The Issue The ultimate issue for determination at formal hearing was whether the intended decision by the Palm Beach County School Board to reject all bids on the Gladeview Elementary School project, Project No. 125191702/205840, departs from the essential requirements of law.
Findings Of Fact Palm Beach County School Board (Respondent) issued a request for proposals (RFP), soliciting sealed bids for the reroofing, renovating and replacing the HVAC of Gladeview Elementary School, Project No. 125191702/205840 (Gladeview Elementary Project). The RFP and bid documents for the Gladeview Elementary Project were contained in the "Project Manual." The addendum to the RFP required all bids to be submitted by April 20, 1993 at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent to the case at hand, the RFP further required a bid bond or cashier's check for not less than five percent (5 percent) of the bid and notified bidders that Respondent had the right to reject all bids and waive any informalities. Section 00100 of the "Instruction to Bidders" in the Project Manual is material to the case at hand and provides in pertinent part: BIDDING PROCEDURES: * * * Preparation and Submission of Bid Proposal Form: [P]roposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. . . (e) Proposal Submittal shall contain the following documents: Section 000443 - Public Entity Crimes Statement Section 00310 - Proposal Form Section 00410 - Bid Bond or otherwise acceptable Bid Guarantee (see Paragraph 3.08). Manufacturer's Letter of Intent to Warranty (See Section 7610) and will be enclosed in a sealed envelope. . . * * * 3.08 Bid Guarantee: Bids shall be accompanied by a bid guarantee of not less than five percent (5 percent) of the amount of the Base Bid, which shall be a Cashier's Check or a Bid Bond (Bid Bond, see Section 00410) made payable to the Owner. * * * 3.10 Subcontractors: At the time of the Bid Opening each Bidder submitting a Bid shall submit a written list of the major Subcontractors; namely, structural steel, membrane roofing, preformed metal roofing & siding, plumbing, HVAC, electrical and general contractor, on Form 00420 (List of Major Subcontractors). The list shall be placed in a "sealed envelope". . . Within five (5) Owner Business days after the Bid Opening, the apparent low Bidder(s) shall submit Form 00430) (List of Subcontractors), completed in full to the Owner ... Failure to submit these lists within the time period specified herein shall result in a non- responsive Bid. * * * REJECTION OF BIDS: 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to re-advertise for other or further Bid Proposals. SUBMISSION OF POST-BID INFORMATION: * * * 7.02 The selected Bidder shall within eight (8) Owner business days after notification of Board Award submit the following: . . . 6. Photocopies of prime Contractor's certification and/or registration and either state registrations or Palm Beach County Certificate of Competency of all Subcontractors. . . * * * AWARD OF CONTRACT: The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates. The bid opening was conducted on April 20, 1993, at which time the bids were tabulated and the Bid Tabulation Form (BTF) was posted. Respondent received bids from Bonner Roofing whose base bid was $869,000, S&S Roofing, Inc. (Petitioner S&S Roofing) whose bid was $693,000, Therma Seal Roofs, Inc. (Petitioner Therma Seal) whose bid was $691,500, Titan Roofing, Inc. (Petitioner Titan Roofing) whose base bid was $689,500, and Trans Coastal Roofing, Inc. (Petitioner Trans Coastal) whose base bid was $884,248. The BTF showed that the rank of the bids, beginning with the apparent lowest bidder to the apparent highest, were (1) Petitioner Titan Roofing, (2) Petitioner Therma Seal, (3) Petitioner S&S Roofing, and (4) Petitioner Trans Coastal. The BTF showed further that Bonner Roofing failed to submit with its bid the Manufacturers Letter of Intent which was a required document. Bonner Roofing's bid was rejected. Within minutes after the bid opening, Respondent's staff discovered that Petitioner Titan Roofing had failed to list its major subcontractors on Form 00420, List of Major Subcontractors, even though it had submitted the form. Respondent's staff contacted Petitioner Titan Roofing by telephone and requested the list. Petitioner Titan Roofing's failure to submit a completed Form 00420 was inadvertent and not intentional. At the time of the bid opening, Respondent's staff had not considered Petitioner Titan Roofing's failure to submit a completed Form 00420 to be a major irregularity, but a minor one. Consequently, Respondent's staff considered the failure to be a waivable irregularity. Unable to discern if it had the original figures submitted by its major subcontractors, Petitioner Titan Roofing telephoned them to verify the figures it had. Within two hours, Petitioner Titan Roofing had faxed to Respondent's staff a completed Form 00420. Respondent's recommendation or intended action was to award the bid to Petitioner Titan Roofing as the apparent lowest bidder. Petitioner Therma Seal, the apparent second lowest bidder, filed a timely protest of Respondent's intended action. Respondent held an informal hearing on the protest, and the recommendation was to reject all bids. In prior bids, a bidder's failure to submit Form 00420 at bid opening has been considered a major irregularity by Respondent. The purpose of Form 00420 is to prevent or guard against bid shopping. Respondent's action has been to routinely reject bids with such a deficiency. Petitioner Therma Seal failed to submit with its bid the required bid bond of 5 percent of its base bid. Failure to submit a required bid bond is considered by Respondent to be a major irregularity. Furthermore, Petitioner Therma Seal was not a licensed general contractor. It listed itself as the general contractor on Form 00420. All bids failed to comply with the roofing warranties and specifications, which Respondent considers to be a major irregularity. Respondent's budget, based upon its architect's construction estimate, for the Gladeview Elementary Project was $652,130. All bids were over budget. Prior to the formal hearing, Respondent Trans Coastal notified the parties that it was not proceeding with its protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on the Gladview Elementary School project, Project No. 125191702/205840, and re-advertise. DONE AND ENTERED this 7th day of September 1993 in Tallahassee, Leon County, Florida. ERROLL H. POWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1993.
The Issue The issue is whether the proposed award of Invitation to Bid No. 06-DC-7727 to Communications Engineering Service Company is contrary to the Department of Correction’s governing statutes, rules, policies, or the specifications in the Invitation to Bid for the reasons alleged by Petitioner.
Findings Of Fact The Department issued ITB No. 06-DC-7727 on October 27, 2006. The purpose of the ITB was to solicit bids for maintenance and repair of radio equipment owned by the Department in each of its four regions. The original deadline for submitting bids in response to the ITB was November 30, 2006, but the deadline was extended to December 15, 2006, through an addendum to the ITB. First Communications, CES, and Motorola, Inc., submitted bids for Region I. Another company, Econo Communications, Inc. d/b/a Mobile Communications, also responded to the ITB, but it did not bid on Region I. It was stipulated that First Communications’ bid was responsive to the ITB. The Department determined that the bid submitted by Motorola was not responsive to the ITB. That determination was not challenged. The Department determined that the bid submitted by CES was responsive, despite the issues discussed below. CES was determined by the Department to be the lowest responsible bidder. The bid submitted by CES was $2,571 per month.1 First Communications was the next lowest bidder. Its bid was $3,408.85 per month,2 which is 32.6 percent higher than CES’s bid. Section 4.3.1 of the ITB states that “it is essential that bidders follow the format and instructions contained in the Bid Submission Requirements (Section 5 with particular emphasis on the Mandatory Responsiveness Requirements).” Section 5.1 of the ITB lists the “mandatory responsiveness requirements” for bids, and states that: The following terms, conditions or requirements must be met by the bidder to be considered responsive to the ITB. These responsiveness requirements are mandatory.Failure to meet these responsiveness requirements will cause rejection of a bid. Any bid rejected for failure to meet responsiveness requirements will not be further reviewed. (Emphasis in original). Nearly identical language is contained in Sections 1.7 and 4.3.6.1 of the ITB, and in the ITB Review Manual used by Department staff in reviewing the bids submitted in response to the ITB. Indeed, the ITB Review Manual refers to the mandatory responsiveness requirements as “fatal criteria.” The mandatory responsiveness requirement in the ITB that is most pertinent to this case is in Section 5.1.2,3 which states: It is mandatory that the bidder supply one original signed Bid and three (3) copies of the signed bid. . . . . (Emphasis in original). The bid package submitted by CES did not include the original signed bid. It only included the three copies of the signed bid. This omission was noted by Christina Espinosa, the procurement manager for the ITB who opened the bids on the afternoon of December 15, 2006. However, after Ms. Espinosa consulted with her supervisor and the Department’s legal staff, it was determined that the omission was not material and that CES should be given an opportunity to “cure” its failure to submit the original signed bid. As a result, Ms. Espinosa contacted CES and gave it 24 business hours to “cure” the deficiency. CES delivered the original signed bid to the Department on the morning of December 18, 2006, which is three days after the bid submittal deadline in the ITB, but within the 24-business hour deadline given by Ms. Espinosa.4 CES did not have a representative at the bid opening, and there is no evidence that CES knew it was the lowest bidder, either when Ms. Espinosa gave CES an opportunity to “cure” its failure to submit an original bid on December 15, 2006, or when it submitted the original bid on December 18, 2006. It is undisputed that the original signed bid submitted by CES on December 18, 2006, is identical in all respects to the three copies of the bid that were timely submitted by CES on December 15, 2006. Ms. Espinosa reviewed the bid submitted by CES despite its failure to include the original signed bid. According to ITB provisions referenced above, that omission should have resulted in the bid being rejected and not further reviewed. The CES bid included at least one other deviation from the specifications in the ITB. The bid stated in the “service delivery synopsis” that the turnaround time for the repair of fixed equipment would be 15 working days. A 15-day time period was referenced in the original ITB, but it was changed to eight days in an addendum. Ms. Espinosa contacted CES about this discrepancy, and on January 3, 2007, CES advised Ms. Espinosa by e-mail that it “acknowledges the change in repair times from 15 days to 8 days.” CES was not the only bidder that Ms. Espinosa contacted after the bids were opened to obtain clarification or information omitted from the bid. For example, she contacted First Communications to obtain copies of its articles of incorporation and business licenses that were not included in its bid; to get clarification regarding First Communications’ use of subcontractors; and to confirm that First Communications acknowledged the eight-day turnaround time for repair of fixed equipment since its bid did not contain a service delivery synopsis. Section 4.3.1 of the ITB authorizes the Department to “seek clarifications or request any information deemed necessary for proper review of submissions from any bidder deemed eligible for Contract award.” However, Section 4.3.1 also states that “no modifications by the bidder of submitted bids will be allowed.” The ITB authorizes the Department to waive minor irregularities and non-material deviations in bids, and on this issue, the ITB states: Rejection of Bids The Department shall reject any and all bids not meeting mandatory responsiveness requirements. In addition, the Department shall also reject any or all bids containing material deviations. The following definitions are to be utilized in making these determinations. Mandatory Responsiveness Requirements: Terms, conditions or requirements that must be met by the bidder to be responsive to this solicitation. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a bid. Any bid rejected for failure to meet mandatory responsiveness requirements will not be further reviewed. Material Deviations: The Department has established certain requirements with respect to bids to be submitted by the bidder. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition which may not be waived by the Department except where any deviation there from is not material. A deviation is material if, in the Department’s sole discretion, the deficient response is not in substantial accord with this ITB’s requirements, provides an advantage to one bidder over other bidders, or has a potentially significant effect on the quantity or quality of terms or services bid, or the prices submitted to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. Minor Irregularities: A variation from the solicitation terms and conditions which does not affect the price proposed or give the bidder an advantage or benefit not enjoyed by the other bidders or does not adversely impact the interests of the Department. A minor irregularity will not result in a rejection of a bid. (All emphasis in original). The Department relies on these sections of the ITB as its authority to waive minor irregularities and non-material deviations in bids with respect to any provision of the ITB, including the mandatory responsiveness requirements. On January 4, 2007, the Department posted notice of its intent to award the contract for Region I to CES. In the same posting, the Department rejected all bids for the other three regions. The rejection of all bids for the other regions is not at issue in this case. First Communications timely filed a notice of protest and, then, a formal written protest challenging the intended award of the contract to CES. The Department provided notice of this proceeding to CES, as required by the Order of Pre-hearing Instructions. CES did not file a petition to intervene or otherwise seek to participate in this proceeding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing First Communications’ protest. DONE AND ENTERED this 5th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2007.
The Issue The issues to be considered here are those associated with the appropriate disposition of RFP-DOT-88-01 (the RFP), related to proposals received from Planning Research Corporation (PRC), AGS Information Services, Inc., (AGS), and which originally involved the proposal by Cubic Western Data, Inc., (Cubic).
Findings Of Fact THE RFP In October 1988 DOT put out a RFP requesting responses from 52 potential offerors. This solicitation garnered responses from three offerors, PRC, AGS, and Cubic. Those responses were received in March 1989. As described in the RFP, DOT desires to acquire a new barrier and ticket toll collection system which would automate the toll collection operations and retrieval of toll audit data, having in mind increased reliability and performance. This project is principally one which envisions the purchase of commodities. It also has associated service requirements. Those service items are principally involved with training and maintenance. This purchase would update technology in the existing toll system which is basically 1950's technology. The existing equipment presents maintenance problems and accounting problems. Those accounting problems are associated with an inaccurate portrayal of the monies collected and the monies that were not collected. The latter item is significant as it relates to the opportunity for potential theft of toll revenue by employees. In addition, there are problems with traffic counts. There are problems with report processing time for management and revenue reports. In the southern end of the turnpike there is the specific problem wherein the DOT is converting from a ticket type system to a coin operated system, and until the barrier type or coin collection equipment contemplated under the RFP is installed, the DOT will be manning those toll collection lanes that are designed for automatic or machine operation. Those lanes are manned by OPS personnel. A copy of the basic RFP may be found as PRC Exhibit 3 admitted into evidence. It does not contain addenda. Within the RFP is found a form which is entitled "State of Florida Request for Proposal Commodities Acknowledgment Form." Under General Conditions, at paragraph 5, it directs the offerors to submit any questions concerning the provisions and specifications in writing to DOT for receipt at a time no later than ten days prior to the proposed opening. It cautions the offerors that if they dispute the reasonableness, necessity, or competitiveness of the terms and conditions in the RFP or the contract award recommendation, to offer that opposition in accordance with Rule 13A-1.006, Florida Administrative Code, and within the time requirements of Section 120.53(5), Florida Statutes. In that same form, paragraph 17 references the liability question and reminds the offerors that any contract resulting from this proposal is designed to hold and save the State of Florida harmless against claims by third parties that resulted based upon a contractor's breach of contract or negligence. Under Special Condition 2.04 DOT reserves the right to reject all proposals. It also speaks to the ability to waive minor irregularities which are seen as those variations from the terms and conditions of the RFP which are not price effective or advantageous to the offeror or beneficial in a way not enjoyed by other offerors or to the extent that the irregularities do not adversely impact the DOT. It reminds the offerors that departure from the RFP requirements other than minor variations cannot be waived. It further states that an offeror cannot modify its proposal after the opening. Special Condition 2.05 follows up the previous condition by stating that nonresponsive proposals will not be considered for the award. Proposals are seen as being subject to rejection in that they may be rejected if found irregular and not in conformance with the requirements and instructions set out in the RFP. Those items may be found to be irregular and nonresponsive in the instance of conditional proposals and indefinite or ambiguous proposals, among other things. Two Special Conditions which are involved with DOT's right to cancel the contract are as follows: Cancellation for Unappropriated Funds The performance by the Department of any of its obligations pursuant to this RFP is subject to and contingent upon the availability of monies lawfully appropriated for the purpose. If the Department deems at any time during the proceedings that funds are not available, the Department will notify the Proposers of such status, and all obligations of the parties, if any, shall end as cancelled by mutual consent. Cancellation for Other Causes A contract arising from this RFP may be cancelled by the Department at any time for failure of the Contractor to complete specified work in accordance with the provisions of the contract and this RFP. Cancellation for such cause shall occur immediately upon Contractor's receipt of written notification thereof from the Department to the Contractor by certified mail, return receipt request. Special Condition 2.12 identifies the terms of a general or prebid conference that calls for mandatory attendance of the offerors and indicates that the members of the Technical Review Committee will be available to respond to questions that the offerors have which relate to clarification of the details of the specifications. Affiliated with that section is Special Condition 2.13 which relates to the offerors' inquiries. It reminds those offerors to examine the RFP to determine whether the DOT requirements are clearly stated. It invites the offerors to state in writing any belief that the requirements of the RFP are restrictive to competition. If the offeror wishes to change any specification, it is required to identify that specification and describe why it is difficult to meet the specification and to give a detailed explanation of why the change is justified. The offeror in that instance also provides what is referred to as a recommended change to the specification. A suggested change must be received by the DOT no later than the date shown as the last date for inquiries and questions set out in the schedule of RFP events. Under the amended schedule of RFP events, the date for last inquiries and questions to the DOT was November 28, 1988. If an offeror failed to request the change by the deadline specified, the offeror is seen to accept the Department's specifications. The DOT is to decide which changes would be acceptable. If necessary, the DOT would issue an addendum reflecting acceptable changes to the RFP, as was done in the instances referred to before. Any changes through an addendum are sent to all offerors to make certain that the offerors are given the opportunity of making proposals that deal with a common set of specifications. Special Condition 3.04 identifies the fact that the price proposals would not be opened until after completion of the evaluation and rating of technical proposals. An offeror's price would not be considered if the technical proposal was rejected during the evaluation. Special Condition 4.01 identifies the stages of the evaluation process. The first stage examines the qualifications of all offerors. The second stage examines technical proposals. The third stage examines price proposals. The fourth stage looks at the remaining proposals in the review process and rates them to arrive at the best overall proposal. Special Condition 6.01.02 speaks to indemnification and states: The contractor shall indemnify, defend, save and hold harmless, the state, the Department and all of its officers, agents, or employees from all suits, actions, claims, demands, liabilities of any nature whatsoever arising out of, because of, or due to breach of, this Agreement by the Contractor, its subcontractors, agents or employees or due to any act or occurrence of omission or commission of the Contractor, its subcontractors, agents or employees. Neither the Contractor nor any of its subcontractors will be liable under this section for damages arising out of injury or damage to persons or property directly caused or resulting from the sole negligence of the Department or any of its officers, agents or employees. The parties agree that 1% of the total compensation [sic] to the Contractor for performance of this agreement is the specific consideration from the Department to the Contractor for the Contractor's indemnity agreement. Special Condition 6.01.03 deals with liabilities for wrongful or criminal act by the Contractor and its language is to this effect: The bond shall be subject to the additional obligation that the principal and surety executing the bond shall be liable to the State in any civil action which might be instituted by the Department or any officer of the State authorized in such cases, for double any amount in money or property the State might lose, or be overcharged, or otherwise be defrauded of by any wrongful or criminal act of the Contractor, his agent or his employees. The parties agree that 1% of the total compensation to the Contractor for performance of this agreement is the specific consideration from the Department to the Contractor for the Contractor's indemnity agreement. General Provision 5.07.02 deals with failure to remove and renew defective materials and work, and it states: Should the Contractor fail or refuse to remove and renew any defective materials used or work performed, or make necessary repairs in an acceptable manner and in accordance with the requirements of the specifications, within the time indicated in writing, the Engineer shall have the authority to cause the unacceptable or defective materials or work to be repaired, removed and renewed, as may be necessary; all at the Contractor's expense. Any expense incurred by the Department in making these repairs, removals, or renewals, which the Contractor has failed or refused to make, shall be paid for out of any monies due or which may become due the Contractor, or may be charged against the contract bond. Continued failure or refusal on the part of the Contractor to make any or all necessary repairs promptly, fully and in an acceptable manner shall be sufficient cause for the Department, at its option, to perform the work with its own organization, or to contract with any other individual, firm or corporation to perform the work. All costs and expenses incurred thereby shall be charged against the defaulting Contractor and the amount thereof deducted from any monies due or which may become due him, or shall be charged against the performance bond. Any work performed subsequent to forfeiture of the contract, as described in this section, shall not relieve the Contractor in any way of his responsibility for the work performed by him. Under General Provision 8.08 dealing with default and termination of contract, for reasons described, DOT has the right to take the contract work away from that Contractor and declare the contract in default within ten days of notice that the complained-of conditions have not been corrected. General Provision 8.09 speaks to the Department and states: Upon declaration of default the Department will have full power to appropriate or use any of all materials and equipment on the site which are suitable and acceptable, and may enter into an agreement with others for the completion of the work under the contract, or may use other methods which in the opinion of the Engineer are required for the completion of the work in an acceptable manner. All costs and charges incurred by the Department because of the Contractor's default, including the costs of completing the work under the contract, shall be charged against the Contractor. In case the expense so incurred by the Department is less than the sum which would have been payable under the contract if it had been completed by the defaulting Contractor, the defaulting Contractor shall be entitled to receive the difference. In case the expense exceeds the sum which would have been payable under the contract, then the Contractor and the surety shall be liable and shall pay the Department the amount of the excess. If after the ten calendar day notice period, and prior to any action by the Department to otherwise complete the work under the contract, the Contractor should establish his intent to prosecute the work in accordance with the Department's requirements. The Department may elect to permit the Contractor to resume the work, in which case any costs to the Department incurred by the delay, or from any reason attributable to the delay, will be deducted from any monies due or which may become due under the contract. General Provision 8.10 deals with the amount of liquidated damages and it states: Such liquidated damages shall be the amounts established in the following schedule which shall apply to each project and retainage. Daily Charge Per Original Contract Amount Calendar Day $50,000 and under ................. $ 200 over $50,000 but less than $250,000 ................... 300 $250,000 or more but less than $500,000 ........................ 400 $500,000 or more but less than $2,500,000 ...................... 550 $2,500,000 or more but less than $5,000,000 ...................... 650 $5,000,000 or more but less than $10,000,000 ..................... 750 $10,000,000 or more but less than $15,000,000 ................ 1,000 $15,000,000 or more but less than $20,000,000 ................ 1,250 $20,000,000 or over ............ 1,250 plus 0.005 percent per day for any amount over $20,000,000 Under the section in the RFP dealing with the Contract Agreement is found Section 14.00 which contains the language set out in Special Conditions 6.01.02 previously quoted. Under the Contract Agreement at Section 19.00 is found a statement of further emphasis about the ability of the DOT to proceed premised upon available funding wherein it is stated: The Department during any fiscal year, shall not expend money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection shall be null and void, and no money shall be paid on such contract. The Department shall required a statement from the comptroller of the Department that funds are available prior to entering into any such contract or other binding commitment of funds. Nothing herein shall prevent the making of contracts for periods exceeding one year, but any contract so made shall be executory only for the value of the services to be rendered or agreed to be paid for in succeeding fiscal years, and shall be contingent upon an annual appropriate of the legislature. THE FIRST EVALUATION COMMITTEE: ITS DECISIONS The committee that was formed to evaluate the several responses had strong technical expertise and limited contractual or administrative experience. Its members were Debra Stemle, Deputy Director Office of Toll Operations; Richard Humphry, head of the facilities and equipment section with toll operations; Scott Love, a data processing manager in the Fort Lauderdale toll operation; Bernard Schmit, a toll technical supervisor; Herb Pressly, associated with the DOT information system and service office; and James Anderson, internal audit staff. Non-voting members included persons from the consulting groups, Post, Buckley, Shue, and Jernigan and Palmer and Associates. Woody Lawson from the DOT Office of Contractual Services served as a liaison to the evaluation committee to address contract questions should they arise. In the experience of DOT it is unusual to purchase commodities by use of an RFP. Moreover, it is unusual to have a commodities purchase in which the Purchasing Division within DOT is not involved. It was not involved on this occasion and the liaison and advisory functions concerning the purchase were through the Contractual Services Division. The evaluation committee began its work within a week of receipt of the proposals. After its first week of review it had made certain discoveries concerning the proposals that can be characterized as problem areas. Those discoveries are outlined in the memorandum prepared through the offices of Post, Buckley, Shue and Jernigan. The operative terms of that memorandum are based upon observations by the evaluation committee. A copy of that memorandum may be found as PRC Exhibit No. 4 admitted into evidence. Cubic's responsiveness was called to question for reasons outlined in the memorandum attachments. In addition, under paragraphs 21-27 attached to the memorandum, certain comments were offered about AGS and its suggestion of changes to the RFP filed with its proposal. A copy of those items that are alluded to in those paragraphs 21-27 may be found as PRC Exhibit No. 5 admitted into evidence. In the attachment to the memorandum, PRC 4, there were observations to the effect that AGS was taking exception to some of the terms of the RFP. Quoting from those paragraphs 21-27, they remarked: AGS - Special conditions Proposal Page No. FDOT TSC-1 Takes exception with RFP 2.008 Need Purchasing and Attorney's office to review. AGS - Special condition Proposal Page FDOT TSC-1 Request Addition to SEC. 2.09 AGS - Special Condition Proposal Pg FDOT TSC-1 Request changes in Section G.01.02 of RFP. [sic] AGS - Special Condition Proposal Pg. FDOT TSC-2 Request Changes in Section 6.01.03 of RFP. AGS - General Provisions Proposal Pg. FDOT TSC-2 Request Changes in Section 5.07.02 AGS - General provision Proposal pg FDOT - 2 Request changes - Section 8.08 Section 8.09 Section 8.10 Refer to Purchasing and Attorney AGS - Proposal Pg FDOT TSC-3 Request Contract Agreement Sec. 22.00 Sec. 14.00 Sec. 19.00 Go to cubic western data Vol 1 CWD Qualification Statement These relate back to sections within RFP already described. As can be seen the evaluation committee was persuaded that it needed the assistance of the Purchasing Division and attorneys within DOT to examine the problems with the AGS suggestions. This is somewhat misleading, because assistance was provided from contractual services, not purchasing. It also felt the need for consultation concerning the responsiveness of Cubic. Ms. Stemle's testimony describes the evaluation committee's reaction to the Cubic and AGS proposals as an attempt by Cubic to change the documentation of the DOT and for AGS to propose a language change to the contract document. In its effort to have the matters examined the evaluation committee contacted Woody Lawson and asked if the evaluation committee should have any real concern about Cubic and AGS. Lawson advised that the evaluation committee should move forward to examine the technical proposals of the three offerors and that the problems that had been seen in the responses might not in their own right constitute a matter of concern. The observation by Ms. Stemle was that this meant, if the proposals in their terms complied in all respects with the RFP, that DOT would be contracting with an offeror for what the RFP called for. This specifically refers to compliance with the technical aspects of the RFP. In essence, the method contemplated by Mr. Lawson's advice to the evaluation committee was one in which the issue of overall responsiveness in view of the problem language in the Cubic and AGS responses related to administrative or contractual requirements was set aside until the technical proposals could be examined. That examination revealed that the technical proposal by Cubic related back to the problems of changes to the contract format and caused the evaluation committee great concern about the responsiveness of Cubic. The technical aspects of AGS were not found to present sufficient problems, in the mind of the evaluation committee, to cause a re-examination of the contract or administrative issues that were addressed in the memorandum attachments within PRC No. 4 as they describe the suggestions in PRC No. 5 that had been promoted by AGS in its response. From Ms. Stemle's point of view, the, problems that existed with the AGS suggested contractual changes or administrative changes that could be addressed in the course of a negotiating phase leading to a contract should AGS be found to be the most advantageous offeror. Persons within DOT who might have a greater appreciation of the significance of the AGS suggestions, that is to say persons from the contracting services or legal arm within DOT did not make a critical examination of the AGS suggestions. By contrast to the circumstance with the AGS proposal, a meeting was convened to consider the responsiveness of Cubic following the assessment of its technical terms. Out of that meeting a decision was reached to reject the proposal of Cubic. These activities are described in the composite PRC No. 7, which includes a memorandum of May 16, 1989, concerning the meeting to discuss the responsiveness issue and a May 18, 1989 letter advising Cubic of the decision to reject its proposal. This decision was met with a protest filed by Cubic. The terms of that formal written protest are described in the Cubic Exhibit No. 3 admitted into evidence. That protest was voluntarily dismissed on July 31, 1989 as shown in Cubic's Exhibit No. 4 admitted into evidence. The case had been forwarded to the Division of Administrative Hearings for consideration as Cubic Western Data, Petitioner vs. Department of Transportation, Respondent, DOAH Case No. 89-3852BID. With the advent of the notice of voluntary dismissal, the case was dismissed before the Division of Administrative Hearings by order, shown in Cubic Exhibit No. 5 admitted into evidence. Following the notice of voluntary dismissal of the Cubic protest the evaluation committee proceeded with the work of examining the remaining proposals and the office of contractual services opened the price proposals. The office of contractual services was made aware of the scoring in the technical aspects of the two remaining proposals and conducted the opening of the price proposals at a public session. The office of contractual services and the evaluation committee conducted independent examinations of the pricing. In doing this work those groups had an engineer's estimate of the cost which was based upon all unit rates which had been requested in the RFP. In effect, there was a comparison of the proposals against the engineer's estimate. The committee had in mind making certain that the pricing was in keeping with the technical proposal. Through this process DOT derived its proposal tabulation, a copy of which may be found as PRC Exhibit No. 8 admitted into evidence. It shows that out of a possible 2,000 points PRC achieved 1,830 and AGS 1,304. This document reminds those concerned that any intended award of the contract is contingent upon and subject to the Governor and Cabinet's approval under the authority of Section 287.073, Florida Statutes, and Rule 13N-1.005, Florida Administrative Code. This exhibit constituted a statement of the DOT intent to award to PRC. The bids had been opened on September 11, 1989, and the posting time ran from 8:00 a.m., November 21, 1989 until 8:00 a.m., November 28, 1989. CUBIC RETURNS Notwithstanding the voluntary dismissal of its challenge to the agency decision finding it unresponsive, as noticed July 31, 1989 and the resultant lack of involvement of Cubic in the review process associated with examination of the price quotation and comparison to the remaining offerors, Cubic attempted to resurrect its participation in the administrative process. This was done by a letter of protest on November 27, 1989, which may be seen as Cubic Exhibit No. 6 admitted into evidence, and a formal written protest dating from December 6, 1989, Cubic Exhibit No. 7 admitted into evidence. The case was referred to the Division of Administrative Hearings and became Cubic Western Data, Petitioner vs. Department of Transportation, Respondent, and Planning and Research Corporation, Intervenor, DOAH Case No. 89-6926BID. On January 2, 1990, the Hearing Officer recommended the dismissal of the protest by Cubic and by Final Order of January 22, 1990, the Secretary of DOT dismissed the protest and ordered that the contract be awarded to PRC. That order did not contain the caveat found in the notice of intent to award tabulation that reminded interested persons that the decision was contingent upon approval by the Governor and Cabinet pursuant to Section 287.073, Florida Statutes, and Rule 13N-1.005, Florida Administrative Code. A copy of the Recommended Order and Final Order may be found as Cubic Exhibit No. 8 admitted into evidence. Having determined to award the contract to PRC and in anticipation of that outcome, DOT provided documentation to the Director of the Division of Purchasing of the Department of General Services in support of its choice on November 15, 1989. A copy of that information with a transmittal letter may be seen as PRC Exhibit No. 10 admitted into evidence. This was followed by a February 7, 1990 letter to the Director of the Division of Purchasing of the Department of General Services requesting that the item be agendaed before the Governor and Cabinet for its February 20, 1990 meeting. The letter mentioned the fact that court action which had been commenced by PRC attempting to prohibit the disclosure of the details of its proposal had been dismissed. Thus, the cabinet aides and the Governor and Cabinet would be able to examine the details of PRC's submission. The correspondence points out that the Cubic price proposal had never been examined by DOT and remained unopened. The correspondence; included a copy of the January 22, 1990 Final Order dismissing the Cubic protest. A copy of the February 7, 1990 correspondence was admitted as PRC Exhibit No. 1. The record does not reveal that the Governor and Cabinet sitting as the State of Florida, Department of General Services has ever acted to approve or disapprove the intended contract award to PRC. As of the week of the final hearing it was still a deferred agenda matter in front of that body. Secretary Benjamin J. Watts, agency head for DOT, had his first involvement in this case in the summer of 1989 at about the time Cubic brought its initial challenge to the decision finding it unresponsive. In the absence of the then Secretary Kaye Henderson he spoke with the General Counsel to DOT, Tom Bateman, and advised Bateman to make the decision that Secretary Henderson contemplated; that decision being one where the agency moved forward with the decision making process concerning this RFP. Following that circumstance Watts received a number of telephone calls from different offices or individuals in the legislature inquiring about whether the DOT properly reviewed this case and if Cubic had been treated fairly. Watts replied in the affirmative. Sometime around Christmas of 1989, Watts met with Cubic, PRC and AGS to discuss the pending case and upon the advice of an attorney within DOT, Bob Daniti, decided to leave matters to the Hearing Officer. This pertained to Cubic's existing case which was eventually dismissed on January 22, 1990. Watts then received a telephone call on February 14, 1990, from Brian Ballard of the Governor's office. Watts had a meeting with Ballard to describe Watts' impression of the case. Ballard requested that DOT do a side-by-side comparison of the proposals based upon information that Cubic had supplied Ballard and his office, according to Ballard. Watts is unaware of who Ballard may have met with from the Cubic firm. This inquiry by Ballard was made at a time beyond which DOT had declared its intention to award the contract by entry of its Final Order on January 22, 1990. From what Ballard said to Watts, Cubic had given Ballard two or three exhibits out of the proposal and highlighted certain areas and within those exhibits told Ballard that if Cubic is being declared unresponsive, then some of the other firms should have been found unresponsive as well. The opposition to the DOT choice to award to PRC as expressed by persons who communicated their point of view to Watts was not based upon any concerns as to the technical analysis. It was premised upon concerns about procedures. Ballard also informed Watts that he wanted the review done and a recommendation made about this matter on Monday following that Wednesday, which would have been February 19, 1990. As Ballard expressed it this would allow him to get back with Cubic on February 20, 1990. Watts responded to these instructions by telling a second committee which he selected on February 14, 1990 to make a further review and that he wished to have their recommendations by February 19, 1990, if possible. He told them that if that was not possible, then their reasons should be provided by the end of the upcoming weekend. In anticipation of the discussion with the Governor's office, Watts told his personnel that he wanted them to give him some estimate of how long it would take. If the review could not be completed by the designated time, Watts said that he intended to simply go back to Ballard and tell him that it was not possible to give an impression of this case by the deadline which Ballard had imposed. In furtherance of the instructions which he had been given by Ballard, Secretary Watts convened the second evaluation committee which was constituted of persons who had stronger grounding in administrative and contract matters. This group included George Lovett, the General Counsel for District V; John Ellis, Professional Services Coordinator in that same District; Brant Hargrove, General Counsel for District II; Nodrie Moses, from the procurement office; Jack Monpetit, Professional Services Coordinator, District II and Marly Eichhoefler, from the DOT Auditor's office. Secretary Watts issued a memorandum which gave a written indication of his intentions about the duties of the second evaluation committee. A copy of that memorandum may be found as DOT Exhibit No. 1 admitted into evidence. He charged that group with the responsibility to review the RFP and all proposals, to include the Cubic proposal which had been rejected in the final order entered cutting off the participation of Cubic in the process. He told them to review and compare major elements of each proposal and determine how responsive each offeror had been in completing the RFP. He indicated that they should identify any problem areas, procedures, questions or etc. that revealed themselves. He allowed them to question the first review committee as well as others who had been involved in the process to gain information about background and technical matters, and provided a list of names of persons who could be contacted to include the members of the first evaluation committee. The Secretary did not intend that the second review committee look carefully at the technical side of the proposals. Being uncertain of their charge in that respect, the second evaluation committee came back to the Secretary early on in their review process and asked for clarification on that point and were told that they need not concern themselves with the particulars of the technical aspects of the proposals. It was not the intention of Secretary Watts that the second evaluation committee get involved in any in-depth discussion or analysis of the choices of the first evaluation committee or to offer a specific critique of the work done by that group. His intention was that the second evaluation committee operate independent of the activities of the first evaluation committee. Watts even went so far as to instruct his second evaluation committee not to ask questions of the first evaluation committee about what conclusions the initial group had reached and not to get information or documents from the first group that would reveal what the prior group had done. The second evaluation committee pursued its responsibilities for several days. On February 17, 1990, it wrote a memorandum to Secretary Watts with its recommendations. A copy of that memorandum may be found as DOT Exhibit No. 2 admitted into evidence. The second evaluation committee did not draw any different conclusions about the responsiveness of the Cubic proposal, nor ascertain any impropriety in treatment that Cubic received in the evaluation process. It did determine that AGS was also nonresponsive for reasons that will be discussed more thoroughly. The evaluation of the PRC proposal by the second evaluation committee lead to the conclusion that the PRC proposal was responsive. That perception was held by the first evaluation committee as well. It is accepted here, together with the opinion of the unresponsiveness of Cubic. After receipt of the report from the second evaluation committee, Secretary Watts held an exit interview with those persons. In the course of that exit interview the conclusions reached by the second evaluation committee were explained to Watts. It was at that point that Watts gave this group some insight into the history of the case in terms of the contentions that had been made about DOT and its first assessment of these proposals. At this juncture, he asked the second evaluation committee if they discovered anything improper with the bidding or anything in the way of influencing that process, taken to mean improper influence. The second evaluation committee told him that there did not appear to be any impropriety or undue influence. That perception is in accord with the assessment of the present record, in that it has not been revealed that the DOT participated in any impropriety or was susceptible to undue influence in the process of the initial evaluation of the responses. Likewise, nothing in the activities of the second evaluation committee is seen to be inappropriate in terms of the portions of this project that they examined related to the administrative or contractual portion of the RFP. The conclusions that they reached are correct in academic terms. Their ability to proceed to evaluate as a jurisdictional matter is not acceptable for reasons that will be discussed in the conclusions of law. More particularly, the second evaluation committee in its exit conference with Secretary Watts told him that their impression of those persons that they had spoken with from the first evaluation committee did not lead them to conclude that there was any pressure on or undue bias exercised by that group. Secretary Watts described for the second evaluation committee what he called rumors around Tallahassee of political influence used to find Cubic nonresponsive and apparently the suggestion that this would work somehow to the advantage of PRC. Again, to the extent that form of commentary was being pursued, it does not comport with the facts in this case. The second evaluation committee in its conclusions about the work of the first evaluation committee determined that the first group had not spent as much time in analyzing procedural and administrative issues as the second group did and saw this as being the reason the first evaluation committee did not discover the unresponsive nature of the AGS proposal. The second evaluation committee did not look closely at the AGS technical proposals to see how those might have an influence on its proposed contract language. Nonetheless, explanation of the AGS bid with the suggested contractual arrangement which AGS has advanced (See PRC Exhibit No. 5), reveals that a consideration of the technical aspects of the AGS bid would not save the proposal from a declaration that it is unresponsive. With the determination that AGS was not responsive, DOT was left with one responsive offeror. Secretary Watts had a conversation with Ronnie Thomas, Director of Purchasing for the Department of General Services. The recommendation that Thomas made to Watts was to re-advertise in that there were three offerors basically capable of doing the work and it would be in the best interest of the taxpayers to re-advertise. The choice to re-advertise would be in lieu of the award of the contract to PRC. That contract would not be for a sole-source purchase. In would be under the guise of what is referred to in Section 287.062(2), Florida Statutes, as a negotiated purchase. In addition to discussing the situation with the second evaluation committee, Secretary Watts sought the advice of his legal staff. He decided to re-advertise because he felt that DOT had not followed its own procedures, as it relates to examination of the AGS proposal by the original evaluation committee and its failure to deal with the problems in that proposal. Under the circumstances, Watts did not believe that he would be able to support the decision to award to PRC, before the public and the Governor and Cabinet. In his mind this outweighed any decision in favor of PRC as being an arrangement that would be advantageous to the State. He believes that there is a benefit to be derived by competition, whether re-advertising leads to a better price advantage or not. Secretary Watts believes that even though the matter has been referred to the Governor and Cabinet for its decision, DOT has the ability to reject all proposals and re-advertise. On February 21, 1990, all three offerors were informed of the agency decision to reject all bids. The correspondence directed to PRC may be found as PRC Exhibit No. 9 admitted into evidence. The correspondence directed to Cubic may be found as Cubic Exhibit No. 9 admitted into evidence. In its operative terms, that correspondence is the same and in pertinent part states: Further review of the proposals submitted in response to RFP-DOT-88-01, Toll Collection System, revealed that the proposals submitted by AGS Information Services, Inc., and Cubic Western Data were non-responsive. In order to have competitive offers there must be two or more offers submitted by responsive and qualified offerors. As a result, we do not have two competitive proposals. The Department has determined that the commodities which were the subject of this request for proposals are available from more than a single source. Therefore, the Department has decided to withdraw its notice of intent to award RFP-DOT-88-01 to Planning Research Corporation, which was contingent on Governor and Cabinet approval. This letter is your notice of our decision to reject all proposals. It is our intent to issue a new Request for Proposals for a Toll collection System. On that same date an amended final order was issued signed by the same person who had authored the letter notifying the parties of the decision to reject all proposals, as designee of Watts. The amended final order in its substance is associated with DOAH Case No. 89-6926BID and differs from the January 22, 1990 final order to the extent of reminding those parties that the award to PRC is contingent upon approval by the Governor and Cabinet in accordance with Section 287.073, Florida Statutes and Rule 13N-1.005, Florida Administrative Code. Secretary Watts perceives the amended final order as establishing a correction to the January 22 order, concerning advice to the parties that the contract must be approved by the Governor and Cabinet. He does not perceive this as being a continuing statement of the intention to award to PRC in the face of a contradictory decision to reject all bids, as evidenced in the correspondence of that same date. The DOT estimate concerning the time necessary to re-advertise contemplates an intent to award by December 7, 1990, with no time allowance for a protest from a disappointed offeror. PROBLEMS WITH THE AGS PROPOSAL Based upon an examination of the testimony of Secretary Watts, Terry Cappellini, Director of Purchasing within DOT, and members of the second evaluation committee, together with an analysis of the overall record concerning the RFP language and policy matters associated with the RFP process, the AGS proposal is not responsive. As alluded to before, PRC Exhibit No. 5 sets out the suggestions which AGS had in mind when it submitted its proposal. It calls them exceptions. In Special Condition 2.08, the language of which is found at page 6, AGS has recommended insertion of additional language to the affect that: In the event the Department cancels for unappropriated funds this RFP or any contract entered into with Contractor pursuant thereto, the Department will, within 30 days of notification of such cancellation, pay Contractor for all work actually performed. Such payment shall be in accordance with the payment terms specified in the Contract between the Department and the Contractor. Similar language is contemplated as being added to Section 19.00 under the Contract Agreement which language in the Contract Agreement has been recited at page 11 in the recommended order. In describing the reasons for the suggested additional language AGS states that it is requiring assurance that if the RFP or any contract with DOT and AGS is cancelled because of a problem of funding, AGS insists on being paid for work that is actually performed. In furtherance of that arrangement it recommends insertion of the above-quoted language. With respect to Special Condition 2.09, which is quoted at page 6 in this recommended order, AGS vies for cancellation after allowing AGS a reasonable opportunity to remedy the problems contemplated, instead of the right to cancel immediately. It recommends the insertion of additional language to the affect: In the event the Department intends to cancel a contract arising from the RFP due to Contractor's alleged failure to complete specified work in accordance with the provisions of the contract or this RFP, the Department shall notify Contractor of such intention, identifying the alleged deficiency, and allow the Contractor a period of 30 calendar days form the date of such notice to remedy the deficiency. In the event Contractor fails to remedy the deficiency within such 30 day period, the Department may cancel the contract effective immediately. Related to Special Condition 6.01.02 dealing with indemnification, as related on page 8 in the recommended order, AGS states that it finds that the idea of indemnification associated with the sole negligence of the Department is not appropriate and would recommend that the word "sole" be substituted for by "or primary." A similar change is recommended for Section 14.00 under the Contract Agreement which has the same language as Special Condition 6.01.02. In discussing Special Condition 6.01.03, the text of which is found at page 8 in the recommended order, AGS attempts to clarify that the one percent reference at special Condition 6.01.03 is in addition to the one percent total compensation for performance that is set out in Special Condition 6.01.02 by the insertion of additional language in Special Condition 6.01.03 in this way: Section 6.01.03 specifies that 1% of total compensation to the Contractor is the agreed compensation for performance by Contractor of the Indemnity Agreement set forth therein. AGS would like to make clear that this 1% is in addition to the 1% of total compensation for performance of the Indemnity Agreement set forth in Section 6.01.02. Accordingly, AGS recommends insertion of the following additional language in Section 6.01.03: `This 1% in addition to 1% of total compensation specified in Section 6.01.02 above.' General Provision 5.07.02 is associated with the failure to the contractor to remove or renew defective materials and work, the text of which section is set out at page 9 of the recommended order. AGS expresses the belief that the contractor should be given a reasonable period of time to remove or renew before rights of the DOT are triggered. It recommends the insertion of language to the effect: The Department's rights under this Section shall be triggered only in the event Contractor fails to remove or renew defective material and/or work within a reasonable period of time from the date of request for such removal or renewal. Engineer and Contractor shall agree upon the duration of such time period on a case by case basis. By remarks directed to General Provision 8.08 of the General Provisions related to the 10 day grace period to cure the defaults, AGS states its belief that 30 days is more reasonable and requests that the grace period be extended to 30 days. In discussion of General Provision 8.09 dealing with the ability of the DOT to complete work after default, found at page 10 of the recommended order, AGS describes its belief that contract law and equitable considerations mandate that DOT is required to use its best efforts to mitigate damages and recommends insertion of the language to the effect: The Department shall use best efforts to mitigate damages in performing or arranging to have work performed as provided in this Section. Discussion is made by AGS of General Provision 8.10, which is described at page 11 in the recommended order. AGS believes that the schedule of liquidated damages should discharge the contractors liability for acts or admissions unless the law requires otherwise. AGS commends insertion language to the effect: Except as otherwise provided by law, payment by Contractor of liquidated damages in accordance with this schedule shall fully discharge Contractor's liability for acts or omissions giving rise to such damages. In discussing the Contract Agreement AGS requires the addition of a Section 22.00 which has this language: In no event will contractor be responsible for any special indirect, incidental or consequential damages resulting from loss of use or opportunity, data or profits arising out of or in connection with the use or performance of the products or services proposed to be delivered hereunder, even if contractor was informed, knew or should have known of the possibility of such damages. In no event will the liability of contractor in connection with the work proposed to be performed hereunder exceed amounts paid by the Department to contractor for such work. This limitation applies to all causes of action in the aggregate, including, without limitation, breach of contract, breach of warranty, negligence, strict liability and other unintentional torts. Finally, under the Contract Agreement is found this comment by AGS wherein it says: AGS requires that the contract define the work AGS will perform. We have priced the work with the understanding that our Technical Proposal defines the work. If we will be required to do work not defined, we will be willing to review our price proposal. In the provisions within the RFP that were referred to in the initial discussion of its terms, the offerors were given adequate opportunity to discuss and clarify those provisions which they did not understand or agree with. Absent success in the attempt to try to persuade DOT to change its position concerning those items within PRC 5 that AGS takes exception to, it had the ability to make a timely challenge to those terms and conditions. From the record, AGS did not attempt to persuade DOT to make changes nor did it pursue challenges to the terms and conditions excepted to. As a consequence, according to Special Condition 2.13, AGS has acquiesced in the terms and conditions. Absent a challenge within 72 hours of the date for submitting requested changes, which date according to PRC Exhibit No. 3 was November 28, 1988, no challenge may be pursued. To allow AGS to advance these recommendations and requirements set out in PRC 5 through the submission of its proposal, would be to condone a material departure from the requirements of the RFP. These items constitute other than minor irregularities which may not be waived. As described in Special Condition 2.04 these arrangements which AGS promotes could affect the price of the proposal and give the offeror an advantage over the other offerors, benefits not enjoyed by the competition. Of course Cubic sought similar advantage, so it is PRC who bore the brunt of these attempts by the competition. To allow AGS to require items or bargain for items in its favor that are not enjoyed by its competitors at a time beyond the acceptable place at which these adjustments could have been allowed or mandated by a decision honoring a challenge to the specifications, would be violative of Special Condition 2.13. It would also adversely impact the interest of the DOT described in Special Condition 2.04, in that the items which AGS would change are extremely important to DOT as a policy matter. These are items that DOT would not wish to surrender through negotiation. This speaks in particular to changes to Special Condition 2.08, General Condition 8.09, the addition of Section 22.00 under the Contract Agreement and the required deference to the technical proposals of AGS instead of the RFP. Moreover, under Special Condition 2.05 the AGS attempt constitutes a nonresponsive proposal in that it is a conditional proposal and is indefinite and ambiguous. Under the scheme contemplated by the RFP, it would be inappropriate to wait until the time of intended contract award to AGS, as hypothetical winner, before making the final decisions on the recommendations that AGS had made to change the terms of the RFP. Regardless, in those instances which have been identified wherein AGS required a certain outcome associated with the RFP terms, this potential bargaining session is not contemplated and a decision on responsiveness would have to be reached without regard for such a bargaining session. In either event, whether referring to the recommended changes or required changes, AGS did not pursue these matters appropriately and they are items which are material, which may not be waived as minor irregularities and which cause the AGS bid to be unresponsive. As generally described before, in the event changes are requested as contemplated by Special Condition 2.13, DOT determines if those changes are acceptable and to the extent that they are found to be acceptable they are incorporated as an addendum to the RFP, thus allowing all offerors the opportunity to submit proposals to the same controlling specifications. When AGS mandated a different set of requirements or requested them, it deprived the other offerors of the opportunity to submit proposals associated with the same specifications. This created an advantage and benefit for AGS not enjoyed by PRC. In summary, none of the items that the first evaluation committee and the second evaluation committee discovered about the PRC proposal constituted other than minor irregularities. As described by Terry Cappellini, who is the Manager of the Office of Contractual Services for DOT, the PRC proposal is advantageous to the state in the sense of being the high technical low priced proposal.
Recommendation Based upon the Findings of Fact and the Conclusions of Law, it is, RECOMMENDED: That a Final Order be entered leaving in place the final order dated January 22, 1990 as amended by the February 21, 1990 order, in which the decision was made to recommend the intended award of a contract to PRC to the Governor and Cabinet; which sets aside the decision to reject all proposals, takes the necessary action to arrange for the item to be agendaed before the Governor and Cabinet; and foregoes further action until the Governor and Cabinet has made its decision. DONE and ENTERED this 22nd day of May, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 22nd day of May, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-1583BID The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraph 1 Reference to a September 23, 1988 publication in the Florida Administrative Weekly is not necessary in that the start-up date of October, 1988 has been Established in the recommended order and that suffices. Otherwise this paragraph is subordinate to facts found. Paragraphs 2 through 16 are subordinate to facts found. Paragraphs 17 and 18 are not necessary to the resolution of the dispute. Paragraph 19 in its first and third sentence is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. Paragraphs 20 through 25 are subordinate to facts found. Paragraph 26 is contrary to facts found. Paragraphs 27 through 31 are subordinate to facts found. Paragraph 32 is subordinate to facts found except to the extent it suggests that the AGS proposal is responsive. In that way it is contrary to facts found. Paragraph 33 is subordinate to facts found with the exception that the problem with the AGS proposal in its suggestive contract language were not answered by the review. In Paragraph 34, the impression by the initial evaluation committee that the AGS problem areas could be worked out later was erroneous. The discussion in Paragraphs 35 through 39 concerning the ability of the agency to reconcile the problems with the change to the specified contract language and conditions contained within the RFP does not comport with the facts in the recommended order. The idea of default by an awardee and collection of the bid bond does not come into play because there is no opportunity to wait that long before resolving the issue of responsiveness of the offer concerning those contract terms and conditions set forth in the RFP. Paragraph 40 is subordinate to facts found. Concerning Paragraph 41, notwithstanding the fact that the agency has no specific policy about indemnification language, if an offeror wanted to modify the suggested language within the contracts and conditions found in the RFP it had to do so in accordance with the discussion in the recommended order. Concerning Paragraph 42, even though there is no definitional statement of what an additional proposal may be, this does not preclude the opportunity to examine that issue on a case by case basis. That was done here. The suggestion by Paragraph 43 that the proposed section 22.00 is other than part of a conditional proposal by AGS is rejected, as is the notion that this language in the proposed section 22.00, described by AGS as required, can be rejected at the time of a contract execution with AGS. It would be inappropriate to wait that long to decide the issue of the acceptability of that proposed section 22.00. That arrangement is not in keeping with the discussion in the recommended order. Paragraph 44 is accepted with the exception that AGS and the DOT could not consider contract changes at the time of potential contract award to AGS. Paragraphs 45 through 48 are subordinate to facts found. Paragraph 49 is contrary to facts found. Paragraphs 50 through 52 are subordinate to facts found. Concerning Paragraph 53, the only thing unique about the Cubic circumstance is its prior participation in the process. Paragraphs 54 through 56 are subordinate to facts found. Paragraph 57 is subordinate to facts found with the exception of the significance of the failure of the second evaluation team to appreciate that the first evaluation team had some knowledge of the problems of the AGS proposal. A clear impression of what was done by the first evaluation team would not appear to have promoted a different result in the analysis made by the second evaluation team. Paragraphs 58 through 60 are subordinate to facts found. Paragraph 61 is contrary to the impression described in the recommended order, in that both Cubic and AGS were unresponsive. The suggestion in Paragraph 62 that a complete evaluation of the technical matters would have caused a different impression of the problems with the AGS proposal is not accepted. Paragraphs 63 through 65 are contrary to facts found. Respondent's Facts These facts are subordinate to facts found. Intervenor's Facts Paragraphs 1 through 21 are subordinate to facts found. Paragraph 22 in the sense of suggesting immediate availability of John Berry to advise the first evaluation committee is not an accurate portrayal and it is that immediate advice which became significant in this case. That advise was provided by Woody Lawson. Paragraph 23 is not necessary to the resolution of the dispute. Paragraphs 24 through 27 are subordinate to facts found. It is accepted that the original evaluation committee perceived the AGS proposed addition of section 22.00 in the Contract Agreement as a recommendation; however, the more pertinent concern was the overall attitude of the first evaluation committee and its actions pertaining to the entire set of issues that were described in PRC 5. Paragraphs 25 and 30 are subordinate to facts found. Paragraph 31 is accepted wherein it describes the lack of contact with the DOT legal office. It is not accepted where it suggests that there was not contact with the purchasing office as having any significance. It sufficed to contact the contractual services office for advice without resort to discussions with the purchasing office. Paragraphs 32 through 43 are subordinate to facts found. Concerning Paragraph 44 it is not considered unusual that in the posting of the proposals, there rating and the statement of intended contract award that mention would be made of the decision being contingent upon approval of the Governor and Cabinet. Paragraphs 45 through 52 are subordinate to facts found. Paragraph 53 is incomplete in its depiction of the reasons for the request of Watts to reevaluate responsiveness. A more complete explanation is set forth in the recommended order. Paragraphs 54 through 61 are subordinate to facts found. Paragraph 62 is not necessary to the resolution of the dispute. Paragraphs 63 through 76 are subordinate to facts found. Paragraph 77 is contrary to the impression of what Secretary Watts concluded. The impression given and found as fact in the recommended order is that his principal concern with the activities of the first evaluation committee were those associated with the failure to ascertain the problems with the AGS proposal. In determining responsiveness the steps for that determination were identified in the RFP as being offeror qualification, responsibilities of the technical proposal, price responsiveness, followed by decision in a comparison of those offerors who had met those first three requirements. In that sense as described in the recommended order declarations regarding Cubic's responsiveness were not dependent on the impression of AGS and the declaration of non- responsiveness of AGS was not dependent on the treatment of Cubic. To the extent that Cubic by the report of those suggested facts is trying to describe some perceived unfairness in the treatment that Cubic received by either evaluation committee or anything that was done in the process in the review of Cubic's proposal, it is rejected as an inferential fact. Paragraph 78 is rejected for reasons as stated above. Paragraph 79 is subordinate to facts found. Paragraph 80 is not necessary to the resolution of the dispute. Paragraphs 81 and 82 are subordinate to facts found. Paragraph 83 is not necessary to the resolution of the dispute. Paragraph 84 is subordinate to facts found with the exception of the statement by Secretary Watts with the ability to reject a contract award once it had been made. That circumstance does not exist here and is not reported factually. Paragraph 85 is not necessary to the resolution of the dispute. Paragraphs 86 and 87 are subordinate to facts found. Paragraph 88 is rejected to the extent that it suggests that Secretary Watts could not defend the award to PRC. More properly stated he chose not to defend an award to PRC. Paragraphs 89 through 92 are subordinate to facts found. Paragraph 93 is rejected for reasons described in discussion of Paragraph 77. Paragraphs 94 through 97 are subordinate to facts found. Paragraph 98 is envisioned by the overall facts found in the recommended order. While the facts suggested in Paragraph 99 are acknowledged, they are not found to be necessary factual findings for the recommended order. Paragraphs 100 and 101 are subordinate to facts found. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Deborah A. Getzoff, Esquire Hala Ayoub, Esquire Richard C. Bellak, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 101 North Monroe Street Tallahassee, FL 32301 Paul J. Martin, Esquire Susan P. Stephens, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Frank A. Shepherd, Esquire Gary M. Pappas, Esquire Popham, Haik, Schnobrich and Kaufman, Ltd. 4100 One CenTrust Financial Center 100 Southeast Second Street Miami, FL 33131
The Issue The issue in this case is whether Respondent should award a contract to Intervenor to provide physical and occupational therapy services to approximately 1,300 exceptional education students who qualify for such services in 77 public schools in Brevard County, Florida.
Findings Of Fact Intervenor is the incumbent contractor for physical and occupational therapy services provided to Respondent. Intervenor has provided such services to Respondent for approximately six years. On February 24, 1999, Respondent issued its request for proposals ("RFP") for occupational and physical therapy services. The RFP consists of eight unnumbered pages. Ten companies responded to the RFP. However, only the proposals of Petitioner and Intervenor are at issue in this proceeding. A four-member evaluation committee ranked each proposal on the basis of six categories. The six categories were: experience; qualification; recruiting ability; location of office; and responsiveness. The evaluation committee also considered the hourly rate and mileage to be charged by each proposer. The evaluation committee met as a body. Each member of the committee then returned to his or her respective office to complete a scoring sheet. The scoring sheet listed each proposer's name in a column down the left side of the sheet and the six categories for evaluation from left to right across the top of the sheet. A column down the right side of each sheet listed the hourly rate to be charged by the proposer identified in the column down the left side of the sheet. The RFP does not prescribe a scoring formula to be used in completing the scoring sheets. In relevant part, the RFP merely states: . . . The Selection Committee shall rank the firms in order of preference and will submit its recommendation to the Superintendent for his consideration. The [Board] will bear responsibility for the selection of the Contractor and will decide which bid [sic] is most appropriate for Brevard schools and their students. The Superintendent will recommend a therapy service provider which will be presented to the . . . Board for approval at a regular or special Board meeting. RFP at unnumbered page 8. All four members of the evaluation committee ranked Intervenor's proposal first and Petitioner's proposal second. However, the hourly rate in Petitioner's proposal was the lowest of all proposers, at $34.75, and $4.25 less than the $39 hourly rate quoted in the proposal submitted by Intervenor. The proposal submitted by Intervenor charged mileage in addition to the hourly rate while the hourly rate quoted by Petitioner included mileage. Before May 11, 1999, when the Board selected Intervenor as the proposer, the evaluation committee met. The committee asked Respondent's buyer assigned to the contract if the committee was required to recommend the proposal with the lowest price. The buyer advised the committee that the contract was for professional services and did not require the committee to recommend the lowest-priced proposal. The committee determined that Ms. Eva Lewis, one of its members and the Director of Program Support for Exceptional Student Education in Brevard County, should telephone Intervenor and ask if Intervenor would match Petitioner's price. Ms. Lewis telephoned Mr. Rick McCrary, the manager for Intervenor, and asked if Intervenor would accept the contract price of $34.75. After consultation with his superiors, Mr. McCrary agreed to the straight-rate price of $34.75. On May 11, 1999, Ms. Lewis presented the recommendation of the evaluation committee to the Board. The Board asked Ms. Lewis if Intervenor's price was the lowest price. Ms. Lewis disclosed that the evaluation committee preferred the proposal submitted by Intervenor, asked Intervenor to lower its price to meet that of Petitioner, and that Intervenor agreed to do so. The Board voted unanimously to select Intervenor as the proposer to be awarded the contract. The parties directed most of their efforts in this proceeding to the issues of whether competitive bidding requirements apply to the proposed agency action and whether the scoring formula used to rank the proposers complied with those requirements. Petitioner asserts that the selection of Intervenor by the Board violates the competitive bidding provisions in Section 120.57(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated). Intervenor and Respondent contend that Section 120.57(1), rather than Section 120.57(3), controls the Board's selection of Intervenor for the contract. Although the document used by Respondent to obtain proposals from vendors describes itself as an RFP and describes the responses as either proposals or bids, Respondent and Intervenor suggest that the document is not an RFP but merely a "solicitation." Respondent and Intervenor further argue: . . . that the . . . Board . . . did not attempt to comply with the requirements for competitive procurement under Section 120.57(3) or Chapter 287. . . . And . . . that the . . . Board was never required to comply with those statutes. . . . these are contracts for professional, educational and health services, contracts uniquely and specifically exempted from [the] competitive bid procurement process. Transcript ("TR") at 40. It is not necessary to reach the issue of whether Section 120.57(1) or the competitive procurement provisions in Section 120.57(3) and Chapter 287 control Respondent's selection of Intervenor as the proposer to be awarded the contract. In either event, the proposed agency action is contrary to the specifications in the RFP. Assuming arguendo that Section 120.57(3) and Chapter 287 do not apply to the contract at issue in this proceeding, Respondent failed to comply with RFP specifications. As Intervenor and Respondent point out in their joint PRO, Section F.8. of the RFP states: The . . . Board . . . and the selected proposer will negotiate a contract as to terms and conditions for submission to the . . . Board for consideration and approval. In the event an agreement cannot be reached with the selected proposer in a timely manner, then the . . . Board reserves the right to select an alternative proposer. (emphasis supplied) Intervenor and Respondent are also correct that the phrase "negotiate a contract as to terms and conditions" includes terms and conditions such as the contract price. Contrary to the provisions of Section F.8., the Board did not first select a proposer at its meeting on May 11, 1999, and then negotiate a contract price with the selected proposer. Rather, the evaluation committee negotiated a contract price with Intervenor before May 11, 1999, and the Board then selected Intervenor as the successful proposer. The evaluation committee is not the Board and does not have authority to act on behalf of the Board. As the RFP states, the evaluation committee has authority only to: . . . rank the firms in order of preference and . . . submit its recommendation to the Superintendent for his consideration. The [Board] will bear responsibility for the selection of the Contractor and will decide which bid [sic] is most appropriate for Brevard schools and their students. The Superintendent will recommend a therapy service provider which will be presented to the . . . Board for approval at a regular or special Board meeting. RFP at unnumbered page 8. The last sentence in Section F.8. makes clear that the right to select a proposer is the sole province of the Board and not the evaluation committee. Even if one were to ignore the legal distinctions between the evaluation committee and the Board and the authority of each, the RFP specifications fail to provide adequate notice to potential proposers of the true purpose for the RFP. As Respondent and Intervenor state in their joint PRO: . . . the . . . Board used the proposals it received to test the market for physical and occupational therapy services in Brevard County. The . . . Board then used the information it developed from the proposals as negotiating leverage to obtain a price concession from its incumbent contractor. The . . . Board's negotiation tactics permitted it to secure the superior vendor at the price of an inferior vendor. PRO at 33. The RFP fails to disclose that Respondent intended to use potential proposers to obtain negotiating leverage with the incumbent contractor. The failure of the RFP to disclose its purpose violates fundamental principles of due process, adequate notice, and fairness to potential proposers. It creates a gap between what agency staff knew of the Respondent's intent for the RFP and what potential proposers could know from reading the specifications in the RFP. The failure of the RFP to disclose its true purpose suggests that its authors recognized the chilling effect such a disclosure would have had on the response of potential proposers. The lack of responses from potential proposers, in turn, would have frustrated Respondent's intent to "secure the superior vendor at the price of an inferior vendor." Assuming arguendo that Section 120.57(3) controls the contract award at issue in this proceeding, Respondent's proposed agency action violates relevant provisions in Section 120.57(3)(f). In relevant part, Section 120.57(3)(f) provides: In a competitive procurement contest, other than a rejection of all bids, the Administrative Law Judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules, or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, or arbitrary, or capricious. . . . (emphasis supplied) As previously found, the proposed award of the contract to Intervenor is contrary to the RFP specifications, including specifications for the evaluation and selection process described in paragraphs 7 and 17, supra. The proposed agency action is clearly erroneous within the meaning of Section 120.57(3)(f). It violates fundamental notions of due process, adequate notice, and a level playing field for all proposers. All of the proposers who were induced by the terms of the RFP to expend the time, energy, and expense required to prepare and submit proposals were entitled to rely in good faith on the specifications in the RFP and to require Respondent to adhere to its own specifications. The proposed agency action is also contrary to competition within the meaning of Section 120.57(3)(f). The economic incentive to respond to an RFP would likely diminish over time if the proposed agency action were to persist. Potential proposers would eventually recognize the RFP process as a device intended to reduce the contract price of the incumbent provider rather than as a bona fide business opportunity for potential proposers to gain new market share. Such an economic environment would not likely induce potential proposers to incur the time and expense necessary to prepare and submit proposals. The pool of potential proposers would shrink, and Respondent would lose negotiating leverage with the incumbent vendor. The likely result would be an erosion of negotiating leverage and an accretion in costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that the selection of Intervenor for the contract award is contrary to the RFP specifications and contrary to competition. DONE AND ENTERED this 3rd day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 3rd day of September, 1999. COPIES FURNISHED: Dr. David Sawyer, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Harold Bistline, Esquire Stromire, Bistline, Miniclier, Miniclier and Griffith 1970 Michigan Avenue, Building E Cocoa, Florida 32922 Jonathan Sjostram, Esquire Steel Hector and Davis, LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 Edward J. Kinberg, Esquire Edward J. Kinberg, P.A. 2101 South Waverly Place Suite 200E Melbourne, Florida 32901
The Issue Whether the Department’s action to reject all bids submitted in response to DOT-RFP-20-5003-DAA, relating to asbestos abatement, demolition, and removal services, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Stipulated Facts (verbatim) The Department is an agency of the State of Florida tasked with procuring the services for Districtwide Asbestos Abatement and Demolition and Removal Services for Right of Way property under the Department’s supervision by law. The Department published a bid solicitation for DOT-RFP-20-5003- DAA, seeking bids to provide District Five Asbestos Abatement and Demolition and Removal Services for FDOT. The RFP included specifications, qualification requirements, instructions on what would be required of responders, a bid price proposal sheet, and the award criteria. Cross Construction and Cross Environmental submitted bids in response to the RFP. Cross Construction’s and Cross Environmental’s bids were evaluated by the Department. There is no debate, challenge, or disagreement raised in the Petitions with regard to the Technical Scores submitted by the responding firms to the RFP, only disagreement on three pay items. On June 15, 2020, the Department’s Selection Committee reviewed and discussed the information presented as to the Technical and Pricing scores of the Responding firms, asked for an additional bid item analysis, and indicated that it would reconvene at a future date for a decision. On June 22, 2020, the Selection Committee reviewed, discussed, and confirmed the recommendation presented by the results of the Technical Review Committee scorings and the Project Manager’s Bid Price analysis and selected Cross Construction and Cross Environmental as Intended Awardees. The Selection committee also found that Johnson’s Excavation and Services Inc., [Johnson] and Simpson Environmental LLC [Simpson] were deemed non-responsive due to irregular, and unbalanced pay items prices. On August 24, 2020, the Department’s Selection Committee decided to cancel the Procurement with the intent to readvertise with adjustments to the Scope and Pricing Structure and decided to reject all proposals. Additional Findings of Fact The “three pay items” referenced in paragraph six of the stipulated facts are the items that ultimately caused the Department to reject all bids in the instant dispute. The three pay items are collectively referred to as mobilization pay items. The RFP directs that bids are to contain two parts. Part I is the technical proposal, and Part II is the price proposal. Section 30.3 of the RFP provides that proposers “shall complete the Bid Price Proposal Form No. 2 and submit [the form] as part of the Price Proposal Package … [and that] [t]he Procurement Office and/or the Project Manager/TRC will review and evaluate the price proposals and prepare a summary of its price evaluation.” Five bidders submitted proposals in response to the RFP. One bidder did not advance beyond the initial review phase because its technical proposal did not meet minimum bid standards. The remaining bidders were CCS, CES, Simpson, and Johnson. Price proposals submitted by each of the remaining bidders were evaluated by the Department. Section 3 of the RFP provides a general outline of the process associated with awarding the contract. The steps are: “Pre-Proposal Conference; Public Opening (Technical Proposals); Price Proposal Opening & Intended Award Meeting; and, Selection Committee Meeting Summarizing Evaluations and Determining Anticipated Award.” The agenda for the “Price Proposal Opening & Intended Award Meeting,” as established by the RFP, provides as follows: Opening remarks of approx. 2 minutes by Department Procurement Office personnel. Public input period – To allow a reasonable amount of time for public input related to the RFP solicitation. At conclusion of public period, the Technical evaluation scores will be summarized. Announce the firms that did not achieve the minimum technical score. Announce the firms that achieved the minimum technical score and their price(s) as price proposals are opened. Calculate price scores and add to technical scores to arrive at total scores. Announce Proposer with highest Total Score as Intended Award. Announce time and date the decision will be posted on the Vendor Bid System (VBS). Adjourn. Section 30.4 b. of the RFP provides that a proposer can be awarded a maximum of 30 points for its price proposal. This section also provides that “[p]rice evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider.” On June 15, 2020, the selection review committee met publicly for the purpose of opening price proposals and announcing an intended award. Price proposals were opened, and the eligible bidders received the following price scores: CCS - 11.09; CES - 13.22; Johnson - 19.76; and Simpson - 30. In terms of total score, which combined both the technical and price scores, Simpson received a score of 113.00, which was the highest score, followed by CES (107.55), CCS (103.76), and Johnson (101.76). After opening and considering the price proposals of the respective bidders, the selection committee did not announce an intended award at the meeting on June 15, 2020, but instead requested that the project manager “do further analysis on the pay items for any potential imbalance.” The project manager, through a staff member, performed the additional analysis and determined that Johnson and Simpson submitted “irregular, unbalanced pay items” which resulted in their respective bids being deemed non- responsive and thus not eligible for award. The “irregular, unbalanced pay items” are the three mobilization pay items at issue in the instant matter, and are identified on the bid price proposal sheet as items AB200, AB201, and AB202. Simpson bid $400 for item AB200, $100 for item AB201, and $50 for item AB202. Johnson bid $250 for item AB200, $250 for item AB201, and $100 for item AB202. CCS bid $1 for item AB200, $1 for item AB201, and $1 for item AB202. CES bid $1 for item AB200, 75 cents for item AB201, and 50 cents for item AB202. The Department, in evaluating the bidders’ mobilization pay items, considered costs associated with abatement two structures, a 1,500 and 2,250 square feet structure respectively. For the 1,500-square-foot structure, CCS’ AB200 mobilization costs totaled $1,500. For the 2,250-square-foot structure, CCS’ AB201 mobilization costs totaled $2,250. For the 1,500-square-foot structure, CES’ AB200 mobilization costs totaled $1,500. For the 2,250-square-foot structure, CES’ AB201 mobilization costs totaled $1,687.50. For the 1,500-square-foot structure, Johnson’s AB200 mobilization costs totaled $375,000. For the 2,250-square-foot structure, Johnson’s AB201 mobilization costs totaled $562,500. For the 1,500-square-foot structure, Simpson’s AB200 mobilization costs totaled $600,000. For the 2,250-square-foot structure, Simpson’s AB201 mobilization costs totaled $225,000. On June 22, 2020, the selection committee reconvened and announced CCS and CES as intended awardees of the contract. The Department also announced at this meeting that Johnson and Simpson were “deemed non- responsive due to irregular, unbalanced pay item prices.” On June 24, 2020, Simpson filed a Notice of Protest wherein the company informed the Department of its intent to formally protest the intended award of contracts to CCS and CES. On or about July 6, 2020, Simpson filed with the Department its “formal written petition of protest.” Although Simpson’s formal protest is dated July 6, 2020, CCS and CES contend that Simpson’s protest was actually filed on July 7, 2020, thereby making the protest untimely by a day. The Department did not refer Simpson’s formal protest to DOAH for final hearing, but instead considered the issues presented by Simpson in its protest and then attempted to negotiate a resolution with Simpson, CCS, and CES. Those efforts were unsuccessful. The question of the timeliness of the formal bid protest filed by Simpson is not before the undersigned. Nevertheless, the undisputed facts as to Simpson’s protest, as demonstrated by the record herein, are as follows. On June 24, 2020, Simpson filed notice of its intent to protest the RFP. On June 29, 2020, CCS received notice that a bid protest was filed with respect to the RFP. On July 1, 2020, CES filed a public records request “for public records related to the bid protest made to the” RFP. On or about July 6, 2020, Simpson filed its formal written protest with respect to the RFP, and although the evidence is not clear as to the date, it is undisputed that the Department received affidavits from Simpson explaining the factual circumstances surrounding the filing of the company’s formal written protest. On July 15, 2020, the Department notified CCS and CES that “in response to the Formal Written Protest filed by Simpson Environmental Services, the Department will hold a settlement conference” on Friday, July 17, 2020. On July 21, 2020, Simpson, CES, and CCS notified the Department that they “reached an agreed upon settlement proposal.” On August 11, 2020, the Department, after considering the settlement proposal for several weeks, notified Simpson, CES, and CCS that the Department would discuss the RFP at a public meeting to be held on August 24, 2020. As previously noted, it was during the meeting on August 24, 2020, when the Department announced that all proposals received in response to RFP were rejected. CES, on or about July 1, 2020, submitted to the Department a public records request wherein the company sought a copy of documents related to Simpson’s protest. In response to the request, the Department provided CES a copy of the formal written protest filed by Simpson. It is undisputed that the initial copy provided to CES by the Department did not show either the date or time of receipt of the document filed by Simpson. At some point after the settlement conference, the Department provided to CES a date and time stamped copy of Simpson’s formal written protest. There was no evidence presented explaining the circumstances or the process which resulted in the Department providing different copies of Simpson’s formal written protest to CES, and the remaining evidence does not provide a sufficient foundation to reasonably infer that the Department acted with nefarious motives when providing different versions of the documents to CES. Simpson’s formal protest contains the following statement with respect to the price proposal that the company submitted in response to the RFP: Petitioner’s individual bid price items were based in fact, were reasonable and were in conformity with standard industry rates for similar asbestos abatement and demolition and removal projects. Petitioner’s bid price items were also patently similar to bid price items that Petitioner has previously submitted in response to past FDOT proposal requests that ultimately resulted in the corresponding contracts having been awarded to Petitioner. Indeed, Petitioner has a longstanding relationship with the FDOT as Petitioner has previously contracted with FDOT as a vendor performing asbestos abatement services on numerous projects over the course of the past eight years. Petitioner’s price items for bid proposals have remained consistent for each of its past projects with FDOT. Petitioner’s price items for the instant bid proposal did not differ or vary in any material aspect from those proposed by Petitioner for previous projects that FDOT has deemed reasonable. Michelle Sloan works for the Department as a district procurement manager, and was assigned to manage the instant RFP. Ms. Sloan testified that because Simpson protested the Department’s intended decision to award the contracts to CCS and CES, and specifically referenced in its protest “that their bid for mobilization was in conformance with industry standards, as well as previous bids submitted to the agency that were deemed responsive,” she conducted additional review of the Simpson and Johnson bids. Ms. Sloan testified that after reviewing the RFP, the price sheets related thereto, Simpson’s protest, and the additional analysis of the pay items conducted following the June 15, 2020, selection committee meeting, she concluded that material ambiguities existed in the RFP’s mobilization pay items and recommended to the district secretary that the Department “reject all [bids] and re-advertise with a revised pricing sheet and instructions.” On August 24, 2020, the selection committee, following public notice, accepted Ms. Sloan’s recommendation, rejected all proposals, and canceled the procurement with the “intent to re-advertise with adjustments to the Scope and Pricing structure.” A review of the credible evidence demonstrates a rational basis for the conclusions reached by Ms. Sloan and members of the selection committee. Exhibit C of the RFP is titled “Price Proposal/Detailed and Contractual Price Sheet.” The first page of this document provides a general description of the asbestos removal and abatement pay items. The general pay items are as follows: AB100 Fees [as] determined from the Department of Environmental Protection based upon regulated material. AB200 One-time fee necessary to mobilize for full isolation, per parcel, when abatement with isolation is required. AB300 Fees to be charged by square feet for preparation [of] structure before abatement can commence. AB400 Fees to be charged by square feet, to abate asbestos from various surfacing material such as ceiling, walls, beams, plaster, sheetrock and fireproofing using conventional containment methods. AB500 Fees to be charged either by square foot, linear foot or fittings to abate asbestos from various mechanical systems such as boilers, stacks ducts, fittings, pipes, flutes and flanges. AB600 Fees to be charged either by square foot, linear foot or fittings to abate asbestos from various mechanical systems such as boilers, stacks, ducts, pipe, fittings and jackets which involve the use of a Glove bag. AB700 Fees to be charged by square foot, to abate asbestos from various roofing materials such as cement roof shingles, flashing, rolled roof, felts, wood shingles and mobile home coating. AB800 Fees to be charged by square foot or piece to abate asbestos from various materials such as floor tile, mastic adhesive, sheet vinyl, carpet, wood sub- floor, concrete sub-floor, vibrator dampers, wallboard, metal ductwork and sinks with insulation and heat shields (light fixture). AB900 Fees to be charge[d] by landfill for asbestos disposal. The bid price proposal sheet, which is form number 2 of the RFP, provides a listing of specific pay items related to the general “AB ---” items listed in Exhibit C to the RFP. Below is an example of some of the specific pay items listed on the bid price proposal sheet: [See table on next page] Item Number Description (A) Estimat ed Quantit y Unit (B) Unit Pric e Total Bid Amount (A x B) ASBESTOS REMOVAL ABATEMENT AB200 Mobilization for structures less than 2,000 Sq. FT. 1 SQ. FT. AB201 Mobilization for structures [from] 2001 – 5000 Sq. FT. 1 SQ. FT. AB202 Mobilization for structures over 5001 Sq. FT. 1 SQ. FT. AB300 Mask and Seal 1 SQ. FT. AB401 Remove ACM plaster/lathe including all surface materials 1 SQ. FT. AB501 Remove insulation from fittings 1 LF. AB603 Remove insulation from boilers, stacks or ducts piping 1 LF. AB703 Remove roofing cement 1 SQ. FT. AB810 Remove carpet and mastic adhesive 1 SQ. FT. AB820 Remove sinks with insulation 1 SQ. FT. AB901 Non-Friable 1 SQ. FT. General pay item category AB200, as described on Exhibit C, does not reference a “unit of measurement,” but instead notes that items within this category are to be determined on a “one-time – per parcel” basis. When the AB200 general pay item category is compared to the specific pay items for this category enumerated on the bid price proposal sheet (i.e., AB200, AB201, and AB202), it is evident that the unit of measurement “square feet” is listed as the basis for calculating the bid amount for this item when no such unit of measurement is stated for this item on Exhibit C. Comparatively, general pay item categories AB300 through AB800 each expressly references a specific unit of measurement (i.e., square foot, linear foot, or by the “piece”), and these units of measurement carry over to and are consistently reflected on the bid price proposal sheet for the specific pay items enumerated therein. By inserting a unit of measurement (i.e., square feet) in the mobilization pay items listed on the bid price proposal sheet, when the general description on Exhibit C instructs that they are “one-time, per parcel” pay items, the Department created a material ambiguity in the bidding process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby Recommended that the Department of Transportation issue a final order in Case Nos. 20-4214 and 20-4216 finding that the rejection of all proposals in response to Request for Proposal RFP-DOT-20-5003-DAA was not illegal, arbitrary, dishonest, or fraudulent, and dismissing the two petitions. DONE AND ENTERED this 14th day of December, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 14th day of December, 2020. COPIES FURNISHED: Douglas Dell Dolan, Esquire Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 (eServed) Richard E. Shine, Esquire Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 (eServed) Brian A. Leung, Esquire Holcomb & Leung, P.A. 3203 West Cypress Street Tampa, Florida 33607 (eServed) Diane E. H. Watson, Esquire Cross Environmental Services, Inc. Post Office Box 1299 Crystal Springs, Florida 33524-1299 (eServed) Kevin J. Tibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 (eServed) Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed)
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent should award a contract in accordance with an invitation to bid to the Petitioner, to some other bidder, or reject all bids and reissue an invitation. Petitioner contends that it was the low bidder in response to the invitation; that its bid was responsive; and to the extent that it was not responsive, any defects were of a minor sort which should be waived. Petitioner contends that the Respondent has previously waived irregularities such as existed in the Petitioner's bid and should therefore waive them in this case. The Respondent contends that the Petitioner's bid was not responsive, that the irregularities in Petitioner's bid are not minor, that any mistakes the Respondent has made in past acquisitions should not be repeated, and that the contract should be awarded to another company.
Findings Of Fact The Respondent issued an invitation to bid for a project known as the "Animal Science/Dairy Science Building" at the University of Florida. The project was given No. BR-108 by the Respondent. Petitioner was the lowest bidder in response to the invitation. The next lowest bidder, Charles R. Perry Construction Company, submitted a bid approximately $37,000 higher than Petitioner's bid. Perry has not filed any formal protest nor intervened in this proceeding. Petitioner is a responsible contractor and has in the past entered into construction contracts with the Respondent. Petitioner's bid was rejected by the Respondent. The Petitioner protested the rejection of its bid in a timely manner. Paragraph "B-15" of the bid specifications provides in pertinent part, as follows: In order that the Owner may be assured that only qualified and competent sub- contractors will be employed on the project, each Bidder shall submit with his Proposal a list of the subcontractors who would perform the work for each Divi- sion of the Specifications as indicated by the "List of Subcontractors" form contained in these Specifications... only one subcontractor shall be listed for each phase of the work. * * * 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 "B" of the invitation for bid provided space for the bidder to list the name and address of subcontractors for the roofing, masonry, plumbing, mechanical, electrical, meat processing equipment, and controls and instrumentation phases of the project. In Section "B" of its bid, Petitioner listed two subcontractors for the plumbing, mechanical, and controls and instrumentation phases of the project. Listing two subcontractors does not comport with the bid specification requiring that only one subcontractor be listed for each phase. Petitioner listed two subcontractors because one of the subcontractors submitted a proposal to Petitioner only fifteen minutes prior to the time when the bid had to be submitted, and Petitioner was unsure of whether the last-minute proposal included all of the work that the Petitioner anticipated would be required. In addition, Petitioner felt that one of the subcontractors may not have been acceptable to the Respondent. The requirement that bidders list only one subcontractor for each phase of a project helps to discourage "bid shopping." Bid shopping is a practice whereby a contractor who receives a bid from a subcontractor approaches another subcontractor with that bid and encourages the other subcontractor to reduce its price. If the other subcontractor responds, this reduced price can be taken back to the original subcontractor. The original subcontractor is then confronted with the choices of either lowering its bid or losing the project. Bid shopping that occurs after a bid has been accepted by the owner does not benefit the owner. It benefits only the bidder, who is able to reduce its costs and therefore increase its profit. Requiring that one subcontractor be listed for each phase cannot serve to completely eliminate bid shopping. A contractor could still bid shop by listing itself as the subcontractor, then after winning the contract shop between several subcontractors. A contractor could also bid shop by changing subcontractors after the bid award. In either case, however, the contractor would need to secure the approval of the owner. The practice is thus discouraged. If a bidder lists two subcontractors for a phase of the project, that bidder would have an advantage over those who listed only one subcontractor. Listing two subcontractors enables the bidder to make a choice as to the best subcontract bid at a time later than the choice is made by bidders who list only one subcontractor. In addition, listing two subcontractors makes it easier for the bidder to engage in bid shopping, which would be more difficult for bidders who listed only one subcontractor. Paragraph "B-24" of the bid specifications for this project provides in pertinent part: The Contract will be awarded . . . to the lowest qualified bidder pro- vided his bid is reasonable and it is in the best interest of the Owner to accept it. * * * The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The listing of two subcontractors for phases of the project is not a mere informality in the bid. It is directly contrary to Paragraph "B-15" of the bid specifications. It would not be in the interest of the owner to accept a bid in which two subcontractors are listed for phases of the project. The integrity of the acquisition process would be damaged by allowing such a deviation because a bidder who listed two subcontractors would have gained an advantage over bidders who complied with the bid specifications. It is not in the best interest of the Respondent to waive the defect in the Petitioner's bid. On at least two prior occasions, the Respondent awarded contracts to bidders who listed more than one subcontractor per phase of the work. One of these projects was for a gymnasium at Florida Atlantic University (Project No. BR-603). Another was for a window replacement project at Florida State University (Project No. BR-342). In at least three other projects, the Respondent awarded contracts where the bidder failed to list the name of any subcontractor for one or more phases of the work. These were for the cancer center at the University of South Florida (Project No. BR-569), the student housing facility at the University of South Florida (Project No. BR-576), and an expansion project at Florida A & M University (Project No. BR-343). The bid specifications for all of these projects were not offered into evidence; however, the Respondent had utilized the same specifications as required in this project at all pertinent times. Failing to list any subcontractor for a phase of a project constitutes approximately the same defect in a bid response as listing two subcontractors. It provides even greater opportunities for bid shopping and an advantage to the bidder over those who list subcontractors as required by the specifications. In several other projects, it appears that the Respondent has awarded contracts to bidders whose bids contained defects of the same magnitude, but a different sort than the listing of two subcontractors. It does not appear that the Respondent has awarded contracts where bidders have listed more than one subcontractor, no subcontractor, or otherwise violated bid specifications because of any policy or because of any expressed waiver of the defect. Rather, it appears that the Respondent has not adequately policed bids to determine responsiveness to the bid specifications. This is especially true with respect to the listing of subcontractors. It appears that no one on the Respondent's staff took the responsibility to consider whether one subcontractor was listed for each phase of a project as required in the specifications. The only policy that the Respondent established was a policy of being too lax in examining bids. The Petitioner did not list two subcontractors for various phases of this project because of any reliance on past conduct of the Respondent. Petitioner's agent overlooked the bid requirements in Preparing its bid response. In prior bids submitted by the Petitioner in response to bid invitations issued by Respondent, Petitioner listed only one subcontractor, as required. Generally, unless it is otherwise required, Petitioner prefers to list two subcontractors because of the flexibility it provides to the owner and to Petitioner. Petitioner was not aware that Respondent had previously awarded contracts to bidders who listed more than one subcontractor for a phase of the work when it submitted its bid in this instance.
The Issue The issue for consideration in this case is whether the Department of Corrections should issue a contract for conducting drug rehabilitative services at its facility in Brooksville, Florida to the Intervenor, Kansas City Community Center.
Findings Of Fact Dr. Barzelay, the individual responsible for the drafting of bids for the establishment of drug treatment centers, and also the person who gets them started, prepared and transmitted Petitioner's bid for the establishment and conduct of a drug treatment center for the Department at its facility in Brooksville, Florida prior to the deadline for submission of bids at 11:00 AM on January 20, 1992. It used the mandatory Price Quote Sheet from the ITB. Petitioner's bid was actually transmitted by U. S. overnight Mail, on January 18, 1992, and the package was receipted for by the Department. According to Mr. Mitchell, the Department's evaluator on this ITB, Petitioner's bid was submitted prior to the deadline and was found to be responsive. After the Petitioner's bid was placed in the mail, and after January 22, 1992, Petitioner received, also by mail, the Department's Addendum #1 to its IFB which extended the submittal deadline to January 24, 1992, and which also implemented a phase-in schedule to hire, bring on board, pay and get reimbursed for the cost of staff to man the proposed facility. The Department's transmittal of the Addendum required acknowledgment of it before January 24, 1992 on pain of being disqualified. Petitioner's copy of the Addendum #1 came addressed to Mr. Harding, a former worker at HDCP who, at the time of receipt, was a part time worker there in another office. Petitioner had previously notified the Department that Dr. Barzelay was the individual to whom mail pertaining to procurements was to be sent. However, the addendum did not reach him until the afternoon of January 22, 1992. It was logged in at HDCP on January 22, 1992. It should be noted that the Petitioner's proposal listed its Executive Director, Mr. Silikowski, as contact person, not Dr. Barzelay. The receipt of Addendum # 1 was somewhat of a shock to the Petitioner since it had already submitted it's bid. It was obvious to them that the Department had intended for the bid to be submitted on the basis of the terms of the Addendum. It appears that all other bidders received their copies of the Addendum on time. So did Petitioner, but the lateness of its arrival, Petitioner claims, put it in a disadvantageous position. Upon receipt of the Addendum, Dr. Barzelay got out the bid file and reviewed it to see if there was some way Petitioner's bid, which as submitted, was not consistent with the Addendum, could be modified so as to conform. After some 5 or 5 more hours of work on it, it seemed to him, on review, there was no way that could be done. Nonetheless, since the Addendum required acknowledgment of its receipt, Dr. Barzelay drafted a letter to the Department (Ms. Broyles) acknowledging receipt of the Addendum and requesting that the rules applying the phase-in schedule be applied to its already submitted figures. This response to Addendum 1 was submitted early, (January 22, 1992), to insure it got to the Department on time. Dr. Barzelay contends that his action was based on his prior experience where a response to another agency in a procurement situation was declared late even though received at the agency on time because, due to internal distribution delays, it did not get to the procurement officials on time. Notwithstanding the original submittal by Petitioner was for a full first year as well as full second and third years, staff there should have been aware of a phase in requirement for the Brooksville facility as well as the Gainesville site. The last sentence on Page 6 of the IFB reflects that a phase- in for the Brooksville facility would be determined at a later date. Therefore, Petitioner should have known that as to year 1 at least, the figures would not be for a full year at full strength. Mr. Barzelay's assertion that the bid implied the bid should be submitted for a full year to be prorated later has some validity, but the fact remains that the Addendum put out prior to the response date established the requirement to submit the bid on a pro-rata, phased-in basis. If there was any question as to what procedure to follow, Dr. Barzelay might have requested clarification from the Department but none was solicited. He claims the ITB dictated no contact with the Department by any prospective bidder after January 10, 1992. He relied on his experience and his reading of the bid solicitation to Petitioner's detriment. In the original ITB, all personnel and administrative cost figures were to be calculated on a full time employee, (FTE), basis. The ITB provided for the submittal to be prorated from the date of the contract and the Petitioner suggested this be done based on the Department's applying the phase-in schedule to the information already submitted by the Petitioner. The letter was sent to the Department by FEDEX overnight delivery so as to arrive at the Department before the bids were to be opened. There is no evidence that the Department did not receive this letter. The Department did not, thereafter, declare the Petitioner's bid unresponsive nor did anyone from the Department contact Dr. Barzelay about it. In early March, 1992, the Petitioner received the Department's Letter of Intent to award the contract in issue to KCCC. From looking at a copy of the bid tally sheet received from the Florida Alcohol and Drug Abuse Association, it was obvious to Petitioner's personnel that the Department had not applied the proration to Petitioner costs as had been requested. Therefore, Petitioner's cost figures were higher than they should have been at $1,491,778.00, whereas KCCC's bid was figured at $1,272,398.00. The Petitioner's figure would have been $1,200,151.00 if properly prorated. Utilizing those prorated figures, Dr. Barzelay then evaluated the points for bid amount based on the Department's award system but modified the formula somewhat. Under that system, the low bidder was to get 50 cost points. On the original Department tally sheet, KCCC, the apparent low bidder, received 50 cost points, and Petitioner got 41.38 points. If, however, Petitioner's bid were actually the $1,200,151.000 figure, it would have been the low bidder and been entitled to the full 50 points for price, with KCCC getting a somewhat lower number. Petitioner got 39.40 other points for a total of 80.78 total points. KCCC got 40.20 other points for a total of 90.20 total points. Evaluating the entire process on the basis of Petitioner's proposed change to give it the 50 cost points and KCCC somewhat less would result in a net change of somewhere around 10.19 points overall. Since, overall, Petitioner was only approximately 9.42 points behind KCCC, the Petitioner's suggested correction would make it the highest ranked responsive bidder by a small margin on the basis of a prorated first year and full second and third years. As it was, the Department used a full three years in evaluating Petitioner's bid because of the failure of Petitioner to timely prorate in compliance with Addendum 1. Respondent also recalculated the points using Petitioner's prices as contained in Petitioner's recalculated tally sheet, (Dr. Barzelay's figures), under the formula contained in Section 4.7.1 of the ITB and arrived at an award of 41.38 points for Petitioner, which is exactly what it was awarded originally. When Petitioner finally determined what had happened, it filed a notice of protest and requested information on other bidders from the Department. Though the requested information was provided, it was not received within the 10 day period Petitioner had in which to file its actual protest. The information received revealed that KCCC received it's copy of Addendum #1 on January 20, 1992. The actual bids received from Petitioner and the seven other bidders were opened and reviewed by Ms. Broyles, the Department's administrator for this procurement. She determined them all to be responsive as submitted and ready to be scored, a process done by Ms. Hallee Combs. Petitioner's submittal under Addendum #1 was delivered to the Department, but Ms. Broyles does not recall seeing either it or Dr. Barzelay's cover letter which accompanied it prior to the hearing. According to Ms. Broyles, the individual who put this procurement package together for the Department, the Addendum in issue here was probably sent out to all bidders on or about January 15, 1992. The original bid was sent out on January 3, 1992 and indicated that the first year of the contract would end on September 30, 1992. The bids were actually opened at the Department at 9:00 AM on January 24, 1992. Neither Petitioner's figures nor those of any other bidder were changed by the Department. Prior to the opening date, presumably in accordance with the terms of Addendum #1, several other bidders submitted updated cost figures. KCCC, for example, had already submitted its original bid when it received the addendum on January 20, 1992. After receipt, it took only 2 to 3 hours to prepare the information sought for the amendment and it was sent out the same days as received. Other bidders did not make any change, however, choosing instead to rely on the prices previously submitted. Petitioner received it's copy of the Addendum on January 22, 1992. By Dr. Barzelay's admission, it could have made the requested changes and dispatched its response by alternate transmission methods, i.e., FEDEX Overnight, UPS Overnight, US Overnight Mail, had it chosen to do so, but a decision was made to follow the course it took. Ms. Broyles also points out that at no time did Petitioner complain it did not have adequate time to respond to Addendum #1. In any case, Petitioner's proposal to have the Department prorate its previously submitted figures would not and could not have been honored. It is the Department's policy not ever to change prices submitted on a bid at a bidders request. To do so would impact the integrity of the bid process. Bids can be changed by the bidder itself, but then only prior to bid opening. Petitioner could have done that here. Ms. Broyles also asserts that considering the Petitioner's original bid, the addendum, and Petitioner's response thereto, it would not have been possible for the Department to recompute Petitioner's price quotation with any certainty. This is not so. Petitioner's prices initially quoted were for a full year. The Department put out its implementation schedule which it could have applied to Petitioner's prices. However, there were possible variables, such as start-up costs, and the like which would make it not a good idea to do so. Any mistakes in doing so would be laid at the feet of the agency. Also, there is no requirement for an agency to recompute a bidder's figures, and the strict and long standing agency policy not to do so is ample justification for it's not doing so. The prices submitted in the various bidders' last submittal, either the original bid or the amendment, were tabulated by the Department and the decision was made to award to KCCC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Corrections enter a Final Order in this case dismissing the protest of Human Development Center of Pasco, Inc., in regard to the proposed award of contract in procurement number 91-INST-5448, concerning the implementation and operation of the Brooksville Drug Treatment Center. RECOMMENDED this 10th day of June, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted. - 7. Accepted and incorporated herein. Accepted and incorporated herein but as to year one only. & 10. Accepted and incorporated herein. Accepted. - 18. Accepted but not material to the issues herein. Accepted and incorporated herein except for the use of the work "entirely", substituting therefore the word "partially." Rejected as speculation and argument. & 22. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. Last sentence rejected as a Conclusion of Law. Rejected as not supported by evidence of record. Accepted and incorporated herein. Redundant. A restatement of prior Findings of Fact. Rejected as not supported by evidence of record. Not a Finding of Fact but a commend on the evidence. Not a Finding of Fact but a restatement of testimony. Rejected. Petitioner mad no effort to comply - only objected and asked Respondent to accomplish the task. & 33. Rejected as argument and not a Finding of Fact. Accepted as a restatement of the process involved which Petitioner could have accomplished itself. Not a Finding of Fact but a statement of Petitioner's position. Accepted. Rejected. Rejected. Accepted. Accepted but not material to the issues. & 42. Restatement of testimony and a rgument. 43. & 44. Not a proper Finding of Fact. Not a Finding of Fact. & 47. Accepted but not dispositive of any issue. Last sentence rejected. Rejected as a restatement of and argument on the evidence. & 50. Not relevant to issues at hand. Redundant. Not a Finding of Fact. - 58. Not Findings of Fact but argument. Rejected as not supported by the evidence. & 61. Rejected. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. 5. & 6. Accepted and incorporated herein. 7. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein. 24. & 25. Accepted and incorporated herein. Accepted. - 30. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. - 34. Accepted and incorporated herein. 35. - 37. Accepted and incorporated herein. 38. & 39. Not Findings of Fact but Conclusions of Law. 40. - 42. Accepted and incorporated herein. 43. - 46. Accepted and incorporated herein. 47. - 49. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but not relevent to any issue. Accepted and incorporated herein. Accepted. & 55. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but speculation. Accepted. - 63. Accepted and incorporated herein. 64. - 67. Accepted but not proper Findings of Fact. Accepted and incorporated herein. Accepted except for the characterization in the last four words. & 71. Accepted and incorporated herein. 72. - 75. Accepted and incorporated herein. Speculation and a comment on a party position. - 80. Accepted and incorporated herein. Not a proper Finding of Fact. Accepted. & 84. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 92. Accepted and incorporated herein. 93. - 99. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Speculation. - 106. Accepted. 107. & 108. Accepted and incorporated herein. 109. - 114. Accepted. 115. - 118. Accepted and incorporated herein. 119. & 120. Not Findings of Fact but Conclusions of Law. 121. - 123. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on evidence. & 127. Accepted and incorporated herein. 128. - 131. Accepted and incorporated herein. 132. - 135. Not Findings of Fact but comments on evidence. 136. & 137. Argument, not Findings of Fact. 138. & 139. Accepted. 140. Not a Finding of Fact but a comment on evidence. FOR THE INTERVENOR: Accepted and incorporated herein. & 6. Accepted. 7. & 8. Accepted and incorporated herein. 9. - 11. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a procedural matter. Accepted and incorporated herein. & 16. Accepted. 17. - 19. Accepted and incorporated herein. Not a Finding of Fact but a comment on evidence. Accepted and incorporated herein. - 27. Accepted. 28. - 35. Accepted and incorporated herein. 36. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. & 45. Accepted. 46. - 48. Accepted and incorporated herein. Accepted. & 51. Accepted and incorporated herein. 52. - 54. Accepted. 55. & 56. Accepted and incorporated herein. 57. & 58. Not Findings of fact but statements of party position. 59. - 61. Accepted. 62. - 65. Accepted and incorporated herein. Not a Finding of Fact but a restatement of testimony. & 68. Accepted and incorporated herein. 69. Accepted. 70 i - xvi. Not Findings of Fact but comments of the evidence and argument. COPIES FURNISHED: Frank P. Rainer, Esquire Gerald Sternstein, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. Monroe-Park Tower, Suite 1010 101 North Monroe Street Tallahassee, Florida 32301 Steven S. Ferst, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Michael J. Cherniga, Esquire Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. P.O. Drawer 1838 Tallahassee, Florida 32302 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis Vargas General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
The Issue Whether the Palm Beach County School Board (hereinafter referred to as the "School Board") should sustain Petitioner's challenge to the preliminary determination made with respect to School Board Project No. 349661 to reject all bids submitted and to readvertise.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In March of 1993, the School Board issued an Advertisement for Bid (hereinafter referred to as the "Advertisement") through which it solicited the submission of bids on a construction project (School Board Project No. 349661, which is hereinafter referred to as the "Project") involving HVAC replacement, reroofing and other renovation work at Jupiter High School's Building No. 2. The School Board indicated in the Advertisement, among other things, that it "reserv[ed] the right to waive informalities in the Bids, or to reject all Bids." The Advertisement, along with the other bid documents issued in conjunction with the Advertisement, including, but not limited to, the Instructions to Bidders (hereinafter referred to as the "Instructions") and the Proposal Form, were compiled in a Project Manual that was made available for public inspection. Section 00100 of the Project Manual contained the Instructions, which provided, in pertinent part, as follows: Definitions Bidding Documents include the Advertisement for Bid, Notice to Prospective Bidders, Policies of the School Board, Instructions to Bidders, Contract, General Conditions, Supplementary General Conditions, Special Conditions, Bid Bond, Performance and Payment Bond, Proposal Form, and the proposed Contract Documents including all drawings, specifications and addenda issued prior to bid opening. Addenda are written or graphic instruments issued prior to the execution of the Contract which modify or interpret the Bidding Documents, including Drawings and Specifications, by additions, deletions, clarifications or corrections. Addenda will become part of the Contract Documents when the Construction Contract is executed. Bidding Procedures All Bids must be prepared using the forms contained in these specifications and submitted in accordance with the Instructions to Bidders. A Bid is invalid if it has not been deposited at the designated location prior to the time and date for receipt of Bids indicated in the Advertisement for Bid, or prior to any extension thereof issued to the Bidders. Unless otherwise provided in any supplement to these Instructions to Bidders, no Bidder shall modify, withdraw or cancel his Bid or any part thereof for sixty (60) days after the time designated for receipt of Bids in the "Advertisement for Bid." Preparation and Submission of Bid Proposal Form: Each Bidder shall use Proposal Form contained in these specifications, indicate his Bid prices thereon in proper spaces, for the entire work and for the alternates, if applicable. Any erasures or other corrections in the proposal must be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. Each proposal shall specify a price written in ink in both words and figures for each of the separate items, as called for, except when the Bid is called for on a lump sum basis. Lump sum Bids shall be shown in both words and figures; where there is a variation between the written amount and figures, the lower amount will be taken as the Bid price. Bid Modification: Bid Modification will be accepted from Bidders if addressed to the Owners, at the place where Bids are to be received, and if received prior to the opening of Bids. Modifications must be in writing and must be signed. . . . Modifications will be read by Owner or Architect prior to opening formal Bids. Withdrawal of Bids: Bids may be withdrawn on written request received from Bidders prior to the time fixed for opening. . . . Negligence on the part of the Bidder in preparing the Bid confers no right for withdrawal of the Bid after it has been opened. 4. Examination of Bidding Documents: 4.01 Each Bidder shall examine the Bidding Documents carefully and, not later than eight (8) days prior to the receipt of Bids, shall make written request to the Architect for interpretation or correction of any ambiguity, inconsistency or error therein which he may discover. Any interpretation or correction will be issued as an Addendum by the Architect. Only a written interpretation or correction by Addendum shall be binding. No Bidder shall rely upon any interpretation or correction given by any other method. . . . 6. Rejection of Bids 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is in any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to readvertise for other or further Bid Proposals. Award of Contract The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 101030-Alternates. Section 101030 of the Project Manual, which addressed the subject of "Alternates," provided, in pertinent part, as follows: 1.3 Related Work Described Elsewhere: Pertinent sections of these specifications describe materials and methods required under the various alternates. . . . The method for stating the proposed Contract Amount is described on the Proposal Form, Section 00310. Base Bid: A. Shall include all HVAC replacement, construction of the building roofing and all items shown on drawings and included in these specifications other than as specifically listed alternates. Alternate Number One: Provide an Architect/Owner on-site construction trailer of size and features stipulated below in lieu of such being provided by the Owner. Section 00310 of the Project Manual contained the Proposal Form that all bidders were required to use. It provided, in pertinent part, as follows: DATE SUBMITTED: TO: The School Board of Palm Beach County, Florida 3326 Forest Hill Boulevard West Palm Beach Florida 33406 PROPOSAL FOR: JUPITER HIGH SCHOOL BUILDING NO.2- HVAC REPLACEMENT/REFOOF/RENOVATIONS 500 NORTH MILITARY TRAIL JUPITER, FLORIDA 33458 PROJECT NO. 349661 Having become familiar with conditions at the Project Site and having carefully examined the Bidding Documents, including the Advertisement, Instructions to Bidders, and the Contract Documents, including but not limited to the General Conditions, Supplementary Conditions, Specifications, Details, Schedules, Addenda and Drawings, the Undersigned proposes to furnish all materials, labor equipment and anything else required for the entire Project in accordance with the Documents for the following sum: BASE BID: STATE PRICE IN WORDS AND FIGURES: ($ ) (PRICE IN WORDS) (FIGURES) ALL ALTERNATES MUST BE BID FOR BID TO BE RESPONSIVE. State price in words and figures. ADDITIVE ALTERNATE NO. 1: (Owner/Architect On-Site Construction Trailer) ($ ) (PRICE IN WORDS) (FIGURES) * * * If he is notified of the acceptance of this Bid within sixty (60) days of the time set for the opening of Bids, the Undersigned agrees to execute a Contract for the above Work within eight (8) Owner business days after notice that his Bid has been accepted for the above stated compensation minus or plus any accepted Alternates in the form of a contract presented by the Owner. . . . On March 30, 1993, the School Board issued Addendum No. 1, which added a fire protection system to the Project's scope of work and provided as follows: RE: Jupiter Community High School Building No. 2 HVAC Replacement, Reroof, Renovations The School Board of Palm Beach County, Florida School Project No. 349661 OEF Project No. 50-005625 P&L Project No. 92-061 To all bidders on the above project: Please note contents hereon and insert into the bidding documents that were issued to you on the above entitled project. The following supersede and supplant corresponding items in the specifications, drawings and details. It will be required that each Contractor- Builder/Developer, upon submitting his proposal for this project, indicate on the proposal form in the space provided that all addenda are included in his proposal. Failure to do so may cause rejection of a company's bid or proposal. The School Board of Palm Beach County, Peacock & Lewis Architects and Planners, Inc. and their consultants assume no liability or responsibility for the information on printed materials for this project that were not distributed from the office of Peacock & Lewis Architects and Planners, Inc. GENERAL: AD1-1: FIRE PROTECTION SYSTEM Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. Paragraph 1.2 A.6 of Section 15500, which was attached to Addendum No. 1, provided as follows: Contractor shall identify the cost associated with this scope of work on the proposal form as an itemized price which shall be included within the total bid price. Refer to proposal form. On April 5, 1993, the School Board issued Addendum No. 2, which revised the Proposal Form to reflect the additional pricing requirements imposed by Addendum No. 1. Addendum No. 2 added to the Proposal Form, immediately under the space provided for "Additive Alternative No. 1," the following: UNIT PRICE NO. 1: (Fire Protection System) Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. ($ ) (PRICE IN WORDS) (FIGURES) No other changes material to the instant case were made to the Proposal Form or to any of the other bid documents. It was the intention of those who were responsible for the preparation and issuance of Addenda Nos. 1 and 2 to require bidders to include the price of the fire protection system in their "Base Bid;" 1/ however, they failed to clearly and unambiguously express their intention in these addenda or any of the other bid documents. No other bid document aside from the revised Proposal Form made any reference to a "unit price." Unit prices are typically used in the construction industry to price work added to the initial scope of work, as was the fire protection system in the instant case. In interpreting the bid documents, Joseph Pirrotta, Petitioner's chief executive officer, relied upon his many years of experience in the construction industry. Based upon his reading of these documents, he reasonably believed that the "Unit Price No. 1 (Fire Protection System)" was a separate and distinct component of the "total bid price" and that, although it was to be included in the "bid" he submitted, it was not to be a part of the "Base Bid." While the bid documents were also susceptible to a contrary construction, Pirrotta's was the more reasonable of the two interpretations. Pirrotta completed the revised Proposal Form accordingly. Petitioner was one of three bidders to submit bids in response to the Advertisement. The other two bidders were Intervenor and Janus & Hill Corporation (hereinafter referred to as "Janus"). Petitioner quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,672,000.00; "Additive Alternate No.1"- $3,400.00; and "Unit Price No. 1"- $80,000.00. As noted above, Petitioner's "Base Bid" did not include the price of the fire protection system. Intervenor quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,947,000.00; "Additive Alternate No.1"- $6,000.00; and "Unit Price No. 1"- $36,484.00. Unlike Petitioner, Intervenor included in its "Base Bid" the price of the fire protection system; however, even if it had not done so, its "total bid price" would still have been substantially higher than Petitioner's. Janus quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,970,000.00; "Additive Alternate No.1"- $2,020.00; and "Unit Price No. 1"- $90,000.00. 2/ After bid opening, the School Board's contract administrator for the Project, Albert Paglia, correctly determined that Petitioner was the lowest responsive bidder. Thereafter, he telephoned Pirrotta to congratulate him on his company's successful bid. Before his telephone conversation with Pirrotta, Paglia assumed that Petitioner's "Base Bid" included the price of the fire protection system. He learned otherwise, however, after speaking with Pirrotta, who informed him that Petitioner's "total bid price," excluding "Additive Alternate No. 1," was its "Base Bid" of $1,672,000.00, plus the $80,000.00 for the fire protection system reflected as "Unit Price No. 1" on its completed revised Proposal Form. Paglia and others with whom he was working on the Project perceived this as a problem. They therefore brought the matter to the attention of Lawrence Zabik, the School Board's assistant superintendent for support services. Zabik's initial reaction was to award the contract for the Project, including the fire protection system, to Petitioner for $1,672,00.00, Petitioner's "Base Bid." Pirrotta was unwilling to undertake the Project for that amount. By letter to Zabik dated May 5, 1993, Intervenor gave notice to the School Board of its intent to protest any award made to Petitioner. The letter provided as follows: Based on our review of the Bid Documents submitted by J.D. Pirrotta on April 20, 1992, we are notifying you of our intent to protest the award of the above referenced project to any firm other than Milne & Nicholls, Inc. We will base our protest on the non- responsiveness of J.D. Pirrotta's bid. As you are aware, Mr. Pirrotta requested an additional $80,000 to compensate him for his misinterpretation of Unit Price #1 as an additive alternate. It is now apparent that his bid is incomplete and therefore non- responsive. Please advise us of the Owner's intention with regard to the Award on this project. Zabik referred the letter to the School Board's Office of the General Counsel. By letter dated May 13, 1993, authored by one of the School Board's attorneys, the School Board announced that it intended to reject all bids and readvertise, giving the following explanation: In the instant case, since the bid is susceptible to two interpretations, one of which would be that the Fire Protection System was included in the base bid, and the other that it was not leads to an unfair economic advantage by one bidder over others. The example would be that the low bidder in the instant case is permitted to add the Fire Protection System on as an alternate when it was not intended. Given the ambiguity, the bid should be rejected and the specifications rewritten and readvertised. [Citations omitted.] In the instant case, rejection of all bids is the only reasonable solution so that all parties are given a fair playing field. The School Board has not acted arbitrarily or capriciously in arriving at this decision to readvertise, given the parties place a different interpretation on the bid proposal form. The concerns expressed in the letter that Pirrotta obtained an "unfair economic advantage" over the other bidders as a result of the "ambiguity" in the bid documents are unwarranted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner, as the lowest and best responsive bidder, the contract for School Board Project No. 349661 for $1,752,000.00, plus the price for "Additive Alternate No. 1" should the School Board choose to include this alternate within the Project's scope of work. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of July, 1993. STUART M. LERNER 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 7th day of July, 1993.
The Issue Whether in making a preliminary decision to award a contract for the subject services under Invitation to Bid No. 12-039T – Refuse Services (the ITB) Respondent School Board of Broward County, Florida (the School Board) acted contrary to a governing statute rule policy or project specification; and if so whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner Ace Waste Services, LLC (Petitioner) challenges the determination that the bids submitted by the apparent low bidder, the apparent low second low bidder, and the apparent low third low bidder were responsive and responsible bids meeting the specifications contained in the ITB.
Findings Of Fact School Board Policy 3320 entitled "Purchasing Policies" is the agency's rule governing the purchasing of goods and services. On October 7, 2011, the School Board issued the ITB which was entitled "Refuse Services." On October 18, 2011, the School Board issued Addendum No. 1 to the ITB. The refuse services were to be provided to 58 district school sites, which were collectively referred to as Group 1. The Bidder Acknowledgement found at Section 1.0 of the ITB states in pertinent part as follows: I agree to complete and unconditional acceptance of this bid all appendices and contents of any Addenda released hereto; I agree to be bound to all specifications terms and conditions contained in this ITB . . .. I agree that this bid cannot be withdrawn within 90 days from due date. Section 3 of the ITB states as follows at General Condition 3(b): MISTAKES: Bidders are expected to examine the specifications delivery schedules bid prices and extensions and all instructions pertaining to supplies and services. Failure to do so will be at Bidder's risk. Section 3 of the ITB states as follows at General Condition 35: PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person desiring to protest the conditions/specifications of this Bid/RFP or any Addenda subsequently released thereto shall file a notice of intent to protest in writing within 72 consecutive hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest with ten calendar days after the date the notice of protest was filed. Saturdays Sundays legal holidays or days during which the school district administration is closed shall be excluded in the computation of the 72 consecutive hours. If the tenth calendar day falls on a Saturday Sunday legal holiday or day during which the school district administration is closed the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday Sunday legal holiday or days during which the school district administration is closed. Section 120.57(3)(b) Florida Statutes as currently enacted or as amended from time to time states that "The formal written protest shall state with particularity the facts and law upon which the protest is based." Failure to file a notice of protest or to file a formal written protest within the time prescribed by [section 120.57(3)(b)] or a failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. The failure to post the bond required by School Board Policy 3320 Part VI within the time prescribed by School Board Policy 3320 Part VI as currently enacted or as amended from time to time shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. Notices of protest formal written protests and the bonds required by School Board Policy 3320 Part VI shall be filed at the office of the Director of Supply Management and Logistics 7720 West Oakland Park Boulevard, Suite 323 Sunrise, Florida 33351 (fax 754-321-0936). Fax filing will not be acceptable for the filing of bonds required by School Board Policy 3320 Part VI. Section 3 of the ITB states as follows at General Condition 36: POSTING OF BID RECOMMENDATIONS/TABULATIONS: Any person who files an action protesting an intended decision shall post with the School Board at the time of filing the formal written protest a bond payable to the School Board of Broward County Florida in an amount equal to one percent (1%) of the Board's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours excluding Saturdays Sundays legal holidays and other days during which the School Board administration is closed of receipt of notice of intent to protest. The estimated contract amount shall be established on the award recommendation as the "contract award amount." The estimated contract amount is not subject to protest pursuant to [section 120.57(3)]. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond the School Board may accept a cashier's check official bank check or money order in the amount of the bond. If after completion of the Administrative Hearing process and any appellate court proceedings the School Board prevails the School Board shall recover all costs and charges which shall be included in the Final Order or judgment including charges made by the Division of Administrative Hearings but excluding attorney's fees. Upon payment of such costs and charges by the protestant the bond shall be returned. If the protestant prevails then the protestant shall recover from the Board all costs and charges which shall be included in the Final Order or judgment excluding attorney's fees. Section 3 of the ITB states as follows at Special Condition 1: INTRODUCTION AND SCOPE: The School Board of Broward County Florida (hereinafter referred to as "SBBC") desires bids on REFUSE SERVICES for solid waste removal as specified herein. Prices quoted shall include pick up at various schools departments and centers within Broward County Florida. Section 4 of the ITB states as follows at Special Condition 3: AWARD: In order to meet the needs of SBBC Bid shall be awarded in its entirety to one primary and one alternate responsive and responsible Bidders meeting specifications terms and conditions. The lowest Awardee shall be considered the primary vendor and should receive the largest volume of work. Therefore it is necessary to bid on every item in the group and all items (1-58) in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC reserves the right to procure services from the alternate Awardee if: the lowest Bidder cannot comply with service requirements or specifications; in cases of emergency; it is in the best interest of SBBC. After award of this bid any Awardee who violates any specification term or condition of this bid can be found in default of its contract have its contract canceled be subject to the payment of liquidated damages and be removed from the bid list and not be eligible to do business with this School Board for two years as described in General Conditions 22 and 55. Section 4 of the ITB states as follows at Special Condition 7: ADDING OR DELETING SITES: SBBC may during the term of the contract add or delete service wholly or in part at any SBBC location. When seeking to add a location SBBC shall request a quote from both Awardees. The lowest Bidder shall receive an award for the additional location. If additional service is requested for an existing site already receiving service the current service provider will be contacted to provide a new quote based on the pricing formula submitted in response to this ITB or a subsequent quote. Section 4 of the ITB states as follows at Special Condition 11: RECEPTACLES: The Awardee shall furnish receptacles in good repair. . . .The Awardee shall furnish any and all equipment materials supplies and all other labor and personnel necessary for the performance of its obligations under this contract. Design of all equipment is subject to the approval of the Manager Energy Conservation Utility Management or his designee and must be replaced upon notification without additional cost to SBBC. DESCRIPTION: All receptacles used for solid waste referenced in Group 1 on the Bid Summary Sheets and the Tamarac location listed in Section 5 Additional Information unless otherwise indicated shall be provided by the Awardee at no additional cost. Bin receptacles shall be provided for SBBC use in the cubic yard capacities as indicated on the Bid Summary Sheets. Receptacles shall be bin-type units steel or plastic lift-up lids NO SIDE DOORS unless specifically requested for 8 cu. yd. fitted for automatic loading on casters where necessary for chute operations. (Receptacles not on casters must have a 6" – 12" clearance from ground to bottom of bin for easy cleaning underneath.) TWO AND THREE YARD CONTAINERS: It will be necessary for The Awardee to supply the two (2) and three (3) yard containers to hold compacted refuse at a ratio of approximately 4:1. These containers are designed for front-end loading. THESE UNITS ARE IDENTIFIED ON THE BID SUMMARY SHEET BY A SINGLE ASTERISK (*) NEXT TO THE CONTAINER SIZE. Section 4 of the ITB states as follows at Special Condition 20: SMALL IN-HOUSE COMPACTION UNITS(approximately two yards): The following schools have in-house compaction units which will need to be provided by the Awardee. Waste is compacted at an approximate ratio of 3:1. Collins Elementary Oakridge Elementary Sheridan Hills Elementary Section 4 of the ITB states as follows at Revised Special Condition 14: PRICING – ALL INCLUSIVE COST GROUP 1 ITEMS 1– 58: Bidder shall submit fixed monthly costs where indicated on the Bid Summary Sheets for each location based on 4.33 weeks per month. (This number is derived by dividing 52 weeks by 12 months). Monthly costs stated shall be an all-inclusive cost for providing receptacles refuse removal and disposal including but not limited to all necessary labor services material equipment taxes tariffs franchise fees maintenance and applicable fees. SBBC agrees to pay the Broward County Disposal Adjustment (tipping fees) in effect at the time. Increases to this fee will be paid as assessed by Broward County. Any decreases in these rates shall be passed on to SBBC as well. No bid specification protest was filed by any person concerning the original ITB or Addendum No. 1. Nine companies submitted timely responses to the ITB. Each bidder submitted a monthly bid and an annual bid. The School Board thereafter ranked the respective bids. Intervenor was the apparent low bidder with a monthly bid of $39,576 and an annual bid of $474,918.38. All Service was the apparent second low bidder with a monthly bid of $40,540.90 and an annual bid of $486,490.80. WSI was the apparent third low bidder with a monthly bid of $47,671.71 and an annual bid of $572,060.52. Petitioner was the apparent fourth low bidder with a monthly bid of $50,177.73 and an annual bid of $602,132.76. On November 2, 2011, the School Board's Purchasing Department posted the agency's intended recommendation for award of the ITB. The intended decision was (A) to award to Intervenor as the primary vendor for Group 1 (1 through 58); and (B) to award to All Service as the first alternate for Group 1 (1 through 58). On November 4, 2011, Petitioner timely filed its Notice of Protest with the School Board's Purchasing Department. On November 14, 2011, Petitioner timely filed its Formal Bid Protest with the School Board's Purchasing Department and delivered the required bid protest bond. The School Board formed a Bid Protest Committee that met with Petitioner on December 19, 2011, to consider Petitioner's formal written protest in accordance with section 120.57(3)(d)(1) and School Board Policy 3320. The parties were unable to resolve the protest by mutual agreement and the School Board sent Petitioner a notice of non-resolution of dispute. Section 1 of the ITB precludes a bidder from withdrawing its bid within 90 days of its submission to the School Board. At the time of the formal hearing 106 days had passed since the submission of bids. No bidder, including Intervenor, has indicated that it committed an error in calculating its prices submitted under the ITB or asked the School Board to excuse it from the prices it offered under the ITB. To the contrary, Intervenor's counsel represented at the formal hearing that Intervenor was standing by its bid. Generally, compacted waste is heavier and more expensive to dispose of than non-compacted waste. The ITB identifies the number and size (in cubic yards) of the receptacles to be placed at each location and the number of pick-ups per weeks to occur for each receptacle. The ITB also informs the bidders whether a receptacle was compacted or non-compacted. If compacted the ITB set forth the ratio of compaction. Bidders were also asked to bid a monthly cost and any applicable fees charged by the facility receiving the waste to arrive at total monthly cost for each receptacle to be furnished. The bidders were required to provide a total monthly bid for the services and a total annual bid for the services. The bidders were to use the information set forth in the ITB to calculate their bids. Petitioner asserts that the bids submitted by Intervenor, All Service, and WSI were not responsible bids because those bids failed to factor in the higher costs of disposing of waste that had been compacted. Petitioner contends that the reference to compaction ratios constitute specifications by the School Board to require all bidders to calculate their pricing utilizing the compaction ratios. Petitioner describes the referenced compaction ratios as "multipliers" that needed to be used by the bidders in calculating their prices for handling and disposing of compacted waste. Petitioner is seeking to impose its interpretation of the ITB as requiring each of the bidders to calculate its bid using the same pricing methodology that Petitioner employed. There is no ambiguity in the ITB, and there is no factual basis to conclude that all bidders were required to prepare their bids in the same fashion as Petitioner. There is nothing set forth in the ITB that required the School Board to interpret its reference to the compaction ratios as being a specification of a "multiplier" for pricing as opposed to a description of the capacity of the receptacles to be used at each of the school locations. At no point is the word "multiplier" used in the ITB to specify that the bidders were required to engage in mathematics involving multiplying their prices against some unit price the bidders were specifying in their bids. The ITB specifies the frequency with which the varying container sizes needed to be picked up at each of the 58 schools with the weight or volume of the container not being a factor in setting the specification of how often the container is to be picked up by the awardee. No adjustments were to be made to the prices paid by the School Board based on the weight of the container when removed. The School Board did not specify in the ITB that a bidder was required to charge the same monthly cost at each school for a similarly-sized refuse container nor did the School Board require different pricing for compacted waste as compared to non-compacted waste. Petitioner's assertion that the bidders were required to use those ratios as a multiplier when bidding on the cost of disposing of compacted waste is rejected as being contrary to the plain language of the ITB. The compaction ratios were provided to the bidders as information only. There is no requirement that a bidder use a particular methodology in determining its bid amounts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Broward County Florida enter a Final Order that adopts the findings of fact and conclusions of law contained herein, dismisses the protest filed by Petitioner Ace Waste Services LLC, and upholds the award of the procurement to Choice as primary awardee and to All Service as alternate awardee. DONE AND ENTERED this 20th day of March 2012, in Tallahassee Leon County Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March 2012.
