The Issue Whether the Department of Transportation's (DOT) intended decision to award contract T2442 for the Intelligent Transportation System improvements (Project) and other incidental construction on State Road 9A, in Duval County, to American Lighting & Signalization, Inc. (ALS), is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:1/ The contract being protested is T2442 for the Intelligent Transportation System improvements and other incidental construction for State Road 9A, in Duval County. The Department advertised the bid solicitation notice for the Project on July 27, 2012. The bid solicitation notice included a list of all of the pay items and estimated quantities for the project. DOT also posted all of the pay items online in two formats. One format was a downloadable file that could be used in software, and the other was similar to an Excel spreadsheet file. These formats could be used to formulate a bid. Changes to pay items are issued in an Addendum, and while two addendums were issued for this project, neither affected the pay items for the project. For several years, DOT has mandated that prospective bidders use an automated, online bidding process, by which prospective bidders request bid documents and submit their bids using the DOT's website. The letting date established as the deadline for submission of bids via electronic submission was September 26, 2012, and was set forth in the bid solicitation notice. In order to be considered, all bids were due by 10:30 a.m. on that day. Letting is the term used to indicate the date that the bids are due. The bid solicitation notice included a requirement that bidders for the Project attend a mandatory pre-bid meeting to be held on August 20, 2012. Hinson Electrical is a licensed electrical contracting company based in Jacksonville, Florida. The company has completed "hundreds" of projects for the State of Florida, including DOT, and is pre-qualified to bid on jobs with DOT. The mandatory pre-bid meeting was held on August 20, 2012, as scheduled. G. Christopher Ginn, Project Manager for Hinson Electrical, attended the pre-bid meeting, signed his name, and identified the company he represented (Hinson Electrical) on the sign-in sheet. Section 337.168(2), Florida Statutes, provides: (2) A document revealing the identity of persons who have requested or obtained bid packages, plans, or specifications pertaining to any project to be let by the department is confidential and exempt from the provisions of section 119.07(1) for the period which begins two working days prior to the deadline for obtaining bid packages, plans, or specifications and ends with the letting of the bid. As a business strategy, Hinson Electrical routinely orders bid documents within the two-day blackout period mandated by section 337.168(2), during which time DOT is required to take down its list of contractors who have requested bid documents concerning a particular project. Ordering bid documents within the blackout period prevents competitors from discovering whether Hinson Electrical is bidding for a particular project. The blackout period for the Project began at 5:00 p.m. on Friday, September 21, 2012. The deadline to order the bid documents for the Project was 10:30 a.m. on September 25, 2012. There is no requirement that contractors request bid documents prior to the pre-bid meeting (if one is required for a particular project), or at any time prior to the order deadline, which is 24 hours before the bid deadline. DOT acknowledged at hearing that it is Hinson Electrical's prerogative to order the bid documents within the blackout period during which the identities of bidders are kept confidential. Hinson Electrical ordered the bid documents for the Project at approximately 1:00 p.m. on September 24, 2012. The computerized system immediately provided access for Hinson Electrical to download the plans and specifications for the project at issue. However, four minutes later, at approximately 1:04 p.m., Hinson Electrical simultaneously received an email with a "Prequalification Failure Notice," and a second email stating that the bid document request for the Project was "pending." The Prequalification Failure Notice indicated that the bid document was not provided because Hinson Electrical had not attended the required pre-bid meeting for the Project.2/ Failure to attend the pre-bid meeting was the only basis stated in the Prequalification Failure Notice for DOT refusing to provide the bid document. As noted, Hinson Electrical's representative did in fact attend the pre-bid meeting for the Project, and he signed the sign-in sheet, attesting to his presence at the meeting. The sign-in sheet had been transmitted to DOT on August 21, 2012, the day after the pre-bid meeting was held. Thus, DOT's basis for sending Hinson Electrical a Prequalification Failure Notice was in error. The Prequalification Failure Notice also stated, "[Y]ou will be contacted by email or phone as soon as possible during business hours regarding requirements for obtaining the bid documents." However, DOT did not send an email or call Hinson Electrical after 1:04 p.m. on September 24, 2012, or at any time on September 25, 2012. Phillip Davis, a DOT employee in the Contracts Administration Office, was "blind copied" on the Hinson Electrical Prequalification Failure Notice email, with a "high importance" tag. Mr. Davis' job responsibilities include following up on these types of notices, though he is not supervised to ensure this occurs. Mr. Davis' responsibilities also include checking sign-in sheets from pre-bid meetings to authorize release of bid documents to contractors. DOT admits that Mr. Davis did not read the Hinson Electrical Prequalification Failure Notice; did not check the sign-in sheet from the pre-bid meeting; and made no attempt to contact Hinson Electrical, as promised in the notice. From September 20 through 25, 2012, Daniel Hinson and Chris Ginn obtained quotes from suppliers and subcontractors to prepare a bid for the Project. Hinson Electrical also secured a bid bond for the Project, and had everything necessary to submit a bid, except for the actual bid document. In the afternoon or early evening of September 25, 2012, Daniel Hinson sat down at his computer with the price lists and quotes he had obtained to prepare a bid for the Project. It was then that Mr. Hinson discovered DOT had not granted him access to the bid document for this Project, and that the failure notice he had received pertained to this Project, and was in error. Hinson Electrical was bidding on a total of eight contracts at that time, some of which did not have a mandatory pre-bid meeting. As of the close of business on September 25, 2012, DOT had still not made any effort to contact Hinson Electrical, as promised in the failure notice. At 7:55 p.m. on September 25, 2012, Hinson Electrical sent an email to the Contracts Administration general email address, stating that Hinson Electrical's representative had attended the pre-bid meeting and asking why Hinson Electrical was being excluded from the bidding. Shortly after 7:00 a.m. the following morning (September 26, 2012, the bid deadline), Chris Ginn called the project inspector, Thomas Woods of HNTB Corporation, on Hinson Electrical's behalf, and requested that HNTB confirm that Hinson Electrical's representative had attended the pre-bid meeting. At 7:32 a.m. that same morning, Mr. Woods sent an email to Juanita Moore notifying her of the error and confirming that Hinson Electrical's representative had indeed attended the pre-bid meeting. The Contracts Administration Office opened at 8:00 a.m. on the day of the bidding deadline. Within 36 minutes (by 8:36 a.m.), Ms. Moore reviewed Mr. Woods' email; checked the sign-in sheet; and instructed a subordinate, Colette Jackson, to send the bid document to Hinson Electrical. Ms. Jackson immediately sent the bid document to Hinson Electrical under a cover email. Ms. Moore testified that Phillip Davis could have easily gone through these same steps on September 24, 2012 (two days before the bid deadline), and timely transmitted the bid document to Hinson Electrical, if he had only read the Prequalification Failure Notice on which he was copied. Ms. Moore agreed that 24 hours would have been sufficient time for Mr. Davis to check the sign-in sheet and release the bid document. When DOT finally provided the bid document to Hinson Electrical, it was 1 hour, 54 minutes before the bid submission deadline. At 8:40 a.m. on September 26, 2012, (four minutes after receiving the bid document) Daniel Hinson spoke by telephone with Colette Jackson about needing additional time to complete Hinson Electrical's electronic bid submission. Colette Jackson testified that one of her responsibilities at DOT is to move bid deadlines, and that she can do so quickly upon receiving instructions from Ms. Moore to do so. However, Ms. Jackson did not have authority to provide the requested relief, so she transferred the call to Ms. Moore. Upon being transferred to Ms. Moore, Mr. Hinson asked for additional time to complete the Hinson Electrical bid for the Project. That request was refused by Ms. Moore. In her view, the fact that the pay items and estimated quantities for the project had previously been provided should have enabled Hinson Electrical to submit a bid within the two hours remaining prior to the deadline. In addition, Ms. Moore felt Hinson Electrical should have taken it upon itself to contact DOT immediately upon receiving the disqualification notification if it believed it had complied with all prerequisites. Contrary to Ms. Moore's opinion, Mr. Hinson testified that it would have taken him about four hours to go through the various steps to submit Hinson Electrical's online bid for the Project. DOT's position that Hinson Electrical could have completed and submitted its bid with less than two hours remaining is rejected as not credible. However, even if that were possible, it would have put Hinson Electrical at a disadvantage because every other bidder was able to download the bid document immediately upon request after the pre-bid meeting. Daniel Hinson has submitted bids for hundreds of DOT projects (including "dozens" using the current online system) and he reasonably believed there was insufficient time remaining before the deadline to prepare a competent bid and ensure its accuracy. Mr. Hinson's testimony regarding the amount of time necessary to prepare a complete and competent bid for the Project is more credible than the testimony of Ms. Moore. Considering the potential cost to Hinson Electrical of a mistake made in haste, it was entirely reasonable for Hinson Electrical to decline to submit a bid, and instead request a bid extension. Likewise, it was unreasonable for DOT to decline the extension request, given that it was DOT's mistake that necessitated the extension. DOT extends bid deadlines dozens of times each year, for various reasons, including computer issues, mistakes in the bid documents, or bad weather. Ms. Moore testified about bid deadlines that had been moved, three or four times in some cases, for reasons including computer glitches, website issues, and "technical problems." In one such instance, contractors could not obtain their bid documents on the Monday before a Wednesday letting (which is what happened to Hinson Electrical in this case), and DOT postponed the bid deadline. In another instance, a bid deadline was postponed for a third time "because the vendors couldn't download what they needed to bid." And in another example, the bid deadline was postponed with notice provided just 92 minutes before the deadline due to "server issues at the Department." In this final example, once the malfunction was identified, DOT promptly sent the notice of postponement to the bidders and later completed the other necessary steps to move the bid deadline. A postponement notice can be sent to bidders in less than ten minutes after the decision to postpone a bid is made. All other steps required to move a bid deadline are typically accomplished by DOT personnel in about an hour. DOT knows of no harm that would have come to the other bidders had DOT agreed to move the bid deadline to allow Hinson sufficient time to submit its online bid. At 9:22 a.m. on September 26, 2012, Daniel Hinson sent an email to Colette Jackson in response to her email, stating there was insufficient time for Hinson Electrical to prepare its bid for the Project and that a protest would be filed if DOT posted its intent to award the contract to one of the other bidders. The letting of the project occurred as scheduled at 10:30 a.m. on September 26, 2012. At approximately 4:00 p.m. on October 24, 2012, DOT posted notice of its intent to award the contract to ALS. This was the second posting date for the September 26, 2012 letting date. Thereafter, Hinson Electrical timely served its notice of protest, formal protest pleading, and the required bond. The advertisement for the Project reads, in part, "Bidders are hereby notified that all bids on any of the following projects are likely to be rejected if the lowest responsive bid received exceeds the engineer's estimate by more than ten percent (10%)." DOT does reject all bids for being too high in some cases. The bid submitted by ALS for the Project exceeded the proposal budget estimate of $4,183,958 by 19.9 percent (ALS' winning bid was $5,016,501.73). The Contract Award Committee (Committee) is the DOT body with discretion to reject all bids for a project. However, Ms. Moore never informed the Committee of Hinson Electrical's situation so that it could determine whether the Project should be rebid. Even after posting notice of intent to award the Project to ALS, DOT retained discretion to reject all bids, but Ms. Moore was unaware of that discretion and never discussed the matter with the Committee. Hinson Electrical credibly established that it would have submitted a bid of $4,973,361.99 for the Project had DOT provided the online bid document when Hinson Electrical first requested it. Thus, Hinson Electrical would have been the low bidder, and presumably awarded the contract. DOT had at least three opportunities to correct its mistake and allow Hinson Electrical an opportunity to bid. DOT could have (l) extended the bid deadline, as it has in many other cases; (2) rejected all bids and rebid the Project, before posting notice of intent to award the contract; or (3) rejected all bids even after posting notice of intent. In their Prehearing Stipulation, the parties stipulated to the following: DOT has no policy statements, handbook provisions, internal memoranda, guidelines, or other documents regarding the following subjects: How a failure to timely transmit bid documents in response to a prospective bidder's request, whether due to a transmission error or otherwise, should be handled or what relief may be provided to the bidder; Acceptable grounds for extending a bid submission deadline; How an erroneous determination that a prospective bidder for a project was not qualified to bid should be handled, either before or after the bid deadline has expired; Relief that can or should be provided to a prospective bidder who was denied the opportunity to bid for a project due, at least in part, to some irregularity in the bidding process; Relief that can or should be provided to a prospective bidder who was denied the opportunity to bid for a project due, at least in part, to some error made by FDOT (including its computer system); and How to handle a situation in which all received bids exceed the budget for the project by more than 10%. (Prehearing Stipulation, pgs. 11-12)
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Department of Transportation that rescinds the Notice of Intent to award Contract T2442 to American Lighting & Signalization, Inc. DONE AND ENTERED this 21st day of June, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 21st day of June, 2013.
The Issue Whether Respondent has acted acted fraudulently, arbitrarily, capriciously, illegally, or dishonestly with regard to the intended award of ITB 93/94-040- LOT/P.
Findings Of Fact By correspondence filed July 18, 1994, this bid protest was referred to the Division of Administrative Hearings from the Department of Lottery for the conduct of formal proceedings pursuant to Section 120.53(5), Florida Statutes. The formal bid protest document consists solely of a single page letter signed by Petitioner's president, C. Whitside-Curry, basically stating that the letter is to serve as Petitioner's formal written protest to Respondent's "Notice of Award - Notice of Non-Responsiveness - ITB 93/94-040-LOT/P - Invitation To Bid for Painting the Interior of the Lottery Central Building. Final hearing in the matter was scheduled for August 2, 1994, in compliance with requirements of Section 120.53(5)(e), Florida Statutes, that bid protests be set for hearing within 15 days absent stipulation of the parties waiving that statutory time frame. By motion filed July 29, 1994, counsel for Petitioner sought a continuance of the final hearing for a period of one week. Counsel had just been retained by Petitioner. As reflected in Petitioner's motion, counsel's request for a one week delay was acceptable to counsel for Respondent, provided that: the 30 day time frame governing issuance of recommended orders in bid challenge cases was not waived. that deposition of a principal of Petitioner, C. Whitside-Curry, be held on August 3, 1994 at 11:30 a.m. and that certain documents also be produced. A telephone hearing on Petitioner's continuance motion was held on August 1, 1994, to clarify the hearing officer's understanding that a one week continuance of the final hearing would not subtract a period of one week from the 30 day time frame following the final hearing within which to prepare a recommended order in the case. Thereafter the motion was granted and final hearing rescheduled, as agreed in the telephone conference, for August 9, 1994, one week after the initial hearing date. By notice filed on August 3, 1994 (transmitted to Petitioner's counsel by facsimile transmission on July 29, 1994), Respondent documented the agreed upon deposition of C. Whitside-Curry and documents to be produced. By motion filed on August 3, 1994, subsequent to Respondent's notice, Petitioner's counsel sought a further continuance of the final hearing and noticed the unavailability of Petitioner's principal, C. Whitside-Curry, for the scheduled deposition on August 3 or the final hearing scheduled for August 9, 1994. By motion filed on August 3, 1994, subsequent to Petitioner's second motion for continuance, Respondent moved for imposition of sanctions, including the dismissal of the bid protest on the basis that Petitioner had not complied with conditions agreed to by the parties as a part of the one week continuance, i.e., C. Whitside-Curry did not appear for deposition and documents were not produced. The motion further related that Respondent's notice of the deposition and request to produce documents (filed on August 3, 1994) had been transmitted, as noted above, to Petitioner's counsel by facsimile transmission on July 29, 1994. In the course of telephone conference with the parties on August 8, 1994, Petitioner's counsel agreed to payment of costs related to court reporter expense incurred by Respondent at the deposition where Petitioner's principal failed to appear. Respondent's counsel refused to consent to further continuance of the final hearing and Petitioner's request for a second continuance was denied. At final hearing, consideration was given to an Petitioner's Amended Second Motion For Continuance. The motion differed from previous motions to the extent that an attached copy of a letter dated April 21, 1994, appeared to indicate that a mediation meeting in another legal proceeding required the Petitioners' presence in Tampa, Florida, on the afternoon of August 9, 1994. No direct admissible evidence of Petitioner's inability to attend the hearing was presented. Upon denial of the amended motion for continuance, counsel for Petitioner announced that he could not go forward.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the formal bid protest filed in response to Respondent's intent to award ITB 93/94-040-LOT/P, be DISMISSED. DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1994. COPIES FURNISHED: Curley R. Doltie, Esquire 1103 Hays Street P.O. Box 1325 Tallahassee, Florida 32302 Louisa Warren, Esquire Department of Lottery 250 Marriot Drive Capitol Complex Tallahassee, Florida 32399-4011 Marcia Mann Secretary Department of Lottery Capitol Complex Tallahassee, Florida 32399-4002 Ken Hart General Counsel Department of Lottery Capitol Complex Tallahassee, Florida 32399-4011 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case. ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA J C & C ASSOCIATES, INC., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Petitioner, DISPOSITION THEREOF IF FILED vs. CASE NO. 94-3185 DOAH CASE NO. 94-3955BID DEPARTMENT OF LOTTERY, Respondent. / Opinion filed January 22, 1996. An Appeal from Order of the Department of Lottery. Curley R. Doltie, Tallahassee, for Appellant. Louisa H. Warren of Department of the Lottery, Tallahassee, for Appellee. PER CURIAM. AFFIRMED. ALLEN and KAHN, JJ., and SMITH, SENIOR JUDGE, CONCUR. MANDATE From DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT To the Honorable Don W. Davis, Hearing Officer Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled: J C & C ASSOCIATES, INC., Petitioner, vs. CASE NO. 94-3185 DOAH CASE NO. 94-3955BID DEPARTMENT OF LOTTERY, Respondent. The attached opinion was rendered on January 22, 1996. YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida. WITNESS the Honorable E. Earle Zehmer Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 11th day of March, 1996. (SEAL) Jon S. Wheeler Clerk, District Court of Appeal of Florida, First District
Findings Of Fact Background On February 23, 1988, Respondent, Department of General Services (Department), issued an invitation to bid (ITB) numbered 218-285-400-6, whereby it sought to establish a 24-month term contract for the purchase of large lamps, photo lamps, and studio, theatre, television, and video lamps by all State of Florida agencies. By April l, 1988, the bid opening date, four bids had been filed with the Department. On April 12, 1988, the bid results were posted by the Department. The bid results revealed that Petitioner, Mercedes Lighting and Electrical Supply, Inc. (Mercedes), was the lowest bidder and that Intervenor, Marpan Supply Company, Inc. (Marpan), was the second lowest bidder. The bid results further revealed that the bid of Mercedes had been rejected because it did not include a list of in-state service representative(s) as required by the ITB, and that the Department proposed to award the contract to Marpan. On April 12, 1988, Mercedes timely filed its notice of protest with the Department. Along with its notice of protest, Mercedes submitted a list of its in-state service representatives, and noted on its letter of transmittal that this list was "not included at time of bid." The bid documents Pertinent to this case, the ITB contained the following special condition: Service Availability of in-state representation to assist in proper application and to resolve technical problems is a requirement of this bid and the resulting contract. Bidders must, therefore, include as part of the bid a list of in-state service representative(s) who will be responsible for providing these services during the term of the proposed contract. Failure to comply with this requirement will result in disqualification of bid. . . . The coordination effort will be handled by the specific individual designated on the ordering instruction sheet. The ITB also contained the following general condition: 7. INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the Invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A 1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120 Florida Statutes. Mercedes did not protest the bid specifications or conditions within 72 hours after receipt of the ITB, nor did it seek any interpretation of the conditions specifications. Notably, the only protest filed by Mercedes was after the bid opening. The bid protest At hearing, Mercedes contended that its bid complied with the ITB because it included a list of Mercedes' in-state service representative(s) or, alternatively, that its failure to include a list of its in-state representative(s) was a minor irregularity that the Department should waive. 1/ Mercedes contends that its bid included a list of in-state service representatives, and therefore was responsive to the ITB, because of its response to page 11 of the bid package entitled "Ordering Instructions", and because there appeared on the back of the manufacturer's catalogs and price list, submitted with its bid, a Florida sales office for the manufacturer at which sales and technical information could be obtained. Mercedes' contention and the proof offered to support it are not credible. The form included at page 11 of the ITB provided, and was responded to by Mercedes, as follows: ORDERING INSTRUCTIONS NOTE: ALL ORDERS SHOULD BE DIRECTED TO: FEDERAL EMPLOYER IDENTIFICATION NUMBER (FEID) : 59-1891811 VENDOR: Mercedes Lighting and Electrical Supply, Inc. STREET ADDRESS OR P.O. BOX: 7354 SW 48th St. CITY, STATE, ZIP: Miami, Florida 33155 TELEPHONE: (305) 665-5550 TOLL FREE NO: DELIVERY: DELIVERY WILL BE MADE WITHIN SEE PAGE 4 DAYS AFTER RECEIPT OF PURCHASE ORDER. DELIVERIES IN EXCESS OF SEE PAGE 4 DAYS WILL NOT BE CONSIDERED. TEAMS FOR PROMPT PAYMENT; NET percent 30 DAYS PRODUCT INFORMATION; DIRECT INQUIRY TO: (NAME, ADDRESS, AND TELEPHONE NUMBER OR INDIVIDUAL IN YOUR ORGANIZATION WHO MAY BE CONTACTED REGARDING CONTRACT WHICH MAY RESULT FROM THIS BID.) NAME AND TITLE: Victor J. LaPorta, Vice President ADDRESS: 7354 SW 48th St. CITY, STATE, ZIP: Miami, FL. 33155 TELEPHONE: (305) 665-5550 TOLL FREE NO.: Mercedes did not indicate in its response to the "Ordering Instructions" form that Mr. LaPorta was its in-state service representative, and its response could not reasonably be so construed. The individual a bidder designated on this form was, pursuant to the special condition of the ITB regarding "Service", the coordinator between a purchaser and the in-state service representative. Mercedes' contention that its bid included a list of its in-state service representatives, because the manufacturer's technical catalogs and price list submitted with its bid contained the location and phone number of the manufacturer's sales office in Florida, in addition to 23 other states, is incredible. The manufacture's technical literature and price list was, pursuant to the special conditions of the ITB, a required part of the bid. While the manufacturer may have listed its sales offices on the back of its literature, there is nothing in Mercedes' bid that remotely suggests it intended that listing to be considered its list of in-state service representatives, nor could its response reasonably be so construed. In rejecting Mercedes' contention that its bid was responsive to the ITB, and rejecting its proof as inherently improbable and unworthy of belief, I note that the Department has issued similar ITB's for a number of years. But for the language in this ITB advising bidders that failure to include a list of in-state service representatives would result in disqualification of the bid, the service provision has remained essentially the same, as has the "Ordering Instructions" form and the requirement that the manufacturer's technical literature and price list be included in the bid. When this same contract was let two years ago, Mercedes was a bidder. Included within its response to that ITB was a list of its in-state service representatives. A minor irregularity? While Mercedes did not protest the terms and conditions of the bid within 72 hours of receipt of the ITB, it offered proof at hearing which tended to demonstrate that the demand for technical assistance under the state contract was not frequent. Based on this premise, Mercedes contended that its failure to include a list of in-state service representatives with its bid was a minor irregularity that should be waived by the Department. Again, Mercedes' contentions are not persuasive. Whether the demand for technical assistance is frequent or infrequent may be germane to a timely challenge to the propriety of the ITB requirement that a list of in-state service representative included in the bid. However, where, as here, the bidder did not protest such condition in a timely manner, it has waived its right to a Chapter 120 proceeding to contest its propriety. Under such circumstances, the protest is limited to whether the failure to include such a list was a minor irregularity, and the frequency of demand for technical assistance is not relevant. 2/ Minor irregularity is defined by Rule 13A-1.002(10), Florida Administrative Code, as: ...a variation from the invitation to bid... which does not affect the price of the bid..., or give the bidder... an advantage or benefit not enjoyed by other bidders..., or does not adversely impact the interests of the agency. Variations which are not minor can not be waived. The ITB mandated that failure to include a list of in-state service representatives with the bid would result in the bid's disqualification. Under such circumstances, Mercedes cannot be permitted to correct the deficiency after bid opening, and the deficiency cannot be deemed minor, because it would accord Mercedes an advantage not enjoyed by other bidders. Succinctly, Mercedes could revisit its bid on bid opening, refuse to supply the required list, and thereby effectively disqualify itself and withdraw its bid. The other bidders who timely submitted their lists would not have an opportunity to revisit their bids or withdraw their bids, but would be held to the provision of the ITB that prohibited such withdrawal for 90 days after bid opening. A frivolous protest Mercedes' protest was frivolous. It presented no justifiable question for resolution, and was without basis In fact or in law. Mercedes knew when it submitted its bid that a list of in-state service representatives was required. It simply forgot to include that list. When this oversight was disclosed at bid opening, it tried to supplement its bid. This effort, for the reasons set forth in the conclusions of law, was ineffective. Now, Mercedes would have the hearing officer believe that it intended its response to the "Ordering Instructions" form, as well as the manufacturer's technical literature and price list included in the bid, as its list of in-state service representatives. Such proof is not credible, such was not Mercedes' intent, and its response cannot reasonably be so construed. Mercedes' contention that its failure to include such list should be waived as a minor irregularity is likewise factually and legally without merit. See Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982), wherein this issue was previously resolved adverse to the position advocated by Mercedes. The impact of the protest The current term contract for lamps expires June 9, 1988. Upon expiration of that contract, state agencies will not be accorded the savings generated by a term contract and will be required to competitively bid any lamp purchase over $3,000. Had Mercedes not protested the Marpan award, state agencies would have enjoyed continued savings under a term contract that would have provided them prices 50 percent lower than could be obtained through individual agency bids.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by Mercedes Lighting and Electrical Supply, Inc. DONE AND ENTERED In Tallahassee, Leon County, Florida, this 3rd day of June, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1988.
The Issue The issue in this case is whether the Department of Transportation's (DOT) proposed award of contracts for emergency debris removal services is contrary to law, the agency's governing statutes, rules or policies, or the specifications of the Request for Proposals (RFP).
Findings Of Fact The Petitioner is a Florida corporation that provides emergency debris removal services following natural events such as hurricanes. DOT is a Florida state agency responsible for obtaining emergency debris removal services for roadways in the state. The Intervenor is one of the intended recipients of a contract for emergency debris removal services, resulting from the agency action at issue in this proceeding. On August 12, 2008, DOT published a Request for Proposals (RFP-DOT-08/09-7009RM) on the Florida Vendor Bid System, seeking to contract with vendors for emergency removal of debris from roadways within DOT District 7. DOT originally intended to enter into contracts with three vendors, but, through an addendum to the RFP, increased the number to four vendor contracts. The RFP stated that potential vendors were required to register on the "MYFLORIDAMARKETPLACE" website and to monitor the Florida Vendor Bid System for "any changing information prior to submitting their proposal." On the first page of the RFP, DOT provided an explicit "timeline" that included a "list of critical dates and actions," including various deadlines and scheduled meetings. The RFP timeline stated that a "Mandatory Pre-Proposal Conference" was scheduled for August 19, 2008. The RFP did not specify whom a prospective vendor could send to the mandatory conference, but stated that the failure to attend the mandatory conference would result in rejection of a proposal submitted by a non-attending vendor. According to the RFP, the proposals were to be submitted in two separate sections, a "technical" component and a "price" component. The RFP identified a three-part, 200-point evaluation system for use in reviewing the proposals, including 100 points allotted for technical proposal scores, 50 points allotted for price proposal scores, and 50 points allotted for oral presentations scores. The RFP timeline stated that the proposals were to be filed on August 27, 2008, and that the technical section would be opened on that date. According to the RFP, proposals scoring at least 70 points in the technical evaluation would be deemed responsive and included on a "shortlist" that, according to the RFP timeline, would be posted on September 9, 2008. Vendors identified on the shortlist were permitted to proceed into the oral presentation process. The RFP timeline specifically stated that the oral presentations would occur September 16 through 18, 2008. The RFP stated that the price proposals would be opened and evaluated on September 19, 2008, and that DOT would post the notice of intended awards on the same date. The projected path of Tropical Storm Fay through the Tampa area resulted in the closure of government offices on August 19, 2008, the originally scheduled mandatory conference date. By an addendum dated August 18, 2008, the date of the mandatory conference was delayed to August 21, 2008. The Petitioner assigned Employee Matthew Gierden, a regional manager, to attend the mandatory conference. Mr. Gierden had also attended a previous mandatory conference related to an earlier RFP for debris removal services. The Petitioner assigned Mr. Gierden to attend the mandatory conference because his base of operations (his residence in Ft. Myers, Florida) was geographically closer to the Tampa location of the conference than were the other employees located in Pompano Beach, Florida, where the Petitioner is headquartered. As did the other attendees at the August 21, 2008, mandatory conference, Mr. Gierden placed his signature and email address on a sign-in sheet. At the close of the conference, Mr. Gierden gave his business card to Rosa Morales, the DOT contract administrator responsible for the RFP at issue in this proceeding. On the back of his business card, Mr. Gierden wrote a request that a PowerPoint presentation from the conference be emailed to him. The business card contained Mr. Gierden's corporate email address and the Pompano Beach address where the Petitioner's corporate office was located. Ms. Morales subsequently emailed the presentation to him, as she did in response to the requests of other participants. Mr. Gierden forwarded the emailed presentation to company officials. The Petitioner submitted a proposal in response to the RFP and received sufficient points following evaluation of the technical part to be placed on the shortlist. DOT posted the shortlist as provided in the RFP. As stated previously, prospective vendors who were identified on the shortlist were eligible to make oral presentations to DOT. Specifically as to the oral presentations, the RFP provided in relevant part as follows: The Department will hold a public meeting to announce the short-list of Proposers, who will continue in this procurement process and be participating in the Oral Presentations on the date, time and location scheduled in the Timeline (See Introduction Section 2 Timeline). The Department will post the short-list on the Florida Vendor Bid System on the date and time scheduled in the Timeline. See Section 29.1 for information on posting of intended shortlist decision. * * * The committee members will independently evaluate the oral presentations on the criteria established in the section below in order to assure that all orals are uniformly rated. Oral Presentations are open to the public and are scheduled to begin on the date and time and location scheduled in the Timeline (See Introduction Section 2 Timeline). After the shortlist was determined, DOT established an oral presentation appearance schedule. According to the schedule, the Petitioner was to make its oral presentation at 9:00 a.m. on September 16, 2008. The day after the shortlist was posted on September 9, 2008, Ms. Morales sent an email to the shortlisted vendors, advising them of the scheduled order of oral presentation appearances. When doing so, she used the sign-in sheet from the mandatory conference and used Mr. Gierden's corporate email address because that was the address he provided on the sign-in sheet. The Petitioner's proposal included a cover sheet and contacts page identifying certain individuals, including John Noble, the Petitioner's chief operating officer, with the capacity to represent the Petitioner. Mr. Noble has been involved in previous RFPs and was aware of the Florida Vendor Bid System. Ms. Morales did not email the presentation schedule to Mr. Noble. Whether Mr. Gierden read Ms. Morales' September 10, 2008, email is disputed. Ms. Morales received a "read receipt" for the email (indicating that the email document had been opened), but Mr. Gierden has no recollection of reading the email. Mr. Gierden's primary responsibility with the Petitioner was as a project manager for storm-related recovery operations. Generally, Mr. Gierden deploys to the location of projected storm landfall and then relocates as needed to accommodate changes in a projected storm path. After a storm makes landfall, Mr. Gierden remains on-site to manage continuing extended activities as directed by company officials. In August and early September 2008, Mr. Gierden had been assigned to track Tropical Storm Hannah through the Florida eastern coast and into Georgia and South Carolina. He was also responsible for recovery efforts in Collier County, Florida, related to Tropical Storm Fay. Other than attending the mandatory conference as assigned by his employer, Mr. Gierden was not involved in the preparation of the Petitioner's response to the RFP. It is illogical to presume that Mr. Gierden read and then ignored Ms. Morales' September 10, 2008, email. However, on that same date, Mr. Gierden was instructed to prepare for imminent deployment to Texas where Hurricane Ike, a large and potentially dangerous weather event, appeared to be headed. Within a few minutes of having received the assignment, Mr. Gierden was involved in making the travel, family, and personal household decisions required to allow for an extended absence from home. Assuming that Mr. Gierden even read the Morales email, it is reasonable to presume that he overlooked its importance since he bore no responsibility for the RFP and had no involvement in the oral presentation schedule. In any event, the evidence establishes that the Petitioner's corporate office did not receive Ms. Morales' September 10, 2008, email and was not aware of the scheduled order of appearance for oral presentations. The Petitioner correctly notes that, although Mr. Gierden had attended the mandatory conference for an earlier RFP for emergency debris removal services and had similarly provided his email address on the sign-in sheet, in that instance Ms. Morales emailed the oral presentation schedule to a company official identified in its RFP response rather than to Mr. Gierden. The Petitioner asserts that DOT has breached a duty to provide notice of the actual oral presentation schedule to appropriate company officials. The RFP clearly provided for the public posting of the shortlist and explicitly identified the dates upon which the oral presentations would occur. Neither the RFP nor any other DOT policy required that DOT provide to vendors any actual notice of the scheduled order of presentation. The RFP states that, in accordance with state law, only written communication may occur between prospective vendors and DOT officials during the period between the release of the RFP and 72 hours after the posting of the notice of intended award. The evidence establishes that the Petitioner was clearly aware that it could communicate during the RFP process through email with Ms. Morales. A person identified as a marketing coordinator for the Petitioner inquired by email as to whether, due to Tropical Storm Fay, the mandatory conference would be rescheduled (as it was). Through other email to Ms. Morales, the same person also sought to obtain copies of bid proposals submitted by other prospective vendors as well as the evaluations of such proposals while the RFP process was ongoing. Because the release of such information was prohibited prior to the posting of the notice of intended award, Ms. Morales declined to provide the information. The Petitioner apparently assumed (based on the previous RFP experience) that DOT would send an email identifying the oral presentation schedule. Nonetheless, when such email was not received, the Petitioner appears to have made no effort to obtain the schedule or to otherwise ascertain the status of the oral presentations, notwithstanding the explicit identification of the oral presentation period in the RFP. Nine vendors were scheduled to make oral presentations. Three shortlisted vendors failed to attend the oral presentations. None of the three received any of the 50 points available for award based on oral presentations. The Petitioner asserts that the misdirected email was the cause of its non-attendance. The two other shortlisted vendors failed to make presentations for reasons unrelated to notice. The evidence is insufficient to establish that the Petitioner's failure to make an oral presentation was attributable to Ms. Morales' email to Mr. Gierden. The Petitioner asserts that DOT should have postponed the oral presentation period due to Hurricane Ike. Although there were initial concerns that Hurricane Ike could impact the State of Florida, ultimately the storm came ashore at the Gulf of Mexico coastline in the southern part of Texas. The evidence fails to establish that the Petitioner made any request to postpone the oral presentation period. The request was made by a vendor, also unsuccessful, that is not a party to this proceeding. DOT declined to postpone the oral presentation period because, according to DOT's emergency coordination officer, who was responsible for the decision, the storm was not affecting the locality where the presentations would occur. Further, DOT expected that a successful vendor would have the capacity to handle multiple storm-related activities, as well attend to its own business affairs. There is no credible evidence that DOT's refusal to postpone the oral presentation period was inappropriate or improper in any regard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the bid protest at issue in this proceeding. DONE AND ENTERED this 14th day of January, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 January, 2009. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 William J. Spriggs, Esquire Spriggs & Hollingsworth 1350 I Street Northwest Washington, DC 20005 Jose A. Loredo, Esquire Carlton Fields 4000 International Place 100 Southeast Second Street Miami, Florida 33131-2114 Colleen M. Fitzgerald, Esquire Carlton Fields, P.A. 4221 West Boy Scout Boulevard, Suite 1000 Tampa, Florida 33607-5780 Xavier A. Franco, Esquire Smith, Currie & Hancock, LLP 2700 Marquis One Tower 245 Peachtree Center Avenue, Northeast Atlanta, Georgia 30303-1227 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
Findings Of Fact On June 7, 1988, the School Board of Broward County, Florida, sent an invitation to several insurance companies to submit bids on student accident insurance, Bid No. 89-1105, by 2:00 p.m. on June 20, 1988. The invitation required the bidding vendor to complete a bid form, attach a specimen policy to the bid form, and return this information to the School Board by the specified date. Joseph Herman Hughes, Jr., received a copy of the Invitation to Bid as the Petitioner's agent. Petitioner through its agent Hughes hand-delivered a bid form and a specimen policy to the Department of Purchasing for the School Board on June 20, 1988, in Fort Lauderdale, Florida. When Hughes arrived in Fort Lauderdale on June 20, 1988, he was informed by the Department of Purchasing that the bid opening date had been extended to June 28, 1988. On June 20, 1988, Hughes received a copy of an addendum dated June 14, 1988, which revised page 8 of 14 pages to Bid No. 89- 1105 and page 9 of 14 pages to Bid No. 89-1105. Reliable timely submitted its bid on June 28, 1988. The bids were opened by the Department of Purchasing and Petitioner's bid of $210,820 per year for the 1988-1989 and 1989-1990 school years was the lowest bid that was submitted. The bid specifications stated that a recommendation by the Director of the Department of Risk Management would be posted subsequently. On July 8, 1988, the recommendation of Risk Management was posted. The recommendation letter dated July 6, 1988, stated that the bid for student accident insurance should be awarded to Davis-Gillingham Associates, Inc., which bid $313,514 for the first year and $334,772 for the second year. The recommendation letter also stated that the bid from Reliable had been rejected because Part IV of the Reliable specimen policy included an additional exclusion which altered the specifications of Bid No. 89-110S. Reliable timely filed a protest to the recommendation and, after considering the protest, The School Board rejected it. Hughes was aware of Paragraph 8 of the General Conditions on Page 2 of the Invitation to Bid, which reads as follows: INTERPRETATIONS: Any questions concerning conditions and specifications should be submitted in writing and received by the Department of Purchasing no later than three (3) working days prior to the bid opening. Hughes had questions concerning the interpretation of the conditions and specifications of the bid, but did not follow that provision. Further, he was familiar with Paragraph 14 appearing on Page 4 of 14 entitled "INFORMATION," which reads as follows: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mrs. Sharon Swan, Purchasing Agent, Purchasing Department, (305) 765- 6086 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mrs. Swan nor any employee of the School Board of Broward County is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. It is clear that Hughes had from approximately the 9th or 10th of June to the 28th of June to make any written inquiries to Mrs. Swan concerning either an interpretation or information, as provided for on Page 2 in Paragraph 8 of the General Conditions and Page 4 of 14 pages of the Special Conditions, but never did so. The provision entitled "Coverages" subsection "Medical and Hospital Expense Benefits" on Page 8 of the Invitation to Bid provides as follows: If the insured, within thirty days following the date of accident, because of injury caused accidently and independently of all other causes, shall require treatment by a licensed physician, the Company will pay, on the basis specified in Paragraphs A through K as follows, the expenses incurred within fifty-two (52) weeks after date of accident for ... Hughes wrote, in the exclusion portion of the specimen policy required to be attached to the bids submitted, Reliable's Paragraph J (1): "Any injury not treated within 30 days by a licensed physician ... after date of accident." The exclusion Hughes wrote specifically means that if a person is not treated within thirty days of the date of the accident there will be no coverage. The wording in the bid specifications does not provide that treatment must be rendered within thirty days; rather, the specification is that the treatment be required within thirty days. The exclusionary provision provided for in Reliable's specimen policy constitutes a significant restriction in coverage from the coverage described in the bid specifications. Therefore, the wording contained in J-1 of the exclusions of the specimen policy submitted by Reliable materially altered the specifications required by the School Board's Invitation to Bid number 89-1105 for student accident insurance. Reliable's bid was properly rejected from consideration in the award of the bid. Paragraph 7 of page 3 of 14 pages, Special Conditions, Bid No. 89- 1105, states as follows: All bids shall be for the benefits as specified in this Bid Document. In the event of any conflict between the terms of these specifications and terms of the Policy issued on a bid submitted under these specifications, it is understood and agreed to by the bidder and the insurance company that the policy is amended to conform with these specifications, unless specifically waived in writing by the School Board of Broward County, Florida. The clear intent of the wording in Paragraph 7 of the Special Conditions provides that if the policy that is issued after the bid is awarded does not conform to the bid, then the effect of Paragraph 7 of the Special Conditions is to automatically reform the policy to be read as though it did comply with the bid. However, all bids must be for the benefits (coverage) specified in the Invitation to Bid. Paragraph 7 of the Special Conditions found on Page 3 of the Invitation to Bid applies, if at all, only after the award of the bid and does not serve to cure defects in bid submissions. Reliable's policy does not conflict with the bid specifications; rather, its bid materially alters the bid specifications. Paragraph 1 of page 3 of 14 pages, Special Conditions, Bid No. 89- 1105, states as follows: The School Board of Broward County, Florida, desires bids on Student Accident Insurance as specified herein. This aid is to, establish a two (2) year term contract from August 29, 1988 through August 30, 1990 or the day preceding the opening day of school for students in the school year 1990-91. Prices quoted shall remain firm for the two year contract period. Requiring policies to be firm or definite for multiple contract periods is common in the industry. To require prices to remain firm for a 2- year contract period means that the premium for year one and the premium for year two must each remain fixed at the amounts bid for those respective years. The fact that there are different premiums for the two different years does not require a separate policy. The submission by Davis-Gillingham Associates, Inc., was in compliance with that bid specification of the Invitation to Bid as the premium for each coverage year is not required to be identical. Rather, the prices quoted for the two coverage years may not be altered during the contract period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying the bid protest of The Reliable Life Insurance Company and awarding Bid No. 89-1105 to Davis-Gillingham Associates, Inc. DONE and RECOMMENDED this 27th day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 27th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3842BID Petitioner's proposed findings of fact numbered 1-6, 11, 13-15, 25, 27, 29 and 30 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 7, 8, 16-19, and 22 have been rejected as being irrelevant to the issue under consideration herein. Petitioner's proposed findings of fact numbered 9, 10 and 20 have been rejected as not being supported by the weight of the credible evidence. Petitioners proposed finding of fact numbered 12 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 21, 23, 24, 26, 28 and 31 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-4, 6, 7, 10, 11, 13, 16, 17, 20 and 21 have been adopted either verbatim or in substance in this Recommended Order. Respondents's proposed findings of fact numbered 5, 8, 9, 12, 14, 15, 18 and 19 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 K. Michael Swann, Esquire William M. Rishoi, Esquire 280 West Canton Avenue, Suite 240 Winter Park, Florida 32789 Edward J. Marko, Esquire Post Office Box 4369 Fort Lauderdale, Florida 33338 Arthur Hanby, Director School Board of Broward County Purchasing Department 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312
The Issue The issue for consideration in this case is whether the Department of Corrections should issue a contract for conducting drug rehabilitative services at its facility in Brooksville, Florida to the Intervenor, Kansas City Community Center.
Findings Of Fact Dr. Barzelay, the individual responsible for the drafting of bids for the establishment of drug treatment centers, and also the person who gets them started, prepared and transmitted Petitioner's bid for the establishment and conduct of a drug treatment center for the Department at its facility in Brooksville, Florida prior to the deadline for submission of bids at 11:00 AM on January 20, 1992. It used the mandatory Price Quote Sheet from the ITB. Petitioner's bid was actually transmitted by U. S. overnight Mail, on January 18, 1992, and the package was receipted for by the Department. According to Mr. Mitchell, the Department's evaluator on this ITB, Petitioner's bid was submitted prior to the deadline and was found to be responsive. After the Petitioner's bid was placed in the mail, and after January 22, 1992, Petitioner received, also by mail, the Department's Addendum #1 to its IFB which extended the submittal deadline to January 24, 1992, and which also implemented a phase-in schedule to hire, bring on board, pay and get reimbursed for the cost of staff to man the proposed facility. The Department's transmittal of the Addendum required acknowledgment of it before January 24, 1992 on pain of being disqualified. Petitioner's copy of the Addendum #1 came addressed to Mr. Harding, a former worker at HDCP who, at the time of receipt, was a part time worker there in another office. Petitioner had previously notified the Department that Dr. Barzelay was the individual to whom mail pertaining to procurements was to be sent. However, the addendum did not reach him until the afternoon of January 22, 1992. It was logged in at HDCP on January 22, 1992. It should be noted that the Petitioner's proposal listed its Executive Director, Mr. Silikowski, as contact person, not Dr. Barzelay. The receipt of Addendum # 1 was somewhat of a shock to the Petitioner since it had already submitted it's bid. It was obvious to them that the Department had intended for the bid to be submitted on the basis of the terms of the Addendum. It appears that all other bidders received their copies of the Addendum on time. So did Petitioner, but the lateness of its arrival, Petitioner claims, put it in a disadvantageous position. Upon receipt of the Addendum, Dr. Barzelay got out the bid file and reviewed it to see if there was some way Petitioner's bid, which as submitted, was not consistent with the Addendum, could be modified so as to conform. After some 5 or 5 more hours of work on it, it seemed to him, on review, there was no way that could be done. Nonetheless, since the Addendum required acknowledgment of its receipt, Dr. Barzelay drafted a letter to the Department (Ms. Broyles) acknowledging receipt of the Addendum and requesting that the rules applying the phase-in schedule be applied to its already submitted figures. This response to Addendum 1 was submitted early, (January 22, 1992), to insure it got to the Department on time. Dr. Barzelay contends that his action was based on his prior experience where a response to another agency in a procurement situation was declared late even though received at the agency on time because, due to internal distribution delays, it did not get to the procurement officials on time. Notwithstanding the original submittal by Petitioner was for a full first year as well as full second and third years, staff there should have been aware of a phase in requirement for the Brooksville facility as well as the Gainesville site. The last sentence on Page 6 of the IFB reflects that a phase- in for the Brooksville facility would be determined at a later date. Therefore, Petitioner should have known that as to year 1 at least, the figures would not be for a full year at full strength. Mr. Barzelay's assertion that the bid implied the bid should be submitted for a full year to be prorated later has some validity, but the fact remains that the Addendum put out prior to the response date established the requirement to submit the bid on a pro-rata, phased-in basis. If there was any question as to what procedure to follow, Dr. Barzelay might have requested clarification from the Department but none was solicited. He claims the ITB dictated no contact with the Department by any prospective bidder after January 10, 1992. He relied on his experience and his reading of the bid solicitation to Petitioner's detriment. In the original ITB, all personnel and administrative cost figures were to be calculated on a full time employee, (FTE), basis. The ITB provided for the submittal to be prorated from the date of the contract and the Petitioner suggested this be done based on the Department's applying the phase-in schedule to the information already submitted by the Petitioner. The letter was sent to the Department by FEDEX overnight delivery so as to arrive at the Department before the bids were to be opened. There is no evidence that the Department did not receive this letter. The Department did not, thereafter, declare the Petitioner's bid unresponsive nor did anyone from the Department contact Dr. Barzelay about it. In early March, 1992, the Petitioner received the Department's Letter of Intent to award the contract in issue to KCCC. From looking at a copy of the bid tally sheet received from the Florida Alcohol and Drug Abuse Association, it was obvious to Petitioner's personnel that the Department had not applied the proration to Petitioner costs as had been requested. Therefore, Petitioner's cost figures were higher than they should have been at $1,491,778.00, whereas KCCC's bid was figured at $1,272,398.00. The Petitioner's figure would have been $1,200,151.00 if properly prorated. Utilizing those prorated figures, Dr. Barzelay then evaluated the points for bid amount based on the Department's award system but modified the formula somewhat. Under that system, the low bidder was to get 50 cost points. On the original Department tally sheet, KCCC, the apparent low bidder, received 50 cost points, and Petitioner got 41.38 points. If, however, Petitioner's bid were actually the $1,200,151.000 figure, it would have been the low bidder and been entitled to the full 50 points for price, with KCCC getting a somewhat lower number. Petitioner got 39.40 other points for a total of 80.78 total points. KCCC got 40.20 other points for a total of 90.20 total points. Evaluating the entire process on the basis of Petitioner's proposed change to give it the 50 cost points and KCCC somewhat less would result in a net change of somewhere around 10.19 points overall. Since, overall, Petitioner was only approximately 9.42 points behind KCCC, the Petitioner's suggested correction would make it the highest ranked responsive bidder by a small margin on the basis of a prorated first year and full second and third years. As it was, the Department used a full three years in evaluating Petitioner's bid because of the failure of Petitioner to timely prorate in compliance with Addendum 1. Respondent also recalculated the points using Petitioner's prices as contained in Petitioner's recalculated tally sheet, (Dr. Barzelay's figures), under the formula contained in Section 4.7.1 of the ITB and arrived at an award of 41.38 points for Petitioner, which is exactly what it was awarded originally. When Petitioner finally determined what had happened, it filed a notice of protest and requested information on other bidders from the Department. Though the requested information was provided, it was not received within the 10 day period Petitioner had in which to file its actual protest. The information received revealed that KCCC received it's copy of Addendum #1 on January 20, 1992. The actual bids received from Petitioner and the seven other bidders were opened and reviewed by Ms. Broyles, the Department's administrator for this procurement. She determined them all to be responsive as submitted and ready to be scored, a process done by Ms. Hallee Combs. Petitioner's submittal under Addendum #1 was delivered to the Department, but Ms. Broyles does not recall seeing either it or Dr. Barzelay's cover letter which accompanied it prior to the hearing. According to Ms. Broyles, the individual who put this procurement package together for the Department, the Addendum in issue here was probably sent out to all bidders on or about January 15, 1992. The original bid was sent out on January 3, 1992 and indicated that the first year of the contract would end on September 30, 1992. The bids were actually opened at the Department at 9:00 AM on January 24, 1992. Neither Petitioner's figures nor those of any other bidder were changed by the Department. Prior to the opening date, presumably in accordance with the terms of Addendum #1, several other bidders submitted updated cost figures. KCCC, for example, had already submitted its original bid when it received the addendum on January 20, 1992. After receipt, it took only 2 to 3 hours to prepare the information sought for the amendment and it was sent out the same days as received. Other bidders did not make any change, however, choosing instead to rely on the prices previously submitted. Petitioner received it's copy of the Addendum on January 22, 1992. By Dr. Barzelay's admission, it could have made the requested changes and dispatched its response by alternate transmission methods, i.e., FEDEX Overnight, UPS Overnight, US Overnight Mail, had it chosen to do so, but a decision was made to follow the course it took. Ms. Broyles also points out that at no time did Petitioner complain it did not have adequate time to respond to Addendum #1. In any case, Petitioner's proposal to have the Department prorate its previously submitted figures would not and could not have been honored. It is the Department's policy not ever to change prices submitted on a bid at a bidders request. To do so would impact the integrity of the bid process. Bids can be changed by the bidder itself, but then only prior to bid opening. Petitioner could have done that here. Ms. Broyles also asserts that considering the Petitioner's original bid, the addendum, and Petitioner's response thereto, it would not have been possible for the Department to recompute Petitioner's price quotation with any certainty. This is not so. Petitioner's prices initially quoted were for a full year. The Department put out its implementation schedule which it could have applied to Petitioner's prices. However, there were possible variables, such as start-up costs, and the like which would make it not a good idea to do so. Any mistakes in doing so would be laid at the feet of the agency. Also, there is no requirement for an agency to recompute a bidder's figures, and the strict and long standing agency policy not to do so is ample justification for it's not doing so. The prices submitted in the various bidders' last submittal, either the original bid or the amendment, were tabulated by the Department and the decision was made to award to KCCC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Corrections enter a Final Order in this case dismissing the protest of Human Development Center of Pasco, Inc., in regard to the proposed award of contract in procurement number 91-INST-5448, concerning the implementation and operation of the Brooksville Drug Treatment Center. RECOMMENDED this 10th day of June, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted. - 7. Accepted and incorporated herein. Accepted and incorporated herein but as to year one only. & 10. Accepted and incorporated herein. Accepted. - 18. Accepted but not material to the issues herein. Accepted and incorporated herein except for the use of the work "entirely", substituting therefore the word "partially." Rejected as speculation and argument. & 22. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. Last sentence rejected as a Conclusion of Law. Rejected as not supported by evidence of record. Accepted and incorporated herein. Redundant. A restatement of prior Findings of Fact. Rejected as not supported by evidence of record. Not a Finding of Fact but a commend on the evidence. Not a Finding of Fact but a restatement of testimony. Rejected. Petitioner mad no effort to comply - only objected and asked Respondent to accomplish the task. & 33. Rejected as argument and not a Finding of Fact. Accepted as a restatement of the process involved which Petitioner could have accomplished itself. Not a Finding of Fact but a statement of Petitioner's position. Accepted. Rejected. Rejected. Accepted. Accepted but not material to the issues. & 42. Restatement of testimony and a rgument. 43. & 44. Not a proper Finding of Fact. Not a Finding of Fact. & 47. Accepted but not dispositive of any issue. Last sentence rejected. Rejected as a restatement of and argument on the evidence. & 50. Not relevant to issues at hand. Redundant. Not a Finding of Fact. - 58. Not Findings of Fact but argument. Rejected as not supported by the evidence. & 61. Rejected. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted. 5. & 6. Accepted and incorporated herein. 7. - 9. Accepted and incorporated herein. 10. - 12. Accepted and incorporated herein. 13. - 15. Accepted and incorporated herein. 16. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein. 24. & 25. Accepted and incorporated herein. Accepted. - 30. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. - 34. Accepted and incorporated herein. 35. - 37. Accepted and incorporated herein. 38. & 39. Not Findings of Fact but Conclusions of Law. 40. - 42. Accepted and incorporated herein. 43. - 46. Accepted and incorporated herein. 47. - 49. Accepted and incorporated herein. Accepted and incorporated herein. Accepted but not relevent to any issue. Accepted and incorporated herein. Accepted. & 55. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but speculation. Accepted. - 63. Accepted and incorporated herein. 64. - 67. Accepted but not proper Findings of Fact. Accepted and incorporated herein. Accepted except for the characterization in the last four words. & 71. Accepted and incorporated herein. 72. - 75. Accepted and incorporated herein. Speculation and a comment on a party position. - 80. Accepted and incorporated herein. Not a proper Finding of Fact. Accepted. & 84. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 92. Accepted and incorporated herein. 93. - 99. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Speculation. - 106. Accepted. 107. & 108. Accepted and incorporated herein. 109. - 114. Accepted. 115. - 118. Accepted and incorporated herein. 119. & 120. Not Findings of Fact but Conclusions of Law. 121. - 123. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on evidence. & 127. Accepted and incorporated herein. 128. - 131. Accepted and incorporated herein. 132. - 135. Not Findings of Fact but comments on evidence. 136. & 137. Argument, not Findings of Fact. 138. & 139. Accepted. 140. Not a Finding of Fact but a comment on evidence. FOR THE INTERVENOR: Accepted and incorporated herein. & 6. Accepted. 7. & 8. Accepted and incorporated herein. 9. - 11. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a procedural matter. Accepted and incorporated herein. & 16. Accepted. 17. - 19. Accepted and incorporated herein. Not a Finding of Fact but a comment on evidence. Accepted and incorporated herein. - 27. Accepted. 28. - 35. Accepted and incorporated herein. 36. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. & 45. Accepted. 46. - 48. Accepted and incorporated herein. Accepted. & 51. Accepted and incorporated herein. 52. - 54. Accepted. 55. & 56. Accepted and incorporated herein. 57. & 58. Not Findings of fact but statements of party position. 59. - 61. Accepted. 62. - 65. Accepted and incorporated herein. Not a Finding of Fact but a restatement of testimony. & 68. Accepted and incorporated herein. 69. Accepted. 70 i - xvi. Not Findings of Fact but comments of the evidence and argument. COPIES FURNISHED: Frank P. Rainer, Esquire Gerald Sternstein, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. Monroe-Park Tower, Suite 1010 101 North Monroe Street Tallahassee, Florida 32301 Steven S. Ferst, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Michael J. Cherniga, Esquire Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A. P.O. Drawer 1838 Tallahassee, Florida 32302 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis Vargas General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
The Issue Whether the Palm Beach County School Board (hereinafter referred to as the "School Board") should sustain Petitioner's challenge to the preliminary determination made with respect to School Board Project No. 349661 to reject all bids submitted and to readvertise.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In March of 1993, the School Board issued an Advertisement for Bid (hereinafter referred to as the "Advertisement") through which it solicited the submission of bids on a construction project (School Board Project No. 349661, which is hereinafter referred to as the "Project") involving HVAC replacement, reroofing and other renovation work at Jupiter High School's Building No. 2. The School Board indicated in the Advertisement, among other things, that it "reserv[ed] the right to waive informalities in the Bids, or to reject all Bids." The Advertisement, along with the other bid documents issued in conjunction with the Advertisement, including, but not limited to, the Instructions to Bidders (hereinafter referred to as the "Instructions") and the Proposal Form, were compiled in a Project Manual that was made available for public inspection. Section 00100 of the Project Manual contained the Instructions, which provided, in pertinent part, as follows: Definitions Bidding Documents include the Advertisement for Bid, Notice to Prospective Bidders, Policies of the School Board, Instructions to Bidders, Contract, General Conditions, Supplementary General Conditions, Special Conditions, Bid Bond, Performance and Payment Bond, Proposal Form, and the proposed Contract Documents including all drawings, specifications and addenda issued prior to bid opening. Addenda are written or graphic instruments issued prior to the execution of the Contract which modify or interpret the Bidding Documents, including Drawings and Specifications, by additions, deletions, clarifications or corrections. Addenda will become part of the Contract Documents when the Construction Contract is executed. Bidding Procedures All Bids must be prepared using the forms contained in these specifications and submitted in accordance with the Instructions to Bidders. A Bid is invalid if it has not been deposited at the designated location prior to the time and date for receipt of Bids indicated in the Advertisement for Bid, or prior to any extension thereof issued to the Bidders. Unless otherwise provided in any supplement to these Instructions to Bidders, no Bidder shall modify, withdraw or cancel his Bid or any part thereof for sixty (60) days after the time designated for receipt of Bids in the "Advertisement for Bid." Preparation and Submission of Bid Proposal Form: Each Bidder shall use Proposal Form contained in these specifications, indicate his Bid prices thereon in proper spaces, for the entire work and for the alternates, if applicable. Any erasures or other corrections in the proposal must be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. Each proposal shall specify a price written in ink in both words and figures for each of the separate items, as called for, except when the Bid is called for on a lump sum basis. Lump sum Bids shall be shown in both words and figures; where there is a variation between the written amount and figures, the lower amount will be taken as the Bid price. Bid Modification: Bid Modification will be accepted from Bidders if addressed to the Owners, at the place where Bids are to be received, and if received prior to the opening of Bids. Modifications must be in writing and must be signed. . . . Modifications will be read by Owner or Architect prior to opening formal Bids. Withdrawal of Bids: Bids may be withdrawn on written request received from Bidders prior to the time fixed for opening. . . . Negligence on the part of the Bidder in preparing the Bid confers no right for withdrawal of the Bid after it has been opened. 4. Examination of Bidding Documents: 4.01 Each Bidder shall examine the Bidding Documents carefully and, not later than eight (8) days prior to the receipt of Bids, shall make written request to the Architect for interpretation or correction of any ambiguity, inconsistency or error therein which he may discover. Any interpretation or correction will be issued as an Addendum by the Architect. Only a written interpretation or correction by Addendum shall be binding. No Bidder shall rely upon any interpretation or correction given by any other method. . . . 6. Rejection of Bids 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is in any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to readvertise for other or further Bid Proposals. Award of Contract The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 101030-Alternates. Section 101030 of the Project Manual, which addressed the subject of "Alternates," provided, in pertinent part, as follows: 1.3 Related Work Described Elsewhere: Pertinent sections of these specifications describe materials and methods required under the various alternates. . . . The method for stating the proposed Contract Amount is described on the Proposal Form, Section 00310. Base Bid: A. Shall include all HVAC replacement, construction of the building roofing and all items shown on drawings and included in these specifications other than as specifically listed alternates. Alternate Number One: Provide an Architect/Owner on-site construction trailer of size and features stipulated below in lieu of such being provided by the Owner. Section 00310 of the Project Manual contained the Proposal Form that all bidders were required to use. It provided, in pertinent part, as follows: DATE SUBMITTED: TO: The School Board of Palm Beach County, Florida 3326 Forest Hill Boulevard West Palm Beach Florida 33406 PROPOSAL FOR: JUPITER HIGH SCHOOL BUILDING NO.2- HVAC REPLACEMENT/REFOOF/RENOVATIONS 500 NORTH MILITARY TRAIL JUPITER, FLORIDA 33458 PROJECT NO. 349661 Having become familiar with conditions at the Project Site and having carefully examined the Bidding Documents, including the Advertisement, Instructions to Bidders, and the Contract Documents, including but not limited to the General Conditions, Supplementary Conditions, Specifications, Details, Schedules, Addenda and Drawings, the Undersigned proposes to furnish all materials, labor equipment and anything else required for the entire Project in accordance with the Documents for the following sum: BASE BID: STATE PRICE IN WORDS AND FIGURES: ($ ) (PRICE IN WORDS) (FIGURES) ALL ALTERNATES MUST BE BID FOR BID TO BE RESPONSIVE. State price in words and figures. ADDITIVE ALTERNATE NO. 1: (Owner/Architect On-Site Construction Trailer) ($ ) (PRICE IN WORDS) (FIGURES) * * * If he is notified of the acceptance of this Bid within sixty (60) days of the time set for the opening of Bids, the Undersigned agrees to execute a Contract for the above Work within eight (8) Owner business days after notice that his Bid has been accepted for the above stated compensation minus or plus any accepted Alternates in the form of a contract presented by the Owner. . . . On March 30, 1993, the School Board issued Addendum No. 1, which added a fire protection system to the Project's scope of work and provided as follows: RE: Jupiter Community High School Building No. 2 HVAC Replacement, Reroof, Renovations The School Board of Palm Beach County, Florida School Project No. 349661 OEF Project No. 50-005625 P&L Project No. 92-061 To all bidders on the above project: Please note contents hereon and insert into the bidding documents that were issued to you on the above entitled project. The following supersede and supplant corresponding items in the specifications, drawings and details. It will be required that each Contractor- Builder/Developer, upon submitting his proposal for this project, indicate on the proposal form in the space provided that all addenda are included in his proposal. Failure to do so may cause rejection of a company's bid or proposal. The School Board of Palm Beach County, Peacock & Lewis Architects and Planners, Inc. and their consultants assume no liability or responsibility for the information on printed materials for this project that were not distributed from the office of Peacock & Lewis Architects and Planners, Inc. GENERAL: AD1-1: FIRE PROTECTION SYSTEM Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. Paragraph 1.2 A.6 of Section 15500, which was attached to Addendum No. 1, provided as follows: Contractor shall identify the cost associated with this scope of work on the proposal form as an itemized price which shall be included within the total bid price. Refer to proposal form. On April 5, 1993, the School Board issued Addendum No. 2, which revised the Proposal Form to reflect the additional pricing requirements imposed by Addendum No. 1. Addendum No. 2 added to the Proposal Form, immediately under the space provided for "Additive Alternative No. 1," the following: UNIT PRICE NO. 1: (Fire Protection System) Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. ($ ) (PRICE IN WORDS) (FIGURES) No other changes material to the instant case were made to the Proposal Form or to any of the other bid documents. It was the intention of those who were responsible for the preparation and issuance of Addenda Nos. 1 and 2 to require bidders to include the price of the fire protection system in their "Base Bid;" 1/ however, they failed to clearly and unambiguously express their intention in these addenda or any of the other bid documents. No other bid document aside from the revised Proposal Form made any reference to a "unit price." Unit prices are typically used in the construction industry to price work added to the initial scope of work, as was the fire protection system in the instant case. In interpreting the bid documents, Joseph Pirrotta, Petitioner's chief executive officer, relied upon his many years of experience in the construction industry. Based upon his reading of these documents, he reasonably believed that the "Unit Price No. 1 (Fire Protection System)" was a separate and distinct component of the "total bid price" and that, although it was to be included in the "bid" he submitted, it was not to be a part of the "Base Bid." While the bid documents were also susceptible to a contrary construction, Pirrotta's was the more reasonable of the two interpretations. Pirrotta completed the revised Proposal Form accordingly. Petitioner was one of three bidders to submit bids in response to the Advertisement. The other two bidders were Intervenor and Janus & Hill Corporation (hereinafter referred to as "Janus"). Petitioner quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,672,000.00; "Additive Alternate No.1"- $3,400.00; and "Unit Price No. 1"- $80,000.00. As noted above, Petitioner's "Base Bid" did not include the price of the fire protection system. Intervenor quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,947,000.00; "Additive Alternate No.1"- $6,000.00; and "Unit Price No. 1"- $36,484.00. Unlike Petitioner, Intervenor included in its "Base Bid" the price of the fire protection system; however, even if it had not done so, its "total bid price" would still have been substantially higher than Petitioner's. Janus quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,970,000.00; "Additive Alternate No.1"- $2,020.00; and "Unit Price No. 1"- $90,000.00. 2/ After bid opening, the School Board's contract administrator for the Project, Albert Paglia, correctly determined that Petitioner was the lowest responsive bidder. Thereafter, he telephoned Pirrotta to congratulate him on his company's successful bid. Before his telephone conversation with Pirrotta, Paglia assumed that Petitioner's "Base Bid" included the price of the fire protection system. He learned otherwise, however, after speaking with Pirrotta, who informed him that Petitioner's "total bid price," excluding "Additive Alternate No. 1," was its "Base Bid" of $1,672,000.00, plus the $80,000.00 for the fire protection system reflected as "Unit Price No. 1" on its completed revised Proposal Form. Paglia and others with whom he was working on the Project perceived this as a problem. They therefore brought the matter to the attention of Lawrence Zabik, the School Board's assistant superintendent for support services. Zabik's initial reaction was to award the contract for the Project, including the fire protection system, to Petitioner for $1,672,00.00, Petitioner's "Base Bid." Pirrotta was unwilling to undertake the Project for that amount. By letter to Zabik dated May 5, 1993, Intervenor gave notice to the School Board of its intent to protest any award made to Petitioner. The letter provided as follows: Based on our review of the Bid Documents submitted by J.D. Pirrotta on April 20, 1992, we are notifying you of our intent to protest the award of the above referenced project to any firm other than Milne & Nicholls, Inc. We will base our protest on the non- responsiveness of J.D. Pirrotta's bid. As you are aware, Mr. Pirrotta requested an additional $80,000 to compensate him for his misinterpretation of Unit Price #1 as an additive alternate. It is now apparent that his bid is incomplete and therefore non- responsive. Please advise us of the Owner's intention with regard to the Award on this project. Zabik referred the letter to the School Board's Office of the General Counsel. By letter dated May 13, 1993, authored by one of the School Board's attorneys, the School Board announced that it intended to reject all bids and readvertise, giving the following explanation: In the instant case, since the bid is susceptible to two interpretations, one of which would be that the Fire Protection System was included in the base bid, and the other that it was not leads to an unfair economic advantage by one bidder over others. The example would be that the low bidder in the instant case is permitted to add the Fire Protection System on as an alternate when it was not intended. Given the ambiguity, the bid should be rejected and the specifications rewritten and readvertised. [Citations omitted.] In the instant case, rejection of all bids is the only reasonable solution so that all parties are given a fair playing field. The School Board has not acted arbitrarily or capriciously in arriving at this decision to readvertise, given the parties place a different interpretation on the bid proposal form. The concerns expressed in the letter that Pirrotta obtained an "unfair economic advantage" over the other bidders as a result of the "ambiguity" in the bid documents are unwarranted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner, as the lowest and best responsive bidder, the contract for School Board Project No. 349661 for $1,752,000.00, plus the price for "Additive Alternate No. 1" should the School Board choose to include this alternate within the Project's scope of work. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of July, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1993.
The Issue Whether the apparent low bid on contract No. SB 95C-66W should be disqualified on the grounds that the bidder does not meet the experience specifications contained in the Invitation to Bid.
Findings Of Fact On August 16, 1994, the School Board issued Invitation to Bid (ITB) No. SB 95C-66W, which was described as being a "term contract to provide and/or install rubberized coatings for sports surfaces." Among the bidders who responded to the ITB were the Petitioner, Papico Construction, Inc., and AAA Tennis Courts, Inc. On August 31, 1994, bids were tabulated and the School Board posted its intent to award the bid to Papico. Thereafter, the bid process was delayed as a result of a protest filed by another bidder. On December 12, 1994, Petitioner filed the formal bid protest that resulted in this proceeding. The School Board does not challenge the timeliness of Petitioner's protest. Among the special conditions of the ITB is the following pertaining the qualifications of the bidder: E. QUALIFICATIONS: The bidder shall have maintained continual work experience in coatings for running tracks for a period of three years prior to the bid date. Bidder must submit written documentation with bid or within three days upon request, substantiating experience requirement. The bidder shall have a place of business for contact by the owner during normal working days. Petitioner framed its challenge to the bid process by the following portion of its formal bid protest: . . . To award this project to Papico or AAA Tennis Courts is not only directly in contradiction to the 3 years of continuous work experience section of the specifications (Special Conditions - E), but also deprives the school system of our experience. . . . Papico timely submitted to the School Board written documentation that substantiated that it met the experience requirement contained in Special Condition - E. The evidence presented at the formal hearing established that Papico is an experienced contractor for recreational surfaces and has been involved in coatings for running tracks since 1989. Between 1989 and the time of the formal hearing, Papico had been involved as either the contractor or as a subcontractor for the surfacing or resurfacing of running tracks at Indiantown Middle School, Parkland High School, Hidden Oaks Middle School, J.D. Parker Elementary School, Florida Atlantic University, Martin County High School, South Plantation High School, and Deland High School. At the formal hearing, Petitioner asserted that Papico also did not meet the experience criteria contained in Special Condition - M. That provision is as follows: M. QUALIFICATIONS: The contractor will submit a list of five all-weather running tracks the firm has resurfaced during the past three years. The list shall contain: owner name, location, phone number, number of tracks, and year constructed or resurfaced. (The district reserves the right to contract these owners as references.) Notwithstanding the fact that this issue was not properly preserved by Petitioner, the evidence established that Papico provided this list to the School Board, thereby complying with Special Condition - M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the findings of fact and conclusions of law contained herein, dismisses the bid protest filed by Recreational Surfaces, Inc., and awards the subject contract to Papico Construction, Inc. DONE AND ENTERED this 9th day of February, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of February, 1995. COPIES FURNISHED: James Petrucelli Recreational Surfaces, Inc. 2123 Oregon Street Orlando, Florida 32803 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
Findings Of Fact During the summer of 1994, the Department of Management Services (DMS) began to develop an invitation to bid (ITB), to establish a state contract for the purchase of client server systems. The contract included microcomputers, network/file servers, workstations, workstation servers, and peripherals. The future contract would replace the current state contract between AmeriData and DMS. The process utilized by DMS to establish the ITB included meetings with state users and representatives of the microcomputer vending community. In particular, the pricing methodology for the ITB was developed from user conferences, vendor meetings and pre-bid conferences. DMS had many goals it wished to achieve under the new ITB for computers. These goals included making a wider range of products available to the user agencies, obtaining computer products at better prices than under the current contract, making a more diverse line of commodities available, obtaining the participation of third party vendors and making third party vendor products available. In particular, DMS wanted to enable agencies to purchase integrated "computer systems" consisting of computers with standard and upgradable components at the same discount price as a computer alone when those components are simultaneously purchased with the computer as a system or as computer system bundles. This effort resulted in the drafting of an Invitation to Bid dated September 26, 1994, which was circulated to known vendors for question and comment. The ITB of September 26, 1994 called for bids for statewide support levels I and II for microcomputers, desktop, deskside and portable (Tables 2.1 and 2.2) and for network/file servers (Table 3.0). These items were to be bid as percentage mark-up from dealer cost. Workstation and workstation servers (Table 4.0) and peripherals, (monitors, printers, plotters, network cards, etc.) (Tables 5.1 through 5.9) were to be bid as percentage discounts from the manufacturer's suggested retail price (MSRP). Additionally, if vendors desired to submit a price list for the balance of a vendor's product line, such "balance of line" peripherals were to be offered under the same pricing schedule (a single whole number discount from the MSRP) as the peripherals category (monitors, printers, etc.) which described the balance of line item. The term "balance of line" as used in the ITB was intended to allow a product line vendor to submit a price list on the manufacturer's line of peripherals as well as third party peripherals. In other words, a vendor offering the IBM line of microcomputer systems under tables 2.1, 2.2 and 3.0 could submit a price list for the IBM line of peripherals (monitors, printers, plotters, etc.) under a balance of line price list for tables 2.1, 2.2 and 3.0, and submit a price list for third party peripheral products (Epson printers, Samsung monitors, etc.), under tables 5.1 through 5.9. The initial ITB generated many questions. DMS prepared written responses to the questions it received from various prospective bidders. On November 9, 1994, DMS held its Client/Server System Pre-Bid Conference. The conference was attended by various company representatives who were prospective bidders. The prospective bidders included representatives John Reneger and Lytt Noel from Vanstar Corporation, Dale Kennedy from AmeriData, and Mark Holt and Roy Wade from IBM. At that Pre-Bid Conference the attendees were given 41 pages of questions and the responses to those questions that had been prepared by DMS. Based on questions and comments raised at the November 9, 1994, Pre-Bid Conference, DMS issued Addendum number 2 on November 21, 1994. Addendum number to the ITB contained the bid specifications, attached copies of the pre-bid attendance list, copies of the pre-bid questions and answers, and a list by item of ITB changes. It also contained a document entitled Complex Issues for Follow-up. Later, Addendum number 3 was issued on December 21, 1994, and Addendum number 4 was issued January 10, 1995. Addendum number 3 added two more eligible bidders of products. Addendum number 4 changed the bid opening date to January 11, 1995. On January 11, 1995, the bids were opened. Later the bid tabulation with proposed awards was posted. Vanstar bid two percent cost plus on the product line for IBM microcomputers and offered twelve percent cost plus as its prices for balance of line peripherals. AmeriData bid four percent cost plus for the IBM product line of microcomputers and offered four percent cost plus as its prices for balance of line peripherals. Because Vanstar was the low bid for IBM microcomputers, DMS proposed to award the contract to it. Addendum number 2 was the final substantive addendum to the initial ITB. For purposes of this case, Addendum number 2 was virtually identical to the initial ITB. However, Addendum number 2 changed the pricing methodology for the balance of line items in Paragraph 2.0, on page 19 of the Specifications for the Client Server Systems from discount off manufacturer's suggested retail price to "the same pricing schedule (cost plus) as the microcomputer systems," for that product line. In this case, the microcomputer systems were for the IBM product line. The ITB clearly stated that the balance of line price lists would not be considered in the evaluation or award of the bids. In fact, in response to a specific question on balance of line, DMS in Section T-1, page 25, stated that balance of line items would not be used for evaluation purposes. The ITB specified that DMS intended to negotiate the balance of line items if the price submitted by the vendor was determined to not be competitive. The ITB generally stated how the negotiations would take place. However, the ITB did not define what competitive prices were. On the other hand, it was clear that a contract for balance of line items may not be awarded. The ITB provided on page 10 of the Special Conditions, under balance of line: The Balance of Line price list provisions of this bid/contract are provided for the convenience and benefit of the contract users as well as the awarded vendors. The Division of Purchasing will review and compare balance of line price lists to determine if prices are competitive. Should it be determined by the Division of Purchasing that the balance of line price lists of the awarded contractor are not competitive, the contractor will be given an opportunity to resubmit a negotiated competitive price list. If the contractor is unable or chooses not to reduce prices for Balance of Line products, the Balance of Line will not be awarded. The above language in the ITB was intended to serve as a Notice of Intent to Negotiate. However, DMS did not post the Notice of Intent to Negotiate in the office of the Division of Purchasing as required in Rule 60A- 1.018(2), Florida Administrative Code. Additionally, the evidence did not show compliance with any of the other provisions of the Rule 60A-1.018(2), Florida Administrative Code. The procedure of negotiating the balance of line item with the awarded contractor was further clarified in the question and answer section of Addendum No. 2. On page 19, at P-6, in response to a question requesting explanation of the balance of line items, DMS stated that the Division of Purchasing would review and compare balance of line items to determine whether they were competitive and, if the prices were not competitive, DMS could negotiate with the contractor who was awarded the bid on the microcomputers. At page 8, question E-1, DMS further stated in part that "if the Balance of Line price list submitted as part of Sections 2.1 and 2.0 as specified is not competitive for similar items bid in Section 5.0, then "Balance of Line" prices will be negotiated or excluded from the award for that bidder." Moreover, if the negotiations, should fail, no negotiations will be conducted with any other bidder and no contract for the balance of line items would be entered into. There was no requirement in the ITB that a vendor submit balance of line price lists. The ITB at page 9 stated in part "vendors who bid and are awarded microcomputer systems may offer a Balance of Line." (Emphasis supplied). In short, the balance of line price list was not a bid under the ITB but served to supply information to DMS on the prices of peripherals which would most likely be used for comparison with other bidder's prices on the same peripherals. The award of any balance of line/peripheral contract was not part of the award of ITB 9-250-040-B, but was to be part of a separate process involving negotiation with a specific vendor. AmeriData was aware that submitting a price list for balance of line items was optional and, if it submitted a price list for balance of line items, the information would not be used to evaluate the winning bid for microcomputers under the ITB. The type of negotiations for balance of line identified in the ITB is unique and has never been attempted by DMS in the past. DMS admitted that in selecting this method it did not consider the fact that approximately ten to eleven million dollars out of twenty million dollars in sales or about 50 percent of the sales volume for IBM products from the 1994 contract were for IBM peripherals. Additionally, because the process is new, DMS at the time of hearing, had not decided the specifics of how the negotiations would be conducted, but believes there will be more steps and methodology involved in the actual negotiations, if it occurs, with the successful bidder than are actually documented in the ITB. DMS believes that any negotiations must be in compliance with Rule 60A-1.018(2), Florida Administrative Code, Negotiations After Bid which establishes parameters on the procedures for negotiating contracts for the purchase of commodities or contractual services. However, DMS also believes that the negotiations, if they occur, will be a more informal process than the negotiations mandated under Rule 60A-1.018(2), Florida Administrative Code. In any event, whatever negotiations DMS proposes should comply with Florida Statutes and Rules beginning with the posting of Notice in the office the Division Rule 60A-1.018(2)(b), Florida Administrative Code, the development of a vendor list with rankings Rule 60A-1.018(2)(c), Florida Administrative Code, etc. Given the preliminary status of the negotiation procedure, its brief outline in the ITB and the posting of the ITB cannot form the basis of an intent to negotiate. DMS did not receive any written objections to DMS's plan to award the contract on the bids received for microcomputers under 2.1 without regard to the price list for balance of line items. Likewise, DMS did not receive any written objections to the proposal to negotiate balance of line items with the winning bidder on the microcomputers. However, since the balance of line price lists were not a bid and were not "specifications" in a bid which enable a bidder to receive the bid award, the 72 hour protest time for bids does not apply. On the other hand, since the negotiation procedure is separate from the bid award, the procedure is not properly part of a bid protest under Section 120.53, Florida Statutes. Additionally, protestations of the negotiation procedure should comply with Rule 60A-1.018(2)(b), Florida Administrative Code, which permits protests of the agency's decision to negotiate once a Notice of Intent is posted. The Notice has not yet been posted. Therefore, consideration of the scanty and tenuous plan for negotiations outlined in the ITB is not ripe for consideration. Throughout the ITB, there are predominantly two pricing schemes utilized for microcomputers, peripherals and balance of line items. The two pricing schemes are calculated as a percent discount from the manufacturer's suggested retail price or as a percent discount from the dealer's cost. For example, in the section of the bid, on pages 24 and 25 relating to printers, DMS requires that a person submitting a bid for balance of line items be bid "at the same discount or greater discount rate as the printers." In Section 5.5 relating to input devices, DMS likewise requires that the balance of line be submitted "at the same discount or greater discount rate." In the portion of the ITB relating to microcomputers in Sections 2.0 and 2.1, the ITB requires that the balance of line be offered under the same pricing schedule (cost plus) as the microcomputer systems category of the bid. Under tables 5.2 and 5.5 of the ITB the price lists for balance of line are to be computed using the same percentage rate. In short, the language permits a different percentage mark-up to be submitted on balance of line items as on microcomputers as long as the same pricing scheme or schedule is used, i.e., cost plus as opposed to discount off MSRP. However, Roy Wade, the IBM segment owner for government in the State of Florida, who attended the pre-bid conference and worked with AmeriData on its bid, had several conversations with AmeriData about whether the same percentage had to be used for both microcomputers and balance of line. In fact, there was a difference of opinion in the IBM office as to whether you could use the same or different percentages on the balance of line items and the microcomputers. Mark Holt, in the IBM office and who also attended the pre-bid conference, was of the opinion that a bidder could use different percentages in the balance of line items and the microcomputers. Roy Wade was of the opinion that the same percentage had to be used. Mr. Wade, at the request of AmeriData, met with Mr. Melvin of DMS at Mr. Melvin's office to seek oral clarification regarding pricing of the balance of line items. Mr. Wade testified that Mr. Melvin told him the same percentage mark-up had to be bid. However, Mr. Melvin did not recall making such a statement to Mr. Wade, and did not remember meeting with Mr. Wade during that time period. The normal procedure for visitors to the DMS Division of Purchasing is to sign in. The sign in log does not show any entry for Mr. Wade for this period. In fact, the only date, relevant to this proceeding, for which Mr. Wade signed in was January 5, 1995. During the hearing Mr. Wade stated that it was not uncommon for him to fail to sign in. However, in his deposition Mr. Wade stated that during this time period he visited DMS 5 to 10 times, but failed to sign in on only "a couple" of occasions. Mr. Wade stated that after his meeting with DMS, he again discussed the percentage issue with AmeriData. Mr. Wade relayed what Mr. Melvin had allegedly told him. Mr. Wade encouraged AmeriData to get verification directly from DMS. After this conversation, AmeriData met with DMS personnel on December 21, 1994, on another issue. AmeriData did not ask any questions regarding whether the same percent mark-up had to be used for balance of line and microcomputers. Later around January 5, 1995, AmeriData had a telephone conversation with Mr. Comer of DMS. During the conversation, Mr. Comer allegedly told AmeriData that the same percentage had to be bid. However, Mr. Comer has no recollection of such a statement. Mr. Comer also testified that he was not aware of the percentage issue in January, 1995. Given the discrepancies in the testimony regarding these oral conversations, these oral conversations are simply too vague to credit any alleged statements made by DMS personnel during those conversations, especially since IBM, which entered a separate bid on products under Section 4.0 of the specifications through Mark Holt, bid a separate percentage for balance of line items. Moreover, as indicated earlier, the ITB contains no language specifically stating that the same percentage must be used for balance of line items as for items contained in Tables 2.1, 2.2 and 3.0. While there is language that states that bidders must bid a single whole number percentage mark-up (cost plus) on page 18, the language referring to the balance of line items states only that "such balance of line peripherals shall be offered under the same pricing schedule (cost plus) as the microcomputer systems category of this bid/contract." (Emphasis supplied) However, even if the alleged oral statements by DMS personnel are given credit, the ITB, as provided in all DMS bids, also contained a set of general conditions, Paragraph 7 of which states as follows: Any questions concerning conditions and specifications shall be directed to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. (Emphasis supplied) AmeriData, was aware of this provision, but never submitted a written question to DMS regarding the ITB in question. Likewise, at no time did Mr. Wade or AmeriData seek any written clarification from DMS. In short, any oral statements made by DMS regarding the percentage issue is not binding. AmeriData was not justified in relying on such oral statements and should have sought written clarification from DMS. Finally as indicated earlier, the price lists for balance of line items were not part of the bid evaluation process. Therefore, it is irrelevant whether the percent mark-up for balance of line should be the same. The balance of line percent mark-up does not play a role in the award of ITB 9-250-040-B. The information only goes to the negotiation procedure which is separate from the award of ITB 9-250-040-B. Such optional information submitted for a separate procedure cannot be used to invalidate the award of a bid where that optional information plays no role in the bid evaluation process. As indicated earlier, with regard to regular items bid under Tables 2.1, 2.2 and 3.0, bidder's were to bid a percentage mark-up from dealers cost. Page 11 of the ITB under the hearing Format for Submission of the Bids stated that bidders had to supply manufacturer's published price lists as well as an authorized dealer's list. It also stated that the bidders should provide the documents in letter quality text as well as with a computer diskette. In response to the provision relating to the format in which the bids were to be received, a question was submitted to the Department on this issue. At page 10 of the question and answers under Question H-2 the following question appeared: "Are the price lists detailing the systems and individual items bid to be in the original manufacture's format or retyped by the bidder and submitted into Wordperfect format?" The Department answered this question in this manner: "Yes, manufacturer's suggested retail price (MSRP) list of manufacturer's costs list supplied by the manufacturer to each dealer/resaler must accompany the submitted document in hard copy. They are not required in Wordperfect disk format. However, the format for the bid/price sheets including product description and percentage mark-up or discounts should be submitted in Wordperfect format on diskette. The bid requirements as clarified in the question and answer required that the manufacturer's price list be submitted with the bid in "hard copy" but there was no similar requirement that the accompanying diskette be likewise, supplied in hard copy. Section 6.0 of the ITB provides that inclusion of unacceptable products would result in a bid being declared non-responsive. While operating system software was to be included in the bids, application software was not. Vanstar's bid contained certain items of application software which was included as part of the manufacturer's price lists included with its bids. Likewise, AmeriData's bid included items of application software, contrary to the terms of the ITB. The purpose of these lists was to identify the products being bid. Vanstar submitted an unsanitized hard copy of the dealer's price and the manufacturer's suggested retail price and also submitted in diskette format an additional list of items that had been sanitized to included only those items contained in the bid as well as additional information relating to items that were included in the balance of line. The evidence did not demonstrate that inclusion of non-bid items in the manufacturers price list created any confusion as to the items being bid or had any material impact on the bid process. Therefore, these discrepancies from the ITB do not invalidate an otherwise legitimate bid award. The evidence was clear that DMS intended the term "microcomputer," as used in the ITB to mean a "configured computer system" such that when purchasing peripherals as part of the purchase of a complete microcomputer system, the price for the configured system so purchased would be at the price the winning vendor bid for Table 2.1 microcomputers. Under DMS's interpretation a "microcomputer" would include the central processing unit (CPU), keyboard, disk drive, operating system, monitor and other peripherals purchased simultaneously with the computer. On the other hand at least two vendors, AmeriData and Vanstar, interpretated the term "microcomputer" to include the CPU with an operating system, storage device and an input device such as a keyboard but no monitor or other peripherals. The term "microcomputer" or "computer" does have a common meaning in the industry and refers to the CPU, input device, storage device and operating system in a self-contained box. Items which might be connected to the industry defined computer would be peripherals, such as, monitors, fax/modems, network cards, printers, sound cards, video boards, etc. The evidence demonstrated that there is some question whether the term "microcomputer system" or "computer system" has a commonly understood meaning in the industry. The lay persons definition of the term "computer" and "microcomputer" varies depending on whether "system" is equated with the term "computer." To further obfuscate terminology, none of the above terms reflect the current state of marketing of computer systems, including IBM products, as basic integrated or bundled systems with components that can be upgraded, downgraded or added to for certain adjustments in price. It is this confusion in terminology that DMS found itself dealing with when it drafted the ITB at issue in this case and which continued throughout this proceeding. The specifications in the first paragraph under Section 2.0, page 18, state under the heading REQUIREMENTS PROVISIONS, MICROCOMPUTERS -- DESK-TOP, DESK-SIDE, AND PORTABLE: Components (such as monitors, keyboards, mouse and trackball, expansion boards, network interface cards, internal modems, multimedia, and storage devices purchased with and integrated with the microcomputer system prior to delivery) will carry the same support level, requirements and provisions as the microcomputer system. Support level does not refer to the components' status as part of a microcomputer system, but only to a components' guarantee of service or maintenance. This section was not viewed as definitional by DMS. However, the concept is important, since potential purchasers were used to ordering configured, or bundled systems and desired the peripherals to carry the same level of service as the CPU. The questions and answers contained in the ITB seem to confuse matters further. In response to a question asking whether monitors would be required to be purchased from Table 5.1, DMS specifically stated that "(N)o, they can be included as part of the system configuration, part of "balance of line" for the awarded vendor, or can be included in Monitors Section 5.1. (Emphasis supplied) On the other hand, the answer to Question P2, submitted when balance of line was to be bid at a discount from MSRP, stated that full functioning systems are submitted on the bid sheets/price lists as cost-plus or percentage (mark-up) over manufacturer's cost, indicating that monitors, when bought as part of a full functioning system, were to be at the same price as the CPU. Throughout the bid process, vendors were encouraged to offer standard computer system configurations for the benefit of the potential purchasers. However, the ITB did not specify what had to be included in the configured systems and did not define configured system, bundled systems, microcomputer systems microcomputer, computer or computer system. The reason no precise definitions were developed in the ITB was that each manufacturer had different types of configured or bundled systems and it was up to each manufacturer to determine what was to be supplied with any particular system. Similarity and comparability between bids was achieved by requiring each vendor to bid by product line using the same manufacturer's product list and wholesale price. Both Vanstar and AmeriData understood the term "microcomputer" not to include a monitor or other peripheral devices. However, both vendors were bidding the IBM product line and did not include any special vendor bundled systems. The IBM price list literature included with their bids sets forth what was included in the particular microcomputer system configuration being offered. For instance, the IBM product line includes the IBM VALUEPOINT PERFORMANCE SERIES SYSTEM. The Valuepoint Performance System includes: One 3.5" 1.44 MB diskette drive standard, 4MB or 8MB parity memory standard, 1MB video RAM standard, external L2 "write Back" cache capability (standard external L2 cache on select models), SelectaBus ISA/VESA Local Bus or ISA/PCI Bus technology, VESA Local Bus SVGA video, Advanced power management on all systems Most SpaceSaver and Desktop systems meet EPA Energy Star requirements for power processors based on Pentium technology, three year warranty, choice of 270MB, 364MB, or 527MB hard files, multimedia standard on many desktop units, two serial ports (9-pin); one parallel port, enhanced keyboard and point device ports and IBM mouse. The IBM PC 300 Series includes similar items but also includes certain items of installed software. The IBM PC 700 Series includes audio capability. No monitors are included as part of these computer configurations. The IBM Thinkpad (laptop) series contains monitors as well as pre-installed software. Some configured systems include network cards. Some configured systems include CD-Rom drives. IBM's standard computer configurations are quite varied. Under Section 2.1 of the ITB, a purchaser could purchase a system that is fully configured by the manufacturer and that has devices that are needed in order to do multi-media. Some of the IBM systems include the bare minimum and some include items that would otherwise be considered extras. A person ordering computers off of the manufacturer's price list could order different size processors, various diskette hard drives, various optical storage devices and keyboard options, without regard to the balance of line as long as those options were part of the manufacturer's standard configuration. Items not included in those standard configurations such as monitors in the Valuepoint performance line, would not be part of this bid award because they would fall under balance of line items. In this case, there would normally be no problem since both bidder's bid the same product line with the same standard configurations. However, as indicated earlier DMS' intended definition of microcomputer goes beyond the specifications of this bid. DMS desires to include items under table 2.1 which are not part of IBM's standard configurations. For instance DMS believes monitors should be included as part of the Valuepoint performance series if a purchaser purchases the monitor simultaneously with the Valuepoint system. In fact, DMS and Vanstar have conducted some preliminary discussions as to what items outside and IBM standard configuration are included in its bid. DMS is in essence allowing and encouraging Vanstar to change its bid to include peripherals in its microcomputer bid after the bids were opened, albeit at the same percent mark-up from dealers cost as the microcomputers. Such after the fact changes are impermissible. Moreover, irrespective of the definitions of computer, DMS's interpretation of the bid specifications flies in the face of its stated purpose for not defining terms. DMS elected not to specifically define terms, because it wanted to rely on manufacturer's, such as IBM, to define what would be included in its computer configuration. In this case, IBM defined those configurations. If DMS had desired to include peripherals outside a manufacturers standard configuration as part of a configured system when purchased simultaneously with a computer then the specifications needed to cover such simultaneous purchases. Neither the specifications nor the evidence support DMS's interpretation of this bid. Clearly the term microcomputer, computer, computer system, etc. are very material terms in this ITB. The failure to clearly (not necessarily specifically) define that family of terms is fatal to this ITB since there was no mutual understanding between the parties on the IBM portion of the contract as to what was to be bid as a microcomputer. Therefore, all the bids should be rejected on the IBM portion of ITB 9-250-040-B.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a final order be entered rejecting all bids under the IBM portion of ITB 9-250-040-B. DONE and ENTERED this 11th day of August, 1995, at Tallahassee, Florida. DIANE CLEAVINGER 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 11th day of August, 1995.
Findings Of Fact Respondent invited bid proposals for a "collocated service center" in Manatee County, providing approximately 25,500 square feet of office space. The invitation sought a "turnkey lease" for an initial period of 15 years and permitted the bidder a choice of providing "full services" (option 1) or "full services without electrical" (option 2). Petitioner submitted his bid under option 2, while the successful bidder, Dr. Kenneth R. McGurn, selected option 1. Their bid proposals, along with others not relevant here, were forwarded to a bid review committee. Committee members were generally knowledgeable as to Respondent's operations and bid evaluation procedures, but were given no specific instructions on how to conduct their evaluations. Each of the four committee members evaluated the bids and assigned points in 12 separate categories. The evaluation criteria to be utilized were set forth in the bid proposal (page 12, Joint Exhibits 3 and 4). The greatest weight was to be given in category number 1, "Rental rate including projected operating expenses to be paid by lessee." The testimony of the bid evaluation committee members established that McGurn, rather than Petitioner, was the successful bidder primarily because his proposal included electrical service. The committee members did not individually or collectively seek assistance in projecting future electrical costs when making their determination as to the award of points in bid category number 1. Rather, they used their own judgment and experience to estimate possible costs and award rental and service expense points accordingly. Three of the four evaluators generally felt that known electrical costs were preferable to unknown costs for budget purposes even though Petitioners's proposal may ultimately have been less expensive. Site characteristics were factors in several of the categories for which points were to be assigned. Committee members visited the proposed sites and rated Petitioner's site somewhat higher than McGurn's. Proper zoning of the site was not included in the bid criteria. 1/ Petitioner's site is properly zoned while McGurn's is not. McGurn's potential difficulties in obtaining a zoning change and with utility service to his site led him to inquire of Respondent whether he would be permitted to change sites if he received the contract award. Respondent advised him that he could do so if there was a persuasive reason for the change. Petitioner obtained an option on the site he proposed to utilize and renewed it for 30 days when Respondent did not act on its bid within the announced period. 2/ This extension cost Petitioner the forfeiture of his $2,000 deposit but did not carry him through to the actual bid award date, November 4, 1982. Respondent's memorandum (Petitioner's Exhibit 2) dated September 14, 1982, indicates that Respondent had already decided to award the contract to McGurn by that date. Had Petitioner been advised of this decision, he could have saved the $2,000 expended to extend his option. During the period prior to the official announcement of bid award, McGurn became aware that he was the probable successful bidder and acquired Petitioner's site after the latter's renewal option expired. McGurn obtained this property for the purpose of substituting it for his proposed site after he received the contract. He has not yet requested site substitution.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Respondent enter a Final Order setting aside the award of the subject contract and reissuing its bid proposal. DONE and ENTERED this 12th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1983.
