no indication that a bidder could offer to pay all moving costs as part of its bid. In fact, Wharton submitted its letter offering to pay all moving costs as a result of its discussion with one committee member, T.C. Little. Mr. Little is also the General Services Manager for HRS District 3 and is involved with all bids in the district. Mr. Little interpreted the bid specifications to permit such an offer even though the bid specifications were silent on the issue. At page 5 of the bid package, it is clearly stated that questions concerning the bid are to be directed to the project contact person. It further states: Any questions which might be prejudicial to other bidders will be answered in writing in the form of a clarification to the bid and will be sent to all prospective bidders. On that same page, the bid specifications address proposal of alternatives by stating: For evaluation purposes each bid submitted will be evaluated as to adherence to the specifications requested. If a bidder desires to propose alternatives to the specified specifications, he/she may do so by attaching a sheet to the bid submittal document titled Alternatives. However, these alternatives will not be presented to the bid evaluation committee for use in comparison of bids and can only be considered after an award of bid is made. The project contact person was Donald J. Cerlanek and any request for clarification should have been addressed to him and not to Mr. Little. Mr. Little's gratuitous advice and interpretation of the bid specifications made to Wharton and not to all bidders was incorrect, violated the terms of the bid specifications, and was improper. The bid specifications do not permit an offer to pay all moving costs to be considered in the award of points under the associated moving costs criteria. Such an offer can only be considered as an alternative proposal and cannot be considered by the bid evaluation committee in comparing the bids. Under the standards established by the committee, Wharton should have received 5 points on the associated moving costs criterion instead of 10 points. The committee members individually evaluated each bid and awarded points within the parameters they had established. Except for the incorrect award of points on the associated moving costs criteria, the scoring method and award of points by each committee member was rationally and reasonably related to the relative importance of each criterion as established in the bid package and was neither arbitrary nor capricious. Each committee member came to the conclusion that the Curtis bid was the lowest and best based on the award of points in each member's independent evaluation. On February 13, 1990, they recommended in writing that Curtis be awarded the bid. On February 19, 1990, the District Administrator adopted the committee's recommendation and reported the recommendation to Steven Gertel, the assistant staff director for HRS Facilities Services in the Office of General Services. On March 7, 1990, Mr. Gertel sent a memo to the District Administrator. The memo said: Review of the bid evaluation committee's recommendation has disclosed that the committee used a non-standard method of evaluating present value of rental rate for the lease term. Please provide an explanation of this variation to accepted practice. In fact, the committee used the established DGS formula to calculate the present value of rental rates. However, the committee used its own formula to award points based on the present value of rental rates. There was nothing impermissible about the committee's actions or formula. Because of a fear of a bid protest, Ms. Casey, the District Administrator, sent a notice rejecting all bids on the project. No other reason was articulated for rejecting all bids. The fear of a bid protest is not a legally sufficient reason to reject all bids, particularly because it is not stated in the bid specifications and is based on speculation about a future event which may never occur. HRS did reserve the right to reject all bids in the bid package, but it may not do so for an improper purpose. Fear of a bid protest is not a proper purpose. Wharton alleged and attempted to show some level of collusion between Curtis and Mr. Cerlanek of HRS. While Mr. Curtis had several contacts with Mr. Cerlanek about the project, such contacts are not per se inappropriate because Mr. Cerlanek is the District 3 Lease Coordinator and is the proper person to discuss future projects with potential bidders. No competent, substantial evidence was presented to show that Mr. Cerlanek discussed anything that was not public record or anything that gave Mr. Curtis any advantage in the bid process. Mr. Cerlanek did not tell Mr. Curtis what would be in the bid package or what would be needed to insure award of the bid to Curtis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order awarding the bid in Lease No. 590:5133 to Gail Curtis, as Trustee, as the lowest and best bidder. DONE and ENTERED this 27th day of September, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of September, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 90-2459BID AND 90-2666BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Wharton 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(5) and 19(27). 2. Proposed findings of fact 1, 5, 11-17, 20, 29, 30, 38, 39, 45, 46, 51, and 57 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 6, 8-10, 18, 21, 24, 25, 27, 31-34, 37, 40-44, 48- 50, 52, and 55 are irrelevant. Proposed findings of fact 7, 28, 56, 58, and 59 are unsupported by the competent, substantial evidence. Proposed findings of fact 22, 23, 26, 35, 36, 38, 47, 53, and 54 are mere summaries of testimony and are not appropriately framed as proposed findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Curtis, as Trustee Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(11), 7&8(13), 9(14), and 15(25). Proposed findings of fact 1-3, 5, 6, 10-12, and 16-26 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13, 14, and 27-29 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: Part I paragraphs 2(1&2), 3(4), 4(8), 5(30), Part II paragraphs 2(1&2), 3(3), 4(4), 5(8), 6(9), 8(10), 19(25), and 20(26). Proposed findings of fact Part I paragraphs 1 and 6 and Part II paragraphs 1, 7, 9, 10, 12-18, and 21-24 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 11 is irrelevant. Copies furnished to: Robert A. Sweetapple Attorney at Law 465 East Palmetto Park Road Boca Raton, FL 33432 Harry R. Detwiler, Jr. Attorney at Law Holland & Knight Post Office Drawer 810 Tallahassee, FL 32302 Gloria Fletcher Attorney at Law 515 North Main Street, Ste. 300 Gainesville, FL 32607 Frances S. Childers District Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
