The Issue The issue in this bid protest is whether Respondent acted arbitrarily when it decided to reject all of the bids it had received in response to a solicitation seeking bids on a contract for roof repairs.
Findings Of Fact On January 10, 2008, the Florida Department of Environmental Protection (the "Department" or "DEP") issued an Invitation to Bid (the "ITB"), the purpose of which was to solicit competitive bids from qualified contractors on a project whose scope of work envisioned repairs to the wind-damaged roofs of several buildings located on the grounds of the Hugh Taylor Birch State Park in Fort Lauderdale, Florida. Some of the buildings to be repaired were single-family residences. Work on these structures accordingly needed to conform to the requirements prescribed in the 2007 Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures (the "Manual"), which the Florida Building Commission (the "Commission"), following an explicit legislative directive, see Section 553.844(3), Florida Statutes,1 recently had adopted, by incorporative reference, as a rule. See Fla. Admin. Code R. 9B-3.0475 (2007).2 The Rule had taken effect on November 14, 2007, giving the Manual's contents the same status and force as the Florida Building Code. Id. Just before the Department issued the ITB, the Commission had approved, at a meeting on January 8, 2008, a modified version of the Manual, which it called the 2007 Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures, Version 2 (the "Revised Manual"). In consequence of the Commission's approval of the Revised Manual, the Florida Department of Community Affairs ("DCA") caused a Notice of Proposed Rule Development to be published on January 25, 2008, in the Florida Administrative Weekly. This official advertisement announced that the Commission intended to amend Rule 9B-3.0475, so that its incorporative reference would mention the Revision Manual instead of the Manual. See 34 Fla. Admin. W. 461-62 (Jan. 25, 2008).3 DCA caused a Notice of Proposed Rule respecting the intended revision of Rule 9B-3.0475 to be published on February 1, 2008, in the Florida Administrative Weekly. See 34 Fla. Admin. W. 605 (Feb. 1, 2008).4 On February 5, 2008, the Department issued Addendum No. 4 to the ITB (the "Addendum"). The Addendum provided in pertinent part as follows: Bidders shall bid the project as specified despite the recent change in Rule 9B-3.0475 relating to hurricane mitigation retrofits. Any additional water barrier will be accomplished by Change Order after award of the contract. (The foregoing provisions of the Addendum will be referred to hereinafter as the "Directive"). On February 12, 2008, the Department opened the bids it had received in response to the ITB. Ten (out of 12) of the bids submitted were deemed responsive. The bid of Petitioner Spinella Enterprises, Inc. ("Spinella") was one of the acceptable bids. On February 19, 2008, DEP posted notice of its intent to award a contract to the lowest bidder, namely Spinella, which had offered to perform the work for $94,150. The second lowest bidder was The Bookhardt Group ("Bookhardt"). Bookhardt timely protested the intended award, raising several objections, only one of which is relevant here. In its formal written protest, dated March 3, 2008, Bookhardt alleged that "[t]he new State of Florida law F.S. 553.844 was not part of the solicitation." On April 4, 2008, Rule 9B-3.0475, as amended to incorporate by reference the Revised Manual, took effect. See Fla. Admin. Code R. 9B-3.0475 (2008). On May 16, 2008, DEP posted notice of its intent to reject all bids received in response to the ITB. (Bookhardt's protest, which remained pending, had never been referred to DOAH for a formal hearing.) Spinella timely protested the Department's decision to reject all bids. In an email sent to Spinella on July 22, 2008, DEP's counsel explained the rationale behind the decision: The reason the Department rejected all bids follows. When the Department posted the notice of intent to award the contract to Spinella Enterprises, Inc., the second low bidder (Bookhardt Roofing) protested the intent to award. The second low bidder's basis for protesting the intended award was that Addendum 4 directed bidders to ignore certain rules of the Construction Industry Licensing Board [sic], which had become effective after the bid opening, which was not in accordance with the law. As a result, this may have caused confusion and the Department had no assurance that bidders were bidding the project correctly. In addition, the statement in Addendum 4 that the Department would add the required moisture barrier afterward by change order set up a situation where bidders had no idea how much the Department would be willing to pay for the change order. Further, the moisture barrier was not the only thing required by the new rules. Potential bidders may not have bid due to these uncertainties. The Department agreed with Bookhardt's assertions and rejected all bids . . . . Notwithstanding Spinella's protest, the Department issued a second invitation to bid on the project in question. As of the final hearing, the bids received in response to this second solicitation were scheduled to be opened on August 12, 2008. Ultimate Factual Determinations The Department's decision to reject all bids is premised, ultimately, on the notion that the Directive told prospective bidders to ignore an applicable rule in preparing their respective bids.5 If this were true, then the Directive could have been a source of potential confusion, as the Department argues, because a prudent bidder might reasonably hesitate to quote a price based on (possibly) legally deficient specifications. The Directive, however, did not instruct bidders to ignore an applicable, existing rule. Rather, under any reasonable interpretation, it instructed bidders to ignore a proposed rule and follow existing law. Such an instruction was neither confusing nor inappropriate. To be sure, the first sentence of the Directive——at least when read literally——misstated a fact. It did so by expressing an underlying assumption, i.e. that Rule 9B-3.0475 recently had been changed, which was incorrect. In fact, as of February 5, 2008, the Rule was exactly the same as it had always been. (It would remain that way for the next two months, until April 6, 2008).6 DEP's misstatement about the Rule might, conceivably, have confused a potential bidder, at least momentarily. But DEP did not factor the potential for such confusion into its decision to reject all bids, and no evidence of any confusion in this regard was offered at hearing.7 More important is that the unambiguous thrust of the Directive was to tell bidders to rely upon the "not recently changed" Rule 9B-3.0475, which could only have meant Florida Administrative Code Rule 9B-3.0475 (2007) as originally adopted, because that was the one and only version of the Rule which, to that point, had ever existed. Thus, even if the Department were operating under the mistaken belief, when it issued the Addendum, that Rule 9B-3.0475 recently had been amended; and even if, as a result, DEP thought it was telling prospective bidders to ignore an applicable, existing rule, DEP nevertheless made clear its intention that prospective bidders follow the original Rule 9B- 3.0475, which was in fact the operative Rule at the time, whether or not DEP knew it. Indeed, as any reasonable potential bidder knew or should have known at the time of the Addendum, (a) the Commission recently had approved the Revised Manual, but the contents thereof would not have the force and effect of law unless and until the Revised Manual were adopted as a rule, which had not yet happened; (b) the Commission had initiated rulemaking to amend Rule 9B-3.0475 so as to adopt the Revised Manual as a rule, but the process was pending, not complete; (c) Rule 9B-3.0475 had not been amended, ever; and, therefore, (d) the Manual still had the force and effect of law. See endnote 6. The Directive obviously could not alter or affect these objective facts. At bottom, then, a reasonable bidder, reviewing the Directive, would (or should) have concluded either (a) that the "recent change" which DEP had in mind was the Commission's approval of the Revised Manual (or the subsequent announcement of the proposed amendment to Rule 9B-3.0475) or (b) that DEP mistakenly believed the Rule had been changed, even though it had not been. Either way, a reasonable bidder would (or should) have known that the Department wanted bidders to prepare their respective bids based not on the Revised Manual, but the Manual. In other words, regardless of what DEP subjectively thought was the existing law, DEP clearly intended (and unambiguously expressed its intent) that bidders follow what was, in fact, existing law. This could not have confused a reasonable bidder because, absent an instruction to exceed the minimum required legal standards (which the Directive was not), a reasonable bidder would have followed existing law in preparing its bid, just as the Directive required. Once it is determined that the Directive did not, in fact, instruct bidders to ignore an applicable, existing law, but rather told them to rely upon the applicable, existing law (notwithstanding that such law might change in the foreseeable future), the logic underlying the Department's decision to reject all bids unravels. Simply put, there is no genuine basis in logic or fact for concluding that the Addendum caused confusion. The other grounds that DEP has put forward do not hold water either. Contrary to the Department's contention, the possibility that a Change Order would be necessary if an "additional water barrier" were required could not possibly have confused potential bidders or caused them to be uncertain about how much money the Department would be willing to pay for such extra work. This is because Article 27 of the Construction Contract prescribes the procedure for entering into a Change Order, and it specifies the method for determining the price of any extra work. See ITB at 102-05. The fact that the proposed amendment to Rule 9B-3.0475, if it were to be adopted and become applicable to the instant project, might require other additional work, besides a water barrier, likewise could not reasonably have caused potential bidders to refrain from bidding, for the same reason: The Construction Contract contains explicit provisions which deal with the contingency of extra work or changes in the work. Id. In sum, DEP's intended decision to reject all bids cannot be justified by any analysis that a reasonable person would use to reach a decision of similar importance. It is, therefore, arbitrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that its decision to reject all bids was arbitrary. Because the Department elected not to comply with the statutory directive to abate this procurement pending the outcome of Spinella's protest, with the result that the contract at issue possibly has been awarded already to another bidder; and because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation regarding the means by which DEP should rectify the harm to Spinella, but he urges that other appropriate relief be granted if Spinella cannot be awarded the contact. DONE AND ENTERED this 2nd day of October, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 2008.
The Issue The issue for determination is whether Respondent's intent to award a contract for bridge-tending services (RFP DOT 92/93 2088 REBID) to Intervenor constitutes fraudulent, arbitrary, capricious, illegal or dishonest action.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-12., below. Stipulated Facts Respondent issued the RFP for bridge-tending services on May 14, 1993. Proposals submitted in response to the RFP were opened on June 16, 1993. Proposals were submitted by five firms, including Petitioner and Intervenor. All proposals were determined at the time to be responsive. A Technical Review Committee (TRC) was appointed to review the technical portion of the proposals. The three members of the TRC were Alan Hyman, J. L. Gillis, and Yingyong Sujjavanich. The members reviewed the technical portion of the proposals on June 17, 1993. The evaluation forms completed by the TRC and a summary score sheet were delivered to Respondent's purchasing office on the morning of June 18, 1993. The price proposal was evaluated by Respondent's purchasing office. The price evaluation of each proposal was performed by applying a formula which compared the submitted price quotations. After the scores for the technical proposal and the cost proposals were totalled, it was determined that Intervenor's proposal had earned the highest number of points. This result was presented to Respondent's District 2 Executive Committee and a recommendation was communicated by the Purchasing Director to award the RFP to Intervenor. The Executive Committee accepted the recommendation and directed that the contract be awarded to Intervenor. On June 18, 1993, at 4 p.m., the bid tabs were posted noticing Respondent's intent to award the contract to Intervenor. On or about July 6, 1993, Petitioner requested a meeting with Respondent's representatives regarding the RFP. That meeting was held on July 9, 1993. At the meeting, Petitioner raised an issue regarding an arithmetic error in the scoring of the technical proposals. Intervenor remained the proposer with the highest number of points. However, another proposal formerly ranked as number two was lowered to number three status and Petitioner, previously ranked number three, was raised to number two rank. On July 12, 1993, Respondent posted an amended bid tab indicating its intent to award the contract to Intervenor. Other Facts Respondent chose to score the bid pricing, a non- subjective task, in Respondent's District 2 office. Technical portions of the proposals were reviewed by the TRC, comprised of members from Respondent's District 5 office. This unusual step was taken by Respondent in order to reduce prejudice to any proposal in view of previous accusations made against District 2 employees. Bud Rosier, Respondent's employee, has overall responsibility for bridge determination that District 5 employees chosen as committee members were qualified to evaluate the proposals. Each response to the RFP contained a technical proposal and a price proposal. Intervenor's technical proposal received 1.33 points less than Petitioner's technical proposal. The price proposals, as noted above, were scored in accordance with a mathematical formula that compares price proposals to each other and does not take any subjective factors into consideration. Intervenor was awarded 5.55 points, compared to Petitioner who received no points for a proposal more than $140,000 higher for the initial year of the contemplated contract. Although members of the TRC were not given any background information by Respondent regarding the competing proposals, beyond that contained in the submitted bid packages, no information was withheld from the committee. The members were given adequate time to review the proposals and do any desired independent background checking regarding past performance of any proposer, although no requirement in the RFP mandated such a background review. At least one of the TRC members, Sujjavanich, chose not to independently research past performance of the Intervenor. No evidence was offered at hearing with regard to whether the other two members independently researched any of the proposers' past performances. Even if review of past performance, apart from the materials submitted by the proposers, were required by provisions of the RFP, failure of the evaluators to accomplish that task would result only in the loss to Intervenor of the 3.66 points awarded for past performance and Intervenor, with a remaining total of 81.89 points, would remain the highest ranked proposer. In view of the objective process used to arrive at the results of the evaluation of the prices of the competing proposals, there was no need to provide this information to the members of the TRC who were doing the technical proposal evaluation. Although the RFP provided that the TRC would be given such results, the failure of Respondent's personnel to provide this information to the evaluators could not have made any difference in the final result since the committee, using the objective price evaluation criteria, would have arrived at the same result as the purchasing office on cost scores. The admitted failure to provide the superfluous cost information to the TRC is inadequate to show that such omission resulted in prejudice to the final scores of any of the competing proposals and must be considered to be only a minor variation from the RFP by Respondent. Contrary to Petitioner's allegations, there is no competent substantial evidence to support any finding that the members of the TRC (Hyman, Gillis, and Sujjavanich) did not possess required background, experience or professional credentials adequate for evaluating proposals for bridge-tending services. All three members of the TRC were familiar with the RFP, attachments to the RFP, bridge-tending procedures and bridge-tending qualification procedures. There is no competent substantial evidence to establish that Intervenor's proposal is not financially feasible. Proposed utilization of 72 bridge-tenders by Intervenor for a total price of $673,333.44 does not mean that 72 bridge-tender positions would be established or filled, or that the positions would be paid at the rate proposed by Petitioner of $8.40 per hour. The evidence establishes that a proposer would need an optimum number of bridge requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the award of the bid in RFP DOT 92/93 2088 Rebid to Intervenor. DONE AND ENTERED this 4th day of October, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4271BID The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-12. Accepted. 13.-16. Rejected, relevancy. 17. Accepted. 18.-19. Rejected, relevancy. 20.-25. Accepted. 26.-27. Rejected, cumulative. 28. Rejected, credibility. 29.-33. Rejected, relevancy. 34.-35. Accepted. 36.-37. Rejected, argumentative and mischaracterization. 38.-46. Rejected, subordinate to HO findings. 47.-51. Rejected, relevancy. Intervenor's Proposed Findings. 1.-2. Rejected, cumulative. 3.-4. Accepted. 5.-6. Rejected, unnecessary. Rejected, cumulative. Rejected, unnecessary. Rejected, argumentative. 10.-11. Rejected, unnecessary. 12.-13. Adopted by reference. 14.-16. Accepted, but not verbatim. 17.-22. Adopted by reference. 23. Rejected, unnecessary. 24.-30. Adopted, but not verbatim. 31. Rejected, narrative. 32.-35. Rejected, cumulative. Respondent's Proposed Findings. 1.-11. Adopted. 12. Rejected, unnecessary. 13.-17. Adopted, not verbatim. 18.-19. Rejected, cumulative. 20.-22. Adopted. 23. Rejected, recitation of RFP. 24.-26. Adopted. 27. Rejected, recitation of RFP. 28.-29. Adopted in substance. COPIES FURNISHED: Thomas Cassidy, III, Esquire. John O. Williams, Esquire Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 Carolyn S. Holifield, Esquire Mark D. Tucker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Timothy G. Schoenwalder, Esquire 204-B South Monroe Street Tallahassee, Florida 32302-3068 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building # 562 605 Suwannee Street Tallahassee, Florida 32399
The Issue On May 12, 2004, did Respondent, Department of Transportation (DOT), act illegally, arbitrarily, dishonestly, or fraudulently when it cancelled the posting and noticed its intent to reject the bid of Rosiek Construction Co., Inc. (Rosiek), in relation to financial project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement, SR 682 (the Project)? § 120.57(3)(f), Fla. Stat. (2004).
Findings Of Fact The subject of this protest is financial project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement. Respondent and 12 other pre-qualified bidders received copies of the bid solicitation notice, plans and specifications for the Project at issue. Rosiek submitted a responsive bid for the Pinellas Bayway Bridge Replacement on April 28, 2004. There were no other bidders. Rosiek is pre-qualified to bid and receive the contract for the Project and therefore is a responsible bidder. On May 12, 2004, DOT posted its notice of intent to reject all bids. Rosiek timely filed this bid protest on May 14, 2004, with DOT, along with the statutorily required bid protest bond. DOT's 2004 Standard Specifications for Road and Bridge Construction is applicable to this project. FACTS BASED UPON ROSIEK'S ADMISSIONS DOT had advertised its bid solicitation notice for Financial Project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement on or about March 4, 2004. Rosiek received the copy of the Bid Solicitation Notice for the Project. Rosiek did not file a specifications challenge with respect to the referenced Project. DOT advertised the amount of $37,087,000.00 as its budgeted amount for the Project. Rosiek submitted a total bid of $50,470,378.12 for the Project (total bid A+B). ADDITIONAL FACTS Juanita Moore is a manager of the DOT Contracts Administration Office. She served as a member of the Technical Review Committee and the Awards Committee in relation to the Project. When the Technical Review Committee is confronted with a bid, such as the Rosiek bid, which is from a single bidder, something is missing from the bid or for certain differentials in price between the bid received and the official cost estimate, the Technical Review Committee considers these to be "problem jobs." In connection with terminology, Ms. Moore explained that the budget figure, referred to in the Bid Solicitation Notice for the Project as a Proposal Budget Estimate, is derived from an earlier estimate in the process and in turn an official cost estimate was established for the Project. The official cost estimate is also referred to simply as the estimate. The official cost estimate has not been disclosed as has been explained in the Preliminary Statement to the Recommended Order. The official cost estimate here is broken down into component items within the Project pertaining to cost for Mobilization, Concrete Class IV, Concrete Class V, etc. After the Technical Review Committee considered the Rosiek bid, the bid was passed on to the Awards Committee where it was decided to reject the bid. According to Ms. Moore the bid was rejected as too high when compared to the official cost estimate. The reference to a bid being too high relates to a bid which is more than 10 percent in excess of the official cost estimate. The budget figure and the official cost estimate are not necessarily the same in a given instance. The fact that it was the only bid was also a factor considered in the rejection. As Ms. Moore explained, at the time the Rosiek bid was rejected, it was principally because it was too high in relation to the official cost estimate. Given the posture in this case, the rejection as the only bid will form the basis for resolving this dispute, absent DOT's willingness to divulge the amount of the official cost estimate or how it was established. DOT does not have an established policy for rejecting bids based upon the fact that only a single bidder responded to the solicitation. In her experience, Ms. Moore does not remember DOT rejecting a bid solely on the ground that there was only one bidder. The minutes of the Awards Committee meeting held on May 12, 2004, detail the response by that committee to the Rosiek bid. In the copy of that document provided for this proceeding, DOT's official cost estimate is redacted. The percentage differential between the official cost estimate and the Rosiek bid is likewise redacted. The item number 0101-1 for Mobilization reflects Rosiek's bid of $4,900,000.00 compared to the official cost estimate which is redacted. Similarly, Item No. 0400-4-4, Concrete Class IV refers to the contractor bid price of $800.00 per cubic yard compared with the official cost estimate which is redacted. There are other comparisons between several additional categories or items in which the contractors bid price is reflected but the official cost estimate in comparison is redacted. The minutes go on to describe how the review being made by the Awards Committee led to the conclusion that the official cost estimate could be adjusted, placing the bid received by Rosiek a certain percentage above the estimate on a 10 percent criteria job but the differential between the adjusted official cost estimate and the Rosiek bid is not revealed as a percentage because of redaction. The DOT district where the project would be located is District 7, the Tampa office. The minutes of the Awards Committee meeting indicate that the district and the Technical Review Committee recommended to the Awards Committee that it reject the Rosiek bid and re-advertise. That was the decision made by the Awards Committee on May 12, 2004, to re-let in June. Nothing in the minutes prepared by the Awards Committee refers to the significance of Rosiek as the only bidder and any concern which the Awards Committee had about that fact. On May 12, 2004, when DOT provided a Cancellation of Posting and a Notice of Intent to Reject to Rosiek, it did not state the rationale for that decision. It merely indicated to Rosiek that it was DOT's intent to reject all bids on the project and advised Rosiek of its opportunity to contest that decision. On May 5, 2004, Kenneth A. Hartmann, P.E., the District 7 Secretary, prepared the District Response to Post- Bid Evaluation of Bids in Excess of Approved Award Criteria. The document is presented in question-and-answer form. In response to the question numbered 4 within the document, related to the prospect of critical safety deficiencies in the existing system being corrected by the construction of a new bridge, Mr. Hartmann responded with the answer "No." In relation to question numbered 2, excluding normal inflation, the question was asked whether re-advertising the project would likely result in a higher bid. Mr. Hartman answered "No." In response to question numbered 16, related to his recommendation as the district secretary, for action that should be taken by the Awards Committee he stated "This project should be rejected and re-advertised for a June 2004 1st [sic]. Considering that the project is medium to large and was competing against two other large bridge projects on the same day it is understandable that the contractor's bid was higher than our estimate." In response to question numbered 15 concerning the work load level of the contracting industry in the locality where the project would be constructed, Mr. Hartmann referred to "a high level of work load." At hearing Donald Skelton, P.E., the District 7 Secretary testified in support of the rejection of the Rosiek bid. In the past he had served as Director of Transportation Development with DOT, a position that made him responsible for preparation of the design plans and contract packages that are bid. He had involvement with this Project pertaining to the preparation of design plans and getting the Project to contract letting. He reviewed the Rosiek bid. In discussions related to the Rosiek bid during the post-bid evaluation period, there was a concern over a lack of competition and the differential between, what Mr. Skelton refers to, as the budget amount and the bid amount by Rosiek. Mr. Skelton was mindful of potential safety issues that might warrant the prospect of trying to find additional money to fund the Project, if it was necessary to replace the existing bridge for safety reasons. If the bridge were structurally deficient or in bad shape, that would need to be addressed, versus the additional time necessary to potentially rebid the project. No safety issues of that sort were found by Mr. Skelton. Mr. Skelton explained that the fact that there was single bidder made it difficult, if not impossible, to make a comparison between that bid and what the true market value of the bridge construction would be. Mr. Skelton expressed the hope by the DOT, that there would be more than one bidder in the future to truly get an impression of the degree of competition and whether the competition would result in a realistic price for the public. He recognized that there is no guarantee that DOT is going to get a lower bid if the project is re-bid. Mr. Skelton indicated that when you have multiple bids you can compare what the economic system would support in relation to the affordability of the project. That comparison is of similarity in prices among the competitors trying to win the job, with the belief that bidders put their best effort forward to prevail in the competition. A single bid does not give any indication of market factors, in his view. Michael Rosiek is the vice-president for Rosiek. In his testimony, he expressed a concern that if the project was re-let for bid, Rosiek's competitive position would not be good, in that the other contractors would have read the Rosiek bid that was made in the first letting, informing the competitors of the Rosiek price to its detriment. Further, Mr. Rosiek expressed a concern that in a re-letting the company would be bidding "against ourselves." Louis Wenick, P.E., has a business consulting service. The nature of the business is consulting work relating to the construction industry. A considerable part of the business involves DOT projects. In his work Mr. Wenick is involved with scheduling, cost analysis, and entitlement analysis in DOT projects. He is familiar with DOT's specifications, policies, and procedures. Mr. Wenick is a registered engineer in Florida and a certified general contractor in Florida. Mr. Wenick obtained information from DOT concerning its history in receiving sole bids for a project and the instances in which the sole bidder was awarded the contract. Mr. Wenick looked at procedures followed by DOT in awarding contracts. Mr. Wenick looked at the DOT experience in re- letting bids to determine if a company was a low bidder in the first letting when bids were rejected, and what percentage of the time that low bidder would succeed in being awarded the contract upon a re-letting. Mr. Wenick prepared certain charts intended to depict the DOT response in the areas examined by the witness. Rosiek's Exhibit numbered 3 is referred to as Problem Jobs for the April 28, 2004, letting, with two posting dates of May 20, 2004, and June 7, 2004, respectively. The chart depicts the proposal I.D. number (bid), the project number and the type of problem identified in reviewing bid responses and a brief statement of the Technical Committee's comments and the Awards Committee's disposition in those projects depicted. Nothing more is described in the chart. In no case set forth in the chart was the type of problem described in any detail or, limited to an experience with a single bidder, as opposed to perceived problems in relation to the bid that was too high, as well as having a single bidder or to the problem of having a bid that was too high alone. Seven projects were awarded. Two were not. The rejections were based upon the bids being too high. One of the projects initially awarded was later rejected due to the unavailability of local funding to support the project. Mr. Wenick prepared a chart, Rosiek's Exhibit numbered 4. This reflects the DOT award results for sole or single bidders from the period July 1999 through April 2005. The columns in the chart show the numeric count of sole bids, at certain letting dates, with the contracts numbers, the name of the low bidder, and the disposition of the bids. The numeric count of sole bids is a running tally over the period. This reflects 52 sole bids of which eight were rejected, making the percentage accepted 84.62 percent. Again the nature of the projects is not shown in the chart, and this chart does not indicate the basis for rejection. Rosiek's Exhibit numbered 5 is another chart prepared by Mr. Wenick. It reflects instances in which projects were re-let for bid in the period July 1999 to April 2005. The letting dates are reflected. The project numbers, the low bidders names, if known, and the amount quoted is set out. The re-let date if the project was re-let is reflected. The low quote on re-bid and the low bidder's name on re-bid are reflected, as is the percentage difference between the low quote in the first letting and the low quote in the re- letting. Where data is established in all columns in the chart, 18 of the projects are shown to have been re-bid out of 24 projects that were bid initially. Within that group, five bidders who bid in the initial letting were awarded the contract in the re-letting, while 13 low bidders in the first letting were disappointed in the re-letting. This equates to 27.78 percent success rate by the low bidder in the initial letting when re-bidding in the re-letting. Having considered the exhibits prepared by Mr. Wenick, the information is insufficient to discern the reason for DOT's past policies and practices and to compare them to the present case for consistencies in the application of those policies and practices when rejecting bids. Additionally, the reason for the choices in any single project described in the charts cannot be appropriately understood from the charts and compared to the experience here. On the topic of the success rate for contractors who provided the low bid in the original letting and the low bid in the re-letting, it is so general an analysis, that it cannot be relied upon to determine the real significance for contractors who provided the low bid in the original letting, only to be disappointed in the re-letting when the contractor did not receive the contract.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered dismissing the Rosiek Amended Formal Written Protest challenging the DOT decision to reject its bid. DONE AND ENTERED this 17th day of August, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ CHARLES C. ADAMS 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 17th day of August, 2005.
The Issue Whether the Florida A&M University's intended action to reject all bids and re-advertise the project to construct "Utilities Improvement-Central Chilled Water Plant, Phase V", known as BR-389, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Parties Neel Mechanical Contracting, Inc., is a Georgia corporation authorized to do business in Florida and licensed by the Florida Construction Industry Licensing Board. Its business is air conditioning, and it specializes in larger projects such as the one at issue herein. Robert C. Sullivan is the President of Neel Mechanical. Thomas Gregory Lang is a project manager employed by Neel Mechanical and the chief estimator for Neel Mechanical; Mr. Lang is the person primarily responsible for preparing Neel Mechanical's bid proposal for Project BR-389. The Florida Board of Regents is a corporate body consisting of the Commissioner of Education and thirteen citizens appointed by the Governor and approved by three members of the Cabinet; it is subject to the general supervision and control of the Department of Education. Sections 240.203(2), 240.205, and 240.207(1), Florida Statutes (1999). The Board of Regents is a member of the State University System, is charged generally with overseeing the state universities, and has the authority to approve and execute contracts for "construction for use by a university when the contractual obligation exceeds $1 million." Sections 240.209 and 240.205(6), Florida Statutes (1999). 4/ Florida Agricultural and Mechanical University ("FAMU") is a public university located in Tallahassee, Florida, and is one of ten universities in Florida's State University System. Section 240.2011, Florida Statutes (1999). The university president is the chief administrative officer of the university and is responsible for its operation and administration. Section 240.227, Florida Statutes (1999). At the times material to this proceeding, Frederick S. Humphries was president of FAMU, and Samuel J. Houston was the Director of FAMU's Office of Facilities Planning and Construction. Mr. Houston has primary responsibility for supervising the bid process and the staff that prepared the bid documents and evaluated the bids for Project BR-389. Mr. Houston acts in this capacity on behalf of President Humphries and the Board of Regents. Mr. Houston also is ultimately responsible for the administration of Project BR-389. Bayou Mechanical, Inc. ("Bayou Mechanical") is a mechanical contractor which submitted a bid on Project BR-389. Call for Bids In Volume 25, Number 13, of the Florida Administrative Weekly, dated April 2, 1999, FAMU, on behalf of the Board of Regents, issued a Call for Bids on Project BR-389, which involves construction of a chilled water plant on the FAMU campus. The Call for Bids provided that all bidders must have a valid Florida license to do the work at the time of bid opening and a minimum of five years experience with similar projects. Project BR-389 involves a construction contract and is the fifth phase of the construction of an underground chilled water system on the FAMU campus. The project consists of constructing a portion of the system and connecting it to the existing system. The Call for Bids notified prospective bidders that sealed bids would be received at FAMU on May 4, 1999, until 2:00 p.m., after which time the bids would be opened and the bid tabulations posted. The Call for Bids further provided: "Bids must be submitted in full and in accordance with the requirements of the drawings and Project Manual." The Call for Bids advised that these documents were available at the offices of the Architect/Engineer for the project, Bosek, Gibson & Associates, Inc. ("Bosek, Gibson"), in Tallahassee, Florida. In Addendum #2 to the Project Manual, dated April 30, 1999, the date for submission of bids was changed from May 4, 1999, to May 11, 1999. The Project Manual contains Instructions to Bidders, consisting of pages 6 of 106 through 22 of 106 and dated October 16, 1989; General Conditions of the Contract for Construction, consisting of pages 23 of 106 through 106 of 106 and dated October 16, 1989; Special Conditions of the Contract, consisting of pages I-1 through I-10 and dated October 16, 1989; Supplement J to the Project Manual, consisting of pages 1 through 11 and dated February 13, 1996; Supplement K to the Project Manual, consisting of pages 1 through 5 and identified as the February 1999 Revision; Exhibit L, Supplementary Conditions to the General Conditions of the Contract for Construction, consisting of pages 2 through 16; and the Technical Specifications, which are separately identified and numbered. As noted in the Call for Bids, drawings are also included in the bid documents. Neel Mechanical, Bayou Mechanical, and Council Contracting submitted bids for Project BR-389 on May 11, 1999, the date on which the bids were opened and the price proposals were read. According to the Bid/Proposal Tabulation form that was posted from May 14 through 19, 1999, Neel Mechanical was the apparent low bidder on the base bid and on the two alternates 5/; Neel Mechanical's base bid and its bid on alternates were within FAMU's budget for the project. Bayou Mechanical submitted the second lowest bid on the base bid and the alternates; Bayou Mechanical was within the budget on the base bid but over budget on the alternates. No recommended award or intent to award was indicated on the Bid/Proposal Tabulation form. Shortly after the bids were opened, several issues were raised with respect to the bid process. First, the FAMU staff discovered that Neel Mechanical had failed to affix its corporate seal to the signature page of the bid Proposal Form and to the Bid Bond that was part of the bid submission. Second, York International Company ("York") sent via facsimile on May 11, 1999, a letter advising FAMU's Office of Facilities Planning and Construction that York intended to protest the bid. This letter raised the third issue: Of the two manufacturers identified in the project specifications, York and The Trane Company ("Trane"), only Trane manufactured a chiller that could meet the project specifications. Fourth, Mark A. Daughtery, a project manager for Bayou Mechanical, sent a letter dated May 14, 1999, to Craig Allen at Bosek, Gibson advising him that Bayou Mechanical intended to file a formal protest on Project BR-389 and identifying two issues of concern to Bayou Mechanical: Neel Mechanical's failure to affix its corporate seal to its bid submission and "the Chiller being sole sourced to Trane Company." Each of these issues is discussed in detail below. Corporate Seal The Instructions to Bidders contained in the Project Manual provide: B-16 Preparation and Submission of Bids Each Proposal shall be submitted on the form contained in the Project Manual and bid prices shall be indicated thereon in proper spaces, for the entire Work and for all Alternates. (See B-8) In the event of a discrepancy in the bid amount on the Proposal between the numeric and written quotes, the written amount will govern. Each Proposal must give the full business address of the Bidder and state whether it is an individual, corporation or partnership. Proposals by a corporation must be signed with the legal name and seal of the corporation followed by the name of the state of its incorporation and the manual signature and designation of an officer, agent or other person authorized to bind the corporation. (Emphasis added.) When it was submitted on May 11, 1999, Neel Mechanical's bid did not include the impression of its corporate seal on the bid Proposal Form signature page or on the Bid Bond submitted as part of the proposal. After the bid opening, an employee of Neel Mechanical received a telephone call from Henry Swift, FAMU's Project Manager for Project BR-389, in which he advised Neel Mechanical that its bid had not been sealed. This conversation was followed by a request from Mr. Swift, sent via facsimile transmittal to Neel Mechanical on May 13, 1999, requesting a "Letter of Clarification which confirms your status as a corporation licensed to do business in the State of Florida, registered with the Secretary of State, etc. Finally, please be sure to sign and seal your letter with your corporate seal." A letter to Mr. Swift, dated May 14, 1999, was signed and sealed by Robert C. Sullivan, President of Neel Mechanical. The letter was received in FAMU's Office of Facilities Planning and Construction on May 19, 1999. Shortly after Mr. Sullivan sent the May 14, 1999, letter, Neel Mechanical received another telephone call from Mr. Swift in which he advised Neel Mechanical that the seal needed to be physically affixed to the bid Proposal Form. Peter Lang, a project manager employed by Neel Mechanical, had business in Tallahassee, so Mr. Sullivan asked that he take the seal to Mr. Swift's office and affix it to the bid Proposal Form. When Peter Lang arrived at Mr. Swift's office, someone brought out the file and gave him the bid Proposal Form, and he affixed Neel Mechanical's corporate seal to the signature page of the form. Neel Mechanical's corporate seal was not affixed to the Bid Bond, although the seal of the surety company was on the Bid Bond when the bid was submitted. The Bid Bond was part of Neel Mechanical’s bid submission. FAMU verified on May 13, 1999, that Neel Mechanical was authorized to do business in Florida and held the requisite Florida license to perform the work required by the project. Centrifugal chiller specifications and York's letter of "intent to protest" Section 15685-1 of the Technical Specifications included in the Project Manual contains the specifications for the Centrifugal Chillers - Water Cooled to be installed as part of Project BR-389. Those specifications provide in pertinent part: PART 2 - PRODUCTS MANUFACTURERS Available Manufacturers: Subject to compliance with requirements, provide centrifugal chillers from one of the following: Trane Co., The York Int'l. UNIT DESCRIPTION: * * * Refrigerant: Chiller shall be provided with low pressure refrigerant HCFC-123. The size of the chiller specified for Project BR-389 was 2200 tons. 6/ Lane Jackins is the owner of Applied Mechanical Equipment and is a manufacturer's representative for York. He reviewed the technical specifications for the chiller contained in Part II of Section 15685-1 of the Technical Specifications for Project BR-389 and determined that York could not furnish a chiller that met the specifications. York does not manufacture a chiller of 2200 tons that uses R123 refrigerant, although it uses R123 refrigerant in smaller machines up to 750 tons. The equipment manufactured by York in the 2,000-ton range uses R134A refrigerant, which operates at different pressures than R123. The York equipment using R134A refrigerant is of an entirely different design than that using R123 refrigerant. In addition, York does not manufacture a chiller with the voltage required by the project specifications. Three or four days before the bids were to be submitted, either Mr. Sullivan or Mr. Lang spoke with Mr. Jackins about York's providing Neel Mechanical with a price for the chiller. Mr. Jackins responded that York would not submit a price for the equipment because York did not manufacture a chiller that would meet the technical specifications included in the bid documents. The Instructions to Bidders in the Project Manual provide: B-12 Basis for Bidding - Trade Names For clarity of description and as a standard of comparison, certain equipment and materials have been specified by trade names or manufacturers. To insure a uniform basis for bidding, the Bidder shall base the Proposal on the particular systems, equipment or materials specified and approved substitutes as provided in Paragraph 3.19, Substitutes, of the General Conditions. After bids are received, no equipment or materials will be approved as a substitute for the specified product. Paragraph 3.19 of the General Conditions provides: Substitutions Substitutions for a specified system, product or material may be requested of the Architect/Engineer, and the Architect/Engineer's written approval must be issued as an addendum before substitutions will be allowed. All requests for substitutions must be submitted prior to the opening of bids, and approvals shall be granted no less than seven (7) days prior to the bid date. Substitutions requested after that date will receive no consideration. Substitutions are changes in materials, equipment, methods, or sequences of construction, design, structural systems, mechanical, electrical, air conditioning controls, or other requirements of the Drawings or Specifications. (Emphasis in original.) In the portion dealing with "SPECIFICATIONS AND DRAWINGS," Section 15010 of the Technical Requirements, "MECHANICAL REQUIREMENTS," provides as follows: By submitting a bid for equipment or material other than the "Design Basis Equipment" (i.e., that which is shown on the Contract Drawings), the Contractor: Represents that he has personally investigated the proposed substitute product and determined that it is equal or superior in all respects to that specified and complies with all the requirements set forth in Paragraph 3.19 of the General Conditions; Certifies that the cost data presented is complete and includes all related costs under this Contract but excludes costs under separate contracts, and excludes the Engineer's redesign costs, and waives all claims for additional costs related to the substitution which subsequently become apparent; Will coordinate the installation of the accepted substitute, making such changes as may be required for the work to be complete in all respects; and, Certifies that the proposed equipment meets the requirements of the Contract Documents. Neither York nor any prospective bidder on Project BR-389 requested within the time limits specified in Paragraph 3.19 of the General Conditions that a York product be substituted for the chiller specified for Project BR-389. Mr. Lang contacted Craig Allen at Bosek, Gibson a day or two before bids were to be submitted and told Mr. Allen that York was not able to provide a chiller that met the project specifications. According to Mr. Lang, Mr. Allen responded that he "was totally surprised that they [York] didn't have a machine that was going to meet this spec." 7/ Mr. Lang based Neel Mechanical's bid on pricing information it received from Trane, which manufactures a chiller that meets the project specifications. An additional reason Mr. Lang based Neel Mechanical's bid on the Trane equipment was his belief that, all things being equal, FAMU preferred to have Trane equipment installed in Project BR-389 because other chillers installed at FAMU were manufactured by Trane. Mr. Lang believed that the specifications for the chiller had been deliberately drawn to require use of Trane equipment. In a letter dated May 11, 1999, the day the bids for Project BR-389 were submitted and opened, Mr. Jackins notified FAMU's Office of Facilities Planning and Construction that York intended to protest the bid on Project BR-389. Mr. Jackins stated in the letter: The chiller as specified is a flat specification. There is only one manufacturer that will meet the criteria as spelled out in the contract documents. This is not in the best interest of the University System of Florida or the State of Florida. An official protest outlining all the proprietary items will be forthcoming. The letter was sent via facsimile on May 11, 1999, prior to the time the bids were opened. Mr. Jackins believed that the "flat specification" was not in the best interest of the university because it precluded competitive pricing for the chiller. Mr. Sullivan learned on May 11 or May 12, 1999, that York intended to file a bid protest. Believing that Neel Mechanical would be awarded the contract as the apparent low bidder, Mr. Sullivan met with Mr. Jackins and several employees of Neel Mechanical, including Greg Lang, at which time Mr. Sullivan proposed an alternative to York's filing a bid protest. Mr. Sullivan told Mr. Jackins that, in his opinion, the situation could best be handled through a meeting between Neel Mechanical, Mr. Jackins, Mr. Houston, and the project engineers. According to Mr. Sullivan's plan, Mr. Jackins could present York's pricing, and FAMU, with the engineers’ assistance, could decide if they wanted to switch from the equipment specified in the bid documents to York equipment. If FAMU agreed to accept the York equipment, then, if it were awarded the contract, Neel Mechanical would purchase the York equipment rather than the Trane equipment Neel Mechanical had included in its proposal. After some discussion, Mr. Jackins agreed with Mr. Sullivan's proposed solution. Post-bid activity from the perspective of Neel Mechanical Immediately after the bids were opened, Craig Allen, an employee of Bosek, Gibson telephoned Mr. Lang and asked if Neel Mechanical was still happy with its bid. According to Mr. Lang, Mr. Allen stated that "this is a standard practice of mine on bid day to call the apparent low bidder and just make sure that they haven't found some colossal error in their math or whatever that made them low." 8/ Mr. Lang told Mr. Allen that Neel Mechanical was still happy with its bid. After this conversation, Mr. Lang waited for the letter from FAMU awarding the contract to Neel Mechanical. He was not concerned that the award was not made immediately because, in his experience, some time always passed between bid opening and the time the winning bidder received the contract. However, in anticipation of the award of the contract, Neel Mechanical proceeded to talk with subcontractors, to start scheduling the project, and to line up equipment that it would need to purchase for work on the project. Neel Mechanical employees also made several visits to the site of the project. At some point after the bids were opened, Mr. Sullivan heard that the procurement officials at FAMU were discussing with FAMU's legal department the issues of Neel Mechanical's failure to affix the corporate seal to its bid and the ramifications of York’s threatened bid protest. Mr. Sullivan responded by telephoning the office of FAMU's general counsel. He spoke with Faye Boyce about these issues and told her that he considered his failure to affix the corporate seal to Neel Mechanical's bid to be insignificant. He also advised her that he had worked out an arrangement with the representative of York whereby York would withdraw its protest and Neel Mechanical would talk with the engineers about the York chiller so a decision could be made whether they wanted to use the York equipment or stay with the Trane equipment which met the project specifications. In a subsequent telephone conversation with Ms. Boyce, Mr. Sullivan received the impression that she had looked into the issues he had raised in their previous telephone conversation. Mr. Sullivan could not recall Ms. Boyce's exact words, but had the impression from their conversation that the contract award to Neel Mechanical had been approved and that confirmation would be sent out shortly. At some point after Mr. Sullivan's conversation with Ms. Boyce, Greg Lang telephoned Henry Swift to find out the status of the contract award. Mr. Swift told Mr. Lang that, in Mr. Lang's words, "the problem had been reviewed and found to be insignificant, and . . . that the letter of intent to award had already been made." 9/ According to Mr. Lang, Mr. Swift told him that FAMU would notify the bidders of the intent to award the contract to Neel Mechanical. On the basis of this conversation, Mr. Lang believed that Neel Mechanical would receive a letter "just any day." When Neel Mechanical did not receive a letter, Mr. Lang telephoned Mr. Swift again. According to Mr. Lang, Mr. Swift stated that he did not know why the matter was being held up. After this second conversation with Mr. Swift, Mr. Lang telephoned Mr. Houston several times but did not receive a return call. Mr. Lang then wrote a letter to Mr. Houston, dated July 9, 1999, in which he inquired about the status of the contract award: It has now been almost two months since you received bids for this project, and as the low bidder we have still not received notification of your intent to award. We have had several telephone conversations with the attorney representing the regents in this matter, and we were lead [sic] to believe that we would have received information before this time. Please review this matter and call us. If there are outstanding issues which concern you, we would like to know about them and work with you to get them resolved. Post-bid activity from the perspective of FAMU Mr. Houston and members of his staff considered the omission of the corporate seal to be a minor deficiency in Neel Mechanical's bid proposal. Nonetheless, even though Neel Mechanical had been allowed to seal the bid Proposal Form, Mr. Houston asked FAMU's Office of General Counsel to conduct research and determine if the deficiency was one that could be waived. Mr. Houston was not involved in drawing up the technical specifications for Project BR-389; rather, he relied on the project engineers to be familiar with the products to be used in the project. Mr. Houston advised the project engineers that he wanted a competitive bid, and, because the chiller was a major component of the project, he instructed the engineers to prepare specifications that could be met by equipment produced by at least two manufacturers. In a letter dated May 18, 1999, Craig Allen, the engineer at Bosek, Gibson who prepared the specifications for Project BR-389, notified Mr. Houston that he was not aware until the "notice of protest" was received from York that York could not provide a chiller of the required capacity which used R123 refrigerant. Mr. Allen advised Mr. Houston that Mr. Jackins, the York representative, had indicated that he wanted to meet with Mr. Allen to discuss York's chiller selections for the project. A recommendation that the contract be awarded to Neel Mechanical was signed on June 8, 1999, by Phyllis Nottage, the Assistant Director of FAMU's Office of Facilities Planning and Construction; on June 10, 1999, by Mr. Houston; on June 14, 1999, by Louis Murray, an Associate Vice President of FAMU; and on June 14, 1999, by Robert Carroll, a Vice President of FAMU with supervisory authority over the Office of Facilities Planning and Construction. The recommendation was contained in a document entitled "Award of Construction Contract," which provided as follows: On May 11, 1999, bids were received for the above-referenced project within the approved budget for the Base Bid and Alternates One (1) through (2), in the total amount of $3,996,400. The requirements for the Minority Business Enterprise Plan as set forth in the project specifications have been satisfied by the Contractor. The consulting Architect/Engineer and the University Facilities Planning and Construction Office recommend the award of this contract to Neel Mechanical Contractors, Inc. President Humphries signed the Award of Construction Contract on June 17, 1999. The preparation and signing of the Award of Contract form and the preparation of the Letter of Intended Decision were part of the bid review process, but Mr. Houston considered them preliminary, without effect until the final decision on the contract award was made and the bidders were formally advised of FAMU's intended decision with respect to the award of the contract. On June 21, 1999, Mr. Houston received a telephone call from Kenneth Ogletree, Director of the Board of Regents’ Office of Facilities Planning, 10/ in which Mr. Houston was advised that the Board of Regents had received an inquiry from a legislator in reference to Project BR-389 and requesting that Mr. Houston prepare a response to the legislator's inquiry. Mr. Ogletree sent Mr. Houston, via facsimile on June 21, 1999, a copy of a letter dated May 28, 1999, from Carey Huff, President of Bayou Mechanical, to Durell Peaden, a member of the Florida House of Representatives and a State Representative from District In the letter, Mr. Huff complained that Neel Mechanical, although apparent low bidder for Project BR-389, had failed to seal the bid Proposal Form and the Bid Bond and that, therefore, Neel Mechanical's bid was non-responsive. Mr. Carey requested that Representative Peaden contact FAMU so that Bayou Mechanical would be awarded the contract for the project as lowest responsive bidder. Mr. Carey stated in his May 28, 1999, letter to Representative Peaden that the college had refused to allow Bayou Mechanical to examine Neel Mechanical's bid but that Mr. Houston had informed them that Neel Mechanical had failed to seal its bid properly. 11/ Mr. Ogletree also sent Mr. Houston, via facsimile on June 21, 1999, a copy of a letter from Representative Peaden to Dr. Adam W. Herbert, Chancellor of the State University System. In his letter, Representative Peaden asked that Dr. Herbert look into the matter and "see that all equity was followed in the bid process." In response to the Board of Regents' request that he respond to Representative Peaden's inquiry, Mr. Houston prepared a letter dated June 22, 1999. In this letter, which was directed to Mr. Ogletree, Mr. Houston stated that FAMU wished to award the contract for Project BR-389 to Neel Mechanical as the low bidder on the project. Mr. Houston stated that FAMU considered Neel Mechanical's failure to affix the corporate seal on the bid Proposal Form and the Bid Bond to be a minor discrepancy. Mr. Houston further stated that FAMU's Office of General Counsel agreed with the conclusion regarding the corporate seal issue and recommended that the contract be awarded to Neel Mechanical. Finally, Mr. Houston advised Mr. Ogletree that President Humphries had signed the "Award of Construction Contract" form and that Mr. Houston's office was preparing "Letters of Intended Decision" to be sent to the bidders. The final decision on the contract award had not been made on June 10, 1999, when Mr. Houston signed the recommendation that the contract for Project BR-389 be awarded to Neel Mechanical, nor had it been made on June 22, 1999, when Mr. Houston wrote his letter to Mr. Ogletree. Rather, on June 22, 1999, the issues raised with respect to the bid process for Project BR-389 were still being reviewed by Mr. Houston and his staff and by FAMU's Office of General Counsel. The decision to reject all bids on Project BR-389 was made on June 24, 1999. On that date, Mr. Houston met with Vice President Murray, FAMU's attorney, and the Assistant Director of the Office of Facilities Planning and Construction, and the issues relating to the bidding process for Project BR-389 were reviewed. Mr. Houston identified these issues as Neel Mechanical's failure to seal its bid Proposal Form and its Bid Bond; potential protests from York and from Bayou Mechanical; and the problem relating to the technical specifications for the chiller. Of these issues, Mr. Houston considered the most serious the fact that, of the two manufacturers listed in the bid specifications, only Trane could provide the chiller for Project BR-389. The chiller was a major part of the project, and Mr. Houston wanted at least two sources for the chiller in order to encourage competition so that FAMU would get the lowest possible price for the project. Mr. Houston was also concerned that the specifications for the chiller created a de facto "sole source" bid and that the bid solicitation would, therefore, be illegal because FAMU didn't satisfy the statutory requirements necessary for it to specify that the chiller be purchased from a sole source. 12/ FAMU's attorney advised the participants at the June 24, 1999, meeting that the legal department had found no precedent within the State University System for waiving the requirement in the bid documents that the bid Proposal Form and the Bid Bond be sealed with the bidder's corporate seal. The participants at the meeting considered all of the outstanding issues and decided that it would be in the best interests of FAMU to reject all bids submitted on May 11, 1999, for Project BR-389. After the decision to reject all bids was made, Mr. Houston marked an "X" through the Award of Construction Contract form signed by President Humphries, and he prepared letters notifying the bidders of the intent to reject all bids for Project BR-389. Neel Mechanical's bid protest In a letter to Neel Mechanical dated July 6, 1999, Mr. Houston stated: Bids on the above referenced project were opened May 11, 1999. However, we regret to inform you that all Bids have been rejected as in the best interest of the University. This project is presently being re-advertised in the Florida Administrative Weekly. The University apologizes for the time it has taken to reach this decision. We trust that you will cooperate with our course of action and look forward to receiving a proposal from you at the next opening. Thanks for your continued interest in the State University System's Construction Program. The envelope containing Mr. Houston's July 6, 1999, letter was post-marked July 9, 1999, and the letter was received by Neel Mechanical on Tuesday, July 13, 1999. The Instructions to Bidders in the Project Manual provide: Rejection of Bids The Owner reserves the right to reject any and all bids when in the opinion of the Owner such rejection is in the best interest of the Owner. Paragraph B-1 of the Instructions to Bidders provides that the Board of Regents is the owner of the project. On July 13, 1999, after Neel Mechanical received the letter from Mr. Houston notifying it that all bids on Project BR- 389 had been rejected, Mr. Sullivan and Greg Lang went to Mr. Houston's office to urge him to rescind the decision and award the contract to Neel Mechanical. Mr. Sullivan told Mr. Houston that they felt that the issue regarding the corporate seal was insignificant. At this time, Mr. Sullivan also told Mr. Houston that he and York had reached an agreement whereby York would withdraw its protest and Neel Mechanical would present the York product to the University and let the University decide if it wanted to go with the Trane chiller or switch to a York product. Mr. Sullivan thought that Mr. Houston was sympathetic to Neel Mechanical but that the decision had been made by the administration and the legal department. Mr. Sullivan also got the impression that the decision to reject all bids was based on the corporate seal issue. On July 13, 1999, Neel Mechanical hand-delivered its Notice of Intent to Protest Bid to Samuel J. Houston, Director of the Office of Facilities Planning and Construction at Florida A&M University and to FAMU's Office of General Counsel. There is no dispute that the Notice of Intent to Protest Bid was actually received in Mr. Houston's office on July 13, 1999. On July 23, 1999, Neel Mechanical hand-delivered its Formal Written Protest and Petition for Formal Administrative Proceedings to Sam Houston, Director, Florida A&M University, Facilities Planning Department, Plant Operations Facility, Building A, Room 100, 2400 Wahnish Way, Tallahassee, Florida 32307 and to FAMU's Office of General Counsel. Also on July 23, 1999, a copy of the Formal Written Protest and Petition for Formal Administrative Proceedings was sent by United States Mail to the Board of Regents, Office of General Counsel, 325 West Gaines Street, Suite 1454, Tallahassee, Florida 32399-1950. There is no dispute that the Formal Written Protest and Petition for Formal Administrative Proceedings was actually received in Mr. Houston's office on July 23, 1999. The Instructions to Bidders in the Project Manual dated October 16, 1989, provide: Bid Protest To be considered, a bid protest must be received by the Director, Capital Programs, Florida Board of Regents, 1601 Florida Education Center, 325 West Gaines Street, Tallahassee, Florida 32399-1950, as provided in Section 120.53, Florida Statutes. Failure to file a notice of protest in this manner shall constitute a waiver of the Bidder's right to proceedings under Chapter 120, Florida Statutes. * * * B-26 Special Conditions Bidders shall be thoroughly familiar with the Special Conditions and their requirements. (Emphasis added.) Supplement J to the Project Manual, consisting of pages 1 through 11 and dated February 13, 1996, provides in pertinent part: (This supplement revises portions of the Project Manual for State University System projects dated October 16, 1989, and supersedes any other previously issued supplements related to the referenced topics.) Revise the Instructions to Bidders Section of the Project Manual as Follows: * * * Revise Paragraph B-22, Bid Protest, to read as follows: B-22 Bid Protest Any person who is affected adversely by the Board of Regents decision or intended decision shall file with the Associate Vice Chancellor, Capital Programs, Florida Board of Regents, 1602 Florida Education Center, 325 West Gaines Street, Tallahassee, Florida 32399-1950, a notice of protest in writing within 72 hours, excluding Saturday, Sunday, and State legal holidays, after receipt of the bidding documents if the protest is directed toward the bidding conditions or after the notice of the Board of Regents decision or intended decision on contract award or bid rejection if the protest is directed toward contract award or bid rejection. Thereafter, a formal written protest by petition in compliance with Section 120.53(5), and Section 120.57, F.S., must be filed with the Associate Vice Chancellor, Capital Programs, Florida Board of Regents, 1602 Florida Education Center, 325 West Gaines Street, Tallahassee, Florida 32399-1950, within ten (10) days after the date the notice of protest was filed. Failure to file a timely notice of protest of [sic] failure to file a timely formal written protest petition shall constitute a waiver of protest proceedings. Any protest filed prior to receipt of the notice of the Board of Regents decision or intended decision will be considered abandoned unless renewed within the time limit provided for protests. (Emphasis added.) Supplement K to the Project Manual, consisting of pages 1 through 5, provides in pertinent part: SUPPLEMENT TO PROJECT MANUAL ISSUED BY FLORIDA A&M UNIVERSITY REGARDING PARAGRAPH B-26, SPECIAL CONDITIONS (February 1999 Revision) B-26 SPECIAL CONDITIONS - This supplement modifies paragraph B-26 by adding and clarifying bidding requirements and instructions. * * * PROTEST PROCEDURES: This paragraph supersedes the paragraph (No. B-22) under the general terms and conditions whereby the notice of intended protests or written formal protests including bonding requirements from bidders must be submitted to: Mr. Sam Houston, Director, Florida A&M University, Facilities Planning Department, Plant Operations Facility, Building A, Room 100, 2400 Wahnish Way, Tallahassee, FL 32307. A bid tabulation with the recommended award(s) will be posted at the address indicated in Paragraph B-26, sub- paragraph 6 (Posting of Bid Tabulation). Any notice of protest or formal written protest to the award or intended award which is filed before the bid tabulation posting is null and void. To be considered, a notice of protest or formal written protest must be filed within the time limits set forth in Section 120.57(3)(b), Florida Statutes. Any notice of protest or formal written protest to the specifications issued by the University must be filed within the time limits set forth in Section 120.57(3)(b), Florida Statutes. Any notice of protest or formal written protest to any amendment issued by the University must be filed within the time limits set forth in Section 120.57(3)(b), Florida Statutes. (Emphasis added.) The instructions regarding the filing of bid protests in Supplement K supersede the instructions in Supplement J, which is dated February 13, 1996, and in the Instructions to Bidders in the Project Manual, which are dated October 16, 1989. Summary The evidence presented by Neel Mechanical is sufficient to establish that it timely filed its Notice of Intent to Protest and its Formal Written Protest and Petition for Formal Administrative Proceedings by hand-delivering the documents to Mr. Houston, at his office on the FAMU campus. The evidence presented by Neel Mechanical is not sufficient to establish with the requisite degree of certainty that FAMU acted fraudulently, arbitrarily, illegally, or dishonestly in deciding that it was in the best interest of FAMU to reject all of the bids submitted on May 11, 1999, for Project BR-389. First, FAMU's concerns that, by inadvertently including a technical specification that could be met by only one manufacturer, it had limited competition with respect to the chiller to be used in Project BR-389 and had inadvertently put out an illegal "sole source" specification were legitimate concerns. Mr. Houston instructed the engineer who prepared the technical specifications that he wanted the specifications drawn so that at least two manufacturers could provide the product, and the engineer prepared specifications relating to the "available manufacturers" which clearly contemplated that a chiller meeting the technical specifications could be provided by both York and Trane. FAMU did not act arbitrarily when it considered as one factor underlying the decision to reject all bids the lack of precedent in the State University System for waiving the requirement that the bid Proposal Form and Bid Bond carry the corporate seal of a corporate bidder. The evidence submitted by Neel Mechanical is not sufficient to establish with the requisite degree of certainty that the corporate seal issue was ultimately the only or even the major factor on which FAMU's decision to reject all bids was based. Mr. Houston identified the possibility that bid protests would be filed by York and by Bayou Mechanical as factors which FAMU considered in deciding to reject all bids. Nonetheless, the evidence taken as a whole permits the inference that the focus of the concern about the potential bid protests was not on avoiding the protests but on the validity of the issues raised by York and Bayou Mechanical. Accordingly, FAMU did not act arbitrarily when it considered these potential bid protests as one factor contributing to the decision to reject all bids. The evidence presented by Neel Mechanical is not sufficient to establish that the "Award of Contract" form executed by President Humphries on June 17, 1999, or Mr. Houston’s June 22, 1999, letter to Mr. Ogletree bound FAMU to award the contract to Neel Mechanical or that the subsequent decision to reject all bids defeated the purpose of the competitive bidding process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a final order dismissing the Formal Written Protest and Petition for Formal Administrative Proceedings filed by Neel Mechanical Contractors, Inc., and denying Neel Mechanical's Motion for Assessment of Attorney's Fees, insofar as it is based on the provisions of Section 120.595, Florida Statutes. Based on the foregoing Findings of Fact and Conclusions of Law, Neel Mechanical's Motion for Assessment of Attorney's Fees, insofar as it is based on the provisions of Section 120.569(2)(e), Florida Statutes, is denied. DONE AND ENTERED this 12th day of November, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 12th day of November, 1999.
The Issue Whether Respondent has acted acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly with regard to the intended award of ITB 93/94-040- LOT/P.
Findings Of Fact By correspondence filed July 18, 1994, this bid protest was referred to the Division of Administrative Hearings from the Department of Lottery for the conduct of formal proceedings pursuant to Section 120.53(5), Florida Statutes. The formal bid protest document consists solely of a single page letter signed by Petitioner's president, C. Whitside-Curry, basically stating that the letter is to serve as Petitioner's formal written protest to Respondent's "Notice of Award - Notice of Non-Responsiveness - ITB 93/94-040-LOT/P - Invitation To Bid for Painting the Interior of the Lottery Central Building. Final hearing in the matter was scheduled for August 2, 1994, in compliance with requirements of Section 120.53(5)(e), Florida Statutes, that bid protests be set for hearing within 15 days absent stipulation of the parties waiving that statutory time frame. By motion filed July 29, 1994, counsel for Petitioner sought a continuance of the final hearing for a period of one week. Counsel had just been retained by Petitioner. As reflected in Petitioner's motion, counsel's request for a one week delay was acceptable to counsel for Respondent, provided that: the 30 day time frame governing issuance of recommended orders in bid challenge cases was not waived. that deposition of a principal of Petitioner, C. Whitside-Curry, be held on August 3, 1994 at 11:30 a.m. and that certain documents also be produced. A telephone hearing on Petitioner's continuance motion was held on August 1, 1994, to clarify the hearing officer's understanding that a one week continuance of the final hearing would not subtract a period of one week from the 30 day time frame following the final hearing within which to prepare a recommended order in the case. Thereafter the motion was granted and final hearing rescheduled, as agreed in the telephone conference, for August 9, 1994, one week after the initial hearing date. By notice filed on August 3, 1994 (transmitted to Petitioner's counsel by facsimile transmission on July 29, 1994), Respondent documented the agreed upon deposition of C. Whitside-Curry and documents to be produced. By motion filed on August 3, 1994, subsequent to Respondent's notice, Petitioner's counsel sought a further continuance of the final hearing and noticed the unavailability of Petitioner's principal, C. Whitside-Curry, for the scheduled deposition on August 3 or the final hearing scheduled for August 9, 1994. By motion filed on August 3, 1994, subsequent to Petitioner's second motion for continuance, Respondent moved for imposition of sanctions, including the dismissal of the bid protest on the basis that Petitioner had not complied with conditions agreed to by the parties as a part of the one week continuance, i.e., C. Whitside-Curry did not appear for deposition and documents were not produced. The motion further related that Respondent's notice of the deposition and request to produce documents (filed on August 3, 1994) had been transmitted, as noted above, to Petitioner's counsel by facsimile transmission on July 29, 1994. In the course of telephone conference with the parties on August 8, 1994, Petitioner's counsel agreed to payment of costs related to court reporter expense incurred by Respondent at the deposition where Petitioner's principal failed to appear. Respondent's counsel refused to consent to further continuance of the final hearing and Petitioner's request for a second continuance was denied. At final hearing, consideration was given to an Petitioner's Amended Second Motion For Continuance. The motion differed from previous motions to the extent that an attached copy of a letter dated April 21, 1994, appeared to indicate that a mediation meeting in another legal proceeding required the Petitioners' presence in Tampa, Florida, on the afternoon of August 9, 1994. No direct admissible evidence of Petitioner's inability to attend the hearing was presented. Upon denial of the amended motion for continuance, counsel for Petitioner announced that he could not go forward.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the formal bid protest filed in response to Respondent's intent to award ITB 93/94-040-LOT/P, be DISMISSED. DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1994. COPIES FURNISHED: Curley R. Doltie, Esquire 1103 Hays Street P.O. Box 1325 Tallahassee, Florida 32302 Louisa Warren, Esquire Department of Lottery 250 Marriot Drive Capitol Complex Tallahassee, Florida 32399-4011 Marcia Mann Secretary Department of Lottery Capitol Complex Tallahassee, Florida 32399-4002 Ken Hart General Counsel Department of Lottery Capitol Complex Tallahassee, Florida 32399-4011 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case. ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA J C & C ASSOCIATES, INC., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Petitioner, DISPOSITION THEREOF IF FILED vs. CASE NO. 94-3185 DOAH CASE NO. 94-3955BID DEPARTMENT OF LOTTERY, Respondent. / Opinion filed January 22, 1996. An Appeal from Order of the Department of Lottery. Curley R. Doltie, Tallahassee, for Appellant. Louisa H. Warren of Department of the Lottery, Tallahassee, for Appellee. PER CURIAM. AFFIRMED. ALLEN and KAHN, JJ., and SMITH, SENIOR JUDGE, CONCUR. MANDATE From DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT To the Honorable Don W. Davis, Hearing Officer Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled: J C & C ASSOCIATES, INC., Petitioner, vs. CASE NO. 94-3185 DOAH CASE NO. 94-3955BID DEPARTMENT OF LOTTERY, Respondent. The attached opinion was rendered on January 22, 1996. YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida. WITNESS the Honorable E. Earle Zehmer Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 11th day of March, 1996. (SEAL) Jon S. Wheeler Clerk, District Court of Appeal of Florida, First District
The Issue The issue for consideration in this matter is whether the School Board of Broward County properly awarded Bid 92-143T for the procurement of propane gas for the school system for three years.
Findings Of Fact In August, 1991, the School Board of Broward County issued ITB's to various potential suppliers to supply it with liquid propane gas, (LP gas), for the next three years, under ITB number 92-143T. The current supplier under the contract let in 1989 is the Petitioner herein, Synergy. Synergy was one of the potential suppliers to receive a copy of the Board's new ITB. Paragraph 12 of the Special Bid Conditions required any protest of the specifications or conditions of the ITB to be filed within 72 hours of its receipt. Paragraph 15 of the Special Conditions allowed prospective bidders to address questions concerning the ITB to the Board's purchasing department. That agency's activity was limited to referring the inquirer to bid provisions which they could read and interpret for themselves. No Board employee was authorized to interpret any portion of the ITB or to release any information regarding requirements other than was contained in the written bid document. That Special Condition also notified prospective bidders that any official interpretations of the bid documents or its requirements, if necessary, would be communicated to the bidders in writing. The ITB was mailed on August 19, 1991 and bid opening was noticed therein to be at 2:00 pm on October 2, 1991 at the Board's purchasing department. The ITB was mailed to Synergy's Hollywood, Florida office and was, from there sent to the head office in New York. Mr. Garey, the responsible individual in Synergy's marketing department believes he received it on or about August 25, 1991. The general and special conditions and specifications of this ITB were, for the most part and as pertinent here, identical to those set forth in the 1989 ITB except that the current bid calls for delivery of the gas to the Board at specified locations which was not required in the prior contract. Shortly after receiving the ITB, Joel Garey, a long time employee of Synergy, who has prepared thousands of bids for government procurements, because gas prices were widely fluctuating, began to collect data on the price of LP gas preparatory to formulating Synergy's bid. Shortly before the bid was due, based on the latest available price information, Mr. Garey prepared Synergy's bid for the signature of Jeffrey Vogel, Synergy's vice president. The first bid prepared by Mr. Garey contained an error on the bid summary sheets. When, on October 1, 1991, one day before the bid was due, he noted what to him was an inconsistency in the bid specifications which, at paragraph 13, called for the bidder to deliver "full 100# tanks [of LP gas]," and to price invoice tickets, "with the conversion rate of 22 gallons per cylinder shown." The Board also wanted the filling of several 40# tanks for which delivery tickets and invoices, "will be in gallons based on the standard of 4.24 pounds per gallon." The parties agree that the accepted weight of a gallon of liquid propane gas weighs 4.24 pounds. Extrapolating from that point, Mr. Garey reasoned that if the Board wanted its tanks "filled to capacity", the 100# tanks would take 23.5 gallons of LP gas, (100 divided by 4.24), and the 40# tanks would take 9.43 gallons, (40 divided by 4.24). As a result, and being somewhat confused, Mr. Garey telephonically contacted the Board's contact point, Mr. Toman, who referred him to Mr. Combs, another Board official. Mr. Combs, notwithstanding the weight of 4.24 lbs/gal for LP gas listed in the Board's specifications, would not accept that figure from Mr. Garey without independent proof. Mr. Combs gave Mr. Garey his fax number so the proof could be sent when available and, in the meantime, said to fill the tanks to capacity. When he hung up from talking with Mr. Combs, Mr. Garey called his local manager and determined that under the 1989 contract which Synergy had with the Board, it had been filling the Board's tanks to capacity. When he called Mr. Tomans back at 4:00 PM that same day, Garey was told that Tomans had not heard from Combs about the problem, but that Garey should submit his bid timely or be out. Tomans also wanted to know why the issue had not been raised during the existing contract. Mr. Garey had no answer to that question. Based on the information he then had, Mr. Garey changed Synergy's bid and submitted one based on full tanks rather than the 22 and 6 gallons, respectively, mentioned in the bid specifications. Coincidentally, the bid as submitted was still in error in that Item C of the bid specs misstated the price per gallon delivered and this error was reflected in Items D, E, and G, and, ultimately, the total. This error was corrected, however, and did not play in the Board's decision to reject the Petitioner's bid. In arriving at Petitioner's bid based upon the "totally full" basis, Mr. Garey computed using the 23.5 and 9.43 gallon capacity cost divided by the 22 and 6 gallon conversion figures dictated by the Board. Mr. Garey was subsequently advised that Synergy was not the successful bidder. He also determined, from a telephone conversation with Mr. Tomans on October 3, 1991, that had the Petitioner's bid price not been raised to accommodate the larger volume, it's bid price would have been lower than that submitted by the successful bidder, Peoples Gas. During that conversation, Mr. Tomans advised Mr. Garey that ordinarily a bidder had 72 hours from receipt of the ITB to protest the specifications, but since there was some merit to Petitioner's contentions of an inconsistency regarding volume, he, Tomans, felt there should be an exception. However, Special Condition 15 specifically cautions prospective bidders it could not rely on any information given orally by Respondent and must submit any questions as to the bid consistent with the terms of General Condition 7. Mr. Garey admits he was remiss in not reading the fine print of paragraph 7 of the ITB and the protest provisions but on the afternoon of October 1, 1991, when he discovered the discrepancy, he immediately called the school board. If at that time they had told him he was too late to protest the specifications, this would have satisfied him and he would not have filed an appeal or protest. Instead, he was told that due to the merit of his argument he could protest, and he did so. His letter of protest was accepted even though not timely and the matter was brought to a hearing before the school board which ruled against Synergy on grounds other than time. He contends that the executive summary prepared for the school bard misled it into rejecting his protest. Mr. Garey also asserts that the bids were so close, if the margin had been greater than the discrepancy in the number of gallons to go into the cylinders he would have accepted the loss. Here, however, the total discrepancy is accounted for by the 3,770 gallons difference out of over 300,000 gallons. Mr. Arthur Hanby is the Director of Purchasing for the Broward County School Board and is familiar with this procurement and Synergy's bid. The provision in the ITB which provides for questioning of specifications was designed to comply with the requirements of Florida Statutes and the school board's policy. It is put in to equalize the opportunity for all prospective bidders to protest on an equal basis. It has been used by others in the past and when invoked, the bid solicitation process has been suspended until resolution of the matter in question. Mr. Hanby was also employed by the school board when the prior contract for propane was let with essentially the same specifications as are in issue here. The conversion rate was changed this year to more accurately reflect the market place. Even then no challenge was filed to the bid specifications. No written inquiry was received as to how to interpret them either, and at no time since Synergy, the winner then, has had the contract has it shown any confusion at to what it was to provide. Penny Good, General Manager for Peoples Gas, and the individual who prepared that company's bid read the bid solicitation thoroughly before preparing her company's bid. She was also employed with Peoples Gas when the prior contract was bid but had nothing to do with the bid at that time. She claims to have had no confusion as to what the school board wanted on this solicitation. She asked no questions of the school board because it was clear to her and she was satisfied the board wanted 22 gallons in a 100 # tank and 6 gallons in a 40 # tank, less than a tank filled to capacity. As she understands the business, there is no such thing as a "legal limit" on a tank. Admitting that an empty 100# tank would hold 23.5 gallons, which, practically, would be the maximum amount it could hold, it is easy to put less than 22 gallons in a 100# tank and less than 6 gallons in a 40 # tank. Under the terms of the agreement, tanks would not be filled on site. Empty tanks would be picked up and replaced with other tanks filled with either 22 gallons or 6 gallons as pertinent. From a review of all the evidence, it is clear that Synergy and Peoples Gas were not bidding the same thing. The quantity's to be provided were different and this accounts for the difference in bid price.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner's protest of the Board's award of Bid No. 92-143T to Peoples Gas Company, and denying Peoples Gas Company's request for an award of costs and attorney's fees. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-7494-BID The following constitutes my specific rulings on all Proposed Findings of Fact submitted by the parties to this proceeding under Section 120.59(2), Florida Statutes. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted but more a comment on the state of the evidence. Accepted. Not a proper Finding of Fact. & 13. Accepted. & 15. Rejected as not Findings of Fact but more Conclusions of Law. Accepted but Synergy's bid is not responsive to the Bid specifications. Rejected. Not a Finding of Fact. FOR THE RESPONDENT AND INTERVENOR: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. - 8. Accepted and incorporated herein. & 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 15. Accepted and incorporated herein. Not a Finding of Fact but a restatement of the evidence. Accepted. Accepted and incorporated herein. & 20. Not Findings of Fact pertinent to the issues herein. COPIES FURNISHED: Joel Garey Marketing Department Synergy Gas Corporation 23102 Sandalfoot Plaza Drive Boca Raton, Florida 33428 Joel Garey Synergy Gas Corporation 175 Price Parkway Farmingdale, N.Y. 11735 Edward J. Marko, Esquire Suite 201 Victoria Park Centre 1401 East Broward Blvd. Post Office Box 4369 Fort Lauderdale, Florida 33338 Arthur S. Hamby, Jr. Director Purchasing and Warehousing Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 James L. Brady Director Business Affairs Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 Peoples Gas Company 2700 Southwest Second Avenue Fort Lauderdale, Florida 33315 Jeffrey R. Sonn, Esquire Mishan, Sloto, Hoffman & Greenberg Suite 2350 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Virgil L. Morgan, Superintendnet School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The Authority is an agency of the State of Florida which, pursuant to memorandum of agreement with the State of Florida, DOT, has the authority to acquire right-of-way services and other contractual services relating to the development of that part of the Florida Turnpike known as Northwest Hillsborough Expressway (the Expressway). Kaiser is an Ohio corporation authorized to do business in Florida and has its principal place of business in Oakland, California. Colan is a Florida corporation which has its principal place of business in Fort Lauderdale, Florida. On December 4, 1990, the Authority issued a Request for Proposals (RFP) for the provision of right-of-way acquisition services for development of the Expressway. The request for proposals is titled "Request For Proposal, RFP- THCEA-R/W-90-001, Right-of-Way Negotiation, Relocation Assistance, Property Management and Asbestos Related Activities" (the RFP). Responses to the RFP were due on January 8, 1991. Timely responses to the RFP were filed by both Kaiser and Colan. Proposals were also submitted by Moreland Altobella, ROW Consultants, TransAmerica Energy, and Universal Field Services. The RFP stated that the proposals would be evaluated both on technical merit and on price, with the final ranking of the proposals to be determined based on the separate scoring of eleven separate technical and substantive areas added to a single score for price. On January 29, 1991, Kaiser received notice of the Authority's decision to award to Colan the contract for right-of- way acquisition services for the Expressway. Kaiser's proposal was ranked second by the Authority's evaluation committee, which consisted of William McLean, Dale Patten, Norris Smith, David May, and Ray Speer. The Expressway will come under the Turnpike Authority of the Florida Department of Transportation who is funding the project with state issued bonds. The Respondent is acting as the agent for the Florida Department of Transportation in carrying out this project. In submitting its Technical Proposal (exhibit 2) Colan listed Byron Cherkas as a CPA subcontrator to do Business Damage Reports. Colan also listed two additional CPAs from the firm of Dwight Darby & Co. in Tampa, one listed to do Business Damage Reports and one to do Business Damage Reviews. Although Colan had used Cherkas on previous right-of-way acquisitions to do Business Damage Reports, Colan had no agreement with Cherkas to perform this service when this proposal was submitted. Although Petitioner contends this made Colan's proposal nonresponsive, the Authority took the position that Cherkas was only a backup CPA and the proposal was responsive. There was no need to list additional CPAs and listing Cherkas did not make the proposal nonresponsive any more than it would have been nonresponsive had Cherkas' name had not been added. Petitioner further contends that Colan's proposal was nonresponsive because Colan would not be able to complete this contract in the fifteen months allotted based upon the scheduled contained in the proposal. The schedule [exhibit 2 (D.2)] showing the time for submission of the condemnation packages to the Authority in the tenth month of the project is clearly too late for the land acquisitions involved to be completed by the contract expiration date. This, however, does not make the bid nonresponsive. Colan, upon receiving the contract and agreeing to complete the project in the time allotted, is required to do so under the terms of the contract. The RFP provides for frequent meetings and reports from the successful bidder regarding the progress of the acquisition and modifications of schedules as needed. Furthermore, the Authority is not bound by the schedule contained in exhibit 2 and has no intention of allowing Colan to wait until the tenth month of the contract period to commence the preparation of the litigation documents. Colan acknowledges that waiting until the tenth month to commence suit preparation is unreasonable if the project is to be completed on time, and contends that a clerical error was made in preparing this schedule. Colan's president testified that Colan will comply with any reasonable schedule1 suggested by the Authority, and suit preparation will commence much earlier than the tenth month into the contract period. Petitioner's witness opined that the other companies submitting proposals did not fully understand the scope of the work involved, nor did the persons preparing the RFP. Petitioner's bid of nearly $5 million for this project is nearly $3 million higher than the lowest bid, and approximately $2.4 million higher than Colan's bid, and $1.5 million above the second highest bid. A more reasonable interpretation of the six proposals submitted would be that Petitioner grossly overestimated the scope of the work or overpriced its proposal. The RFP clearly established the scoring system to be used in evaluating the proposals. Five evaluators scored each proposal and the scores awarded are contained in exhibit 7. It is significant that Kaiser's average score in every category except price is higher than Colan's score. Colan received a total averaged score of 83.1 while Kaiser received an average score of 82. All five of the members of the Technical Review Committee who were involved in this RFP testified in these proceedings. All read the pleadings filed in this case and heard most of the testimony presented by Kaiser's witnesses. All testified that, after having heard the testimony and read the pleadings, if they rescored all of the proposals as of the date of the hearing their scores would be substantially tie same as the scores originally given to these proposals. Some of these scorers reduced the score given to Colan in the categories of production control, property management and/or past performance because of the schedule in Colan's proposal which indicated suit preparation would begin in the tenth or eleventh month of the project. The man hours required to accomplish the suit preparation aspects of this RFP are basically the same regardless of when this task is commenced. Accordingly, scheduling these tasks in the latter part of the contract period gave Colan no price advantage in the proposal submission.
Findings Of Fact The bid protest, which is the petition for administrative hearing, is a letter to the Clerk of Agency Proceedings, Department of Transportation, from Irwin M. Hart, President, Winko-Matic Signal Company, dated September 13, 1985. The bid protest letter alleges that Winko-Matic bidded as a joint venture on State Project No. 72000-3542 with BHT Electrical. The bid protest further alleges that Winko-Matic is currently working on the same intersections in Jacksonville, and Traffic Control Devices is a strong competitor of BHT, and that Winko-Matic fears that there will be severe problems arising from having two competitors working in the same intersection at the same time. The bid protest letter does not allege that Traffic Control Devices was not the lowest responsible bidder or that Winko-Matic was the lowest responsible bidder. None of the exhibits or testimony presented at the final hearing by Winko-Matic was directed to the issue of whether Traffic Control Devices was not the lowest responsible bidder, or the issue of whether Winko-Matic was the lowest responsible bidder. All of the evidence was directed to the issue of problems that might arise if Traffic Control Devices and Winko- Matic work in the same intersection together at the same time. The Respondent presented evidence, not contradicted by the Petitioner, that the Petitioner's bid was the fifth lowest out of about six bids. Traffic Control Devices, Inc. submitted the lowest bid. The formal opening of the bids on State Project 72000- 3542 was July 31, 1985. The Notice of Solicitation was four weeks before that date. The Petitioner did not file a notice to protest the Notice of Solicitation at any time prior to the final hearing. The only notice to protest filed by the Petitioner is the one mentioned above in paragraph 1. There is no direct evidence in the record that the Petitioner in fact received the Notice of Solicitation, but it must have received some form of notice since it submitted a bid.
Recommendation It is therefore recommended that the Florida Department of Transportation enter its final order dismissing the petition for a section 120.57(1), Fla. Stat., for lack of a substantial interest. DONE and ENTERED this 6th day of November, 1985, in Tallahassee, Florida. Hearings Hearings 1985. COPIES FURNISHED: Irwin M. Hart, President WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative this 6th day of November, Winko-Matic Signal Company 6301 Best Friend Road Norcross, Georgia 30071 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issues are: (1) whether the Petitioner's notice of bid protest filed on June 5, 1996, was timely under Section 120.53(5), Florida Statutes, and, if not, whether Petitioner has waived its right to participate in bid protest proceedings; and (2) if Petitioner's bid protest was timely filed, whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in rejecting the Petitioner's bid.
Findings Of Fact The Petitioner is a general contractor which operates in Alachua County and surrounding areas. The Respondent is the governing body of the school district in Alachua County. In April and May, 1996, the Respondent publicly advertised an Invitation to Bid on the Project which consists of hard courts for basketball, driveway paving and new drainage provisions. Petitioner and three other bidders timely submitted sealed bids to the Respondent at its office located at the E. Manning, Jr. Annex, 1817 East University Avenue, Gainesville, Florida. Petitioner's bid proposal included a Contractor's Qualification Statement setting forth Petitioner's experience and financial qualifications to act as the general contractor for the Project. There is no evidence that Petitioner is disqualified as a responsible bidder because: (a) it colluded with other bidders; (b) it based its proposal on bid prices which were obviously unbalanced; (c) it included any false entry in its bid proposal; or (d) it failed to completely fill out the required list of subcontractors. The Invitation to Bid does not set forth any other specific conditions which would disqualify an otherwise responsible bidder. However, Respondent reserves the right to reject any and all bids when it determines that such rejection is in its interest. Respondent publicly opened the bids and read them aloud at 2:00 P.M. on May 9, 1996 as required by the Invitation to Bid. Petitioner did not attend the opening of the bids. The Invitation to Bid specified that the bids would be "tabulated and evaluated by the Superintendent of Schools of Alachua County or member or members of his staff or other individual or individuals designated by him." Edward Gable is Respondent's Director of Facilities. The Superintendent designated Mr. Gable to evaluate bids received for facility projects and to formulate recommendations to Respondent. The Invitation to Bid does not set forth a time certain in which Respondent will notify bidders of its decision or intended decision. However, it does state as follows: At the next regular or special meeting of the Board or at the designated meeting thereafter, the bids, as so opened, tabulated and evaluated, and the recommend- ation of the Superintendent of Schools of Alachua County regarding them shall be presented to the lowest responsible bidder meeting the requirements of the law and the State Board of Education Regulations. In Section 19.1 of the Instructions to Bidders, Respondent informs bidders that it will award the contract to the lowest bidder as soon as possible provided that the lowest bid is reasonable and in Respondent's best interest. The Invitation to Bid provides bidders with the following notice relative to Respondent's decision or intended decision concerning a contract award: The Board shall provide notice of its decision or intended decision concerning a contract award. Notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statues, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written "Notice of Protest" within seventy-two (72) hours after posting or notification. A formal written protest shall be filed within ten (10) calendar days after filing the 'Notice of Protest.' Section 17.1 of the Instructions to Bidders contains the following language concerning Respondent's decision or intended decision: 17.1 The Board shall provide notice of its decision or intended decision concerning a contract award. For any other decision, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Section 18.1 of the Instructions to Bidders provides as follows: Bid tabulations with recommended awards will be posted for review by interested parties at the Planning and Construction Department, 1817 East University Avenue, Gainesville, Florida, following the bid opening, and will remain posted for a period of 72 hours. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute as (sic) waiver of proceeding under Chapter 120, Florida Statutes. The Invitation to Bid and the Instructions to Bidders distinguish between a protest concerning a contract award and a protest related to the specifications contained in an invitation to bid or in a request for proposals. In the latter context, a bidder must file a written protest within seventy-two (72) hours after receipt of the project plans and specifications. This case does not involve a protest of a bid solicitation. By virtue of the above referenced provisions in the Invitation to Bid and the Instructions to Bidders, Respondent gave all bidders sufficient and reasonable notice that a posted tabulation together with its recommendation constituted Respondent's intended decision. The bid specifications in the instant case required bidders to submit a bid on a base contract for certain school facility improvements with alternate bids relative to additional improvements in the event Respondent decided to include such features in the Project. Petitioner's base bid was $135,000; it was the lowest bid submitted. The next low bid was from Watson Construction Company, Inc. (Watson) at $133,345. Two additional bids were higher than Watson's bid. On the morning of May 30, 1996 one of Petitioner's employees, Roger "Dave" Williams" phoned Mr. Gable to inquire about the status of the bid award. Mr. Gable was unavailable to take the call. Mr. Williams left a message for Mr. Gable to return the call. Next, at approximately 10:00 a.m. on May 30, 1996, Mr. Williams called a member of Mr. Gable's staff who stated that, as far as he knew, Respondent had not made a decision on the contract. Mr. Gable completed his evaluation and posted the bid tabulation on May 30, 1996 at 3:00 p.m. Included on the bid tabulation was the following statement: RECOMMENDED ACTION: It is recommended that the Board reject the low base bid as submitted by D. E. Wallace Construction Corporation, Alachua, Florida, due to past unsatisfactory contract performance. It is recommended that the Board accept the base bid of $133,345. and award a contract for construction totaling $133,345. to Watson Construction, Gainesville, Florida. Completion of this project shall be within ninety (90) consecutive calendar days from the date indicated in the 'Notice to Proceed.' The bid tabulation clearly notes that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Respondent regularly posts notices of intended decisions concerning bid awards on a bulletin board in the main hallway of the E. D. Manning Annex. A title at the top of the bulletin board identifies it as the location for bid postings. Respondent posts a copy of Section 120.53(5), Florida Statutes, and a copy of the Respondent's Policy DJC--Bidding Requirements below the title of the bulletin board. Respondent has adopted Policy DJC as a rule through a formal rulemaking process. Policy DJC states as follows in pertinent part: The Board shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery. For any other Board decisions, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. The notice shall contain the following two paragraphs. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written notice of protest within 72 hours after the posting or notification. A formal written protest shall be filed within 10 calendar days after filing the notice of protest. . . . Failure to file a timely notice of protest or failure to file a timely formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Immediately below Policy DJC is a space where Respondent always posts its bid tabulations which include the recommended action on each project and notice that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The bottom of the board, in large letters, contains the following words: "Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." This permanent bulletin board, read as a whole, contains more than enough information to provide bidders with notice of an intended decision and the time frames within which a disappointed bidder must file a written protest. Although he was not required to do so, Mr. Gable telephoned Petitioner's office on the afternoon of May 30, 1996 to advise its president, D. Wallace, of the recommendation. Petitioner was not available to accept that call. Mr. Gable placed another courtesy telephone call to Petitioner on the morning of May 31, 1996. During that conversation, Mr. Gable informed Mr. Wallace of the recommendation for Respondent to reject Petitioner's bid and accept the next lowest bid. Petitioner's representative inspected the posting board in the afternoon on May 31, 1996. On June 3, 1996, Respondent sent Petitioner by facsimile transmission a copy of the agenda for Respondent's June 4 meeting, items H.1. of which was: H.1. Bid Award for Project SBAC CB436 - Newberry High School Site Improvements. Bids for the construction of this project were received on May 9, 1996. Recommendation will be presented. The seventy-two hour window in which a bidder may file a protest does not include Saturdays, Sundays or holidays. Therefore, the time in which a bidder could have filed a protest of Respondent's intended decision in this case, expired June 4, 1996 at 3:00 p.m. No bidder had filed a written protest at that time. Respondent held a regular meeting on June 4, 1996, at 7:00 p.m. When Respondent considered the bid award for Project SBAC CB 436, Mr. Gable presented the recommendation that the Board reject Petitioner's bid and accept Watson's bid due to Petitioner's past unsatisfactory contract performance. Petitioner's counsel spoke against the recommendation. At that time the Petitioner had not filed any written notice of protest. After discussion, Respondent voted to award the contract to Watson. Respondent and Watson executed a contract for the construction of the Project on June 4, 1996. The next day, on June 5, 1996, at 3:40 p.m., Petitioner filed with Respondent, by facsimile transmission, a Notice of Protest challenging the award of the contract for the Project to Watson. The filing of this protest was untimely. Therefore, Petitioner waived its right to protest Respondent's decision or intended decision on the Project. The basis of Respondent's intended decision and ultimate final decision to reject Petitioner's low bid was due to Petitioner's past unsatisfactory performance. The following facts support a finding that Petitioner was not a responsible bidder. Respondent awarded Petitioner the contract for a previous construction project, Project SBAC CA 149, Additions and Renovations for Terwillegar Elementary School. That project included the construction of a number of school buildings. The contract amount was approximately 5.1 million dollars. The last building in the Terwillegar project became "substantially complete" in September, 1995. In January, 1996, Mr. Gable wrote a letter to Petitioner, informing him of the outstanding punch list items for the Terwillegar project. A contractor must complete punch list items and have them approved prior to "final completion." In the Terwillegar Project, the contract provided for compilation of items on the punch list within thirty (30) days from "substantial completion." As of May 30, 1996, Petitioner had not responded to Mr. Gable's letter about the Terwillegar punch list, nor had it completed the punch list. Many of the items on the list were minor, but some of the items involved the safety or integrity of the building structure. The Terwillegar project contract also contained a project closeout section which listed a variety of documents and other materials that Petitioner had to provide to Respondent as part of the "final completion." Included in the Terwillegar project's closeout were items such as insurance change-over requirements, warranties, workmanship bonds, maintenance agreements, final certifications, a final payment request, consent of surety, maintenance manuals, record drawings, record specifications, record project date, and operating instructions. As of May 30, 1996, Petitioner had not provided any of the Terwillegar project closeout materials to the Respondent. The delay in project closeout, after substantial completion, is completely unacceptable to the Respondent. Prior to the opening of bids in this case, Petitioner filed a civil suit against Respondent seeking approximately $1,500,000 representing the unpaid contract balance, subcontractors' and material suppliers' claims for labor and material, and other delay-related damages on the Terwillegar project. Petitioner's claim that Respondent's intended decision and/or final decision was based on personal animosity and bias against Mr. Wallace is contrary to more persuasive evidence. Specifically, Petitioner's Exhibit 6 is not persuasive evidence of bias. The Petitioner's president, D.E. Wallace, has over 30 years in the construction field, including 22 years as an owner/operator of a general contractor company. He has completed more than 100 projects in north Florida in the past eighteen (18) years, including 30 school board construction projects. Mr. Wallace has worked on approximately nine (9) school board projects in Alachua County. He holds himself out as being "completely familiar and knowledgeable in government and building codes, ordinances, regulations, etc."
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Respondent enter a final order dismissing the Petitioner's protest as untimely. DONE and ENTERED this 9th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: David L. Worthy, Esquire 4128 Northwest 13th Street Gainesville, Florida 32609 Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
