The Issue The issue for determination is whether the Intervenor was properly qualified to complete the construction project contemplated by Invitation to Bid No. DCF-03211120 (ITB)
Findings Of Fact The Department issued the ITB for a construction project, involving the re-roofing of Buildings 1 and 2 at 12195 Quail Roost Drive, Miami, Florida. The ITB was published in the Florida Administrative Weekly on December 24, 2008. The ITB outlined the terms and conditions for responsive bids. The ITB indicated, among other things, that all sealed bids were required to be submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, by January 15, 2009, at 2:00 p.m. Leo Development submitted its sealed bid at the location and by the date and time, in accordance with the ITB. FBM submitted its sealed bid by the date and time, but at a different location—the offices of Russell Partnership— contrary to the ITB. All other bidders submitted their sealed bids at the location and by the date and time, in accordance with the ITB. The Department’s architect of record on the project, Russell Partnership, and one of its principals, Terry Holt, performed the examination and bid tabulation. Mr. Holt, a registered architect for approximately 36 years, was very familiar with the procurement process and had extensive experience in determining whether a bidder was licensed by DBPR in order to complete the work contemplated for a project. The sealed bids submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, on or before January 15, 2009, at 2:00 p.m. were as follows: All Time Roofing, with a bid of $73,400.00; Taylor Roofing, with a bid of $59,708.00; Leo Development, with a bid of $54,109.00; John W. Hunter Enterprises, with a bid of $75,000.00; and Trintec Construction, with a bid of $75,500.00. 9. FBM’s bid was $71,600.00. Mr. Holt determined that Leo Development was the lowest bidder. FBM’s bid was not considered as being non-responsive. Additionally, Mr. Holt reviewed Leo Development’s website to ascertain as to whether any factors existed to disqualify Leo Development. The website failed to reveal any basis for Mr. Holt to disqualify Leo Development. Having discovered no basis to disqualify Leo Development as the lowest bidder, Mr. Holt submitted the list of bidders, with their bids, to Bill Bridges, the Department’s senior architect and a registered architect for approximately 25 years. Mr. Bridges was the person responsible for oversight of the ITB process. As Leo Development was the lowest bidder, Mr. Bridges reviewed the website of the Florida Department of State, Division of Corporations (Division of Corporations) in order to ensure that Leo Development was registered with the Division of Corporations. His review revealed that Leo Development was a fictitious name properly registered to Leo Premier Homes, LLC. Further, Mr. Bridges performed a license background check on Leo Development in order to ensure that Leo Development was licensed by DBPR. Mr. Bridges reviewed DBPR’s website, which revealed that Frank Anthony Leo was the owner of Leo Development and that the following licenses were issued by DBPR: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Development; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Development; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Development. Mr. Bridges confirmed and was satisfied that Leo Development was properly licensed to complete the work contemplated by the ITB. Mr. Bridges recommended that Leo Development be awarded the ITB as the lowest responsive bidder. FBM filed a written protest (Initial Protest) of “its exclusion from the bid tabulation.” The Department issued a Final Order Rejecting Bid Protest (Final Order) on February 19, 2009. The Final Order provided in pertinent part: FBM was determined non-responsive because the bid was not presented at the time and place specified in the ITB. . . FBM’s formal written protest alleges that FBM, on the date of the bid submission/bid opening, was misdirected as to the location of the bid opening. . . . FBM’s protest must be rejected because it does not state a claim that could entitle it to relief. . . In the context of a bid protest proceeding . . . the protest must adequately allege that the protestor could obtain the contract award or otherwise benefit should the protest be successful. . . Assuming all of FBM’s factual allegations are true and that those facts entitle FBM to have its bid considered, FBM would still be entitled to no relief. Had FBM’s bid been accepted, FBM would have been the third lowest of six bidders. FBM’s formal protest does not allege that the lowest and second lowest bids were deficient in any manner. FBM was not injured in fact, because it still would not have received the contract award. Accordingly, FBM’s formal written protest is REJECTED. No appeal was taken by FBM of the Department’s Final Order rejecting FBM’s Initial Protest. Among other findings, the Department’s Final Order on FBM’s Initial Protest found that, taking FBM’s allegations as true, FBM would have been the third lowest bidder. FBM would not have been the second lowest bidder. The parties agree that the holder of a certified building contractor’s license and a certified roofing contractor license would be permitted to complete the work contemplated by the ITB. Subsequent to the opening of the sealed bids, Leo Premier Homes, LLC, registered the fictitious name of Leo Roofing & Construction with the Division of Corporations. After the registration with the Division of Corporations and after the Department’s Final Order, licenses were issued by DBPR. As to the licenses issued, the record of the instant case provides2: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Roofing & Construction; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Roofing & Construction; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Roofing & Construction. The licenses reflect the same license numbers, as before, and only the fictitious name is different on each license to indicate Leo Roofing & Construction.3 The contract for the ITB was entered into between the Department and Leo Development. In these proceedings, the Department incurred costs in the amount of $1,311.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing FBM General Contracting Corporation’s Protest and awarding costs in the amount of $1,311.05 to the Department of Children and Family Services. DONE AND ENTERED this 21st day of August 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2009.
Findings Of Fact Respondent HRS published ITB 590:2306 for existing rental space in the central area of Brooksville, Florida. The bid solicitation specified a bid opening time and date of 2:00 p.m. July 17, 1991. Petitioner and Intervenor timely submitted sealed bids. They were the only two bidders. Neither they nor anyone else timely filed any protest of the bid specifications, and therefore the specifications are not subject to attack in this proceeding. Petitioner received a notice of intent to award the bid for lease 590:2306 to Intervenor by letter from Respondent dated August 27, 1991 and timely filed its notice of intent to protest and formal bid protest. Petitioner accordingly has standing to bring this proceeding. Intervenor is the intended awardee and as such has standing to intervene. Petitioner submitted the property located at 7348 Broad Street, Brooksville, Florida, and showed in his bid submittal form that his proposed property contained 22,500 net square feet, with future expansion of 2,100 square feet available. When Petitioner submitted his bid, it included a floor plan, site plan, and a PUR 7068 form. A PUR 7068 form is a "Public Entity Crime Certification Statement," a sworn statement under Section 287.133(a) F.S. The ITB included two separate requirements for bidders to establish that they have control over the property that they submit to HRS. HRS' purposes in requiring bidders to demonstrate control are to prevent bids based on total speculation, to establish a reasonable expectation that the bidder can meet his obligations if awarded the bid, and to establish a reasonable expectation that the property can be occupied on time. Item 1 on page 3 provides as follows: Control of property - This pertains to both the structure(s) and proposed parking areas. To submit a responsive bid, a prospective lessor must meet one of the following qualifications: a.) Be the owner of record of the facility and parking areas (submit copy of deed). b.) Be the lessee of space being proposed and present with bid, a copy of lease with documen- tation of authorization to sublease the facility and parking areas through the base lease term and all renewal option periods. c.) Submit documentation of an option to purchase the facility and/or parking areas. d.) Submit documentation of an option to lease the facility with authorization to in turn, sublease. Any lease must encompass the entire time period of the basic lease and any renewal option periods as required the state. e.) Submit form PUR. 7068 Sworn Statement of Public Entity Crimes (Attachment H). Page 12 provides, in part, as follows: In order for a bid proposal to be accepted the items 1 through 6 must be included in the bid proposal. Items 7 through 11 must be included, if applicable. [Items 11 and 13 state:] 11. Documentation showing bidder as controller of property. 13. Public Enemy [sic] Crime Certification Statement A pre-bid conference attended by Petitioner made clear that evidence of control and the PUR 7068 form were two different items. Petitioner testified that he attached the PUR 7068 form as his sole basis for evidencing control of the building and parking spaces he submitted for lease, and acknowledged that, in fact, the form did not provide any information with regard to his control of the buildings or parking spaces offered for lease. Petitioner's assertion that his name on some of his site plans, etc. constitutes evidence of control is not persuasive. Such assertion is not in line with the ITB requirements or even common sense. Petitioner Proctor owned the buildings he offered HRS in his bid submittal. Petitioner offered multiple buildings separated by parking areas and driveways. The property offered by Petitioner was to have built an awning- covered walkway between buildings but the walkway would have to be placed through the driveway area of the property. The expansion area for Petitioner's property designated in its bid submittal was composed of approximately 10 gated warehouse units which would be converted to office space. Petitioner had leased a portion of the same premises to HRS for 15 years, and HRS was still leasing that portion at the time of the bid opening. At the time of the bid opening, another portion of the property Petitioner proposed to be leased to HRS was also already rented to other tenants, including a lease to the Florida Department of Labor which was not scheduled to expire until December 31, 1991, one day prior to HRS' proposed first day of occupancy under the ITB. The space leased to the Department of Labor would require some renovation for HRS' use, at least to connect it on the interior with the rest of the building. The remainder of the second, adjacent, building to be rented under Petitioner's bid would require more extensive renovation to create office spaces to meet HRS' needs. In addition to the Department of Labor, Petitioner was also renting space in the second building to a beauty salon, a book store, an office supply store, a clothing store, and a barber at the time of bid submittal and opening and at the time of the formal hearing. These latter tenants were on month-to-month leases. In order to ensure that there would be time for necessary renovations before January 1, 1992 and further to ensure that the property would be available for occupancy on January 1, 1992, the ITB required in the following unequivocal language that all bidders file tenant acknowledgments of the bid/proposed lease with their bid submittal: Existing Tenants: If the offered space or any portion thereof (including parking areas) is at present occupied or will be covered by an active lease(s) at the stated availability date, written documentation by the tenant indicating acknowledgment of the bid and ability to vacate premises by the proposed date must be included with the bid submittal. [Emphasis added] Petitioner submitted no tenant acknowledgments from any of his tenants with his bid to HRS. Even though Petitioner failed to submit evidence of control in the form of a deed and further failed to submit the required acknowledgments from tenants occupying the premises on the bid date, HRS did not immediately disqualify Petitioner's bid as nonresponsive. Instead, HRS evaluated Petitioner's bid simultaneously with Intervenor TCC's bid. HRS relied on old leases in its files and actual knowledge that monthly rent was paid to Petitioner for its own currently leased space, and HRS ignored the absence of tenant acknowledgments with Petitioner's bid. HRS followed this course of action despite the requirement of the ITB on page 7, item 1 under EVALUATION OF BIDS which unequivocally provides: Bids received are first evaluated to determine technical responsiveness. This includes submittal on bid submittal forms, inclusion of required information, data, attachments, signatures and notarization, etc. Non responsive [sic] bids will be withdrawn from further consideration. The portion of the ITB designated, Documents Required To Be Submitted With Bid Submittal For Existing Buildings on page 12, item 4. required bidders to submit "Scale Floor Plans showing present configurations with dimensions." Page 3 of 22, Item 9.(b) further required that, as a part of the bid submittal, bidders were to provide "A scaled (1/16" or 1/8" or 1/4" = 1'0") floor plan showing present configuration with measurements." Contrary to the ITB requirement, Petitioner submitted a floor plan scaled at 1/20" = 1', which also failed to reflect the present configurations with all measurements. Petitioner's scaled floor plan submitted with his bid was prepared prior to the present addition to one building and contained a hand- drawn configuration without accurate measurements for the northwest corner of one building. The term of the lease as shown on the ITB and Bid Submittal Form was 9 and one-half years with an option to renew for 2-5 year renewal periods. At the time of the bid opening on July 17, 1991, the bid submitted by Petitioner failed to have any proposed rental rates shown for "Renewal Options: Option II years 1 through 5." HRS permitted Petitioner to correct or supplement its bid after the bid opening (same date and place) to cover this material omission. Page 6, item 4 of the ITB provided for the property owner or other bidding entity to sign the bid submission. The pertinent part states: 4. Each bid submitted shall be signed by the owner(s) corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. ALL BID SUBMITTAL SIGNATURES MUST BE WITNESSED BY TWO PERSONS. [Emphasis appears in ITB] Petitioner Proctor signed his bid submittal in proper person. TCC's bid submittal was signed by Sharon K. Lane, "Executive Director," of TCC Number 3 Ltd. Inc., Intervenor herein. At all times material, TCC Number 3 Ltd. Inc. has been a Florida corporation. At the time of the bid opening, Ms. Lane was TCC's sole shareholder and "all officers." At the time of formal hearing, Ms. Lane remained the sole shareholder, but others had assumed some of the corporate offices. Her status at the time of the bid submittal was sufficient for her to bid on behalf of the TCC corporation and to execute the PUR 7068 form on that corporation's behalf. Intervenor TCC submitted the required PUR 7068 form, but TCC submitted as sole evidence of control an undated, unrecorded "Contract for Sale and Purchase" by and between Hernando Plaza Ltd. as Seller and Intervenor TCC as Buyer, for the property which Intervenor was offering for lease to HRS. The best date assignable to this document is April 29, 1991. It was executed on behalf of Hernando Plaza Ltd. by Edward M. Strawgate and Harold Brown representing themselves as general partners of the limited partnership. TCC's obligation to proceed to closing under the foregoing contract was contingent upon TCC's securing an anchor tenant. However, the contract requires TCC to take steps to secure an anchor tenant. By its terms, TCC may purchase the property with or without an anchor tenant, but the contract requires TCC, in seeking an anchor tenant, to set time limits for the lease arrangement with the proposed anchor tenant which do not necessarily accord with the timing of HRS' bid process. HRS accepted TCC's contract to purchase from Hernando Plaza Ltd., as evidence of TCC's control of the premises offered by TCC for lease, believing it to constitute an option to purchase and the necessary evidence of control as required by the ITB. (See, Finding of Fact 6, supra.) At the time of the bid opening, HRS had no reliable information as to what entity actually owned the property offered by TCC, and TCC had not disclosed to HRS that its contract to purchase the property was with a legal entity other than the record title owner of the property, which record title owner was and is the Victor and Lillian Brown Foundation (Brown Foundation). See, infra. Up to that date, at least, Hernando Plaza Ltd. had represented itself to TCC as the owner of the property. The ITB did not require that an abstract of title be submitted with the bid, and HRS normally does not require an abstract from successful bidders, although the ITB contains provisions for future disclosure from successful bidders. (See, ITB item 5 under Requirements for Bidders to Submit Bids.) Absent some reason to "go behind" facial evidence of control, HRS attempts to protect itself by requiring successful bidders to put up an irrevocable letter of credit for one-half of one percent of the proposed lease rental obligation over the basic lease term as a penalty in the event a successful bidder cannot perform. (See, ITB page 4, item 10.) Hernando Plaza Ltd.'s certificate from the Florida Secretary of State expired December 31, 1981. That fact was advertised and the certificate cancelled July 16, 1982. At that time, Edward M. Strawgate was listed as a general partner and Harold Brown was listed as a limited partner of Hernando Plaza Ltd. Hernando Plaza Ltd. had been administratively dissolved for failure to file its annual report. Subsequent to the time that Intervenor submitted its bid proposal, but prior to formal hearing, Hernando Plaza Ltd. was reinstated by the Florida Secretary of State. Once reinstated, the limited partnership's ability to act related back and validated its prior actions. At all times material, the record title of the property offered by Intervenor TCC for lease to HRS was owned by "Harold Brown, Lillian Brown and Muriel Kahr as Trustees of the Victor and Lillian Brown Foundation." This title is derived from a recorded June 30, 1967 warranty deed from Hernando Plaza Ltd., which deed was admitted in evidence at formal hearing. The warranty deed was not attached to TCC's bid submittal. Neither TCC, the corporation, nor Sharon K. Lane, individually, held any authority as agent to submit a bid to HRS on behalf of the record title owner, the Brown Foundation. There is also in evidence a recorded December 18, 1985 Amendment to Lease between the Brown Foundation and City National Bank. That Amendment to Lease also was not attached to TCC's bid submittal to evidence control of the premises TCC was offering to lease to HRS. That Amendment to Lease also recites that Hernando Plaza Ltd. leased back the subject property from the Brown Foundation by a lease dated June 30, 1967. The June 30, 1967 lease was not recorded, was not part of TCC's bid submittal, and is not in evidence. The December 18, 1985 Amendment to Lease goes on to recite that Hernando Plaza Ltd. has assigned its lessee interest under the June 30, 1967 lease to City National Bank by a March 14, 1978 assignment. There is also in evidence a recorded March 14, 1978 "Assignment of Lessee's Interest in Lease from Hernando Plaza Ltd. to City National Bank." This assignment was not part of TCC's bid submittal. The December 18, 1985 Amendment to Lease goes on to further recite that the Brown Foundation has "agreed to give and grant to [Hernando Plaza Ltd.] an option to purchase the property." The remainder of the December 18, 1985 Amendment to Lease details the terms or conditions of the option to purchase granted by the Brown Foundation to Hernando Plaza. For instance, in order to exercise that option to purchase the subject property from the Brown Foundation, Hernando Plaza Ltd., among other requirements, would have to demonstrate that all the terms of the unrecorded June 30, 1967 lease are "in good standing." One may reasonably infer that "in good standing" would at a bare minimum mean that the rents under the lease are paid current at the time the option is exercised, but what the other terms of the lease might be are subject to pure conjecture. TCC's bid submittal did not include documentation that the June 30, 1967 lease was "in good standing." There is also in evidence a recorded June 7, 1989 Trustee's Deed (quitclaim deed of the trustee's interest) from City National Bank's successor bank/trustee to Hernando Plaza Ltd. The Trustee's Deed also was not attached to TCC's bid submittal. On the date of bid submittal/opening neither TCC, the corporation, nor Sharon K. Lane, individually, held any authority as agent to submit a bid on behalf of Hernando Plaza Ltd. or City National Bank's successor. At formal hearing, TCC submitted an October 24, 1991 written hearsay statement by Harold Brown as Trustee of the Brown Foundation to the effect that Hernando Plaza Ltd.'s December 18, 1985 option to purchase the property from the Brown Foundation was "in full force and effect" and that the June 30, 1967 lease back from the Brown Foundation to Hernando Plaza Ltd. was "in full force and effect and that the lessee is in good standing thereunder." Assuming these items may be considered in this proceeding pursuant to Section 120.58 (1) F.S. as supplementing or explaining direct evidence, they still do not clarify in any way what all the terms of the unrecorded 1967 lease are or that those terms will remain in good standing on the date in the future that Hernando Plaza Ltd. elects to exercise its option, if it elects to exercise its option to purchase the property from the Brown Foundation so that Hernando Plaza Ltd. may, in turn, convey the property to TCC, pursuant to Hernando Plaza Ltd. and TCC's April 29, 1991 contract for sale and purchase. Oddly enough, there is further explanatory hearsay that on October 24, 1991, Harold Brown was a trustee of the Brown Foundation and that he also was the sole limited partner of Hernando Plaza Ltd., although TCC's contract with Hernando Plaza for sale and purchase previously indicated Harold Brown was one of two general partners. Hernando Plaza Ltd.'s option to purchase the property from the Brown Foundation must be exercised by Hernando Plaza Ltd. before Hernando Plaza Ltd. can honor its contract to purchase/sell to TCC. Since there is no record evidence that the June 30, 1967 lease from the Brown Foundation as lessor to Hernando Plaza Ltd. as lessee will be in good standing on whatever future date Hernando Plaza Ltd. attempts to exercise its option with the Brown Foundation, one may only speculate both as to when and if TCC will be able to purchase the property from Hernando Plaza Ltd. TCC has only an option to become owner of the subject property at some unspecified date conditioned upon Hernando Plaza Ltd.'s first successfully exercising its option from the Brown Foundation and further conditioned upon all the terms of TCC's contract with Hernando Plaza Ltd. Apparently, TCC's only recourse to enforce its contract with Hernando Plaza Ltd. is a Circuit Court action for specific performance. TCC also submitted a site plan and floor plan with its bid submittal. The ITB required that offices on outside walls must provide windows. TCC's plans did not reflect windows in two sides of the building, but given HRS' retaining the right to partially design and locate its own halls and offices during the building's renovation, TCC's failure to show windows in the two outside walls is not, in and of itself, a material, disqualifying deviation from the ITB so as to unilaterally render TCC's bid nonresponsive. HRS staff member Donald J. Cerlanek prepared a bid synopsis of each bid. This involved completing a form from the HRS leasing manual which illustrates the characteristics of each of the bids. The bid requirements included evaluation criteria and a maximum amount of points which could be awarded for each criteria item. Five HRS bid evaluation committee members executed no conflict of interest forms. These were: Thomas C. Little Jr., David Thomley, Sylvia Smoot, Harvey Whitesides, and Mary Hawks. All committee members were given copies of the bid synopsis form to use in evaluating the properties submitted by Petitioner and Intervenor. Some of the committee members did not obtain or review the actual bid submissions of each of the bidders, but all of them had access to the bid submissions and read the bid synopsis forms for both Petitioner's and Intervenor's bid submittals. The bid evaluation committee members, except for Mary Hawks, made site visits to the properties submitted by Petitioner and Intervenor. Ms. Hawks essentially acted only as a facilitator or conduit for the evaluations of the other four evaluators as set out infra. The four site evaluators took notes regarding each location. The four site evaluators each assigned numerical weights to each item of evaluation criteria except for the rent and renewal rent portions of the evaluation criteria. Although on their site visits some committee members visiting TCC's site may have seen a color version of an artist's rendering of what TCC's project could look like after renovation was complete, a black and white version of the same artist's rendering was attached to TCC's bid submittal to which all committee members had access, and it is found that this situation in and of itself presented no false or misleading information nor constituted any prejudice to a fair bid process/evaluation. Likewise, although some evaluators discussed expansion prospects with TCC's and/or Proctor's on-site representatives, the evidence is credible and persuasive that each evaluator who visited the sites assessed the projects' respective expansion prospects substantially upon what they saw on each site and had experienced in Proctor's existing facility. The points awarded and reasons for the recommendations of each evaluator who visited the sites were reasonably based on specific needs of HRS. These specific needs of HRS were reasonably articulated by the two evaluators who made on-site inspections and who also testified at formal hearing and were reasonably set out in writing in the written notes of the two other evaluators who did not testify. Thomas C. Little, Jr., testified that he found the Intervenor's property superior as a result of the security problems at Petitioner's locations, the closer proximity of the courthouse, hospital, and health department to Intervenor's property and the superiority of a single building offered by Intervenor versus multiple buildings offered by Petitioner. Additionally, he found the esthetics of Petitioner's buildings lacking and expansion offered by Petitioner limited and was concerned that HRS would outgrow the space due to the fact that their service area is one of the most rapidly growing in Florida. His contemporaneous notes were to the same effect. Sylvia Smoot, also a member of the evaluation committee, testified that she found Intervenor's facility superior based on its proximity to the courthouse, hospitals, and other key locations, and its flexibility of design and concentration of space in one building. She further found Petitioner's location lacking as a result of the three separate buildings, its limited expansion room, and the necessity for redirecting clients between buildings, and the difficulty for elderly and handicapped clients accessing Petitioner's building. Her contemporaneous notes were to the same effect. Evaluators Whitesides and Thomley made substantially similar contemporaneous notes justifying their scoring of the two bidders. Three of the four site evaluators met as a group following the site visits and discussed the properties submitted by Petitioner and Intervenor. All four of the site evaluators made recommendations to accept the property for lease proposed by Intervenor, but they did not all confer and jointly develop a single recommendation to the facilities manager. The points assigned by each of the four site evaluators for the properties proposed by Petitioner and Intervenor were as follows: Evaluation Committee TCC Number Member's Names Proctor's Points 3's Points Thomley 75 98 Little 78 93 Whitesides 74 95 Smoot 80 91 307 377 The rent portion of the evaluation criteria was ascertained by applying present value methodology as set forth in the HRS leasing manual to the annual rents offered by the bidders. The discount factor was 8.32 percent. The present value of Proctor's bid was $1,934,038 and the present value of TCC's bid was $2,028,316. The leasing manual is considered advisory only. It advises present values be made, a determination of the difference in amounts be calculated and a comparison of the difference be made to determine a percentage. Thereafter, the percentage is applied to the maximum amount of points allocated for rent in the evaluation criteria. The lowest present value receives the maximum number of points allocated, and, thus, Proctor was awarded 35 points. TCC received 33 points, based upon the fact that its present value of rent was close to the present value submitted by Proctor. No penalty is imposed to a bidder whose rental amounts is higher than the lowest bidder. No benefit is conferred upon the lowest cost bidder over the next lowest bidder. Mary Hawks, Manager for Administrative Services, Department of Health and Rehabilitative Services, received each of the individual evaluation recommendations from Thomley, Little, Whitesides and Smoot. As a result of travel restrictions placed on the HRS, the four site evaluators and Ms. Hawks, who was also a fifth committee member, did not meet as a group following the site visits although three of the four site evaluators did meet collectively following the site visits. (See Finding of Fact 43-44, supra.) The committee members could have met by telephone conference call but Mary Hawks found it unnecessary to do so because there was such a clear evaluation in favor of Intervenor based on the total composite evaluation scores of 377 for Intervenor and only 307 for Petitioner, out of a total of 400 points. She assigned no points herself but approved their recommendations and forwarded a single recommendation in favor of TCC for ultimate approval by HRS management. Mary Hawks had spoken to the evaluation committee members subsequent to the evaluation and no member had expressed any reservation regarding his/her evaluation or a need to meet to discuss anything additional regarding the bid evaluation. The HRS Intent to Award to TCC subsequently issued. The evaluation process and formula for rent evaluation are not among the more commonly used methods but were reasonable and rational and fairly applied to the bids in this case. No conflict of interest in the evaluation committee members was demonstrated by Petitioner in these proceedings.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a Final Order finding that: The bid of TCC Number 3 Ltd. is nonresponsive; The bid of Derick Proctor is nonresponsive; Declining to award the bid for Lease No. 590:2306 to either bidder. RECOMMENDED this 20th day of December, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5963BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Proctor's 74 PFOF: The following PFOF are accepted, except to the extent they are unnecessary, subordinate, or cumulative to the facts as found in the recommended order (RO). Unnecessary, subordinate, or cumulative material has not been utilized: 1-3, sentence 1 of PFOF 4, 5-6, 9, 11-12, sentence 1 of PFOF 13, sentence 1 of PFOF 16, 17-26, sentence 1 of PFOF 29, 30-33, 35-36, sentences 1 and 4 of PFOF 38, 39-41, 44-54, 56-57, 60-61, 63. The following PFOF are rejected because they are not FOF as framed but constitute a proposed conclusion of law (PCOL) or are rejected because they constitute mere legal argument: sentences 2 and 3 of PFOF 4, sentence 2 of PFOF 16, 34, 43. The following PFOF are rejected because, as framed, they constitute mere recitation of isolated, unreconciled testimony or other record evidence or are not supported by the greater weight of the credible record evidence as a whole. However, the subject matter is covered in the RO as proven and supported by the competent, substantial evidence in the record: 10, sentence 2 of PFOF 13, 14- 15, sentence 2 of PFOF 29, sentences 2 and 3 of PFOF 38, 55, 58. PFOF 7-8 are accepted as modified because parts are unnecessary, subordinate, or cumulative to the facts as found and other parts are mere recitations of unreconciled portions of the record and legal argument. The following PFOF are accepted in part but not utilized because parts are unnecessary, subordinate, or cumulative to the facts as found, and other parts are rejected as immaterial to the dispositive issues herein, although correctly quoted from the record: 68-73. The following PFOF are rejected as immaterial or not dispositive: 27-28, 37, 42, 59, 62, 65, 67, 74. The following PFOF are covered in preliminary material: 64, 66. HRS 21 PFOF: The following PFOF are accepted except to the extent they are unnecessary, subordinate, or cumulative to the facts as found in the RO. Material unnecessary, subordinate, or cumulative has not been utilized: 1-4, 6-8, 11-12, 16-19. The following PFOF are rejected because they are not FOF as framed but constitute PCOL or are rejected because they constitute mere legal argument: 5, 9-10, 14-15, 21. The following PFOF are rejected because, as framed, they constitute mere recitation of isolated, unreconciled testimony or other record evidence or are not supported by the greater weight of the credible record evidence as a whole. However, the subject matter is covered in the RO as proven and supported by the competent, substantial evidence in the record: 20. PFOF 13 is accepted as modified to correctly reflect the credible record evidence as a whole. TCC Number 3 75 PFOF: The following PFOF are accepted except to the extent they are unnecessary, subordinate, or cumulative to the facts as found in the RO. Material unnecessary, subordinate, or cumulative has not been utilized: 1-31, 34-38, 42- 45, 47-48, 56, 58-60, 64-69, 71-75. The following PFOF are rejected because they are not FOF as framed but constitute PCOL or are rejected because they constitute mere legal argument: 32. The following PFOF are rejected because, as framed, they constitute mere recitation of isolated, unreconciled testimony or other record evidence or are not supported by the greater weight of the credible record evidence as a whole. However, the subject matter is covered in the RO as proven and supported by the competent, substantial evidence in the record: 33, 40-41, 53-55, 57, 61-63, 70. The following PFOF are rejected as immaterial or as not dispositive: 39, 46, 49, 51-52. PFOF 50 is not a sentence, but the subject matter is covered in the RO as understood. COPIES FURNISHED: Thomas V. Infantino, Esquire Infantino & Berman Post Office Drawer 30 Winter Park, FL 32790 Ralph McMurphy, Esquire HRS District 3 Legal Office 1000 Northeast 16th Avenue Gainesville, FL 32609 B. Gray Gibbs, Esquire Sam Power, Clerk Bette B. Lehmberg, Esquire Department of Health and Suite 800 Rehabilitative Services One 4th Street North 1323 Winewood Boulevard St. Petersburg, FL 33701 Tallahassee, FL 32399-0700
Findings Of Fact The Department of General Services, (hereinafter "DGS") is a state agency, the responsibilities of which include the management of state construction project. It accomplishes such management through its Division of Building Construction. The Divisions responsibilities include, negotiation of architect/engineer contracts, review of plans and specifications, contract administration, and contract management. One such project is Project No. MA-87080010, the subject matter of which involves repairs and alterations to the National Guard Armory in Fort Lauderdale, Florida, hereinafter referred to as the Armory Project. Certain portions of the bid specification for the Armory Project were prepared by the project architect, Mr. William D. Tschumy, Jr. Other portions, specifically the portions dealing with bidding conditions and contractual conditions, were provisions provided by DGS for inclusion in the specifications. The project architect was not familiar with all of the bid specification provisions provided by DGS. Prior to submitting its bid on the Armory Project, James P. Moran, Inc., had been prequalified for bidding on the project. Such prequalification did not obviate the need for James P. Moran, Inc., to meet the experience requirements in the bid specifications and in Rule 13D-11.904(2)(a)(8), Florida Administrative Code. The bid specifications for the Armory Project include the following provisions: 1/ Section B-2, page 9: 8. Firm experience - must have successfully completed no less than two project of similar size and complexity within the last three years. and; Section B-22, page 16: The owner reserves the right to reject any and all bids when such rejection is in the best interest of the State of Florida and to reject the proposal of a bidder who the owner determines is not in a position to perform the contract and to negotiate the contract in accordance with its Rule 13- D11.08 if the low qualified bid exceeds the project construction budget. James P. Moran, Inc., timely submitted its bid on the Armory Project and was subsequently notified that it had been recommended for contract award by the Director of the Division of Building Construction. This recommendation was made on the basis of a recommendation by the project architect that the bid be awarded to James P. Moran, Inc. At the time of making his recommendation, the project architect was not aware of the firm experience provision in either the bid specifications or the applicable rules. A timely protest was filed by another bidder on the Armory Project, in which the protesting bidder raised the issue of the firm experience of James P. Moran Inc. DGS concluded that the protest was valid and after further deliberation made the determination to reject all bids. All the bids other than the bid submitted by James P. Moran, Inc., exceeded the funds available for construction of the Armory Project. Because the other bids all exceeded the available funds, DGS decided that the best course of action would be to modify the scope and nature of the work involved in the project and then re-bid the project. It is reasonable to expect that the proposed modifications to the project will result in lower bids, because the modifications would permit the work to be done quicker and at less cost to the contractor. James P. Moran, Inc., was incorporated in 1981. However, prior to the summer of 1988, it had submitted no bids acquired no permits, and had neither started nor completed any jobs. The qualifying contractor for James P. Moran, Inc., is Mr. James P. Moran who, for many years prior to the summer of 1988, was an employee, officer, and shareholder of Frank J. Moran, Inc. Mr. James P. Moran holds a State of Florida building contractors license, a State of Florida electrical contractors license, a Dade County electrical masters license, a Broward County electrical masters license, and a State of Maine electrical contractors license. While employed by Frank J. Moran, Inc., Mr. James P. Moran was also the qualifying contractor for that corporation. While so employed, Mr. James P. Moran's primary duties were those of project director and estimator. He was also a corporate officer of Frank J. Moran, Inc. During his employment with Frank J. Moran, Inc., Mr. James P. Moran was the project manager on projects of similar size and complexity to the Armory Project. The construction budget for the Armory Project is approximately 250,000. The dollar values of construction jobs are valid indicators of the comparative sizes of construction jobs. The dollar values of the two largest construction jobs completed by James P. Moran, Inc., are approximately $161,000 and $112,000, respectively. The two largest construction jobs completed by James P. Moran, Inc., are not of similar size to the Armory Project. While DGS is concerned about the qualifications of the personnel employed by a contracting firm, DGS is also concerned about the track record of the firm itself, and, therefore, requires that a firm have completed projects in its own name in order to qualify for a bid award. In other words, a new firm cannot "take credit" for work performed by one of its employees at a time when the employee was working for another firm. Also, DGS does not allow "stacking" of the dollar value of several small jobs in order to demonstrate completion of a job of similar size to the job that is the subject of a bid. The purpose of the experience rule is to require a contracting firm to have completed at least two jobs of similar dollar size to the dollar size of the job being contracted. Among, the reasons stacking is not allowed is that completion of a job of any given size is a more complicated and complex undertaking than completion of a series of smaller jobs that total up to the same dollar value as the job of given size. DGS has now modified the scope of the project and has amended the plans and specifications in such a fashion that it will take less time to complete the modified Armory project and may reasonably be expected to result in lower bids closer to or below the construction budget. The modified Armory project may reasonably be expected to result in a savings of both time and money.
Recommendation For all of the foregoing reasons it is RECOMMENDED that the Department of General Services issue a final order in this case rejecting the bid of James P. Moran, Inc., as being non-responsive, and rejecting all other bids, in order to modify the scope of the project and rebid it. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of March 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1990.
Findings Of Fact Nine bids were received for Contract E4571, Project/Job No. 99004-3516 ("E4571"). Petitioner's bid was timely received. Respondent opened bids on December 13, 1991. Respondent posted its intent to award E4571 to J & D Tropical Landscape Design on December 20, 1991. Section 1.2 of the Bid Specifications for E4571, as modified by the Special Provisions, states: A contractor's bid shall be in the form of a unit price for each unit expected to be accomplished. The Special Provisions to E4571 require each bidder to submit a single unit price for each pay item called for in the Bid Price Proposal. Item 4 in the Special "Provisions provides: It shall be the responsibility of the Contractor to submit to the Department A SINGLE unit price for each pay item called for in the Bid Price Proposal. The Contractor shall be responsible for his/her method of averaging. Failure to comply shall result in the Contractor's Bid Proposal being declared "Irregular" and such Bid Proposals will be rejected. (emphasis added) Petitioner's Bid Proposal was properly declared irregular and rejected by Respondent. Petitioner failed to comply with the requirements of Item 4 in the Special Provisions by failing to submit a single unit price for each pay item, by failing to correctly average a unit price, and by failing to state the unit price in words. The Unit Price Sheet on page 23 of the Bid Proposals contains the following table listing item numbers A582- 2 through A584-4. Petitioner listed item number A583 as follows: ITEM PLAN ITEM DESCRIPTION AND UNIT PRICE $ AMOUNTS NUMBER QUANTITIES UNIT PRICE (IN FIGURES) (Exten- (IN WORDS) sion Price) 3/ A583 4 200.000 TREES (8' TO 20, 85 20400 PLANT ' HEIGHT OR CLEAR TRUNK) @ DOLLARS CENTS The actual extension price 4/ for 200 trees at $85 per unit is $17,000 rather than the $20,400 stated by Petitioner in the table on page 23. The "Contract Total" stated by Petitioner in the bottom right corner of the table is $37,013.20. The "Contract Total" that should have been stated if Petitioner intended the extension price of item number A583-4 to be $17,000 would have been $33,613. The "Contract Total" listed by a bidder on the Unit Price Sheet is the unverified contract price. The actual contract price is determined by Respondent pursuant to the formula given in Section 1.3 of the Bid Specifications. Section 1.3 of the Bid Specifications foil E4571 states: The contract price is defined as the sum of the unit bid price times the planned work for each item as shown on the Unit Price Sheet. Petitioner would have been the lowest successful bidder irrespective of whether Respondent had replaced the extension price for item number A583-4 and the "Contract Total" stated by Petitioner with the actual extension price for item number A583-4 and the actual "Contract Total" . However, Respondent is precluded from doing so by Section 3-1 of the Standard Specifications For Road ,and Bridge Construction ("Standard Specifications"), published by the Florida Department of Transportation (1991) and by the Special Provisions for E4571. Respondent follows "Section 3-1 of the Standard Specifications for the purpose of evaluating bid proposals. Section 3-1 is used, in part, to determine the extension price for item numbers listed on the Unit Price Sheet. Section 3- 1 provides in relevant part: In the event of any discrepancy in the three entries for the price of any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, In which case they shall govern over the unit price shown in words. Petitioner did not show the unit price in words for any item number on the Unit Price Sheet, including item number A583-4. There is a discrepancy in the three entries for item number A583-4 on the Unit Price Sheet. Petitioner failed to show the unit price for item number A583-4 in words, and the unit price and extension price are not in agreement. Under such circumstances, Respondent interprets Section 3-1 of the Standard Specifications as requiring that Petitioner's bid be declared irregular and rejected. Respondent's interpretation of Section 3-1 of the Standard Specifications is reasonable and is consistent with the mandate in Item 4 of the Special Provisions for E4571. See Finding 4, supra. Furthermore, in practice, the correct unit price of a pay item is necessary to process payment under the contract and the contractor must submit invoices based upon the pay items and unit prices listed in its bid. The bid specifications for E4571 provide that a bidder is responsible for his or her own averaging of a stated unit price, and that if a bidder fails to provide a single unit price for each pay item on the Unit Price Sheet the bid shall be declared "Irregular" and will be rejected. The requirement to provide a single unit price for each pay item was emphasized by Respondent at the mandatory pre-bid meeting. Petitioner's representative attended the mandatory pre-bid meeting. No challenges were made to the bid specifications by any bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order dismissing the protest filed by Petitioner. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (964) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1992.
Findings Of Fact In May, 1987, the Department contracted with B.P. Associates, then owner of the Bay Plaza facility, to lease space at that facility located in Brandon, Florida. A part of the bid conditions required extensive physical renovations of the facility which were being supervised by Coldwell Banker, a real estate brokerage and management firm serving as property manager and construction supervisor. Construction was begun in December, 1987. Mr. Burrwood Yost was hired by the Department as its Facilities Services Manager for the Tampa Region in March, 1988. Mr. Yost soon became dissatisfied with the work being accomplished under Coldwell Banker's supervision and the company's responsiveness to maintenance problems arising at the facility, which the Department had asked to be corrected. As a result of this dissatisfaction with Coldwell Banker's demonstrated inability to properly perform, Mr. Yost recommended that the bid award to B.P. Associates be withdrawn and that the procurement be relet. On June 17, 1988, the bid award to B.P. Associates was withdrawn. On June 1, 1988, however, shortly before the withdrawal of the prior award, ownership of Bay Plaza was transferred to Northern which immediately substituted a new property manager and construction supervisor for Coldwell Banker. The new management firm was Grubb and Ellis, which took over on September 1, 1988. New bids were solicited by invitation to bid on July 15, 1988 which called for approximately 27,122 square feet of leased space to be available by April 1, 1989. The bid invitation clearly stated that "all bids will be evaluated based on the award factors enumerated in the bid submittal form." This form outlined the bid procedure, listing award factors to be considered and specifying the precise amount of weight each factor would be given. Past performance was not listed as a basis for evaluation on the bid invitation form and Mr. Yost admits that past performance was not to be considered as a factor. Five bids were received of which three were deemed responsive. These were Bidder C, Northern; Bidder D, Turner Development Corporation; and Bidder E, Alderwood B. Northern's bid was the lowest of the three responsive bids by more than $2.00 per square foot over the life of the lease. Alderwood was the second lowest. Each of the bids was evaluated by a bid evaluation committee consisting of seven representatives from the various Department program offices that were to occupy the leased space. The chairman of the committee, Ms. Chipman, was placed thereon at the request of Mr. Yost, and was actually a supernumerary since the committee a originally constituted by Mr. Akridge, the Department's Facilities Services Manager Assistant in Tampa, was made up of only six members. A 100 point bid evaluation scale, which was included in the bid package furnished to each bidder, was to be utilized by the committee to evaluate each bid. Prior to beginning their evaluation duties, the committee members were walked through each proposed site, and in the briefing given by Department authorities, specifically advised that prior performance was not a criteria and should not be considered. When the committee members' evaluations were computed, Northern's bid for Bay Plaza received a score of 83.5. Alderwood's bid for its property was given a score of 87.9. Each evaluator rated Alderwood highest and the evaluation committee concluded that, consistent with the overall criteria which called for the lease to be awarded to the lowest and best bid that met program needs, Alderwood's bid was lowest and best. Consequently, the committee recommended that Alderwood receive the award even though Northern's bid for Bay Plaza was lowest in terms of total dollars involved. The bids were evaluated based on three major evaluation criteria. These were Fiscal Costs, Location, and Facility. The Fiscal Cost element was further broken down into three subcategories; rental rates, renewal rates, and moving costs. Northern received 25 points of the 25 available for rental rates because it offered the lowest rental rate. When reduced to present value, Northern's bid for the entire term of the lease was more than $600,000.00 below the next lowest bid and for the first nine years of the lease alone, was $336,799.00 lower. Alderwood was awarded 21.5 points for its rental rate submission. In the area of renewal rates, Northern was awarded 7 of 7 possible points and Alderwood was awarded 2. These awards were not computed by the committee or assigned by them. Instead, the scores were computed on the basis of a present value analysis accomplished in Tallahassee and were entered on the score sheet by Mr. Akridge, the Department's local supervisor for this procurement. Considering the moving costs, however, Alderwood outscored Northern by 3 to 2.7 points. This difference was attributed to an additional moving cost for the Bay Plaza site as opposed to the one move cost if the Alderwood site were chosen. To have the rehabilitation work done at Bay Plaza would have required a move to another location while the work was being done and another move back when it was finished. In the Alderwood case, the Department would move only once. The "Location" criteria also had three subcategories for consideration. They were, general area, in which both bidders received the maximum 10 points; public transportation at 5 points, and environmental factors at 15 points. In the area of public transportation, Alderwood received the full 5 points with Northern receiving 1.1. Department personnel considered the fact that bus service was available through the site at Alderwood, the stop being within wheelchair and walking distance of the building, as being more significant and of higher value than the proposed bus service envisioned in 1989 for Northern's facility which, at the time of the bidding, was not served by a bus. Bus company officials stated an intention to provide bus service to the area in the future. The environmental factors subcategory related to the physical characteristics of the building and the surrounding area and the effect of these factors on the "efficient and economical conduct of Department operations." In this subcategory, Alderwood received a higher score than did Northern's building because the committee was of the opinion the Alderwood facility would be more energy efficient. Current Department occupants of Northern's facility at Bay Plaza contended that because of the large expanses of glass, there would be more heat generated in the building in the afternoon. No official energy efficiency assessment was done of either building because both occupied less than 20,000 square feet. Consequently, the committee analysis here was based on the experience of some committee members and was neither scientific nor professional. The committee was also concerned with the potential for theft because of the large amounts of glass and was of the opinion that the Bay Plaza layout was "confusing." Neither of these judgements carry much weight, however. Another environmental factor considered by the committee concerned the parking availability at each facility. The committee was of the opinion that the layout at Northern's facility was not good. It was long and extended. Staff also was concerned that the several access doors to the Northern facility could cause clients to become confused. More important, however, was their concern that due to the several entrances to the building, it would be difficult to control entry. Alderwood's facility, on the other hand, provided a central entrance for each building and it was felt this would allow tighter security control for the safety of the building occupants. The committee was also impressed by the fact that Alderwood's facility provided a play area for clients' children, and felt that Alderwood's landscaping was more appealing. The rating of Alderwood's handicap access as high, is important. Turning to the third major bid criterion, Facility, Northern's facility was awarded 16.3 points of a possible 20 for layout/utilization while Alderwood's was awarded 18.7 points. For the subcategory, single building, Northern's facility received 6.7 points out a possible 10 and Alderwood's facility was awarded 8.1. As for the final subcategory, street level, both facilities were awarded 5 points. As for layout/utilization, one committee member, Chipman, awarded Alderwood more points because it provided a separate entrance for each program, because it provided covered walkways for weather protection, and because there was less of a "maze" effect in that facility due to its square configuration. This last factor was of concern to other committee members who rejected the idea of clients having to walk through offices to get to the different programs. The wider hallways and better access for handicapped, as was stated previously, were also considered positive factors for Alderwood. Neither facility offered the single building which was a desired characteristic, Mr. Akridge, however, advised the committee in his preparatory briefing that since neither bidder offered a single building facility, the committee could award points on the layout of the multi-unit facility based on the relationship of the individual components to each other. At least two committee members, Chipman and Collins, rated Alderwood's facility better and awarded more points because they felt the layout of that facility allowed a more advantageous grouping of programs within the units. There is substantial evidence, however, that the information furnished the committee was neither complete nor in all cases accurate. Once the committee completed its evaluation, Mr. Akridge tabulated the scores and prepared a "request for bid award" letter dated September 21, 1988 for transmittal to Department officials in Tallahassee. The letter was prepared to report the committee recommendation for the award to Alderwood and to explain why the recommendation was made to award to that bidder as opposed to the low bidder. Review of this letter clearly reflects that Mr. Akridge and the committee were concerned with past performance at the Bay Plaza facility. When Mr. George Smith, a senior management analyst for the Department in Tallahassee received Mr. Akridge's letter, recognizing the possible appearance of consideration of an improper factor, he requested that Mr. Akridge seek and provide more justification for the committee's findings. While Mr. Smith contends he did this because of his concern over costs, the fact remains that Akridge's letter of September 21 did mention past performance which was an invalid consideration. Mr. Smith asked Mr. Akridge to prepare another memo giving additional information about such things as bus service, the difference in rental rates, the building layouts and locations and those factors which the users of the proposed facility, those individuals who were on the committee from the using organization, felt were important to them in the effective accomplishment of their jobs. Mr. Smith clearly indicated he recognized that past performance is not a valid point for consideration and that it would play no part in his analysis of the bids preparatory to making final recommendation for award. In response to Mr. Smith's direction, Mr. Akridge prepared another memorandum dated September 30, 1988. Though by far the greatest portion of this memo is a detailed comparison of the two facilities and the concerns of the committee regarding them, the first paragraph, (1 A) refers to the failure of the former leasing agent to obtain state fire marshal approval and a reference to concern that in light of the fact that Northern is an absentee owner, there might well be a return to slow response times experienced under the prior management contract. Though Mr. Smith recognized that the September 30 memorandum again made reference to prior performance, experienced as he was in the procurement of facilities, he also recognized that "that was not a part of the evaluation criteria" and "basically, just disregarded that." Thereafter, the award was made to Alderwood. Petitioner contends that whether consciously or unconsciously, past performance of Northern's predecessor in ownership influenced the evaluation and bid review process thereby placing Northern at a competitive disadvantage to Alderwood. There is evidence in the record to indicate this conclusion, may be justified. Mr. Yost, the Facilities Services Manager, admits that he was dissatisfied with the performance of the prior management of the Bay Plaza facility and it was because of this dissatisfaction that the decision was made to recommend withdrawal of the prior award and a new bid invitation. Though he claims he deliberately kept himself out of the re-bid process, the evidence indicates that he oversaw it from the beginning and was present and/or involved in almost every part of it. The invitation to bid utilized his name; he attended the pre-bid conference and injected himself into the process by answering questions of bidders; he personally reviewed each bid upon receipt with Mr. Akridge; and, though he turned the committee selection over to Mr. Akridge, specifically requested that a nominee of his own choosing, Ms. Chipman, be appointed. Ms. Chipman, to whom Mr. Yost had previously spoken regarding his dissatisfaction with the prior Bay Plaza operation, was appointed as the seventh member of a committee originally scheduled to have only six members and served as the chairperson thereof. It is also significant to note that while the committee was in session evaluating the bids, Mr. Yost came into the committee room and met with the members while the deliberation process was going on. This creates a definite appearance of impropriety. After the protest was filed by Northern's agent, on November 8, 1988, Mr. Akridge, on behalf of the Department, met with members of the evaluation committee and representatives of Alderwood. During this meeting, the Department representatives explained to Alderwood how they wanted the layout of the facility to be accomplished and directed the architect who was present to prepare preliminary design plans. This appears to have been in contravention of provisions of a Department rule, (10-13.011(2)(a), F.A.C) which calls for the contract award process to be stopped until the protest is resolved. The evaluation criteria, found on page 16 of 17 of the Bid Submittal Form at subparagraph 1A, states that rental rates for the basic term of the lease, evaluated testing a present value methodology at a discount rate of 8.31 percent, would constitute 25 percent of the total evaluation criteria. This requirement was not appropriately applied in this case. The points included on each committee member's evaluation form for this category do not correlate to the present value rates furnished by the Department. Whereas Alderwood's bid was 21 percent higher than Northern's when reduced to present value, Alderwood received 86 percent of the rental rate points given Northern instead of 79 percent of Northern's points as it should have received. As a result, Northern did not receive the appropriate weight for its rental rates points as compared to it's competitor, Alderwood. In addition to the above, there are several examples indicating that points given by the committee were awarded based on inaccurate assumptions, unreliable information, or speculation. These include a failure to recognize that the windows at Bay Plaza are tinted; an inaccurate belief by one committee member that Alderwood's buildings are closer together than Northern's; a failure to properly apportion points by a committee member in the area of public transportation on the mistaken belief that Northern's facility would not have bus service; a mistaken belief that hallways at the Northern facility could not be widened when, in fact, Northern had agreed to renovate the entire facility including the hallways to whatever design the Department requested, (in this regard, Mr. Akridge properly advised the committee it should assume for the purpose of evaluation, that Northern would widen the Hallways if requested) ; the possible improper award of points for moving costs when no information on actual costs was available; a failure by the committee to recognize that major construction planned for in front of the Alderwood facility would hinder what the committee considered that building's better access; a failure to recognize that bid specifications required a security system be installed in any facility leased which would minimize if not eliminate the theft risk; and a lack of information regarding crime rates, police patrols, night lighting, and the nearness of police facilities to the buildings in question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the intent to award lease no. 590:1853 to, Alderwood B. Partners, Limited, be withdrawn; that a new evaluation committee be appointed to review the bids submitted by the responsive bidders; that this committee be properly briefed as to the requirements of their task and the appropriate standards to be applied thereto; and that the Department thereafter issue an award to the lowest and best bidder as determined by this evaluation committee. RECOMMENDED this is 15th day of March, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalpachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5325BID 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. BY PETITIONER; Accepted and incorporated herein. Accepted and incorporated herein. First sentence accepted and incorporated herein. Balance accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but more in the form of argument than as Finding of Fact. The paragraph is redundant to other evidence already considered. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and as to substance, incorporated herein. BY THE RESPONDENT; & 2. Accepted and incorporated herein. Accepted. - 6. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. - 12. Accepted and incorporated herein with comment. Redundant to 12. Accepted and incorporated herein. Accepted and incorporated herein. & 17. Accepted and incorporated herein though 17 is redundant to 16. Accepted and incorporated herein as to the fact that bus service is planned for the Bay Plaza facility in 1989. Accepted with the exception of that portion dealing with Mr. Yost's having nothing to do with the evaluation of the bid which is rejected. Accepted but irrelevant. Accepted and incorporated herein. Accepted and incorporated herein. Accepted with the exception of the disclaimer of Mr. Yost's participation in the selection of committee members. Accepted and incorporated herein. Accepted. Accepted with the exception of the last sentence which is not a Finding of Fact but a recitation of testimony. First sentence rejected as a recitation of testimony. The second sentence is accepted. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a recitation of evidence contained in Mr. Smith's deposition. Not a Finding of Fact. Accepted and incorporated herein. COPIES FURNISHED: Mark A. Brown, Esquire Carlton, Fields, Ward, Emmanuel, Smith, Cutler & Kent, P.A. Post Office Box 3239 Tampa, Florida 33601 Richard Candelora, Esquire Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. Post Office Box 1102 Tampa, Florida 33601 Jack D. Farley, Esquire DHRS District Six Legal Office 400 West Buffalo Avenue, Room, 500 Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire DHRS General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether the Barton-Malow Southern, Inc., deviated from the bid requirements, and if so, whether such deviation consists of a minor deviation which may be waived by the respondent, or whether Ron A. Royal, Inc., should be awarded the elementary school "C" project as the lowest responsive bidder.
Findings Of Fact On April 20, April 27, and May 4, 1986, the Board advertised its Notice of Call for Sealed Bids, soliciting bids for the construction of Elementary School "C". The notice advised that the contract to be awarded would require approval of subcontractors by the Board and stated that the Board "reserves the right to reject any and all bids received and to waive any and all informalities in regard thereto." A pre-bid conference was held on May 15, 1986, at which time the potential bidders were advised that page 14 of the bid documents entitled "List of Subcontractors" would be deleted and addendum #1 would include a more specific list of subcontractors to be completed by the bidder. The original list of subcontractors stated: The undersigned, hereinafter called "Bidder", list below the names of all the subcontractors who will perform under the Bidder. Any work item (Trade) not included will be assumed by the owner as being performed by the Bidder's own forces." A space was provided for the bidder to state the work item and the name of the subcontractor who would perform the work. Addendum #1 instructed the bidders to delete the original page C.14 and insert the enclosed sheet C.14 (addendum #1) "List of Subcontractors" for submission with the sealed bids. The substituted list of subcontractors provided as follows: The undersigned, hereinafter called "Bidder", lists below the names of the subcontractors who will perform under the Bidder. In the event the general contractor will perform one of the phases listed with his own personnel, he shall state by "general contractor". The form listed 20 specific areas of work, such as site work, iron and steel work, roof decks, and electrical, and provided a space for the bidder to fill in the firm name and address of the subcontractor for each specific area. Bids were submitted to the Board by nine (9) general contractors. The lowest bid by $310,000, was submitted by Barton-Malow; the second lowest bid was submitted by Royal. On the list of contractors submitted with Barton Malow's bid, Barton- Malow listed "G.C". (General Contractor) for the work areas described as site work, concrete work, masonry work iron and steel work, and lathing and plastering. Barton-Malow listed a subcontractor and "G.C." for phases described as hard tile and electrical. For the work areas described as "roof decks" and "roofing and sheet metal" three (3) subcontractors were listed for each of the areas. The list submitted by Royal with its bid provided that the concrete work would be performed by the general contractor and listed a single subcontractor for each of the other 19 areas of work specified. Barton-Malow was the only bidder who listed multiple subcontractors for a specified work area. In the blanks provided for the subcontractors' addresses, Royal listed the city where each subcontractor was located; Barton-Malow did not provide any addresses bout stated at the top of the column "will be advised upon request." None of the bidders provided street addresses for the subcontractors, however, only one bidder other than Barton Malow failed to provide the city in which the subcontractor was located. Immediately after the bids were opened and read, 1/ the meeting was adjourned and Mr. Derryberry, Mr. Collins, and two other people reviewed the bids. Mr. Derryberry concluded that the Barton-Malow bid was not in compliance with the bid requirements due to the manner in which Barton-Malow had filled out the subcontractor list. Mr. Derryberry therefore recommended to the Board that the Barton-Malow bid be rejected because of the perceived irregularities and the bid of Royal be accepted. The recommendation of the architect was adopted as the recommendation of the school administration and presented to the Board at a public meeting on June 3, 1986. The Board received the report of the architect and the administration, heard from the attorneys and representatives of Barton- Malow and Royal, and then voted to waive any irregularities and accept the Barton-Malow bid. The original page C.14 was approved by the Board in about 1980 and used since that time. However, there had been some difficulty with that form on two different jobs within the last six months, and therefore it was decided to clarify the purpose of the form by specifically listing all the major subcontracting areas. The intent was to require all bidders to list the primary subcontractor in each of the major work areas, and thus prevent bid shopping after the bids were opened. The architect, Mr. Derryberry, prepared and included the amended form C.14 as part of Addendum #1 to the bid documents. Although the Board never formally approved the amended form, Mr. Derryberry had the authority to clarify any of the bid documents by addendum. Page C.14 (Addendum #1) lists 20 major subcontracting areas; however, in almost all of the areas it would be possible for more than one subcontractor to perform the designated work, and in several areas it would be unlikely that one subcontractor would perform all the required work. For example, site work includes paving, earth moving, culvert work, fencing, and irrigation, and one subcontractor would not normally do the work in all those areas. The amended page C.14 does not state that only one subcontractor should be listed for each specified work area. The bidders were not advised at the pre-bid conferences or subsequent thereto, that only one subcontractor should be listed in each category. The only information the bidders received regarding the list of subcontractors was the information contained on the revised page C.14. In other words, the bidders were simply directed to list "the names of the subcontractors who will perform under the Bidder", and to list general contractor when "the general contractor will perform one of the phases listed with his own personnel." In the subcontractor list submitted with their bid, Barton-Malow listed "Batten Electric Co./G.C." for the subcontract "Electrical", and listed "Bauer & Assoc./G.C." for the "Hard Tile" subcontract. The listing of a subcontractor and the general contractor in these areas is not a deviation from the bid requirements. There is no indication on the list submitted by Barton- Malow that the listing of a subcontractor and the general contractor in the hard tile and electrical categories meant anything other than both the subcontractor and the general contractor would perform the work required in those areas, and there was no evidence presented at the hearing that would require a different conclusion. 2/ Categories 5 and 6 on the subcontractor list are "roof decks" and "roofing and sheet metal." Although listed as two separate categories, the same subcontractor would have to perform both due to the bid requirements. Further only one subcontractor can perform the roofing work; it is not an area that is divisible into subcategories that can be performed by different subcontractors. For categories 5 and 6, Barton-Malow listed "H. H. Robertson/Architectural Exteriors/Commercial Roof Decks." As admitted by Barton-Malow, that all three subcontractors "will perform" the subcontract is an impossibility. 3/ From the list submitted by Barton-Malow it cannot be determined who will perform and be responsible for the roofing work. When asked at the hearing who was going to perform the roofing work for Barton Malow, the vice-president of operations for Barton-Malow responded, "One of those three would have done it." He indicated that a submission would have been made to the Board designating the subcontractor. By listing three subcontractors for the two roofing categories, Barton-Malow deviated from the bid requirements. The subcontractor list contained one basic requirement, that the subcontractors listed "will perform." By listing three subcontractors for the roofing, when only one subcontractor could performs Barton-Malow would be able to bid shop for subcontractors after the bid submission. This would give Barton Malow a definite advantage over the other bidders who complied with the bid requirements and listed only the one contractor who would perform the work. The other bidders would be bound to use the subcontractor listed and therefore, would be unable to negotiate for a better price after obtaining the contract. However, by listing multiple subcontractors, Barton-Malow would be able to negotiate for a better price because it had not committed itself to any one subcontractor. In five categories, site work, concrete work, masonry work, iron and steel work, and lathing and plastering, Barton Malow listed general contractor. About an hour after bid opening, Mr. Derryberry called Mr. Polso, the Vice- President of Operations for Barton-Malow, to inquire about the bid because it was so much lower than the other bids. Mr. Polso assured Mr. Derryberry that there had been no mistake in the amount bid. Mr. Derryberry then asked about the listing of general contractor for the iron and steel work because he had never known of a general contractor doing that type of work. Mr. Polso stated that he had not had time to determine the low bidder in that category and was still getting prices. He also said that Barton-Malow would not be doing the lathing and plastering. However, when Mr. Derryberry advised that he was recommending that the bid be disqualified due to the incompleteness of the subcontractors form and asked whether Barton-Malow wished to withdraw its bid, Mr. Polso stated that Barton-Malow had no intention of withdrawing its bid. Subsequently, Mr. Polso met with Mr. Derryberry and Mr. Collins at the school offices and advised them that Barton-Malow had every intention of performing the work where general contractor had been listed. Barton-Malow is a wholly owned subsidiary of Barton Malow Company and has the resources of Barton-Malow Company available when necessary. In 1985, Barton-Malow did between 60 and 70 million dollars of construction work; Barton- Malow Company had a dollar volume of 600 million dollars. Barton-Malow has the capacity to perform work in the areas where it listed general contractor. Barton-Malow prepares its bid by estimating the value of the total project and the value of the majority of the specific trades involved. If Barton-Malow does not receive a bid from a subcontractor that it feels is competitive in a particular trade area, it performs that work itself. The C.14 (Addendum #1) form permitted a bidder to list "general contractor" in any or all subcontract areas in which it would perform the work with its own personnel. Once the bids are opened, the bidder cannot unilaterally substitute a subcontractor for the general contractor. The general contractor would be required to do the work unless it received authorization to substitute a subcontractor based upon a showing of good cause. The evidence does not support a finding that Barton-Malow was incapable of performing the work in the areas in which it listed "general contractor." Therefore Barton- Malow did not deviate from the bid requirements by listing "general contractor" in five of the twenty specified areas. Although Baron-Malow deviated from the bid requirements by failing to list any addresses on its subcontractor list, this was a minor irregularity which did not give Barton-Malow any competitive advantage over the other bidders. In Division C, Article 5, Section 5.3.1., the bid documents provide: It is the intent of the owner to award a Contract to the lowest responsible Bidder provided the Bid has been submitted in accordance with the requirements of the Bidding Documents....The Owner shall have the right to waive any informality or irregularity in any Bid or Bids received and accept the Bid or Bids which in his judgment, is in his own best interests.
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.
Findings Of Fact In February 1994 the School Board, by and through its design consultants, W. R. Frizzell Architects, Inc., and, more particularly, its project architect, Byron Tramonte, issued plans, specifications, and related contract documents associated with additions, remodeling, and reroofing of John F. Kennedy Middle School, Palm Beach County, Florida. At a pre-bid conference conducted at the project job site attended by representatives of the School Board, its consultants, as well as representatives of Petitioner, Respondent, and Intervenor, among others, Petitioner's Greg Hill questioned the sufficiency of the drawings with respect to the earth work requirements associated with Alternate 1. As a result of this inquiry, the owner's design consultant issued Addendum 2 (including an as-built drawing) dated February 23, 1994, which was ". . . made available for grading estimates." The drawing attached to Addendum 2 had two sets of elevation numbers on it. One set of elevation numbers were underlined. The clearest of the underlined numbers were difficult to read. Many of the underlined numbers were impossible to read. The other set of elevation numbers on the subject drawing were boxed. The boxed numbers were all clear and legible. In view of the purpose for which the drawing was attached to Addendum 2, the most logical interpretation of the drawing was that the boxed elevation figures represented the existing elevations. The drawing attached to Addendum 2 also included some circled handwritten information. In large letters the circled information read: "JFK MIDDLE SCHOOL AS BUILT EXIST. ELEV." Immediately below in smaller letters it read: "Note: The 2 softball fields were not constructed. 2/23/94." The circled handwritten information was to some extent ambiguous. But it was an ambiguity that could be resolved by careful site inspection. Careful site inspection would have revealed that the boxed numbers corresponded to existing site conditions and that the underlined numbers, to the extent they were legible, did not. Petitioner's Vice President Greg Hill was primarily responsible for the preparation of the portion of the Petitioner's bid relating to Alternate 1. Greg Hill visited the job site during the prebid conference and also visited the job site on one other occasion after receiving Addendum 2, but before submitting the Petitioner's bid. Greg Hill is an experienced estimator with respect to matters involving the type of work encompassed by Alternate 1. In spite of his experience and in spite of his two pre-bid site visits, Greg Hill misinterpreted the architect's intent and used the underlined elevations on the drawing attached to Addendum 2 as a basis for estimating portions of the work associated with Alternate 1. As a result of this mistake Greg Hill reached erroneous conclusions about the amount of fill that would be required and substantially overestimated the amount of fill. This mistake caused the Petitioner's bid for Alternate 1 to be somewhat higher than it would have been if Greg Hill had based his estimates on the boxed elevation numbers. A similar mistake was made by CSR Heavy Construction-North, Inc., a company that was seeking work as a subcontractor on Alternate 1. On the last day for submitting bids on the subject project, the Intervenor received an unsolicited bid from CSR Heavy Construction-North, Inc., to perform some or all of the work encompassed by Alternate 1. CSR's bid was much higher than the Intervenor's proposed bid for that work, which caused the Intervenor's President to become worried that perhaps he had misinterpreted the drawings attached to Addendum 2. Intervenor's President called the School Board Architect and asked for confirmation of his interpretation to the effect that the bidders should base their estimates on the boxed elevation numbers on the drawing attached to Addendum 2. The architect confirmed that the Intervenor's President had correctly interpreted the drawing. The architect did not call any other potential bidders to tell them they should use the boxed numbers because he thought it was obvious that all potential bidders should use the boxed numbers. The bids for the subject project were opened on March 3, 1994. The Petitioner was the apparent responsive low bidder for the base bid. The Intervenor was the apparent responsive low bidder taking together the base bid and the bids on Alternates 1 and 2. The School Board published notice of its intent to award a contract to the Intervenor for the base bid and Alternates 1 and 2. The Instructions To Bidders portion of the subject bid specifications included the following provisions: BIDDER'S REPRESENTATIONS: Each Bidder, by making his Bid, represents that he has read and understands the Bidding Documents. Each Bidder, by making his Bid, represents that he has visited the site and familiarized himself with the local conditions under which the Work is to be performed. BIDDING PROCEDURES: * * * 3.11 Familiarity with Laws: The Bidder is assumed to be familiar with all Federal, State and Local Laws, Ordinances, Rules and Regulations, that in any manner affect the Work. Public Contracting and Purchasing Process Florida Statute, Section 287.132-.133 (Public Entity Crimes) is applicable. Ignorance on the part of the Bidder will in no way relieve him from responsibility. * * * 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. * * * BID PROTEST PROCEDURES: * * * 10.02 The Bid Documents/"Advertisement tol Bid" will be posted in the office of thel Department of Capital Projects at the time of the solicitation to Contractors. Any person who is affected adversely with respect to the Bid Documents shall file a notice of protest in writing within seventy-two (72) hours after the receipt of the Bid Documents, and SHALL FILE A FORMAL WRITTEN PROTEST WITHIN TEN (10) DAYS AFTER THE DATE HE FILED THE NOTICE OF PROTEST. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120. It is important to the proper functioning of the public works bidding process that all bidders be treated alike. To this end, important information furnished to one potential bidder should be furnished to all other potential bidders.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board enter a Final Order in this case dismissing the protest of the Petitioner and awarding a contract to the Intervenor for the base bid and Alternates 1 and 2. DONE AND ENTERED this 17th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 17th day of May 1994. APPENDIX The following rulings are the specific rulings on all proposed findings of fact submitted by all parties: Findings submitted by Petitioner. Paragraphs 1 through 5: Accepted in whole or in substance. Paragraph 6: Rejected as not completely accurate. The practices described are common, but not universal. Drawings usually have a legend to explain the difference between existing elevations and elevations to be achieved. Paragraph 7: The first sentence of this paragraph is rejected as contrary to the greater weight of the evidence. The remainder is accepted in substance. Paragraph 8: The first sentence of this paragraph is rejected as constituting subordinate and unnecessary details. The last sentence of this paragraph is rejected as constituting inferences or arguments not supported by the greater weight of the evidence. Paragraphs 9, 10, and 11: Accepted in substance, but with some modifications in the interest of clarity and accuracy. Paragraph 12: Rejected as contrary to the greater weight of the evidence. Paragraph 13: Accepted in part. Accepted that if the Petitioner had used the boxed elevation numbers, it's proposal on Alternate 1 would probably have been substantially lower. The remainder of this paragraph is rejected as speculation Paragraph 14: Rejected as not fully supported by competent substantial evidence and as, in any event, subordinate and unnecessary details. Paragraph 15: Rejected as constituting primarily argument, rather than proposed findings of fact. To the extent the material in this paragraph purports to be factual, it tends to be contrary to the greater weight of the evidence. The greater weight of the evidence is to the effect that there were no ambiguities in Addendum 2 that could not have been resolved by careful site inspection. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as contrary to the greater weight of the evidence; careful site inspection would have confirmed that the boxed numbers represented the existing elevations. Paragraph 19: Accepted. Paragraph 20: Rejected as speculative and as not supported by persuasive competent substantial evidence. Paragraph 21: Rejected as constituting a proposed ultimate conclusion of law, rather than a proposed finding of fact, and as, in any event, a conclusion that is not warranted by the evidence. Findings submitted by Respondent. Paragraphs 1 through 8: Accepted in whole or in substance. Paragraph 9: Rejected as constituting subordinate and unnecessary details. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as constituting subordinate and unnecessary details. Paragraph 12: Rejected as constitution a proposed ultimate conclusion of law, rather than a proposed finding of fact. (The conclusion is warranted, but it is a conclusion nevertheless.) Findings submitted by Intervenor: (No separate proposals; the Intervenor adopted the proposed findings of the Respondent.) COPIES FURNISHED: Robert A. Rosillo, Esquire School Board of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813 Alan C. Brandt, Jr., Esquire Leiby, Ferencik, Libanoff and Brandt Suite 400 150 South Pine Island Road Fort Lauderdale, Florida 33324 Richard B. Warren, Esquire Kelley, Aldrich & Warren, P.A. 801 Spencer Drive West Palm Beach, Florida 33409 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
The Issue Whether the Petitioner was the lowest responsive bidder in Lease No. 590:1975, and therefore entitled to the contract award.
Findings Of Fact In 1988, the Department made the determination that it would not exercise its option on leased space owned by the Petitioner Dyess, in Clewiston, Florida. Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. The Department included Dyess in its solicitations. He was sent an Invitation to Bid for Existing Facilities by the Department. This bid package contained all of the bid documents for the bid referred to as Lease Number 590:1975. The Invitation to Bid was issued by the Department for approximately 7,962 square feet of net rentable office space in Clewiston, Florida. The invitation was prepared using HRS Facilities Form R01-87. The form used by the Department for soliciting and accepting competitive proposals for the leased space was required to comply with all conditions and requirements adopted by the Department of General Services, as set forth in Rule 13M-1.015(3)(e), Florida Administrative Code. The Department of General Services is the agency which administers real property leasing for the State of Florida for leased space of 2,000 square feet or more in privately owned buildings. During the bidders' conference held on April 26, 1988, Mr. Michael J. Sedgwick, the agency's representative, was questioned about the agency's interpretation of the term "dry and capable of being physically measured" which is set forth on page two of the Invitation to Bid and page three of the Bid Submittal Form. Page two of the Invitation to Bid is a glossary which defines various terms used within the bid documents. The term "existing building" is defined as follows: To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rental square footage at the time of the bid submittal. Paragraph 10 on page three of the Bid Submittal Form reiterates the definition of an "existing building" as set forth in the Invitation to Bid. The language in the bid documents which defines the term "existing building" is identical to the language in Form BPN 4136, which has been promulgated as a rule by the Department of General Services as the format for specifications for the solicitation of leased spaces by the State of Florida. In response to the request for an interpretation, Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for the Department in Tallahassee, and obtained the following definition: "Dry and measurable" consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress. The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988. The Petitioner timely submitted a bid in Lease Number 590:1975 on the Department's Bid submittal Form by May 24, 1988. On page three of this form, each bidder was required to acknowledge the bid requirements contained on that page by placing his initials in the bottom right hand corner. The Petitioner Dyess acknowledged the requirement that the proposed space must be an "existing building" at the time of the bid submittal. On May 24, 1988, the date of the bid opening, Petitioner's building did not meet the requirements of an existing building as defined within the bid documents or the Department's verbal clarification of the definition. The building did not have a roof, a slab, or a valid building permit. After the bids were opened, the District VIII Bid Evaluation Committee visited each of the proposed lease locations. When the Petitioner's proposed location was reviewed by the committee two days after the close of bids, the addition was found to consist of the following: two partially completed block walls which connected the two existing buildings. The existing buildings were still intact, but it was apparent that an expansion was taking place, and that the completed project would be one building. A slab had not yet been poured in the addition, and it was without a roof. The plans submitted to the Department with the Petitioner's bid suggested that this expansion was capable of producing the square footage required by the Department. The City of Clewiston was aware of the Petitioner's expansion project, but he was not required by this authority to have a building permit at the time the project was viewed by the committee and evaluated by the Department. The Petitioner's bid was rejected by the Department because, on the date of the bid submittal, the proposed addition was not an "existing building" as defined by the bid documents and the further verbal interpretation by the agency. The bid submitted by the Intervenor Tibbetts did not contain the complete contract for the purchase of the property. However, the right to purchase was evidenced by a document submitted with the bid. Full Disclosure Statements of Ownership are not required under Rule 13N-1.015, Florida Administrative Code, until after a bid is awarded. The property was not properly zoned at the time of the Intervenor Tibbetts' bid submittal.
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, I hereby note the following findings of fact: Notice and Invitation to Bid on State Project Number 72001-3448 (the project) was extended to various contractors by the Respondent, Department of Transportation, on August 1, 1985. Sealed bids on the project were opened August 28, 1985. The scope of the project involved cleaning and painting the structural steel of the Buckman Bridge over the St. Johns River in Jacksonville, Florida. (State Bridge Numbers 720249 and 720343). The bids were opened and Petitioner was the apparent low bidder on the project with a bid amount of $193,000. The Department of Transportation, on October 2, 1985, rejected all bids "due to error in quantities in plans." According to the contract plans and specifications utilized by the Department of Transportation for the project, the beams, girders, bracing and trusses were composed of 2,540 tons of structural steel. The plans were in error and the tonnage of structural steel was less than 2,540 tons. Petitioner, upon visiting the job site as required, immediately recognized that there was less steel in the bridge than shown in the plans. In submitting and formulating his bid, the Petitioner considered the amount of work and materials which would actually be required to complete the project. 6 Prior to the bids being posted on the project, the Department of Transportation discovered that the amount of structural steel noted in the plans was grossly overestimated. On October 2, 1985, the Department of Transportation notified bidders in writing that all bids submitted on the project were rejected and that the plans would be revised and the project relet.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the petition of Industrial Enterprise Sandblast and Painting, Inc., protesting the rejection of all bids on State Project No. 72001- 3448, be dismissed. DONE AND ORDERED this 11th day of December 1985 in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December 1985. APPENDIX Respondent's Findings of Fact FINDING RULING Accepted; see Recommended Order paragraph 1. Accepted; see Recommended Order paragraph 2. Accepted, but not included because subordinate. Accepted; see Recommended Order paragraph 4. Accepted; see Recommended Order paragraphs 3 and 6. Accepted; see Recommended Order paragraphs 3 and 6. Accepted; see Recommended Order paragraph 6. COPIES FURNISHED: HONORABLE THOMAS E. DRAWDY, SECRETARY DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 A. J. SPALLA, ESQUIRE GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION 562 HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 LARRY D. SCOTT, ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301-8064 INDUSTRIAL ENTERPRISE SANDBLAST & PAINTING, INC. P. O. BOX 1547 1502 FOX RUN DRIVE TARPON SPRINGS, FLORIDA 32486-1547
