The Issue The issue is whether the Department of Transportation's proposed award of a contract to Intervenor for ten highway projects in Hernando County, Florida, was contrary to the agency's rules and policies, and the bid specifications, as alleged by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On an undisclosed date in 1998, Respondent, Department of Transportation (DOT), issued an invitation for bids on Federal Aid Project Nos. 3014050P, 3014049P, State Road 50 and State Road 45 (U. S. 41), and Financial Project Nos. 2548051-5201, 2548051- 5601, 2548051-5602, 2548161-5601, 2548161-5602, and 2548161-5201, which involved various road projects in Hernando County, Florida. All bids were to be filed no later than October 28, 1998, and a bid letting would be held later that day. Pursuant to its rules, the DOT established for the project a ten percent disadvantaged business enterprise (DBE) participation goal. Under Rule 14-78.003(2)(b)3.b., Florida Administrative Code, a bidder was required to submit, at the time of its submission, a completed DBE Utilization Summary Form and Utilization Form, which provided the DOT with information necessary to assure that the bidder would meet or exceed the percentage goals on the project. Alternatively, the above rule allows a bidder to submit with its bid an incomplete DBE Utilization Summary Form indicating that the DBE goal would be achieved. However, the completed forms had to be filed with DOT's Minority Programs Office (MPO) no later than 5:00 p.m. on the third business day following the bid letting day. This meant that a bidder utilizing this alternative had to file its completed forms with the MPO by the end of the business day on Monday, November 2, 1998. The DOT form itself provided that "[b]ids would be declared non-responsive if all DBE Utilization forms are not received by the [MPO] by 5:00 p.m. on the third business day after the letting." One of the DOT forms noted that the MPO was located at 3717 Apalachee Parkway, Suite G, Tallahassee, Florida, while the other gave no address. A public letting for the project was held on October 28, 1998. Intervenor, Smith & Company, Inc., submitted the lowest apparent bid of $26,678,514.61 while Petitioner, D. A. B. Constructors, Inc., submitted the second lowest bid of $30,817,777.73. Because Intervenor's bid did not contain completed DBE forms, it had to file them with the MPO by 5:00 p.m. on November 2, 1998. Intervenor's estimator in Fort Lauderdale, Florida, prepared and completed the appropriate DBE forms and on November 2 telefaxed them to its Tallahassee counsel, Vezina, Lawrence, and Piscitelli (VLP), with instructions that they be hand-carried to the MPO by the close of that business day. A part-time messenger for VLP, Cameron Kennedy, was handed the forms that afternoon and told, without more specificity, to get them filed and date-stamped at the DOT's satellite office at 3717 Apalachee Parkway. That office is located in a two-story structure and houses several DOT offices, including its MPO and Comptroller. The latter office is located on the first floor of the building while the MPO is on the second floor in Suite G. A directory on the first floor of the building notes that the MPO is on the second floor. However, when Kennedy first entered the building, he asked a DOT employee where he could get DBE forms filed and date-stamped. She led him to a nearby room in Suite A on the first floor where they were stamped as received at 4:07 p.m. by an employee of the DOT Comptroller's office, Sharon Poppel. Kennedy then left the premises believing that the forms had been properly stamped and filed. When Poppel later examined the documents, she noted that they involved "a company with money," so she mistakenly sent them to the Comptroller's financial administration office. That office returned them to her desk the next day. After checking with a supervisor, Poppel hand carried the forms to the MPO on November 4, 1998, or two days after they were due. This late filing contravened the terms of Rule 14-78.003(2)(b)3., Florida Administrative Code, and the DBE form which contained the same requirement. DOT has no policies, procedures, criteria, or guidelines for determining whether an error in a bid submission is a technical or material error. Because the facts in each case may differ, this task is performed on an ad hoc basis by three DOT committees that review bid proposals. When a bidder has failed to file its forms within the three-day period, an event occurring at least thirty-eight times in recent years, DOT has consistently held this to be a material error. However, on the only two occasions when a bidder's DBE forms were timely filed with the agency within the three-day window, but were misdelivered to the wrong office, the error was considered technical and the forms were accepted. Under DOT's review process, a good faith efforts committee initially reviews the DBE forms submitted by bidders to determine whether they comply with the agency's rules. In this case, the committee made a recommendation that Intervenor's bid be declared non-responsive on the ground the DBE forms had not been filed with the MPO until November 4, or two days late. Under DOT protocol, the recommendation of the good faith efforts committee is then referred to the technical review committee to review "bids that have . . . problems." The latter committee is not required to accept the recommendation of the good faith efforts committee. Here, the technical review committee determined that the misfiling by Intervenor was a technical error and not a ground for rejecting the bid. In other words, while the committee continued to follow its policy of strictly enforcing the requirement that DBE forms be filed within three business days, it considered Intervenor's misdelivery of the forms to be a technical error which could be waived. This recommendation was accepted by the contract awards committee and on November 19, 1998, DOT posted its intent to award the contract to Intervenor. Contrary to Petitioner's assertion, there is no evidence that Intervenor gained an advantage over other bidders by misfiling the documents with the wrong DOT office.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a final order confirming its award of the contract to Intervenor. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 21st day of April, 1999. COPIES FURNISHED: Thomas F. Barry, Secretary Department of Transportation ATTN: James C. Myers, Agency Clerk 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 F. Alan Cummings, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Brian F. McGrail, Esquire Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Donna A. Stinson, Esquire Post Office Drawer 11300 Tallahassee, Florida 32302 Pamela S. Leslie, General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Respondent, Florida Department of Transportation (DOT), is required by state and federal law to ensure that 10 percent of state and federal funds available for construction, design and consulting service-contracts be provided as an opportunity to small business concerns owned and controlled by socially and economically disadvantaged individuals (DBE). DBE contract goals are established by DOT for each construction contract. Every bidder must submit a form to DOT which either documents compliance with the DBE contract goal or, if compliance is not met, must provide sufficient information to demonstrate that good faith efforts were made by the bidder to meet the goal. Prior to June 1984, DOT's practice allowed contractors ten days after the bid letting to correct their DBE forms or to submit their good faith effort documentation. However, effective May 23, 1984, DOT adopted Rule 14- 78.03(2)(b), F.A.C., which provides in pertinent part: 4. For all contracts for which DBE . . . contract goals have been established, each bidder shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE . . . participation information shall be submitted with the contractor's bid proposal. Award of the contract shall be conditioned upon submission of the DBE . . . participation information with the bid proposal and upon satisfaction of the contract goals or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. Failure to satisfy these requirements shall result in a contractor's bid being deemed nonresponsive and the bid being rejected. (Emphasis supplied.) In August 1984, subsequent to the adoption of Rule 14.78.03(2)(b)4., F.A.C., DOT sent a "Notice to All Contractors" which advised . . . all submittals for evaluating Good Faith Efforts in meeting DBE/WBE goals must be submitted with the bid proposal in order to be considered for award of the contract. Failure to submit the Good Faith Effort documentation with the bid may result in rejection of the bid. Petitioner, Wiley N. Jackson Company, acknowledges receipt of the "Notice to All Contractors." By notice dated August 30, 1984, contractors were advised that sealed bids would be received until 10:30 a.m., September 26, 1984, on various road projects. The bid documents advised that the DBE goal for Job Number 89095-3411 was 10 percent. The specifications for Job Number 89095-3411 contain extensive provisions with regard to compliance with the DBE contract goals. Among these provisions is the following language contained in Section 2-5.3.2. For all contracts for which DBE and/or WBE contract goals have been established, each contractor shall meet or exceed or demonstrate that it could not meet, despite its good faith efforts, the contract goals set by the Department. The DBE and WBE participation information shall be submitted with the Contractor's bid proposal. Award of the Contract shall be conditioned upon submission of the DBE and WBE participation information with the bid proposal and upon satisfaction of the contract goals, or, if the goals are not met, upon demonstrating that good faith efforts were made to meet the goals. The Contractor's bid submission shall include the following information (Submitted on Form No. 141-12 - DBE/WBE Utilization Form No. 1): The names and addresses of certified DBE and WBE firms that will participate in the contract. Only DBEs and WBEs certified by the Department at the time the bid is submitted may be counted toward DBE and WBE goals. A description of the work each named DBE and WBE firm will perform. The dollar amount of participation by each named DBE and WBE firm. If the DBE or WBE goal is not met, sufficient information to demonstrate that the Contractor made good faith efforts to meet the goals. (Emphasis supplied.) The specifications list, as grounds for disqualification of bidders, failure to satisfy the requirements of Section 2-5.3. Further, Section 2-5.3.3 of the specifications advised bidders that: In evaluating a contractor's good faith efforts, the Department will consider: Whether the Contractor, at least seven days prior to the letting, provided written notice by certified mail, return receipt requested, or hand delivery, with receipt, to all certified DBEs and WBEs which perform the type of work which the Contractor intends to subcontract, advising the DBEs and WBEs (a) of the specific work the Contractor intends to subcontract; (b) that their interest in the contract is being solicited; and (c) how to obtain information about and review and inspect the contract plans and specifications. Whether the Contractor selected economically feasible portions of the work to be performed by DBEs and WBEs, including where appropriate, breaking down contracts or combining elements of work into economically feasible units. The ability of a contractor to perform the work with its own work force will not in itself excuse a contractor's failure to meet contract goals. Whether the Contractor provided interested DBEs or WBEs assistance in reviewing the contract plans and specifications. Whether the DBE or WBE goal was met by other bidders. Whether the Contractor submits all quotations received from DBEs or WBEs, and for those quotations not accepted, an explanation of why the DBE or WBE will not be used during the course of the contract. Receipt of a lower quotation from a non-DBE or non-WBE will not in itself excuse a contractor's failure to meet contract goals; provided however, a contractor's good faith efforts obligation does not require a contractor to accept a quotation from a DBE or WBE which exceeds the lowest quotation received from any subcontractor by more than one percent. Whether the Contractor assisted interested DBEs and WBEs in obtaining any required bonding, lines of credit, or insurance. Whether the Contractor elected to subcontract types of work that match the capabilities of solicited DBEs or WBEs. Whether the Contractor's efforts were merely pro forma and given all relevant circumstances, could not reasonably be expected to produce sufficient DBE and WBE participation to meet the goals. Whether the Contractor has on other contracts within the past six months utilized DBEs and WBEs. The above list is not intended to be exclusive or exhaustive and the Department will look not only at the different kinds of efforts that the Contractor has made but also the quality, quantity and intensity of these efforts. Sections 2-5.3.2 and 2-5.3.3 are drawn directly and literally from Rule 14-78.03(2)(b). Consequently, all bidders were apprised by rule and bid specifications that if the DBE contract goal could not be met, sufficient information had to be submitted with their bid to demonstrate their good faith efforts to meet the goal, and the criteria that would be utilized to evaluate their efforts. On September 26, 1984, Petitioner submitted the low bid in the amount of $7,688,271.91 for Job Number 89095-3411. Attached to the bid was Form 141-12 - DBE/WBE Utilization Form No. 1, indicating that Petitioner's proposed utilization of DBEs was 0.2 percent of the total contract amount; $15,385 on a total bid of $7,688,271.91. Accompanying Petitioner's bid was a handwritten letter which stated: Gentlemen: To demonstrate good faith effort prior to the bid date for this project, we submitted seventy-three registered letters to prospective D.B.E. Subcontractors. On the major items we propose to sublet, comparative D.B.E. and non-D.B.E. quotations were received as follows: Box Culvert - J. E. Hill (D.B.E.) - 505,762.00 Shelton & Son - 369,092.00 Difference - $136,670.00 Fencing - Mikell (D.B.E.) - 55,727.00 Cyclone - 46,833.00 Difference - $ 8,894.00 Grassing - Mikell (D.B.E.) - 91,919.00 Agricultural Land - 63,198.00 Difference - $28.721.00 In view of the above, we are unable to meet the D.B.E. Goal and, at the same time, submit a realistic and competitive bid. Copies of pertinent quotations are attached and copies of D.B.E. solicitations (registered letters) and responses are available for your review. Quotations reflecting one unaccepted DBE proposal, and one accepted non-DBE proposal, in each of three areas--concrete, fencing and grassing--were attached to the letter. In each instance the DBE proposal exceeded the non-DBE proposal by more than one percent. No other documentation was submitted with Petitioner's bid to demonstrate its good faith efforts to meet the DBE contract goal. Respondent, Dickerson Florida, Inc. (Dickerson), was the second low bidder with a bid of $7,926,819.49. Dickerson's bid reflected a DBE participation of 10.8 percent. Upon the closure of bidding, Petitioner's bid was submitted to the Good Faith Effort Committee at DOT to evaluate the information contained in the bid to determine whether Petitioner's documentation evidenced a good faith effort to meet the DBE goal. That committee found Petitioner's bid documentation failed to demonstrate a good faith effort to meet the DBE goal, and recommended that Petitioner's bid be declared non-responsive and be rejected. DOT declared Petitioner's bid non-responsive and rejected its bid. DOT proposed awarding the contract to Dickerson. Petitioner's bid documentation failed to demonstrate a good faith effort to meet the DBE contract goals. The documentation failed to demonstrate that: (1) Petitioner, at least seven days prior to letting, had provided written notice to all certified DBEs, or, of what the DBEs had been informed, (2) Petitioner had selected economically feasible portions of the work to be performed by DBEs, (3) Petitioner had provided interested DBEs with assistance in reviewing the contract plans and specifications, and (4) Petitioner had selected for subcontract types of work that matched the capabilities of the solicited DBEs. Further, Petitioner's documentation did not include all quotations received from DBEs. Job Number 89095-3411 included several categories of work: box culverts, signs, landscaping, guardrail, fencing, traffic striping, trucking, paving, grading and miscellaneous concrete. The bid documentation submitted by Petitioner did not indicate the items it attempted to subcontract, nor what efforts, if any, it had expended to solicit DBE participation beyond "a letter" it had mailed, at an indeterminate date, to some 73 unidentified "prospective DBE subcontractors." Facially, Petitioner's documentation evidenced a pro forma effort. Subsequent to the bid closing, Petitioner forwarded to DOT copies of the 73 letters it had mailed to "prospective DBE subcontractors," together with the certified mail return receipts. Petitioner was in possession of these documents prior to the close of bidding, and could have submitted them with its bid. DOT's Good Faith Effort Committee declined to consider Petitioner's postbid submission. The committee interpreted Rule 14-78.03, F.A.C., to require the DBE participation information be submitted with the bid proposal, and to preclude consideration of postbid submissions. DOT has at all times acted consistently with this interpretation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation rejecting the bid submitted by Petitioner, Wiley N. Jackson Company, on State Project No. 89095-3411, Martin County, Florida, and awarding the contract to Respondent, Dickerson Florida, Inc. DONE and ENTERED this 31st day of May, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of May, 1985. COPIES FURNISHED: David T. Knight, Esquire Shackleford, Farrior, Stallings and Evans, P.A. Post Office Box 3324 Tampa, Florida 33601 Larry D. Scott; Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 Robert M. Ervin, Esquire Thomas M. Ervin, Jr., Esquire Ervin, Varn, Jacobs, Odom & Kitchen Post Office Drawer 1170 Tallahassee, Florida 32302 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The ultimate issue for determination at formal hearing was whether the intended decision by the Florida Department of Transportation to award the bid on State Project No. 79002-3429, for construction of a highway project, SRI- 95/11th Interchange, in Volusia County, Florida, to PCL Civil Constructors, Inc., departs from the essential requirements of law.
Findings Of Fact The Florida Department of Transportation (Respondent) issued an Invitation To Bid (ITB) on State Project No. 79002-3429 (Project), construction of a highway project--SRI-95/11th Interchange in Volusia County, Florida. The project is 100 percent federally funded. On July 28, 1993, the bid letting was held. The apparent lowest bidder was Martin K. Eby Construction Co., Inc. (Petitioner), with a bid of $10,480,685.71, and the apparent second lowest bidder was PCL Civil Constructors, Inc. (Intervenor), with a bid of $10,794,968.22 1/ Included as a requirement of the bid by Respondent was a Disadvantaged Business Enterprise (DBE) goal of 12 percent. On its face, Petitioner's bid met and exceeded the DBE goal with an intended DBE utilization of 12.2 percent. However, one of Petitioner's DBEs, Gearing Engineering (Gearing), was not certified by Respondent as a DBE. Without Gearing, Petitioner fell short of the DBE goal. The bid specifications in the ITB provided in a section entitled "Special Provisions for Disadvantaged Business Enterprises" that only DBEs certified by Respondent at the time that the bid is submitted will be counted toward the DBE goal. At the time Petitioner submitted its bid, Gearing had for the first time filed an application with Respondent to be certified as a DBE. At no time prior to this had Gearing been certified as a DBE by Respondent even though it had received certification as a minority business from local government. By the bid letting, Gearing had not been certified as a DBE by Respondent. On July 29, 1993, representatives of Respondent contacted Petitioner to inform it of the DBE problem and to inquire about its good faith efforts to meet the DBE goal. Petitioner responded the same day by written communication indicating, among other things, that it had contacted Gearing about its DBE status and that Gearing informed Petitioner that Respondent's DBE office had informed Gearing that it was appropriate for Gearing to submit a proposal and that certification was required, not at the time of submitting the proposal, but at the time work began. In the communication, Petitioner offered to substitute two certified DBEs for Gearing if Respondent determined Gearing could not be used. Also, Petitioner included with its response a letter from Gearing outlining the communication it (Gearing) had had with Respondent. Petitioner is no stranger to Respondent's bid process as it has prequalified to contract with Respondent and has been doing business within the State of Florida full-time for approximately five and one-half years. 2/ At no time prior to submitting its bid, did Petitioner contact Respondent's DBE office to determine Gearing's DBE status. Petitioner depended wholly upon the representation made by Gearing. Petitioner's division manager, who approved Petitioner's bid proposal for submission, directed his subordinates to only use DBEs certified by Respondent and appearing in Respondent's DBE Directory (Directory) when Petitioner was attempting to reach a DBE goal set by Respondent in a bid. The subordinates knew that Gearing was not in the Directory but failed to inform the division manager of Geary's non-certificate, deciding instead to depend on the representation made by Gearing. Had the division manager known of Geary's non- certification, he would have chosen another DBE from the list of DBEs on his selection list that were certified. Once a business becomes certified by Respondent as a DBE, it is added to a list of certified DBEs maintained by Respondent. A printed list of Respondent certified DBEs--DBE Directory--is provided to bidders, prior to the submitting of bids, so that bidders will know what businesses are certified and when their current certification expires. If a business appears in the DBE Directory for a bid, even though its certification may be listed as expiring before the bid letting date, the business can be included as a DBE on the bid. This procedure is used by Respondent because a renewal application may have been timely filed by a certified DBE, but Respondent may not have completed its renewal process at the time of printing of the Directory or that Respondent may not have timely furnished a certified DBE with a renewal notice or may not have received notification by return receipt that the DBE had received the renewal notice. Therefore, the DBE is retained on the list during Respondent's review process. 3/ Even if a DBE is found by Respondent to no longer meet the DBE requirements, if that DBE was on the DBE Directory at the time of a bid submission and used by a bidder for a project, the bidder would not be penalized. Furthermore, a business not appearing on the DBE Directory may become certified after the list is printed, but before bid submission deadline, and, therefore, be eligible to submit a proposal to a bidder for the particular project named. The DBE Directory also contemplates this situation by directing bidders on the first page of the Directory to contact Respondent directly if the status of a business, as a certified DBE, is in question, whether the business is listed or not. Moreover, Respondent informs bidders in the front of the Directory, printed in noticeable type, i.e., all capitalizations and boldtype, that only DBEs certified by Respondent will be counted towards meeting Respondent's DBE goals. At no time did Respondent's DBE office inform Gearing that it could submit a proposal on the Project without first receiving certification from Respondent as a DBE. The testimony of Respondent's operations and management consultant in its DBE office, who is the individual with whom Gearing communicated, is credible that anyone inquiring about a business submitting a proposal as a DBE to a bidder must first be certified by Respondent as a DBE in order to submit proposals on Respondent's contracts. Further, Respondent's continuous practice and procedure is to require DBE certification before a business can submit a qualified proposal as a DBE. Moreover, it is readily apparent that there was a miscommunication between the principals (husband and wife) of Gearing, causing a misinterpretation of what Gearing could or could not do before being certified. The subordinate principal (husband) who directly communicated telephonically with the DBE office denied that the DBE office informed him that Gearing could submit a proposal as a DBE before it was certified; whereas, the majority principal (wife) believed that he (husband) had informed her that Gearing could submit a proposal as a DBE during the pendency of its DBE application and she so informed Petitioner. On August 4, 1993, Respondent's Good Faith Efforts Review Committee reviewed the bids, including Petitioner's documents submitted on July 29, 1993. Its recommendation was (a) to declare Petitioner's bid nonresponsive due to Petitioner not meeting the DBE goal and not being able to document a good faith effort in attempting to meet the goal and (b) to award the bid to Intervenor. When the DBE goal is not met, the bid specifications in the section entitled "Special Provisions for Disadvantaged Business Enterprises" provide that awarding the contract is conditioned upon the bidder demonstrating that good faith efforts were made to meet the goal, with the documentation being submitted with the bid. Furthermore, the said section enumerates what information will be considered in evaluating good faith efforts and provides that failure to show good faith efforts will result in disqualification of the bidder. The bid documents contain a DBE Utilization Summary form which displays a notice providing that, if the DBE goal is not met, documentation must be included with the bid to demonstrate good faith efforts to meet the DBE goal, and if they are not included, the bid may be considered nonresponsive. Although good faith effort documents are to be submitted with the bids, generally, they are not because a bidder believes the goal has been met, as evidenced by its DBE percentage. Consequently, no bidder has been able to document good faith efforts when a good faith effort question arises after bid submission. Petitioner did not submit good faith effort documents with its bid because it believed that it had met, and even exceeded, Respondent's DBE goal. On August 11, 1993, Respondent's Technical Review Committee reviewed the bids and the accompanying recommendation. It concurred with the recommendation of the Good Faith Efforts Review Committee. On August 17, 1993, Respondent's Contract Award Committee reviewed the bids and the recommendations. It concurred with the recommendation of the Technical Review Committee, i.e., declaring Petitioner's bid nonresponsive for failure to meet the DBE goal and awarding the contract to Intervenor. On September 3, 1993, Respondent posted its notice of intent to award the contract for the Project to Intervenor. Petitioner timely filed a protest to the intended action. Respondent has filed a proposed rule change which would change the way it handles bidders attempting to meet DBE requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter its final order awarding State Project No. 79002-3429, for construction of a highway project, SRI-95/11th Interchange, in Volusia County, Florida, to PCL Civil Constructors, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1993. ERROL H. POWELL 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 28th day of December 1993.
The Issue Whether DOL should accept either the bid Red Enterprises submitted for T- shirts, in response to invitation to bid No. 89- 026-LOT/Ten/A, or the bid submitted by Party Time, or neither?
Findings Of Fact By invitation to bid No. 89-026-LOT/TEN/A (the ITB), petitioner's Exhibit No. 2, the DOL originally solicited bids from suppliers of beach towels, men's caps ("golf style, sewed back") and canvas sport bags. By an addendum dated March 24, 1989, the invitation was expanded to include 10,000 men's T- shirts. Petitioner's Exhibit No. 2. Three bidders responded: Party Time, Red Enterprises and Bagley Advertising. Respondent's Exhibits Nos. 1, 2 and 3. Only Party Time and Red Enterprises bid on the T-Shirts, Respondent's Exhibit No. 3; Petitioner's Exhibit No. 1, and Party Time's bid was low. Petitioner's Exhibit No. 1; Respondent's Exhibit Nos. 1 and 2. Red Enterprises's bid was responsive to the ITB. With the required paperwork, Red Enterprises submitted a sample T-shirt, along with samples of the other items. Although Party Time submitted samples of caps and towels, it did not submit a sample T-shirt. DOL rejected Party Time's bid on T-shirts for this reason, and announced its intention to award the T- shirt contract to Red Enterprises. Petitioner's Exhibit No. 1. ITB Provisions In paragraph 2.1, the ITB states, under the heading "Samples of Products to be submitted with Bid": SECTION 2: ITEMS REQUESTED 2.1 Samples of Products to be Submitted with Bid. Each bidder shall submit with its bid a sample of the product for each item bid. The samples shall be made of the materials to be used in the final product, if the bidder is successful, and shall be product identified. The samples shall be inspected to determine whether they meet the minimum specifications required. Samples of items, when called for, must be furnished free of expense on or before bid opening time and date, and if not destroyed may, upon request, be returned at the bidder's expense. Each individual sample must be labeled with bidder's name, manufacturer's brand name and number, bid number and item reference. The Department reserves the sole right to determine whether the sample meets or exceeds the quality requirements of the specifications. All such determinations made by the Department are final. (emphasis supplied) Later on the ITB lists all items which comprise the bid, without mentioning samples: 3.1.5 Bids should be presented in the following sequence: Identification of Respondent per Section 3.2 of ITB. Authorized representative of Respondent per Section 3.3 of ITB. Bidder's Affidavit (Attachment A) and Registration Form (Attachment B), if applicable, or notation that said Form is already on file with the Department. Price Sheet per Section 3.5 of ITB. (Attachment C). Florida-licensed per Section 3.6 of ITB. Minority Certification per Section 3.9 of ITB. But still later the ITB explicates the importance of complying with requirements which use "shall . . . except to indicate simple futurity": SECTION 4. MANDATORY REQUIREMENTS The Department has established certain mandatory requirements which must be included as part of any submitted bid. The use of "shall", "must" or "will" (except to indicate simple futurity) in this ITB indicates a mandatory requirement or condition. The words "should" or "may" in this ITB indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not by itself cause rejection of a bid.... Finally, the ITB specifies DOL's intentions, in the event of a bidder's noncompliance with mandatory requirements: Proposal Submission Only bids submitted in the time frame stated herein and with the content required above will be reviewed and considered by the Department. Review Criteria If Respondent's bid does not meet all the mandatory requirements the bid may be rejected by the Department as nonresponsive. The Department seeks to contract for the items described herein with the responding firm who submits the lowest and best bid. Responsive bids will be evaluated and judged by the Department based on cost. In Section 5.3, the ITB refers to "the lowest and best responsive bid," and Attachment C states, "Bid [e]valuation and award of contract will be based solely on the unit price." The ITB put reasonable bidders on notice that DOL expected bidders to furnish samples of items on which they bid. Except for T- shirts, Party Time did submit samples of everything on which it bid.
Recommendation It is, accordingly, RECOMMENDED: That DOL award the contract for 10,000 men's T-shirts to Red Enterprises. DONE AND ENTERED this 2nd day of June, 1989, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II, 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 2nd day of June, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 15 have been adopted, in substance, insofar as material, and to the extent they are more than mere argument. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 7, and 8 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, the evidence did not establish that Party Time did not have a sample. COPIES FURNISHED: Rebecca Paul, Secretary Department of Lottery Capitol Complex Tallahassee, FL 32399-4002 Nan Mancha Red Enterprises 1308 High Road Tallahassee, FL 32304 Linda Bagley Wiggs Bagley Advertising 4406 South Florida Avenue Suite 17 Lakeland, FL 33813 Louisa E Hargrett, Esquire Department of Lottery Capitol Complex Tallahassee, FL 32399-4002 John E Fuller Party Time Specialties, Inc. 12-14 East Bay Street, Suite 2101 Jacksonville, FL 32202
The Issue Whether the Department of Health and Rehabilitative Services (HRS) acted in an arbitrary and capricious manner in determining to award the bid for its district office to Koger Properties, Inc. (Koger) and whether the petitioner submitted the lowest and best bid under the terms of the bid specifications.
Findings Of Fact GENERAL BACKGROUND - STIPULATED FACTS Petitioners received a formal Invitation to Bid on Lease No. 590:1784 from HRS, District V. The purpose of the ITB was to obtain competitive proposals for the leasing of office space by HRS within a specifically defined area. Petitioners timely submitted their bid in response to the ITB. All timely received bids were first evaluated to determine technical responsiveness. Petitioners' bid was determined to be responsive to the technical requirements of the ITB. Responsive bids were then presented to a bid evaluation committee for comparison and formulation of a recommendation for award. In comparing the various responsive bids and formulating a recommendation for award, the members of the bid evaluation committee were required to visit each proposed facility and to apply the evaluation criteria as contained in the ITB package. By memorandum dated July 30, 1986, the bid evaluation committee recommended that the bid be awarded to Koger although petitioners submitted the lowest rental price. On or about August 5, 1986, petitioners received notice from HRS of its intent to award Lease No. 590:1784 to Koger. By letter dated August 6, 1986, petitioners notified HRS of their intent to protest the intended award of Lease No. 590:1784 to Koger. The Notice of Intent to Protest was timely filed pursuant to the provisions of Section 120.53(5), Florida Statutes, and Rule 10- 13.11, Florida Administrative Code. Thereafter, the petitioners timely filed their formal written protest. Petitioners are substantially affected by the decision of HRS to award the lease to Koger. THE BIDDING PROCESS The Department of Health and Rehabilitative Services issued an Invitation to Bid and Bid Submittal Form (ITB) seeking approximately 39,968 net rental square feet of office space in Pinellas County, Florida, to be used as the district administrative offices. The ITB set forth the method in which the bids would be evaluated as follows: EVALUATION OF BIDS Bids received are first evaluated to determine technical responsive- ness. This includes submittal on bid submittal form, inclusion of required information and data, bid signed and notarized, etc. Non responsive bids will be withdrawn from further consideration. Responsive bids are presented to a bid evaluation committee for com- parison and formulation of a recom- mendation for award. This is accomplished by a visit to each proposed facility and application of the evaluation criteria. The committees recommendation will be presented to the department's official having award authority for final evaluation and determin- ation of successful bidder. EVALUATION CRITERIA The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated in the bid submittal form. The ITB also provided that "the department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interests of the department and the state." In accordance with the ITB a pre-bid conference was held on April 29, 1986; however, neither petitioners nor any representative of petitioners attended the pre-bid conference. Further, petitioners made no oral or written inquiries concerning the ITB or the evaluation criteria to be utilized. Bids received from the following providers were determined to be responsive and presented to the bid evaluation committee for comparison and formulation of the recommendation for award: James P. & Margaret R. Gills (1100 Building) Koger Properties, Inc. (Koger) LTBCLH Partnership (Justice Building) Procacci Real Estate Management Co., Inc. (ICOT Building) Elizabethan Development, Inc. (Handy City Building). BID EVALUATION COMMITTEE The bid evaluation committee was composed of the following people who, along with their staffs, would occupy the leased property: Robert Withrow, Chairman of the Committee and District Administrative Services Director; Samuel Kinsey, Financial and Accounting Director for District V; Patricia Bell, Program Manager for Aging and Adult Services; Fredrick M. O'Brien, General Services, Manager for District V; and Pegi Hollingsworth, Personnel Officer. Each member of the evaluation committee received a bid package consisting of the bid specifications and the bids submitted. Each member also received a bid evaluation sheet which was used to rate each bidder. They received no other instructions with regard to the evaluation criteria. Although each specific evaluation criterion was weighted, i.e., given a comparative value, the committee members were not specifically instructed as to how points should be assigned for each category. The evaluation committee went to each of the proposed buildings for the purpose of making a comparative evaluation based on the evaluation criteria provided. However, the primary focus was on the Koger Building and the petitioners' 1100 Building because they had submitted the lowest rental rates of the five bidders considered. After the viewing process, the members of the committee, except Mr. Withrow, discussed the factors that should be considered in applying each of the evaluation criterion. Although the committee members had not formulated the evaluation criteria to be used, they were uniquely qualified to apply the evaluation criteria provided to the specific needs and requirements of the HRS offices that would occupy the building. Though the committee members were in agreement as to the various factors to be included in each of the criterion listed, they did not discuss the points that would be awarded to each facility. Each member independently assigned points to each facility based on his or her own evaluation of the facility's comparative value in each of the listed categories. Koger received the best evaluation from all five committee members with point totals of 98, 98, 98, 98 and 99 out of a possible 100 points. Petitioners' building was ranked last of the five buildings evaluated by four of the members, with point totals of 75, 77, 71 and 75, and fourth by Mr. Withrow with a total of 81 points. Based on the comparative evaluation of the buildings, the committee recommended that the bid be awarded to Koger. By letter dated July 30, 1986, the District V office received authorization from the HRS Director of General Services to award the bid to Koger as being in the best interest of the department and state. THE EVALUATION CRITERIA The ITB included the evaluation criteria list used by the committee to ascertain the relative value of each building. At the top of the page it is stated: The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated... The evaluation criteria are divided into three general areas: (1) Associated Fiscal Costs, (2) Location, and (3) Facility. Each general area includes subcategories, with each subcategory being given a total maximum value. Each of the criteria disputed by petitioners is discussed below. 1(a) Rental rates for basic term of lease. (Weighting: 45) All of the bids received by HRS were within the rental limits established by the Department of General Services and also much lower than expected. Even the highest bid was lower than anticipated, and Koger's and petitioners' bids were considered especially desirable. The bids received, listed at present value for the ton year basic lease period, are as follows: BIDDER TOTAL COST AMOUNT MORE THAN LOW BID 1100 BUILDING $1,881,690.1 KOGER 1,993,131.4 $111,441.3 JUSTICE 2,473,559.8 591,869.7 ICOT 2,655,306.1 773,616.0 HANDY CITY 3,223,202.0 1,341,511.9 Rental rates for the basic term of the lease were given a weighted value of 45. All of the committee members gave petitioners 45 points, as the low bidder, and all gave Koger 44 points as the next low bidder. However, four of the members simply agreed that the low bid would receive the maximum amount of points with each subsequent low bidder receiving one less point than the one before it, which resulted in the high bidder receiving 41 points even though its bid was 1.7 times greater than the low bid. Only Mr. Withrow made an attempt to prorate the points based on the differences in the amount bid, thus resulting in the high bidder receiving only 20 points. However, even Mr. Withrow awarded Koger 44 points based on the minimal difference between the Koger bid and the petitioners' bid. Both Mr. Withrow and Mr. Kinsey explained the award of 44 points to Koger by comparing the difference in the amounts bid to the HRS District V budget or the budgets of the entities using the facilities. However, the purpose of the evaluation was to compare each facility to the other facilities. Thus, the award of points for rental rates should have been based on a comparison of the rates offered. Although it was reasonable to assign the maximum number of points to petitioners, as the low bidders, the amount of points assigned to the remaining bidders should have been based on a comparison of the amount of each bid to the low bid. This would have made a significant difference in the points awarded to Justice, ICOT, and Handy City; however, even using a strict mathematical computation would not significantly affect the points awarded Koger due to the minimal difference in Koger's bid and petitioners' bid. Koger would receive no less than 42 points, only 2 points less than awarded, regardless of the method of mathematical computation used. 1/ 2(a) Proximity of offered space in central or preferred area of mad boundaries (Weighting: 5) All the members of the committee agreed that Koger is in the most preferred area because its location is more accessible to the employees and the persons who visit the office than any of the other buildings. Koger is in northeast St. Petersburg, minutes from the interstate. The 1100 Building is located in a more congested area in downtown Clearwater on the extreme northern boundary of the designated area. In making a comparison Of the building locations, all of which were located within the map boundary, the committee jusifiably determined that the building that was the most strategically located, in terms of accessibility, would be considered to be in the most preferred area. Thus, Koger was awarded five points by all committee members. The 1100 Building received 2, 0, 1, 3 and 1 points. Although all committee members awarded Koger the highest points, only one committee member resided closer to the Koger Building than the other buildings. Mr. Withrow, who lives closer to the 1100 Building than Koger, gave the 1100 Building only 1 point because it was more inaccessible to the district clients and employees. Further, the District Administrator, who approved the lease to Koger, resides closer to the 1100 Building. 2(b) Frequency and availability of satisfactory public transportation within proximity of the offered space (Weighting: 5) Both Koger and the 1100 Building received the maximum of five points in this category except from Mr. Withrow who gave the 1100 Building four points. The committee members felt that the bus transportation as about the same for each building. Although the 1100 Building had more buses passing the facility due to its location in downtown Clearwater, the committee considered the destination of the buses and concluded that a person would wait the same length of time for a bus to take him to his destination from either the Koger Building or the 1100 Building. Mr. Withrow differed on the points awarded because he considered the Koger location to be better due to its proximity to the airport. The district office has a large number of people that visit from Tallahassee and other districts in the state. 2(c) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of departmental operations planned for the requested space. (Weighting: 3) Koger received the maximum of 3 points from every committee member in this category; the 1100 Building received 0 points from every member. Although this category is listed within the general area of "Location", the committee members followed the category requirement and considered all environmental factors, including the physical characteristics of the building. In the 1100 Building, committee members noted problems with the air conditioning system and the elevators. The building was not maintained well, and the bathrooms were small and poorly ventilated. The HRS parking at the 1100 Building was not conveniently located. To get to the parking lot from the building an employee would have to cross a parking lot adjacent to the building, cross an intersection and then walk up to a block to get to his or her car. Many of the office employees work late and would be walking to their cars after dark, and there was concern expressed for employee safety considering the parking arrangement offered by petitioners. Koger had none of the problems observed at the 1100 Building. Further, Koger was better suited for the handicapped because there was no need to use a ramp as there was at the 1100 Building. 3(a) Conformance of space offered to the specific requirements contained in the Invitation to Bid. (Weighing: 10) 3(b) Susceptibility of the design of the space offered to efficient layout and good utilization. (Weighting: 10) 3(c) Provisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations...within 100 yards of each other. (Weighting: 10) Koger's bid is for a two-story building containing approximately 39,000 square feet. The 1100 Building is a 15-story building. It would provide approximately 39,000 square feet on the second, fourth, fifth, part of the eighth, part of the ninth, and twelfth floors. The space allocation in the 1100 Building, spread over 6 floors, would provide a major problem in efficiently locating the staff. Certain offices could not be placed on certain floors because of space restrictions, and related offices could not be placed in close proximity to each other. Offices that needed to be on the same floor could not be located on the same floor. Because the space offered by petitioners is spread over 12 floors, accessibility to related offices would be much more difficult. Further, the limited space per floor makes it more difficult for HRS to properly utilize the space provided. None of the testimony provided by the committee witnesses related the "conformance of the space offered to the specific requirements contained in the Invitation to Bid" (e.s.) The ITB lists the offices and rooms required, giving sizes for each. Other than the total square footage, which petitioners met, there were no other specific requirements contained in the ITB. None of the committee members compared the conformance of the space offered to the specific room and office requirements. Indeed, the testimony of the committee members indicate that accessibility of the space was considered under criteria 3(a) rather than the conformance of the space to the ITB. Since the space offered by petitioners apparently complied with the requirements of the ITB, petitioners should have received 10 points for that category. The points awarded under 3(b) and 3(c), however, were proper. The space offered by the 1100 Building is not susceptible to an efficient layout or good utilization of the space offered. Further, the committee legitimately differentiated between the single buildings offered by each bidder, under 3(c), by considering where the space was located within the building. Obviously, factor 3(c) reflects a concern that the space offered not be too separated. It clearly provides that proposals for space in two separate buildings will get fewer points than single building proposals, and there is no indication that all single building proposals should receive the same maximum points. This factor clearly relates to the proximity of the spaces offered to one another, with contiguous space getting the most points. 3(d) Offers providing street-level space (Weighting: 2) Approximately half of the space offered by Koger is street-level space. Koger received two points. The 1100 Building provides no street-level space; it received no points in this category. Petitioners do not contend that they should have gotten any points, but assert Koger should only have gotten one point because not all its space was street-level space. THE COMPARATIVE EVALUATION The evaluation committee members were very conscientious in comparing the relative values of the buildings offered based on the criteria provided and their observations. Their evaluations were not made arbitrarily, but based upon the factors set forth in the evaluation criteria. Although errors were made in calculating the values awarded for categories 1(a) and 3(a), these errors were not due to arbitrary action by the committee members. Further, should the appropriate points under 3(a) be added to petitioners evaluations and three points be subtracted from Koger's evaluations (two points for 1(a) and one point for 3(d)), petitioners evaluations would be 79, 80, 76, 80 and 84, and Koger's would be 95, 95, 95, 95 and 96. The strategic plan for HRS, 1986-1991, Goal 12, is to enhance employee morale and job satisfaction in several ways, one of which is to replace or upgrade 90 percent of substandard physical work environments by December 31, 1990. The testimony and evaluations show, and the committee members found, that the Koger Center would provide a better work environment than the petitioners' 1100 Building. Based on the criteria set forth in the ITB, the Koger bid is the "lowest and best" bid.
Findings Of Fact The invitation for bid regarding Lease No. 590:2169 solicited bids for a 10 year lease of existing office space for occupancy on October 1, 1990. The invitation for bid consisted of 13 pages and solicited bids for approximately 10,633 net rentable square feet located within a prescribed area in Florida City, Florida (the "IFB"). All bids were required to be submitted on a form entitled the "Bid Submittal Form". Any bids not submitted on the Bid Submittal Form were required to be rejected pursuant to the terms of paragraph 1, page 6 of the IFB. The Bid Submittal Form consisted of 24 pages. The Bid Submittal Form at paragraph 22, page 12, required Petitioner to include a certification letter from a licensed heating, ventilation, and air conditioning contractor attesting to the age and condition of the heating or cooling system existing in the proposed lease space, if any (a "certification letter"). No certification letter was required if the proposed lease space had no cooling or heating system in place. A portion of Petitioner's proposed lease space was air conditioned. Petitioner did not submit the requisite certification letter. Respondent had no reasonable basis to know from Petitioner's Bid Submittal Form that the proposed lease space had an existing heating or cooling system. Pictures of the proposed lease space disclosed that part of the proposed lease space was enclosed. The pictures were not a sufficient basis for Respondent to conclude that an existing air conditioning system was in place. Petitioner's proposed lease space was in apparent need of renovation before it was tenable for Respondent's needs. Petitioner's failure to submit a certification letter would have been consistent with a conclusion that no adequate, existing cooling system was in place and that a new cooling ard heating system would be needed as part of the renovation of the proposed lease space. The Bid Submittal Form, at Paragraph 11, page 5, required any bidder with proposed lease space that was partially or wholly occupied, either at the time of the submission of the bid proposal or at the time of the proposed occupancy date (October 1, 1990), to submit written documentation by the tenants indicating each tenant's acknowledgment of the lessor's bid and each tenant's ability to vacate the proposed lease space by the proposed occupancy date (or earlier date if renovation was required). The IFB, paragraph 7, page 13, also listed existing tenant acknowledgments as one of the types of documents required to be submitted by any bidder with lease space occupied by existing tenants. A portion of Petitioner's proposed lease space was occupied by tenants at the time that the Bid Submittal Form was prepared and submitted by Petitioner. Petitioner never physically inspected the proposed lease space. Petitioner's Bid Submittal Form represented that there were month-to-month tenants in the proposed lease space but that the requirement for existing tenant acknowledgments was "not applicable". Contrary to the requirements of the Bid Submittal Form and IFB, Petitioner submitted no existing tenant acknowledgments. Petitioner had control of its proposed lease space within the meaning of the IFB, paragraph 1, page 3. Petitioner had a contractual right to purchase the proposed lease space pursuant to a Deposit and Sale-Purchase Agreement dated March 30, 1990 (the "Purchase Agreement"). A copy of the Purchase Agreement was attached to Petitioner's Bid Submittal Form. The Addendum to the Purchase Agreement provided in relevant part that Petitioner would purchase the proposed lease space subject to the occupancy of any and all tenants in possession. Respondent determined that Petitioner's bid proposal was not responsive because the Bid Submittai Form prepared and submitted by Petitioner failed to include both the certification letter and the existing tenant acknowledgments. Each such omission was determined to be a material deviation from the bid requirements by Samir Elmir, Facilities Management Assistant for Respondent at the time of the bids were opened on April 2, 1990. The initial determination of non-responsiveness by Mr. Elmir was confirmed by Luis Cerezo, Facilities Services Manager for Respondent who was also present at the bid openings. Their determination of non-responsiveness was confirmed by Warner Von Werne, Acting General Services Manager. 1/ Petitioner was advised of the non-responsiveness of its bid proposal at the time of the bid openings by deficiencies noted on the Bid Technical Responsiveness Checklist (the "Checklist"). The Checklist was completed and marked "Non-Responsive" by Mr. Elmir aid delivered to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of August, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 6th day of August, 1990.
The Issue The issue in this case is whether the Respondent, the Department of Transportation (DOT), should award State Project No. 97160-3320 to Intervenor, Smith & Company (Smith), notwithstanding the bid protest filed by the Petitioner, Hubbard Construction Company (Hubbard), alleging that its bid was responsive and lower than Smith's bid.
Findings Of Fact State Project No. 97160-3320 (the project) is for work on the Polk County Parkway in Polk County. This project is funded entirely with state funds. It had a Disadvantaged Business Enterprise (DBE) goal of twelve percent, consisting of four percent black, and eight percent non-minority female. The Florida Department of Transportation (DOT) manages two separate DBE programs--a federal DBE program for federally funded projects, and a state DBE program for state-funded projects. The state program is based upon a disparity study conducted by MGT of America for the DOT in 1993. This study was conducted as a result of the case of City of Richmond v. J. A. Croson Co., 109 S.Ct. 706 (1989), which determined that a preferential contract system which was not based on actual discrimination was unconstitutional. The MGT disparity study found that there was evidence of disparate treatment by DOT in Florida, and in a very small number of counties outside of Florida. As a result, the state DBE program only certifies DBEs with home offices in Florida or the other counties identified in the disparity study. The DOT publishes a DBE directory for each bidding cycle. The DBE Directory includes DBEs certified or in the process of renewing expired certifications at the time the directory is published. The DBE directory includes DBEs for both the federal and state DBE programs but clearly indicates which DBEs are approved only for projects with at least some federal funding. Under DOT's policies and practices, a bidder can use any approved DBE listed in the directory even if the DBE's certification expires between publication and the bid letting. The deadline for submission of bids for the project was October 29, 1997. Hubbard's initial bid included a DBE Utilization Summary form indicating that it would achieve the DBE goal established for the project. The DBE Utilization Summary form gave Hubbard notice that another DBE Utilization Summary form listing the DBEs Hubbard would use, along with the dollar amounts of the subcontracts for each DBE listed, together with completed DBE Utilization forms for each DBE, had to be received by the DOT no later than 5 p.m. on the third business day after the bid letting. The DBE Utilization Summary form also gave notice that, otherwise: "Bids may be declared non-responsive . . . ." On November 3, 1997, Hubbard submitted a completed DBE Utilization Summary form, together with completed DBE Utilization forms. These forms stated that Hubbard stated would be using Suncoast Fabrics for erosion control work to meet $160,000 worth of the non- minority female goal for the project. Without the subcontract with Suncoast Fabrics, Hubbard would fall $160,000 short of meeting the non-minority female goal. In fact, Suncoast is not certified as a DBE for projects funded entirely by the State (i.e., without any federal funding). As a result, Hubbard's bid was $160,000 short of meeting the non-minority female goal for the project. After November 3, 1997, Hubbard discovered its error in relying on Suncoast Fabrics as a DBE for the project and on November 5, 1997, submitted another DBE Utilization Summary form and DBE Utilization form stating that, instead of paying Suncoast $160,000 for erosion control work, it would pay Margie Woods Trucking an additional $160,000. Hubbard's bid was reviewed by the DOT's Good Faith Efforts Committee of the DOT's Minority Programs Office for compliance with the project's DBE goals and was found to be non- responsive because Hubbard's DBE utilization forms relied on Suncoast Fabrics, which was not an approved DBE for state-funded projects and because, without Suncoast Fabric's participation, Hubbard's bid did not meet the project's DBE goals. Hubbard did not submit a package to demonstrate good faith efforts to meet the DBE goals (because Hubbard thought its bid met the DBE goals). The Good Faith Efforts Committee found that Hubbard's bid did not demonstrate good faith efforts to meet the DBE goals, a finding which Hubbard does not dispute. The Good Faith Efforts Committee did not consider Hubbard's November 5, 1997, submission attempting to substitute Suncoast Fabric's participation with an increase in Margie Woods Trucking's participation because it was submitted after the deadline for submitting DBE utilization forms. The findings and recommendations of the Good Faith Efforts Committee were submitted to the DOT's Technical Review Committee. The Technical Review Committee concurred with the Good Faith Efforts Committee that the apparent low bid and second low bid were non-responsive and that the project should be awarded to Smith. The findings and recommendations of the Technical Review Committee were submitted to the DOT's Contract Awards Committee. The Contract Awards Committee concurred with the Good Faith Efforts Committee and the Technical Review Committee that the apparent low bid and the apparent second low bid were nonresponsive, and awarded the contract to Smith. None of the DOT committees reviewing Hubbard's bid in the process of deciding to award the contract to Smith gave specific consideration to the question whether Hubbard's failure to timely submit DBE utiJization forms meeting the project's DBE goals should be waived as being a minor irregularity. The Department's policy is to strictly enforce the three-day period for submission of completed DBE utilization forms and to consider failure to submit DBE utilization forms meeting a project's DBE goals to be a material error mandating rejection of a bid as non- responsive. From January 1995 through December 1997, the Department rejected 18 out of 254 problem bids because the bids failed to meet DBE goals. The DOT rejected the bid of Edward M. Chadbourne and Associates in a prior letting on facts very similar to those in this case. Chadbourne proposed Suncoast Sod Farms, Inc., a DBE firm based in Alabama, for a project wholly funded by the state. As reflected in the DBE Directory for that letting, Suncoast Sod was not eligible for non-federally funded projects. In two prior state-funded projects for the Polk County Parkway, Suncoast Fabrics had been used by a contractor in its DBE submissions. The Department allowed the use of Suncoast Fabrics to count towards the contractor's DBE percentage because the DBE Directory for those projects erroneously failed to indicate that Suncoast Fabrics was certified as a DBE only for federally-funded projects. Similarly, the DOT awarded a contract to Murphree Bridge Corporation in a prior letting although Murphree did not meet the three percent DBE goal for that project. In that case, DOT advertisements prior to the letting erroneously stated that the goal was two percent, and Murphree met the advertised goal but not the actual 3 percent goal. In the two prior instances involving Suncoast Fabrics and the prior instance involving Murphree Bridge, the DOT declined to penalize the contractors for DOT's errors. However, there was no change in DOT's policy regarding the three-day period for submission of completed DBE utilization forms that meet a project's DBE goals. In addition, in those instances, DOT was unable to count the DBE utilization for purposes of its affirmative action program, for which it must report to the legislature. Suncoast Fabrics apparently did not realize it was not approved for state-funded contracts, and it misled Hubbard when Hubbard inquired as to Suncoast's DBE eligibility. But regardless whether Suncoast had an excuse for its erroneous belief, it was Hubbard's responsibility to use the DBE Directory to verify whether a DBE is authorized for use on a particular project, and the applicable DBE Directory clearly noted that Suncoast Fabrics was not approved for this project. In fact, Suncoast Fabrics was appropriately identified as not qualifying for state-funded projects in each DBE Directory since March 1997. DOT made no statement, representation or indication of any kind to Hubbard that would have misled Hubbard to think that Suncoast Fabrics was qualified as a DBE for State Project No. 97160- 3320. In this regard, Hubbard's situation is significantly different from the two prior instances involving Suncoast Fabrics, the prior instance involving Murphree Bridge. The Department did not intend for bidders to use the three- day period for submission of completed DBE Utilization forms to shop DBEs' prices, attempt to drive DBEs' prices down, or continue to solicit quotes from DBEs. The Department has no statute, rule, procedure, or policy permitting substitution of DBEs more than three days after a bid letting and before work begins. The Department does not permit substituting DBEs after an award is posted unless the DBE fails to perform, and then only with the express prior approval of the Department. Allowing a bidder the ability to shop DBEs' prices, attempt to drive DBEs' prices down, or continue to solicit quotes from DBEs after the three-day period could give the bidder a competitive advantage over bidders who do not. The amount of the bid submitted by a contractor can be affected by the bids it received from DBEs. The bid submitted may be based upon quotes received from particular DBEs. If one contractor were allowed to use an unqualified DBE whose price was low, and the other contractors did not rely on such quote, knowing that the DBE was unqualified, the first contractor could enjoy a competitive advantage. Although Hubbard asserted that it did not decide which DBEs to use until after its bid was submitted, the possibility of an advantage exists. Hubbard also contends that its failure to submit DBE Utilization forms meeting the DBE goal for the project is similar to Smith's alleged error in submitting a single DBE Utilization Summary form for both of the split goals (black and non-minority female), contrary to the instructions for the form. Suffice it to say that submitting the information on a single form is different from Hubbard's error. It is clear from Smith's submission that Smith's bid met the project's DBE goals; it was clear from Hubbard's bid that Hubbard's did not. DOT's decision to reject Hubbard's bid for failure to comply with the DBE requirements was not contrary to statute, rule, policy, practice or the bid specifications. Hubbard did not show that the Department's action was clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, RECOMMENDED that the Department of Transportation enter a final order awarding State Project No. 97160-3320 to Smith & Company. RECOMMENDED this 1st day of May, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 1st day of May, 1998. COPIES FURNISHED: F. Alan Cummings, Esquire Cummings & Thomas, P.A. Post Office Box 1116 Ft. Lauderdale, Florida 33302-1116 Paul Sexton, Esquire Chief, Administrative Law Section Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Donna H. Stinson, Esquire Broad & Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32301 Thomas F. Barry, Secretary Attention: Diedre Grubbs Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Prior to June, 1988, HRS determined that it needed 23,871 square feet of office space to house some of its social services for indigents in Northern Escambia County. Since HRS desired more than 2,000 square feet of office space, it was required to bid lease number 590:1987 competitively. To that end, Respondent prepared an Invitation to Bid and a bid submittal package. The package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Specific areas of importance to Respondent in the selection of its office space were: client safety public access, ingress and egress availability of public transportation. The above areas were important to HRS since the agency would render indigent services to approximately 1000 people a month, many of whom are handicapped or lack good mobility due to age or infirmity. The majority of Respondent's clients are served within a 10 day period during each month. A great deal of pressure is placed on the surrounding area due to the in flux of people. Additionally, many of Respondent's clients utilize public transportation since they do not own or have access to personal vehicles. Because of servicing so many people the above factors received a great deal of weight under HRS's consideration of the property it desired to lease and occupy. All of the above areas were covered by Respondent's weighted bid evaluation criteria. Additionally, in order to submit a responsive bid, a prospective lessor was required to meet one of the following qualifications at the time the bid was submitted: (a) be the owner of record of the facility and parking areas; (b) be the lessee of the space being proposed and present with the bid a copy of the lease with documentation of authorization to sublease the facility and parking areas; (c) submit documentation of an option to purchase the facility and/or parking areas; or (d) submit documentation of an option to lease the facility with authorization to, in turn, sublease. The District Administrator of HRS, Chelene Schembera, is ultimately responsible for bidding, selection and leasing of all HRS facilities within District I, including Escambia County, Florida. In order to accomplish this task Ms. Schembera appointed a bid evaluation committee to review and grade the responsive bids under the criteria established in the bid package, and to recommend to her the committee's choice of the lowest and best bid. Ms. Schembera's purpose in establishing the bid evaluation committee was to secure input from a cross section of people who had a variety of backgrounds and knowledge that would be material in evaluating the office space, in light of the uses for which it was intended and the relative public worth of the work space. Ms. Schembera appointed individuals who were familiar with the type of work to be done in the proposed space, as well as persons familiar with the bid process. On July 21, 1988, HRS received five bids on the lease. Intervenors submitted the apparent low bid which Northside consisted of one building located at the Brentwood Shopping Center in Pensacola, Florida. At the time that the Intervenors submitted their bid, they included documentation which showed that they had a contract to purchase the subject facility; they have since closed on that transaction. This bid package did not include the four acres adjacent to the Brentwood Shopping Center property and no contract to purchase or other documentation was submitted as to the four acre parcel of property. Petitioner submitted the apparent second lowest bid which consisted of one building located at Fairfield Plaza in Pensacola, Florida. Petitioner's interest in Fairfield Plaza is that of a lessee under a Master Lease with rights to sublet the property. All appropriate documentation was submitted with the bid. This property was the subject of a semi-friendly foreclosure action at the time that the Petitioner's bid was submitted. Petitioner was still in possession and control of the property. Both Petitioner's and Intervenors' property were within the mandatory geographical area designated in the bid package. Both bids were responsive under the minimum bid specifications and bidder qualifications. The other three bids which were submitted by HRS are not in contention The committee members personally inspected the sites offered by the Petitioner and the Intervenors. While at the Intervenors' site, the committee's concern over the property's minimal parking (as compared to Fairfield) and limited safe public access, ingress and egress were raised. The only access to Intervenor's property was from a very busy multi-lane highway. Certain turns onto and off the property were extremely dangerous. In order to make its bid package more acceptable, Intervenors' representative orally amended the bid package to include the southerly four acres contiguous to the Brentwood property. The Inclusion of the southerly four acres would adequately increase Intervenors' parking. The amendment would also create additional and safer public ingress and egress since the four acres abutted on Murray Lane which intersects Highway 29. This amendment substantially worked to Intervenors' advantage and was a material change to the previously submitted bid. The improper amendment cannot be considered here. Following the on-site inspections, the committee members met and rated the properties submitted by Petitioner and Intervenors according to a Bid Synopsis evaluation sheet which they had been previously provided. The committee members' review of the Intervenors' property included the improper bid amendment. Even with the improper amendment, the unanimous recommendation of the evaluation committee was to award the lease to the Petitioner and Fairfield Plaza. The evaluation committee based its decision on the scores attributed to each property on the Bid Synopsis sheet by the individual committee members. The committee utilized all the weighted bid criteria. However, two factors were of primary importance. One was its determination that the property offered by the Intervenors presented greater problems for ingress and egress due to the congested nature the area. The other consideration was that service to Fairfield Plaza from public transportation was both more frequent and direct. The property offered by the Intervenors had less public transportation service. The stops were less frequent and a significant number of clients would be required to transfer buses to reach Brentwood when utilizing such public transportation. All bus passengers would be required to walk from the bus stop close to Brentwood and attempt at their peril to cross a very busy, dangerous and congested highway. The reasons given by the individual committee members for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. Each individual member gave a rational and reasonable basis for the scoring he or she used on the Bid synopsis score sheets. The scoring was done by each member after discussion of the two buildings and without influence from the other committee members. In essence, the committee felt that Petitioner's property was the better property for the money. Importantly, every committee member came to the conclusion that Petitioner's property was the lowest and best bid. There is no statutory or rule requirement that one scoring method be preferred over another. The only requirement is that the method be rational and reasonable especially where highly subjective, but legitimate criteria are involved in the selection of a piece of property. On these facts, the individual scoring methods used by the individual committee members were not arbitrary and capricious, but were very rational and reasonably related to the relative importance the committee members gave the above factors. The District Administrator initially adopted the committee's recommendation and reported that recommendation to King Davis, the Director of General Services for HRS. The Director of General Services later informed the District Administrator that he and his staff were concerned with the fact that the recommendation was to award the lease to the second lowest bidder. The staff's review considered the improper amendment as part of the Intervenors' bid. Over a ten year period the Petitioner's rental cost was $62,381.00 more than the Intervenors'. In addition, the estimated energy consumption for the first year for the Petitioner's property was approximately $4800 more than for Intervenors. King Davis and his staff did not believe that the justifications cited in the recommendation letter would be considered crucial enough to override awarding the lease to the lowest bidder, should the agency get involved in a bid protest over the award. He and his staff did not disagree that the reasons assigned by the committee and Ms. Schembera were legitimate considerations. Their ultimate concern was that the reasons given by the committee and Ms. Schembera would not be given as great a weight by a Division of Administrative Hearings' hearing officer; and therefore, fail to withstand a potential bid challenge. But the conclusion that the lack of ingress and egress and public transportation could not outweigh the cost differences assumed that Intervenors' bid included the four acres. Without the four acres, the problems with ingress and egress, congestion and public transportation become even more important and can outweigh minor price differences in rent and energy. This is especially true when one considers the impact that the influx of at least 1000 people would have on an already congested and unsafe area. Put simply, the conclusion that the above factors can and do outweigh price and cost considerations in these facts is not an arbitrary and capricious decision, even though others may disagree with that decision. Instead of reconvening the committee after receiving the recommendation from King Davis and discussing the same with him, the District Administrator made the determination that the lease should be awarded to the Intervenors. The District Administrator, acquiesced in Mr. Davis' assessment that HRS could not succeed in a bid challenge. She did not like his advice. In fact, even at the hearing Ms. Schembera still believed Petitioner's property was the lowest and best for HRS purposes. However, through circular reasoning she also concluded that Intervenors' property was the lowest and best bid because she chose it. The agency's ability to succeed in a bid challenge which may or may not happen is not covered by any of the weighted bid evaluation criteria contained in the bid package and is not an appropriate reason to prefer one bid over another. The foregoing is particularly true when the reason given (surviving a bid protest) is based on the occurrence of a future event which may not occur. To reject a bid for a reason outside the bid criteria and one based on an unknowable future event is an arbitrary and capricious act on the part of Respondent. A court-appointed receiver was ordered to take control of the property belonging to the Petitioner on September 28, 1988, after the bid award was announced. Petitioner still retains its right of redemption of the property, and such an interest is sufficient to confer standing on Petitioner to maintain this action. Moreover, the evidence was clear that Petitioner had both the ability and wherewithal to perform the lease should it receive the bid award. Perfected ownership or control is not required. With Petitioner's apparent ability to perform, the fact of the foreclosure action and the receiver should not work against the Petitioner in this bid protest.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order awarding lease number 590:1987 to Eccelston Properties, Ltd., as the lowest and best bidder. DONE and ORDERED this 10th day of January, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1989.
The Issue Whether Petitioner's bid on State Job No. 86075-3459 was non-responsive and Respondent's award of the bid to the next lowest responsible bidder was arbitrary, illegal or dishonest.
Findings Of Fact Petitioner timely submitted its bid on State Job No. 86075-3459 and this bid was the lowest received by DOT on this project. The DBE requirement on this bid was 11%. This means each bidder had to show on its submittal that at least 11% of the project cost would go to a minority business subcontractor. With its bid submittal, on the Disadvantaged Business Enterprise (DBE) Utilization Summary (Form 275-020-003 Minority Prog. 11/87), Petitioner listed as DBE subcontractors Reliable Trucking, Inc. with $100,000 as the dollar amount for DBE goal and $280,000 for Community Asphalt Corporation. (Exhibit 1.) These two figures exceeded the 11% minimum DBE requirement. Community Asphalt Corporation had been a certified DBE subcontractor in early 1990 but in May 1990 its certification expired and was not renewed. Accordingly, at the time of the bid opening, Community Asphalt was not listed on the list of certified DBE subcontractors DOT provided to bidders with the bid forms to complete for this project. Petitioner had initially shown only Reliable Trucking, Inc. on Exhibit 1 with $400,000 as the dollar amount for the DBE goal. Reliable Trucking is a certified DBE. Petitioner received a late quote from Community Asphalt and just before submitting its bid added Community Asphalt to its DBE Utilization Summary, interlining the $400,000 amount for Reliable Trucking and changed this amount to $100,000. Although Petitioner still intended to use Reliable Trucking for work on this project in excess of $400,000 its policy, which was here followed, is to show on its DBE Utilization Summary submitted with its bid only a small percentage over the required minimum. Therefore, when Community Asphalt was added as a DBE subcontractor, the dollar amount to Reliable Trucking was reduced. Petitioner's employee who added Community Asphalt to the DBE Utilization Summary checked to see that Community Asphalt was a certified DBE but, unfortunately, looked at the list of certified DBE subcontractors furnished by DOT for an earlier bid--not the current list. The current list which had been supplied to Petitioner did not list Community Asphalt as a certified DBE. When the bids received were first checked by the DOT employee who reviews bids to see that DBE requirements are met, she approved the bid but set it aside for further check. Later, after realizing Community Asphalt was not on the approved list of DBE's she disapproved the bid and it proceeded to the Good Faith Efforts Committee for review. Petitioner submitted no documentation of any good faith efforts to comply with the DBE requirements. This is understandable as Petitioner thought when the bid was submitted that Community Asphalt was a certified DBE and its bid complied with the DBE requirements. In reviewing and accepting bids for DOT projects, Respondent relies entirely on the documentation submitted with the bid and does not allow bidders to supplement the bid after opening.
Recommendation It is recommended that the protest of Bergeron Land Development, Inc. to the rejection of its bid submitted on State Job No. 86075-3459 be dismissed with prejudice. DONE and ENTERED this 23rd day of October, 1990, in Tallahassee, Leon County, Florida. KEN N. AYERS 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 October, 1990. APPENDIX Respondent's proposed findings are generally accepted, except for: Rejected. The DBE forms submitted by Petitioner, as corrected by Petitioner before submittal, showed Reliable Trucking, Inc., a certified DBE, to receive only $100,000 in subcontracts, far less than the 11% DBE participation required. Rejected. Whether Reliable Trucking had a firm contract with Petitioner to provide in excess of $400,000 subcontracting work on this project is immaterial if the DBE utilization form submitted with the bid fails to show the DBE utilization goal is attained or documentation of good faith efforts are not included. Rejected that the mistake by Petitioner was a non-material mistake. Bids have to be accepted as received. Rejected. Rejected. Rejected. Accepted as an accurate quote of Rule 14-78.003,Florida Administrative Code. The legal conclusion that the ruledoes not require evidence of good faith efforts be included withthe bid submitted is rejected. The conclusion of law that Respondent violated its own rule is rejected. COPIES FURNISHED: John H. Beck, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Paul J. Martin, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 John Radey, Esquire Post Office Drawer 11307 Tallahassee, Florida 32302 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, Room 562 Tallahassee, Florida 32399-0458
Findings Of Fact On December 24, 1986, respondent, Department of Transportation (DOT), gave notice to qualified and interested contracting firms that it was accepting bids from firms interested in providing construction and maintenance services on State Job No. 08150-3412. Such bids were due on or before January 21, 1987. The job description read as follows: At State Bridge Nos. 080025 and 000026 over the Withlacoochee River North of Tampa. Work consists of Furnish and Install Integral Pile Jackets (port. cement grout filled); Remove and Replace Sections of Bridge Deck; Floating Turbidity Barrier; and Incidental Items. Length 0.066 Mile. (B.I. 1144013) Stated in plainer language, the project called for repairs to two bridges on I-75 which span the Withlacoochee River southwest of Ocala in Hernando County. The bidders were also provided with a copy of the specifications and bid form dated November 4, 1986 regarding the contract. In response to this offer, petitioner, CSA Marine Services, Inc. (CSAMS), a contractor with offices at 759 Parkway Street, Jupiter, Florida, filed a bid proposal by the established deadline. Its bid totalled $123,347.59. Also filing a bid proposal was Seig and Ambachtsheer, Inc. (SAI), a contractor in Orange City, Florida. Its bid price was $137,209.50. The bid form itself was prepared by DOT and merely required the contractor to fill in the blanks where appropriate. The first two columns were labeled "item number" and "approximate quantities" and were already completed by DOT. For those items having a quantity of only one, the words "lump sum were written in the second column. Where quantities exceeded one, they were expressed in such terms as linear feet, cubic yards and pounds together with the approximate numerical quantities. The third column was labeled "item description and unit or lump price (written in words)." The fourth column read "unit price (in figures)" and required the bidder to indicate the unit price of each line item in figures. The fifth or final column was labeled "amounts" and required the bidder to reflect the lump sum price of each line item in figures. Columns three through five were filled in by CSAMS where necessary. The total price of the bid was to be listed on a bid blank which was attached to the bid form. On its face, the third column on the form offered petitioner the option of either using a unit or lump sum price. In addition, section 2-5.1 of the Standard Specifications for Road and Bridge Construction, 1986 Edition, which governs the awarding of contracts and has been incorporated as a part of the bid documents, provides as follows: Proposals shall be submitted on the form described in 2-2. Unit or lump sum prices for all bid items shall be shown in words and figures, and all extensions shall be carried out. Notwithstanding the form and instructions, according to a DOT representative, a lump sum price may be used only when the quantity in column two is one item. If more than one item is reflected in column two, then DOT expects a contractor to use the unit price. However, there is no written rule, instruction or provision in the specifications that sets forth this requirement. CSAMS properly opted to use lump sum price under column three on at least two line items even though the quantities exceeded one. Of particular interest was line item 8400-3-4 which, according to column two, required 20.800 cubic yards of concrete for a "superstructure." Relying upon the optional language on the form, petitioner wrote the words seven thousand, one hundred, fifty five dollars and 00/100 cents" in column three (which was a lump sum price), and a unit price of $344.00 in column four. It then used the figure of $7,155 in the final column of that item, which is the approximate sum of $344 times the quantity (20.800). Because of the volume of bid lettings each month, DOT uses a computer to total the numbers in each line item for each bid. If the amount in column five does not agree with the figures in columns three and four, the computer flags the item, and a manual review of the line item is made. While reviewing line item 8400-3-4 of petitioner's bid form, the computer found the numbers did not agree. More specifically, when 20.800 in column two was multiplied times $344.00 in column four, it equalled $7,155.20 and not $7,155.00 as reflected in column five of petitioner's bid form. This twenty-cent disagreement arose because petitioner had rounded off the unit price from $343.99038 to $344.00 in column four. The disagreement prompted a manual review of petitioner's bid form and a recalculation of the line item. On January 30, 1987 DOT bureau chief J. Ted Barefield prepared a letter to CSAMS styled "Notice of Switch in Apparent Low Bidder" indicating in part: Due to mathematical error(s) on the bid of CSA Marine Services, Inc. and Continental Shelf Associates, Inc., the apparent low bidder, whose bid amount was $123,347.59 is now $265,016.59. Therefore, the apparent low bidder is Seig & Ambachtsheer, Inc. The change in amount was the result of DOT increasing the unit price in column four from $344 to $7,155 (to agree with column three) and multiplying the quantity (20.800) times the sum specified in words in column three ($7,155) to arrive at a total in column five of $148,824. This caused an increase of $141,669 over the original bid price. In making the above change, DOT relied on Section 3-1 of the 1986 Edition of the Standard Specifications for Road and Bridge Construction. Section 3-1 provides in relevant part as follows: In the event of any discrepancy in the three entries for the price for any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, in which case they shall govern over the unit price shown in words. (Emphasis added) Here, because of the twenty-cent discrepancy in the entries for line item 8400-3-4, DOT used the "unit price as shown in words" in column three to recalculate the item since the extension ($7,155.00) and the unit price shown in figures ($344.00)" did not agree. In doing so, DOT did not first evaluate the price written in words to see if it was a lump sum or unit price. After receiving the above letter, CSAMS and DOT representatives met in early February 1987 to discuss the CSAMS proposal. It was represented to CSAMS that it should have used a unit price in words in column three rather than a lump sum price. Petitioner was also provided with a copy of a letter previously sent to it on September 6, 1985 by DOT which noted the following irregularity on a bid: "Unit prices as written in words and figures do not agree (Item 8457- 70)." However, the letter did not contain explicit advice as to DOT's unwritten policy. On February 5, 1987 Barefield wrote a second letter to CSAMS indicating that there were several discrepancies in its bid proposal. These included: (a) the name on the cover sheet (CSAMS and Continental Shelf Associates, Inc.) did not agree with the name (CSAMS) in other parts of the bid, (b) unit prices as written in words and figures did not agree, (c) an incomplete affidavit was filed, and (d) an incorrect MBE Certification and incomplete Utilization Sheets were submitted. The latter two errors were related to the discrepancy in the names. However, the letter stated that "no further action is requested by you at this time," and that the letter was to serve as a reminder that in the future the irregularities could cause petitioner's bid to be rejected. Petitioner's bid was accepted as being appropriate but with the substantially higher bid price of $265,016.59. The error made by CSAMS is a common one. Indeed, it was stated the same mistake is made by contractors on "several bids during each letting." Even so, DOT has not considered providing some special instruction or rule to clarify this matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner be awarded the contract on State Job No. 08150- 3412. DONE AND ORDERED this 22nd day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of April, 1987.
