The Issue Whether the Respondent, School Board of Broward County, Florida (Respondent or Board), may reject all bids as proposed for Bid No. 2002-02-FC, Group A1, or whether such action is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact The Respondent is the entity charged with the responsibility of governing the public schools within the Broward County School District. As such, the acquisition of school properties and attendant improvements fall within the Board's legal authority. These cases involve the procurement of relocatable buildings suitable for classroom purposes. Pursuant to its authority, on or about December 27, 2002, the Respondent issued a bid that is the subject matter of the instant challenge. The bid, identified in this record as Bid 2002-02-FC, sought proposals for the procurement of district-wide relocatable buildings. In a prior time these buildings were known as "portable classrooms" or "portables." In the post-Hurricane Andrew world, these structures are now pre-engineered and constructed of concrete or steel (or a hybrid of both) and must be, by design, capable of being relocated to various sites. The Petitioners, Royal and Padula jointly, and the Intervenor, James B. Pirtle Construction Company, Inc. (Pirtle or Intervenor), design, construct, and install such structures. In these cases the bid sought several distinct proposals. First, the project sought vendors who would provide and deliver concrete relocatable buildings (Group A1). Group A2 (not at issue in this proceeding) sought steel relocatable buildings. Group B (also not at issue in the instant case) sought site adaptation prices for landscaping, lighted covered walkways, steps, ramps, and other engineering incidental to the installation of the buildings. The advertisement for the bid carried the same generic information as to all groups. The bid documents also contained many terms that were applicable to all groups. Pertinent to the issues of these cases are the following excerpts from the bid document (Joint Exhibit 2). The order of the excerpts should not suggest any significance. The excerpts are listed in this manner solely for convenience sake: BASIS OF AWARD In order to meet the needs of the school system . . . each Award will be . . . up to three responsive and responsible bidders meeting specifications, terms and conditions. Individual projects will be issued . . . based upon lowest cost among one or more bidders per project as determined by the project manager. Therefore, it is necessary to bid on every item in the group, and all items in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on Document 00410 Bid Form. SBBC [the Respondent] reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) work may be issued to multiple contractors if in the opinion of The School Board of Broward County, Florida or its staff the work cannot be completed by a single contractor in the specified time such as a Summer, Winter or Spring Break or if it is in the best interest of SBBC to do so regardless of reason. ARTICLE 4 BIDDING PROCEDURES 4.01 FORM AND STYLE OF BIDS A. Bids shall be submitted on forms identical to Document 00410, Bid Form, and other standard forms included with the Bidding Documents. The following documents are required to be submitted with the Bid: * * * SIGNED SEALED ARCHITECTURAL AND ENGINEERING DESIGN DRAWINGS OF THE STRUCTURES TO BE PROVIDED (FOR RELOCATABLE BUILDINGS BID ONLY) 5.03 REJECTION OF BIDS AND IRREGULAR PROPOSALS * * * The Owner shall have the right to reject any or all Bids, reject a Bid not accompanied by a required bid security, good faith deposit, or by other data required by the Bid Documents, or reject a Bid which is in any way incomplete, irregular or otherwise not Responsive. The Owner may waive any formality in the bid requirements and award or not award the contract in the best interests of The School Board of Broward County, Florida. (Emphasis in original not shown) In addition to the foregoing, the bid documents contained detailed and specific design criteria that set forth information such as the slope of roofs, the roof spans, the mechanical systems, ventilation, plumbing, windows, and stoops. These design criteria covered hundreds of topics and encompassed virtually every facet of the structures. To review each bid proposal as to whether each design specification was met would require countless man-hours. The issue of how to review the bid proposals was not adequately anticipated by the Respondent. From the outset the bid document evolved from unusual circumstances. Whether the bid document was intended to be a request for proposals (RFP) or an invitation to bid (ITB) was a primary confusion among the Board's staff. If the proposals were to be deemed responsive or not and then ranked solely on price (thus making the bid process more like an ITB) how could staff effectively determine the threshold question of responsiveness? If the proposals were to be ranked based upon a point or qualitative approach (more like an RFP) where were the criteria by which to score the proposals? In fact, there were no objective criteria disclosed in the bid document by which a proposal could be evaluated. More curious is that no bidder brought this lack of evaluation criteria to the Board's attention during the mandatory bidder's conference. Moreover, no one challenged the bid specifications. Presumably, the bidders believed it was an "all or nothing" award. That is, if they were the lowest responsive bidder, they would receive the award. The question of who would be responsive and how that decision would be resolved did not come to light until after the bids had been opened. At the mandatory bidders' conference conducted on January 14, 2003, the bidders posed questions in the form of requests for information. In response, the Respondent issued six addenda intended to cover the questions posed. None of the responses addressed how the bid proposals would be evaluated. If anything, Addendum No. 3 added to confusion related to what documents must be submitted with the bid proposal. More specifically, Addendum No. 3 provided, in pertinent part: [Addendum 3, question and response to inquiry] 9. Can schematics be submitted with the bid instead of the signed and sealed architectural and engineering design drawings of the structures that are requested in Document Article 4.01.A.6? Response: Signed and Sealed Architectural/Structural Drawings are required to be submitted with the Bid. The Requirement for Mechanical and Electrical signed and sealed drawing is waived, however all engineering associated with the Relocatable Buildings will require engineer of record signed and sealed drawings and calculations prior to issuance of building permit DRC review. Nevertheless, when the bid proposals were opened on March 4, 2003, the Petitioners and the Intervenor were found to be the three lowest bidders. If responsive, the Intervenor would be considered the lowest bidder with the Petitioners being considered alternate vendors for the procurement. Unsatisfied with the preliminary determination that the Intervenor was the lowest bidder, the Petitioners timely challenged the bid award. The Petitioners maintained that the Intervenor had not timely provided sealed design drawings as required by the bid document. Petitioners argued that the Intervenor had attempted to impermissibly amend their proposal by late-filing a set of structural drawings for the bid. Thus the initial bid protest sought to determine what design drawings were required by the bid and whether the Intervenor had timely supplied such drawings. The Petitioners contended that the Intervenor's submittal should be rejected as non-responsive to the bid. Whether they had complied with the full dictates of the bid requirements was potentially at issue as well. While the initial bid protest was referred to the Division of Administrative Hearings and scheduled for formal hearing, the parties continued to attempt to resolve the issues. It was apparent that the bidders had not submitted identical proposals. How the proposed products had been compared and evaluated was difficult to determine. From the Respondent's committee members came the disclosure that the decision of determining whether the bidders had complied with the bid ultimately came from three fashioned questions. If the structure proposed was pre- engineered, relocatable to various sites, and suitable for educational purposes, the entry was deemed responsive. Based upon this assessment the Petitioners and the Intervenor were deemed responsive and their bids ranked based upon price. This approach did nothing to discern if the designs were comparable in quality, if they met the bid design criteria, or if the drawings were even sufficient to comply with the dictates of the bid. The first posting of the bid award for Group A1 was entered March 18, 2003. On March 21, 2003, the Petitioners timely filed their notices of intent to protest the award of Group A1 to the Intervenor. Thereafter they timely filed the petitions to protest the award and the initial protest was forwarded to the Division of Administrative Hearings. The protests did not encompass Group A2 or Group B. No bidder protested the proposed awards for Group A2 or Group B. In fact, the Respondent went forward on those procurements and awarded contracts for those groups on April 1, 2003. The Respondent did not award the contract award for the Group at issue in this proceeding. It must be noted that the instant procurement is not the Board's first experience with the procurement of concrete relocatable classrooms. In fact, the Board has purchased similar structures through a procurement contract that the Palm Beach County School Board holds with its vendors. One of the Respondent's concerns when the instant bids were reviewed was why the cost per unit for the bids in this case was higher than the Palm Beach County amount. As it turned out, the installation economy of multiple units at one site directly impacts the cost of the relocatable structures. Royal confirmed this information after the bids had been opened. When the Respondent's staff met with its counsel in preparation for the initial bid dispute (before the Board elected to reject all bids) the cost of the bid, the lack of full evaluation of the bidders' proposals, and the issues of the first protest were openly discussed. By that time any irregularities with the bid documents could not be repaired as to the contracts already awarded, but as to the instant matter the Respondent could revisit the circumstances and determine its best course. As a result of that reassessment, the Respondent elected to reject all bids regarding this group and attempt to re-bid the procurement with more certain terms. To that end on May 9, 2003, the Respondent issued a revised bid decision that provided in pertinent part: The Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on June 3, 2003, reject all bids received for Group A1 and authorize revising the bidding documents and re-bidding. The rejection of all bids received for Group A1 is made due to serious flaws and ambiguities contained in Document 00200 4.01.A-6 as modified by Addendum No. 3. The Division intends to revise the bidding documents to delete the requirements that bidders submit plans with the bids; include ranges of unit quantities within the bid form; include one or more additional types of construction of the classroom buildings including a composite concrete/steel structure; and incorporate within the new Invitation to Bid all revised terms and conditions that were released through addenda in this procurement. The Petitioners timely filed protests regarding this new decision by the Board and the instant action ensued. By issuing the revised decision to reject all bids the Respondent intended to resolve all issues and to cure the perceived problem with the lack of consistent evaluation of the bidders' proposals. More specifically, the Respondent would be able to assure that the project design could comport with the specifications sought; specify whether architectural or engineering drawings were required and when (it was hoped that the confusion over "architect" vs. "engineer" could be eliminated); and obtain a substantial discount based upon economies from multi-unit purchases for a single site. None of the objectives sought were pre-textual or contrived. Additionally, by avoiding any process that would require a detailed reviewed of the bidders' proposals, countless man- hours could be saved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a Final Order affirming the decision to reject all bids in this matter. DONE AND ENTERED this 20th day of November 2003 in Tallahassee, Leon County, Florida. S ___________________________________ D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Usher Larry Brown, Esquire Brown, Salzman, Weiss & Garganese, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Steven L. Schwarzberg, Esquire Schwarzberg & Associates Esperante, Suite 210 222 Lakeview Avenue West Palm Beach, Florida 33401 Thomas R. Shahady, Esquire Adorno & Yoss, P.A. 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
Findings Of Fact On five dates in June and July, 1988, Respondent advertised in The Orlando Sentinel newspaper its Invitation to Bid for the project known as High School "BB." The advertisement announced that bids would be received at 2:00 p.m. on August 4, 1988, at which time all bids would be publicly opened. The advertisement stated that Respondent reserved the right to waive irregularities. The Invitation to Bid stated that bids received after the deadline "will be returned unopened" and bids "received on time" will be opened publicly. The Invitation to Bid also stated: "The Owner reserves the right to waive any informality or irregularity in any bid received when such a waiver is in the best interest of the Owner. The contract would be awarded, according to the Invitation to Bid, within 45 days after the opening of bids. The location designated for the opening of the bids was the Facilities Services building located at 6200 Chancellor Drive, Orlando, Florida. The bids were opened in a conference room within the building. Robert Gallardo, who is Respondent's Director of School Planning and Construction, was in charge of the bidding process. Mr. Gallardo has been in this position for six years. During this time, he has been responsible for the majority of school construction bids for Respondent. He estimates that he has supervised ten such bids. On August 4, 1988, Mr. Gallardo worked in his office in the Facilities Services building until 1:55 p.m. At that time, he asked his secretary if the bid tabulation forms had been prepared, and, with the forms, he left his office for the conference room where the bids were to be opened. Mr. Gallardo entered the conference room, which was occupied by a number of bidders' representatives, at 1:58 p.m., according to the clock on the wall. At a few seconds before 2:00 p.m., he first spoke, asking that all bids be handed in. He then asked his secretary to call the front desk to see if any bids had been turned in there and needed to be brought down the hall into the conference room. This was a normal procedure. In past bids, some bidders left their bids with the receptionist at the front desk. Prior to obtaining any response from his secretary who was talking on a phone in the conference room, Mr. Gallardo announced his name and position and announced that he was going to open bids. He then picked up a sealed bid from the pile of sealed bids in front of him. As he was about to open the envelope, at or about 30 seconds past 2:00 p.m., a man entered the conference room and said that he had a bid to deliver. The man disclosed the bidder which he represented, but Mr. Gallardo did not clearly hear the name and did not know whose bid was being offered to him. Mr. Gallardo accepted the bid and placed it at the bottom of the pile. The late bid was from Intervenor. A few seconds after it was accepted Mr. Gallardo opened the first bid. A few seconds after that, another man entered the conference room and attempted to deliver a bid. Mr. Gallardo refused to accept the bid because, as he explained, the first bid had already been opened. Mr. Gallardo's practice has consistently been to accept late bids, provided they are delivered prior to the opening of the first bid. Mr. Gallardo had not previously known of Intervenor, which had never previously even submitted a bid on a school job being let for bid by Respondent. Mr. Gallardo's only prior contact with Intervenor's representative who delivered the bid was seeing the man in the building, along with other bidders' representatives, prior to the opening of the bids; however, Mr. Gallardo did not know who the man represented. There was no fraud or collusion in the acceptance of the late bid. There was no evidence that, under the facts of this case, Respondent abused its discretion in accepting Intervenor's late bid. Petitioner's bid was lowest among the bids delivered prior to 2:00 p.m. However, Intervenor's bid was over $500,000 lower than Petitioner's bid on a project costing in excess of $25 million. Respondent has confirmed Mr. Gallardo's decision not to reject Intervenor's bid as late. On August 16, 1988, Respondent published the agenda for the next school board meeting, which was scheduled for August 23, 1988. One of the items to be taken up was the award of the contract for High School "BB." By letter dated August 18, 1988, Petitioner declined Respondent's invitation to participate in what the parties referred to as an informal hearing at the August 23 school board meeting. Threatening unspecified sanctions under state and federal law if Respondent awarded the contract at the August 23 meeting, Petitioner demanded a formal hearing and asserted that the bidding process should be stayed until resolution of the protest, under Section 120.5361 [sic -- apparently referring to Section 120.53(5)(c)]. By memorandum dated August 23, 1988, Respondent's attorney opined that Rule 6A-2.016(7) did not require Respondent to utilize the Section 120.53(5) bid protest procedures, but, out of an abundance of caution and in the interest of expediting resolution of the dispute, recommended the referral of Petitioner's protest to the Division of Administrative Hearings. By letter dated August 23, 1988, Respondent referred the protest to the Division of Administrative Hearings for a formal hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the bid protest of Petitioner. DONE and RECOMMENDED this 15th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4078BID Treatment Accorded Petitioner's Proposed Findings of Fact 1. Adopted except to the extent that "timely" implies that Intervenor's bid was improperly accepted. Such an implication is rejected as legal argument. 2 and 4. Adopted in substance. 3. Rejected as irrelevant. 5-7. Rejected as not findings of fact except that the inference of Intervenor's efficient utilization of time following the deadline is rejected as unsupported by the evidence and irrelevant. 8-9. Adopted to the extent relevant. 10-11. Rejected as irrelevant. 12-15. Rejected as subordinate to the procedures set forth in the Invitation to Bid and advertisement, especially concerning the waiver of irregularities. First sentence adopted. Second sentence rejected as recitation of testimony through semicolon and irrelevant as to remainder except that the basis for Mr. Gallardo's decision is adopted and modified to add that he accepted the late bid in accordance win his past practice. Petitioner proved all of the facts in this proposed finding except that it could have used effectively any additional time. In any event, all of the facts in this paragraph are irrelevant and are rejected for this reason. The theory of Petitioner's case, as well as the evidence that it offered, was that in this and every other major bid, the last minutes before the deadline are critical due to the unwillingness or inability of subcontractors to supply critical numbers substantially before the deadline. This theory proves too much because, if true, the Hewitt court would have been constrained to consider such a universal fact and thereby would have prevented the agency in that case from accepting the late bid. The Hewitt case stands for the proposition that, in general, an agency may accept late bids before the first bid is opened. It is incumbent upon a frustrated bidder to show that the agency abused its discretion, under the circumstances of the individual case. Petitioner has in essence suggested that the burden is upon the agency to show that it did not abuse its discretion, at least once the frustrated bidder shows that it spent a lot of time and money in preparing its bid and could have used more time. To the contrary, Hewitt tells the frustrated bidder that it must find evidence of impropriety, such as fraud or collusion, in the agency's acceptance of the late bid. This mandate is especially clear in light of the recent Groves-Watkins decision. 18-19 and 22. Rejected as irrelevant. See Paragraph 17. Adopted. 20A-20F. Rejected as legal argument. First sentence rejected as subordinate and recitation of testimony. Second sentence rejected as speculative. Rejected as speculative and unsupported by the evidence. Rejected as irrelevant and unsupported by the evidence. 24A-27. Rejected as legal argument. Adopted in substance. Rejected as not finding of fact. Treatment Accorded Respondent/Intervenor's Joint Proposed Findings of Fact 1-2. Adopted. 3-4. Rejected as not finding of fact. 5-6. Adopted in substance. Rejected as irrelevant. 8. Adopted in substance. 9-12. Adopted in substance except that Mr. Gallardo did not arrive in the conference room "several minutes" before 2:00 p.m. and Intervenor's representative arrived about 30 seconds after 2:00 p.m. 13. Rejected as irrelevant. 14-15. Adopted in substance. Rejected as unnecessary. Adopted. Rejected as irrelevant. See Paragraph 17 in Petitioner's proposed findings. COPIES FURNISHED: Joseph G. Thresher, Esquire Dykema Gossett Ashley Tower Suite 1400 100 South Ashley Drive Post Office Box 1050 Tampa, Florida 33601-1050 William M. Rowland, Jr., Esquire Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue Orlando, Florida 32803 Scott H. Johnson, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, Florida 32801 James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 North Tampa Avenue Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact The invitation to bid on state Project Nos. 86906-9093, 86906-9094, and 86906-9085 (the "ITB") contained, among other things, 43 pages of Technical Specifications Roadside and Slope Mowing ("Technical Specifications"). Paragraph VI.A. of the Technical Specifications contained the following provision: When mowing areas within ten feet of the travel way, the equipment shall be operated in the direction of the traffic. This provision does not apply when the specific worksite (sic) is protected in accordance with the Florida Department of Transportation Roadway and Traffic Design standards [attached]. 3/ Respondent amended the ITB by letter dated May 1, 1990, which contained Addendum Nos. 1 and 2. Addendum No. 1 amended the invitations to bid on State Project Nos. 86906-9093 and 86906-9094 by deleting the "last" word "attached" from Paragraph VI.A. Addendum No. 2 amended the invitations to bid on State Project No. 86906-9085 by deleting the "last" word "attached" from Paragraph VI.A. No other changes were made in the amendments to the invitations to bid on the three state projects at issue in this proceeding ("Amended ITB"). The ITB contained a requirement that all bidders attend a Mandatory Pre-Bid Conference to allow bidders an opportunity to speak to Respondent's maintenance engineers about any concerns over the ITB. Petitioner attended the Mandatory Pre-Bid Conference conducted on April 26, 1990, for the ITB. 4/ The ITB and the Amended ITB contained a requirement that each bidder visually inspect the roadside areas to be mowed. Petitioner knew of the requirement for visual inspection and complied with that requirement. Petitioner had previous experience in mowing roadside areas for Respondent. The Florida Department of Transportation Roadway and Traffic Design standards ("Standards Index") was not attached to either the ITB or the Amended ITB. Paragraph 9 of the General District Contract Specifications provided that the successful bidder "...shall adhere to the requirements of Part VI of the Manual on Uniform Traffic Control Devices ("MUTCD")." Neither the ITB nor the Amended ITB included a copy of either the MUTCD or Part VI of the MUTCD. Petitioner received the ITB on April 12, 1990, and requested a copy of the Standards Index at that time from Teresa Martin, Assistant District Contracts Administrator, District Four, Florida Department of Transportation. Ms. Martin advised Petitioner on April 12, 1990, that no copies of the Standards Index were available locally and further advised Petitioner of the location and means for obtaining a copy of the Standards Index in Tallahassee, Florida. Petitioner made no attempt to obtain a copy of the Standards Index at that time. Petitioner again requested a copy of the Standards Index from Ms. Martin on May 2, 1990, and was advised again at that time of the location and means of obtaining a copy of the Standards Index. The bid package did not fail to contain any "plan" referred to in: Section 4, Scope of Work, paragraphs 4.1 and 4.2; Section 5, Control of the Work, paragraph 5.2; Section 12, Work Assignment and Planning for Routine Contract Maintenance, paragraphs 2 and 4-6, page 5, paragraph 1.2, page 20, Section II D., III A., page 24, Section IX, and page 64, Proposal. Petitioner presented no evidence or authority describing the applicable standard for defining a "plan". The ITB and Amended ITB contain a description of which roadsides are to be mowed, the manner in which the work should be performed, each pay item and the quantity estimated for each item, the estimated number of mowing cycles, and numerous other detailed provisions regarding mowing operations, operator safety, equipment maintenance, and conversion charts. While the ITB and Amended ITB are standard forms of contract issued by the Department of General Services, they are tailored to meet the specific needs of a mowing contract by means of the Technical Specifications. In the absence of evidence or authority to the contrary from Petitioner, the ITB and Amended ITB are found to include all relevant plans. Respondent failed to include either the "form of Contract" or "Bond" referred to in pages 1, 10, and 64 of the ITB and Amended ITB. Page 64 contained a form of bid proposal which required each bidder to sign a statement that the bidder had "...carefully and to [its] satisfaction examined the...form of Contract and Bond.. The ITB and Amended ITB did not fail to state standards for what is "customary to the mowing operation". The ITB and Amended ITB were prepared on a standard form of contract issued by the Department of General Services and used by Respondent to solicit bids for various types of commodities and services. The ITB and Amended ITB were used to solicit mowing services for specified roadside areas In Broward County, Florida. They were composed of general specifications, bidding documents, technical specifications, and mowing guidelines. The term "custom" by definition refers to the prevailing practice that has been established over time within a geographical area rather than the written terms of a contract. 5/ The definition of grass or vegetated roadside areas to be mowed, which is set forth in Section I, Description A, page 19, excludes certain plants and vines which are present in the areas to be mowed. 6/ Such a definition does not take into account the different toughness and clumping characteristics of each type of grass or weed within the mowing area. Differences in toughness and clumping characteristics of grasses and weeds can adversely alter the uniformity of cutting height. The Technical specifications neither define the term "routine mowing", as used in Sections II.D. and III.A., nor prescribe how high grass or weeds should be allowed to grow before Respondent issues a work order or a notice to proceed. Grass, weeds, plants, and vines in a roadside area that are left for several months without a work order being issued can grow to a height of 10 feet, develop very hard stems, or lay down during mowing and later rebound. The Technical Specifications do not contain a definition of minimum mower size. The frequency with which Respondent issues work orders or notices to proceed depends on growth conditions in the particular roadside area including rain and drought. The topography of the roadside areas to be mowed includes holes, boulders, and un-repaired washouts. The topographical characteristics of the roadside areas and the toughness and clumping characteristics of the grasses and weeds in the roadside areas adversely affect the ability of a successful bidder to comply with cutting height and green streak requirements in the Technical Specifications. 7/ The ITB and Amended ITB were neither arbitrary, capricious, nor beyond Respondent's discretion. The terms of the ITB and Amended ITB were not inherently uncertain or unreasonable. No evidence was presented that Respondent abused its discretion in soliciting the bids, that the accepted bid, if any, was not a reasonable price for the work solicited, that the law was not complied with, or that the contract to be awarded was not fair and capable of just and lawful enforcement. The ITB and Amended ITB were sufficiently precise to protect the public against collusive contracts, prevent favoritism toward contractors, and secure fair competition upon equal terms to all bidders. The ITB and Amended ITB afforded a basis for an exact comparison of bids among all bidders and did not reserve to an officer of the public body the power to make exceptions, releases, and modifications that would afford opportunities for favoritism after the contract is let.
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 3rd day of August, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1990.
The Issue The issue addressed in this proceeding is whether Petitioner or Intervenor submitted the lowest and best bid on Project No. RS-40.
Findings Of Fact On June 4, 1993, Respondent issued an invitation to bid (ITB) for Project No. RS-40 to develop the site for the future construction of a work camp in Holmes County. The work under Project No. RS-40 specifically included site preparation, grading, electrical work, sewage, utilities and fencing. The bids were due to be opened on June 29, 1993. Ten bids were submitted to the Department, including Petitioner, Panhandle Grading and Paving, Inc., and Intervenor's, Hewitt Contracting Co., Inc., bids. Panhandle's bid total was $815,734.00, and was the lowest monetary bid. Hewitt's bid total was $847,554.00, and was the third lowest monetary bid. Baxter Asphalt had the second lowest monetary bid. However, both Baxter and Panhandle's bids were disqualified as nonresponsive because neither company complied with the Department's prequalification requirements. Baxter did not protest the Department's bid award to Hewitt and Baxter is not a party to this action. On the other hand, Hewitt's bid was accepted since Hewitt had complied with the Department's prequalification requirements and was otherwise responsive to the ITB. Therefore, the Department awarded Hewitt the contract for Project No. RS-40 since in its opinion Hewitt was the lowest responsive bid on the project. The ITB clearly notified potential bidders that they must prequalify with the Department. The ITB stated, in pertinent part: All bidders must submit evidence that they are qualified to perform the work in accordance with Section B, paragraph B-2 of the specifications. Evidence of eligibility must be submitted to the owner (defined in article B-1) not later than five (5) calendar days prior to bid date. Additionally, the cover sheet for the bid documents admonished all bidders to submit evidence of their eligibility to bid to Respondent at least five (5) days before the bid letting. The cover sheet stated: All bidders on this project must prequalify according to the provisions of section B, "Instructions to Bidders", article B-2. Evidence of eligibility must be submitted to the owner (defined in article B-1) not later than five (5) calendar days prior to bid date. Section B-1 of the bid documents defines the owner of Project RS-40 as the Department of Corrections. Section B-2 of the bid documents instructed all bidders to prequalify with Respondent to participate in the bid process. Section B-2 states: Prequalification: Each bidder whose field is governed by Chapter 399, 489, and 633 of the Florida Statutes for licensure will be prequalified by the Department to participate in the bid process for a specific field or area of construction based on the bidder's area of license or certification. Bidder qualification requirements and procedures are established by the State of Florida, Department of General Services rule (Chapter 13D-11, Florida Administrative Code) and by the bidding conditions and specifications. Failure of the bidder to strictly meet and follow all such requirements and procedures may result in bid rejection or disqualification for contract award. For the bidder's convenience, the provisions of Rule 13D-11.004 Bidder's Qualifications Requirements and Procedures are set forth below. Requirements: Each potential bidder must present, or have presented within this current biennium (July 1 through June 30) odd number years, evidence that: He is authorized to perform the work required by these documents in accordance with the applicable provisions of Florida Statutes governing contractors, as a general (Insert contractor designation) contractor. If the Bidder is a corporation, he must submit evidence that this corporation is properly registered with the State of Florida, Department of State, Division of Corporations, and holds a current State Corporation Charter Number in accordance with the Florida Statutes. (*This sentence to be deleted by Architect- Engineer if not applicable.) All interested firms who have NOT qualified within the current biennium (July 1 thru June 30) odd number years must submit evidence of their eligibility during the bidding period, not later than five (5) calendar days (received date) prior to the bid date. The Owner may, for good cause, allow a firm to correct any deficiencies in evidence submitted. Notice of qualification will be mailed to each bidder, but a Bidder may not receive the written notification prior to a bid opening. He may learn his status prior to the bid opening time by calling the Owner (Department of Corrections), Bureau of Facilities Services at 904-487-1330). The Bidder shall submit the required evidence of eligibility to the Department of Corrections, Bureau of Facilities Services, 2601 Blairstone Road, Tallahassee, Florida 32399-2500. (emphasis supplied) All information shall indicate the full name, address and telephone number of the individual, partnership, or corporation, and the name of the contact person. Include a self-addressed stamped envelope. The names of all bidders will be checked against the list of contractors who have prequalified in accordance with the requirements of Section B-2. Additionally, a careful reading of Rule 13D-11, Florida Administrative Code, reveals that the information required under the Rule should be submitted to the owner of the project involved in the bid process, i.e. the Department of Corrections in this case. A contractor is the person who is qualified and responsible for an entire project and includes the person who submits a bid for a given project. Section 489.105(3), Florida Statutes. A general contractor is a person who is unlimited as to the type of work they can do, unless a specific type of license is required by Chapter 489, Florida Statutes. Section 489.105(3)(a), Florida Statutes. See also Section 489.113, Florida Statutes. Under Chapter 489, Florida Statutes, a contractor can be a certified general contractor or a registered general contractor. A certified general contractor can contract in any jurisdiction in the state without fulfilling the competency requirements of the local jurisdiction. Section 489.105(8), Florida Statutes. On the other hand, a registered general contractor is required by Section 489.117(2), Florida Statutes, to comply with all local licensing requirements. Registration with the state is specific for a given local jurisdiction and cannot be used in another jurisdiction. Section 489.113(2), Florida Statutes. In fact, Section 489.113(1), Florida Statutes, requires a contractor to be registered for a specific jurisdiction prior to engaging in the business of contracting. Additionally, a contractor must subcontract electrical, mechanical and plumbing work unless the contractor is state certified or holds the specific trade license required by the appropriate local authority if such a local license is required. Section 489.113(3), Florida Statutes. Importantly, Chapter 489, Florida Statutes, permits a person to act as a prime contractor, including submitting a bid on a project, where the bulk of the work under the contract is covered by the contractor's specific license, as long as the parts of the project for which he is not licensed are subcontracted to persons holding an appropriate license. Section 489.113(9), Florida Statutes. Respondent requires prequalification of contractors in advance of its bid lettings to ensure that everyone who bids is legally or financially qualified to do the work required in the bid. The five (5) day deadline prior to the bid letting gives Respondent's staff an opportunity to resolve any irregularities in a bidder's prequalification materials prior to the letting. Indeed, if a contractor is state registered, as opposed to state certified, Respondent's staff, prior to the bid, routinely contacts the local government with jurisdiction over the building site to determine if there are any local licensing requirements and if there are, to determine if the bidder/contractor is locally licensed in that jurisdiction. This process avoids the waste of time involved in reviewing a bid package from a bidder who cannot ultimately perform the work called for in the bid. More importantly, this process prevents a locally unlicensed registered contractor from having the ability to void a contract at its will after the bids are opened since it would be unlawful for the contractor to have either bid on a project located in a jurisdiction where the contractor was not licensed or enter into such a contract. The ability to refuse an award of a bid clearly constitutes an unfair advantage to the locally unlicensed registered contractor and could not be waived as immaterial by an agency. In this case, Hewitt is a certified general contractor and is therefore automatically qualified to work in Holmes County. Panhandle is a registered general contractor and can only bid on Project RS-40 if it has met the requirements for general contracting in Holmes County. The prequalification process requires a bidder who has not prequalified with Respondent during the current biennium to submit to Respondent his current state contractor license certification or registration, as well as his current corporate charter registration (if a corporation). When Respondent opened the bids for the Project, Petitioner had neither prequalified with Respondent nor obtained a license or certification of competency to engage in contracting work in Holmes County. Petitioner thought it was already prequalified under its prequalification with the Department of Management Services. However, prequalification with the Department of Management Services does not meet the requirements of the ITB which requires prequalification with the Department of Corrections. Panhandle did obtain the necessary licensure after submitting its bid and after the bids were opened. However, such belated licensure does not negate the unfair advantage created by Panhandle's failure to prequalify and be properly licensed prior to the bid opening as required by the bid documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order in this case dismissing Petitioner's formal protest and awarding the contract for the Project to Intervenor. DONE AND ENTERED this 4th day of October, 1993, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1993.
The Issue Whether Petitioner's protest challenging the Department of Transportation's Notice of Intent to Award Contract No. E-6A14, FIN Project No. 251999-1-32-01/251999-1-52-01, to A-1 Duran Roofing, Inc., should be sustained in whole or in part.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement the stipulations of fact set forth in the parties' Joint Pre-Hearing Stipulation: 3/ The District VI Warehouse. The District VI (District) warehouse is used to store archived records, paper supplies, and surplus equipment. In addition, it houses the District's divers and their gear. The District Warehouse Roof Since at least the time of the first solicitation, the District warehouse roof has had a ponding problem and been in disrepair. The condition of the roof has deteriorated to such an extent that there is now an urgent need to replace it. The current roof has five overflow drains or scuppers. The Department has determined that additional scuppers are necessary to provide adequate drainage. The List of Interested and Prequalified Contractors When the District warehouse roof replacement project was originally advertised in 1997, 25 contractors, including Petitioner, A-1, Zurqui, Grace, ART, and Southern Coast Enterprises, requested that the Department send them information about the project. The Department compiled a list containing these 25 contractors' names, addresses, and telephone and fax numbers. The Department subsequently prequalified each of these 25 contractors. Petitioner Pedro Glaria is Petitioner's president. He is now, and has been since 1981, licensed in the State of Florida as both a general contractor and a professional engineer. Petitioner currently has two contracts with the Department, the dollar values of which are $140,000.00 and $110.00.00. Both contracts were awarded during the summer of 2000. They each require Petitioner to provide "roadside mowing" and "roadside litter pickup" services. Since its incorporation in 1989, Petitioner has had a total of 10 to 12 contracts with the Department, at least one of which involved roofing work. At no time has the Department indicated to Mr. Glaria that it has been dissatisfied with Petitioner's work. The Third Solicitation In the third solicitation, as in the first two solicitations, the District warehouse roof replacement project was advertised as a design-build project (involving both design and construction services). The Notice of Informal Bid (No. 6012DS) that the Department used to solicit bids contained the following "work description," "evaluation criteria," and "project information": Work Description Sealed written bids are requested from licensed roofing contractors, general building contractors, professional architectural engineers or professional consultant services for the purpose of a design-build project consisting of roof replacement for the District warehouse building located at the District office complex, 1000 Northwest 111th Avenue, Miami, Florida. The bidder shall provide all labor, materials, supplies, travel, consultant inspection services, shop drawing reviews to design, and furnish plans and specifications necessary to perform all work required for this project. Evaluation Criteria The Florida Department of Transportation (FDOT) will evaluate the technical bid along with the price bid at the same time. The Department may award this contract to the firm whose proposal meets the needs of the Department as outlined in the technical bid criteria, and to the responsible, responsive bidder submitting the lowest total bid. Technical Bid Will Consist of the Following Experience and qualifications of personnel Plans and specifications. 3). Design Warranty Contract time Price Bid 3). Certified Minority Business Enterprise (CMBE) Participation . . . Project Information ESTIMATED BUDGET AMOUNT: N/A With respect to a protest of the specifications contained in an Invitation to Bid or in a Request for Proposals, the Notice of Protest shall be filed in writing within seventy two (72) hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an Invitation to Bid or Request for Proposals." A formal written protest stating with particularity the facts and law upon which the protest is based and in substantially the same form as a petition in accordance with Rule 60-4.012, F.A.C., shall be filed within ten (10) days after filing of the notice of protest. The ten (10) day period includes Saturdays, Sundays and Legal Holidays; provided, however, if the last day is a Saturday, Sunday or Legal Holiday the period shall run until the end of the next day which is neither a Saturday, Sunday or Legal Holiday. Any person who files an action protesting an award shall post with the Department, at the time of filing the formal written protest, a bond payable to the Department in the amount equal to one percent (1%) of the Department's estimate of the contract amount for the purchase requested or five thousand dollars ($5,000.00), whichever is less, which bond shall be conditioned upon the payment of all costs which may be adjudged against him in the Administrative hearing in which the action is brought and in any subsequent Appellate Court Proceedings. In lieu of a bond, the Department may accept a cashier's check or money order in the amount of the bond. The protest must be filed with The Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee Street, Tallahassee, Florida 32399-0450 THE DEPARTMENT RESERVES THE RIGHT TO REJECT ANY OR ALL PROPOSALS RECEIVED. Exhibit "A" (Attachment V) to the Notice of Informal Bid was the "Scope of Services for Design Build of Replacement Roof at the District Warehouse Building," Section 2.5(a) of which provided as follows: Bidder shall furnish plans and specifications that comply with the South Florida Building Code, Permits Office of the Department of Management Services, and the State Fire Marshall's Office, including but not limited to the following: The design of the roof shall provide for the installation of overflow drains or scuppers in addition to the existing scuppers to prevent an accumulation of water. Petitioner's technical bid, which was prepared by Mr. Glaria, contained a roof design that did not provide for the installation of the additional scuppers required by Section 2.5(a) of Exhibit "A." In Mr. Glaria's professional opinion, these additional scuppers were unnecessary for the design of the roof to comply with the South Florida Building Code. (Petitioner, however, did not file a protest challenging the bid specifications.) By not incorporating the additional scuppers in its design of the roof, Petitioner was able to submit a price bid lower than it could have offered had its design been in compliance with the requirements of Section 2.5(a) of Exhibit "A." All three members of the Department's Technical Review and Awards Committee found Petitioner's technical bid to be non- responsive because it deviated from the requirements of Section 2.5(a) of Exhibit "A.". Had the Department not rejected the Department's technical bid on the grounds that it was non-responsive, Petitioner would have had an unfair competitive advantage over those bidders whose design of the roof included the additional scuppers required by Section 2.5(a) of Exhibit "A." Petitioner's Formal Protest of the Department's announced intention to contract with A-1 contained the following argument concerning the Department's determination that Petitioner's technical bid did not "comply with design criteria for overflow scuppers": FDOT's Technical Panel determined that SPEC failed to comply with the design criteria for overflow scuppers because SPEC did not provide for additional scuppers. . . . The roof already contains five scuppers. As engineer of this design- build project, SPEC determined that additional scuppers were not necessary for proper drainage of the roof. Rather, the roof only necessitated the installation of crickets between the existing scuppers to facilitate drainage of water between the scuppers. The drawing submitted with SPEC's bid reflects the location of the existing scuppers and the use of the crickets to drain any water on the roof. A-1's drawing reflects the use of additional scuppers, but the location of these additional scuppers cannot assist water drainage as the scuppers are located above the crickets, and therefore above roof level, thereby losing any effectiveness. . . . The additional scuppers provided by A-1 will not prevent the accumulation of water as required by section 2.5 and will only create unnecessary expenditure for FDOT. SPEC's design for the drainage of water from the roof is superior to that of A-1, complies with the requirements of the bidding documents and does not require unnecessary expenditure of funds. Accordingly, SPEC should be awarded the project. The Department's December 17, 1998, Notice of Intent Not to Award (Re: Informal Bid No. 6012DS) stated, in pertinent part, as follows: It is the intent of the Department of Transportation to not award the above Contract. This contract will be re- advertised at a later date. . . . ALL BIDS HAVE BEEN REJECTED On January 4, 1999, Petitioner's attorney, Alejandro Espino, Esquire, sent a letter to Department Assistant General Counsel Brian McGrail, which read as follows: This letter confirms our telephone conversation today wherein you stated that the Florida Department of Transportation ("FDOT") rejected all bids on the above referenced project because FDOT intends to rewrite the specification for the mansard roof wood replacement and because FDOT has no available funding for the project. However, you stated that FDOT will not provide a written explanation to SPEC Incorporated or any other bidder for the rejection of the bids for the project. If you believe that the above is not an accurate summary of our conversation, please contact me at your earliest convenience. Best regards. Mr. McGrail responded to Mr. Espino by letter dated January 4, 1999, which read as follows: I am in receipt of your letter this morning regarding our telephone conversation concerning the captioned matter. In response to your rendition of our conversation, I must clarify that I expressed my understanding that the specifications for the project will be reviewed, which may include the issues raised in the protest about the bid specifications, before any further action will be taken by the Department. However, the Department's decision to reject all bids is due to the unavailability of funding for this contract at the present time. I cannot speak to the future of the project with any degree of certainty, nor represent any to you or your client. This is a matter strictly for District VI to decide, and I am not involved in that decision making process. The Department will defend the decision to reject all bids based on the lack of available funding. I refer your attention to Attachment II of Informal Bid #6012DS, Contractual Obligation, Section 1.10 through 1.13. In particular, Cancellation Privileges, regarding the Department's obligations under the Notice of Informal Bid and subsequent agreement shall be subject to and contingent upon the availability of monies appropriated for this contract. Additionally, I am sure that you are aware that the bid documents clearly and repeatedly state the Department's reservation of rights to reject any and all bids for this bid letting. Based on the foregoing, it is clear that the Department's action in rejecting all bids is appropriate under Florida law, if not required, due to the lack of available funds at the present time. If Spec Inc. intends to p[rotest] the Department's decision to reject all bids, I feel it is my responsibility to advise you that the Department will seek any and all costs and attorney fees to which it may be entitled against the protest bond filed in this case. If however, Spec Inc. decides to withdraw the current protests against the intent to award filed on September 28, 1998, and the rejection of all bids filed on December 22, 1998, the Department will agree to return the protest bond in full. After you have had an opportunity to review this matter with your client, please advise at your earliest convenience how Spec Inc., wishes to proceed. Thank you for your cooperation in this matter. I look forward to a prompt response, as the hearing date is approaching rapidly. Mr. Glaria "realized that [Petitioner was] going to have a hard time [in its bid protest] to overcome the issue of lack of funding." In addition, he had the "hope that [Petitioner] would [have the opportunity to] bid the project again for the fourth time." Accordingly, he authorized Mr. Espino to file, on behalf of Petitioner, the following Notice of Voluntary of Dismissal of Formal Protest, dated January 11, 1999: Petitioner, SPEC Incorporated, hereby withdraws its formal protest, dated October 18, 1998, of the Florida Department of Transportation's notice of intent to award Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, to A-1 Duran Roofing, Inc. Upon agreement of counsel for the parties, SPEC Incorporated's bid protest bond will be returned to it. Mr. Espino, in addition, sent the following letter, dated January 11, 1999, to Mr. McGrail: Based on the Florida Department of Transportation's ("FDOT") representation that it rejected all bids for Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, because of the unavailability of funds and because of necessary amendments to the project specifications, SPEC Incorporated hereby withdraws its formal protest of FDOT's notice of intent to reject all bids. As we discussed earlier, FDOT will return SPEC Incorporated's protest bond thirty days after FDOT files . . . the final order in this matter. If you have any questions or comments, please do not hesitate to contact me. Fourth Solicitation The Project is funded through appropriations made by the Legislature in the fixed capital outlay category. 4/ Fixed capital outlay funds are subject to reversion if not obligated (through the execution of a contact or the issuance of a notice of intent to award a contract) within 19 months of their appropriation by the Legislature. In mid-January of 2001, Brenda Garner, the manager of the Department's Fixed Capital Outlay Program, advised Ms. Lyons that, if not obligated by February 1, 2001, a portion of the funds ($45,000.00) appropriated for the Project would revert. Ms. Lyons (who had not been involved, as the District's contract administrator, in the first three solicitations) quickly proceeded (in a day's time) to assemble the documents needed to solicit bids for the Project. These documents included detailed plans and specifications that the District's senior structural engineer and senior project manager had prepared, at Ms. Lyons' request, following the third solicitation, as well as "boilerplate" that the Department uses for non-design-build fixed capital outlay projects like the Project. Ms. Lyons determined that it was unnecessary to advertise for bids and that the Department only needed to solicit bids from three contractors. She selected these three contractors from the list of interested and prequalified contractors that the Department had compiled in the first solicitation. As Ms. Lyons was aware, each of the three contractors she selected (A-1, Zurqui, and Grace) was a Certified Minority Business Enterprise (MBE). She intentionally selected MBE contractors because the District was "trying to meet an MBE goal." Ms. Lyons had some professional familiarity with the three MBE contractors she selected. A-1 had just completed another roofing project for the District, and Zurqui and Grace were performing construction work at the District office complex. Ms. Lyons' decision to not include Petitioner among the three contractors asked to submit bids was not made in bad faith. Inasmuch as the Department was "in a big hurry to get that project done" she did not ask more than three contractors to submit bids. Ms. Lyons required each of the three contractors to first provide proof that it was a licensed general contractor qualified to work on the Project. After receiving such proof, Ms. Lyons then asked the three contractors to bid on the Project. A-1, Zurqui, and Grace submitted their bids on January 25, 2001. The Technical Review and Awards Committee met on January 26, 2001, to review the bids. All three bids were deemed to be responsive. A-1's bid of $58,300.00 was the lowest of the three bids. Neither Zurqui nor Grace protested the Department's proposed decision, announced in its January 26, 2001, Notice of Intent to Award, to award the contract for the Project to A-1. Only Petitioner, which had not been invited to submit a bid and had first learned of the fourth solicitation when Mr. Glaria saw the Notice of Intent to Award while at the District office complex on January 26, 2001, filed a protest.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order rejecting in its entirety Petitioner's protest of the Department's announced intention to award Contract E-6A14 to A-1. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001.
Findings Of Fact The Department of Transportation sought bid proposals for mechanical sweeping on three road projects identified as Project No. 87906-9175, Project No. 87906-9176 and Project No. 87906-9177, which involve street sweeping in Dade County, Florida. The contract documents provided that a mandatory pre-bid conference would be held in Miami on August 7, 1986. The purpose of the pre-bid conference was to answer any questions the contractors might have to assure that the contractors understood the full scope of each of the contracts and to assure the Department that it would receive responsible bids. Two prospective bidders attended the pre-bid conference: Dave Smith & Company and Power Sweeping Services, Inc. Charles Larry Roberts attended the pro-bid conference on the three subject projects as the sole representative of Dave Smith & Company. Florida Sweeping, Petitioner herein, did not exist at the time of the pro-bid conference. Roberts was in attendance at the pro-bid conference from the beginning until the end of the conference. The pre-bid conference would not have been conducted in a different manner had Roberts signed in as agent for Petitioner rather than as agent for Dave Smith & Company. Although there was a mandatory pro-bid conference requirement, the contracts were routine in nature. Prior to the bids being submitted for the subject contracts, the relationship between Dave Smith & Company and Roberts was terminated. Other than the attendance by Roberts at the pre-bid conference, Roberts did not participate in the preparation of the bids on behalf of Dave Smith & Company. After Roberts and Dave Smith & Company terminated their relationship, Roberts chose to submit bids for the contracts himself under the name of Florida Sweeping. Subsequent to the pro-bid conference, Roberts went to the Department and picked up the bid specifications for the three projects, signing his own name as the party receiving the packages. Laurel Bryan, the District Contracts Coordinator, was aware that Roberts signed his own name in picking up the bid specifications. In response to the Department's request for bids, bids were submitted on all three projects on behalf of three bidders: Dave Smith & Company, Power Sweeping Services, Inc., and Petitioner. At the time scheduled for bid opening, Roberts delivered to Bryan the three bids on behalf of Petitioner, at which time they were accepted by Bryan who knew that while Roberts had in fact attended the pre-bid conference, he did not attend the conference in the capacity of representative of Petitioner. She also knew that Roberts had previously bid on other similar projects. At the time the bids were submitted and accepted, they were in sealed envelopes and Bryan was unaware as to which of the three bidders was the low bidder. At the time of the bid opening, the Department made no inquiry as to whether the Dave Smith & Company bids were prepared with the benefit of Roberts' attendance at the pre-bid conference. The bids submitted by all three bidders were opened on August 14, 1986, and tabulated, disclosing that Petitioner was the low bidder with respect to all three contracts. The Department admits that attendance by Roberts at the pre-bid conference as representative of a company other than Petitioner would not affect his ability to bid for and to perform the work under the subject contracts. On August 18, 1986, the Department of Transportation advised Petitioner that its bid proposals had been declared nonresponsive and irregular for two reasons: (a) Petitioner did not send a representative to the mandatory pre-bid conference; and (b) Petitioner did not present adequate proof of ability to obtain a performance bond. Part of the bidding specifications included a document entitled "Instructions to All Bidders". Paragraph 4 of "Instructions to All Bidders" reads as follows: 4. IN ACCORDANCE WITH SECTION 1 OF THE MINI-CONTRACT GENERAL: SPECIFICATIONS, ALL BIDS MUST BE ACCOMPANIED BY PROOF OF THE ABILITY TO ACQUIRE A PERFORMANCE BOND. AS PROOF, ALL BIDS MUST BE ACCOMPANIED BY A NOTARIZED LETTER FROM A BONDING COMPANY, BANK OR OTHER FINANCIAL INSTITUTION STATING THAT THEY INTEND TO ISSUE A BOND IN THE AMOUNT OF YOUR BID, WITHIN THE REQUIRED TIME LIMIT, SHOULD YOUR FIRM BE AWARDED THE CONTRACT. Petitioner with respect to each contract, submitted a notarized letter dated August 12, 1986, from A. W. Bradshaw & Co., Limited. A. W. Bradshaw & Co., Limited, is a financial institution. The letter stated that A. W. Bradshaw & Co., Limited, would "cash" bond any contracts awarded to Petitioner by the State of Florida. Although the Department of Transportation's written requirement concerns a bond from either a surety or insurance company, or from a bank or other financial institution, a cash bond is acceptable to the Department. It is, therefore, not necessary that a bond be provided by a surety. After rejection of Petitioner's bids, the Department determined that Power Sweeping Services, Inc., was the lowest responsible bidder. The bid from Power Sweeping Services, Inc., includes a letter from William Douglas & Associates, an independent insurance agent, as the letter intended to comply with the bonding letter requirement of the Instruction to Bidders. That letter states in part: With regard to Item #1, Qualifying Bonding Company, I have been advised by the present carrier, Southeastern Casualty and Indemnity Company that they do not anticipate any problems in issuing the Payment and Performance Bond in the total aggregate amount of $158,915.70, which consists of the following . . . . The bond letters submitted with the Power Sweeping Services, Inc., bids are not notarized and do not bind any bonding company, bank, other financial institution or even Southeastern Casualty and Indemnity Company, to issue a bond for Power Sweeping. The Department accepted the letter from William Douglas & Associates, Inc., as opposed to requiring a letter directly from Southeastern Casualty and Indemnity Company due to the fact that Bryan had prior independent knowledge of the agent as she had dealt with the agent on previous occasions. If Bryan had any questions about the William Douglas & Associates, Inc., letter, she would have called the agent. Although Bryan could not read the signature on the letter from William Douglas & Associates, Inc., she felt she could recognize the signature of a Mr. Savoie on behalf of William Douglas & Associates, Inc., by virtue of her previous dealings with him. The Department rejected Petitioner's letter from A. W. Bradshaw and Co., Limited, for the following reasons: (a) because Bryan could not read the signature of the person who signed it; and (b) because Bryan did not know the cities or countries or islands where the company was located, did not see a recognizable to her address on the letter, and did not see a recognizable to her telephone number with a three digit area code and a seven digit number. Bryan did not ask Roberts at the bid opening or at any subsequent time where A. W. Bradshaw and Co., Limited, was located, whether A. W. Bradshaw and Co., Limited, was a financial institution, or how A. W. Bradshaw and Co., Limited, could be contacted by telephone. The only reasons why Petitioner's bids were rejected were the two specific reasons stated in the letters of August 18, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding the bid proposals submitted by Florida Sweeping with respect to State Project Nos. 87906-9175, 87906-9176 and 87906-9177, to be the lowest responsive bids, accepting those bids, and awarding the three contracts in question to Petitioner. DONE and RECOMMENDED this 13th day of November 1986, at Tallahassee, Florida. LINDA M. RIGOT 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 13th day of November 1986. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Barry S. Webber, Esquire Post Office Box 8549 Hollywood, Florida 33084-0549 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent acted contrary to the agency's governing statutes, rules or policies, or the bid specifications in its proposed decision to award a contract to Intervenor Xerox Corporation pursuant to Request for Proposal ("RFP") No. 07-015- 040-RFP.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: On December 15, 2006, PCS issued the 2007 RFP, entitled "Copier Program--Request for Proposals." The 2007 RFP was intended to provide a comprehensive copier program for the entire Pinellas County School District from the award date of the bid, then anticipated to be February 20, 2007, through June 30, 2012. The purpose of the 2007 RFP was stated as follows in Section 3.1 of the General Information section: [PCS] requests proposals from experienced and qualified vendors to provide a comprehensive copier program countywide which fulfills the priorities and needs expressed by district focus groups. PCS wishes to partner with a qualified vendor who will continue to improve information sharing, right size number of assets, and reduce the number of device types while lowering the district's cost. Vendors may propose whatever program they feel best meets the district's needs and are not restricted in any way other than to meet the basic equipment specifications, terms and conditions outlined in this bid. . . . (Emphasis added) A statement of the 2007 RFP's "scope" set forth in the Special Conditions similarly provided: [PCS] requests proposals from experienced and qualified vendors to provide a comprehensive copier program countywide which fulfills the priorities and needs expressed by district focus groups. Vendors may propose whatever program they feel best meets these needs and a district evaluation committee made up of participants from the focus groups will evaluate proposals and make the selection it feels best meets these needs based upon a set of criteria published in this document. . . . [Emphasis added] The 2007 RFP provided for proposals to be received no later than January 18, 2007, at 3:00 p.m. The 2007 RFP contained General Terms and Conditions, setting forth the standard boilerplate terms common to all PCS procurements, and Section 1 of "Special Conditions" particular to this contract.1 These were followed by: Section 2, "Personnel Matrix"; Section 3, "General Information"; Section 4, "Program Specifications"; Section 5, "Equipment Specifications"; Section 6, "Cost Proposal"; and Section 7, "Contractor Response." PCS has adopted the General Terms and Conditions as rules, codified in Part A of the PCS Purchasing Handbook. Paragraph 1(g) of the General Terms and Conditions, "Freight Terms," provided: All items are to be bid FOB destination with all transportation charges prepaid and included in the bid prices and title transferring to the district at the time of delivery, unless otherwise stated in bid invitation. Any exceptions to these freight terms taken by the bidder must be clearly stated in the bidder's proposal. The purchasing department will evaluate any such exceptions and determine if the exception constitutes grounds for rejection of the bidder's proposal. [Emphasis added] Paragraph 3 of the General Terms and Conditions, "Acceptance and Withdrawal of Bids," provided: A bid (or amendment thereto) will not be accepted by the purchasing department after the time and date specified for the bid opening, nor may a bid (or amendment thereto) which has already been opened in public be withdrawn by the bidder for a period of sixty (60) calendar days after the bid opening date and time, unless authorized by the purchasing department. By written request to the purchasing department, the bidder may withdraw from the bid process and ask to have their sealed bid proposal returned at any time prior to the closing date and time for the receipt of bid proposals. Paragraph 14 of the General Terms and Conditions, "Variance to Bid Documents," provided: For the purpose of bid evaluation, bidders must clearly stipulate any or all variances to the bid documents or specifications, no matter how slight. If variations are not stated in the bidder's proposal, it shall be construed that the bid proposal submitted fully complies in every respect with our bid documents. Paragraph 30 of the General Terms and Conditions, "Errors and Omissions," provided: In the event an error or obvious omission is discovered in a bidder's proposal, either by the purchasing department or the bidder, the bidder may have the opportunity of withdrawing their bid, provided they can produce sufficient evidence to document that the error or omission was clerical in nature and unintentional . . . This privilege shall not extend to allowing a bidder to change any information contained in their bid proposal; however, in the event of a minor omission or oversight on the part of the bidder, the purchasing department (or designee) may request written clarification from a bidder in order to confirm the evaluator's interpretation of the bidder's response and to preclude the rejection of their bid, either in part or in whole. The purchasing department will have the authority to weigh the severity of the infraction and determine its acceptability. Paragraph 31 of the General Terms and Conditions, "Basis of Award of Bids," provides: "A Bidder who substitutes its standard terms and conditions for the district's, or who qualifies its bid in such a manner as to nullify or limit its liability to the district will be considered nonresponsive." The standard form cover sheet to both the 2006 and 2007 RFPs contained a "Note to Bidder" that stated: "A signed bid submitted to the School Board obligates the bidder to all terms, conditions and specifications stated in this bid document, unless exceptions are taken and clearly stated in the bidder's proposal." (Emphasis added) The Special Conditions of the 2007 RFP included a provision titled "Acceptance of Vendor Responses," which stated: "The purchasing department reserves the right to accept proposals from multiple vendors, and to accept or reject portions of a proposal based upon the information requested. Vendors may be excluded from further consideration for failure to fully comply with the requirements of this RFP solely at the purchasing department's discretion." (Emphasis added) The Special Conditions of the 2007 RFP also included a provision entitled "Integrity of Bid Documents," which stated: Bidders shall use the original Bid Proposal Forms provided by the Purchasing Department and enter information only in the spaces where a response is requested. Bidders may use an attachment as an addendum to the Bid Proposal form if sufficient space is not available on the original form for the bidder to enter a complete response. Any modifications or alterations to the original bid documents by the bidder, whether intentional or otherwise, will constitute grounds for rejection of a bid. Any such modifications or alterations that a bidder wishes to propose must be clearly stated in the bidder's proposal response and presented in the form of an addendum to the original bid documents. Both Xerox and IKON timely submitted proposals in response to the 2007 RFP. Evaluations of the responses to the RFP were based on a two-step procedure. First, a focus group of individuals from the Pinellas County School District would analyze the bids and award points based on the specifications and the Proposal Evaluation Form set forth in the RFP. The maximum award was 100 points, with 80 points constituting the threshold for further consideration. Second, those vendors which met the 80-point threshold would compete solely on price. Those bidders who did not score 80 points in the first stage would not have their price bids opened. By January 24, 2007, the focus group had finalized its evaluations, and the cost proposals were to be opened on January 26, 2007. Both IKON and Xerox scored above the 80 point level. IKON received a score of 87 points from the focus group and Xerox received a score of 81 points. Xerox's proposal included, among 15 unnumbered appendices, an appendix titled "Xerox Clarification Addendum to the RFP." This Addendum contained four "clarifications" of portions of the General Terms and Conditions, seven "clarifications" regarding the Program Specifications portion of the Special Conditions, and 12 items under the heading "Other Xerox Service Terms" that purported to set forth contractual provisions regarding service, personnel, risk of loss, limitations on liability, payment schedules, and other standard contract terms. PCS's purchasing department conducted a responsiveness review of the proposals prior to sending them to the focus group for substantive evaluation, but did not notice the Xerox Addendum. Mark Lindemann, the director of purchasing for PCS, testified that it is not customary for bidders to submit such an addendum, and, therefore, his staff was not looking for it when conducting their responsiveness review. On January 30, 2007, after the focus group had performed its evaluation of all the bids, and the cost proposals had been opened and the bid tabulations had been posted on the PCS website, Colin Castle of IKON brought to the attention of the PCS purchasing department the presence of the Xerox Addendum. Geri Pomerantz is the Xerox employee responsible for public sector solicitations in the Southeast United States. She is responsible for understanding the terms and conditions of a solicitation, for pricing the solution based on the customer's requirements, and for ensuring that Xerox submits a responsive proposal. Ms. Pomerantz signed and submitted Xerox's proposal in response to the 2007 RFP. Ms. Pomerantz believed that the Xerox Addendum complied with the "Integrity of Bid Documents" provision of the Special Conditions, quoted above. By submitting the Addendum, Xerox sought to clarify areas of the RFP, to explain how Xerox was meeting the requirements of the RFP, and to propose new items where Ms. Pomerantz believed the RFP was silent on important terms. Ms. Pomerantz testified that, to comply with the "Integrity of Bid Documents" provision, Xerox included the proposed clarifications in the body of its proposal, where that was possible, then further called them to the attention of PCS by placing them in the Addendum. Though unnumbered, the Xerox Addendum is clearly identified in the Table of Contents at the front of the Xerox proposal and on a separate tab on the side of the proposal. Xerox incorporated its clarifications in the body of its proposal in those places where the 2007 RFP requested a response from the vendor, i.e., Section 4, the Program Specifications portion and Section 5, the Equipment Specifications portion. Xerox incorporated clarifications to the following Program and Equipment Specifications: Section 4.3.1-–Equipment Build Status; Sections 4.3.4, 5.3.2 and 5.3.13 –-Price Offering; Sections 4.7.4 and 4.7.5-–Inspection and Acceptance; Section 4.10.2-–Response Time; Section 4.10.3-– Uptime; Section 4.10.4--Electronic Meter Reads; and Section 4.17–-Insurance Specifications for Contractors. The General Terms and Conditions did not call for a vendor response, and Xerox's clarifications or proposed modifications to those were made only in the Addendum. The introduction to the Xerox Addendum provides as follows: We have reviewed your Invitation to Bid ("Bid")[2] for a Copier Program, and have prepared a proposal that we believe addresses your requirements. However, some of the Board's requirements require that we make some limited clarifications to the terms and conditions included in your Bid. These clarifications are set forth below and are part of our Proposal. In addition, we have included some additional terms and conditions, which are also included as part of our Proposal. Should there be a conflict between the terms and conditions of the various documents the order of precedence will be this Addendum, followed by your Bid. Please note that if any of the terms or clarifications are inconsistent with Florida law or otherwise unacceptable to you, Xerox agrees to negotiate a reasonable alternative that is acceptable to both parties. Our team is also prepared to discuss the Xerox Proposal in greater detail and, if required, adjust our offering based on your final requirements, which may include a modification to our proposed equipment, support services, terms and conditions, and/or price offering. The Xerox Addendum expressly proposed clarifications or modifications to four provisions of the General Terms and Conditions. Paragraph 1(g), set forth in full above, contains PCS's standard freight terms and describes the process by which a vendor may take exception to those terms: exceptions must be clearly stated in the proposal, and the purchasing department will determine whether the exceptions constitute grounds for rejecting the vendor's proposal. The Xerox Addendum proposed to transfer to PCS the cost of any "non-standard delivery or removal expenses, such as additional costs where additional time or resources are required to disassemble equipment due to lack of adequate facility access, or the need to use stair creepers or cranes to deliver equipment to upper floors of buildings.3 Ms. Pomerantz justified this variance by asserting that the 2007 RFP was silent regarding the issue of "non- standard delivery", and that Xerox was merely offering a clarifying solution to this problem. Mr. Lindemann believed this clarification to be salutary, based on disputes PCS has had with its current vendor, IKON, regarding unusual delivery issues. Paragraph 1(g) of the General Terms and Conditions specifically allowed the vendor to propose exceptions to the standard freight terms, provided those exceptions were clearly stated and the vendor understood that its exceptions could be grounds for rejection of its proposal. Thus, it is found that the Xerox Addendum did not materially deviate from the provisions of the RFP as to this variance. The Xerox Addendum also proposed modification of paragraph 11 of the General Terms and Conditions, which states that PCS has "sole and exclusive property" rights to any discovery, invention or work product produced under the contract. Xerox proposed that any work developed under this contract would be of a generic nature and would remain the sole property of Xerox. Mr. Lindemann reasonably opined that this was not a material deviation because there was no intellectual property involved in this RFP. The Xerox Addendum did not materially deviate from the provisions of the RFP as to this variance. The Xerox Addendum proposed modification of paragraph 41 of the General Terms and Conditions. Paragraph 41 provided that unless otherwise specified in the Special Conditions, all items requested "must be new, the latest model manufactured, first quality, carry the manufacturer's standard warranty and be equal to or exceed the specifications" listed in the RFP. In this instance, the Special Conditions did provide otherwise. Section 4.3.1 of the Program Specifications provided, in relevant part, that vendors "may propose all used, all new or a combination of new and used equipment, but all equipment must meet the minimum standards outlined later in this section. To assure ease of operation for end users, if used equipment is proposed it should all be of the same brand and model within any given Group of copiers, within any given facility." The Xerox Addendum simply provided clarification regarding the company's terminology for its equipment. The equipment provided by Xerox would be either "Newly Manufactured," "Factory Produced New Models," or "Remanufactured," internal Xerox distinctions regarding the use of new, reconditioned or recycled components, and Xerox disclaimed any intent to use reconditioned, recycled, refurbished or used equipment as defined by industry standard. In this instance, Xerox submitted a clarification that did not deviate from or attempt to modify the Program Specifications. The Xerox Addendum proposed modification of paragraph 44 of the General Terms and Conditions, the limitation of liability provision, which provided: The bidder guarantees to save [PCS], its agents and employees, harmless from liability of any nature or kind for use of any copyrighted or non-copyrighted materials, secret process, patented or unpatented inventions, articles or appliances, furnished or used in performance of the contract for which the contractor is not the patentee, assignee or licensee. The Xerox Addendum to paragraph 44 provided as follows: Xerox agrees that it will indemnify the Board from all copyright and patent information that is included in Xerox- branded equipment/software. However, Xerox will not indemnify the Board, its directors, officers, employees, volunteers, and agent [sic] for any patent infringement caused by complying with the Board's requirement to use, or the Board's use of, the Xerox- branded/supplied equipment with equipment or software not provided by Xerox. Mr. Lindemann testified that this modification of the limitation of liability provision would most likely require PCS to purchase additional contingent liability insurance, which would be a cost essentially passed on from Xerox to PCS. It is found that the Xerox Addendum materially deviated from the provisions of the RFP as to this variance. The Xerox Addendum proposed a second limitation of liability provision in the section titled "Other Xerox Service Terms," which was essentially a list of standard terms and conditions that Xerox proposed to take precedence over similar provisions in the 2007 RFP. This second limitation of liability proposal provided as follows: Excluding personal injury (including death), property damage, and intellectual property indemnification on Xerox branded equipment, Xerox will not be liable to you for any direct damages in excess of $100,000 or the amounts you've paid to Xerox, whichever is greater. Neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether the claim alleges tortious conduct (including negligence) or any other legal theory. Any action you take against Xerox must be commenced within two (2) years after the event that caused it. Ms. Pomerantz testified that when she read the RFP she focused on the indemnification language in paragraph 44 of the General Terms and Conditions regarding copyright and patent issues. She thought the RFP was silent on broader indemnification issues, and she sought to clarify it with this proposed language. Mr. Lindemann testified that the $100,000 limitation of liability could result in costs to PCS in the event of a judgment against PCS and might require the purchase of additional liability insurance. Mr. Lindemann believed this proposed limitation on liability was a material deviation and formed the basis for his request to Xerox to withdraw the Addendum. Paragraph 31 of the Standard Terms and Conditions states: "A Bidder who substitutes its standard terms and conditions for the district's, or who qualifies its bid in such a manner as to nullify or limit its liability to the district will be considered nonresponsive." (Emphasis added) It is found that the Xerox Addendum materially deviated from the provisions of the RFP as to this variance. 34. Sections 4.3.4, 5.3.2, and 5.3.13 of the Program/Equipment Specifications related to the vendors' cost proposals provide: 4.3.4 Whatever type of pricing methodology is proposed, it shall include all costs associated with the administration of the service, including, but not limited to: all imaging devices, any peripheral equipment (file servers, etc.), delivery, removal, installation, training, dedicated technician(s), all supplies needed to operate the imaging devices except paper, delivery of supplies and removal of the equipment upon termination of this contract. * * * 5.3.2 Pricing should include all costs associated with the administration of the service, including, but not limited to all imaging devices, delivery, removal, installation, training, certified technicians and all supplies except paper needed to operate the imaging devices. * * * 5.3.13 Pricing must include all costs associated with the administration of the service, including, but not limited to all copier devices, delivery, removal, installation, training, certified technician(s), all supplies except paper, end-user training and semi-annual customer satisfaction surveys. The three quoted provisions state that price proposals must include all costs associated with the administration of the service in question, except for paper, delivery of supplies, removal of equipment upon contract termination, end user training, and customer satisfaction surveys. The Xerox Addendum sets forth a monthly minimum and cost-per-copy charge that would cover standard equipment, supplies, maintenance, delivery and removal, installation and user training, but would require PCS to pay for "optional accessories," "non-standard operating supplies," "excess rigging" needed due to inadequate site access or the need to use stair creepers or cranes to install or remove equipment,4 overtime service coverage, and expenses associated with site preparation. The Xerox Addendum attempted to vary the quoted Special Conditions that require the vendor's price to include all costs associated with delivery, removal, and installation and, thus, materially deviated from the provisions of the RFP. Sections 4.7.4 and 4.7.5 of the Program Specifications required the vendor to "provide and pay for all material, labor, tools, transportation and handling, and other facilities necessary for the furnishing, delivery, assembly plus inspection before, during and after installation of all items specified herein." The Xerox Addendum to Sections 4.7.4 and 4.7.5 attempted to limit Xerox's obligation to inspect the devices by stating that they are "deemed accepted" upon installation unless PCS specifically requires an inspection. It is found that the Xerox Addendum materially deviated from the provisions of the RFP as to this variance. Section 4.17.1 of the Program Specifications required acceptance testing for each imaging device and accessory, including a period of four consecutive business days, each containing seven hours of operational use time, in which the equipment maintains a 95 percent level of performance. The Xerox Addendum to Section 4.17.1 attempted to limit Xerox's obligation to inspect the devices by stating that they are "deemed accepted" upon installation unless PCS specifically requires an inspection. It is found that the Xerox Addendum materially deviated from the provisions of the RFP as to this variance. Section 4.10.2 of the Program Specifications provided requirements regarding service calls and response times. This condition defines "response time" as the interim between the user's call to the repair office and the appearance of a certified technician on-site who is prepared to effect repairs. Section 4.10.2 provides that the response time cannot exceed four hours. PCS would have the option of charging the contractor $50.00 per failure to meet this four-hour response time requirement. The Xerox Addendum proposed that service response times be averaged quarterly according to a formula by which "target response time" would be divided by "average service response time," which is measured by dividing the sum of all service call response times during the quarter by the total number of service calls. Xerox proposed that the $50.00 charge be imposed based upon Xerox's failure to meet "the 90-day 4 hour average unit response time commitment." IKON also proposed to calculate the response time using a quarterly average, providing for an average response time "of 2 to 6 hours for all customer service calls located within 30 miles of an IKON service center, and 4 to 8 hours for all customer service calls located 30 miles or more from an IKON service center." IKON's proposal did not clearly state how far IKON's nearest service center is located from any Pinellas County school site. Another section of IKON's proposal discusses the company's recent consolidation of its "customer care centers," which "provide direct customer support" and house "the field service call center and inside sales function for a geographical region," into four central locations, the closest to Pinellas County being in Atlanta, Georgia. In this instance, both Xerox and IKON have proposed material deviations from the RFP requirement. Section 4.10.2 of the Special Conditions set forth a simple response time requirement that PCS itself could monitor and enforce without input from the vendor. Both Xerox and IKON attempted to substitute complex formulas arriving at quarterly averages for response time. IKON's proposal further attempted to make its compliance with the four hour response time requirement contingent upon the location of IKON's service centers. Section 4.10.3 of the Special Conditions requires a guaranteed uptime of 95 percent per machine for any 90-day period, and further requires that machines failing to maintain 95 percent uptime must be removed and replaced with an identical or comparable model at no cost to PCS. The Xerox Addendum announced an uptime objective of maintaining an average 95 percent equipment uptime performance based on a three-month rolling average, a variation in the wording of Section 4.10.3 that does not materially change the RFP requirement. Xerox also offered slight variations in the definition of "downtime" that are in the nature of clarifications rather than amendments to Section 4.10.3. The Xerox Addendum also contained 12 "Other Xerox Service Terms," essentially Xerox's standard terms and conditions dealing with service guarantees, personnel, substitution of equipment or software, risk of loss for equipment, treatment of confidential information, compliance with laws, vendor liability for customer-supplied items, the limitation of liability provision discussed above, force majeure, payment upon 45 days of invoice, breach of contract and remedies thereto, and a procedure for amendment of the contract. The 2007 RFP's General Terms and Conditions contain requirements for breach of contract, limitation of liability, standards of conduct for vendor personnel, and equipment substitution. Thus, the Xerox Addendum violated the following language in paragraph 31 of the Standard Terms and Conditions: "A Bidder who substitutes its standard terms and conditions for the district's, or who qualifies its bid in such a manner as to nullify or limit its liability to the district will be considered nonresponsive." In summary, the Xerox Addendum materially deviated from the requirements of the 2007 RFP in the following ways: it varied from the limitation of liability requirements of paragraph 44 of the General Terms and Conditions; it offered a cost proposal that was not all-inclusive, in contravention of Sections 4.3.4, 5.3.2, and 5.3.13 of the Program Specifications; it attempted to limit inspections after installation and acceptance testing, in contravention of Sections 4.7.4, 4.7.5, and 4.17.1 of the Special Conditions; it varied from the response time requirements of Section 4.10.2 of the Special Conditions; and it attempted to substitute several of Xerox's standard terms and conditions for those of PCS, in violation of paragraph 31 of the General Terms and Conditions. After learning of the Xerox Addendum from Mr. Castle on January 30, 2007, PCS reviewed the Addendum and concluded that it included material deviations to the terms and conditions of the RFP solicitation and that either the Addendum or Xerox's bid must be withdrawn. Negotiations commenced between PCS and Xerox. On February 2, 2007, Xerox offered PCS a revised Addendum. PCS rejected the revised Addendum and informed Xerox that the Addendum must be withdrawn in its entirety. On February 5, 2007, Xerox notified PCS by letter that it was withdrawing the Addendum from its proposal. Also on February 5, 2007, PCS posted its notice of intent to award the contract to Xerox. IKON's protest complained that Xerox's letter did not accomplish a complete withdrawal of the deviations included in the Xerox Addendum, because many of those deviations remained in the main body of the Xerox proposal. As noted above, Xerox incorporated its clarifications in the main body of its proposal in those places where the 2007 RFP requested a response from the vendor. These clarifications were included in Section 7.1.4 of the Xerox proposal, "Proposed Work Plan, Transition Plan." When Xerox withdrew its Addendum, it did not also submit a revised proposal that deleted the Addendum provisions from those places where they had been incorporated into the main body of the proposal. Nevertheless, both Xerox and PCS understood that withdrawal of the Addendum accomplished the complete withdrawal of the materials included in the Addendum, including where they were incorporated into the main body of the Xerox proposal. This understanding was reasonable under the circumstances. However, IKON raises a related objection that is more pertinent. Xerox was allowed to withdraw its Addendum, and then was awarded the contract. Thus, the winning proposal is different than the proposal that was reviewed and scored by the PCS focus group. IKON argues that it is very likely that Xerox would not have passed the 80-point threshold without the Addendum provisions that were incorporated into the main body of the proposal. Mr. Lindemann of PCS believed that Xerox's score would probably have been higher without the Addendum provisions. The salient point is that both sides are free to speculate about what the score of the winning bid might have been, because PCS proposes to award a contract on a proposal that was never reviewed or scored in the manner prescribed by the 2007 RFP. PCS argues that the withdrawal of the Xerox Addendum was entirely in keeping with the RFP, citing paragraph 3 of the General Terms and Conditions, quoted in full above and relevant portion of which provides: A bid (or amendment thereto) will not be accepted by the purchasing department after the time and date specified for the bid opening, nor may a bid (or amendment thereto) which has already been opened in public be withdrawn by the bidder for a period of sixty (60) calendar days after the bid opening date and time, unless authorized by the purchasing department. [Emphasis added] PCS contends that the emphasized language grants the purchasing department authority to allow a bidder to withdraw a portion of its bid after the bids have been opened. This is correct, if the portion in question is a timely submitted amendment to the original bid.5 In their arguments, both PCS and Xerox equate the terms "amendment" and "addendum," and assume that the Xerox Addendum could be withdrawn as an "amendment" to the Xerox proposal. However, the Xerox Addendum was not an amendment to the Xerox proposal; it was an integral part of that proposal. The Addendum did not amend anything contained in the Xerox proposal; rather, it attempted to "amend" the terms of the RFP. The underscored portion of paragraph 3 anticipates the late withdrawal of an entire bid or an amendment to a bid, not a wholesale grant of authority to the purchasing department to allow a bidder to save a nonresponsive proposal by withdrawing the objectionable provisions. PCS argues that Xerox was given no economic or competitive advantage in being allowed to submit and then withdraw its Addendum. Ms. Pomerantz testified that none of the items in the Addendum would have affected the price bid by Xerox, because they were essentially items of overhead that Xerox cannot "cost out" to include in a price proposal. However, the testimony by Mr. Lindemann convincingly made the point that some of the variations from RFP terms offered by Xerox would affect PCS's costs regardless of their impact on Xerox's price proposal. Passing on costs to the agency that have been absorbed by IKON and the other vendors in their proposals works to Xerox's economic advantage and to the detriment of PCS. Xerox had an obvious competitive advantage in being granted the opportunity to amend its proposal after the substantive proposals were opened and evaluated and the price proposals had been opened and posted. Xerox was also granted the option, afforded to no other bidder, of simply declining to withdraw its Addendum and thereby walking away from the procurement after submitting a proposal that, under the terms of the RFP, is supposed to bind the vendor for a period of 90 days. Subsection 120.57(3)(f), Florida Statutes, provides, in relevant part: In a protest to an invitation to bid or request for proposals procurement, no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered. . . . The PCS rules and RFP provisions, correctly understood, do not contravene this statutory requirement. They grant the purchasing department the flexibility to allow a bidder, under special circumstances, to withdraw from a given procurement after submitting a bid, and they allow PCS to waive slight variations or minor irregularities in a bid. To the extent that PCS interprets its rules and RFP to allow Xerox to substantially amend its proposal after the opening,6 as occurred in this procurement, then PCS has violated its governing statutes in a fashion that is clearly erroneous, contrary to competition, arbitrary, or capricious. PCS argues that even if the Xerox Addendum contained material deviations, the RFP and PCS's rule permitted bidders to submit addenda with material deviations. PCS based this argument on that portion of Section 3.1 of the Special Conditions stating that bidders "may propose whatever program they feel best meets the district's needs and are not restricted in any way other than to meet the basic equipment specifications, terms and conditions outlined in this bid." When read within the context of the Special Conditions in their entirety, this language clearly contemplates allowing the vendors to offer creative solutions within their field of substantive expertise, i.e., the establishment of a comprehensive copier program countywide. It was rational for the drafters of the RFP to assume that a company such as Xerox enters the process in possession of more knowledge and experience in the field of copier installation, service, and repair than the school district possesses. PCS conducted focus groups to determine the top priorities of the school personnel who use the copiers and presented the bidders with specifications broad enough to allow maximum flexibility in crafting proposals responsive to the listed priorities. However, there are rarely "creative solutions" to boilerplate RFP terms such as shipping, limitation of liability, the requirement that cost proposals be all-inclusive, inspection of equipment prior to acceptance, and response time for repairs. These are areas in which the purchasing department of PCS may be presumed to have at least as much expertise as Xerox or IKON. Variations from the RFP's requirements proposed by a bidder regarding these items are likely to be self-serving efforts to protect the bidder's interests or pass on costs to the agency. Paragraph 31 of the General Terms and Conditions recognizes this reality by stating that a bidder that substitutes its standard terms and conditions for those of PCS will be considered nonresponsive.7 PCS is correct that the "Integrity of Bid Documents" paragraph of Section 1 of the Special Conditions of the 2007 RFP allows bidders to submit addenda that clearly state "modifications or alterations that a bidder wishes to propose." However, contrary to PCS's treatment of Xerox in this procurement, the RFP does not state that the bidder may propose modifications of the RFP terms without risk.8 The cited paragraph clearly warns bidders that proposed modifications or alterations constitute grounds for rejection of a bid. The paragraph does not, and under Subsection 120.57(3)(f), Florida Statutes (2006), could not, state that bidders will be given the opportunity to withdraw those portions of their proposals deemed nonresponsive after bid opening. PCS also emphasizes the first sentence of the "Acceptance of Vendor Responses" paragraph of the Special Conditions: "The purchasing department reserves the right to accept proposals from multiple vendors, and to accept or reject portions of a proposal based upon the information requested." However, the next sentence of that paragraph states that the remedy is not after-the-fact withdrawal of the rejected portion of the proposal, but rejection of the proposal: "Vendors may be excluded from further consideration for failure to fully comply with the requirements of this RFP solely at the purchasing department's discretion." Both PCS and Xerox raised the issue of the 2006 RFP in an effort to show that IKON was now attacking a process from which it earlier benefited. In the 2006 procurement, IKON was allowed to withdraw portions of an addendum after a competitor filed a protest. PCS ultimately rejected all of the 2006 Proposals because of confusion on the part of the bidders, partly related to the fact that IKON was allowed to withdraw its addendum but a competitor was not given the same opportunity. PCS then issued the 2007 RFP in December 2006 to procure the same copy services sought by the 2006 RFP. The 2006 RFP is relevant only to show that PCS has allowed the withdrawal of amendments in at least one previous procurement, a moot point because PCS has freely stated its position that it has the authority to reject an addendum without rejecting the entire proposal. Xerox's original proposal, including the Addendum, was nonresponsive for the reasons set forth above. PCS's effort to save Xerox's low bid by allowing it to withdraw the Addendum violated Subsection 120.57(3)(f), Florida Statutes (2006), as well as the terms of the RFP. The remaining question is whether IKON's proposal was responsive and may therefore be awarded the contract. As already found above, IKON's proposal materially deviated from Section 4.10.2 of the Special Conditions by substituting a complex formula for the simple response time requirement of the RFP and by making compliance with the four- hour response time requirement contingent upon the location of IKON's service centers.9 Section 7.1.3 of the Contractor Response portion of the 2007 RFP, "Proposed Models and Equipment Configurations," provides the following: The respondent must provide a comprehensive description of its proposed standard models and equipment configurations for each of the various grade levels (elementary, middle, high school). Consideration should be given to the stated needs of the focus groups (Section 3), particularly "ease of operation", "accessibility" to machines and "reliability". Vendors should provide detailed, technical product literature for each piece of equipment proposed including all options. The respondent should also describe what flexibility will be allowed for adding or deleting equipment as program needs change and how that will effect the amount billed according to the cost proposal plan proposed. [Emphasis added] Section 7.1.7 of the Special Conditions, "Cost Proposal," provides the following: Respondent must include a complete, detailed cost proposal which encompasses all costs associated with the proposed program. The cost proposal must allow for flexibility to add or delete equipment as program needs change. The district will not entertain any proposals to purchase or lease any equipment. [Emphasis added] IKON's proposal contained the following paragraph within its response to Section 7.1.3 of the Special Conditions: As requested by PCS in Section 7.1.7 of the Invitation to Bid, IKON's cost proposal allows for flexibility. IKON will permit PCS to add or delete equipment as PCS' needs change by permitting PCS to upgrade or downgrade equipment at the beginning or at the end of its fiscal year. Under this program, PCS may replace upgraded or downgraded equipment with additional equipment that addresses PCS' needs. Specifically, IKON will permit PCS to identify up to [three] percent of the overall equipment fleet value procured by PCS from IKON, including models and specifications that are representative of the entire fleet population, as flexible equipment that may be upgraded or downgraded at the beginning or at the end of the fiscal year, while all other equipment may be canceled only in the event of a non- appropriation or termination for cause. The flexible equipment may also be relocated or otherwise used to facilitate a rightsizing program, as directed by PCS. PCS may utilize this flexibility program in its own discretion. In no event shall either party be liable to the other party for any indirect, special or consequential damages. Xerox contends that by limiting PCS to a three percent change in the overall equipment fleet value, IKON's proposal materially deviates from Sections 7.1.3 and 7.1.7 of the Special Conditions, which required that PCS have the flexibility to increase or decrease the size of the copier fleet to meet its needs. However, Section 7.1.3 did not prescribe the amount of "flexibility" required in the vendors' bids; rather, it expressly requested the vendors to "describe what flexibility will be allowed for adding or deleting equipment." IKON's bid described the allowed flexibility as three percent of the overall equipment fleet value and was thus responsive on its face. The evidence presented at hearing was insufficient to determine whether a three percent limit would be so restrictive of PCS's needs to add or delete equipment as to render IKON's proposal nonresponsive. More problematic is the last sentence of the quoted paragraph: "In no event shall either party be liable to the other party for any indirect, special or consequential damages." Xerox cogently argues that if its own proposed limitation of liability is a material deviation, then this similar limitation of liability included in the IKON bid must also be found a material deviation. IKON responds that it is clear from the context that this limitation of liability provision, unlike that in Xerox's proposal, applies only to Section 7.1.3. For this reason, IKON contends, PCS determined that IKON's bid was responsive. IKON argues that its own limitation of liability provision is implicated only in the event that PCS requires additional equipment and that it does not limit any direct liability of IKON to PCS and concerns only a distinct class of damages: indirect, special or consequential damages. The position of the quoted sentence, at the end of the final paragraph of IKON's response to Section 7.1.3 of the Special Conditions, supports IKON's contention that the limitation of liability applies only to that section. However, the wording of the sentence ("In no event . . .") indicates a broader intended application. IKON also failed to explain why the requirement of additional equipment, and only the requirement of additional equipment, raised concerns within IKON that indirect, special or consequential damages might be claimed by either party to the contract. At best, this provision is ambiguous in the scope of its application and, in any event, seeks to limit the liability of IKON beyond the limits provided by the RFP. If Xerox's limitations of liability constitute material deviations, then so must IKON's. IKON's proposal thus contains two material deviations from the RFP, one regarding response time and one regarding limitations of liability. IKON's proposal is nonresponsive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that PCS enter a final order that (a) declares Xerox's bid to be materially nonresponsive and, accordingly, rescinds the proposed award to Xerox; and (b) declares IKON's bid to be materially nonresponsive and, accordingly, rejects the same. Because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation as to whether PCS should award the contract to the next-lowest responsive bidder or reject all bids and start over. DONE AND ORDERED this 10th day of May, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2007.
The Issue The basic issue in this case concerns whether, upon consideration of the responses to ITB-DOT-00-01-4004, the Department of Transportation's ("Department's") intended action to award the subject contract to All-American Towing, Inc., "is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications."
Findings Of Fact In their Prehearing Stipulation the parties admitted that the following facts are true without the need for proof at hearing.2 The Department issued an invitation to bid entitled ITB-DOT-00-01-4004, for road ranger service patrol along I-95, I-595, and I-75 in Broward County. The Department held a mandatory pre- bid meeting for this Project. The mandatory pre-bid meeting for this Project was held on Friday, October 20, 2000. All-American Towing Services, Inc., is a Road One Company. All-American Towing Services, Inc., has been registered with the Florida Department of State, Division of Corporations, since July 18, 1997. Road One, Inc., is registered with the Florida Department of State, Division of Corporations. Road One, Inc., has been registered with the Florida Department of State, Division of Corporations, since April 1997. Wareham Enterprises, Inc.'s, principal place of business was 4971 SW 34th Place, David, Florida 33314. Wareham Enterprises, Inc., was a Florida corporation registered with the Florida Department of State, Division of Corporations. Wareham Enterprises, Inc., was registered with the Florida Department of State, Division of Corporations, from 1986- 1998. John Wareham was the president and director of Wareham Enterprises, Inc. John Wareham was a director of All- American Towing, Inc. All-American Towing, Inc., was administratively dissolved on September 22, 2000, prior to the date of bid submission. Gary Pasborg was present at the mandatory pre-bid meeting for this project. Road One/All-American failed to enter the firm's SPURS vendor number in its response to the Invitation to Bid. Road One/All-American may not be excluded from bidding for failure to list the firm's SPURS vendor number. Road One/All-American's failure to list the firm's SPURS vendor number is a minor irregularity. Road One/All American's bid indicated a total annual estimated cost of $1,893,369. Road One/All-American made a mathematical error in computing the bid's total annual estimated cost. The Department corrected the total annual estimated cost in All-American's bid. The Department did not modify the hourly rate per service patrol vehicle contained in All-American's bid. The Department's correction of All- American's mathematical error is a minor irregularity. The corrected total annual estimated cost in All-American's bid is $1,893,440. The corrected total annual estimated cost did not alter the order of award. Sunshine Towing is a sole proprietorship owned and operated by Alexis Ramos and Ann Margaret Ramos. Every company who appeared at the mandatory pre-bid conference received, at the conclusion of the meeting, a sign in sheet which did not contain the name All- American, or All-American Towing. aa. The Department contacted Road One/All-American to request copies of licenses and registrations. bb. Ann Margaret Ramos, Alexis Ramos, Monica Savits, George Gonzalez, and Lourdes Zapata were all present at the mandatory pre-bid conference. Facts Proved at Hearing In response to the subject ITB, the Department received bids from seven firms by the deadline of October 27, 2000. The bids were opened on November 3, 2000. The only bids relevant to this proceeding are the bids of All-American Towing, Inc.,3 and Sunshine Towing. All-American Towing, Inc., was the low bidder with a bid in the amount of $1,893,440.00. Sunshine Towing was the second lowest bidder with a bid in the amount of $2,135,000.00. Sunshine Towing is currently under contract with the Department in District VI to provide services similar to those requested in the ITB at issue in this case. All-American Towing, Inc., is a wholly owned subsidiary of a corporation named Road One, Inc. At all times material to this case, All-American Towing, Inc., has been a dissolved Florida corporation. Notwithstanding its dissolved status, All- American Towing, Inc., appears to have continued to engage in the towing business in Florida. All-American Towing, Inc., has engaged in the towing business in Florida for more than five years. All-American Towing, Inc., has employees and managers who have engaged in the towing business in Florida for more than five years. Although Road One, Inc., is the sole owner of All- American Towing, Inc., it continues to operate All-American Towing, Inc., as a separate, but related, company. All bidders were required to attend a mandatory pre-bid meeting. Representatives of All-American Towing, Inc., attended the meeting.4 Representatives of Sunshine Towing also attended the mandatory pre-bid meeting. The ITB in this case requires bidders to have "a minimum of five (5) years of experience in the towing industry in the State of Florida."5 Section 5.0 of the ITB requires that each bidder have at least fourteen service patrol vehicles and that it include with the bid a photocopy of the vehicle registration for each such vehicle. At all times material to this proceeding, All- American Towing, Inc., had the required number of service patrol vehicles. All-American Towing, Inc., submitted with its bid only twelve photocopies of vehicle registrations. After the bids were opened, the Department contacted All-American Towing, Inc., and requested photocopies of two additional vehicle registrations.6 The two additional photocopies were promptly provided. Section 9.6 of the subject ITB reads as follows: The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers. Sunshine Towing is a responsible bidder, and it submitted a responsive bid. Sunshine Towing meets all of the requirements of the ITB.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Transportation issue a final order in this case rejecting the bid submitted by All-American Towing, Inc., and awarding the contract to Sunshine Towing. DONE AND ENTERED this 13th day of April, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 13th day of April, 2001.
The Issue The ultimate issue for determination at formal hearing was whether the intended decision by the Palm Beach County School Board to reject all bids on the Gladeview Elementary School project, Project No. 125191702/205840, departs from the essential requirements of law.
Findings Of Fact Palm Beach County School Board (Respondent) issued a request for proposals (RFP), soliciting sealed bids for the reroofing, renovating and replacing the HVAC of Gladeview Elementary School, Project No. 125191702/205840 (Gladeview Elementary Project). The RFP and bid documents for the Gladeview Elementary Project were contained in the "Project Manual." The addendum to the RFP required all bids to be submitted by April 20, 1993 at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent to the case at hand, the RFP further required a bid bond or cashier's check for not less than five percent (5 percent) of the bid and notified bidders that Respondent had the right to reject all bids and waive any informalities. Section 00100 of the "Instruction to Bidders" in the Project Manual is material to the case at hand and provides in pertinent part: BIDDING PROCEDURES: * * * Preparation and Submission of Bid Proposal Form: [P]roposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. . . (e) Proposal Submittal shall contain the following documents: Section 000443 - Public Entity Crimes Statement Section 00310 - Proposal Form Section 00410 - Bid Bond or otherwise acceptable Bid Guarantee (see Paragraph 3.08). Manufacturer's Letter of Intent to Warranty (See Section 7610) and will be enclosed in a sealed envelope. . . * * * 3.08 Bid Guarantee: Bids shall be accompanied by a bid guarantee of not less than five percent (5 percent) of the amount of the Base Bid, which shall be a Cashier's Check or a Bid Bond (Bid Bond, see Section 00410) made payable to the Owner. * * * 3.10 Subcontractors: At the time of the Bid Opening each Bidder submitting a Bid shall submit a written list of the major Subcontractors; namely, structural steel, membrane roofing, preformed metal roofing & siding, plumbing, HVAC, electrical and general contractor, on Form 00420 (List of Major Subcontractors). The list shall be placed in a "sealed envelope". . . Within five (5) Owner Business days after the Bid Opening, the apparent low Bidder(s) shall submit Form 00430) (List of Subcontractors), completed in full to the Owner ... Failure to submit these lists within the time period specified herein shall result in a non- responsive Bid. * * * REJECTION OF BIDS: 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to re-advertise for other or further Bid Proposals. SUBMISSION OF POST-BID INFORMATION: * * * 7.02 The selected Bidder shall within eight (8) Owner business days after notification of Board Award submit the following: . . . 6. Photocopies of prime Contractor's certification and/or registration and either state registrations or Palm Beach County Certificate of Competency of all Subcontractors. . . * * * AWARD OF CONTRACT: The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates. The bid opening was conducted on April 20, 1993, at which time the bids were tabulated and the Bid Tabulation Form (BTF) was posted. Respondent received bids from Bonner Roofing whose base bid was $869,000, S&S Roofing, Inc. (Petitioner S&S Roofing) whose bid was $693,000, Therma Seal Roofs, Inc. (Petitioner Therma Seal) whose bid was $691,500, Titan Roofing, Inc. (Petitioner Titan Roofing) whose base bid was $689,500, and Trans Coastal Roofing, Inc. (Petitioner Trans Coastal) whose base bid was $884,248. The BTF showed that the rank of the bids, beginning with the apparent lowest bidder to the apparent highest, were (1) Petitioner Titan Roofing, (2) Petitioner Therma Seal, (3) Petitioner S&S Roofing, and (4) Petitioner Trans Coastal. The BTF showed further that Bonner Roofing failed to submit with its bid the Manufacturers Letter of Intent which was a required document. Bonner Roofing's bid was rejected. Within minutes after the bid opening, Respondent's staff discovered that Petitioner Titan Roofing had failed to list its major subcontractors on Form 00420, List of Major Subcontractors, even though it had submitted the form. Respondent's staff contacted Petitioner Titan Roofing by telephone and requested the list. Petitioner Titan Roofing's failure to submit a completed Form 00420 was inadvertent and not intentional. At the time of the bid opening, Respondent's staff had not considered Petitioner Titan Roofing's failure to submit a completed Form 00420 to be a major irregularity, but a minor one. Consequently, Respondent's staff considered the failure to be a waivable irregularity. Unable to discern if it had the original figures submitted by its major subcontractors, Petitioner Titan Roofing telephoned them to verify the figures it had. Within two hours, Petitioner Titan Roofing had faxed to Respondent's staff a completed Form 00420. Respondent's recommendation or intended action was to award the bid to Petitioner Titan Roofing as the apparent lowest bidder. Petitioner Therma Seal, the apparent second lowest bidder, filed a timely protest of Respondent's intended action. Respondent held an informal hearing on the protest, and the recommendation was to reject all bids. In prior bids, a bidder's failure to submit Form 00420 at bid opening has been considered a major irregularity by Respondent. The purpose of Form 00420 is to prevent or guard against bid shopping. Respondent's action has been to routinely reject bids with such a deficiency. Petitioner Therma Seal failed to submit with its bid the required bid bond of 5 percent of its base bid. Failure to submit a required bid bond is considered by Respondent to be a major irregularity. Furthermore, Petitioner Therma Seal was not a licensed general contractor. It listed itself as the general contractor on Form 00420. All bids failed to comply with the roofing warranties and specifications, which Respondent considers to be a major irregularity. Respondent's budget, based upon its architect's construction estimate, for the Gladeview Elementary Project was $652,130. All bids were over budget. Prior to the formal hearing, Respondent Trans Coastal notified the parties that it was not proceeding with its protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on the Gladview Elementary School project, Project No. 125191702/205840, and re-advertise. DONE AND ENTERED this 7th day of September 1993 in Tallahassee, Leon County, Florida. ERROLL H. POWELL 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 7th day of September, 1993.
