The Issue Is the Department of Corrections' proposed award of Project SK-25-WW to Shaw Construction and Management Services, Inc., contrary to the Department's governing statutes, rules or policies, or the bid or proposal specifications?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: In April 1997, the Department advertised for bids for construction of wastewater treatment plant upgrades at Polk Correctional Institution (Project). The engineering firm of Hartman and Associates, Inc. (Hartman) was the Department's professional consultant on the Project and was responsible for designing, permitting, bidding, and construction supervision. Hartman's project manager was Timothy Hochuli. In April 1997, after the Project Manual was completed and ready for distribution, Hochuli furnished Clayton Campbell, the Department's project manager, a copy of the advertisement for publication in the Florida Administrative Weekly, the official publication for projects that are bid by the Department. The copy of the advertisement furnished to Campbell indicated that a pre-bid conference was mandatory. After some discussion between Hochuli and Campbell, it was decided that the advertisement would not contain the requirement for a mandatory pre-bid conference but only that there would be a pre-bid conference. Thereafter, the advertisement was placed in the Florida Administrative Weekly without the mandatory pre-bid conference requirement. Hochuli did not delete the requirement for a mandatory pre-bid conference in the Project Manual, notwithstanding the advertisement in the Florida Administrative Weekly to the contrary. However, Campbell assumed that the requirement for a mandatory pre-bid conference had been removed from the Project Manual, and acted on that assumption until advised otherwise by Beach after the bid opening. The Advertisement for Bids that was placed in the Florida Administrative Weekly included the following relevant paragraphs: PROPOSALS: Bids must be submitted in full accordance with the requirements of the Drawings, Specifications, Bidding Conditions and Contractual Conditions, which may be examined and obtained from the: ARCHITECT/ENGINEER: HARTMAN & ASSOCIATES, INC.,. . . . * * * PRE-BID CONFERENCE: A pre-bid conference will be held on April 15, 1997 at the Administrative Building Conference Room at the Polk Correctional Institution. The Bidding Conditions were included in the Project Manual which was issued by Hartman. Section A of the Project Manual entitled "Advertisement for Bid" includes the following paragraph: PRE-BID CONFERENCE: A mandatory pre-bid conference will be held on April 15, 1997, 10:30 a.m. at the Administrative Building Conference Room at the Polk Correctional Institution. There was no reference to a pre-bid conference in Section B of the Project Manual entitled "Instruction to Bidders" or any other part of the Project Manual. Shaw learned of the Project through the April 10, 1997, Dodge Reports, a trade journal that publishes construction projects, which did not list the pre-bid conference as being mandatory. However, at least one other trade journal listed the pre-bid conference as being mandatory. The pre-bid conference was held as scheduled on April 15, 1997. All bidders, with the exception of Shaw, were represented at the pre-bid conference. At the pre-bid conference, Campbell and Hochuli gave an overview of the project, discussed concerns specific to the project and prequalification requirements, and answered questions. Certain questions were answered in an addendum to the Project Manual. A site visit, a requirement specified in the Project Manual, was also conducted by Campbell and Hochuli. Although Shaw did not attend this site visit, Shaw did make a site visit prior to submitting its proposal in accordance with paragraph B-9 of the Project Manual. 12 Shaw ordered the Project Manual from Hartman on April 21, 1997. After receiving the Project Manual, Shaw noticed that the pre-bid conference was mandatory. Shaw then contacted Hartman to determine if Shaw could bid on the Project since it had not attended the pre-bid conference on April 15, 1997. Shaw was advised by Hartman that it could submit a bid. Shaw did not request, nor did the Department or Hartman make an addendum to the Project Manual concerning the mandatory pre-bid conference. Beach, Shaw, and four others submitted bids on the Project which were opened at 11:30 a.m. on April 25, 1997. Shaw was the lowest bidder at $279,000, with Beach being the second lowest bidder at $297,000. Hochuli reviewed Shaw's bid; and based on Shaw's familiarity with similar projects of similar size, work references, and financial information, determined that Shaw could do the work required by the Project Manual, and thus recommended that the Department award the Project to Shaw. On June 6, 1997, the Department issued notice that it intended to award the contract to Shaw as the lowest responsive bidder. Beach, the apparent second lowest responsive bidder, timely submitted a notice of protest and a formal written protest, contending that Shaw was not a responsive bidder, in that Shaw had not attended the pre-bid conference. There is no evidence that Shaw's failure to attend the pre-bid conference affected the price of the bid, or gave Shaw an advantage or benefit not enjoyed by other bidders, or adversely impacted the interest of the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the protest of Petitioner Beach Construction Company, Inc., be dismissed. DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997. COPIES FURNISHED: Harry K. Singletary, Jr. Secretary 2601 Blair Stone Road Tallahassee, Florida 3399-2500 Louis A. Vargas General Counsel 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Donna P. Beach Qualified Representative Beach Construction Company, Inc. 4554 Southwest 41st Boulevard Gainesville, Florida 32608 Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Terry L. Shaw Shaw Construction and Management Services, Inc. 386 Pine Tree Road Lake Mary, Florida 32746
The Issue The ultimate issue to be determined in this proceeding is which of the bids submitted to the Department of Health and Rehabilitative Services in response to its Request for Proposal for office space and facilities in Arcadia, Florida, is the lowest and best response to the invitation. The Petitioner contends that the Intervenor's bid was not responsive to the Request for Proposal, and that even if the Intervenor's bid were considered responsive, that Petitioner's bid was the lowest and best response. The Intervenor contends that its bid was responsive and that it was the lowest and best response. The Department contends that it properly evaluated the responses and that the bid should be awarded to the Intervenor.
Findings Of Fact In order to provide services as required by various federal and state statutes, the Department of Health and Rehabilitative Services needs to maintain office space in or near to the city of Arcadia, Florida. The Department is presently leasing office space from C. W. Whidden, the Intervenor in this proceeding. The lease expires on November 30, 1982. The Department's space needs have expanded since the time that it entered into the lease for the existing facility. In order to meet the need for increased space and to continue with its present activities, the Department issued an "Invitation to Propose" inviting interested persons to submit bids for the required office space. Three persons responded to the invitation: Chuck Bundschu, Inc.; Martin M. McAllister, the Petitioner in this proceeding; and the Intervenor. The bid acquisition has been designated by the Department as Lease No. 590:1526. The Department formed a bid evaluation committee composed of five employees of the Department's District VIII office. The facility being acquired would be located within and serve people within the Department's District VIII. Members of the bid evaluation committee individually reviewed the three bids, and met together to form a consensus. On May 14, 1982, the committee generated a memorandum in which the three bids were given points in 12 separate evaluation areas. The Petitioner's bid was given 87 points, the Intervenor's bid was given 83 points, and the bid submitted by Chuck Bundschu, Inc., was given 75 points. The committee recommended that the lease be awarded to the Petitioner. The Department's District VIII Administrative Services Director, Frances Clendenin, was among the members of the committee. She was not satisfied with the committee's evaluation, and she communicated about it with Cindi Shaffer, the Department's Facilities Services Coordinator in Tallahassee. Shaffer agreed that the committee's evaluation had not been sufficiently objective, or at least that the evaluation did not adequately reveal that objective criteria were applied. She recommended to Clendenin that tangible factors be applied. She suggested that the most tangible factor was cost to the Department; and if cost was not a factor, that the committee should set out a detailed narrative statement in support of its conclusions that one bidder or another should receive more or less points in any given area of the evaluation. Clendenin interpreted these suggestions as meaning that all bidders should be awarded the same points in any area unless a specific cost to the Department could be identified so as to justify less points being given to any bidder. The committee conducted a second evaluation and concluded, based upon criteria directed by Clendenin, that the Intervenor's bid should be given 98 points, that Petitioner's bid should receive 90 points, and that the Bundschu bid should receive 81 points. Accordingly, the committee recommended that the lease be awarded to the Intervenor. This recommendation was accepted by the Department. Petitioner filed a timely bid protest, and this proceeding ensued. Chuck Bundschu, Inc., neither protested the bid award nor appeared in this proceeding. The Petitioner has contended that the bid submitted by Intervenor is not responsive to the specifications set out in the Invitation to Propose. The Invitation sets out the following evaluation criteria: The successful bid will be the one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Provision of the adequate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. Intervenor has proposed to provide the required aggregate square footage in three buildings. Two of the buildings are presently occupied by the Department under the lease which will soon expire. They are separated only by a five- or six-foot-wide concrete walkway which is covered. To get from one building to the other, one must merely open one door, cross the sidewalk, and open another door. While these are more than one building, they effectively serve as a single location in the same sense that two floors in a single building serve as a single location. The third building in Intervenor's proposal is located across a parking lot from the other two buildings, within 100 yards of them. Intervenor proposes to meet the aggregate square footage required by the Department through three buildings. The three buildings constitute two locations, however, which are within 100 yards of each other. The proposal thus meets the bid evaluation criteria and is not unresponsive to the Invitation to Propose. The evaluation criteria set out in the Invitation to Propose delineates 12 separate areas to be evaluated and designates a weighted point value to be assigned each area. The highest number of points that could be given was 100. The first area for evaluation is "rental rate including projected operating expenses." Twenty-five points are assigned to this area. The Intervenor's bid offered the lowest rental rate. Over the 10-year period of the proposed leases, Intervenor's bid is between $84,000 and $85,000 lower than Petitioner's bid. In its first report, the evaluation committee gave Intervenor 25 points and the Petitioner 21 points. In its second evaluation, Intervenor was given 25 points and Petitioner 17 points. The second evaluation more objectively sets out the difference in rental rate between the proposals and constitutes an accurate appraisal of the difference between the rental rates proposed by Intervenor and Petitioner. Petitioner sought to establish at the hearing that the Department would incur additional operating expenses under Intervenor's proposal which would not be incurred under Petitioner's proposal. Petitioner offered the testimony of an employee of the electrical utility that serves the area to the effect that electrical utility charges would be greater for Intervenor's facility than for Petitioner's. The evidence is not, however, credible. The witness estimated Intervenor's utility charges by tracing the past history of charges for the two buildings presently occupied by the Department and assuming that the third building would incur utility expenses at the same rate per square foot. The Petitioner has proposed to construct a new building. The witness estimated utility charges that would be incurred at Petitioner's facility by utilizing accepted formulas. The comparison is not appropriate in an evidentiary sense because of the different techniques used to estimate charges for the two facilities. Furthermore, the witness's assumption that utility charges in the Intervenor's third building would be consistent with those in the other two is not valid because the third building would not be utilized on a daily basis. Finally, the theoretical computations for Intervenor's building cannot be credited because such services as heating and required equipment were not included in the estimate. Petitioner sought to establish that the Department would incur increased operating expenses under Intervenor's proposal because an additional employee would be required for Intervenor's facility. This contention is not supported by the evidence. The Department's activities are presently being undertaken in the Intervenor's two buildings that are separated only by a sidewalk, and no additional employees are required because of the configuration. Petitioner sought to establish that the Department would incur higher janitorial charges under Intervenor's proposal than under Petitioner's. A janitorial service made an estimate of the amounts that it would charge for the Petitioner's proposed building and for the Intervenor's existing three buildings. The estimate assumed that the third building would be utilized on a daily basis by the Department. The evidence establishes, however, that the building would be used on less than a daily basis and only for a portion of those days on which it is used. The janitorial service estimates are therefore based upon an unsupported assumption. The second area to be evaluated is "conformance of space offered to the specific requirements contained in the Invitation to Bid." Twenty-five points are assigned to this area. In its initial report, the evaluation committee gave the Intervenor 20 points in this area, and the Petitioner 25 points. In its second evaluation, both bidders were given 25 points. The first evaluation reflects a concern with the fact that Intervenor's proposal was to provide the required square footage in three buildings, while Petitioner proposed to construct a new facility and to offer the square footage in a single building. The second evaluation reflected the committee's inability to assign a specific dollar amount to the inconvenience that would be caused by utilizing three buildings instead of one. Clearly, there are inconveniences that would result from use of three buildings rather than a single building. The operation would be less compact and therefore less efficient. Petitioner's proposal met the specific requirements in the Invitation to Bid with precision as might be expected from a facility which is designed specifically with the Invitation in mind. As also might be expected, Intervenor's facility, which was not developed with this specific Invitation in mind, does not conform as specifically with the requirements of the Invitation. The initial evaluation giving the Intervenor 20 points and the Petitioner 25 points for this area appropriately reflects differences in the bids offered by Intervenor and Petitioner and accurately assesses the difference through the point system. The fourth area to be evaluated is "provision of the aggregate square footage in a single building." Ten points are assigned to this area in the Invitation. In its initial report, the committee gave five points to the Intervenor and 10 points to Petitioner. In its second report, Intervenor was given eight points and Petitioner 10 points. The second evaluation reflects a more objective appraisal of the disadvantages of the three-building complex offered by Intervenor as compared to the one-building complex offered by Petitioner. The first evaluation represented too harsh a view of the inconveniences that would result from the three-building proposal. Some members of the evaluation committee felt that an additional employee would be required, which is not the case. Furthermore, the third building proposed by Intervenor, which is located across a parking lot, would be utilized only for storage of old files and as a conference room. It would not be used on a daily basis, and this minimizes the inconvenience that would result from its being located across the parking lot. It is appropriate that the Intervenor be given eight points and the Petitioner 10 points for this area of the evaluation. The fifth area to be evaluated is "susceptibility of the design of the space offered to efficient layout and good utilization." In its initial report, the committee gave Intervenor three points and the Petitioner five points. In its second report, both Intervenor and Petitioner were given five points. The first evaluation too harshly downgrades the effect of three buildings, and the second evaluation gives too little weight to it. It is appropriate that Intervenor be given four points and Petitioner five points for this area of the evaluation. The twelfth area of the evaluation is "moving costs." Two points are assigned to this area in the Invitation. In both of its reports, the evaluation committee gave Intervenor two points and Petitioner no points for this area. Given the fact that no moving costs would be incurred under Intervenor's proposal, and costs would be incurred under Petitioner's, this appears to be an appropriate evaluation. The third and sixth through eleventh areas to be evaluated under the Invitation for Bid are "proximity to clients," "environmental factors," parking," "street-level space," "transportation," "dining facilities," and "proximity to other Department activities." The evaluation committee's reports varied in insignificant respects, but the evidence demonstrates that, objectively, the Intervenor's and Petitioner's proposals are equal in each of these areas. A total of 33 points is assigned to these areas under the Invitation. Both Petitioner's and Intervenor's bids meet the requirements in these areas set out in the Invitation, and both should be given 33 points. In its initial report, the evaluation committee gave Intervenor 83 points and Petitioner 87 points. In its second report, the committee gave Intervenor 98 points and Petitioner 90 points. The first report did not reflect an appropriate scoring because too much penalty was assigned to Intervenor's three-building configuration. The second evaluation did not adequately downgrade Intervenor's bid because of the three-building configuration. When the points set out in the above findings are added, Intervenor's bid is given 92 points and Petitioner's bid 90 points. This numerical assignment accurately reflects the differences between the bids and the advantages that would accrue to the Department for accepting one bid or the other. The reduced price of Intervenor's proposal and increased efficiency of Petitioner's render the proposals very nearly equal in value to the Department. By a very narrow margin, the Intervenor's proposal is the lowest and best bid in response to the Invitation to Propose for Lease No. 590:1526.
The Issue Whether Respondent's rejection of all bids submitted in response to ITB-05-23-12, relating to a contract for annual elevator maintenance and repair services, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Respondent Florida School for the Deaf and the Blind is a state-supported residential public school for hearing-impaired and visually-impaired students in preschool through 12th grade. Access to the School is restricted for the protection of the students that are enrolled there. Visitors to the School campus must obtain credentials through a visitor identification badging system maintained by the Campus Police Department before they are permitted to enter. There are only two locations from which access badges may be obtained. The first is the Campus Police Department Communications Center and the second is the Campus Police Department Guardhouse at the Genoply Street gate. There are no off-campus locations from which badges may be obtained. Petitioner Traveler is a corporation registered with the Department of Business and Professional Regulation under the provisions of chapter 399, Florida Statutes, to construct, install, inspect, maintain, and repair elevators. Mr. Mark DeWitt is an owner of Traveler. Otis was the incumbent contractor providing service to the School's elevators, a position it had held for the last three years. On May 23, 2012, in Invitation to Bid 05-23-12 (the ITB), the School solicited competitive bids for the award of a contract to provide elevator maintenance, inspection, and repair services for elevators at various locations on the School campus (contract). The ITB was a one page document which stated: The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084 will receive bids in the Purchasing Department June 14, 2012, until 2:00 p.m. for the purpose of selecting an Elevator contractor for supplying all labor, material, and ancillary services required for the scope listed below. Scope of Project: The purpose and intent of this invitation to bid is to select Elevator contractor who is OEM certified and OEM trained to provide preventative maintenance (PM) services to elevators on a monthly schedule at various campus locations and who will deliver and install parts and provide emergency repair service for a period of (1) year with the option to renew additional years contingent upon availability of funding and satisfactory performance by the contractor. Licensing Requirements: All contractors must possess any applicable licenses required for this type of work per the State of Florida Department of Business and Professional Regulation. Mandatory Pre Bid Conference: A mandatory pre bid conference will be held at The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084, Hogel Building #27, Conference Room on June 7, 2012 at 10:00 a.m. All attendees will be checked through Campus Security, so allow ample time. Attendance at this pre bid conference is mandatory in order for all potential bidders to receive the benefit of answers to theirs and other's technical questions first hand. It is imperative that all the information be disseminated in a public forum with all potential bidders present to minimize confusion or misunderstandings. Additions or changes to the original bid documents resulting from this conference of a material nature will be documented in the form of written addenda and distributed to all attendees. Please note that if you are late to this mandatory pre bid conference you will not be eligible to sign the attendance roster and therefore may not submit a bid. Any person with a qualified disability requiring special accommodations at the pre bid conference and/or bid opening shall contact the Purchasing Office at 904-827- 2356 at least (5) working days prior to this event. If you are hearing or speech impaired, please contact this office by using the Florida Relay Services which can be reached at 1-800-955-8772. The Florida School for the Deaf and the Blind reserves the right to reject any and all bids and accept minor irregularities in the best interest of the State of Florida. Neither Traveler nor any other bidder filed a notice of protest to the terms, conditions, or specifications contained in the solicitation within 72 hours of the posting of this solicitation. As provided in the ITB, a pre-bid conference was held regarding the contract at 10:00 a.m. on June 7, 2012, in the Hogel Maintenance Building Conference Room. Mr. DeWitt and Mr. Jim Halstead, another owner of Traveler, arrived at the conference room about 9:40 a.m. They had taken about two minutes to pass through the security gate at the front of the campus, and about ten minutes more to then navigate the speed bumps, stop signs, and crosswalks to arrive at the Hogel Maintenance Building area and make their way to the conference room. Prior to 10:00 a.m. two cars, containing Mr. Joe Ramos and Mr. Max Stanley of Kone Elevators and Mr. David Baskin of Otis, were at the Campus Police Department Communications Center attempting to get access badges. Security Officer Victoria Cannon attempted to scan their identification cards to process them through the electronic visitor identification manager software, but the program was "frozen" on her computer screen and she was unable to do so. She attempted to "tinker" with the computer to get it to work, but was unsuccessful. She instead checked the visitors' identification and prepared the old handwritten badges that had been used prior to the electronic scan system. These were self-adhesive badges with a red background that the occupants of the vehicles put on their clothes. The old badges had not been used for about seven years, because the School had put in the electronic system to enhance security. A stock of the old badges had been maintained to use as a temporary backup if the electronic system went down. Officer Cannon testified that the men were "delayed a little" but provided no more specific estimate as to the length of time. When the three men left the Campus Police Department Communications Center, Officer Cannon then communicated with Security Officer Bruce Hardy in the guardhouse to let him know that the visitors had been approved for entry onto the campus, so they would not have to be run through the system at the guardhouse. Campus Police Chief Jerry Chandlee was at the police guardhouse on Genoply Avenue with Officer Hardy when the call to Officer Hardy from Officer Cannon came in. When the first vehicle arrived, Chief Chandlee saw the red temporary visitor ID badge. It was about 9:55 a.m. He decided that he wanted to issue the standard electronic visitor ID badge so that identification information would be collected electronically, as the system had been set up to do. The electronic information allows a check with the Florida Crime Information System and the National Crime Information System. Chief Chandlee then called Officer Cannon to find out why the men had been given the old red manual badges and learned that her computer had not been working correctly. The second vehicle arrived at the gate about 9:58 a.m. Chief Chandlee directed Officer Hardy to request driver's licenses again from all three men and to process them through the electronic system. Chief Chandlee said it only took about a minute to process each electronic identification card. Chief Chandlee learned when talking with the occupants of the second vehicle that the men were seeking entry to the campus to attend the pre-bid conference. Chief Chandlee was requested to make a courtesy call to the location of the bid meeting informing them that the men had been detained by security and might be late. Chief Chandlee apologized for the delay and asked Officer Hardy to make the call. When Officer Hardy called Administrative Assistant Donna Thompson to explain that bidders had been held up by the Campus Police Department, she replied, "Well, it's ten o'clock. So they need to hustle." Ms. Thompson was sitting inside her office. She did not immediately inform Ms. Laura Bowden, who was in charge of the pre-bid conference and was already inside the conference room with the door closed. Ms. Thompson decided to go to the building entrance to make sure that the men found the building without a problem. At about 10:00 a.m., the pre-bid conference was convened by Ms. Laura Bowden. She began by reading the contract. Also present at this time, in addition to Ms. Bowden, Mr. DeWitt, and Mr. Halstead, were several others: Mr. Harper Smith, representing ThyssenKrupp Elevators; Mr. Cliff Vaughn, Representing First Coast Elevators; Mr. Noel Fossette, representing Schindler Elevator; Mr. Jerry Arsenault, Facilities Superintendent for the School; and Mr. Dennis Baker, a Project Manager for the School. At the conference, bidders were provided a copy of a "pre-bid packet" containing additional information about the elevator contract. When the three men arrived at the Hogel Maintenance Building, Ms. Thompson was waiting for them. She opened up the building entrance door and waved, because they were about to pass by it, brought them inside the building, and escorted them over to the conference room door. Ms. Thompson then returned to her office. Ms. Bowden had read a couple of pages of the contract, when Mr. Ramos, Mr. Stanley, and Mr. Baskin came into the meeting. Ms. Bowden said, "You're late." As soon as she did so, Mr. Arsenault instinctively looked at the clock on the wall. He testified that it read 10:07 a.m. Mr. Baker also testified that it was seven or eight minutes past 10:00 when the men arrived. One of the men responded to Ms. Bowden's comment with the statement that police security had already called the secretary. Ms. Bowden left the conference room and went to Ms. Thompson's office. Ms. Bowden asked Ms. Thompson if she knew why the bidders had been late. Ms. Thompson explained that she had received a call from Officer Hardy, stating that the Campus Police had held them up there. Ms. Bowden thanked her and returned to the conference room. Once back in the conference room, Ms. Bowden restarted the meeting. She began reading the contract again from the beginning. No questions had been asked before the late arrivals, and there was no information that had been given earlier that was not repeated when the meeting was restarted. The late-bidders were allowed to sign the attendance roster. No one protested that late-bidders were allowed to attend the meeting, that the meeting was restarted, or that the late- bidders were allowed to sign the attendance roster. Ms. Bowden was aware that the ITB stated that any bidder late to the pre-bid conference would not be eligible to sign the attendance roster and could not submit a bid. However, based on the information she had from Ms. Thompson, Ms. Bowden decided that it had been the School's fault, and not their own, that the late bidders had not arrived at the conference room on time. She allowed the late-bidders from Kone and Otis to attend the pre-bid conference because under the circumstances she thought their late arrival was a minor irregularity. As indicated in the ITB, attendance at the pre-bid conference was mandatory to allow all potential bidders to receive the benefit of answers to their own and others' technical questions firsthand. Ms. Bowden had received no questions prior to the entry of the Kone and Otis representatives, and she started the meeting over to ensure that all bidders received the same information. On June 14, there was a public bid opening, which was attended by Mr. DeWitt of Traveler as well as Mr. Baskin and another representative of Otis, among others. Traveler could hear who the bidders were, and was aware that Otis had been allowed to submit a bid. At that time, Traveler made no objection that Otis had been permitted to bid. The School applied the same criterion to all bids when evaluating them. Rankings in various categories were combined pursuant to a weighted formula to arrive at a total weight for each bidder. In the overall ranking of the bids, Otis ranked first, while Traveler came in second. On June 18, 2012, at 9:30 a.m., the Bid Tabulation and Notice of Award Recommendation was posted. The School prepared and disseminated it to each of the bidders. It indicated that the School was recommending that the contract be awarded to Otis as the lowest responsive bidder. Traveler was listed as the second lowest bidder. Traveler e-mailed a Notice of Protest in response to the School's recommendation about 10:49 a.m. on June 18, 2012, followed the same day by a formal protest. As grounds for its protest, Traveler contended that Otis had been late to the pre- bid conference, and pursuant to the procedures set forth in the ITB should not have been allowed to sign the attendance roster or submit a bid. Ms. Bowden still believed the late arrival of Otis was a minor irregularity, but she could not know if an administrative law judge would necessarily agree. Traveler was contesting that conclusion, claiming that the failure of Otis was a material deviation from the explicit bid specifications and that the School was required to reject the Otis bid and award the contract to Traveler. She testified that if she had determined that the late arrival to the pre-bid conference by Otis had been a material deviation, and awarded the contract to Traveler, that she believed that Otis would surely have protested. After careful consideration and discussions with counsel, Ms. Bowden decided to reject all bids. On June 21, 2012, the School notified Traveler and the other bidders that it was exercising its right to reject all bids and re-bid the contract, at a yet undetermined date in the future. On June 22, 2012, Traveler e-mailed the School, objecting to FSDB's rejection of all bids and requesting that the matter be referred to the Division of Administrative Hearings. On July 10, 2012, Respondent filed a Notice of Compliance with Paragraphs 2 and 3 of the Order of Pre-Hearing Instructions, indicating that it had notified all bidders that if they wished to intervene they must file a Petition to Intervene at the earliest practicable date. No Petition to Intervene was received from any person prior to hearing. At hearing on July 26, 2012, Mr. Cliff Vaughn appeared and asked that he be allowed to participate, or in the alternative that a continuance be granted. Mr. Vaughn was a corporate officer of First Coast Elevator, the third-place bidder. Mr. Vaughn stated he supported the School's action in rejecting all bids. Mr. Vaughn admitted that he had received the notice requiring him to file a Petition if he wished to Intervene. No Petition had been filed by Mr. Vaughn and his appearance at hearing was the first time either party was aware of his interest. He was not eligible to represent his corporation in a "pro se" capacity. Given the statutory policy in favor of expedited hearings in bid protests, the granting of a continuance after the hearing had begun would not serve the public interest and would be unfair to the parties. His requests were denied. The School's rejection of all bids does not have the purpose or effect of defeating the object and integrity of the competitive bidding process and does not give an unfair competitive advantage to any bidder. The School's rejection of all bids is not illegal, arbitrary, dishonest, or fraudulent.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida School for the Deaf and the Blind enter a final order finding that the rejection of all bids submitted in response to Invitation to Bid 05-23-12 is not illegal, arbitrary, dishonest, or fraudulent, and dismissing Petitioner's protest. DONE AND ENTERED this 14th day of September, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2012. COPIES FURNISHED: Frank Damon Kitchen, Esquire Constangy, Brooks and Smith, LLC Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 dkitchen@constangy.com William David Talbert, Esquire Talbert Law Firm, P.A. Suite 202 1930 San Marco Boulevard Jacksonville, Florida 32207 talbertlawfirm@bellsouth.net Dr. Jeanne G. Prickett President of Florida School For the Deaf and Blind 207 San Marco Avenue St. Augustine, Florida 32084
Findings Of Fact During the month of March 1996, the Pinellas County School Board, pursuant to an advertised invitation for bids, (IFB), solicited bids for the construction of a new facility for John H. Sexton Elementary School (Sexton school). Each party submitting a bid was required to do so on a bid proposal form which was contained in the bid documents prepared by the project architect, Mr. Hoffman, and furnished to each prospective bidder who requested the bid package. One section of the bid proposal form related to "dewatering" potentially required at the construction site, and consistent with that potential two sentences were contained on the bid proposal form relating to dewatering of footings and of utilities, both of which provided for election by checking of an affirmative or a negative, and both of which had been pre-checked in the affirmative by the Board. It was the position of the Board that the pre- checked sentences as to dewatering on the bid proposal form constituted an acknowledgment by each bidder that that bidder's submittal included dewatering in the base bid. In addition to the check, the dewatering section also included blanks for the insertion by the bidder of figures representing lineal feet of header pipe and unit price per foot which figure would constitute a credit given by the bidder to the Board against the total bid price if dewatering were found not to be necessary, both as to footings and to utilities. Even further, the form also contained blanks to be filled in by the bidder for unit prices to be charged the Board in the event additional dewatering was required by virtue of the Board's later inclusion in the project of additional footings or utilities. Prior to the time for bid submittal, the Board conducted a meeting of all prospective bidders at which the project was explained and bidders given an opportunity to ask questions raised by the bid package. Johnson did not ask any questions regarding dewatering or that portion of the package relating thereto. Numerous bids were submitted in response to the proposal, including those from Johnson and Ellis. By stipulation at the hearing, the parties agreed that in all ways other than in that section of the bid proposal form for this project relating to dewatering, Johnson was and is a responsive and responsible bidder, as is Ellis. The bid proposals were opened by the Board at 2:00 PM on April 11, 1996 and the base bid prices on each proposal were read aloud to all in attendance by a Board representative. The project architect was present at the opening and tabulated and reviewed the bid proposals as opened. Johnson submitted the lowest base bid with a price of $7,965,000. The next lowest bid was that of Ellis, whose base bid price was $7,945,200. At the time of opening, no Board representative indicated anything was wrong with Johnson's bid Mr. Hoffman, the project architect, immediately noticed that Johnson had altered the Board's pre-checked bid proposal form by striking out the pre- checked "is" space regarding inclusion of dewatering in the base price of the two dewaterings, and making an X in each of the "is not" spaces. Mr. Hoffman considered that alteration by Johnson as a material alteration of the Board's solicitation which rendered Johnson's bid non-responsive. It must be noted that each change bears the initials, R. Y. Reza Yazdani is Johnson's president who initialed the changes and signed the bid proposal form for the company. In addition, Johnson also inserted a "0" in those spaces which dealt with amount of credit and cost of additional dewatering in the event additional work is required by the Board. In that regard, Hoffman opined that had Johnson not changed the check marks, but inserted the "0" figures as it did, the bid would have been responsive and Johnson would still have been lowest responsive bidder. The reason for this is that the bid form specifically notes that "the unit costs described in A & B above shall in no manner influence the School Board's selection of a firm to whom to award the Contract." The Board now recognizes that there is no part "B", as referenced in the proposal form. Since the "0's" would not influence the selection, use of an unmodified Board form, along with the lowest submitted base price would, in Hoffman's opinion, probably have meant that Johnson would have been awarded the contract. Johnson's representative, Mr. Mohme, who drafted the company proposal, specifically indicated he did not believe dewatering was a potential in this project. He recognized that such dewatering as was necessary was required by other provisions in the project specifications and he could not figure any way to recognize this and yet accurately reflect his belief that dewatering would not be necessary, other than to strike the pre-checked block and insert the check in the alternative block. He felt that by doing so, he was more accurately reflecting Johnson's bid. This reasoning is rather obscure. By letter dated April 12, 1996, written to the Board after the bids were opened, Mr. Mohme reiterated Johnson's position that dewatering is not necessary on this project, but further stated that if dewatering were to be necessary, Johnson would do so solely at its own risk and without any risk of additional cost to the Board. Bids may be clarified by a bidder, but such clarification must take place before the bids are opened. Bids may not be modified after bid opening. Before that letter was written, however, when the bids were opened and Mr. Hoffman observed what he considered was Johnson's alteration of the bid form, Hoffman consulted with a representative of the Board's purchasing department, Ms. Maas, who also reviewed Johnson's bid. Ms. Mass was of the opinion that Johnson may have attempted to qualify its bid, and she and Mr. Hoffman thereafter met with Mr. Rivas, the Board's director of facilities design and construction, to explain the problem. Mr. Rivas took the problem to two other Board personnel to see if there were some way Johnson's bid could be deemed responsive so that the Board could benefit by Johnson's low bid price. Within the context of those aforementioned discussions, Hoffman took the position that the alteration might leave the Board open to a possible change order and additional liability if dewatering were to be required and the Board had accepted Johnson's bid indicating that process was not included in the base price. Mr. Rivas, after consulting with the Board's attorney, also concluded that Johnson's alteration expressly excluded dewatering as an included factor and its exclusion constituted a serious and material deviation from the Board's solicitation. It was deemed material in that the deviation apparently gave Johnson a competitive advantage over other bidders who did not amend the form. This appears to be a valid conclusion and is adopted herein. The decision to recommend rejection of Johnson's bid and acceptance of Ellis's as the lowest responsive bid was ultimately reached by the Board's administrative staff. The Ellis bid was responsive to the solicitation whereas the determination was made that Johnson's was not responsive because of the alteration. It was not the actual act of alteration that caused that determination but rather the potential effect of the alteration. This was consistent with long standing Board policy not to accept a bid which does not conform to a bid solicitation and not to accept bids from bidders who alter the Board's bid proposal form or otherwise attempt to qualify their bids. It is the opinion of the Board personnel that such consistency in bidding procedure has resulted over time in more qualified bidders submitting bids for Board work which, in turn, has resulted in more competitive prices for the work let for bid. This is a reasonable policy. Mr. Gottschalk, Johnson's expert architect, who has designed schools for the Board, offered an alternative disposition to this dilemma. While admitting that Johnson's shifting of the risk of loss as a result of possible dewatering was a material matter, he suggested the Board could have disregarded the dewatering clause on every submittal and thereafter awarded the contract to Johnson, the lowest bidder, whose bid was responsive to the solicitation except for the dewatering provision. Recognizing this solution would have placed each bidder on an equal footing and allowed award to the lowest bidder at a substantial savings to the Board, he nonetheless also understood the decision made by Mr. Hoffman and the Board staff here and could not fault it. He agreed that reasonable men could differ on the issue of responsiveness here and how to deal with it. It is so found. After a review of the evidence submitted, including the testimony indicating the remoteness of the likelihood that extensive dewatering would be required, there appears to be no evidence that the Board, or its staff, acted dishonestly, fraudulently, illegally or arbitrarily in rejecting Johnson's bid on this project and recommending award to Ellis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order denying and dismissing G. H. Johnson Construction Company's protest and awarding a contract for the construction of Sexton Elementary School to Ellis Construction Company, Inc. DONE and ENTERED this 8th day of May, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1942BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Johnson's Proposed Findings of Fact. 1.-5. Accepted and incorporated herein. Accepted. Accepted but not a proper Finding of Fact. More a restatement of and comment on testimony. Rejected. Accepted but not a proper Findings of Fact. More a restatement of and comment on testimony. &11. Accepted. Accepted and incorporated herein. First sentence accepted as a literal statement of what appears in the specifications. Second and third sentences accepted but not probative of any material issue of fact. Accepted and incorporated herein. First sentence accepted. Balance not Finding of fact but argument. Ellis' Proposed Findings of Fact. 1.&2. Accepted and incorporated herein. 3.-6. Accepted. 7.-10. Accepted and incorporated herein. 11.-15. Accepted and incorporated herein. 16. Accepted but word "certain" is changed to read "likely." 17.-21. Accepted and incorporated herein. 22. Accepted and incorporated herein. 23.&24. Accepted. 25.&26. Accepted and incorporated herein. 27.-29. Accepted. Accepted and incorporated herein. Not relevant to any material issue of fact. COPIES FURNISHED: Jawdet I. Rubaii, Esquire Clearwater Executive Suites, No. 213 1345 South Missouri Avenue Clearwater, Florida 34616 John W. Bowen, Esquire Pinellas County School Board 301 4th Street S.W. Largo, Florida 34649-2942 E. A. Mills, Jr. Esquire Dale W. Vash, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 501 East Kennedy Boulevard Post Office Box 1438 Tampa, Florida 33601 Pinellas County School Board 301 4th Avenue, S.W. Largo, Florida 34649-2942
The Issue The basic issue in this case concerns whether, upon consideration of the responses to ITB-DOT-00-01-4004, the Department of Transportation's ("Department's") intended action to award the subject contract to All-American Towing, Inc., "is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications."
Findings Of Fact In their Prehearing Stipulation the parties admitted that the following facts are true without the need for proof at hearing.2 The Department issued an invitation to bid entitled ITB-DOT-00-01-4004, for road ranger service patrol along I-95, I-595, and I-75 in Broward County. The Department held a mandatory pre- bid meeting for this Project. The mandatory pre-bid meeting for this Project was held on Friday, October 20, 2000. All-American Towing Services, Inc., is a Road One Company. All-American Towing Services, Inc., has been registered with the Florida Department of State, Division of Corporations, since July 18, 1997. Road One, Inc., is registered with the Florida Department of State, Division of Corporations. Road One, Inc., has been registered with the Florida Department of State, Division of Corporations, since April 1997. Wareham Enterprises, Inc.'s, principal place of business was 4971 SW 34th Place, David, Florida 33314. Wareham Enterprises, Inc., was a Florida corporation registered with the Florida Department of State, Division of Corporations. Wareham Enterprises, Inc., was registered with the Florida Department of State, Division of Corporations, from 1986- 1998. John Wareham was the president and director of Wareham Enterprises, Inc. John Wareham was a director of All- American Towing, Inc. All-American Towing, Inc., was administratively dissolved on September 22, 2000, prior to the date of bid submission. Gary Pasborg was present at the mandatory pre-bid meeting for this project. Road One/All-American failed to enter the firm's SPURS vendor number in its response to the Invitation to Bid. Road One/All-American may not be excluded from bidding for failure to list the firm's SPURS vendor number. Road One/All-American's failure to list the firm's SPURS vendor number is a minor irregularity. Road One/All American's bid indicated a total annual estimated cost of $1,893,369. Road One/All-American made a mathematical error in computing the bid's total annual estimated cost. The Department corrected the total annual estimated cost in All-American's bid. The Department did not modify the hourly rate per service patrol vehicle contained in All-American's bid. The Department's correction of All- American's mathematical error is a minor irregularity. The corrected total annual estimated cost in All-American's bid is $1,893,440. The corrected total annual estimated cost did not alter the order of award. Sunshine Towing is a sole proprietorship owned and operated by Alexis Ramos and Ann Margaret Ramos. Every company who appeared at the mandatory pre-bid conference received, at the conclusion of the meeting, a sign in sheet which did not contain the name All- American, or All-American Towing. aa. The Department contacted Road One/All-American to request copies of licenses and registrations. bb. Ann Margaret Ramos, Alexis Ramos, Monica Savits, George Gonzalez, and Lourdes Zapata were all present at the mandatory pre-bid conference. Facts Proved at Hearing In response to the subject ITB, the Department received bids from seven firms by the deadline of October 27, 2000. The bids were opened on November 3, 2000. The only bids relevant to this proceeding are the bids of All-American Towing, Inc.,3 and Sunshine Towing. All-American Towing, Inc., was the low bidder with a bid in the amount of $1,893,440.00. Sunshine Towing was the second lowest bidder with a bid in the amount of $2,135,000.00. Sunshine Towing is currently under contract with the Department in District VI to provide services similar to those requested in the ITB at issue in this case. All-American Towing, Inc., is a wholly owned subsidiary of a corporation named Road One, Inc. At all times material to this case, All-American Towing, Inc., has been a dissolved Florida corporation. Notwithstanding its dissolved status, All- American Towing, Inc., appears to have continued to engage in the towing business in Florida. All-American Towing, Inc., has engaged in the towing business in Florida for more than five years. All-American Towing, Inc., has employees and managers who have engaged in the towing business in Florida for more than five years. Although Road One, Inc., is the sole owner of All- American Towing, Inc., it continues to operate All-American Towing, Inc., as a separate, but related, company. All bidders were required to attend a mandatory pre-bid meeting. Representatives of All-American Towing, Inc., attended the meeting.4 Representatives of Sunshine Towing also attended the mandatory pre-bid meeting. The ITB in this case requires bidders to have "a minimum of five (5) years of experience in the towing industry in the State of Florida."5 Section 5.0 of the ITB requires that each bidder have at least fourteen service patrol vehicles and that it include with the bid a photocopy of the vehicle registration for each such vehicle. At all times material to this proceeding, All- American Towing, Inc., had the required number of service patrol vehicles. All-American Towing, Inc., submitted with its bid only twelve photocopies of vehicle registrations. After the bids were opened, the Department contacted All-American Towing, Inc., and requested photocopies of two additional vehicle registrations.6 The two additional photocopies were promptly provided. Section 9.6 of the subject ITB reads as follows: The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers. Sunshine Towing is a responsible bidder, and it submitted a responsive bid. Sunshine Towing meets all of the requirements of the ITB.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Transportation issue a final order in this case rejecting the bid submitted by All-American Towing, Inc., and awarding the contract to Sunshine Towing. DONE AND ENTERED this 13th day of April, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2001.
Findings Of Fact The School Board of Broward County, hereinafter Respondent, issued a request for proposals (RFP), soliciting sealed bids for materials and labor for $6.5 million general renovations and additions to South Broward High School, Project #0171-88-03, hereinafter South Broward Project. The RFP and bid documents for the South Broward Project were contained in a 2-inch thick book entitled "Project Manual South Broward High School General Renovations and Additions Project #071-88-03." The RFP required all bids by 2:00 p.m., December 8, 1992, and required each bidder to include a certified check or bid bond for 5 percent of the base bid "as evidence of good faith and guaranteeing that the successful bidder will execute and furnish . . . a bond . . . for 100 percent of the Contract, said bond being conditioned for both performance and payment. . . ." Further, the RFP notified bidders that Respondent would have a Minority Business Enterprise (MBE) subcontracting goal of 15 percent for the contract: 5 percent Black, 5 percent Hispanic, and 5 percent women. In addition, the RFP stated that Respondent had the right to reject bids and waive any informalities. As part of the bid documents provided to bidders, Respondent included its policy statement on bidding procedures and award of construction contracts. Among other things, the policy statement indicated that a Statement of Bidder's Qualifications form was required to be completed by bidders and received by Respondent prior to the date set for the bid award, that failure to do so "may" be an irregularity in bidding procedures, and that Respondent may require a bidder to furnish data to determine "beyond a reasonable doubt that the bidder is qualified to perform the contract." The Statement of Bidder's Qualifications form included questions requesting information from bidders on projects they had completed of similar size or larger; a list of present contracts, with amounts; whether fully bonded; and information on any failure to complete a bonded obligation. Additionally, the bid documents included a section entitled "Instruction To Bidders And The General Conditions," hereinafter Instructions and Conditions. The said document contained several Articles, of which Articles 4, 5, 7 and 8 are relevant to this bid protest. Article 4 of the document, Posting of Bids, states in pertinent part: Notice of intent to award or reject bids shall be posted . . . with recommendations reflecting the lowest responsive bidder meeting specifications, terms and conditions. Recommendation and tabulation will be posted seven (7) days after the bid date by 4:30 p.m. in the reception area of the Facilities Department. (Emphasis added) Article 4 also presented the time frames in which a bidder must file a protest of the recommendation, including the notice of protest and the formal written protest. Article 5, Basis For Award, states that Respondent's intent is to award the contract [T]o the lowest responsive bidder in accordance with the requirements of the Bidding Documents, within the funds available. (Emphasis added) The Article further states: Additional funds may be added to this project in order to award a contract if the lowest responsive bid exceeds the available funds. The lowest responsive bidder . . . will be established through an evaluation of the combined prices for the Base Bid and Alternates. (Emphasis added) Article 7, Withdrawal of Proposals, states in pertinent part: The Proposal may be withdrawn if The School Board of Broward County, Florida, fails to accept it within (60) calendar days after the date filed for opening bids. (Emphasis added) Article 8, Disqualification of Bidders, states in pertinent part: (d) No Proposal or Bid will be considered unless accompanied by a Proposal guarantee or good faith deposit in the amount and on the form specified in the Invitation for Bids, and/or Advertisement for Bids. Further, included in the bid documents was a section entitled Special Conditions. Article 10 of the Special Conditions dealt with MBE subcontractor requirements. Section 3 of Article 10 states in pertinent part: [F]ailure on the part of the Bidder to comply with the requirements of this Article shall be cause for finding the bidder non-responsive, unless every reasonable effort to utilize MBE subcontractors is demonstrated to The School Board of Broward County, Florida. In the event a bid is deemed non-responsive, award may then be made to the next lowest bidder, or all remaining bids may be rejected and the project readvertised. (Emphasis added) On December 8, 1992, as advertised, the bid opening on the South Broward Project was conducted. There were no irregularities at the bid opening. Roma Construction, Inc., hereinafter Petitioner, was a bidder on the South Broward Project along with other bidders. Petitioner was the lowest bidder. It is undisputed that Petitioner timely filed all of the requested bid documents, and complied with all the bid specifications. At the time of the South Broward Project bid, Petitioner was the contractor on another project with Respondent, referred to as the Deerfield Beach Elementary School Project, hereinafter Deerfield Project. Petitioner and Respondent were experiencing problems with the Deerfield Project, for which each blamed the other. Finally, on January 19, 1993, Respondent declared Petitioner in default of the Deerfield Project. Petitioner and Respondent are in pending litigation involving their dispute of the Deerfield Project. Respondent's Facilities Department had the responsibility of making a recommendation to Respondent as to which bidder should be awarded the contract. The lowest bidder is requested by the Facilities Department, subsequent to the bid opening, to submit the Statement of Bidder's Qualifications form, hereinafter Qualifications Statement. The Facilities Department uses the Qualifications Statement to obtain a general background of a bidder. Failure to provide the Qualifications Statement was waivable by the Facilities Department and was, therefore, not a disqualifying event. Even though Petitioner was the lowest bidder at bid opening, it was not requested by the Facilities Department, per the instructions of the Facilities Director, to submit the Qualifications Statement. 1/ The Facilities Director had decided to obtain Petitioner's Qualifications Statement from the most recent and on-going project that Respondent had awarded to Petitioner, i.e., the Deerfield Project, and make inquires from that Qualifications Statement. He was going through this process although he had made a predetermination that Petitioner probably would not be a responsible bidder. Using Petitioner's Qualifications Statement from the Deerfield Project, the Facilities Director contacted architects on Petitioner's prior projects. The architects made numerous "negative" comments regarding Petitioner's construction delays. Further, the Facilities Director made inquiries regarding lawsuits against Petitioner on projects. He was notified by Respondent's lawyers of what he considered to be an inordinate number of pending lawsuits against Petitioner. Based upon the information received from the inquiries and upon Petitioner's January 19, 1993, default declared by Respondent, the Facilities Director concluded that he could not recommend awarding the contract to Petitioner as the lowest responsible bidder. Consequently, he directed his staff to recommend awarding the contract to Dayco-Astaldi Construction Corporation, as the lowest responsible bidder. On January 25, 1993, approximately six weeks after the bid opening and six days after Respondent declared Petitioner in default of the Deerfield Project, the Bid Tabulation Form (BTF) was posted. The BTF showed Petitioner as the lowest bidder, and Dayco-Astaldi Construction Corp. as the next lowest bidder. However, Respondent's Facilities Department, stated on the BTF that its recommendation would be to award the contract to Dayco-Astaldi Construction Corporation as the lowest responsible bidder meeting the bid specifications. Additionally, the BTF included the notice that bidders could object to the intended action and the statutory procedure to follow. No evidence was presented that, between the time of the bid opening and the posting of the BTF, either Petitioner or any other bidder made an attempt to withdraw their bid. Petitioner filed its notice of protest on January 26, 1993, which was timely. Petitioner filed its formal written protest on February 1, 1993, which was timely. On February 23, 1993, Respondent considered Petitioner's protest at its scheduled meeting. Respondent "rejected" Petitioner's protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The School Board of Broward County enter its final order rejecting Roma Construction, Inc.'s, bid and awarding the bid in South Broward High School Project #0171-88-03 to Dayco-Astaldi Construction Corp. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of May 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May 1993.
The Issue The issue in this case is whether the Respondent, School Board of Broward County, Florida (Respondent or Board) may require bidders to comply with specifications and conditions for a bid solicitation that pertains to audiovisual, photographic equipment and related supplies, and computer peripherals as set forth in, and identified as, Invitation to Bid No. 27-040N. The Petitioner, Audio Visual Solutions Corporation (Petitioner), timely filed a challenge to the bid specifications and conditions for the subject acquisition.
Findings Of Fact The Petitioner is a corporation that deals, resells and provides audio, video, and conferencing equipment to various entities throughout the state. The Petitioner represents a number of trade names in the electronics industry and serves educational and governmental markets in the State of Florida. The Petitioner holds contracts to provide electronic equipment to the Respondent at the present time. As part of its ongoing operation, the Petitioner routinely responds to bid invitations and solicitations such as the one at issue. The Petitioner’s standing to challenge the specifications in the instant matter is not disputed. In the instant matter, the Petitioner received the ITB for the Respondent’s bid No. 27-040N and began a detailed review of the general, special, and other specifications set forth in the ITB. The Petitioner determined it would evaluate the overhead expenses required, labor and documentation, invoicing, delivery, and other specifics that would play a part in pricing the products for response to the ITB. At all times material to the allegations of this protest, the Respondent was the entity charged with the responsibility of acquiring goods and services to support the operation of the public schools in Broward County, Florida. Respondent was the appropriate entity with whom the protest should have been filed as it was the procuring entity for ITB No. 27-040N. The Respondent bears the ultimate burden for all procurement necessary to operate the public schools for Broward County, Florida. The review process used by the Petitioner in this case is the same process it has utilized in the past when it has successfully obtained contracts with the Respondent. The bid evaluation Petitioner performs is necessary to determine whether the ITB is within the scope of its operations. On or about April 24, 2006, the Petitioner forwarded a Notice of Intent to Protest regarding certain Special Conditions of the subject ITB. The Petitioner filed its notice within 72 hours of receipt of the ITB. On May 4, 2006, as the wording for the disputed Special Conditions remained unresolved, the Petitioner filed a Formal Written Protest to contest the conditions and specifications of ITB No. 27-040N. The Respondent has not disputed the timeliness of the instant protest. Throughout the pre-hearing process, the parties met and continued efforts to resolve the disputed points. As set forth in the Joint Pre-Hearing Stipulation, disputes regarding Special Conditions 22, 23, 28, 29, 31, 32, 33 and 34 were resolved during the School Board Bid Protest Meeting or immediately prior to the formal hearing. The findings and resolutions set forth regarding the challenge to each of those Special Conditions are set forth in the Joint Pre-Hearing Stipulation and are adopted here by reference. At hearing, left unresolved were the Petitioner’s challenges to Special Conditions 3, 18, 20, and 27 of ITB No. 27-040N. In the ITB at issue, “SBBC” refers to the Respondent. The Petitioner challenged Special Condition 3 for several reasons. That provision stated: AWARD-For Bid Items 1 through 38: In order to meet the needs of the school system and SBBC, each ITEM shall be awarded to one primary and up to two alternate responsive and responsible bidders meeting specifications, terms and conditions. The lowest awardee in an item or group shall be considered the primary vendor and should receive the largest volume of work. SBBC reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) it is in the best interest of SBBC to do so regardless of reason. For Bid Item 39: In order to meet the needs of SBBC, awards will be made to all bidders who submit a catalog and offer a discount or net pricing from the most current vendors catalog/price sheet. These bidders shall then be in a favorable position to compete for the Board’s business, and those who offer lowest net prices for those items, that comply with the specifications and otherwise meet requirements, should obtain the largest volume of business. After award of this bid, any bidder receiving an award who violates any specification, term or condition of this bid can be found in default of its contract, have its contract canceled, be subject to the payment of liquidated damages, and be removed from the bid list and not be eligible to do business with this School Board for two years, as described in General Conditions 22, 23 and 53. (Emphasis in original). At hearing, the Respondent agreed that the words “regardless of reason” in the first section of Special Condition 3 would be deleted. The other concerns regarding this provision were not resolved. Thus, for the items to be procured the remaining terms of this provision would be applicable. The ITB sought responses for various items of equipment by unit price. For example, Item 1 of the ITB identified the equipment sought as “Multi-Media Projector: UltraPortable Low-End.” The bid summary sheet provided that an approved model for the item would be an Epson E3. Further, the quantity listed was for 2000. A bidder would be expected to provide the unit price, the total price (presumably applying that unit price to the volume sought), and then disclosing what percentage the unit price has been discounted off the manufacturer’s list price. For each of the 38 items identified by the ITB, a bidder would be required to provide all of the requested information. As to Item 38, the bidder was required to include quotes for multiple components of the item. The Petitioner maintains that Special Condition 3 does not conform to the Florida Administrative Code. Specifically, Petitioner believes that an award to multiple bidders violates Florida Administrative Code Rule 6A-1.012. The Petitioner also believes that Special Condition 3 violates a policy of the Broward County Purchasing Policy rules. Specifically, Petitioner argues that Respondent’s policy set forth in Purchasing Policy 3320 requires a single award. Essentially, the Petitioner contends that multiple awardees are not acceptable as the Respondent is required, by law, to award the contract to the lowest and best responsible and responsive bidder. When multiple awards are made the Respondent is not selecting the lowest and best. Therefore, for each item identified the Respondent should select the lowest and best responsible and responsive bid. Similarly, as it relates to Special Condition 3, Item No. 39, an award will be made to all bidders who submit a catalog and offer a discount on pricing from the most current vendor’s catalog/pricing sheet. Again, if all bidders are accepted, no one bidder will be identified as the lowest and best responsive and responsible bidder. Additionally, since some vendors use the same catalog, the lowest (or greatest percentage discount) bidder is not well served since all bidders will know the percentages (once the bid is opened). Disclosing the percentage will not assure that the Respondent will receive the item at the lowest possible price since the Respondent is not obligated to use the catalog of the lowest priced bidder. Further, a vendor using a catalog that has prices that are higher (for the same item) can offer a higher percentage discount and not affect the overall net to them. For every purchase the Respondent would have to compute the item price and apply the discount before the real cost could be known. The Petitioner challenged Special Condition 18. In pertinent part, that provision stated: VOLUME DISCOUNT: Through history, it is known that SBBC purchases the same item in high volume. In order for SBBC to leverage a pricing advantage, bidders are to provide, on the bid summary sheet, the lowest net price for purchasing a minimum of one. Additionally, SBBC will release quotes to awardees for volume purchasing and request the best and the lowest net price for ordering the quantity of items indicated on released quotes. The awardee that offers the lowest cost will be awarded that quote. This provision is offensive to the Petitioner because it allows the second bite of the apple. That is, by requiring the bidders to disclose their pricing for this ITB and then allowing all awardees to come back after-the-fact with a second “quote” does nothing to assure that the competitive pricing inherent in the bid process has been protected. Any awardee could, after seeing the pricing offered by the competition, know the discounts applied by the competition. This process according to the Petitioner defeats the purpose of finding the lowest bidder at a fixed point in time. The ITB responses merely create a pool of potential winners. So long as a bidder was lowest on one item, it will be assured an opportunity to “quote” on all purchases (and will do so having the competition’s best numbers). Who would offer their best prices on all items in response to this ITB? No one. The bidder that offers (at whatever low price) the best price on any single item is designated an “awardee” and gets to try to defeat the competition on each “quote” subsequently announced. Moreover, the “quotes” are not guaranteed the same protections as the sealed bid process. Consequently, the Respondent may purchase thousands of dollars of items without being assured that they were given the lowest and best price. The “quotes” may exceed $25,000. Special Condition 20 was also challenged by the Petitioner for the same reason. That provision states, in pertinent part: QUOTES: SBBC anticipates the procurement of bundled classroom solutions with installation. Therefore, SBBC reserves the right to solicit quotes for these solutions at any time during the contract period. The quotes will only be released to awardees of this contract. The models that become components of the solution must be the same models that were awarded as a specific item. However, there is no guarantee that an awardee of a model of a component of the solution will be the awardee of the quote. SBBC is opening competition to all awardees of this contract to offer the best pricing for these solutions. Section 5, Additional Information, Bundled Classroom Solutions includes a form that bidder is to complete and return with the bid. Bidder is to state if it wants to receive quotes, and if it has the capability to provide the necessary licensing and certifications associated with installation and wiring, not to include, high voltage electrical installation. Awardee of the quoted solution will be solely responsible for any issues related to the installation and minimum three [sic] warranty period of the bundle. Additionally, bidder must have an established working relationship with an SBBC awarded high voltage electrical company. This form is a questionnaire that is for informational purposes and will not be considered in determining award. Special Condition 27 provides: BALANCE OF LINE ITEM DISCOUNT (ITEM 39): SBBC encourages all awardees for this item to offer SBBC additional discounts for volume purchases of like items. SBBC reserves the right to release quotes for large catalog volume purchases. Bidders are required to offer a balance of line single, fixed percentage discount for equipment ($1000.00 or greater) and supplies (under $1000.00) off bidders catalog for any Audiovisual, Photographic Equipment and Related Supplies, and Computer Peripherals not itemized on the Bid Summary Sheets. This percent must be stated in the Bid Summary Sheet. An omission from this entry will be considered as a 0% discount offered from catalog. The single fixed percentage discount quoted by bidder shall apply to the catalog list price for all catalog items. This percentage discount does not include the itemized equipment listed on the Bid Summary Sheet. Items excluded from single fixed percentage discount should be listed on a separate piece of paper. These items will be excluded and should not be purchased. In the event a bidder handles catalog items that carry a little or no percentage, this fact shall be taken into consideration and percentages offered shall be a single fixed percentage discount for each category (supplies and equipment) and catalog. Awardees may offer SBBC additional educational discounts at any time and invoice SBBC at a greater discount than their bid discount. According to the Petitioner, bundled solutions have the possibility and the likelihood of exceeding $25,000. If so, the requirement for sealed bids by allowing only quotes would be circumvented. The Respondent seeks to obtain the needed equipment at the lowest possible cost to the School Board. By using the “quotes” procedure it believes it will achieve a lower cost per item purchased. The “quote” procedure to be used does not, however, allow entities not within the “awardee” group to participate. If the purpose of the “quote” is to secure the lowest possible price at a fixed point in time (at a point in time future to the ITB opening), the possible savings available through another entity outside those within the “awardee” class is lost. Further, members of the “awardee” class have no incentive to provide their lowest price for all items bid in response to this ITB.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order amending the specifications challenged to assure that the award of the items will be to a single lowest and best responsible and responsive bidder. The Petitioner’s challenge to the provisions must be sustained as a matter of law. S DONE AND ENTERED this 30th day of October, 2006, in Tallahassee, Leon County, Florida. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2006. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Mitchell D. Adler, Esquire Greenspoon Marder, P.A. Trade Centre South, Suite 700 100 West Cypress Creek Road Fort Lauderdale, Florida 33309-2140
The Issue The issue is whether the Department of Corrections (DOC) acted fraudulently, arbitrarily, illegally or dishonestly when it decided to award the contract under Bid Number 94-CO-6355, for Inmate Pay Telephones and Long Distance Service (the Contract), to the number two-ranked bidder, North American Intelecom, Inc. (NAI).
Findings Of Fact Background On or about August 12, 1994, the DOC issued Invitation to Bid Number 94-CO-5355, Inmate Pay Telephones and Long Distance Service. Michael H. Johnson, a General Services Specialist, prepared the ITB at the direction of Jim Morris, Chief of the DOC's Bureau of General Services. Johnson developed the evaluation criteria and point allocations in Section 8.0 of the ITB. The document was reviewed and approved by Morris, Jim Biddy, Chief of the DOC's Bureau of Finance and Accounting, and Max Denson of the DOC's Operations Office. Inmate pay telephone and long distance service requires more than just the installation of pay phones in correctional facilities. The service vendor must also provide a means of blocking inmate telephone calls and, when calls are authorized, preventing inmates from making harassing calls to members of the public. Additionally, the ITB includes a provision requiring some means for monitoring and automatically recording inmate telephone calls, and for deactivating the automatic recording function when an inmate calls his or her attorney. A requirement is also included in the ITB that the system limit the length of inmate calls and generate monthly call detail reports. Other mandatory, no cost features to be provided under the Contract include a Personal Identification Number ("PIN") system capability, a three-way call detection and cutoff feature, a pilot site to test the call monitoring/recording system, on-site administrators to free facility staff from all tasks associated with the inmate phone system, and a semi-annual audit to ensure that the provider is meeting all technical and service requirements. The specifications in the ITB for provision of inmate pay telephone and long distance service are some of the most comprehensive in the country, requiring state-of-the-art hardware, software, and service in order to implement specified mandatory system features. Security concerns are prominent among reasons for having adequate service and support for the inmate pay telephone and long distance service. PIN-Driven System One of the primary features specified in the ITB is a PIN-driven system for blocking inmate calls. The PIN system requires each inmate to be assigned his or her own personal identification number for use with the telephone system. An inmate must key in his or her personal identification number before dialing an outgoing call. The system must automatically screen the telephone number dialed to ensure it is one which has received prior authorization for accessibility by the PIN. A PIN-driven system is labor-intensive and requires on-site administration to facilitate assignment of inmate PIN numbers and constant input and modification of each inmate's list of numbers for authorized outgoing calls. Project Staffing The DOC specifically requested the inmate phone system vendor to provide sufficient on-site administrators for a number of reasons including, but not limited to, support for proper administration of the PIN system. Noting that on-site administrators are to relieve DOC staff of all responsibilities relating to the inmate phone system, the DOC stated in the ITB that it did not want its staff to be involved with time-consuming service and maintenance problems. The DOC expressed a preference in the ITB for one on-site administrator being assigned to each major facility, except in those circumstances in which a single individual may cover several facilities in close geographic proximity to one another. Support services are important to maintain the proper functioning of the type of inmate phone system requested by the DOC. The ITB, taken as a whole, is a solicitation for an integrated telecommunications system, encompassing not only hardware, but systems software, service and project support. The ITB did not simply solicit manufacturers and models for various pieces of hardware; it contained a comprehensive description of functional requirements that had to be met. As a consequence, any determination that one bidder's "equipment" is identical to that offered by any other bidder must take into consideration proposed support and service, as well as proposed hardware and software applications. Bid Evaluation Procedure Specified in the ITB As established at final hearing by the unrebutted testimony of MCI's expert in telecommunications service bid response preparation, DOC's ITB differed from those in many other states. Unlike the instant ITB, many ITBs from other jurisdictions provide for a determination that bids meet specified minimum requirements and then dictate the award of a contract to the responsive bid with the lowest price. Conversely, DOC's ITB specified a detailed procedure to be followed in evaluating the bids, including evaluation criteria, points to be assigned to each criterion, and an evaluation committee to conduct the evaluation of bids. Johnson, the DOC employee responsible for the preparation of the ITB, understood that the Contract would be awarded to the bidder with the highest number of points allocated in accordance with the evaluation scheme described in Section 8.0 of the ITB. The DOC includes in its ITB both general and special conditions and specifications. The ITB, by its own terms, provides that special conditions and specifications shall have precedence over general conditions. The ITB contains numerous special conditions and specifications, including the bid evaluation procedures under Section 8.0. The bid evaluation criteria which are described by these special conditions and specifications identify the areas of the state's interest which must be addressed by the bids, as well as the weight to be assigned to each. Section 8.3 of the ITB emphasizes that any information gleaned from post bid demonstrations will not be used to change bid responses. The bid evaluation scheme specified in the ITB provided for points to be awarded to each bid using the following weighted criteria: CRITERIA POINTS CORPORATE QUALIFICATIONS 15 REFERENCES 10 PROPOSED PROJECT STAFF 5 COMMISSION RATE 70 TOTAL POSSIBLE POINTS 100 The points awarded for "commission rate" were to be determined by using a formula specified in the ITB which initially gave 70 points to the bidder proposing the highest commission rate, with all other bidders receiving a lesser number of points, depending on how close they came to the highest proposed commission rate. The points awarded for all of the other criteria were to be determined by a seven-member Evaluation Committee, members of which were selected by Assistant Secretary Kronenberger for their experience with management and actual operation of inmate phone systems, both from the institutional perspective and the regional office perspective. Each bid was required to be independently evaluated. The DOC issued two addenda to the ITB. The first addendum was issued August 23, 1994, and advised potential bidders of a change in location for the pre-bid conference scheduled for September 7, 1994. At the pre-bid conference, the DOC explained the award process to potential bidders. Johnson, the DOC representative, advised potential bidders at the pre- bid conference that the contract award would not be determined solely on the strength of the commission rate quote. On September 22, 1994, the DOC issued Addendum Number Two to the ITB which, among other things, changed the evaluation procedure by adding a new criterion and re-allocating the weight among the expanded criteria as follows: CRITERIA POINTS CORPORATE QUALIFICATIONS 10 REFERENCES 10 PROPOSED PROJECT STAFF 5 TECHNOLOGICAL ENHANCEMENTS 10 COMMISSION RATE 65 TOTAL POSSIBLE POINTS 100 The addition of "technological enhancements" was made at the request of Deputy Secretary Thurber, who wanted to be sure that the DOC had an opportunity to see what features above and beyond the minimum features specified in the original ITB were available for an inmate pay telephone system. When technological enhancements were added as an evaluation criterion, the weight to be given the commission rate in the evaluation scheme was lowered from 70 to 65 points. The DOC officials who reviewed and approved Addendum Number Two determined that the reduced weight for proposed commission rates was appropriate. At 65 percent of the available points, the reduced weight for the proposed commission is still higher than the 45 percent to 50 percent weight typically given by the DOC to the revenue side of a bid. Bidder Preparation MCI relied on the representation in the ITB and assurances of DOC's representative, Michael H. Johnson, at the bid conference that DOC's decision would not be made solely on the basis of cost. As a consequence of DOC representations, MCI prepared its bid to address the specifications in the ITB and thereby maximize its overall points under the ITB's evaluation scheme, as opposed to submission of a bid package concerned solely with scoring the highest possible points for "commission rates." Bid Opening and Initial Review On October 21, 1994, bids were submitted to DOC by MCI, NAI, AT&T, TEI, Robert Cefail & Associates (RC&A), 21st Century, RC&A/21st Century, and LDDS Metromedia. At the Bid Opening, Johnson again explained the award process to bidders on behalf of the DOC, and advised bidders that the bid tabulation was strictly for the purpose of documenting responses and that nothing was to be inferred from the proposed commission rates. Bidders were again advised that commissions would be only one aspect of the award. Johnson's understanding at the time of the Bid Opening was that the Contract would be awarded based on points awarded pursuant to the bid evaluation scheme specified in the Section 8.0 of the ITB. Johnson participated in an initial review of the bids, reading each of the proposals to determine whether the mandatory requirements were satisfied. Of eight bids received, five, including the bids submitted by MCI and NAI were determined by the DOC to satisfy the mandatory requirements. The Evaluation Committee As required in the ITB, the DOC formed an Evaluation Committee to evaluate the bids. Selected by Assistant Secretary Kronenberger, members of the Evaluation Committee were: Jim Biddy, Chief of the Bureau of Finance and Accounting; Jerry Pilcher, Chief of Regional Administrative Services for Region II; Kermit Kerley, Superintendent of the Hardee Correctional Institution; Stan Czerniak, Superintendent of the North Florida Reception Center; Charles Mask, Superintendent of the Corrections Mental Health Institution; Charles Dennard, Business Manager for the Polk Correctional Institution; and Robert Sandal, General Services Manager for Region I. Members of the Evaluation Committee were selected from the DOC's business managers and superintendents on the basis that their participation would provide an overall perspective with respect to management and actual operation of the inmate phone system. Evaluation Committee's Recommendation All five of the bids determined by the DOC to be responsive were thoroughly reviewed by Evaluation Committee in accordance with the bid evaluation procedures specified in the ITB, including Addendum Number Two, in an almost day-long session in the DOC's Central Office on January 5, 1995. The total points awarded by each Committee member for all of the four evaluation criteria were averaged to establish each bidder's total Evaluation Points. Every member of the Evaluation Committee scored MCI's bid as their number one or number two choice. NAI was ranked no higher than third by anyone on the Committee and was ranked fourth by five of the Committee's members. No member of the Committee gave NAI a higher score than MCI on any of the evaluation criteria. Comments on a majority of the evaluation forms of the seven members of the Evaluation Committee reflect a general concern for the adequacy of NAI's proposed project support. Specifically, Mr. Biddy noted that "[p]roposed project staff consisted of only 17 people [and that it was] questionable whether this would be sufficient for site administration as well as contract management." Similarly, Mr. Kerley noted on the NAI bid evaluation form that "17 staff may not be enough to support [the] system." Mr. Pilcher's comments indicated that "[p]roject support was not as I expected or not explained very well." Mr. Dennard indicated that NAI's bid provided "no breakdown of [the] 17 staff to support [the] contract [and] no mention of site administrators." The NAI bid indicates that a total of 17 personnel will be made available to support the Contract with more to be "added if the schedule so indicates." NAI's bid does not specifically identify the number of persons to be involved in on-site administration. However, NAI has committed only 17 people in support the Contract as a whole, ten of whom are expressly identified as performing tasks other than on-site administration. While NAI's bid indicates provision of additional personnel if required by the schedule, ambiguity about whether NAI would expand the number of on-site administrators for the entire term of the contract is evident. The "installation requirements" described in the ITB refer to time-limited activities necessary to initiate operation of the inmate telephone system, as opposed to the ongoing nature of the commitment necessary for on-site administration. In its bid response, NAI also agreed to cooperate with the DOC "to insure the proper distribution of on-site administrators." This offer does not suggest, however, that the number of on-site administrators committed in support of the Contract will be augmented by NAI. Such assurance relates to location and not number of on-site administrators. Testimony of NAI presented at final hearing that additional on-site administrators will be provided is not credited, inasmuch as such testimony constitutes an impermissible attempt by NAI to modify its bid after the bid opening. Based upon the substantial disparity in the proposed levels of customer service, the MCI and NAI bids cannot be considered to be identical. NAI's assertion at hearing that its bid included other system features which do not appear on the face of its written proposal constitutes a prohibited post-bid-opening modification. Such modifications included PCs, keyboards, printers and color monitors at each facility. These items are included on the face of the MCI bid. MCI offered 28 personnel in support of the Contract, including an express commitment for 20 on-site administrators. MCI's proposal to provide 20 on-site administrators is one of the highest number of on-site administrators offered by any bidder and a very costly aspect of MCI's bid since all employee salary and benefits must be covered for each on-site administrator dedicated to the project. The assignment of points for each bidder's proposed commission rate (Commission Points) was based on a scale which assigned 65 points to the bid with the highest commission rate quote. A lesser number of points was assigned to all other bids pursuant to a formula specified in Section 8.2 of the ITB, as amended by Addendum Number Two. The highest commission rate quoted by any bidder was proposed by NAI at 56 percent. NAI was accordingly assigned 65 Commission Points. NAI was also awarded 22.143 Evaluation Points, which, when combined with NAI's 65 Commission Points, produced a total of 87.143 points. MCI proposed a 53 percent commission rate and, in accordance with the formula set forth in the ITB, earned 61.51 Commission Points. MCI was also awarded 30 Evaluation Points which, when combined with MCI's 61.51 Commission Points, produced a total of 91.51 points. When the Evaluation Committee's other scores were combined with the scores for commission rates obtained by applying the formula in the ITB, MCI's point total was higher than that received by any of the other bidders. The DOC officials later involved in the decision to award the Contract to NAI indicated that they had no reason to question the work of the Evaluation Committee. After reviewing the bid evaluation forms produced by the Evaluation Committee, and based on his continuing understanding that the Contract would be awarded to the bidder receiving the highest number of points under the evaluation scheme specified in the ITB, Michael H. Johnson prepared a memorandum for signature of his supervisor, Mr. Morris, to Assistant Secretary Kronenberger. Dated January 31, 1995, the memorandum recommended award of the Contract to MCI. Morris signed the January 31, 1995 memorandum and forwarded the same to Assistant Secretary Kronenberger. At prehearing deposition in this case on April 13, 1995, Kronenberger denied having received any recommendation from anyone regarding which company should be awarded the contract. Later at the final hearing following Johnson's testimony that he, Johnson, had been instructed to destroy the signed document by Morris (his supervisor), Kronenberger finally admitted that he had told Morris "we ought to pull that memo." These instructions were followed by Morris, who directed Mr. Johnson to destroy the January 31, 1995 memorandum recommending award of the Contract to MCI. Significantly, neither Morris, Kronenberger, nor Thurber--all DOC officials involved in the contract award decision--mentioned the existence of this document prior to Mr. Johnson's revelation on the witness stand that it had been destroyed. After-The-Fact Evaluation In a February 22, 1995 memorandum to Deputy Secretary Thurber, Kronenberger, after acknowledging that MCI received the highest number of points, formally recommended that the Contract be awarded to NAI. This memorandum was drafted by Morris at the direction of Kronenberger. Before making the recommendation to award the contract to NAI, Kronenberger had not read the ITB, the addenda to the ITB, or any portion of the bids. Morris was the only member of his staff with whom Kronenberger consulted. Kronenberger's decision was approved by Deputy Secretary William Thurber. Neither Kronenberger, Morris, nor Thurber read the bids at any time prior to the DOC's issuance of the notice of intended award to NAI. Kronenberger based his decision to recommend award of the Contract to NAI on his belief that NAI and MCI proposed to install "identical equipment," and that at least $1.1 million in additional revenue would be generated by the 3 percent higher commission rate offered by NAI over the three-year base term of the Contract. Although the February 22, 1995 Kronenberger memorandum states that the DOC could find no correlation between the proposed commission rates and equipment capabilities, the DOC officials who made the decision to award the Contract to NAI (Morris, Kronenberger and Thurber) performed no analysis of the proposals, did not complete a score sheet, did not talk with any of the members of the Evaluation Committee, and were unaware of the specific content of the bids and the proposed differences in staffing offered by the two bidders. In contrast to the assertion of the Kronenberger memorandum, the proof establishes a direct inverse correlation between the total average scores awarded by the Evaluation Committee to the top three bids and the commission rates offered in those bids. This inverse correlation proves that the bidders had to balance the cost of the hardware, software and support personnel aspects of their bids against the commission rate they could offer and that the cost of each hardware, software and support personnel aspect of a bid has a direct impact on the commission rate which could be offered. This balancing is precisely what is required by the ITB since all of these aspects of the bid were assigned specific weights in the specified evaluation scheme. Kronenberger's assumption, as set forth in his memorandum recommending award of the contract to NAI, that both NAI and MCI proposed to install identical "equipment" ignores the fundamental premise of the solicitation--that hardware, software and support were needed to provide a fully functioning, secure inmate phone system, as well as the fact that the vendors offered different approaches in responding to this requirement. System hardware proposed by MCI and NAI includes the Telequip System Automatic Call Processor ("ACP") 4000, a Dictaphone recording and monitoring system, and Philips & Brooks/Gladwin phone instruments. However, with regard to all aspects of the hardware offered, MCI's bid was more detailed and specific as compared with the NAI bid which generally identified system capabilities by referencing attached brochures. At best, NAI's bid is ambiguous as to whether it offered the same hardware component features. NAI's general references to the brochures in its bid failed to specify which features of a piece of equipment was being affirmatively offered. NAI's after-the-fact assertion at the final hearing regarding features to be provided cannot be credited since such constitutes an impermissible attempt to modify its bid after the bid opening. Software jointly developed by MCI and Telequip would permit operation of the attorney exception capability utilizing the Telequip ACP-4000 with the proposed Dictaphone recorder systems. Until MCI requested development of the necessary software, the attorney exception capability, which deactivates the automatic recording function when an inmate calls his or her attorney, was not available with the Telequip ACP-4000 when used in conjunction with the Dictaphone recorder. Software jointly developed by MCI and Telequip was also necessary to provide an international call capability because the standard Telequip ACP-4000 ordinarily utilizes a debit system to process international calls, and "the debit system is inherently incompatible with the PIN system and the allowed calling list feature that are requirements in the . . . ITB." The MCI bid offers more technological enhancements at no cost to the DOC, than does the NAI bid. Further, the items identified on MCI's list of technological enhancements do not appear anywhere on the face of the NAI bid. NAI's omission of the enhancements listed in the MCI bid adds further credence to the finding that the DOC had no reasonable basis to conclude that it would be getting those enhancements under the NAI bid at the time it was submitted. Moreover, the DOC's own synopsis of technological enhancements shows that it was aware of differences in the bids. Differences in the hardware, software and services offered in the MCI and NAI bids preclude a determination that the two bids offered "identical equipment." Monetary Considerations Revenue figures used by the DOC to project a $1.1 million difference in commissions were drawn from a period of time in late 1994 and early 1995 when the DOC's own summary reports indicate that NAI's billing exceptions range from 41 percent to 49 percent of all calls. Billing exceptions are the number of calls which exceed AT&T rates or could not otherwise be reviewed in monthly call detail reports. NAI's customer overcollections for telephone calls from inmates in the correctional facilities presently served by NAI provide an additional basis for uncertainty regarding the reliability of the projected $1.1 million difference in commissions. While the overcollections have not yet been quantified, NAI has admitted to the Florida Public Service Commission overcollections from customers receiving telephone calls from inmates under its current contract with the DOC in the amount of $394,318. Notwithstanding the ongoing PSC inquiry and reports of extensive billing exceptions under its existing contract with NAI, the DOC has no apparent incentive to closely scrutinize overcollections inasmuch as the more revenues billed by NAI, the greater the amount of commissions received by the DOC. Thus, while there is a 3 percent difference in the proposed commission rates between the two bidders, it cannot be determined from this record with any degree of certainty how that difference will translate into actual dollars to the DOC. In any event, the revenues generated by the contract for inmate pay telephones are placed in the Inmate Welfare Trust Fund, which does not support essential correctional facilities or services. Notice of Award and Protest On March 2, 1995, the DOC issued an intent to award the Contract to NAI. On March 8, 1995, within 72 hours of receipt of DOC's notice of intent, MCI timely filed a Notice of Protest. On March 20, 1995, within ten days of filing its Notice of Protest, MCI timely filed a Formal Written Protest pursuant to Section 120.53(5) and 120.57, Florida Statutes, and Rule 33-20.005, Florida Administrative Code. With its Formal Written Protest, MCI delivered to the DOC a cashier's check in the amount of $5,000. On April 10, 1995, the DOC served its Motion to Dismiss MCI's protest, alleging that MCI has no right to a formal administrative hearing on the award of the Contract. On April 12, 1995, the undersigned Hearing Officer, after consideration of the parties' pleadings and oral argument, ruled that MCI is entitled to a formal administrative hearing under Chapter 120, Florida Statutes, to determine whether the DOC's decision to award the contract to NAI was arbitrary, illegal, fraudulent, or dishonest. MCI has requested reasonable attorneys' fees and expenses pursuant to Section 120.57(1)(b)5, Florida Statutes, for costs incurred in responding to the DOC's Motion to Dismiss. The Hearing Officer has ruled on the motion by order issued concurrently with this recommended order.
Conclusions The Department adopts the Conclusions of Law contained in its Proposed Order, except for paragraph 189. The Hearing Officer's Conclusions of Law are also adopted, to the extent they do not conflict with the Department's. The following additional Conclusions of Law are now adopted into this Final Order. Service and personnel support were clearly part of the ITB, and were scored accordingly. Although Mr. Kronenberger considered service and support by recognizing the work already performed by Intervenor under its existing contract, sufficient consideration was not given for the $394,318 overcharge which Intervenor admitted to at the hearing. Since this overcharge was admitted to the Public Service Commission and not the Department, oversight is understandable. However, at this time the overcharge cannot be ignored. Certainly the significant amount of this overcharge has an impact on service provided. Although the Department still believes the equipment bid by Petitioner and Intervenor are "identical," service can no longer be considered the same due to the overcharge. Therefore, the award of the contract pursuant to the ITB should be made to Petitioner, MCI Telecommunications Corporation. RULING ON INTERVENOR'S EXCEPTIONS TO RECOMMENDED ORDER Intervenor's exceptions to paragraphs 46-50 of the Recommended Order are accepted by the Department and incorporated into this Final Order. Intervenor's exceptions to paragraph 51 are denied. Although the equipment are "identical," the Department does not, and did not at the hearing, maintain that the bids of Petitioner and Intervenor are identical in terms of support and service. Intervenor's exception to paragraph 70 of the Recommended Order is accepted by the Department and incorporated into this Final Order. Intervenor's exception to paragraph 71 of the Recommended Order is denied. The Hearing Officer is merely reciting the terms of the ITB, that service and support are also an important part of the bid. Mr. Kronenberger never denied the importance of service and support. Intervenor's exceptions to paragraphs 73-77 of the Recommended Order are accepted by the Department and incorporated into this Final Order. Intervenor's exceptions to paragraphs 79 and 81 of the Recommended Order are accepted by the Department and incorporated into this Final Order. Intervenor's exception to paragraph 80 of the Recommended Order is denied to the extent it rejects the finding of fact that Intervenor admitted to an overcharge of $394,318. Intervenor did admit this fact. Intervenor's exception to paragraph 82 of the Recommended Order is accepted by the Department and incorporated into this Final Order. RULINGS ON PETITIONER'S FILINGS No response is provided to the Petitioner's Response to Intervenor's Exceptions. There is no provision for filing such response under Chapter 120, and the Department is not required to respond to such pleadings. The Department has reviewed Petitioner's Request for Official Recognition and Enforcement of Ex Parte Communications Prohibitions. No Department employee who has testified or been deposed in this matter has discussed the merits of this action with the agency head. However, the Department does not agree with Petitioner's contention in its Request for Recognition that section 120.66, Florida Statutes, prohibits the agency head from conversing with the Department employees listed therein. This order may be appealed within thirty days by filing a notice of appeal with the agency and the district court of appeal. Except in cases of indigence, the court will require a filing fee and the agency will require payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.68, Florida Statutes, and the Florida Rules of Appellate Procedure. DONE AND ORDERED this 17 Day of July, 1995 in Tallahassee, Florida. HARRY K. SINGLETARY, JR, SECRETARY Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 (904) 488-2326 COPIES FURNISHED: Carloyn Raepple (via certified mail) Hopping Green Sams & Smith 123 South Calhoun Street Tallahassee, Florida 32314 Hume Coleman (via certified mail) Holland & Knight 315 South Calhoun Street Suite 600 Tallahassee, Florida 32302 Steven S. Ferst Department of Corrections Assistant General Counsel 2601 Blairstone Road Tallahassee, Florida 32399-2500 Mike Johnson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Don W. Davis, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed in the official records of the Department of Corrections on this 17th day of July, 1995. LORETTA L. LATSON, Agency Clerk
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered which declines the award to NAI and takes into account the foregoing findings of fact and conclusions of law when deciding the future course of awarding the contract for hardware, software and support needed to provide a fully functioning, secure inmate telephone system. DONE AND ORDERED this 15th day of June, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made with regard to purposed findings of fact submitted by the parties. Petitioner's Proposed Findings: 1.-30. Adopted. 31.-32. Adopted in substance. 33.-49. Adopted. 50.-54. Adopted in substance. 55.-58. Adopted. 59-63. Adopted in substance. 64-70. Adopted. 71. Rejected, unnecessary to result reached. 72.-82. Adopted. 83. Rejected, unnecessary. 84.-85. Adopted. Adopted in substance. Rejected, unnecessary to result. 88-92. Adopted. 93. Incorporated. 94.-96. Subordinate to HO findings. Respondent's Proposed Findings: Adopted. Rejected, unnecessary. 3.-5. Adopted. Adopted, not verbatim. Adopted. Rejected, redundant. Adopted. 10.-12. Rejected, subordinate. 13.-17. Adopted. 18.-22. Rejected, argumentative and subordinate. 23. Rejected, unnecessary. 24.-25. Rejected, weight of the evidence. 26. Rejected, subordinate. 27.-35. Rejected, weight of the evidence. 36.-43. Rejected, argumentative, weight of the evidence. 44.-52. Rejected, redundant, argumentative, subordinate. 53.-54 Rejected, argumentative, subordinate to HO findings. 55.-58. Rejected,Relevancy, weight of the evidence. 59.-63. Rejected, subordinate, weight of the evidence. Accepted. Rejected,Relevance. Rejected, weight of the evidence. Rejected, stands for proposition that an agency is not bound by terms of ITB at all, argumentative. Rejected,Relevance. Rejected, argument. 70.-71. Rejected, weight of the evidence. 72.-76. Rejected, argument. 77.-78. Rejected, argument, weight of the evidence. Adopted. Rejected, subordinate, authority is to award within perimeters of legality and the ITB. Rejected, comment on testimony. 82.-83. Rejected, subordinate to HO findings. 84. Rejected, legal conclusion. 85.-89. Rejected, subordinate to HO findings. 90.-91. Rejected,Recitation of documents. 92.-95. Rejected, argumentative. Rejected, subordinate. Rejected, recitation of documents. Rejected, relevance. 99.-107. Rejected, subordinate to HO findings. Intervenor's Proposed Findings: 1.-10. Accepted, though not verbatim. 11. Rejected, no record citation. 12.-14. Rejected, subordinate to HO findings. 15. Adopted, not verbatim. 16.-21. Rejected, subordinate to HO findings. 22. Rejected, no record citation. 23.-24. Rejected, subordinate. 25. Rejected, no record citation. 26.-29. Rejected, subordinate to HO findings. Adopted by reference. Rejected, subordinate. 32.-40. Rejected, subordinate to HO findings. 41. Accepted except for last sentence which is rejected on basis of relevance. 42.-43. Rejected, subordinate to HO findings. COPIES FURNISHED: Carolyn S. Raepple, Esquire Cheryl G. Stuart, Esquire Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, FL 32301 Linda P. Armstrong, Esquire MCI Telecommunications Corporation 1133 19th Street, N.W. Washington, D.C. 20036 Steve Ferst, Esquire Florida Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Hume F. Coleman, Esquire Holland & Knight 315 South Calhoun Street Tallahassee, FL 32302 Harry K. Singletary, Jr., Sec. Dept. of Corrections 2601 Blairstone Rd. Tallahassee, FL 32399-2500 Louis A. Vargas, Esq. Dept. of Corrections 2601 Blairstone Rd. Tallahassee, FL 32399-2500
Findings Of Fact On five dates in June and July, 1988, Respondent advertised in The Orlando Sentinel newspaper its Invitation to Bid for the project known as High School "BB." The advertisement announced that bids would be received at 2:00 p.m. on August 4, 1988, at which time all bids would be publicly opened. The advertisement stated that Respondent reserved the right to waive irregularities. The Invitation to Bid stated that bids received after the deadline "will be returned unopened" and bids "received on time" will be opened publicly. The Invitation to Bid also stated: "The Owner reserves the right to waive any informality or irregularity in any bid received when such a waiver is in the best interest of the Owner. The contract would be awarded, according to the Invitation to Bid, within 45 days after the opening of bids. The location designated for the opening of the bids was the Facilities Services building located at 6200 Chancellor Drive, Orlando, Florida. The bids were opened in a conference room within the building. Robert Gallardo, who is Respondent's Director of School Planning and Construction, was in charge of the bidding process. Mr. Gallardo has been in this position for six years. During this time, he has been responsible for the majority of school construction bids for Respondent. He estimates that he has supervised ten such bids. On August 4, 1988, Mr. Gallardo worked in his office in the Facilities Services building until 1:55 p.m. At that time, he asked his secretary if the bid tabulation forms had been prepared, and, with the forms, he left his office for the conference room where the bids were to be opened. Mr. Gallardo entered the conference room, which was occupied by a number of bidders' representatives, at 1:58 p.m., according to the clock on the wall. At a few seconds before 2:00 p.m., he first spoke, asking that all bids be handed in. He then asked his secretary to call the front desk to see if any bids had been turned in there and needed to be brought down the hall into the conference room. This was a normal procedure. In past bids, some bidders left their bids with the receptionist at the front desk. Prior to obtaining any response from his secretary who was talking on a phone in the conference room, Mr. Gallardo announced his name and position and announced that he was going to open bids. He then picked up a sealed bid from the pile of sealed bids in front of him. As he was about to open the envelope, at or about 30 seconds past 2:00 p.m., a man entered the conference room and said that he had a bid to deliver. The man disclosed the bidder which he represented, but Mr. Gallardo did not clearly hear the name and did not know whose bid was being offered to him. Mr. Gallardo accepted the bid and placed it at the bottom of the pile. The late bid was from Intervenor. A few seconds after it was accepted Mr. Gallardo opened the first bid. A few seconds after that, another man entered the conference room and attempted to deliver a bid. Mr. Gallardo refused to accept the bid because, as he explained, the first bid had already been opened. Mr. Gallardo's practice has consistently been to accept late bids, provided they are delivered prior to the opening of the first bid. Mr. Gallardo had not previously known of Intervenor, which had never previously even submitted a bid on a school job being let for bid by Respondent. Mr. Gallardo's only prior contact with Intervenor's representative who delivered the bid was seeing the man in the building, along with other bidders' representatives, prior to the opening of the bids; however, Mr. Gallardo did not know who the man represented. There was no fraud or collusion in the acceptance of the late bid. There was no evidence that, under the facts of this case, Respondent abused its discretion in accepting Intervenor's late bid. Petitioner's bid was lowest among the bids delivered prior to 2:00 p.m. However, Intervenor's bid was over $500,000 lower than Petitioner's bid on a project costing in excess of $25 million. Respondent has confirmed Mr. Gallardo's decision not to reject Intervenor's bid as late. On August 16, 1988, Respondent published the agenda for the next school board meeting, which was scheduled for August 23, 1988. One of the items to be taken up was the award of the contract for High School "BB." By letter dated August 18, 1988, Petitioner declined Respondent's invitation to participate in what the parties referred to as an informal hearing at the August 23 school board meeting. Threatening unspecified sanctions under state and federal law if Respondent awarded the contract at the August 23 meeting, Petitioner demanded a formal hearing and asserted that the bidding process should be stayed until resolution of the protest, under Section 120.5361 [sic -- apparently referring to Section 120.53(5)(c)]. By memorandum dated August 23, 1988, Respondent's attorney opined that Rule 6A-2.016(7) did not require Respondent to utilize the Section 120.53(5) bid protest procedures, but, out of an abundance of caution and in the interest of expediting resolution of the dispute, recommended the referral of Petitioner's protest to the Division of Administrative Hearings. By letter dated August 23, 1988, Respondent referred the protest to the Division of Administrative Hearings for a formal hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the bid protest of Petitioner. DONE and RECOMMENDED this 15th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4078BID Treatment Accorded Petitioner's Proposed Findings of Fact 1. Adopted except to the extent that "timely" implies that Intervenor's bid was improperly accepted. Such an implication is rejected as legal argument. 2 and 4. Adopted in substance. 3. Rejected as irrelevant. 5-7. Rejected as not findings of fact except that the inference of Intervenor's efficient utilization of time following the deadline is rejected as unsupported by the evidence and irrelevant. 8-9. Adopted to the extent relevant. 10-11. Rejected as irrelevant. 12-15. Rejected as subordinate to the procedures set forth in the Invitation to Bid and advertisement, especially concerning the waiver of irregularities. First sentence adopted. Second sentence rejected as recitation of testimony through semicolon and irrelevant as to remainder except that the basis for Mr. Gallardo's decision is adopted and modified to add that he accepted the late bid in accordance win his past practice. Petitioner proved all of the facts in this proposed finding except that it could have used effectively any additional time. In any event, all of the facts in this paragraph are irrelevant and are rejected for this reason. The theory of Petitioner's case, as well as the evidence that it offered, was that in this and every other major bid, the last minutes before the deadline are critical due to the unwillingness or inability of subcontractors to supply critical numbers substantially before the deadline. This theory proves too much because, if true, the Hewitt court would have been constrained to consider such a universal fact and thereby would have prevented the agency in that case from accepting the late bid. The Hewitt case stands for the proposition that, in general, an agency may accept late bids before the first bid is opened. It is incumbent upon a frustrated bidder to show that the agency abused its discretion, under the circumstances of the individual case. Petitioner has in essence suggested that the burden is upon the agency to show that it did not abuse its discretion, at least once the frustrated bidder shows that it spent a lot of time and money in preparing its bid and could have used more time. To the contrary, Hewitt tells the frustrated bidder that it must find evidence of impropriety, such as fraud or collusion, in the agency's acceptance of the late bid. This mandate is especially clear in light of the recent Groves-Watkins decision. 18-19 and 22. Rejected as irrelevant. See Paragraph 17. Adopted. 20A-20F. Rejected as legal argument. First sentence rejected as subordinate and recitation of testimony. Second sentence rejected as speculative. Rejected as speculative and unsupported by the evidence. Rejected as irrelevant and unsupported by the evidence. 24A-27. Rejected as legal argument. Adopted in substance. Rejected as not finding of fact. Treatment Accorded Respondent/Intervenor's Joint Proposed Findings of Fact 1-2. Adopted. 3-4. Rejected as not finding of fact. 5-6. Adopted in substance. Rejected as irrelevant. 8. Adopted in substance. 9-12. Adopted in substance except that Mr. Gallardo did not arrive in the conference room "several minutes" before 2:00 p.m. and Intervenor's representative arrived about 30 seconds after 2:00 p.m. 13. Rejected as irrelevant. 14-15. Adopted in substance. Rejected as unnecessary. Adopted. Rejected as irrelevant. See Paragraph 17 in Petitioner's proposed findings. COPIES FURNISHED: Joseph G. Thresher, Esquire Dykema Gossett Ashley Tower Suite 1400 100 South Ashley Drive Post Office Box 1050 Tampa, Florida 33601-1050 William M. Rowland, Jr., Esquire Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue Orlando, Florida 32803 Scott H. Johnson, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, Florida 32801 James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 North Tampa Avenue Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact Respondent issued an invitation to bid on March 13, 1992. Bid number SB 92-244I involved the disassembly and removal of an existing walk-in freezer and the furnishing and installation of a new walk-in freezer at Coral Sunset Elementary School. The invitations to bid provided in paragraph Y of the Special Conditions: Failure to file a specification protest within the time prescribed in Florida Statutes 120.53 3.(b) shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (sic) Bid specifications were included in the invitations to bid issued on March 13, 1992. Twenty-three bids were solicited. There were five responses. One of the responses was submitted by Choice Restaurant Equipment, Inc. ("Choice"). Choice is a vendor for equipment manufactured by Petitioner, Nor-Lake, Inc. ("Nor-Lake"). Nor-Lake is an out-of-state corporation with manufacturer's representatives in numerous states including Florida. 4, Petitioner, CHD Marketing Group ("CHD"), is the manufacturer's representative for Nor-Lake in Florida. CHD represents no other manufacturer of the product included in the bid response. Choice is a sales agent for CHD and other manufacturer's representatives in Florida. Choice sells the products of a variety of manufacturers but is the exclusive sales agent for CHD pursuant to a verbal agency agreement. Choice timely submitted a bid for bid number SB 92-244I on April 8, 1992, prior to the bid deadline of 2:00 p.m. on the same day. The successful bidder submitted its bid by Federal Express at 4:51 p.m on April 8, 1992. Respondent's Department of Purchasing and Stores (the "Department") had stated on March 13, 1992, when the invitations to bid were issued, that bid responses must be received by the Department no later than 2:00 p.m. on April 8, 1992, at the Department's address at 3980 RCA Boulevard/Suite 8044, Palm Beach Gardens, Florida, 33410-4276. Prior to April 8, 1992, the Department relocated to a new facility at 3326 Forest Hill Boulevard, West Palm Beach, Florida. The new address was posted at the old location and Department representatives were present at the old address to accept walk-in bids. Federal Express first attempted to deliver the successful bid at the Department's old address at 10:30 a.m. on April 8, 1992. Federal Express delivered the successful bid to the Department's new address at 4:51 p.m. At 2:00 p.m. on the same day, The Department announced that all bids were in and opened the bids that had been delivered. The successful bid and one other bid were delivered on April 8, 1992, after the public opening conducted at 2:00 p.m. on the same day. Bids were tabulated on April 9, 1992. Bid tabulations were posted on April 13, 1992, and the successful bid was announced. The successful bid was for $8,174.00. Three bids were lower than the successful bid. Choice's bid was for $7,742.56. The other two lower bids were for $8,020.00 and $6,620.00. All three lower bids were rejected as non- responsive. Choice's bid was rejected because it did not meet bid specifications for 22 gauge steel, thermostatically controlled door heaters, and reinforced steel door panels. CHD filed a Notice of Protest on April 14, 1992, and a Formal Written Protest on April 24, 1992. CHD's protest alleges that: Choice's bid was lower than that of the successful bidder; the successful bid was not timely made; the bids were not opened publicly in violation of bidding procedure requirements; and the bid specifications were arbitrary and capricious, favored one bidder, and that Choice's bid was responsive. Neither a notice of protest nor a formal written protest was submitted by Choice or Nor-Lake. Neither Choice nor Nor-Lake attended the informal protest conference conducted on April 30, 1992. On May 7, 1992, Respondent's Office of General Counsel issued its written notice of proposed agency action. The written notice recommended that the bid be awarded to the successful bidder and that CHD's protest be dismissed for lack of standing. CHD requested a formal hearing on May 14, 1992, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 15, 1992. The bid submitted by Choice was prepared by CHD but signed by the president of Choice. Neither Nor-Lake nor CHD signed a bid or were otherwise bidders of record for bid number SB 92-244I. Neither Choice, CHD, nor Nor-Lake, filed a notice of protest concerning the bid specifications within 72 hours after Choice received the notice of the project plans and specifications on March 13, 1992. The sole basis upon which CHD claims it is substantially affected is the adverse economic impact caused to it by the proposed agency action. The proposed agency action will result in lost sales from this and future transactions. CHD will lose commissions from this and future transactions. The dealer relationship between CHD and Choice will be damaged because Choice will not want to sell a freezer that is not acceptable to Respondent. The marketing strategy developed between CHD and Nor-Lake will be damaged because it is conditioned upon the award of public contracts.
