The Issue The issue in this bid protest is whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly when it decided to reject all of the bids it had received on a contract to deliver food and supplies to the public school cafeterias in Broward County.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Invitation to Bid On September 28, 2000, the Board issued ITB 21-076B for procurement of “Mainline Foods and Supplies for Cafeterias.” Through this solicitation the Board sought to let a four-year contract, renewable for two additional one- year periods, pursuant to which the successful bidder would deliver food and supplies to the approximately 192 public school cafeterias in Broward County, Florida. Sysco is the incumbent supplier of foods and supplies for the Board’s cafeterias. The ITB listed and described the desired foods and supplies in two separate sections, Section 5.09 and Section 6.02. Bidders were required to bid on each of the 186 individual items listed in the Product Bid Sheets that comprise Section 5.09. In contrast, bidders were instructed not to quote prices for the 130 items listed in Section 6.02; rather, the ITB provided that “[t]he awardee, once selected, shall submit to the [Board] product costs and selling prices for items in Section 6.02.” This protest focuses on particular specifications of the Product Bid Sheets in Section 5.09 and is not concerned with Section 6.02. The Product Bid Sheets in Section 5.09 were composed of tables consisting of eight columns and, in total, 189 rows — one row for each item and three empty or "open" rows requiring no response. The first three columns, from left to right, set forth information that identified each item sought. At each row, Column 1 contained the “Sequence Number” that the Board had assigned to each product “for tracking purposes.” Column 2 in each row contained a description of the product to be purchased. So-called “approved brands” for each item were listed in Column 3. The ITB identified “approved brands” in several ways. The most specific identification was by brand name and product code or number, for example “Tony’s 78642.” This form of identification designated a particular manufacturer’s particular product. The term “approved branded product” will be used herein to refer to this type of specific product identification in Column 3. For many items, an approved brand was identified by manufacturer’s name only, without an accompanying product code, e.g. “Lykes ________.” The ITB instructed bidders that “[i]f a code number, name, or color is not listed by [the Board] along with an approved brand[,] the bidder shall enter the code by the brand in the space provided.” (ITB, Section 5.03.) In this Recommended Order, the term “brand-only approval” will denote a brand approval that lacked a specific product code. Finally, the ITB identified a large number of approved brands in Column 3 of Section 5.09 by the term “Distributor’s Choice,” meaning the distributor’s brand of choice. Bidders were instructed to “enter, in the space provided, the brand and code” when quoting a Distributor’s Choice. (ITB, Section 5.03.) For 84 of the 186 items listed in the Product Bid Sheets, the approved brands in Column 3 were identified exclusively as Distributor’s Choice.1 Thus, for nearly half of the Section 5.09 items, the bidder needed to select a brand and product that fit the specifications set forth in Column 2. For another 15 items, Column 3 contained brand-only approvals, meaning that the bidder was required to select an appropriate product from the approved manufacturer’s line. Brand-only approvals were combined with a Distributor’s Choice option in Column 3 for ten additional items. Consequently, there were 109 items — 59% of the total — on which the bidders were not given the option of bidding an approved branded product. Conversely, for 23 items Column 3 listed just one approved branded product, leaving the bidders no alternative but to bid on a particular manufacturer's particular product. Similarly, for 26 additional items, at least two approved branded products were listed, giving bidders a choice but not requiring them to compare the specifically designated brand- name products with the product descriptions in Column 2. In sum, bidders were obligated (and entitled) to bid an approved branded product on at least 49 items. There were 28 items for which Column 3 combined an approved branded product (or products) with either a brand- only approval (or approvals) or a Distributor’s Choice option.2 Accordingly, a bidder could, in theory, have quoted prices on as many as 77 approved branded products. At the other extreme, a bidder could have bid 137 items for which it had selected brand, product code, or both. Of the 186 items listed in Section 5.09, four are at the heart of the instant dispute. Ignoring for present purposes the sequences above and below the at-issue items, these four were described as follows in the first three columns of the Product Bid Sheets:3 1 SEQ NO. 2 PRODUCT DESCRIPTION 3 APPROVED BRANDS 1009 Breakfast Pizza (F). Crust topped with cheese, gravy, scrambled eggs and bacon. Minimum size 3 oz. to meet 1 meat/meat alternate plus 1 bread serving. CN Label. Tony’s 63564 Nardone’s 80MSA-100 Size of portion oz. 1036 Pizza, French Bread, Southland Bagel Pepperoni (F): 50-50 8953S Mozzarella blend. Minimum Prestige 30215 5.45 oz. to meet 2 oz. Nordone’s _________ meat/meat alternative and 2 KT Kitchen ________ bread servings. CN label. Size portion oz. 1037 Pizza, Mexican Style (F). Tony’s 63669 Minimum 5 ounces to meet 2 Nordone’s 100MA oz. meat/meat alternate and 1 KT Kitchens 01476 ½ bread serving. With or w/o VPP. CN label. Size portion oz. 2010 Pancake and Sausage (F) Pancake batter around a link sausage on a stick. 2.5 oz. State Fair 70601 Leon’s 28002 Foster Farms 96113 Minimum weight to meet 1 oz. meat/meat alternative and 1 bread serving. CN Label. Size of portion: oz. Other provisions of the ITB are relevant to this protest as well. Section 7 of the General Conditions of the ITB stated in pertinent part as follows: AWARDS: In the best interest of the School Board, the Board reserves the right to withdraw this bid at any time prior to the time and date specified for the bid opening; to reject any and all bids and to waive any irregularity in bids received; to accept any items or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets shall be noted “BID IS FOR SPECIFIED QUANTITY ONLY.” All awards made as a result of this bid shall conform to applicable Florida Statutes. Section 1.03 of the ITB’s Special Conditions stated in pertinent part as follows: AWARD: A contract shall be awarded IN ITS ENTIRETY to the lowest responsive, responsible bidder (See Section 4.01) with the lowest initial product cost plus fixed fee and meeting all specifications terms and conditions of the bid. It is necessary to bid on every item on the Product Bid Sheets (Section 5.09) in order to have your bid considered for award. Product costs shall be stated in the spaces provided in the Product Bid Sheets (Section 5.09). All items shall have an individual cost. Failure to state the individual cost for an item shall result in disqualification of bid submitted. Bidder shall carefully consider each item for conformance to specifications. Any item that does not meet the specifications shall be disqualified. Section 1.10 of the ITB stated as follows: INTERPRETATIONS: Any questions concerning any condition or requirement of this bid shall be received in the Purchasing Department in writing on or before October 11, 2000. Submit all questions to the attention of the individual stated in Section 1.37 [sic] of this Bid. If necessary, an Addendum shall be issued. Any verbal or written information which is obtained other than by information in this bid document or by Addenda shall not be binding on the School Board. Section 1.12 of the ITB stated as follows: BRAND STANDARDIZATION: The specified brands and product numbers listed on the Product Bid Sheets have been approved by SBBC Food and Nutrition Services Department and bids shall be accepted only on these approved items, except where “Distributor’s Choice” is indicated. If a bidder wishes to have an item placed on this approved list for future bidding, the bidder shall furnish Food and Nutrition Services Department samples of the item for testing purposes. If approved, the Food and Nutrition Services Department shall include the new item on the future list of approved items. In the event that any approved item supplied under this bid does not prove satisfactory, that item shall be removed from the approved list until such time as correction is made to the satisfaction of the Food and Nutrition Services Department. Section 1.13 of the ITB stated as follows: PRODUCT NUMBER CORRECTIONS: If the product number for the brand specified on the Product Bid Sheets is: a) no longer available and has been replaced with a new updated number with new specifications, the bidder should submit complete descriptive literature on the new product number; or b) incorrect, the corrected product number should be noted on the Product Bid Sheets, in the space provided. Section 1.35 of the ITB stated as follows: INFORMATION: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mr. Charles High, Purchasing Agent, Purchasing Department, (954) 765-6107 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mr. High nor any employee of [the Board] is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Questions should be submitted in accordance with Special Condition 1.10. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. Section 2.03 of the ITB stated as follows: ADDING AND DELETING ITEMS: Food and non- food items utilized by SBBC Food and Nutrition Services Department may be subsequently added, deleted or transferred from or to the lists in Sections 5.09 and 6.0, individually or in groups, at the discretion of SBBC Food and Nutrition Services Department Section 5.02 of the ITB provided in pertinent part as follows: COLUMN 2: (Product Description) This column provides bidder with descriptions of the products to be purchased, including portion or serving sizes or grades and standards, as may be applicable. Bidders should fill in the information wherever indicated on portion, serving size, etc., and provide manufacturers’ certificates of grades or compliance whenever “CR” is shown. If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. [W]hen evaluating bids, [staff] may request that a bidder furnish, within three days of request, further confirmations of grades and standards, copies of specification sheets, and other product data, as may be required. (Underlining supplied). For ease of reference, the underlined sentence above — which will prove pivotal — will be called the "Reconciliation Clause" in this Recommended Order. Section 5.03 of the ITB stated in pertinent part as follows: COLUMN 3: (Approved Brands*) Prior to acceptance of a bid, all bid brands are subject to review by SBBC Food and Nutrition Services Department for compliance with the bid product requirements. If a code number, name, or color is not listed by SBBC along with an approved brand; the bidder shall enter the code by the brand in the space provided. Whenever quoting a “Distributor’s Choice”, a bidder shall enter, in the space provided, the brand and code. Whenever an approved brand, other than “Distributor’s Choice”, is listed, the bidder should indicate in Column 3 the brand bidding, (circle the brand). IMPORTANT: Some of the codes listed may be obsolete or incorrect, in which case the bidder is to enter the correct code. After award, SBBC may request the awardee to obtain prices and samples for brands and codes not listed. The decision as to whether a product does or does not meet the requirements of Column 2 is at the discretion of SBBC. A bidder may be requested, prior to bid award, to furnish acceptable confirmation from a packer that a product meets the requirements set forth in Column 2. Section 5.11 of the ITB stated in pertinent part as follows: CN Label: When a product is CN (Child Nutrition) labeled, it is “certified” by the packer to conform to the nutritional requirements of the USDA Food and Nutrition Service (FNS). The label shows the contribution made by a given amount of product toward meal requirements. When CN label is noted in Column 2 of the Product Bid Sheets, it is understood that the CN label must be in place for the product to be bid. Particular Responses to the Invitation to Bid A. Sequence No. 1009 – Breakfast Pizza At Sequence No. 1009, Column 3 of the Product Bid Sheet contained two approved branded products: Tony’s 63904 and Nardone’s 80MSA-100. School Food quoted a price of $28,500 on the specifically approved Nardone’s product. In preparing its bid, Sysco obtained a product description from Nardone Bros. Baking Co. Inc. ("Nardone") for its 80MSA-100 product. Sysco believed that Nardone’s 80MSA- 100 failed to meet the product description set forth in Column 2 and therefore offered the other approved branded product, Tony’s 63564, at a price of $33,000. A third bidder, Mutual Wholesale Co. ("Mutual Wholesale"), offered to provide the approved Tony’s product at a price of $33,012.00. Sequence No. 1036 – French Bread Pepperoni Pizza The product description in Column 2 of the item listed at Sequence No. 1036 required that a CN label be in place for a product to be bid. A CN label signifies compliance with certain U.S. Department of Agriculture guidelines. The Board must obey these guidelines to obtain reimbursement for its food services program from federal funding sources. School Food offered the Prestige 30215 approved branded product in its response to Sequence No. 1036 at a price of $30,750. In preparing its response to the ITB, Sysco learned that the Prestige 30215 approved branded product had been submitted for CN label approval but lacked that approval at the time of bidding. Perceiving a conflict between the product description in Column 2 and the approved branded product in Column 3, Sysco concluded that it could not quote a price for Prestige 30215. Instead, Sysco offered to provide another approved brand, KT Kitchen’s 01093, at a cost to the Board of $36,397.50. Like School Food, Mutual Wholesale bid on the Prestige 30215 brand name product, quoting a price of $30,000. As of November 29, 2000, the approved branded product, Prestige 30215, had obtained CN approval from the U.S. Department of Agriculture. Sequence No. 1037 – Mexican-Style Pizza In its response to Sequence No. 1037, School Food offered an approved branded product, Nardone's 100MA, quoting a price of $206,620. During its bid preparation, Sysco learned that Nardone used another code for this product — namely, "96MCSA." Sysco believed that it could not bid on "Nardone’s 100MA," even though it was an approved branded product. Thus, in its bid Sysco offered to provide another approved branded product, Tony's 63669, at a price to the Board of $229,800. In its response to Sequence No. 1037, Mutual Wholesale quoted a price of $214,020 for yet another approved branded product, KT Kitchen’s 01476. "Nardone's 100MA" is an actual product code used internally by Nardone to denote an actual, available product that is referred to externally (or "on the street") as "Nardone's 96MCSA." In other words, "Nardone's 100MA" and "Nardone's 96MCSA" refer to the same product. Sequence No. 2010 – Pancake and Sausage In response to Sequence No. 2010, School Food offered to provide an approved branded product, Leon’s 28002, at a cost to the Board of $14,858. Sysco discovered through its bid preparation research that there might be a conflict between the product description in Column 2 of Sequence 2010 and the approved Leon’s 28002 brand name product, which was unambiguously designated in Column 3, because Leon’s 28002 consisted of a "frankfurter" wrapped in a pancake, and Sysco did not consider a "frankfurter" to be a "link sausage."4 As the Board has conceded, unless a bidder knew the products well or made a comparison of the approved branded products to the product description in Column 2, it would not have perceived the possible conflict between that description and the approved Leon’s 28002 brand name product listed in Column 3. Around October 20, 2000, Sysco notified the Board of its concern regarding Sequence No. 2010. In so doing, however, Sysco failed to comply with Section 1.10 of the ITB, which required that questions about the bid specifications be submitted in writing on or before October 11, 2000. In violation of Section 1.10, a Sysco employee named Elaine Blaine, who was responsible for preparing Sysco's bid, left a telephone message with the Board's Purchasing Agent, Charles High, inquiring about Leon's 28002 and letting him know that, in Sysco's opinion, this approved branded product did not match the description in Column 2 of Sequence No. 2010. Mr. High returned Ms. Blaine's phone call on or around October 24, 2000, leaving a message on her voice mail to the effect that Leon's 28002 was not the correct item and advising that another brand name product, Leon's 28012, should be bid in its place. As Section 1.35 of the ITB made plain, however, Mr. High had no authority whatsoever to render an opinion such as this. Although Mr. High's communication with Ms. Blaine was improper, it had no effect on the competitive process. Clearly, Sysco could not reasonably have relied on Mr. High's unauthorized opinion, and anyway it did not do so. Thus, in short, while Mr. High's irregular contact with Ms. Blaine cannot be condoned, his ex parte advice to Sysco fortunately conferred no competitive advantage on any bidder and hence was immaterial. In the end, Sysco offered another approved branded product, State Fair 70601, in lieu of Leon's 28002, quoting a price of $20,111. Mutual Wholesale also bid on State Fair 70601, quoting a price of $20,119.50. Issuance of Addenda and Submission of Bids The Board issued two addenda to the ITB. Addendum No. 1, among other things, inserted the code number for the approved KT Kitchen’s brand name product listed in Column 3 for Sequence No. 1036, and it also changed the approved Foster Farms branded product listed in Sequence No. 2010. The addenda made no other changes to either Sequence Nos. 1009, 1036, 1037, or 2010. On October 31, 2000, the Board opened the four bids that it had received in response to the ITB. Bids were submitted by Big Bamboo, Inc., Mutual Wholesale, Sysco, and School Food. Big Bamboo, Inc. failed to submit a complete proposal and thus its bid was disqualified as non-responsive. The remaining bids, which were determined to be responsive, offered, respectively, the following total annual contract prices: Mutual Wholesale $9,757,284.86 Sysco $9,656,770.21 School Food $9,263,170.42 Accordingly, School Food was the lowest bidder, its bottom line beating the closest competitor by nearly $400,000 per year. On November 9, 2000, the Board's Purchasing Department posted its recommendation that the contract be awarded to School Food. The Sysco Protest of the Recommended Award On November 13, 2000, Sysco timely filed a notice of intent to protest the recommended award to School Food. Sysco timely filed its formal written protest with the Board on November 22, 2000. Pursuant to rule, a Bid Protest Committee comprised of three administrators is required to meet with a bid protester in accordance with Section 120.57(3)(d), Florida Statutes, to attempt a resolution of the protest by mutual agreement. By rule, the Bid Protest Committee has been delegated the agency’s authority to perform this function. Consequently, pursuant to School Board Policy 3320 and Section 120.57(3)(d), Florida Statutes, a Bid Protest Committee convened on December 1, 2000, in an attempt to mutually resolve any disputed issues arising out of Sysco's protest. Despite the fact that the thrust of Sysco's protest was an attack on the responsiveness of School Food's bid, School Food was not invited to attend the December 1, 2000, meeting of the Bid Protest Committee, which apparently was not conducted as a public meeting. A court reporter was present, however, and the transcript of the committee's December 1, 2000, meeting is in evidence. The Bid Protest Committee restricted its review of the procurement to consideration of whether the ITB suffered from defective specifications in Sequence Nos. 1009, 1036, 1037, and 2010, even though Sysco’s protest had raised broader issues concerning the responsiveness of School Food's bid. At the December 1, 2000, meeting of the Bid Protest Committee, a Board employee named Raymond Papa, whose title is Supervisor of Field Services for Food and Nutrition Service, made the following representations concerning the sequence numbers in question: 1009 (Breakfast Pizza). Mr. Papa claimed to have erred by listing Nardone's 80MSA-100 in Column 3 of Sequence No. 1009. This approved branded product, Mr. Papa told the committee, should have been identified in Column 3 of Sequence No. 1008, which is also a breakfast pizza but has a different product description. 1036 (French Bread Pepperoni Pizza). Mr. Papa informed the committee that Prestige 30215 was approved by the U.S. Department of Agriculture but did not have a CN label "at this time." 1037 (Mexican Style Pizza). Mr. Papa advised the committee that there seemed to be some confusion arising from the ITB's use, in Column 3 of Sequence No. 1037, of the Nardone's product code 100MA, which was the manufacturer's internal code for the approved branded product, instead of the more common "street number" (96MCSA) used in the company's literature. Mr. Papa further explained: "Apparently that code [referring to 100MA] would have given me the right product" — in fact, it would have, see Paragraph 33 above — "but it needs more clarification on my part." 2010 (Pancake and Sausage). Mr. Papa pointed out the purported conflict between the product description in Column 2 of Sequence 2010 and the approved Leon's 28002 brand name product identified in Column 3. He claimed to have been seeking a pancake with a sausage inside, not a frankfurter, asserting that the two meat products were substantially different. The Board’s counsel informed the committee that the specifications for Sequence Nos. 1009, 1036, 1037, and 2010 had created sufficient confusion to adversely affect the competition. He urged the committee to remedy this purported confusion by voting to reject all bids so that the contract could be re-advertised with revised specifications. The committee was not asked to consider the Reconciliation Clause of Section 5.02 of the ITB. The three members did not discuss this provision. It is reasonable to infer, and the trier of fact so finds, that the committee paid no attention to the Reconciliation Clause in weighing the merits of staff's recommendation to reject all bids. With little discussion, the three-member Bid Protest Committee voted unanimously to rescind the recommendation to award School Food the contract and to reject all bids on the ground that the specifications were defective and hence that revisions were needed to "level the playing field." A revised recommendation to reject all bids was posted on December 12, 2000. School Food's Protest of the Rejection of All Bids On December 15, 2000, School Food timely filed its notice of intent to protest the Board's preliminary decision to reject all bids. This was timely followed by a formal written protest, which was filed with the Board on December 22, 2000. The revised recommendation posted on December 12, 2000, accurately announced the Board's intention to reject all bids. As noted in School Food's formal bid protest, however, the revised recommendation erroneously stated that the action was taken because “no acceptable bids were received.” To remedy this problem, a corrected revised recommendation was posted by the Board on January 12, 2001. It stated that the rejection of all bids was “due to inaccuracies within the bid specifications.” On January 16, 2001, School Food timely notified the Board of its intent to protest the corrected revised recommendation. Thereafter, on January 24, 2001, School Food timely filed its formal protest of the corrected revised recommendation to reject all bids. School Food posted a bid protest bond in the amount of $5,000 in accordance with School Board Policy 3320. This bond is conditioned upon School Food's payment of the Board's litigation costs should the Board prevail. Pursuant to School Board Policy 3320 and Section 120.57(3)(d), Florida Statutes, the Board's Bid Protest Committee conducted a meeting with School Food on February 9, 2001, in an attempt to mutually resolve any matters in dispute. The Bid Protest Committee was composed of two persons who had participated in the December 1, 2000, meeting and a third member who had not attended that earlier meeting. Sysco received advance notice of the February 9, 2001, meeting of the Bid Protest Committee, and its lawyer was permitted to attend as a witness. These courtesies, tellingly, had not been extended to School Food in connection with the committee meeting that had been held on December 1, 2000, to discuss the original Sysco bid protest. As before, a court reporter was present, and the transcript of the February 9, 2001, meeting is in evidence. The Bid Protest Committee was again informed of staff's opinion that the ITB contained defective specifications in Sequence Nos. 1009, 1036, 1037 and 2010. At the February 9, 2001 meeting, the Board's counsel argued vigorously in support of the decision to reject all bids. For the most part, his argument was an expanded version of that which had been advanced in favor of rejection at the December 1, 2000, meeting. More emphasis was placed, the second time around, on the concern that the supposedly defective specifications would or might, in some cases, result in the Board not receiving the food items that it had desired. Once again, the committee was not asked to consider the Reconciliation Clause of Section 5.02 of the ITB. And once more, the committee members did not discuss this provision. It is reasonable to infer, and the trier of fact so finds, that the committee failed to take account of the Reconciliation Clause in weighing the merits of staff's recommendation that the previous decision to reject all bids be adhered to. By a vote of two to one, the Bid Protest Committee upheld the recommendation to reject all bids. The contemporaneous comments from the members in the majority, together with other evidence introduced at hearing, reveal that the committee was persuaded that the field of play had been tilted by the purportedly defective bid specifications; its decision clearly was based on a desire to “level the playing field.” Ultimate Factual Determinations All of the purported deficiencies in the bid specifications fall squarely within the operation of the ITB’s plain and unambiguous Reconciliation Clause which, to repeat for emphasis, provided as follows: If there is a conflict between the product description in Column 2 and the approved brands in Column 3, compliance with approved brands shall prevail. (ITB, Section 5.02.)5 There is no evidence that the Reconciliation Clause misrepresented the Board's true intent or was the product of a mistake. The administrative law judge has determined as a matter of law that the Reconciliation Clause is clear and unambiguous; therefore, as a matter of fact, it manifests the Board's intent that a Column 2 description must yield to the identification of an approved branded product in Column 3 in the event of conflict between them. By providing in clear terms a straightforward, easily applied, bright-line rule for resolving the very type of conflict that the Board now urges justifies a rejection of all bids, the ITB reasonably ensured that no such ambiguity or uncertainty would imperil the competitive process. No reasonable bidder could possibly have been confused by the unambiguous Reconciliation Clause. All bidders, of course, were entitled to protest the Reconciliation Clause, and any other bid specifications, within 72 hours after receiving the ITB. See Section 120.57(3)(b), Florida Statutes; see also ITB, Section 1.21. None did. If Sysco believed, as Ms. Blaine testified, that it could not bid on certain approved branded products listed in Sequence Nos. 1009, 1036, 1037, and 2010, then its belief was unreasonable. Confusion that is objectively unreasonable in fact, as Sysco's was, is not evidence of deficiencies in the bid specifications or of a breach in the integrity of the competitive process. In sum, the purported "deficiencies" upon which the Board based its intended decision to reject all bids are not deficiencies in fact. Thus, the Board's professed reason for starting over — that flaws in Sequence Nos. 1009, 1036, 1037, and 2010 put bidders to the Hobson's choice of either risking disqualification by bidding on an approved branded product that did not strictly conform to the description in Column 2 or offering a higher-priced product meeting the Column 2 description — is factually unfounded and illogical.6 It should be observed, also, that, in view of the unambiguous Reconciliation Clause, the approved branded products upon which School Food bid in response to Sequence Nos. 1009, 1036, 1037, and 2010 are conforming goods in every respect. That is, School Food did not "mis-bid" these items. Indeed, the Board having identified specific approved branded products; having instructed bidders that "bids shall be accepted only on these approved items, except where ‘Distributor's Choice’ is indicated," see ITB, Section 1.12; and having made clear, in the Reconciliation Clause, that any conflict between an approved branded product and a product description shall be resolved in favor of the approved branded product, it would be arbitrary and capricious to disqualify School Food's bid for non-responsiveness in connection with these items. See Footnote 6, supra. The evidence regarding which particular products the Board truly wanted to purchase in connection with the sequences at issue is in conflict. On the one hand, there is the ITB itself, which is strong evidence of the Board's desires. As a written expression of the Board's intent, the ITB gives voice not merely to the opinions of one person, but rather speaks for the whole Board as an organization. (The latter point is underscored by Section 1.35, which plainly stated that no single employee of the Board was authorized unilaterally to interpret the ITB.) The ITB's reliability is further enhanced by the fact that it was prepared before the bids were opened, before it was known that the incumbent vendor was not the apparent low bidder, before the first protest was filed, and before this administrative litigation commenced. On the other hand, there is Mr. Papa's testimony that he made mistakes in Sequence Nos. 1009, 1036, 1037, and 2010, listing approved branded products that, in hindsight, he claimed should not have been listed. Casting doubt on Mr. Papa's credibility, however, is the fact that he did not discover these so-called mistakes until after the Sysco protest helpfully brought the matters to his attention. Also, in deciding how much weight to give Mr. Papa’s testimony, the trier paid particular attention to the picayune nature of the purported conflicts in the specifications. Indeed, it is seriously debatable whether there really were any conflicts in Sequence Nos. 1009, 1036, 1037, and 2010.7 Additionally, having observed Mr. Papa’s demeanor and having given thoughtful consideration to the substance of his testimony, the trier of fact formed the distinct impression that this witness was a bit too anxious to grasp at a plausible excuse — even these hyper-technical “conflicts” — to scuttle the process and do it over. In weighing Mr. Papa's testimony, the trier has factored in a discount for reasonably inferred bias. Further, Mr. Papa's testimony was premised on the view that Column 2 expressed the Board's true intent, taking priority over Column 3 in cases of conflict. To fully credit Mr. Papa's testimony would require that the Reconciliation Clause be turned on its head — which, incidentally, would constitute an impermissible material change in the bid specifications.8 There is absolutely no basis in this record for doing that. In resolving the conflict in the evidence regarding which goods the Board really wanted, the trier of fact has considered the totality of circumstances and has chosen to give the greatest weight to the plain and unambiguous Reconciliation Clause in the ITB which, when read in conjunction with the clear designations of approved branded products in Column 3 at the sequences in question, makes manifest the Board's intent. This clear provision speaks for itself and proves that the Board, as an entity, made a reasoned and conscious decision to deem approved branded products in Column 3 of the Product Bid Sheets to be the goods intended for purchase in those instances where a Column 2 product description might suggest a different desire. Neither Mr. Papa's testimony nor any other evidence persuasively calls into question the reliability and credibility of the Reconciliation Clause as an accurate expression of the Board's intent. Thus, under the evidence presented, the following items are approved branded products that, as a matter of fact, the Board wanted to purchase: Nardone's 80MSA-100, Prestige 30215, Nardone's 100MA, and Leon's 28002. Moreover, if the Board decides that one or more of these approved branded products are not what it wants after all, it has the right, pursuant to Section 2.03 of the ITB (see Paragraph 17, supra), to arrange for the purchase and delivery of different products. The argument of the Board and Sysco that the Board's exercise of its right to add and delete items would constitute an impermissible material alteration of the bid specifications is, in the context of the present circumstances, plainly wrong in fact and illogical. To explain why this is so, let us stipulate that it would be arbitrary for the Board, say, to delete several items from each bidder's proposal because, for example, one or more bidders had mis-bid those items, and then to re-tabulate the bids to determine which bidder would now be the low bidder.9 Similarly, it would be arbitrary for the Board, under the guise of adding items, to designate as approved branded products certain non-conforming goods offered by a bidder as Distributor's Choices, thereby allowing a bid that otherwise would be disqualified to be considered responsive. As a final example, it would be arbitrary for the Board to delete an approved branded product from the product list and use such deletion as the basis for disqualifying a bidder that had quoted the now-deleted item. Each of these hypothetical situations involves a material change to the specifications on which the bidders based their proposals, which is not allowed, for good reason. It is a different kettle of fish, however, for the Board to add or delete items after making an award to the lowest responsive, responsible bidder in accordance with the terms and conditions of the ITB. When the bids are judged pursuant to the rules clearly spelled out in advance in the ITB — which would not be the case in the examples set forth in the immediately preceding paragraph — there is simply no change in the specifications, material or otherwise. In the instant case, therefore, if the Board awards the contract to School Food and decides that it does not want a hot dog pancake for Sequence No. 2010, then all it need do is delete Leon's 28002 from the product list and add the desired Leon's product or require the distributor to deliver one of the remaining approved branded products.10 Nothing about that course of action requires or effects a change in the bid specifications. To the contrary, all of the bidders were notified, upon entering this competition, that such post- award additions and deletions of product were possible. All of the bidders, moreover, could have quoted a price for the hot dog pancake, which was unambiguously designated as a conforming product. If the hot dog pancake were a less expensive item, then Sysco could have and should have bid on it. Put another way, if School Food secured a competitive advantage by bidding on the lower-priced approved branded product, it was a legitimate advantage under the plain rules of the contest — rules that applied equally to all. In a nutshell, the Board is in no reasonable danger of receiving a food product that it does not desire to purchase. The Board's preliminary decision to reject all bids is not supported by facts or logic. Indeed, the Board's analysis of the situation failed to account for the Reconciliation Clause — a clearly relevant factor. When the Reconciliation Clause is considered, together with the rest of the evidence in the record, the following become clear: The ITB's specifications were clear and unambiguous. The competitive playing field was level. The Board will obtain the goods that it intended to purchase. At bottom, the Board's decision here cannot be justified by any analysis that a reasonable person would use to reach a decision of similar importance. It is arbitrary.11
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board award the contract advertised in the subject ITB to the lowest responsive, responsible bidder, in accordance with the terms and conditions of the ITB. It is further recommended that the Board, pursuant to its own rules, return School Food’s protest bond and, in the Final Order, award School Food the costs Petitioner has incurred in prosecuting this matter. If a dispute arises concerning the amount of such costs, the matter may be referred to the Division of Administrative Hearings for further proceedings. DONE AND ENTERED this 31st day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2001.
Findings Of Fact Petitioner, J. D. Pirrotta Company (JDP), is a general contracting company located in Orlando, Florida. JDP has bid on projects involving construction of schools or educational facilities, including projects for Valencia Community College. Respondent, District Board of Trustees of Valencia Community College, is the governing body of the community college, with the authority to award contracts. Valencia Community College (VCC), in Bid #90/91-06, advertised for sealed bids for interior remodeling and renovation of existing buildings' modules 3 and 5, on its west campus on South Kirkman Road, in Orlando, Florida. The sealed bids were due at or before 2:30 p.m., on December 13, 1990, in the purchasing department of VCC, 190 South Orlando Avenue, Suite 402B, Orlando, Florida 32801. The Invitation to Bid includes a voluminous project manual containing instructions to bidders, various forms, a standard contract text and detailed specifications. A separate bid packet contains the set of drawings for the construction work. The advertisement of the Invitation to Bid, and Section 00100 of the Project Manual, Instructions to Bidders, paragraph 14A, reserve for the owner the right to reject any or all bids and to waive any and all "informalities". (Respondent's Exhibits #1 and #2) Section 00100, Instructions to Bidders, paragraph 18, provides: 18. SUBCONTRACTORS, ETC. The bidders at bid date shall submit to Owner a list of all subcontractors and other persons and organizations (including those who are to furnish the principal items of material and equipment) proposed for those portions of the work as to which such identification is so required. Such list shall be accompanied by an experience statement with pertinent information as to similar projects and other evidence of qualifications for each such subcontractor, person and organization if requested by Owner. If Owner, after due investigation has reasonable objection of any proposed subcontractor, other person or organization either may, before giving the Notice of Award, request the apparent successful bidder to submit an acceptable substitute without an increase in bid price. If the apparent successful bidder declines to make any such substitution, the contract shall not be awarded to such bidder, but his declining to make any such substitution will not constitute grounds for sacrificing his bid security. A subcontractor, other person or organization so listed and to whom Owner does not make written objection prior to the giving of the Notice of Award, will deemed acceptable to Owner. Should the subcontractors list be revised, for any reason, architect and Owner shall be immediately notified. (Respondent's Exhibit #2) Paragraph 9, Section 00300, the bid form, provides: The following documents are attached to and made a condition of the Bid: Required Bid Security in the form of a Bid Bond. A tabulation of subcontractors and other persons and organizations required to be identified in this Bid. Required Bidders Qualification Statement with supporting data. (Respondent's Exhibit #2) Section 00700, the Public Entity Crimes statement form, includes these instructions: Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy/copies of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. (Respondent's Exhibit #2) The Instructions to Bidders and the drawings include a total of ten deductive alternatives to be addressed in the bids, to afford VCC some flexibility in the event the base bid might be higher than the agency's available funds. In response to the advertisement and request for sealed bids, VCC received bids from the following seven contractors: Seacoast Constructors and Consultants; JDP; Southland Construction, Inc.; Harbco, Inc.; Technical Design Systems, Inc.; Hembree Construction, Inc.; and Waltree Construction, Inc. The bids were opened publicly and read aloud beginning shortly after the submittal deadline on December 13, 1990. Jack C. Crawford, Vice-President for Administrative Services, and Stephen Richard Childress, Purchasing Manager, participated in the bid opening on behalf of VCC. Seacoast Constructors was the lowest bidder, at $1,274,000.00, base bid; JDP was the second lowest bidder, at $1,297,000.00, base bid. None of the bidders submitted bids containing all of the requested or required information. None of the bidders included a deduct alternative requested by Drawing E-10, General Notes number 2. Only JDP included the deduct alternative requested by Drawing E-6, General Notes number 2. Seacoast Constructors and Consultants failed to include Form PUR 7068, Public Entity Crimes statement, with their bid, but it executed and submitted the form to VCC on December 13th, the date of the opening. Two of the bidders, JDP and Harbco, failed to submit subcontractor lists with their bids. At the time of hearing, JDP had still not submitted its list. For this project the low base bid is within VCC's available funds, and it does not intend to rely on any of the deduct alternatives in the bids. Following the bid opening, the bid tabulation form was posted on a bulletin board in the administration building. A copy of the tabulation form was also placed in a folder which includes recommendations on other bids and which is maintained at the desk of the security guard outside the room where the bids are opened. Inside the front cover of the folder, in the bottom left hand corner, is a small typewritten statement: Failure to file a protest within the time described in S. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. There is no evidence of any other notice of section 120.53, F.S. remedies to bidders, including in the advertisement or in instructions to bidders. JDP filed a written bid protest in a letter dated December 13, 1990 and received on December 14, 1990. The letter clearly states that it is a formal protest, pursuant to Section 120.53(5), F.S. It argues that bids submitted by Seacoast Constructors and others were unresponsive and should be rejected for failure to include the Public Entity Crimes Statement, for failure to bid on a deduct alternative, and for other reasons (immaterial, because they apply to higher bidders). The protest letter requested award to JDP. JDP met with representatives of VCC to attempt to resolve the protest. At the meeting, Joseph Pirrotta was informed that his bid was considered nonresponsive because it failed to include a subcontractors' list. The meeting did not resolve the matter, and on December 19, 1990, Joseph Pirrotta sent a follow-up letter arguing that the text of the bid instructions only require a subcontractors' list for "...portions of the work as to which such identification is so required", and nowhere in the bid packet was any reference to which were required. JDP considered that the subcontractors' list was, therefore, unnecessary. The December 19th letter also reiterated JDP's request to reject the other bids and to award the contract to JDP. The December 13th and 19th letters are the only written protests by JDP. VCC has previously awarded contracts to bidders who failed to submit a Public Entity Crimes Statement with their bid. It considers such failure an "informality" subject to waiver. It considers failure to submit a list of subcontractors an economic advantage with respect to other bidders. Representatives of VCC have recommended to its board that the contract be awarded to Seacoast Constructors, the lowest bidder.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the District Board of Trustees of Valencia Community College enter its final order awarding the contract in Bid #90/91-06 to Seacoast Constructors and Consultant, and rejecting the protest of J.D. Pirrotta Company. DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991. COPIES FURNISHED: Leslie King O'Neal, Esquire P.O. Drawer 1991 Orlando, FL 32802 Jeffrey S. Craigmile, Esquire Brian P. Kirwan, Esquire 390 N. Orange Ave., Ste. 2180 Orlando, FL 32801 Jack C. Crawford Vice President Administrative Services Valencia Community College P.O. Box 3028 Orlando, FL 32802
The Issue Whether the decision by the State of Florida, Department of Corrections (DOC) to reject all bids received in response to Request For Proposal 93-RIVHSD- 075 (RFP) was arbitrary, capricious, fraudulent, illegal or dishonest. Additionally, Intervenor challenges Petitioner's standing to bring this proceeding since Bio-Medical Applications, Petitioner's wholly-owned subsidiary corporation, submitted the bid at issue and because Petitioner would not be a party to any contract awarded pursuant to the RFP.
Findings Of Fact Standing In its response to the Request For Proposal at issue in this proceeding, Bio-Medical Applications of Florida, Inc. (BMA) provides the following regarding vendor name and address: Vendor Name: Bio-Medical Applications of Florida, Inc. Vendor Mailing Address: c/o National Medical Care, Inc. 1601 Trapelo Road Walthem, Massachusetts 02154 In the bidder acknowledgment and ownership interest portion of its response to the RFP, BMA disclosed the following: ... This bid is presented in good faith without collusion or fraud and Ernestine M. Lowrie, as signer of the bid from Bio-Medical Applications of Florida, Inc. has full authority to bind as the principal bidder. All stock of Bio-Medical Applications of Florida, Inc. is held by Bio-Medical Applications Management Company, Inc. and all the stock of the latter corporation is held by National Medical Care, Inc., 1601 Trapelo Road, Walthem, Massachusetts 02154. All of the stock of National Medical Care, Inc. is held by W. R. Grace and Company. The Dialysis Services Division of National Medical Care, Inc. (NMC) is the largest division of NMC. In each state in which NMC has an interest in dialysis services operations, Bio-Medical Applications is organized as a corporate entity and is part of the Dialysis Services Division of the parent corporation, NMC. Petitioner in this proceeding, NMC, is not currently organized and registered as a corporation under the laws of the State of Florida. At the final hearing in this case, NMC's representative testified that he was not aware that NMC was registered to do business in the State of Florida but thought NMC had been operating in Florida for about 20 years. BMA is wholly owned by NMC. The Respondent agency originally expressed its intent to award the contract at issue to BMA. NMC has a substantial interest in the RFP and the contract at issue, therefore, its substantial interests will be affected by the agency's proposed action to reject all bids. NMC has alleged that the agency's decision to reject all bids was arbitrary, illegal, dishonest, and fraudulent. Further, Petitioner also contends that the agency decision to reject all bids, after BMA's bid proposal has been disclosed to competitors, undermines the competitive purpose of the bid process. The Request for Proposal On August 27, 1993, the DOC issued RFP No. 93-RIVHSD-075. The RFP requested bidders to submit bids for a contract to perform peritoneal dialysis and hemodialysis treatment at the Department's Broward Correctional Institution and its South Florida Reception Center. The RFP required that bid proposals be filed with the DOC by September 30, 1993. The RFP provided that a bidder would receive up to 50 points for its price proposal and up to 50 points for its qualitative proposal for a total of 100 possible points. The RFP also provided that the DOC reserved the right to reject all bids when the DOC determined it was in its best interest to do so. The Bid Evaluation Upon initial review of the proposals submitted in response to the RFP, the DOC originally calculated that Petitioner's subsidiary, BMA, had received 49 out of 50 possible points from its price, as well as qualitative proposal for a total of 98 points. On October 22, 1993, the DOC sent written notice to all proposers of its intent to award the contract to National Medical Care, Inc. (Petitioner). At the time it mailed its notice of intent, the DOC believed that the difference between the Bio-Medical and the lowest price proposal (received by HealthInfusion) was $156,780 over the five year term of the proposed contract. HealthInfusion and an additional disappointed bidder filed protests contesting the DOC's notice of intent. Based upon input from the protestors, the DOC learned that it had miscalculated the cost of Bio-Medical's proposal. When the DOC corrected its initial error in calculation, BMA's proposal was $340,000 higher over the first three years of the proposed contract and $972,000 higher than the lowest bidder for the entire five year contract term. The Decision to Reject All Bids On November 24, 1993, the DOC notified all bidders of its intent to reject all bids. In addition to the initial miscalculation of price in the bid, the DOC discovered what it considers to be other irregularities in the evaluation in this case. BMA was the existing provider at the time the RFP issued. The bid evaluators worked closely on a day to day basis with Petitioner's employees. The DOC believes the evaluators preferred that Petitioner be awarded the contract and that the evaluators were not objective. During the process of evaluation, the evaluators were provided a letter from a party representing one of the bidders which contained allegations regarding negative background information on other bidders. The DOC believes that the letter should not have been given to the evaluators and that access to the letter further affected the evaluator's ability to be objective. Admitted Facts NMC and the Respondent DOC filed a Prehearing Stipulation in which the following facts are admitted by those parties: The DOC issued Request for Proposal No. 93-RIVHSD-075 ("RFP"). The RFP requested bidders to submit bids for peritoneal dialysis and hemodialysis treatment at Broward Correctional Institution and South Florida Reception Center. Bid proposals had to be filed with the DOC by September 30, 1993. On November 24, 1993, the Department notified all bidders of its intent to reject all bids. The Department rejected all bids due to significant irregularities in the bid evaluation process and the price difference between the winning bid and the low bid was too great. (Emphasis supplied.) On December 3, 1993, National Medical Care, Inc. filed its notice of intent to protest the DOC's decision to reject all bids. On December 13, 1993, National Medical Care, Inc. filed its formal written bid protest. Burden of Proof Petitioner has failed to prove, by the preponderance of evidence, that the DOC acted arbitrarily, illegally, fraudulently or dishonestly in making its decision to reject all bids.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Respondent enter a final order dismissing NMC's protest of its decision to reject all bids in response to request for Proposal No. 93-RIVHSD-075. RECOMMENDED this 16th day of March, 1994, at Tallahassee, Florida. JAMES W. YORK, 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 16th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7111BID The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's PFOF 1 is adopted in paragraph 8 of the Recommended Order (RO). Petitioner's PFOF 2 is adopted in paragraph 9 of the RO. Petitioner's PFOF 3 is hereby adopted. Petitioner's PFOF 4 is hereby adopted. Petitioner's PFOF 5, to the extent not conclusory, is adopted in paragraph 1 of the RO. Petitioner's PFOF 6 is hereby adopted. Petitioner's PFOF 7 is adopted in paragraph 2 of the RO. 8-9. Petitioner's PFOFs 8 and 9 are hereby adopted. Sentence 1 of Petitioner's PFOF 10 is hereby adopted. Sentence 2 of this proposed finding is rejected as conclusory. Petitioner's PFOF 11 is adopted in paragraph 14 of the RO. 12-14. Petitioner's PFOFs 12, 13 and 14 are hereby adopted. Petitioner's PFOF 15 is adopted in paragraph 2 of the RO. Petitioner's PFOF 16 is hereby adopted. Petitioner's PFOF 17 is adopted in paragraph 26 of the RO and is a fact, in effect, stipulated to by Petitioner and Respondent. Petitioner's PFOF 18 is adopted in substance in paragraph 21. To the extent not adopted in the RO, the remainder of Petitioner's PFOF 18 is hereby adopted. Petitioner's PFOF 19 is adopted in paragraph 13 of the RO. Petitioner's PFOF 20 is adopted, in substance, in paragraph 16 of the RO. 21-24. Petitioner's PFOFs 21-24 are hereby adopted. Petitioner's PFOF 25 is rejected as a conclusion. Petitioner's PFOF 26 is rejected as conclusory and argumentative. This proposed finding is also irrelevant based upon facts admitted by Petitioner. Petitioner's PFOF 27 is rejected as irrelevant based upon facts admitted to by Petitioner. 28-34. Petitioner's PFOFs 28-34 are hereby adopted to the extent relevant. Based upon Petitioner's admission that the Respondent rejected all bids based on "significant irregularities," these proposals are for the most part irrelevant and unnecessary to the conclusions reached. 35. Petitioner's PFOF 35 is hereby adopted. 36-39. Petitioner's PFOFs 36-39 are adopted. 40-44. Petitioner's PFOFs 40-44 are cumulative and not necessary to the conclusions reached. Respondent's PFOF: 1-19. Respondent's PFOFs 1-19 are adopted in the RO. 20. Respondent's PFOF 20 is rejected as conclusory. 21-22. Respondent's PFOFs 21 and 22 are adopted in the RO. 23. Respondent's PFOF 23 is rejected as argument. 24-26. Respondent's PFOFs 24-26 are adopted in the RO. 27. Respondent's PFOF 27 is rejected as conclusory. 28-29. Respondent's PFOFs 28 and 29 are adopted in the RO. 30-32. Respondent's PFOFs 30-32 are rejected as conclusions and argument. Respondent's PFOF 33 is hereby adopted. Respondent's PFOF 34 is rejected as argument. Intervenor's PFOF: 1-21. Intervenor's PFOFs 1-21 are adopted in substance in the RO. Intervenor's PFOF 22 is adopted, in substance, in paragraph 4 of the RO. Intervenor's PFOF 23 is hereby adopted. Intervenor's PFOF 24 is adopted in substance. Intervenor's PFOF 25 is hereby adopted. However, Intervenor has failed to prove that the activity of NMC is not within one of the several exceptions to the requirements of Section 607.1501, Florida Statutes. COPIES FURNISHED: Seann M. Frazier, Esquire Jennifer Kujawa-Graner, Esquire PANZA, MAURER, MAYNARD & NEEL, P.A. 3081 East Commercial Avenue Fort Lauderdale, Florida 33308 R. Beth Atchison, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Timothy G. Schoenwalder, Esquire BLANK, RIGSBY & MEENAN, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Findings Of Fact In July, 1989 the District published its request for bids (number 8980) for an atomic absorption spetrophotometer in local newspapers and to prospective interested parties, as shown in joint Exhibit 1 in evidence. The specifications for the instrument were included in the bid package and were authored by Mark Rials, the District's Laboratory Supervisor. The District received two bids for the instrument in response to the request for bids, one from Varian for approximately $57,000 and one from Perkin-Elmer for approximately $59,900. Mark Rials evaluated the bids. Upon evaluation it was determined that the Varian instrument proposal did not meet bid specifications in three major areas. The specifications required a system capacity of 40 megabytes, hard drive capability. The capacity offered by Varian in its bid was for 20 megabytes. The specifications required a combination of a 5 1/4 inch disk drive for its computer system as well as a 3 1/2 inch disk drive. Varian only bid the 3 1/2 inch diskdrive. It did not offer the 5 1/4 inch disk drive which was required. Additionally, at item IX of the specifications, the District required that a list be submitted with the bid which stated, on an item-by-item basis, how the instrument met or exceeded the specifications. Each item in the specifications had been carefully selected to insure optimum performance for the laboratory so that exceptions to the specifications were required to be noted and attached in the bid response. Varian failed to conform to this item of the specifications. This item allowed a vendor to describe in its bid response how it could differently meet the specifications in a better manner or even exceed the specifications, but Varian failed to provide this itemized list. It was also determined that the Varian bid did not conform with the specifications of item IV page 4 of the invitation to bid document concerning the provision of service manuals, system and application software documentation, methods, manuals, parts catalogs, supplies, accessories, catalog, and training manuals. Conversely, it was determined that the Perkin-Elmer bid was responsive in all respects, met the bid specification in these major categories and was the most responsive bidder. After witness Rials conducted the evaluation of the bids, in terms of compliance with the specifications, he and the District determined that the Perkin-Elmer bid was the lowest, responsive bidder which met all specifications. It duly published the intended award and notified all bidders of the bid results. In this evaluation and award process it was demonstrated that the District followed all applicable procedures in its rules and policies concerning evaluation and award. Varian timely filed an objection to the award of the bid; and in accordance with its normal bid protest procedures, the District scheduled a conference between representatives of Varian and District representatives to review Varian's bid. Varian made several statements at that meeting which constituted a substantial deviation from the bid package it had earlier submitted and amounted to an attempted restructuring of its bid in an effort to meet bid specifications. The District declined to countenance this effort and adhered to its initial intent to reject the bid which was submitted by Varian and to not allow the attempted material deviations to be ascribed to Varian's bid, after the point of bid opening and announcement of award. In summary, based upon the bid specifications issued by the District the evaluator's determination concerning the specifications that the evaluator drafted was that the Varian instrument failed to meet bid specifications because of the major deficiencies in the areas found above, regarding systems capacity, computer disk drive availability, and specification response. It has clearly been demonstrated by competent substantial evidence that the District's decision to reject Varian's bid was a reasonable one. It was based solely on a fair comparison of the response of the two bids to the specifications contained in the invitation to bid and notice to all potential vendors. In consideration of the facts established by the evidence in this record, it is found that the bid by Perkin-Elmer substantially met all bid requirements or specifications, even though the Perkin-Elmer bid was the second low bidder in terms of dollar cost. Since the low-cost bidder, Varian, failed to meet major bid specifications, the facts demonstrate that the Perkin-Elmer bid was the most responsive of the two bids at issue and is, therefore, the best bid. Consequently, award should be given to the Perkin-Elmer bid for the instrument in question.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties it is therefore RECOMMENDED: That the Southwest Florida Water Management District issue a final order denying the petition filed by Varian Instrument Group and awarding bid number 8980 to Perkin-Elmer Corporation, as the lowest, responsive bidder. DONE and ENTERED this 6th day of February, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of February, 1990. APPENDIX Respondent's Proposed Findings of Fact 1-9 are accepted. Petitioner Filed No Proposed Findings of Fact. COPIES FURNISHED: Mr. Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Mickey McAllister District Sales Manager Varian Instrument Group 505 Julie Rivers Road, Suite 150 Sugar Land, TX 77478 A. Wayne Alfieri, Esquire Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.
Findings Of Fact State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items. Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows: Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project. The prospective bidders were also given this information in the pre-bid meetings. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows: Bidder Total Bid D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500. Rovel Construction, Inc. $1,559,000. Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows: Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work. When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Robert A. Hingston, Esquire Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P. 901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134 Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health Miami-Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125 William G. Christopher, Esquire Brown Clark, A Professional Association 1819 Main Street, Suite 1100 Sarasota, Florida 34236
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 Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.
Findings Of Fact The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close. No requests were made to the Department to place its explanation in writing and no written interpretation was provided. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not.. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.
The Issue Whether the Department acted illegally, arbitrarily, dishonestly, or fraudulently when it rejected all of the bids submitted in response to Invitation to Bid No. 97-023-OR. See Section 120.57(3), Florida Statutes (1997).
Findings Of Fact Petitioner ABS is an authorized dealer for Neopost, a manufacturer of mailing equipment. Petitioner is also a Certified Minority Business Enterprise, pursuant to Chapter 287, Florida Statutes. Prior to the subject Invitation to Bid, the Department issued a similar Invitation to Bid. That bid was initially awarded to Pitney Bowes, Inc., but Pitney Bowes, Inc., was unable to meet delivery requirements of that bid, and the Department decided to re-bid. The Department issued the subject ITB No. 97-023-OR on March 10, 1997. Pursuant to its terms, the bid opening was held on April 29, 1997. The subject ITB provides, in pertinent part, as follows: At page 3 of 11 MANDATORY REQUIREMENTS The state has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must", or "will" (except to indicate simple futurity) in this Invitation to Bid/Request for Purchase indicates a requirement or condition from which a material deviation may not be waived by the State. The words "should", or "may" in this /Request for Purchase to Bid [sic] indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (emphasis supplied) At page 6 of 11 MANUFACTURER REPRESENTATIVE Bidder must provide proof of authorized dealership for equipment specified and the beginning and ending term of authorization. (emphasis supplied) SERVICE . . . Service is to be provided direct from the manufacturer. Third party service is acceptable only if it may be demonstrated that the location that is to provide the service can demonstrate 36 months experience in servicing the model proposed. Failure to receive this certification will be sufficient cause for rejection of this bid. (emphasis supplied) The manual signature of Ms. Klusmeier on ABS's April 1997 Bid certified that the bid was in compliance with all requirements of the ITB, "including but not limited to, certification requirements." ABS is not a manufacturer of the mailing equipment it bid. In its Bid, ABS enclosed a certificate issued by the Department's Minority Business Advocacy and Assistance Office certifying that ABS was a Minority Business Enterprise (MBE) under the provisions of Chapter 287, Florida Statutes. However, ABS failed to specifically include proof of authorized dealership for the equipment specified with its bid. At all times material, the Department's MBE office had a copy of ABS' manufacturer-dealer agreement with Neopost (the manufacturer) and an ABS catalogue displaying all the Neopost bid items and stating that ABS is an authorized dealer for Neopost. However, this information was not part of the subject bid response package. Rather, it had been previously submitted by ABS to obtain MBE certification. It was not re-submitted as part of ABS' ITB response package. ABS has manufacturer's (Neopost's) authorized service centers in Florida. ABS intended that ABS and another authorized dealer would provide service in the State of Florida for the equipment it bid. However, ABS failed to include with its Bid a demonstration that either ABS or the other dealer had a minimum of 36 months' experience servicing the Neopost equipment. The November 1996 ITB had requested the same manufacturer and service information as the subject April 1997 ITB, and ABS responded in the same way to both ITB's. ABS was not ruled unresponsive in November 1996 on that basis. In April 1997, ABS also initially was treated as a responsive bidder. On May 1, 1997, the only two bids (ABS and Pitney Bowes, Inc.) were opened by one of the Department's Purchasing Specialists, Oradell Rollins. The Department posted its intent to award the bid to ABS. On May 5, 1997, Pitney Bowes, Inc., the only other bidder for the subject ITB, filed a timely Notice of Intent to Protest with the Department. Pitney Bowes, Inc., is a manufacturer and bidder which services its own products. The Department's Purchasing Office has never established a pattern of accepting an MBE Certificate in lieu of specified bid elements. The Department afforded Pitney Bowes, Inc., an informal protest procedure without notification to, or participation by, ABS. On May 16, 1997, upon request from the Department's Director of Purchasing, ABS immediately forwarded a letter to the Department from Neopost advising that ABS was an authorized Neopost dealer; that ABS and others had been certified by the manufacturer to service the mailing equipment ABS had bid for the subject ITB; and that ABS had been servicing Neopost equipment for more than 36 months. Ms. Rollins had previously requested this information just after bids were opened but had not indicated it was urgent. This type of information is not normally requested after bid opening. The Department's Purchasing Office considered waiving the missing information because its personnel had dealt satisfactorily with ABS on other contracts for a number of years, but such waiver is not the Department's usual procedure. On May 15, 1997, Pitney Bowes, Inc., timely filed with the Department its Formal Written Protest. Petitioner faults this letter's recitation that the Pitney Bowes, Inc., representative saw the alleged flaws in the ABS bid on the day that bids were opened. Petitioner proved that the Pitney Bowes, Inc., representative could not have seen ABS's bid on the day of the bid opening, but the same information could have been derived subsequently. Pitney Bowes' April 1997, Notice of Protest is not in evidence for comparison with its Formal Written Protest. No nefarious dealings or collusion necessarily flows from the foregoing findings of fact. Based upon a review of the Formal Written Protest of Pitney Bowes, Inc., and upon advice of the Department's General Counsel, the Department determined that ABS's bid on the subject 1997 ITB was, in fact, nonresponsive because, when opened, it had failed to contain "proof of authorized dealership," and also had failed to include the required "certification" on "Third Party Service." On May 22, 1997, the Department sent a letter to ABS advising ABS of the Department's decision and further advising that the Department intended to re-bid for the equipment. ABS received the Department's letter on May 27, 1997. The Department's decision to re-bid instead of to award to Pitney Bowes, Inc., was in part determined by its desire to avoid situations in which there is only one responsive bidder. It was also influenced by Departmental concerns that the Pitney Bowes, Inc., bid was much higher than the disqualified ABS bid. Departmental personnel believed that a re-bid would secure a lower cost to the Department. ABS timely filed its Notice of Intent to Protest and its Formal Written Protest. Pitney Bowes, Inc. was given notice of the referral of Petitioner's protest to the Division of Administrative Hearings and chose not to intervene. ABS established that it currently provides mailing equipment for the Department all over the State of Florida and that it coordinates service for that equipment through a Neopost network in all those locations. However, ABS did not establish that it has provided or serviced exactly the same type of equipment for the Department at each of these locations, as ABS bid in April 1997. Over time, ABS has dealt with Purchasing Specialist Oradell Rollins on these other Departmental Contracts. Prior to the subject 1997 bid opening, Mr. Bowls, ABS's "Neopost Government Specialist," had informed her that ABS covered the State of Florida for Neopost. Ms. Rollins had received an ABS catalogue and ABS's MBE Certificate in connection with ongoing business prior to the April 1997 bid opening. ABS does not perceive that ABS using other dealers certified by the manufacturer (Neopost) constitutes ABS using "Third Party" service agents, nor does ABS consider itself to be a "Third Party," as that term is used in the subject ITB. However, the Department has consistently interpreted "Third Parties" to include any dealers who are not simultaneously manufacturers and bidders, and its ITBs require bidders who are not also manufacturers to demonstrate within their Bid that each service location is certified and has 36 months' experience at the time of bid opening.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a Final Order dismissing the protest of American Business Systems and establishing a time frame in which its Invitation to Bid may be relet. RECOMMENDED this 24th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1997. COPIES FURNISHED: Linda Klusmeier, Qualified Representative American Business Systems 8638 Phillips Highway, Room 12 Jacksonville, Florida 32256 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, South East 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, South East 303 Hartman Building Tallahassee, Florida 32399-2152
The Issue The issue is whether Respondent Department of Corrections acted in a manner contrary to its governing statutes, rules or policies, or the bid specifications in giving notice of its intent to award the contract for Invitation to Bid No. 96-DC- 6847R to Intervenor Behring Diagnostics, Inc.
Findings Of Fact On February 19, 1996 the Department issued an ITB for the provision of automated drug testing equipment, an automated data management system, and drug assays for the analysis of urine specimens collected at the Department’s major institutions and community facilities. After receiving and reviewing bids from Roche, Behring, and Abbott Laboratories (Abbott), the Department issued a Notice of Intent to Reject All Bids on April 10, 1996. On April 30, 1996 the Department issued ITB 96-DC-6847R for the same services. The same three vendors, Roche, Behring and Abbott, submitted bids which were opened on June 5, 1996. On its face, Roche’s bid of $.60 per test was the lowest cost of the three bids. Behring submitted a bid of $.90 per test. The Department’s evaluation committee correctly determined that bids submitted by Roche and Abbott were not responsive to the bid specifications. Roche’s bid was not responsive because: (1) it failed to include the cost of a printer at each site as part of the equipment package; and (2) it failed to indicate the vendor’s unconditional willingness to provide litigation support at no cost to the Department in defense of a legal challenge to the vendor’s technology. The bid specifications clearly required that printers be included as part of the computer hardware. Roche did not list printers anywhere in the narrative portion of its bid response. Roche’s response stated that it covered all items pertaining to the system hardware portion of the bid. The response indicated that Roche would provide the Department with Antek-LabDAQ report management software and listed specific items of hardware that would be included. But Roche did not list a printer. Roche’s bid response stated that the LabDAQ system would print reports. Roche included copies of a sample report sheets. Roche submitted other information describing the LabDAQ system that contained pictures of a printer. It also submitted a magazine article reviewing the LabDAQ system which listed an “Okidata printer” as part of the required hardware. However, the article noted that the software could be purchased separately. Submittal of this information was insufficient to indicate that Roche’s bid included the cost of a printer. Roche’s failure to include a printer in its bid was a material deviation from the bid requirements. The ITB clearly required the vendor to provide unequivocal litigation support at no cost to the Department if someone challenged the provider’s technology in a court action. This was a material requirement in the ITB. Roche responded that “upon request from the State and if deemed necessary Roche will provide documentation, affidavits and sworn testimony to substantiate the performance of the technology incorporated in the OnLine system.” (Emphasis added.) This ambiguous response was not an absolute commitment for Roche to provide the litigation support required by the specifications. In one section of Roche’s response it stated that it was “not aware of any past or present lawsuits that have been filed in connection to the COBAS MIRA Plus or the OnLine reagents.” In another section, Roche responded that a federal district court upheld drug testing results provided from a COBAS/Online system. These inconsistent statements may have resulted in a minor deviation from the bid specification. However, they are sufficient to further undermine confidence in Roche’s bid as submitted. During the hearing, Roche presented testimony that it intended for its bid of $.60 per test to include both printers and unconditional litigation support. This testimony constitutes an inappropriate attempt to amend Roche’s bid response. It does not change the fact that Roche’s bid, on its face, was not responsive as submitted. On the other hand, Behring’s bid was responsive to the specifications. It contained only one minor irregularity that provided no advantage to Behring. Roche has presented no evidence to the contrary. The Department’s evaluation committee did not complete the scoring process to compare the three vendors’ scores. Such a comparison is unnecessary where there is only one responsive bidder. By letter dated August 26, 1996 the Department again informed the vendors that it intended to reject all bids and issue a new request for proposals in September. Even though the Department had determined that Behring was the only responsive bidder, the letter did not address the responsiveness of any of the bids. The letter stated that the Department anticipated making changes to the specifications that would require a more structured response, i.e. revise the ITB to include a checklist for every required item which the bidder would cross-reference in its bid response. There is no evidence that the Department anticipated making changes to the substance of the specifications. On or about September 5, 1996 Behring sent the Department a Notice of Intent to protest the rejection of all bids and subsequently filed a timely formal written protest. In its formal protest, Behring referred to the Department’s conclusions in a memorandum dated August 23, 1996 that Behring was the only bidder to submit a conforming bid. Roche did not file a protest of the decision to reject all bids. On or about September 26, 1996 the Department sent Roche notice of Behring’s protest and enclosed a copy of Behring’s formal protest in Division of Administrative Hearings Case Number 96-4475BID. Roche did not intervene in the bid protest. The final hearing in the bid protest was scheduled for final hearing on October 23, 1996. The day before the hearing, representatives of the Department and Behring met to discuss the possibility of settling the case. Shortly before the settlement conference, the Department’s counsel called a Roche representative, Betty Bennett, and informed her that Behring had requested a meeting to attempt to resolve the protest. He was unable to make contact with an Abbott representative. No one from Roche attended the meeting. The Department did not issue any formal written notice that it intended to settle the case with Behring. The Department did not know prior to the meeting what the parties would discuss. The Department did not attend the meeting expecting to “negotiate a contract.” At the meeting, Behring initially took the position that the Department should award the contract to Behring at $.90 per test and not seek further competitive bids. The Department took the position that the contract should be subject to additional competitive bidding to determine what the result would be with more than one competitive bid. After further discussion, Behring offered to lower its bid price. The Department’s representatives left the room to discuss the offer. Upon their return, Department representatives made Behring a lower counteroffer. Behring and the Department eventually arrived at an oral settlement under which the Department would award the contract to Behring at a price of $.77 per test and Behring would dismiss its protest. The Department based its decision to settle the bid protest with Behring on the following: (a) the risk of losing the bid protest and being required to pay Behring $.90 per test; (b) the desire not to further extend the existing contract at the current price of $1.07 per test; (c) the risk that a third attempt to solicit competitive bids would result in another protest and further delay; (d) the fact that Behring had submitted responsive bids to the two previous solicitations; (e) the assumption that subsequent bids by Roche and Abbott would be higher when they included the omitted items that caused their rejection. There is no persuasive evidence to indicate that the Department’s reasons for settling Behring’s bid protest were pretextual or otherwise invalid. The Department correctly concluded that it might have to pay Behring $.90 per test if it lost the bid protest regardless of the applicable standard of proof in that proceeding. The Department also was justified in assuming that Roche’s bid price would be higher when it included the previously omitted printers. For these and other reasons set forth above in the Findings of Fact, the Department’s decision to settle the case by negotiating a lower contract price with Behring was in the best interest of the state of Florida. On October 23, 1996 the Administrative Law Judge in Case No. 96-4475BID entered an order closing the file of the Division of Administrative Hearings and relinquishing jurisdiction to the Department. The Department did not issue a Final Order setting forth the final disposition of the case. By letter dated October 30, 1996 the Department informed Roche and Abbott that it had negotiated a satisfactory contract with Behring pursuant to Rule 60A-1.018(1)(b), Florida Administrative Code. This letter advised Roche that the Department intended to award the contract to Behring. In the letter, the Department gave Roche the opportunity to request a hearing pursuant to Chapter 120, Florida Statutes, to protest the intended agency action. By letter dated November 8, 1996, Roche protested the notice of intended award to Behring. Without objection, Roche submitted an amended petition on December 10, 1996. Behring filed a petition for leave to intervene on November 27, 1996. An order dated December 11, 1996 granted that motion.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order awarding the contract for ITB No. 96-DC-6847R to Behring Diagnostic, Inc., and dismissing the protest of Roche Diagnostic Systems. DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
The Issue Whether, when making a recommendation to award ITB No. 15C-26K (Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment, and Uniforms) to (1) Matty's Sports (Matty's), (2) Simmons Team Sports (Simmons), (3) D&J Commerce Solutions, Inc., d/b/a OLC Team Solutions (D&J), and (4) Palm Beach Sports (PB Sports), Respondent, School Board of Palm Beach County (School Board), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact ITB No. 15C-26K and the Bid Process On November 4, 2015, the School Board issued Invitation to Bid (ITB) No. 15C-26K entitled "Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment and Uniforms" for the provision of athletic equipment (hard goods) and athletic clothing, including uniforms (soft goods). The ITB offered prospective vendors the opportunity to bid on 26 items but did not require that a vendor offer a bid for each of the 26 identified items. The odd-numbered items were for hard goods and the even-numbered items were soft goods. Paragraph G,
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by BSN Sports, LLC, and upholds the awards of contracts ITB No. 15C-26K to Matty's Sports, Simmons Team Sports, D&J Commerce Solutions, Inc., and Palm Beach Sports. DONE AND ENTERED this 22nd day of July, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2015.
