Findings Of Fact The Petitioner is Ellis I. DeGroff. He is president of DeGroff Business Machines, Inc. The Respondent is the School Board of Palm Beach County, Florida. On September 17, 1987, the Respondent issued Invitation for Bid number SB-88C-120B for the potential acquisition of electronic cash registers. Bids were opened by the Respondent on October 14, 1987. Five bids were received. The monetary amounts of the bids were listed and Petitioner's bid was the lowest. Respondent then reviewed the bids to determine compliance with bid specifications contained in the Invitation for Bid. The Respondent determined the bid of the Petitioner was not in compliance with bid specifications as follows: The system bid by the Petitioner did not have cassette tape recorder interface for programming as required by bid specifications. The system bid by the Petitioner did not have the capacity of keeping an inventory of 700 bulk items as required by bid specifications. The system bid by the Petitioner did not have a communication board for interface with a personal computer as required by bid specifications. The Petitioner did not provide literature to document that the system bid by the Petitioner met or exceeded the brand name system designated in the bid specifications. The system bid by the Petitioner did not have a cassette tape recorder interface for programming as required by bid specification number 18, set forth on page 6 of the Respondent's invitation to bid. The equivalent, as argued by the Petitioner, is a portable "transpack" which can be plugged into machines to accomplish virtually the same purpose. Petitioner did not include the "transpack" in the price quoted in his bid. It would have to be purchased separately. The Petitioner's bid was nonresponsive as to this specification. The Petitioner initially testified that the machine bid by him could not manage more than 512 bulk inventory items. On further examination, he alleged his machine would handle over the 700 inventory items required by bid specification number 24, on page 7 of Petitioner's invitation to bid. The additional inventory would result from an upgrade to the machine. The Petitioner's bid is not responsive to this bid specification. Petitioner's machine as bid does have the ability for communication with a personal computer through a communications wire or telephone modem. Petitioner's bid included a software (floppy disk) program for computer assimilation of data from the electronic cash register. Petitioner's bid was responsive to this specification set forth in item 1b on page 11 of the invitation to bid. The Respondent's bid specified an electronic cash register known as National Semiconductor Model 2170 or acceptable equivalent. Paragraph number 6 on the first page of the bid specification package emphasizes that use of such a brand name is simply for the purpose of establishing a grade or quality. Under requirements of special condition K on page 4 of the bid package, a bidder submitting a different brand name must also submit information, including the manufacturer's latest literature on the machine being offered, as may be necessary to verify that the bid item meets or exceeds the requirements of the brand name machine set forth in the bid package. The submission of such additional information must be made within three days of notification by the Respondent. Since the Petitioner had bid a machine of a different brand than that set forth in the bid package and was also the low bidder, Respondent requested and timely received additional information from the Petitioner which was to have verified the specifications of the Petitioner's machine. Notably, the electronic cash register bid by the Petitioner and demonstrated for the Respondent during the process of bid evaluation was a machine produced by Sharp Electronics Corporation and designated on page 11 of Petitioner's bid as model number 4230M-ES. The Petitioner provided Respondent with additional information in the form of a glossy brochure detailing the advantages of a machine made by the same corporation and designated in the brochure as model ER-4230F. Petitioner also included literature on a circuit module with a model designation of 4050. A cover letter with these two publications from the Petitioner pointed out that the model number in the bid package was a typographical error and should be corrected to read 4230F-ES. The assertion of Petitioner in this letter and reaffirmed in testimony at hearing is not supported by the evidence which establishes Petitioner did indeed bid the model 4230M-ES and did subsequently demonstrate that machine to Respondent. It is further established that the 4230M-ES does not possess a flat liquid resistant keyboard as required in specification number 1 on page 6 of the bid package. Petitioner's bid was nonresponsive in its failure to comply with the requirement of special condition K.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter a final order finding the bid of the Petitioner to be unresponsive. DONE AND RECOMMENDED this 25th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. 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 25th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. Respondent Included in finding number 3. Included in finding number 4. Included in finding number 4. Included in finding number 4. Included in findings numbered 4, 5, 6, 8, and 9. Included in findings numbered 4, 5, 6, 8, and 9. Rejected as unnecessary. Rejected as unnecessary. Petitioner The Petitioner submitted a post hearing document which is divided into three sections. The second section entitled "Statement of Petitioner's Position" is presumed to be proposed findings. The proposed findings, designated by letters A through D, have been renumbered as paragraphs 1 through 4 and are treated as follows: Not supported by the evidence. Not supported by the evidence. Adopted in part in finding number 7. Not supported by the evidence. COPIES FURNISHED: Thomas J. Mills Superintendent of Schools 3323 Belvedere Road P.O. Box 24690 West Palm Beach, FL 33416-4690 Ellis I. DeGroff DeGroff Business Machines, Inc. 2745 U.S. #1 Riviera Beach, FL 33404 Vladimir R. Martinez, Esq. 3323 Belvedere Road Building 503, Room 232 West Palm Beach, FL 33416-4690
The Issue At issue in this proceeding is whether the decision of the respondent, Department of Corrections (Department), to award the subject bid to intervenor, Doctors and Physicians Laboratories, Inc. (Doctors), comported with the essential requirements of law.
Findings Of Fact Background On October 16, 1991, the Department of Corrections (Department) issued invitation to bid number 91-CO-5369 (hereinafter "the ITB"), which sought to secure appropriate services to perform drug tests on certain applicants for employment and existing employees of the Department. The deadline for submitting bids was established as 11:00 a.m., November 7, 1991. At the time of the deadline, the Department had received four bids, including those of petitioner, Toxicology Testing Service, Inc., and intervenor, Doctors and Physicians Laboratories, Inc. (Doctors). Petitioner's bid was $372,000, and Doctors' bid was $315,491.60. Based on its evaluation, the Department ranked Doctors first and petitioner second, with composite scores of 91.67 and 90.38, respectively, and proposed to award the contract to Doctors. Petitioner filed a timely formal written protest to contest the Department's decision, and charged that the Department materially departed from the evaluation criteria contained in the ITB. The Invitation to Bid Pertinent to this case, section 4.7 of the ITB established the evaluation criteria to be used in determining the acceptability of the bids as follows: 4.7 Evaluation Criteria Criteria Point Value 1. References 5 2. Firm Profile 5 3. Firms Qualifications 15 Understanding of Scope of Services 25 Bid Price 50 100 And, section 4.7.5 of the ITB established the following methodology to be utilized in awarding points for the bid price criteria: The award for bid price shall be determined as follows: The Bidder who submits the lowest bid price will be awarded 50 points. All others bidders will be awarded points based on the following formula: Bid Price Points = 50 X [1-A/B] where: A = the difference between the percentage of the bid being evaluated and the low bid(s). B = the low bid. The lowest bid price will be computed by multiplying the unit prices for Items 1, 2 and 3 for all three years by the estimated quantity. The estimated quantity is for bidding purposes only and is not a guarantee. The total annual cost for Items 1 and 2 for all three years will be added to determine the Total Cost for all three years. The vendor with the lowest Total Cost will be awarded the 50 points. Negative points will not be awarded. Pursuant to the provisions of section 5.13 of the ITB, the contract was to be awarded to the bidder that received the highest overall point total under the criteria established by section 4.7 of the ITB. The Department's evaluation and the protest Based on its evaluation of the bids, the Department's evaluation committee awarded petitioner 49.34 points for its technical proposal (items 1-4 of the evaluation criteria) and Doctor's 41.67 points for its technical proposal. Bid price points were then established through a preexisting computer program, which derived 41.04 points for petitioner and 50 points for Doctors. When totalled, petitioner received 90.38 points and Doctors received 91.67 points. Accordingly, the Department proposed to award the contract to Doctors. Petitioner filed a timely protest to contest such award. The gravamen of that protest is petitioner's contention that the Department applied a methodology other than that established by the ITB to derive the bid price points and that had it utilized the methodology established by the ITB petitioner would have received the most points and been the prevailing bidder. 1/ Consistent with petitioner's contention, the proof demonstrates that the computer program used to derive the bid price points and the methodology established by the ITB to derive such points differed with regard to the definition of A in the formula, discussed supra. In the computer program, factor A was defined as the difference between the price of the bid being evaluated and the low bid. In the ITB, factor A was defined as the difference between the percentage of the bid being evaluated and the low bid. The Department was not, however, aware of this dichotomy until the subject protest, believing that its ITB conformed with the methodology it had previously programed for its computer, and, at hearing, offered proof, which is credited, that use of the word "percentage" in the definition of A was a typographical error which should have read "price." Notably, the Department heavily weighed price (50%) in its ITB, and it is apparent the Department intended to use a formula that would create a difference in price scoring that was relative to any difference in the bid prices. Use of the formula, as correctly defined in its computer program, would accomplish such goal. Use of the formula, as incorrectly defined by the ITB and interpreted by petitioner in these proceedings, would not accord any meaningful weight to price. 2/ Under such circumstances, it cannot be reasonably concluded that the Department departed from the essential requirements of law when it declined to apply the methodology as interpreted by petitioner to award the contract. Moreover, for the reasons that follow, petitioner has failed to demonstrate that the Department's decision to stand by its award based on the correctly defined methodology departed from the essential requirements of law. Here, the proof demonstrates that petitioner, upon receipt and review of the ITB, was well aware that the formula for awarding points based on price was nonsensical, and most likely, in error. 3/ Notwithstanding, petitioner took no action under the provisions of general condition 6 and special condition 4.4 of the ITB to raise any question or seek any clarification or interpretation of the formula from the Department. 4/ Rather, petitioner submitted its best price offer, more likely than not, without reliance on the erroneous formula set forth in the ITB. 5/ Under such circumstances, it cannot be concluded that the Department's award of the contract, based on an application of the correct definition of factor A, accorded any bidder an unfair advantage or otherwise departed from the essential requirements of law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the subject bid protest. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of May 1992. WILLIAM J. KENDRICK 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 20th day of May 1992.
The Issue The issue in this bid protest is whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly when it decided to reject all of the bids it had received on a contract to deliver food and supplies to the public school cafeterias in Broward County.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Invitation to Bid On September 28, 2000, the Board issued ITB 21-076B for procurement of “Mainline Foods and Supplies for Cafeterias.” Through this solicitation the Board sought to let a four-year contract, renewable for two additional one- year periods, pursuant to which the successful bidder would deliver food and supplies to the approximately 192 public school cafeterias in Broward County, Florida. Sysco is the incumbent supplier of foods and supplies for the Board’s cafeterias. The ITB listed and described the desired foods and supplies in two separate sections, Section 5.09 and Section 6.02. Bidders were required to bid on each of the 186 individual items listed in the Product Bid Sheets that comprise Section 5.09. In contrast, bidders were instructed not to quote prices for the 130 items listed in Section 6.02; rather, the ITB provided that “[t]he awardee, once selected, shall submit to the [Board] product costs and selling prices for items in Section 6.02.” This protest focuses on particular specifications of the Product Bid Sheets in Section 5.09 and is not concerned with Section 6.02. The Product Bid Sheets in Section 5.09 were composed of tables consisting of eight columns and, in total, 189 rows — one row for each item and three empty or "open" rows requiring no response. The first three columns, from left to right, set forth information that identified each item sought. At each row, Column 1 contained the “Sequence Number” that the Board had assigned to each product “for tracking purposes.” Column 2 in each row contained a description of the product to be purchased. So-called “approved brands” for each item were listed in Column 3. The ITB identified “approved brands” in several ways. The most specific identification was by brand name and product code or number, for example “Tony’s 78642.” This form of identification designated a particular manufacturer’s particular product. The term “approved branded product” will be used herein to refer to this type of specific product identification in Column 3. For many items, an approved brand was identified by manufacturer’s name only, without an accompanying product code, e.g. “Lykes ________.” The ITB instructed bidders that “[i]f a code number, name, or color is not listed by [the Board] along with an approved brand[,] the bidder shall enter the code by the brand in the space provided.” (ITB, Section 5.03.) In this Recommended Order, the term “brand-only approval” will denote a brand approval that lacked a specific product code. Finally, the ITB identified a large number of approved brands in Column 3 of Section 5.09 by the term “Distributor’s Choice,” meaning the distributor’s brand of choice. Bidders were instructed to “enter, in the space provided, the brand and code” when quoting a Distributor’s Choice. (ITB, Section 5.03.) For 84 of the 186 items listed in the Product Bid Sheets, the approved brands in Column 3 were identified exclusively as Distributor’s Choice.1 Thus, for nearly half of the Section 5.09 items, the bidder needed to select a brand and product that fit the specifications set forth in Column 2. For another 15 items, Column 3 contained brand-only approvals, meaning that the bidder was required to select an appropriate product from the approved manufacturer’s line. Brand-only approvals were combined with a Distributor’s Choice option in Column 3 for ten additional items. Consequently, there were 109 items — 59% of the total — on which the bidders were not given the option of bidding an approved branded product. Conversely, for 23 items Column 3 listed just one approved branded product, leaving the bidders no alternative but to bid on a particular manufacturer's particular product. Similarly, for 26 additional items, at least two approved branded products were listed, giving bidders a choice but not requiring them to compare the specifically designated brand- name products with the product descriptions in Column 2. In sum, bidders were obligated (and entitled) to bid an approved branded product on at least 49 items. There were 28 items for which Column 3 combined an approved branded product (or products) with either a brand- only approval (or approvals) or a Distributor’s Choice option.2 Accordingly, a bidder could, in theory, have quoted prices on as many as 77 approved branded products. At the other extreme, a bidder could have bid 137 items for which it had selected brand, product code, or both. Of the 186 items listed in Section 5.09, four are at the heart of the instant dispute. Ignoring for present purposes the sequences above and below the at-issue items, these four were described as follows in the first three columns of the Product Bid Sheets:3 1 SEQ NO. 2 PRODUCT DESCRIPTION 3 APPROVED BRANDS 1009 Breakfast Pizza (F). Crust topped with cheese, gravy, scrambled eggs and bacon. Minimum size 3 oz. to meet 1 meat/meat alternate plus 1 bread serving. CN Label. Tony’s 63564 Nardone’s 80MSA-100 Size of portion oz. 1036 Pizza, French Bread, Southland Bagel Pepperoni (F): 50-50 8953S Mozzarella blend. Minimum Prestige 30215 5.45 oz. to meet 2 oz. Nordone’s _________ meat/meat alternative and 2 KT Kitchen ________ bread servings. CN label. Size portion oz. 1037 Pizza, Mexican Style (F). Tony’s 63669 Minimum 5 ounces to meet 2 Nordone’s 100MA oz. meat/meat alternate and 1 KT Kitchens 01476 ½ bread serving. With or w/o VPP. CN label. Size portion oz. 2010 Pancake and Sausage (F) Pancake batter around a link sausage on a stick. 2.5 oz. State Fair 70601 Leon’s 28002 Foster Farms 96113 Minimum weight to meet 1 oz. meat/meat alternative and 1 bread serving. CN Label. Size of portion: oz. Other provisions of the ITB are relevant to this protest as well. Section 7 of the General Conditions of the ITB stated in pertinent part as follows: AWARDS: In the best interest of the School Board, the Board reserves the right to withdraw this bid at any time prior to the time and date specified for the bid opening; to reject any and all bids and to waive any irregularity in bids received; to accept any items or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets shall be noted “BID IS FOR SPECIFIED QUANTITY ONLY.” All awards made as a result of this bid shall conform to applicable Florida Statutes. Section 1.03 of the ITB’s Special Conditions stated in pertinent part as follows: AWARD: A contract shall be awarded IN ITS ENTIRETY to the lowest responsive, responsible bidder (See Section 4.01) with the lowest initial product cost plus fixed fee and meeting all specifications terms and conditions of the bid. It is necessary to bid on every item on the Product Bid Sheets (Section 5.09) in order to have your bid considered for award. Product costs shall be stated in the spaces provided in the Product Bid Sheets (Section 5.09). All items shall have an individual cost. Failure to state the individual cost for an item shall result in disqualification of bid submitted. Bidder shall carefully consider each item for conformance to specifications. Any item that does not meet the specifications shall be disqualified. Section 1.10 of the ITB stated as follows: INTERPRETATIONS: Any questions concerning any condition or requirement of this bid shall be received in the Purchasing Department in writing on or before October 11, 2000. Submit all questions to the attention of the individual stated in Section 1.37 [sic] of this Bid. If necessary, an Addendum shall be issued. Any verbal or written information which is obtained other than by information in this bid document or by Addenda shall not be binding on the School Board. Section 1.12 of the ITB stated as follows: BRAND STANDARDIZATION: The specified brands and product numbers listed on the Product Bid Sheets have been approved by SBBC Food and Nutrition Services Department and bids shall be accepted only on these approved items, except where “Distributor’s Choice” is indicated. If a bidder wishes to have an item placed on this approved list for future bidding, the bidder shall furnish Food and Nutrition Services Department samples of the item for testing purposes. If approved, the Food and Nutrition Services Department shall include the new item on the future list of approved items. In the event that any approved item supplied under this bid does not prove satisfactory, that item shall be removed from the approved list until such time as correction is made to the satisfaction of the Food and Nutrition Services Department. Section 1.13 of the ITB stated as follows: PRODUCT NUMBER CORRECTIONS: If the product number for the brand specified on the Product Bid Sheets is: a) no longer available and has been replaced with a new updated number with new specifications, the bidder should submit complete descriptive literature on the new product number; or b) incorrect, the corrected product number should be noted on the Product Bid Sheets, in the space provided. Section 1.35 of the ITB stated as follows: INFORMATION: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mr. Charles High, Purchasing Agent, Purchasing Department, (954) 765-6107 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mr. High nor any employee of [the Board] is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Questions should be submitted in accordance with Special Condition 1.10. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. Section 2.03 of the ITB stated as follows: ADDING AND DELETING ITEMS: Food and non- food items utilized by SBBC Food and Nutrition Services Department may be subsequently added, deleted or transferred from or to the lists in Sections 5.09 and 6.0, individually or in groups, at the discretion of SBBC Food and Nutrition Services Department Section 5.02 of the ITB provided in pertinent part as follows: COLUMN 2: (Product Description) This column provides bidder with descriptions of the products to be purchased, including portion or serving sizes or grades and standards, as may be applicable. Bidders should fill in the information wherever indicated on portion, serving size, etc., and provide manufacturers’ certificates of grades or compliance whenever “CR” is shown. If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. [W]hen evaluating bids, [staff] may request that a bidder furnish, within three days of request, further confirmations of grades and standards, copies of specification sheets, and other product data, as may be required. (Underlining supplied). For ease of reference, the underlined sentence above — which will prove pivotal — will be called the "Reconciliation Clause" in this Recommended Order. Section 5.03 of the ITB stated in pertinent part as follows: COLUMN 3: (Approved Brands*) Prior to acceptance of a bid, all bid brands are subject to review by SBBC Food and Nutrition Services Department for compliance with the bid product requirements. If a code number, name, or color is not listed by SBBC along with an approved brand; the bidder shall enter the code by the brand in the space provided. Whenever quoting a “Distributor’s Choice”, a bidder shall enter, in the space provided, the brand and code. Whenever an approved brand, other than “Distributor’s Choice”, is listed, the bidder should indicate in Column 3 the brand bidding, (circle the brand). IMPORTANT: Some of the codes listed may be obsolete or incorrect, in which case the bidder is to enter the correct code. After award, SBBC may request the awardee to obtain prices and samples for brands and codes not listed. The decision as to whether a product does or does not meet the requirements of Column 2 is at the discretion of SBBC. A bidder may be requested, prior to bid award, to furnish acceptable confirmation from a packer that a product meets the requirements set forth in Column 2. Section 5.11 of the ITB stated in pertinent part as follows: CN Label: When a product is CN (Child Nutrition) labeled, it is “certified” by the packer to conform to the nutritional requirements of the USDA Food and Nutrition Service (FNS). The label shows the contribution made by a given amount of product toward meal requirements. When CN label is noted in Column 2 of the Product Bid Sheets, it is understood that the CN label must be in place for the product to be bid. Particular Responses to the Invitation to Bid A. Sequence No. 1009 – Breakfast Pizza At Sequence No. 1009, Column 3 of the Product Bid Sheet contained two approved branded products: Tony’s 63904 and Nardone’s 80MSA-100. School Food quoted a price of $28,500 on the specifically approved Nardone’s product. In preparing its bid, Sysco obtained a product description from Nardone Bros. Baking Co. Inc. ("Nardone") for its 80MSA-100 product. Sysco believed that Nardone’s 80MSA- 100 failed to meet the product description set forth in Column 2 and therefore offered the other approved branded product, Tony’s 63564, at a price of $33,000. A third bidder, Mutual Wholesale Co. ("Mutual Wholesale"), offered to provide the approved Tony’s product at a price of $33,012.00. Sequence No. 1036 – French Bread Pepperoni Pizza The product description in Column 2 of the item listed at Sequence No. 1036 required that a CN label be in place for a product to be bid. A CN label signifies compliance with certain U.S. Department of Agriculture guidelines. The Board must obey these guidelines to obtain reimbursement for its food services program from federal funding sources. School Food offered the Prestige 30215 approved branded product in its response to Sequence No. 1036 at a price of $30,750. In preparing its response to the ITB, Sysco learned that the Prestige 30215 approved branded product had been submitted for CN label approval but lacked that approval at the time of bidding. Perceiving a conflict between the product description in Column 2 and the approved branded product in Column 3, Sysco concluded that it could not quote a price for Prestige 30215. Instead, Sysco offered to provide another approved brand, KT Kitchen’s 01093, at a cost to the Board of $36,397.50. Like School Food, Mutual Wholesale bid on the Prestige 30215 brand name product, quoting a price of $30,000. As of November 29, 2000, the approved branded product, Prestige 30215, had obtained CN approval from the U.S. Department of Agriculture. Sequence No. 1037 – Mexican-Style Pizza In its response to Sequence No. 1037, School Food offered an approved branded product, Nardone's 100MA, quoting a price of $206,620. During its bid preparation, Sysco learned that Nardone used another code for this product — namely, "96MCSA." Sysco believed that it could not bid on "Nardone’s 100MA," even though it was an approved branded product. Thus, in its bid Sysco offered to provide another approved branded product, Tony's 63669, at a price to the Board of $229,800. In its response to Sequence No. 1037, Mutual Wholesale quoted a price of $214,020 for yet another approved branded product, KT Kitchen’s 01476. "Nardone's 100MA" is an actual product code used internally by Nardone to denote an actual, available product that is referred to externally (or "on the street") as "Nardone's 96MCSA." In other words, "Nardone's 100MA" and "Nardone's 96MCSA" refer to the same product. Sequence No. 2010 – Pancake and Sausage In response to Sequence No. 2010, School Food offered to provide an approved branded product, Leon’s 28002, at a cost to the Board of $14,858. Sysco discovered through its bid preparation research that there might be a conflict between the product description in Column 2 of Sequence 2010 and the approved Leon’s 28002 brand name product, which was unambiguously designated in Column 3, because Leon’s 28002 consisted of a "frankfurter" wrapped in a pancake, and Sysco did not consider a "frankfurter" to be a "link sausage."4 As the Board has conceded, unless a bidder knew the products well or made a comparison of the approved branded products to the product description in Column 2, it would not have perceived the possible conflict between that description and the approved Leon’s 28002 brand name product listed in Column 3. Around October 20, 2000, Sysco notified the Board of its concern regarding Sequence No. 2010. In so doing, however, Sysco failed to comply with Section 1.10 of the ITB, which required that questions about the bid specifications be submitted in writing on or before October 11, 2000. In violation of Section 1.10, a Sysco employee named Elaine Blaine, who was responsible for preparing Sysco's bid, left a telephone message with the Board's Purchasing Agent, Charles High, inquiring about Leon's 28002 and letting him know that, in Sysco's opinion, this approved branded product did not match the description in Column 2 of Sequence No. 2010. Mr. High returned Ms. Blaine's phone call on or around October 24, 2000, leaving a message on her voice mail to the effect that Leon's 28002 was not the correct item and advising that another brand name product, Leon's 28012, should be bid in its place. As Section 1.35 of the ITB made plain, however, Mr. High had no authority whatsoever to render an opinion such as this. Although Mr. High's communication with Ms. Blaine was improper, it had no effect on the competitive process. Clearly, Sysco could not reasonably have relied on Mr. High's unauthorized opinion, and anyway it did not do so. Thus, in short, while Mr. High's irregular contact with Ms. Blaine cannot be condoned, his ex parte advice to Sysco fortunately conferred no competitive advantage on any bidder and hence was immaterial. In the end, Sysco offered another approved branded product, State Fair 70601, in lieu of Leon's 28002, quoting a price of $20,111. Mutual Wholesale also bid on State Fair 70601, quoting a price of $20,119.50. Issuance of Addenda and Submission of Bids The Board issued two addenda to the ITB. Addendum No. 1, among other things, inserted the code number for the approved KT Kitchen’s brand name product listed in Column 3 for Sequence No. 1036, and it also changed the approved Foster Farms branded product listed in Sequence No. 2010. The addenda made no other changes to either Sequence Nos. 1009, 1036, 1037, or 2010. On October 31, 2000, the Board opened the four bids that it had received in response to the ITB. Bids were submitted by Big Bamboo, Inc., Mutual Wholesale, Sysco, and School Food. Big Bamboo, Inc. failed to submit a complete proposal and thus its bid was disqualified as non-responsive. The remaining bids, which were determined to be responsive, offered, respectively, the following total annual contract prices: Mutual Wholesale $9,757,284.86 Sysco $9,656,770.21 School Food $9,263,170.42 Accordingly, School Food was the lowest bidder, its bottom line beating the closest competitor by nearly $400,000 per year. On November 9, 2000, the Board's Purchasing Department posted its recommendation that the contract be awarded to School Food. The Sysco Protest of the Recommended Award On November 13, 2000, Sysco timely filed a notice of intent to protest the recommended award to School Food. Sysco timely filed its formal written protest with the Board on November 22, 2000. Pursuant to rule, a Bid Protest Committee comprised of three administrators is required to meet with a bid protester in accordance with Section 120.57(3)(d), Florida Statutes, to attempt a resolution of the protest by mutual agreement. By rule, the Bid Protest Committee has been delegated the agency’s authority to perform this function. Consequently, pursuant to School Board Policy 3320 and Section 120.57(3)(d), Florida Statutes, a Bid Protest Committee convened on December 1, 2000, in an attempt to mutually resolve any disputed issues arising out of Sysco's protest. Despite the fact that the thrust of Sysco's protest was an attack on the responsiveness of School Food's bid, School Food was not invited to attend the December 1, 2000, meeting of the Bid Protest Committee, which apparently was not conducted as a public meeting. A court reporter was present, however, and the transcript of the committee's December 1, 2000, meeting is in evidence. The Bid Protest Committee restricted its review of the procurement to consideration of whether the ITB suffered from defective specifications in Sequence Nos. 1009, 1036, 1037, and 2010, even though Sysco’s protest had raised broader issues concerning the responsiveness of School Food's bid. At the December 1, 2000, meeting of the Bid Protest Committee, a Board employee named Raymond Papa, whose title is Supervisor of Field Services for Food and Nutrition Service, made the following representations concerning the sequence numbers in question: 1009 (Breakfast Pizza). Mr. Papa claimed to have erred by listing Nardone's 80MSA-100 in Column 3 of Sequence No. 1009. This approved branded product, Mr. Papa told the committee, should have been identified in Column 3 of Sequence No. 1008, which is also a breakfast pizza but has a different product description. 1036 (French Bread Pepperoni Pizza). Mr. Papa informed the committee that Prestige 30215 was approved by the U.S. Department of Agriculture but did not have a CN label "at this time." 1037 (Mexican Style Pizza). Mr. Papa advised the committee that there seemed to be some confusion arising from the ITB's use, in Column 3 of Sequence No. 1037, of the Nardone's product code 100MA, which was the manufacturer's internal code for the approved branded product, instead of the more common "street number" (96MCSA) used in the company's literature. Mr. Papa further explained: "Apparently that code [referring to 100MA] would have given me the right product" — in fact, it would have, see Paragraph 33 above — "but it needs more clarification on my part." 2010 (Pancake and Sausage). Mr. Papa pointed out the purported conflict between the product description in Column 2 of Sequence 2010 and the approved Leon's 28002 brand name product identified in Column 3. He claimed to have been seeking a pancake with a sausage inside, not a frankfurter, asserting that the two meat products were substantially different. The Board’s counsel informed the committee that the specifications for Sequence Nos. 1009, 1036, 1037, and 2010 had created sufficient confusion to adversely affect the competition. He urged the committee to remedy this purported confusion by voting to reject all bids so that the contract could be re-advertised with revised specifications. The committee was not asked to consider the Reconciliation Clause of Section 5.02 of the ITB. The three members did not discuss this provision. It is reasonable to infer, and the trier of fact so finds, that the committee paid no attention to the Reconciliation Clause in weighing the merits of staff's recommendation to reject all bids. With little discussion, the three-member Bid Protest Committee voted unanimously to rescind the recommendation to award School Food the contract and to reject all bids on the ground that the specifications were defective and hence that revisions were needed to "level the playing field." A revised recommendation to reject all bids was posted on December 12, 2000. School Food's Protest of the Rejection of All Bids On December 15, 2000, School Food timely filed its notice of intent to protest the Board's preliminary decision to reject all bids. This was timely followed by a formal written protest, which was filed with the Board on December 22, 2000. The revised recommendation posted on December 12, 2000, accurately announced the Board's intention to reject all bids. As noted in School Food's formal bid protest, however, the revised recommendation erroneously stated that the action was taken because “no acceptable bids were received.” To remedy this problem, a corrected revised recommendation was posted by the Board on January 12, 2001. It stated that the rejection of all bids was “due to inaccuracies within the bid specifications.” On January 16, 2001, School Food timely notified the Board of its intent to protest the corrected revised recommendation. Thereafter, on January 24, 2001, School Food timely filed its formal protest of the corrected revised recommendation to reject all bids. School Food posted a bid protest bond in the amount of $5,000 in accordance with School Board Policy 3320. This bond is conditioned upon School Food's payment of the Board's litigation costs should the Board prevail. Pursuant to School Board Policy 3320 and Section 120.57(3)(d), Florida Statutes, the Board's Bid Protest Committee conducted a meeting with School Food on February 9, 2001, in an attempt to mutually resolve any matters in dispute. The Bid Protest Committee was composed of two persons who had participated in the December 1, 2000, meeting and a third member who had not attended that earlier meeting. Sysco received advance notice of the February 9, 2001, meeting of the Bid Protest Committee, and its lawyer was permitted to attend as a witness. These courtesies, tellingly, had not been extended to School Food in connection with the committee meeting that had been held on December 1, 2000, to discuss the original Sysco bid protest. As before, a court reporter was present, and the transcript of the February 9, 2001, meeting is in evidence. The Bid Protest Committee was again informed of staff's opinion that the ITB contained defective specifications in Sequence Nos. 1009, 1036, 1037 and 2010. At the February 9, 2001 meeting, the Board's counsel argued vigorously in support of the decision to reject all bids. For the most part, his argument was an expanded version of that which had been advanced in favor of rejection at the December 1, 2000, meeting. More emphasis was placed, the second time around, on the concern that the supposedly defective specifications would or might, in some cases, result in the Board not receiving the food items that it had desired. Once again, the committee was not asked to consider the Reconciliation Clause of Section 5.02 of the ITB. And once more, the committee members did not discuss this provision. It is reasonable to infer, and the trier of fact so finds, that the committee failed to take account of the Reconciliation Clause in weighing the merits of staff's recommendation that the previous decision to reject all bids be adhered to. By a vote of two to one, the Bid Protest Committee upheld the recommendation to reject all bids. The contemporaneous comments from the members in the majority, together with other evidence introduced at hearing, reveal that the committee was persuaded that the field of play had been tilted by the purportedly defective bid specifications; its decision clearly was based on a desire to “level the playing field.” Ultimate Factual Determinations All of the purported deficiencies in the bid specifications fall squarely within the operation of the ITB’s plain and unambiguous Reconciliation Clause which, to repeat for emphasis, provided as follows: If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. (ITB, Section 5.02.)5 There is no evidence that the Reconciliation Clause misrepresented the Board's true intent or was the product of a mistake. The administrative law judge has determined as a matter of law that the Reconciliation Clause is clear and unambiguous; therefore, as a matter of fact, it manifests the Board's intent that a Column 2 description must yield to the identification of an approved branded product in Column 3 in the event of conflict between them. By providing in clear terms a straightforward, easily applied, bright-line rule for resolving the very type of conflict that the Board now urges justifies a rejection of all bids, the ITB reasonably ensured that no such ambiguity or uncertainty would imperil the competitive process. No reasonable bidder could possibly have been confused by the unambiguous Reconciliation Clause. All bidders, of course, were entitled to protest the Reconciliation Clause, and any other bid specifications, within 72 hours after receiving the ITB. See Section 120.57(3)(b), Florida Statutes; see also ITB, Section 1.21. None did. If Sysco believed, as Ms. Blaine testified, that it could not bid on certain approved branded products listed in Sequence Nos. 1009, 1036, 1037, and 2010, then its belief was unreasonable. Confusion that is objectively unreasonable in fact, as Sysco's was, is not evidence of deficiencies in the bid specifications or of a breach in the integrity of the competitive process. In sum, the purported "deficiencies" upon which the Board based its intended decision to reject all bids are not deficiencies in fact. Thus, the Board's professed reason for starting over — that flaws in Sequence Nos. 1009, 1036, 1037, and 2010 put bidders to the Hobson's choice of either risking disqualification by bidding on an approved branded product that did not strictly conform to the description in Column 2 or offering a higher-priced product meeting the Column 2 description — is factually unfounded and illogical.6 It should be observed, also, that, in view of the unambiguous Reconciliation Clause, the approved branded products upon which School Food bid in response to Sequence Nos. 1009, 1036, 1037, and 2010 are conforming goods in every respect. That is, School Food did not "mis-bid" these items. Indeed, the Board having identified specific approved branded products; having instructed bidders that "bids shall be accepted only on these approved items, except where ‘Distributor's Choice’ is indicated," see ITB, Section 1.12; and having made clear, in the Reconciliation Clause, that any conflict between an approved branded product and a product description shall be resolved in favor of the approved branded product, it would be arbitrary and capricious to disqualify School Food's bid for non-responsiveness in connection with these items. See Footnote 6, supra. The evidence regarding which particular products the Board truly wanted to purchase in connection with the sequences at issue is in conflict. On the one hand, there is the ITB itself, which is strong evidence of the Board's desires. As a written expression of the Board's intent, the ITB gives voice not merely to the opinions of one person, but rather speaks for the whole Board as an organization. (The latter point is underscored by Section 1.35, which plainly stated that no single employee of the Board was authorized unilaterally to interpret the ITB.) The ITB's reliability is further enhanced by the fact that it was prepared before the bids were opened, before it was known that the incumbent vendor was not the apparent low bidder, before the first protest was filed, and before this administrative litigation commenced. On the other hand, there is Mr. Papa's testimony that he made mistakes in Sequence Nos. 1009, 1036, 1037, and 2010, listing approved branded products that, in hindsight, he claimed should not have been listed. Casting doubt on Mr. Papa's credibility, however, is the fact that he did not discover these so-called mistakes until after the Sysco protest helpfully brought the matters to his attention. Also, in deciding how much weight to give Mr. Papa’s testimony, the trier paid particular attention to the picayune nature of the purported conflicts in the specifications. Indeed, it is seriously debatable whether there really were any conflicts in Sequence Nos. 1009, 1036, 1037, and 2010.7 Additionally, having observed Mr. Papa’s demeanor and having given thoughtful consideration to the substance of his testimony, the trier of fact formed the distinct impression that this witness was a bit too anxious to grasp at a plausible excuse — even these hyper-technical “conflicts” — to scuttle the process and do it over. In weighing Mr. Papa's testimony, the trier has factored in a discount for reasonably inferred bias. Further, Mr. Papa's testimony was premised on the view that Column 2 expressed the Board's true intent, taking priority over Column 3 in cases of conflict. To fully credit Mr. Papa's testimony would require that the Reconciliation Clause be turned on its head — which, incidentally, would constitute an impermissible material change in the bid specifications.8 There is absolutely no basis in this record for doing that. In resolving the conflict in the evidence regarding which goods the Board really wanted, the trier of fact has considered the totality of circumstances and has chosen to give the greatest weight to the plain and unambiguous Reconciliation Clause in the ITB which, when read in conjunction with the clear designations of approved branded products in Column 3 at the sequences in question, makes manifest the Board's intent. This clear provision speaks for itself and proves that the Board, as an entity, made a reasoned and conscious decision to deem approved branded products in Column 3 of the Product Bid Sheets to be the goods intended for purchase in those instances where a Column 2 product description might suggest a different desire. Neither Mr. Papa's testimony nor any other evidence persuasively calls into question the reliability and credibility of the Reconciliation Clause as an accurate expression of the Board's intent. Thus, under the evidence presented, the following items are approved branded products that, as a matter of fact, the Board wanted to purchase: Nardone's 80MSA-100, Prestige 30215, Nardone's 100MA, and Leon's 28002. Moreover, if the Board decides that one or more of these approved branded products are not what it wants after all, it has the right, pursuant to Section 2.03 of the ITB (see Paragraph 17, supra), to arrange for the purchase and delivery of different products. The argument of the Board and Sysco that the Board's exercise of its right to add and delete items would constitute an impermissible material alteration of the bid specifications is, in the context of the present circumstances, plainly wrong in fact and illogical. To explain why this is so, let us stipulate that it would be arbitrary for the Board, say, to delete several items from each bidder's proposal because, for example, one or more bidders had mis-bid those items, and then to re-tabulate the bids to determine which bidder would now be the low bidder.9 Similarly, it would be arbitrary for the Board, under the guise of adding items, to designate as approved branded products certain non-conforming goods offered by a bidder as Distributor's Choices, thereby allowing a bid that otherwise would be disqualified to be considered responsive. As a final example, it would be arbitrary for the Board to delete an approved branded product from the product list and use such deletion as the basis for disqualifying a bidder that had quoted the now-deleted item. Each of these hypothetical situations involves a material change to the specifications on which the bidders based their proposals, which is not allowed, for good reason. It is a different kettle of fish, however, for the Board to add or delete items after making an award to the lowest responsive, responsible bidder in accordance with the terms and conditions of the ITB. When the bids are judged pursuant to the rules clearly spelled out in advance in the ITB — which would not be the case in the examples set forth in the immediately preceding paragraph — there is simply no change in the specifications, material or otherwise. In the instant case, therefore, if the Board awards the contract to School Food and decides that it does not want a hot dog pancake for Sequence No. 2010, then all it need do is delete Leon's 28002 from the product list and add the desired Leon's product or require the distributor to deliver one of the remaining approved branded products.10 Nothing about that course of action requires or effects a change in the bid specifications. To the contrary, all of the bidders were notified, upon entering this competition, that such post- award additions and deletions of product were possible. All of the bidders, moreover, could have quoted a price for the hot dog pancake, which was unambiguously designated as a conforming product. If the hot dog pancake were a less expensive item, then Sysco could have and should have bid on it. Put another way, if School Food secured a competitive advantage by bidding on the lower-priced approved branded product, it was a legitimate advantage under the plain rules of the contest — rules that applied equally to all. In a nutshell, the Board is in no reasonable danger of receiving a food product that it does not desire to purchase. The Board's preliminary decision to reject all bids is not supported by facts or logic. Indeed, the Board's analysis of the situation failed to account for the Reconciliation Clause — a clearly relevant factor. When the Reconciliation Clause is considered, together with the rest of the evidence in the record, the following become clear: The ITB's specifications were clear and unambiguous. The competitive playing field was level. The Board will obtain the goods that it intended to purchase. At bottom, the Board's decision here cannot be justified by any analysis that a reasonable person would use to reach a decision of similar importance. It is arbitrary.11
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board award the contract advertised in the subject ITB to the lowest responsive, responsible bidder, in accordance with the terms and conditions of the ITB. It is further recommended that the Board, pursuant to its own rules, return School Food’s protest bond and, in the Final Order, award School Food the costs Petitioner has incurred in prosecuting this matter. If a dispute arises concerning the amount of such costs, the matter may be referred to the Division of Administrative Hearings for further proceedings. DONE AND ENTERED this 31st day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2001.
Findings Of Fact Facts based on stipulation These proceedings concern Petitioner's Bid Protest in connection with that certain project known as Chiller Installation, Glades Campus, Project NO. 9237, PBCC No. 6812. Petitioner has taken all steps necessary to perfect its bid protest in a timely manner and has standing to bring this bid protest. Petitioner and Respondent met and were unsuccessful in an attempt to resolve the bid protest as required by Section 120.53(5), Florida Statutes. M. K. Mechanical, Inc., a Florida corporation, is a State of Florida Certified Mechanical Contractor and as such was a "Qualified Bidder." The original specifications for the subject project contained few electrical specifications and were silent as to how an electrical contractor was to be licensed. The bid was due on Tuesday, January 12, 1993, at 2:00 p.m. On Friday, January 8, 1993, at 3:42 p.m., via facsimile transmission, M. K. Mechanical, Inc., received supplementary electrical specifications, thirty (30) pages in length. Contained in these supplementary specifications, for the first time, was a requirement that the electrical subcontractor had to be "locally" licensed. M. K. Mechanical, Inc.'s, primary place of business is in Edgewater, Volusia County, Florida. M. K. Mechanical, Inc.'s, submitted bid was proper in all respects other than an electrical subcontractor's name was not given, instead "to be determined" was inserted. M. K. Mechanical, Inc., submitted the lowest bid. Electrical subcontractor is a "major" subcontractor on this project. The sole basis for the decision by Respondent that Petitioner's bid was "non-responsive" was the failure to list an electrical subcontractor. Additional facts regarding bid specifications The bid specifications include the requirement that bidders list all "major subcontractors" and that the category of "major subcontractors" includes electrical subcontractors. Section 5.2.1 of the Contract Documents within the Bid Specifications provides as follows: Unless otherwise required by the Contract Documents or the Bidding Documents the Contractor at the bid opening shall furnish to the Owner and Architect Form 00420, a written list of the major Subcontractors; Site Utilities, Structural Concrete, Masonry, Structural Steel & Steel Joists, Plumbing, HVAC, Electrical and Roofing, who he proposes to use on this work.
Recommendation On the basis of all the foregoing, it is RECOMMENDED that Palm Beach Community College enter a Final Order in this case denying the protest of the Petitioner, M. K. Mechanical, Inc., and awarding the contract in Project No. 9237, PBCC No. 6812 to the Intervenor, Hill York Corporation. DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of July, 1993. COPIES FURNISHED: Sid C. Peterson, Jr., Esquire DeLoach & Peterson, P.A. Post Office Box 428 New Smyrna Beach, Florida 33170 James M. Adams, Esquire Gibson & Adams, P.A. Post Office Box 1629 West Palm Beach, Florida 33402 Herbert L. Dell, President Hill York Corporation Post Office Box 350155 Fort Lauderdale, Florida 33335 The District Board of Trustees Palm Beach Community College 4200 Congress Avenue Administration Building Lake Worth, Florida 33461 Attention: Mr. Dick Jones
The Issue The issue in this case is whether the Department of Transportation (DOT) acted correctly in deeming the bid of Nippon Carbide Industries (NCI) to be nonresponsive.
Findings Of Fact The bid specifications called for reflective sheeting for the production of roadway signs by DOT. Included in the bid specifications for the reflective sheeting bid was a specification contained in Section 4.1 that required the process inks be one component that required no pre-mixing and air dried in four hours or less. A document contained in NCI’s bid, identified as an “Order Worksheet,” contained the following: PLEASE NOTE: 3800 Series inks are supplied as a set with 80 grams of 3630 hardener. 3800 Series inks are pre-thinned for proper viscosity. If thinning is required, use 3811 or turpentine. 3800 series inks have a pot life of five hours after mixing. The NCI bid reference to mixing the 3800 Series inks with the 3630 hardener and that the ink and hardener were supplied as a set concerned the reviewers. Mixing the 3800 Series inks with the 3630 hardener did not meet the specifications of the bid requiring no component pre-mixing. Immediately following the bid opening and preliminary review on June 10, 1998, the reviewers (composed of Lisa Sweet, Contract Manager in the Purchasing Office; Chris Warren, Manufacturing Operations Engineer for the DOT Sign Shop; and Randall Wainwright, Manager of DOT Sign Shop) were present when Sweet telephoned NCI’s National Technical and Marketing Director (Director) to ask for clarification of the bid documents. NCI’s Director advised the group during the telephone conversation that the process inks bid by NCI required mixing and volunteered to provide mixing instructions. Following the telephone conversation, the Director faxed to DOT a three-page document, a cover letter from the Director referencing the telephone call, and two pages of mixing instructions. Both the telephone conversation with the Director on June 10, 1998, and the mixing instructions provided by the Director to DOT on the same day, confirmed the belief of DOT personnel that that NCI’s bid did not conform to the bid specifications and should be deemed nonresponsive. NCI subsequently contacted DOT on several occasions beginning on June 11, 1998, to indicate that it may have provided the wrong information regarding the process inks. On June 12, 1998, NCI’s Director faxed to DOT a letter stating that the mixing instructions were in error and requested a meeting with key personnel DOT before June 19, 1998, the bid award posting date. The June 12, 1998, letter contained instructions as well. Although the reference to mixing the process ink with a hardener was deleted, the instructions contained information on how to store the process inks and hardener. This new information was in conflict with the previous information and inconclusive in establishing that NCI’s process inks met the requirement for one component ink that did not require mixing. DOT did not consider the information provided in the June 12, 1998, letter in its decision to deem NCI’s bid nonresponsive and award the bid to 3M. NCI requested a meeting with DOT’s Procurement Office, which took place on June 17, 1998. Unable to convince DOT that its bid was responsive, NCI then requested a meeting with DOT administrative officials. On June 18, 1998, NCI representatives met with the DOT’s Assistant Secretary for Transportation Policy and the State Highway Engineer. NCI again attempted to persuade DOT that its process inks did not have to be mixed with the hardener and the use of the hardener was merely an option, even though the ink and hardener are supplied as a set. The use of inks with hardener in the production of roadway signs in the Sign Shop would require a change in the production process not contemplated by the bid specifications, nor desired by DOT. Nevertheless, following the meeting, DOT considered screening NCI’s Process inks without the hardener to determine if the NCI inks met the one component ink bid specification. Under the arrangement, NCI was to provide the ink and reflective sheeting so that the inks could be screened onto the sheeting at the Sign Shop under normal production circumstances and ambient conditions, not under artificially controlled conditions in an independent lab that would not simulate the actual production process environment. In a series of correspondence with DOT employees, NCI raised objections to the type of testing and test protocols to be employed by DOT. Ultimately NCI failed to provide the inks and sheeting for testing in a timely manner and the testing was never conducted. Dr. Eugene Janulis provided unrefuted expert testimony at final hearing that the deletion of hardener from NCI’s 3800- Series inks would raise serious concerns about the durability, weather resistance, and colorfastness of the inks. Dr. Janulis is a research chemist with over 15 years of experience in developing and testing of traffic control materials. He holds, or is co-holder of, 13 patents, and has authored numerous scientific articles pertaining to the chemical and elemental properties of reflective traffic control materials. Janulis testified that NCI’s 3800-Series inks were developed as a two-component reactive ink system which rely upon a chemical reaction between the ink and the hardener to form a “cross linking” chemical bond. A single component, nonreactive ink, has polymers that are high in molecular weight with known durability. Alternatively, the multi-component, reactive system with its cross-links to a second component has resultant effect on the mechanical and physical properties of the two component ink where viscosity builds up in the ink, eventually rendering the ink no longer screen printable. Consequently that is why the NCI 3800 Series inks have a limited pot life after mixing of five to six hours. The fact that NCI calls the 3630 substance a hardener indicates it was placed in the ink system to cause cross-linking. The cross-linking enables the ink system to build viscosity. If you simply delete the use of the hardener, you have a new, different polymer system than when you use the ink and hardener. The primary detriment of a coating’s durability is the polymer matrix and how the pigment in that polymer matrix resists fading. When you change the polymer you no longer have the same system. By not cross-linking, not making the polymer hard, you are making the polymer softer. With a softer polymer, there will be an accelerated degradation mechanism on the surface of the ink and a faster loss of retro-reflectivity performance. As a result, the ink system’s ultimate durability is not known. It is not the same process ink that is warranted by NCI when used with the 3630 hardener. On June 30, 1998, DOT determined to post the bid award to 3M and declare NCI’s bid nonresponsive. There was no bias or prejudice on behalf of DOT against NCI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order awarding the bid to Intervenor, Minnesota Mining and Manufacturing, Inc. DONE AND ENTERED this 19th day of November, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1998. COPIES FURNISHED F. Alan Cummings, Esquire Alejandro Espino, Esquire Cummings, Thomas and Snyder, P.A. 1004 DeSoto Park Drive Tallahassee, Florida 32301 Geoffrey Smith, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Brian McGrail, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
The Issue The issue for determination is whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in selecting Intervenor as the lowest bidder for a contract to supply the state with lamps valued at $3,692,499.
Findings Of Fact The Parties Respondent is the state agency responsible for soliciting bids to establish a contract for the purchase of large lamps by state agencies and other eligible users. Petitioner is a Florida corporation and the incumbent vendor under similar contracts for the preceding 10 years. Petitioner does not manufacture lamps. Petitioner sells lamps manufactured by Osram-Sylvania ("Sylvania"). Intervenor is an Ohio corporation doing business in Florida. Intervenor manufactures the lamps it sells. The ITB On March 15, 1996, Respondent issued Invitation To Bid Number 39-285- 400-H, Lamps, Large, Photo and STTV (the "ITB"). The purpose of the ITB is to establish a 24 month contract for the purchase of Large Lamps (fluorescent, incandescent, etc.), Photo Lamps (audio visual, projection, flash), and Studio, Theatre, Television, and Video Lamps ("STTV") by state agencies and other eligible users. The contract runs from July 10, 1996, through July 9, 1998. The ITB estimates the contract price at $3,692,499. The ITB contains General and Special Conditions. General Conditions are set forth in 30 numbered paragraphs and elsewhere in DMS Form PUR 7027. Special Conditions are set forth in various unnumbered paragraphs in the ITB. General Conditions Paragraphs 5, 11, and 24 of the General Conditions are at issue in this proceeding. The terms of each paragraph are: 5. ADDITIONAL TERMS AND CONDITIONS: No additional terms and conditions included with the bid response shall be evaluated or considered and any and all such additional terms and conditions shall have no force and effect and are inapplicable to this bid. If submitted either purposely through intent or design or inadvertently 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 authorized signature affixed to the bidder's acknowledgment form attests to this. 11. QUALITY ASSURANCE: The contractor, during the contract term, upon mutual agree- ment with the Division of Purchasing, will provide reasonable travel and lodging accommodations for one (1) to three (3) government employees to perform an on-site inspection of the manufacturing process(es) and review of the manufacturer's product quality control(s) and total quality manage- ment program(s). The contractor will reim- burse the State for actual transportation cost, per diem and incidental expenses as provided in Section 112.061, F.S. It is the State's desire that the contractor provide demonstration of quality control for improvement rather than post production detection. 24. FACILITIES: The State reserves the right to inspect the bidder's facilities at any reasonable time with prior notice. Included Items Special Conditions in the ITB require bidders to submit prices for "Item 1" and "Item 2" lamps ("included items"). 1/ Item 1 lamps consist of Group 1 and 2 lamps. Group 1 lamps are Large Lamps such as fluorescent, incandescent, quartz, mercury vapor, metal halide, and high-pressure sodium lamps. Group 2 lamps are Photo Lamps such as audio visual, projection, flash, and STTV lamps. The total price for each group is multiplied by a weighted usage factor. The product calculated for Group 1 is added to the product calculated for Group 2 to determine the total price for Item 1 lamps. Item 2 consists of a category of lamps described as "T- 10 Lamps." The total price for Item 2 lamps is determined without application of the weighted usage factor used for Item 1 lamps. The total price for Item 2 lamps is a de minimis portion of the contract price. Special Conditions in the ITB require Respondent to award a single contract for included items to a single bidder. Special Conditions state that, "During the term of the contract established by this bid, all purchases of items will be made from the successful bidder." 2/ Excluded Items Special Conditions require that, "The bidder shall offer a fixed discount from retail prices on all excluded items." Excluded items include high technology lamps. The requirement for a fixed discount on excluded items is not considered in evaluating bid prices for included items. Rather, the requirement is intended to reduce the state's cost for both included and excluded items by assuring a meaningful discount on excluded items. Formatting Requirements Special Conditions prescribe the format in which bids must be submitted. Price lists and authorized dealers' lists are required to be submitted in hard copy and on computer diskette. The format prescribed for computer diskette includes requirements for font and graphics. The Special Conditions state that, "Failure to comply with this requirement will result in disqualification of your bid." The Bids The ITB prohibits the alteration of bids after they are opened. Respondent opened bids on April 10, 1996. Seven vendors submitted bids in response to the ITB. Included Items Four vendors, including Petitioner, submitted a bid for both Item 1 and Item 2 lamps. Intervenor and two other bidders did not submit a bid for Item 2 lamps. General Conditions Intervenor deleted paragraphs 11 and 24 of the General Conditions from its bid. At the direction of Intervenor's legal department in Cleveland, Ohio, Intervenor's regional sales manager struck through paragraphs 11 and 24 and initialed the deletions. The deletions are consistent with Intervenor's corporate policy. Intervenor routinely objects to contract provisions requiring inspection of Intervenor's facilities. Excluded Items Petitioner's bid includes a fixed discount of 44 percent on excluded items. Intervenor's bid includes a fixed discount of 0 percent. Formatting Requirements Intervenor included the information required by the ITB on the diskette it submitted with its bid. However, Intervenor supplied the information in Courier 12 characters per inch ("cpi") font, not the Courier 10 cpi font prescribed in the ITB. Proposed Agency Action Respondent determined that Intervenor's bid was responsive. The purchasing specialist for Respondent who reviewed each bid to determine if it was responsive failed to observe the deleted paragraphs in Intervenor's bid. The purchasing specialist forwarded those bids determined to be responsive to the purchasing analyst assigned by Respondent to: determine if the lamps offered in each bid met the specifications prescribed in the ITB; and evaluate bid prices. The purchasing analyst noted that paragraphs 11 and 24 were deleted from Intervenor's bid. The purchasing analyst and purchasing specialist conferred. They determined that paragraph 5 of the General Conditions cured Intervenor's deletions without further action. The purchasing analyst correctly determined: that lamps offered by Petitioner and Intervenor met ITB specifications; that Intervenor's bid is the lowest bid for Item 1 lamps; that Petitioner's bid is the second lowest such bid; and that Petitioner's bid is the lowest bid for Item 2 lamps. Petitioner's bid for Item 1 lamps is approximately five percent greater than Intervenor's bid. Respondent proposes to award one contract for Item 1 lamps to Intervenor. Respondent proposes to award a second contract for Item 2 lamps to Petitioner. At 4:00 p.m. on May 20, 1996, Respondent posted its intent to award the contract for Item 1 lamps to Intervenor. Petitioner timely filed its formal protest on June 3, 1996. Respondent did not award a contract for excluded items. Respondent's failure to award a contract for excluded items is not at issue in this proceeding. Arbitrary Respondent's proposed award of a contract to Intervenor for substantially all of the items included in the ITB is a decisive decision that Respondent made for reasons, and pursuant to procedures, not governed by any fixed rule or standard prescribed either in the ITB or outside the ITB. Respondent's proposed agency action is arbitrary. Excluded Items The requirement for bidders to offer a fixed discount on excluded items operates synergistically with the requirement for Respondent to award a single contract on included items to a single bidder. The combined action of the two requirements operating together has greater total effect than the effect that would be achieved by each requirement operating independently. The requirement for a fixed discount on excluded items, operating alone, may not induce a bidder who could receive a contract solely for Item 2 lamps to offer a discount that is as meaningful as the discount the bidder might offer if the bidder were assured of receiving a contract for Item 1 and 2 lamps upon selection as the lowest bidder. 3/ By assuring bidders that a single contract for Item 1 and 2 lamps will be awarded to a single bidder, the ITB creates an economic incentive for bidders to provide a meaningful discount on excluded items. Respondent frustrated the synergy intended by the ITB by applying the requirements for a fixed discount and for a single contract independently. Respondent penalized the bidder conforming to the requirement for a fixed discount on excluded items by awarding only a de minimis portion of the contract to the bidder. Respondent rewarded the bidder not conforming to the requirement for a fixed discount on excluded items by awarding substantially all of the contract to that bidder. If Respondent elects to purchase all excluded items from Petitioner, Respondent will have used the contract for Item 1 lamps to induce a meaningful discount from Petitioner without awarding Petitioner with the concomitant economic incentive intended by the ITB. Such a result frustrates the ITB's intent. Paragraph 5 Respondent's interpretation of paragraph 5 fails to explicate its proposed agency action. Respondent's interpretation of paragraph 5: leads to an absurd result; is inconsistent with the plain and ordinary meaning of the terms of the ITB; and is inconsistent with Respondent's actions. Respondent's interpretation imbues paragraph 5 with limitless curative powers. Respondent's interpretation empowers paragraph 5 to cure the deletion of all General Conditions in the ITB whether stricken by pen or excised with scissors. Respondent's interpretation of paragraph 5 would transform a bid containing no General Conditions into a responsive bid. Respondent's interpretation of paragraph 5 is inconsistent with the plain and ordinary meaning of its terms. Paragraph 5 operates to cure "additional" terms. It does not operate to restore deleted terms. Respondent's interpretation of paragraph 5 is inconsistent with Respondent's actions. Respondent did not rely on paragraph 5 to cure Intervenor's deletions without further action. Respondent took further action to cure the deletions. Further Action On the morning of May 20, 1996, the purchasing analyst for Respondent telephoned Intervenor's regional sales manager. The purchasing analyst demanded that Intervenor accept the conditions Intervenor had deleted from its bid by submitting a letter of acceptance before the bid tabulations were posted at 4:00 p.m. on the same day. The regional sales manager contacted Intervenor's corporate headquarters in Cleveland, Ohio. Intervenor authorized the regional sales manager to accept the deleted paragraphs. By letter faxed to Respondent at approximately 3:20 p.m. on May 20, 1996, Intervenor accepted the paragraphs it had previously deleted. The letter stated that, "GE Lighting [will accept] the Contract Conditions noted in Paragraphs 11 and 24 of the Lamp Quotation." [emphasis not supplied] At 4:00 p.m. on May 20, 1996, Respondent posted the bid tabulation form. The bid tabulation form stated that the "award is contingent upon General Electric's acceptance of all the terms in conditions (sic)" in the ITB. Respondent argues that the purchasing analyst who contacted Intervenor on the morning of May 20, 1996, exceeded her authority. Respondent characterizes the word "contingent" in the bid tabulation form as "poorly written" and a "bad word." Agency Construction Of ITB Terms Respondent construes terms in the ITB in a manner that is inconsistent with their plain and ordinary meaning. The ITB requires that, "The bidder [shall] offer a fixed discount from retail price list on all excluded items." [emphasis supplied] Respondent interprets the quoted provision as meaning the bidder may offer such a fixed discount if the bidder elects to do so. The purpose of the ITB is to establish "[a] 24 month contract" to supply large lamps to the state. [emphasis supplied] Respondent interprets the quoted provision as meaning that the purpose of the ITB is to establish two contracts. The ITB states that, "During the term of the contract established by this bid, all purchases of items [will] be made from [the] successful bidder." [emphasis supplied] Respondent interprets the quoted provision as meaning that purchases of some items will be made from one successful bidder and that purchases of other items will be made from a second successful bidder. The ITB states that the contract "[shall] be made statewide on an all or none basis" to the responsive bidder who satisfies the conjunctive requirements for: "[the] lowest "Award Figure Item (1; [and] lowest Award figure for Item (2." [emphasis supplied] Respondent interprets the quoted provision as meaning that separate contracts may be made statewide on less than an all or none basis to separate responsive bidders who satisfy the disjunctive requirements for either the lowest bid for Item 1 lamps or the lowest bid for Item 2 lamps, or both. The ITB requires offers to be submitted for all items listed within a group for a bid to qualify for evaluation. Respondent interprets the requirement as meaning that a bidder who does not qualify for evaluation for all of the groups in the contract nevertheless qualifies for evaluation for the contract. Finally, the ITB states that failure to comply with the formatting requirements for the diskette "[will] result in disqualification of your bid." [emphasis supplied] Respondent interprets the quoted language to mean that failure to comply with prescribed formatting requirements may result in disqualification of a bid. The interpretations of the quoted terms proposed by Respondent, individually and collectively, frustrate the purpose of the ITB. They also ignore material requirements of the ITB. Material Deviation Respondent deviated from the rule or standard fixed in the ITB in several respects. First, Respondent altered the bid evaluation procedure prescribed in the ITB. Second, Respondent ignored the requirement to award a single contract to a single bidder. Third, Respondent ignored the requirement that bidders provide a fixed discount on excluded items. Fourth, Respondent ignored the requirement to comply with the formatting requirements prescribed in the ITB. Each deviation from the rule or standard fixed in the ITB is a material deviation. Each deviation gives Intervenor a benefit not enjoyed by other bidders. Each deviation affects the contract price and adversely impacts the interests of Respondent. 4/ 5.5(a) Benefit Not Enjoyed By Others Intervenor enjoyed a benefit not enjoyed by other bidders. Intervenor obtained a competitive advantage and a palpable economic benefit. Respondent altered the bid evaluation procedure prescribed in the ITB. On the morning of May 20, 1996, Respondent disclosed the bid tabulations to Intervenor alone, 5/ gave Intervenor an opportunity that lasted most of the business day to determine whether it would elect to escape responsibility for its original bid, allowed Intervenor to cure the defects in its bid, accepted Intervenor's altered bid, and conditioned the bid tabulations on Intervenor's altered bid. Respondent used a bid evaluation procedure that is not prescribed in the ITB and did not allow other bidders to participate in such a procedure. 6/ In effect, Respondent rejected Intervenor's initial bid, with paragraphs 11 and 24 deleted, and made a counter offer to Intervenor to accept a bid with paragraphs 11 and 24 restored. Intervenor accepted Respondent's counter offer. Respondent excluded other bidders from that process. Respondent gave Intervenor an opportunity to determine whether it would elect: to escape responsibility for its original bid by declining Respondent's counter offer; or to perform in accordance with an altered bid by restoring paragraphs 11 and 24. A bidder able to elect not to perform in accordance with its bid has a substantial competitive advantage over other bidders unable to escape responsibility for their bids. 7/ Respondent awarded substantially all of the contract to Intervenor even though Intervenor failed to provide a meaningful discount on excluded items. Respondent provided Intervenor with a palpable economic benefit. 5.5(b) Bid Price And Adverse Impact On The State Respondent did not award a contract for excluded items. Respondent's proposed agency action allows Respondent to purchase excluded items from either Intervenor or Petitioner. If Respondent were to purchase all of the excluded items it needs from Intervenor, Respondent could pay substantially more for excluded items than Respondent would save from the five percent price advantage in Intervenor's bid for Item 1 lamps. In such a case, Respondent's proposed agency action would effectively increase costs to the state that are inherent, but not stated, in the ITB. 8/ Conversion of incorrectly formatted data to the required font shifts prices to incorrect columns and causes other problems in accessing information in the diskette. Such problems can not be rectified easily but require substantial time and effort. Responsive Bidder Respondent did not award the contract intended by the ITB to the lowest responsive bid. Although Intervenor's bid is the lowest bid for Item 1 lamps, it is not the lowest responsive bid for Item 1 and 2 lamps. Petitioner's bid is the lowest responsive bid for Item 1 and 2 lamps. 9/ Respondent is statutorily required to award the contract to the lowest responsive bidder. 10/ Illegal Intervenor's bid is not responsive within the meaning of Sections 287.012(17), Florida Statutes (1995). 11/ It does not conform in all material respects to the ITB. Intervenor's unaltered bid deletes paragraphs 11 and 24. It does not include a fixed discount on excluded items, does not include a bid for Item 2 lamps, and does not conform to the formatting requirements in the ITB. Section 287.057 requires Respondent to award the contract to the bidder who submits the lowest responsive bid. Respondent has no authority either: to consider bids that are not responsive; or to award the contract to a bidder other than the lowest responsive bidder. Respondent's attempt to engage in either activity is ultra vires and illegal. Minor Irregularities The ITB encourages, but does require, bidders to include quantity discounts for Item 1 and 2 lamps. Petitioner's bid does not include quantity discounts. Petitioner's bid does not fail to conform to material requirements in the ITB. Petitioner does not manufacture Item 1 and 2 lamps. Sylvania manufactures the lamps Petitioner sells. Petitioner has no legal right to require Sylvania to allow inspection of its facilities pursuant to paragraph 11 of the General Conditions. Petitioner's ability to provide the requisite inspections requires the cooperation of Sylvania. Petitioner's bid requires payment by the state within 30 days of an invoice. Section 215.422 and the ITB provide that Respondent has 40 days to issue warrants in payment of contract debts and that interest does not accrue until after 40 days. The defects in Petitioner's bid are minor irregularities within the meaning of Florida Administrative Code Rule 60A-1.001(16). 12/ They neither affect the bid price, give Petitioner a competitive advantage, nor adversely impact Respondent's interests. Petitioner has the practical ability to arrange inspection's of Sylvania's facilities. Petitioner is legally responsible for failing to do so. Respondent's employees have never visited Sylvania's facilities during the 10 years in which Petitioner has been the contract vendor to the state. The requirement for payment within 30 days does not obviate the provisions of Section 215.422. Private contracts can not alter mutually exclusive statutory provisions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's protest of Respondent's proposed agency action. RECOMMENDED this 26th day of September, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 26th day of September, 1996.
The Issue Whether Respondent's intended rejection of all bids submitted in response to Respondent's solicitation of bids for two separate painting projects (the painting of the exterior of Greenacres Elementary School and the painting of the exterior of South Olive Elementary School) is "arbitrary," as alleged by Petitioner, and if so, what alternative action should Respondent take with respect to these two projects.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a district school board responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida (including, among others, Greenacres Elementary School, South Olive Elementary School, and Belvedere Elementary School) and for otherwise providing public instruction to school-aged children in the county. In or around August 2009, Respondent, through its Construction Purchasing Department (Purchasing Department), issued a single Invitation to Bid (ITB) soliciting separate bids for three different painting projects: the painting of the exterior of Greenacres Elementary School; the painting of the exterior of South Olive Elementary School; and the painting of the exterior of Belvedere Elementary School. The bid package contained the following: an Invitation to Bid Bidder Acknowledgement form (PBSD 1186, Rev 2/2001); Special Conditions; Specifications; and Addenda, including a Bid Summary Sheet, a Drug-Free Workplace Certification (PBSD 0580, New 3/91), a Statement of No Bid, Inspection forms, and a Beneficial Interest and Disclosure of Ownership Affidavit. The Invitation to Bid Bidder Acknowledgement form contained the following provision entitled, "Awards": AWARDS: In the best interest of the District, the Purchasing Department reserves the right to reject any and all bids and to waive any irregularity or minor technicalities in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as result of this bid shall conform to applicable Florida Statutes. The Invitation to Bid Bidder Acknowledgement form also included "General Conditions, Instructions and Information for Bidders" (General Conditions), among which were the following: SEALED BIDS: One copy of this executed Invitation to Bid page and Bid Summary page(s) must be returned with the bid in order to be considered for award. All bids are subject to all the conditions specified herein; all General Conditions, Special Conditions on the attached bid documents; and any addenda issued thereto. Any failure on the part of the bidder to comply with the specifications, terms and conditions of this Invitation to Bid shall be reason for termination of contract. EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. All bids must be completed in ink or typewritten. Corrections must be initialed by the person signing the bid. Any corrections not initialed will not be tabulated. The original bid conditions and specifications cannot be changed or altered in any way. Altered bids may not be considered. Clarification of bids submitted shall be in letter form, signed by the bidders and attached to the bid. * * * 20. SIGNED BID CONSIDERED AN OFFER: This signed bid shall be considered an offer on the part of the bidder, which offer shall be deemed accepted upon approval by the Board. In case of a default on the part of the bidder after such acceptance, the District may take such action as it deems appropriate including legal action for damages or specific performance. * * * 25. SPECIAL CONDITIONS: Any and all Special Conditions that may vary from these General Conditions shall have precedence. Among the "Special Conditions" were the following: SCOPE: The purpose and intent of this invitation to bid is to secure firm pricing for Exterior Painting of Greenacres, South Olive, and Belvedere Elementary Schools. The rate shall include all materials and labor for preparation, sealing and painting. AWARD: Time of completion is of the essence. Contract will be awarded to the lowest responsive and responsible bidder(s) for each item as listed on the Bid Summary Sheet. The District reserves the right to use the next lowest bidder(s) in the event the original awardee of the bid cannot fulfill their contract. The next lowest bidder's price must remain the same as originally bid and must remain firm for the duration of the contract. The anticipated award will be approved by the superintendent designee. B. MANDATORY SITE INSPECTION: ALL BIDDERS MUST ATTEND PRE-BID WORKSITE WALK-THROUGH. THE WORK DETAILS ARE OUTLINED IN THIS BID AND ANY QUESTIONS WILL BE ANSWERED AT EACH WORKSITE INSPECTION. BIDS WILL NOT BE ACCEPTED FROM ANY BIDDERS THAT HAVE NOT ATTENDED THE SITE INSPECTION FOR THAT PARTICULAR WORKSITE. THIS MANDATORY SITE INSPECTION EXCLUDES ANY AND ALL PAINT MANUFACTURERS AND/OR PAINT DISTRIBUTORS. * * * BIDDERS RESPONSIBILITY: Before submitting their bid, each bidder is required to carefully examine the invitation to bid specifications and to completely familiarize themselves with all of the terms and conditions that are contained within this bid. Ignorance on the part of the bidder will in no way relieve them of any of the obligations and responsibilities that are part of this bid. SEALED BID REQUIREMENTS: The "INVITATION TO BID" bidder's acknowledgment sheet must be completed, signed, and returned. In addition, the Bid Summary Sheet page(s) on which the bidder actually submits a bid, needs to be executed and submitted with this bid. Bids received that fail to comply with these requirements shall not be considered for award.[2] CONTRACT: The submission of your bid constitutes an offer by the bidder. . . . * * * Q. USE OF OTHER CONTRACTS: The District reserves the right . . . to directly negotiate/purchase per School Board policy and/or State Board Rule 6A-1.012(6) in lieu of any offer received or award made as a result of this bid, if it is in its best interest to do so. The District also reserves the right to separately bid any single order or to purchase any item on this bid if it is in its best interest to do so. * * * HH. POSTING OF BID AND SPECIFICATIONS: Invitation to bid with specifications will be posted for review by interested parties in the Construction Purchasing Department on the date of bid electronic mailing and will remain posted for a period of 72 hours. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. II. POSTING OF BID RECOMMENDATION/ TABULATIONS: Bid recommendations and tabulations will be posted in the Construction Purchasing Department, within 10 days of the opening date, and will remain posted for a period of 72 hours. If the bid tabulation with recommended awards is not posted by said date and time, [a] "Notice of Delay of Posting" will be posted to inform all proposers of the new posting date and time. Any person adversely affected by the decision or intended decision must file a notice of protest, in writing, within 72 hours after the posting. The formal written protest shall state with particularity the facts and law upon which the protest is based. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. OO. BID PROTEST: If a bidder wishes to protest a bid, they must do so in strict accordance with the procedures outlined in F.S. 120.57(3), and Section FF., Lobbying Paragraph 3, of this proposal and School Board Policy 6.14. Any person who files an action protesting bid specifications, a decision or intended decision pertaining to this bid pursuant to F.S. 120.57(3)(b), shall post with the Purchasing Department, at the time of filing the formal written protest, a bond secured by an acceptable surety company in Florida payable to the School District of Palm Beach County in an amount equal to 1 percent (1%) of the total estimated contract value, but not less than $500 nor more than $5,000. Bond shall be conditioned upon the payment of all costs that may adjudged against the protester in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond, a cashier's check, certified bank check, bank certified company check or money order will be acceptable form of security. If, after completion of the administrative hearing process and any appellate court proceedings, the District prevails, it shall recover all costs and charges included in the final order of judgment, including charges by the Division of Administrative Hearings. Upon payment of such costs and charges by the protester, the protest security shall be returned. If the protest prevails, he or she shall recover from the District all costs and charges, which shall be included in the final order of judgment. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. * * * PP. INFORMATION: Any questions by the prospective bidders concerning this invitation to bid should be addressed to Helen R. Stokes, Purchasing Agent, Construction Purchasing . . . , who is authorized only to direct the attention of prospective bidders to various portions of the bid so they may read and interpret such for themselves. Neither Mrs. Stokes nor any employee of the District is authorized to interpret any portion of the bid or give information as the requirements of the bid in addition to that contained in the written bid document. Interpretations of the bid or additional information as to its requirements, where necessary, will be communicated to bidders by written addendum. Site visits to the three schools to be painted were made by prospective bidders on August 13, 2009, following which a First and Final Addendum, dated August 25, 2009, was issued by the School Board. This First and Final Addendum included the following Revised Bid Summary Sheet: REVISED BID SUMMARY SHEET THE SCHOOL DISTRICT OF PALM BEACH COUNTY Construction Purchasing Department 3661 Interstate Park Road North Building 200 Riviera Beach, FL 33404 Ph: 561-882-1952 Fax: 561-434-8655 EXTERIOR PAINTING OF GREENACRES, SOUTH OLIVE, AND BELVEDERE ELEMENTARY SCHOOLS SEALED BIDS ARE TO BE SUBMITTED ON AUGUST 27, 2009 NO LATER THAN 2:00 P.M. TO: Helen Stokes, Construction Purchasing Construction Purchasing Department 3661 Interstate Park Road North Building 200 Riviera Beach, FL 33404 Bids will only be accepted from those contractors in attendance at the Mandatory Site Visit and who are registered with the School District of Palm Beach County as a Small Business Enterprise. The rate shall include paint, preparation, sealing and painting per the attached specifications and detailed scope of work. EXTERIOR PAINTING AT GREENACRES, SOUTH OLIVE, AND BELVEDERE ELEMENTARY SCHOOLS ITEM 1: GREENACRES ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) ITEM 2: SOUTH OLIVE ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) ITEM 3: BELVEDERE ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) RE-TEXTURING TEXCOAT $ (Per Sq. Ft.) ADDENDUM ACKNOWLEDGEMENT: I HEREBY ACKNOWLEDGE RECEIPT OF ADDENDUMS CONTRACTOR: Name Date Address Current License # City, State, Email Address Zip Phone Fax There were no instructions on the Revised Bid Summary Sheet itself directing that an authorized representative sign the document, nor was there any signature line for such purpose. Bids were submitted by Austro Construction, Inc. (Austro); Dynamic Painting, Inc. (Dynamic); Fleischer's, Inc. (Fleischer's); JIJ Construction Corporation (JIJ); and Petitioner. Austro bid $83,900.00 on Item 1 (Greenacres Elementary School); $87,500.00 on Item 2 (South Olive Elementary School); and $105,500.00 and $3.50 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Dynamic bid $55,955.00 on Item 1 (Greenacres Elementary School); $74,800.00 on Item 2 (South Olive Elementary School); and $82,900.00 and $3.00 per square foot for re- texturing on Item 3 (Belvedere Elementary School). Fleischer's bid only on Item 3 (Belvedere Elementary School).3 Its bid was $73,000.00 and $1.25 for re-texturing. JIJ bid $80,000.00 on Item 1 (Greenacres Elementary School); $95,000.00 on Item 2 (South Olive Elementary School); and $95,000.00 and $1.15 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Petitioner bid $89,349.00 (or $33,394.00 more than did Dynamic, the lowest bidder) on Item 1 (Greenacres Elementary School); $93,885.00 (or $19,085.00 more than did Dynamic, the lowest bidder) on Item 2 (South Olive Elementary School); and $94,306.00 and $3.95 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Of the five Revised Bid Summary Sheets that were submitted in response to the ITB (one each by Austro, Dynamic, Fleischer's, JIJ, and Petitioner), only two, those submitted by Fleischer's and Petitioner, contained the signature of an authorized representative of the bidder. The other three had no signatures on them. All of the "blanks" on each of the five Revised Bid Summary Sheets submitted, including the three sheets without signatures, were filled in and completed, however.4 Furthermore, each Revised Bid Summary Sheet was accompanied by an appropriately signed Invitation to Bid Bidder Acknowledgement form. Bids were opened on August 27, 2009. As announced on the Bid Tabulation Form that was posted on August 28, 2009, the Purchasing Department recommended that Items 1 and 2 be awarded to Dynamic and Item 3 be awarded to Fleischer's. Petitioner, on or about September 8, 2009, protested the award of Items 1 and 2 to Dynamic on the ground that Dynamic's bids on these items were non-responsive because its Revised Bid Summary Sheet had not been signed by an authorized representative of the company. The award of Item 3 to Fleischer's was not protested by Petitioner or any other bidder. By letter dated September 15, 2009, Sharon Swan, Respondent's Director of Purchasing (and head of the Purchasing Department), advised Petitioner of the following: We have completed the review of your protest of Bid for "Exterior Painting of Greenacres, South Olive, and Belvedere Elementary Schools," specifically your protest of the recommendation for award for Greenacres and South Olive Elementary Schools, Items 1 & 2 of this bid. A revised recommendation will be posted later today reflecting a change in our recommendation for Items 1 & 2. The revised recommendation will be to reject all bids on these two items[5] and re-bid with revised bid documents which will clarify the ambiguity relating to the requirement to execute the Bid Summary Sheet when no signature line was indicated. Therefore, I am returning your bank check and closing the file on this protest. You are invited and welcome to compete on the re-bid of these projects. As promised, a second, revised bid tabulation form was posted that same day (September 15, 2009) containing the following "revised recommendation": Item[s] 1 & 2: Reject bid Item[] 1 (one) and Item 2 (two) due to an ambiguity in the bid language, SPECIAL CONDITIONS, paragraph E, Sealed Bid Requirements. Item 3: Fleischer's, Inc. The belatedly perceived "ambiguity" referred to in the Purchasing Department's revised bid tabulation form concerned the intended meaning of the term "executed" in Special Condition E. of the ITB. It had been the Purchasing Department's intent, in using this term in Special Condition E., to require that the Revised Bid Summary Sheet be signed by an authorized representative of the bidder; however, the Purchasing Department had not included a signature line on the Revised Bid Summary Sheet (such as the one appearing on the Invitation to Bid Bidder Acknowledgement form), nor had it specified anywhere in the ITB that the Revised Bid Summary Sheet had to be "signed" (in contrast to the instructions, given in the first sentence of Special Condition E., regarding the Invitation to Bid Bidder Acknowledgement form). Upon its consideration of Petitioner's protest, the Purchasing Department had come to the realization that it had not clearly communicated to prospective bidders its intent concerning the need for a bidder's "executed" Revised Bid Summary Sheet to bear an authorized representative's signature. Believing that its failure to have done so effected the outcome of the competitive bidding process in the case of both Item 1 and Item 2 (in that, with respect to each of these items, the lowest bidder, as well as all other bidders bidding on these two items with the exception of Petitioner, submitted an unsigned Revised Bid Summary Sheet, making these bidders, in the School Board's view, ineligible for an award), the Purchasing Department decided "to reject all bids [with respect to these two items] and rebid so [the Purchasing Department] could correct this ambiguity" concerning the need for a bidder's "executed" Revised Bid Summary Sheet to be signed.6 It is this intended action which is the subject of Petitioner's instant protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board take the action described in numbered paragraph 51 above. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 27th day of May, 2010.
Findings Of Fact Petitioner filed a timely notice of protest and formal protest. Petitioner is Procacci Real Estate Management Co., Limited. Respondent is the Department of Corrections of the State of Florida. Intervenor is In-Rel Acquisitions, Incorporated. As required by section 13M-1.015(2)(a), Florida Administrative Code, Respondent sought to encourage participation in the bidding process for additional office space. In that regard, Respondent published a newspaper advertisement in Broward County announcing the acceptance of sealed bids until 10 a.m., December 14, 1987. The advertisement stated Respondent's desire to lease approximately 7,052 square feet of office space located in an area West of 27th Avenue, East of highway 441, North of Broward Boulevard and South of Oakland Park Boulevard. Three bids were received by Respondent and, after the announced deadline for submission, opened and evaluated. Petitioner responded to the advertisement and requested a copy of the bid specifications and package to be completed by bidders. This package, entitled "REQUEST FOR PROPOSAL AND BID PROPOSAL SUBMITTAL FORM", contains a statement on the first page in the third numbered paragraph of general specifications and requirements that the space sought must located in Broward County "within boundaries depicted in the attached map". The attached map, in conformance with the newspaper advertisement noted above, has lines drawn around a geographical area roughly resembling a rectangle. As adduced at hearing, the eastern boundary of the area is 27th Avenue, the western boundary is highway 441, the northern boundary is Oakland Boulevard, and the southern boundary is Broward Boulevard. Petitioner timely filed a sealed bid with the Respondent. That bid, in accordance with the bid specifications and administrative rules, had attached a copy of an option to purchase certain property which Petitioner was offering. The option was a contract to purchase the property and carried an expiration date of January 30, 1988. The document was signed by Roseann Cioce as buyer. Testimony elicited at hearing disclosed that Cioce is a limited partner in the Petitioner partnership. The name of the buyer of the property was listed on the document as "Roseann Cioce and /or Assigns of Procacci Real Estate." No evidence of assignment of Cioce's interest in the contract to the Petitioner's business is attached and none was offered in evidence at the hearing. It is therefore found that Petitioner's authority to offer the facility was not provided in accordance with provisions of the bid specifications or applicable administrative rules. Page 2, paragraph 7 of Respondent's bid specifications require that a bidder provide approximately 50 off street spaces for exclusive parking use of the Respondent's employees and clients. While Petitioner's submitted bid alleged a total of 60 parking spaces at two different locations (28 spaces off site and 32 spaces included with the proposed site), the previously noted buyer's option submitted by Petitioner did not include all the real estate upon which parking would be situated. At hearing, the Petitioner presented an additional contract for purchase of the property to be used for this purpose. While this contract is signed by Pat Procacci (with the designation "partner" following the signature) on behalf of Procacci Real Estate Management Co., Ltd., the document is untimely. It bears a date of January 21, 1988. Respondent's specifications (page 8, paragraph 4 of "General Provisions") require submission of the bidder's option to purchase with the bid. The date for submission was, as previously noted, December 14, 1987. Both pieces of property which the Petitioner proposes to lease to Respondent are, without issue, located "within" the geographical boundaries required by the map in Respondent's bid specifications. Intervenor's employee, Dennis Udwin, testified at hearing that he received notice of the bid process in this case through a general mailing from the Department of General Services in Tallahassee, Florida. He then called the Respondent's probation and parole services circuit administrator in Broward County, Ronald Williams, to see if his property would meet Respondent's geographical bid specifications. Based on that conversation's confirmation of his own belief that his property qualified, Udwin proceeded to provide Intervenor's bid. He did not see the bid newspaper advertisement. The property described in the Intervenor's bid response is located at 4121 Northwest 5th Street in Plantation, Florida. This property is not located within the geographical boundaries required by the map in Respondent's bid specifications. From evidence adduced at hearing, it is found that the intervenor's property does not even abut or border on highway 441, the Western boundary of the desired area. A major brand gasoline service station is situated on property to the East of Intervenor's proposed location and West of Highway 441. That property is not owned by Intervenor. Respondent considered Intervenor's property location, outside of the required geographical boundaries set forth in the bid specifications, to be a minor variation or technicality which could be waived by Respondent. As a result, Intervenor's bid was subsequently considered in Respondent's evaluation of the submitted bids. Mark Shupp, Respondent's employee, testified that the location of Petitioner's property in a predominantly black neighborhood was not a factor in evaluation of the competing bid proposals. Based on the candor and demeanor of the witness, his testimony on this particular point is not credited. Mary V. Goodman is Chief of the Bureau of Property Management for the Division of Facilities Management of the State of Florida's Department of General Services. She testified at hearing on behalf of Petitioner as an expert concerning the prevailing practice of exercise of administrative discretion as to whether a boundary requirement may be waived as a minor technicality or irregularity. From her testimony, it is established that the Bureau of Property management advises state agencies that such waiver is only proper when property located outside a designated geographical boundary, set forth in bid specifications, abuts that boundary. The action of Respondent, regardless of intent, in advertising for space within a designated geographical area, had the effect of discouraging potential offerors from submitting properties located outside that area. It is found that the action of the Respondent in determining the bid of Intervenor to be in compliance with bid specifications relating to geographical location was not the waiver of a minor variation. This action did give Intervenor a special advantage or benefit, namely the benefit of offering property located in a more aesthetically pleasing area without competing with other similarly situated offerors who, if knowledgeable of the possibility of such waiver, may have submitted competing bids. Further, Respondent's decision gave intervenor a distinct advantage over other bidders who believed they were confined to the specified geographical area. Respondent's bid specifications contain an admonishment in paragraph number 6, on page 8, that the Respondent reserves the right to reject any and all bid proposals. It is found that bids provided by both Petitioner and Intervenor were unresponsive to Respondent's specifications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order finding bids of Petitioner and Intervenor to be unresponsive and rejecting all bids. DONE AND RECOMMENDED this 12th day of February, 1988, in Tallahassee, Florida. DON W. DAVIS 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 12th day of February, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-0165BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on Proposed Findings of Fact submitted by the parties: Petitioner's Proposed Findings of Fact Included in part in finding number 5. Rejected in part as unnecessary. Included within finding number 6. Rejected as not consistent with the evidence. Rejected as not consistent with the evidence. Rejected as not consistent with the evidence. Included in findings number 11 and 12. Included in findings number 11 and 12. Included in finding number 10. Included in finding number 14. Included in finding number 17. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 15. Respondent's Proposed Findings of Fact Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Accepted in part in finding number 5, but Notice specified particular boundaries. Included in finding number 10. Included in finding number 5. Rejected as unnecessary. Rejected as not consistent with the evidence. Rejected as unnecessary. Rejected as unnecessary, with exception of neighborhood location which is addressed in finding number 17. Addressed in finding number 13. Rejected as unnecessary and accumulative to finding number 15. Included in part in findings numbered 5, 13, 16, and 17. Proposed language as to methodology of attempted award rejected as unnecessary. Intervenor Intervenor filed a memorandum in support of Respondent. That memorandum did not set forth proposed findings of fact. The memorandum has been reviewed by the Hearing Officer. Background information in the memorandum relate to Respondent's intentions as opposed to facts adduced at hearing. To the extent consistent with the Hearing Officer's findings, such information has been adopted in the findings of fact set forth in this Recommended Order. COPIES FURNISHED: Robert A. Sweetapple, Esquire Suite 800, Concord Building 66 West Flagler Street Miami, Florida 33139 Drucilla Bell, Esquire Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Theodore D. Fisher, Esquire Suite 1410, I Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Richard Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
The Issue Whether the Respondent, School Board of West Palm Beach County, Florida, (School Board) should reject the bid of the Petitioner, Copyco, Inc. d/b/a Toshiba Business Solutions Florida (Copyco or Petitioner), and approve a contract with the Respondent, Ikon Office Solutions, Inc. (Ikon), should reject the bid of Ikon and approve a contract with Copyco, or should reject all bids and re-bid the contract.
Findings Of Fact On August 5, 2005, the School Board issued an Invitation to Bid (ITB) Number 06C-10B entitled “Term Contract for Copier on a Fixed Cost-Per-Copy. ” The School Board sought to award the Contract to the lowest responsive bidder. The School Board sought several different copiers with different copying rates. All rates were for copies per minute. The School Board did not guarantee any level of use for the copiers. Ikon is the current vendor for copiers provided to the School Board. Ikon and the School Board have enjoyed an amicable and successful working relationship. The subject ITB was available to vendors in an electronic format through a company known in this record as “RFP Depot, LLC.” RFP Depot, LLC is a private company located outside the State of Florida that posts invitations to bid, receives responses from vendors, and transmits information to entities seeking vendors. In this case, they contracted with the School Board to electronically present and respond to the instant ITB. No potential vendor timely protested the terms or specifications of the ITB when it was posted. That is to say, all of the terms of the ITB were accepted by the parties to this action. To prepare the ITB specifications, the School Board utilized information submitted by Ikon for the copiers it provides (manufactured by Canon) to draft the ITB. Karen Brazier exchanged e-mails with Ikon to obtain specifications and used information available from Buyers Laboratory, Inc. (BLI) to complete the ITB. Ms. Brazier did not ask any other vendor or manufacturer to submit data regarding its copiers before completing the ITB. Vendors and manufacturers other than Ikon and Cannon do produce copiers that can meet or exceed the copier requirements of the ITB. Ikon did not draft the instant ITB. Ms. Brazier was solely responsible for the terms of the ITB. The original due date for responses to the ITB was extended from August 29, 2005 to August 31, 2005, due to Hurricane Katrina. Vendors interested in the Contract submitted questions regarding the ITB to RFP Depot, LLC, which then transmitted the inquiries to the School Board. All questions with the answers were posted by RFP Depot, LLC so that all vendors were privy to the information posted for this ITB. Only three bidders timely submitted responses for this ITB: Axsa Document Solutions, Inc. (Axsa); Copyco; and Ikon. The Axsa bid is not at issue in this proceeding. Although it was the lowest bid received, it was disqualified and was not considered for the award. Axsa did not protest that finding. Copyco was the second lowest bidder. John Gans, a major account executive with Copyco, was the primary author of the bid submitted by the Petitioner. Mr. Gans had never used the RFP Depot, LLC system before but personally completed the information for the ITB and submitted it for consideration in a timely manner. The ITB included a chart entitled “Bid Summary Document.” That chart required the vendors to list the copiers proposed for each category by manufacturer and model number. All of the “Group 1” copiers were required to meet certain specifications. The “Estimated Yearly Total” was derived by multiplying the cost-per-copy for each of the Group 1 copiers times 400,000,000 (the number of estimated copies per year). For purposes of computing a cost the estimate for the number of copies was fixed but not guaranteed. In an attached section to the ITB, vendors were required to include additional information regarding the copiers proposed in the Group 1 categories. That information noted the copier proposed with a separate cost-per-copy rate for each of the three different Group 1 categories. Although the price computed for the award was based on the aggregate cost of the copiers, the ITB required that the individual copier breakdown costs be disclosed in the addendum material. When he submitted the bid proposal to RFP Depot, LLC, Mr. Gans believed he had listed a Toshiba e600 copy machine for the category 3 machine of Group 1. In fact, the information attached in the separate information required by the ITB identified the Toshiba e600 and noted its cost per copy in the individual copier breakdown. The Toshiba e600 meets or exceeds all specifications for Group 1, category 3 of the ITB. Group 1, category 3 of the ITB required a machine capable of producing 55 copies per minute. The Toshiba e520 copier is rated at 52 copies per minute. When Copyco’s proposal for this ITB was transmitted by RFP Depot, LLC to the School Board, the proposal identified the Toshiba e520 as the copier listed under the Group 1, category 3 chart. Without considering the attached information provided in the addendum to the proposal, the School Board determined that Copyco’s bid must be disqualified since the Toshiba e520 is not rated to produce 55 copies per minute. Accordingly, the Copyco bid was disqualified and Ikon (the highest bidder of the three submitted) was deemed the only responsive bidder to the ITB. All of the Ikon copiers bid met the specifications of the ITB. At the time the School Board determined to award the bid to Ikon, it did not deem material to the instant award Ikon’s debarment by Hillsborough County, Florida. In April 2005, Ikon was awarded a contract in Hillsborough County to provide copiers and related services based upon another bid solicitation. In that bid, Ikon failed or refused to execute an agreement for the copiers. As a result, the Board of County Commissioners for Hillsborough County, Florida decided to debar Ikon for a period of two years. The debarment precludes Ikon from doing business with Hillsborough County for a two-year term. On August 31, 2005, the date the proposals were due in this case, Ikon knew or should have known that Hillsborough County had decided to debar it from doing business with Hillsborough County. The instant ITB required every bidder to certify that “neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any State or Federal department/agency.” It is undisputed that Ikon did not notify the School Board that it was debarred by Hillsborough County. Ikon has challenged Hillsborough County and filed suit against it for the debarment. As of the time of hearing in this cause, that suit was unresolved and remained pending in federal court. The electronic listings for debarred companies maintained for the State of Florida and the federal government does not include any of the bidders for this ITB. The School Board did not consider the erroneous listing of the Toshiba e520, instead of the Toshiba e600 as the Group 1, category 3, listing to be a minor irregularity of the bid submission. The School Board did not consider the erroneous omission of the debarment from Hillsborough County a disqualifying offense for Ikon. When compared to the Copyco submission, the award of the ITB to Ikon will result in higher copier costs incurred by the School Board. Copyco did not refuse to execute an agreement with the Toshiba e600 as the Group 1, category 3 copier. In fact, Copyco has represented it will do so as that was the machine clearly identified in the addendum materials. In researching the debarment, the School Board made a telephone call to Hillsborough County to ascertain facts pertinent to the debarment. Any negative information related to Ikon was deemed irrelevant to the instant ITB. The Copyco protest to the intended award to Ikon was timely filed. Copyco intended to bid the Toshiba e600 in Group 1, category 3 of the instant ITB. The Toshiba e600 is identified throughout the bid submittal including the proposed transition plan. To have awarded the contract to Copyco with the Toshiba e600 noted as the Group 1, category 3 copier would not have afforded the Petitioner a competitive advantage as that machine was clearly denoted. The cost to the School Board would not have changed but would have been less than the cost proposed by Ikon. Even before a final decision was reached on this contract and before the posting of the award, Ms. Brazier was exchanging e-mails with Ikon regarding the transition under the new contract. Ms. Brazier did not make her supervisor fully aware of the Copyco proposal (as supported by the addendum materials) and did not believe the Ikon bid should be rejected for the failure to disclose the debarment. The School Board’s purchasing manual provides, in pertinent part: The following are reasons a bidder may be declared nonresponsible: * * * D. The bidder does not have a satisfactory record of integrity, or the bidder is currently debarred or suspended by the District or other State of Florida jurisdiction... Ms. Swan did not investigate Ikon’s debarment until after the posting of the award. The School Board has taken the position that the Hillsborough County debarment does not preclude the award of the contract to Ikon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a Final Order that rejects all bids for the contract. S DONE AND ENTERED this 9th day of February, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of February, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northwest Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael J. Glazer, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 James F. Johnston GrayRobinson, P. A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802 Michael E. Riley, Esquire Gray, Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189 Steven A. Stinson, Esquire School Board of Palm Beach County Post Office Box 19239 West Palm Beach, Florida 33416
Findings Of Fact Findings based on stipulation The School Board of Broward County, Florida, ["Board"] issued bid number 94-307D [Lease of School Board Owned Parking Lot - Term Contract] on the 22nd day of November, 1993. Three bidders responded to the invitation to bid. They were: Bliss Parking, Inc., a Florida Corporation ("Bliss"); Fort Lauderdale Transportation, Inc., d/b/a USA Parking Systems ("USA"); and Carl A. Borge. An initial review of the tabulations of the bids indicated that Bliss and USA had submitted the identical percentage of shared revenue to the Board in their respective bids. After the review of the bids, Board staff posted a recommendation to award the bid to USA. [See the "remarks" portion of Exhibit B.] A bid protest was filed by Bliss because of the "remarks" portion of Exhibit B. After a review of Bliss' bid protest, Board staff amended its recommendation to reject all bids because of the issues raised in Bliss' protest. After Board staff notified all bidders of this amended recommendation, USA filed a notice and formal protest. The Board, at its meeting on March 1, 1994, heard the presentation of USA and Board staff. The Board, after deliberating the matter, deferred the item until the meeting of March 15, 1994, wherein seven Board members would be present. At the March 15, 1994, Board meeting, by a vote of 4 to 3, the Board granted USA's protest and awarded the bid to USA whom the Board had determined was the highest bidder meeting bid specifications. All bidders were notified of the Board's action and on the 16th day of March 1994 Bliss timely filed its notice of protest and its formal written protest. Bliss appeared with counsel before the Board on the 5th day of April 1994. After considering arguments of counsel for Bliss and reviewing the material in Agenda Item H-1 and in consideration of its previous actions, it voted to reject Bliss' protest seeking the rejection of all bids received and re-bidding of the item. Bliss subsequently requested a formal hearing under Chapter 120.57, Florida Statutes. Findings based on evidence adduced at hearing The General Conditions portion of the Invitation To Bid includes the following provision: INTERPRETATIONS: Any questions concerning conditions and specifications must be submitted in writing and received by the Department of Purchasing no later than five (5) working days prior to the original bid opening date. If necessary, an Addendum will be issued. A related provision in the Special Conditions portion of the Invitation To Bid reads as follows: 21. INFORMATION: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mrs. Sharon Swan, Purchasing Agent, Purchasing Department, (305) 765-6086 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mrs. Swan nor any employee of the SBBC is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Questions should be submitted in accordance with General Condition #7. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. The Special Conditions portion of the subject Invitation To Bid includes the following provisions: REFERENCES: A minimum of three (3) references must be provided by completing page 14 of the bid. Failure to provide references with the bid or within five (5) days of request by the Purchasing Department will be reason for disqualification of bid submitted. All references will be called. SBBC reserves the right to reject bid based on information provided by references. Page 14 of the Invitation To Bid has three sections, each of which reads as follows: COMPANY NAME: STREET ADDRESS: CITY: STATE: ZIP: TELEPHONE NUMBER: CONTACT PERSON'S NAME: NUMBER OF PARKING SPACES: LENGTH OF CONTRACT: At page 12 of the Invitation To Bid, the following note appears under the Bid Summary Sheet portion of the document: "NOTE: Calculation of high bidder shall be the bidder offering the highest percent of shared revenue meeting all specifications and conditions of this bid." The Special Conditions portion of the Invitation To Bid also contains a procedure for resolving tie bids, which reads as follows, in pertinent part: TIE BID PROCEDURES: When identical prices are received from two or more vendors and all other factors are equal, priority for award shall be given to vendors in the following sequence: A business that certifies that it has implemented a drug free work place program shall be given preference in accordance with the provisions of Chapter 287.087, Florida Statutes; The Broward County Certified Minority/ Women Business Enterprise vendor; The Palm Beach or Dade County Certified Minority/Women Business Enterprise vendor; The Florida Certified Minority/Women Business Enterprise vendor; The Broward County vendor, other than a Minority/Women Business Enterprise vendor: The Palm Beach or Dade County vendor, other than a Minority/Women Business Enterprise vendor; The Florida vendor, other than a Minority/Women Business Enterprise vendor. If application of the above criteria does not indicate a priority for award, the award will be decided by a coin toss. The coin toss shall be held publicly in the Purchasing Department; the tie low bid vendors invited to be present as witnesses. The Petitioner filled out all three sections on page 14 of the Invitation To Bid and submitted that page with its bid. The three references listed by the Petitioner were companies for whom the Petitioner provided parking services or parking facilities, but none of the three references listed by the Petitioner was a land owner from whom the Petitioner leased land for the operation of a parking facility. Mr. Arthur Smith Hanby is the Director of Purchasing for the School Board of Broward County. In that capacity he is in charge of the bidding process for the School Board. Specifically, he was in charge of the bidding process for the subject project. In the course of evaluating the bids on the subject project, the evaluation committee reached the conclusion that there was a problem with the bid submitted by the Petitioner with respect to the references listed in the Petitioner's bid. In the original bid tabulation and recommendation posted on January 4, 1994, the recommendation was that the contract be awarded to the Intervenor, whose bid amount tied with the Petitioner's bid amount. 4/ The reasons for the recommendation were described as follows in the "remarks" portion of the tabulation and recommendation form: REJECT BID FROM BLISS PARKING, INC. REFERENCES WERE GIVEN ON PAGE 14 OF BID. ALL REFERENCES WERE CALLED. BASED UPON INFORMATION PROVIDED BY THESE REFERENCES AND IN ACCORDANCE WITH SPECIAL CONDITION #10, IT IS RECOMMENDED THAT THE BID FROM BLISS PARKING, INC. BE REJECTED. EVALUATION OF THIS BID CEASED AT THIS TIME. THERE MAY BE ADDITIONAL REASONS WHY THIS BID COULD NOT BE ACCEPTED. The sole reason for the rejection of the Petitioner's bid was that the references listed by the Petitioner were not the types of references the evaluation committee wanted to receive. The evaluation committee wanted references from entities who, like the School Board, were land owners who had leased land to a parking lot operator. The evaluation committee was of the opinion that references from other sources would not adequately protect the interests of the School Board. There is nothing in the Invitation To Bid that addresses the issue of who should be listed as references. Specifically, there is nothing in the Invitation To Bid requiring that references be submitted from land owners who had leased land to a parking lot operator. At the time of the issuance of the subject Invitation To Bid, the Petitioner was operating the subject parking lot for the School Board. There were no material differences in the bids submitted by the Petitioner and the Intervenor other than the differences in the types of references they listed. The Petitioner's references who were contacted did not provide any adverse information about the Petitioner. The evaluation committee spoke to two of the references listed by the Petitioner, but did not speak to the third listed reference. The third reference listed by the Petitioner was a court reporting firm located across the street from the location of the subject parking lot. The evaluation committee did not speak to anyone at the court reporting office because the telephone number listed for that reference was not a working number. The evaluation committee made an unsuccessful attempt to locate the telephone number of the court reporting firm in the telephone book.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Petitioner's bid is responsive to the Invitation To Bid and that the School Board then take one of the courses of action described in paragraph 26, above. DONE AND ENTERED this 23rd day of June 1994 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 23rd day of June 1994.
