The Issue Whether, in issuing the Revised Recommendation/Tabulation for contracts for Items 1 and 3 for Invitation to Bid No. 15- 048E, Multifunctional Devices, Cost-Per-Copy, Respondent acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact On June 3, 2014, SBBC issued ITB No. 15-048E (the ITB) entitled "Multifunctional Devices, Cost-Per-Copy" for the provision and maintenance of copying devices during the contract term. The listed Submittal Requirements were: Manufacturer's Authorization Special Condition 8; Descriptive Literature Special Condition 6; and Material Safety Data Sheets Special Condition 16. A Bidder's Preference Statement was not identified as a Submittal Requirement. Section 4, Paragraph 2, of the ITB was entitled "TERM" and notified bidders that SBBC sought through the award of this bid to "establish a contract for the period beginning from the date of award and continuing through June 30, 2017." The Bid Summary Sheet found at Section 5 of the ITB requested bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months and for 36 months. Page 1 of the ITB contained a certification to be executed by each bidder's authorized representative which stated in pertinent part as follows: Bidder agrees to be bound to any and all specifications, terms and conditions contained in the ITB, and any released Addenda and understand that the following are requirements of this ITB and failure to comply will result in disqualification of bid submitted. All bidders submitted a signed bidder certification. Section 3, Paragraph 1(a), of the General Conditions of the ITB provided as follows: SEALED BID REQUIREMENTS: The "Bidder Acknowledgment Section" must be completed, signed and returned with the bid. The Bid Summary Sheet pages on which the Bidder actually submits a bid, and any pages, upon which information is required to be inserted, must be completed and submitted with the bid. The School Board of Broward County (SBBC) reserves the right to reject any bid that fails to comply with these submittal requirements. BIDDER'S RESPONSIBILITY: It is the responsibility of the Bidder to be certain that all numbered pages of the bid and all attachments thereto are received and all Addendum released are received prior to submitting a bid without regard to how a copy of this ITB was obtained. All bids are subject to the conditions specified herein on the attached bid documents and on any Addenda issued thereto. Section 3, Paragraph 6, of the General Conditions of the ITB provided as follows: AWARDS: In the best interest of SBBC, the Board reserves the right to: 1) withdraw this bid at any time prior to the time and date specified for the bid opening; 2) to reject any or all bids received when there are sound documented business reasons that serve the best interest of SBBC; 3) to accept any item or group of items unless qualified by Bidder; and 4) to acquire additional quantities at prices quoted on this ITB unless additional quantities are not acceptable, in which case, the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." On June 18, 2014, SBBC issued Addendum Number 1 for the ITB which replaced a number of pages within the bidding documents and contained responses to questions posed by prospective bidders. Addendum Number 1 included Question No. 6 in which Xerox inquired whether SBBC "would . . . consider a change to the contract term of the contract to 48 or 60-month term?" SBBC responded through Addendum Number 1 that it had amended the bid "to include additional pricing for 48 or 60-months term[s]," and SBBC continued to request proposals for a 36-month contract term. Addendum Number 1 revised Section 4, Paragraph 2, of the Special Conditions of the ITB to state as follows: TERM: The award of this bid shall establish a contract for the period beginning from the date of award and continuing through an award for a term of 36, 48 or 60 months. Bids will not be considered for a shorter period of time. All prices quoted must be firm throughout the contract period. Items will be ordered on an as needed basis. Addendum Number 1 included an Appendix A–Summary Cost Sheet which required bidders to provide cost-per-copy based on a stated average monthly number of copies, and to extrapolate cost out for 12 months, 36 months, 48 months, and 60 months. On June 20, 2014, SBBC issued Addendum Number 2 for the ITB. The first page of Addendum Number 2 advised prospective bidders, "This Addendum amends the above referenced bid in the following particulars only: 1. DELETE: Appendix A–Cost Summary Sheet INSERT: Revised Appendix A–Cost Summary Sheet." The first page of Addendum Number 2 further cautioned bidders that "[i]t is important to include the REVISED page when submitting your response." Addendum Number 2 went on to provide a Revised- Appendix A-Summary Cost Sheet which stated "A Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months" and included a cost summary sheet for each of those three options. The ITB and addenda numbers 1 and 2 were released by SBBC via Onvia DemandStar, with email notices thereof to prospective vendors who subscribed to its bid notification service. Toshiba downloaded the ITB, Addendum Number 1, and at least the first page of Addendum Number 2 from DemandStar prior to the submission of its bid to SBBC. Again, the first page of Addendum Number 2 cautioned bidders that Appendix A–Summary Cost Sheet had been deleted and replaced and that it was "important to include the REVISED page when submitting your response." No bid specifications protest was filed by any person or entity concerning the ITB or addenda numbers 1 or 2. On July 3, 2014, SBBC opened bids timely submitted in response to the ITB by: Toshiba; ImageNet; Innovative; Lexmark International, Inc.; and Ricoh. Konica had also presented a bid to SBBC in the bid opening room prior to the opening of bids but after the announced time for submittal of bids. The Konica bid was delivered to SBBC but was not opened at the time of the bid opening. Toshiba, the incumbent, was the only bidder that violated the pricing requirements of the ITB. The bid submitted by Toshiba utilized the version of Appendix A-Summary Cost Sheet that was released under Addendum Number 1 and only offered cost- per-copy pricing for the 60-month term option. Toshiba's bid did not submit the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, nor did it contain any bids offering cost per copy pricing to SBBC for the 36 or 48-month term options. Although Toshiba's bid was not rejected as non-responsive for failing to bid on the 36 and 48-month term options and for failing to utilize and complete the Revised-Appendix A-Summary Cost Sheet issued under Addendum Number 2, SBBC's staff later concluded in hindsight that it should have been rejected for such non-compliance. Toshiba's bid included a "Pricing" note immediately prior to its Appendix A–Summary Cost Sheet that stated: [Toshiba] is proposing a 60 month CPC as a response to the [ITB]. Based on the fact the [ITB] has no minimum, cancellation for convenience, ability to upgrade and downgrade with no penalty, it is in the best interest of our organization to bid a term of 60 months. This term allows us to provide the most aggressive price to the [SBBC] and maintain the excellent service and support level in place. SBBC's staff recommended that an award be made under the ITB for pricing offered for a 36-month contract term for Items 1, 2, and 3 for a contract period of August 6, 2014, through September 30, 2017. On July 10, 2014, SBBC posted its initial ITB Recommendation/Tabulation which did not consider the Konica bid. The initial posted Recommendation/Tabulation notified bidders of SBBC's intended award of contracts for Items 1 and 2 to ImageNet as the primary awardee and to Innovative as the alternate awardee for a contract period of August 6, 2014, through September 30, 2017, and recommended the award of contracts for Item 3 to Ricoh as primary awardee and to ImageNet as alternate awardee for a contract period of August 6, 2014, through September 30, 2017. Timely bid protests and bid protest bonds were filed by Konica and by Toshiba concerning SBBC's initial Recommendation/Tabulation of July 10, 2014. SBBC's Bid Protest Committee conducted a meeting with the protestors on August 26, 2014, and determined that Konica's bid had been timely submitted and directed SBBC's Procurement and Warehousing Services Department (the Department) to evaluate Konica's bid for responsiveness. It also directed the Department to revise its recommendation on the ITB to reject Toshiba's bid for Item 2 as the device offered by Toshiba for that item did not meet the ITB's specifications which called for a single device capable of performing 95 copies per minute (cpm) and Toshiba instead offered two devices that performed at 85 cpm. After reviewing Konica's bid for responsiveness, SBBC posted a Revised Recommendation/Tabulation for the ITB on August 29, 2014, which (a) recommended award of Item 1 to ImageNet for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to Innovative as the alternate awardee; (b) recommended award of Item 3 to Ricoh for a term from October 7, 2014, through November 30, 2017, as the primary awardee and to ImageNet as the alternate awardee; and (c) recommended the rejection of Toshiba's bid for Item 2 for its failure to meet the specifications for that Item. On September 4, 2014, Toshiba timely filed its notice of intent to protest the August 29, 2014, posted Revised Recommendation/Tabulation. On September 15, 2014, Toshiba timely filed its Amended Formal Petition Protesting Proposed Revised Recommendation/Tabulation. SBBC's Bid Protest Committee conducted a meeting with Toshiba on November 5, 2014, pursuant to section 120.57(3), SBBC Purchasing Policy 3320, and the ITB, and rejected Toshiba's bid protest. On November 10, 2014, Toshiba timely requested that SBBC forward its bid protest to DOAH for a formal hearing. Toshiba has presented a number of arguments in these proceedings seeking to avoid the circumstances Toshiba created for itself when it failed to comply with Addendum Number 2 and violated the ITB's pricing requirements and the ITB's requirement as to the term of the contract to be awarded, when Toshiba only submitted a single bid and restricted the contract term for which it would be considered to 60 months. First, Toshiba attempts to divest SBBC of its express authority to select proposals for any contract duration for which it solicited bids other than for a month term. Second, Toshiba argues that SBBC was somehow obligated to specify within the bid specifications those business considerations that would inform SBBC's selection of the duration of the contract term to be awarded under the ITB. Third, Toshiba argues that ImageNet was non-responsive regarding the ITB's specifications concerning manufacturer's certifications. Toshiba also argues that all bidders, including itself, were non- responsive with regard to the ITB's specifications regarding bidding preference laws. None of the arguments presented by Toshiba in opposition to SBBC's intended award of Items 1 and 3 are persuasive. The Selection of the 36-Month Term SBBC's recommended award for a 36-month contract period from October 7, 2014, through November 30, 2017, is consistent with the terms and conditions of the ITB and its addenda. At the very start of this competitive solicitation, SBBC informed bidders through Section 4, Paragraph 2, of the ITB and the Bid Summary Sheet at Section 5 of the ITB that it was seeking a contract through June 30, 2017-–i.e., a 36-month contract. SBBC also made it clear in its response to Question No. 6 of Addendum Number 1 that "[t]he contract will be for a full 36 months." Although SBBC revised the bid specifications through Addendum Number 1 to allow bidders to submit "additional pricing for 48 and 60 months term[s]," "to allow the School District to consider a 48 and/or 60 months term contract," and revised Section 4, Paragraph 2, of the ITB to provide for "an award for a term of 36, 48 or 60 months," it was clear under the ITB that SBBC contemplated that a 36-month contract could serve its needs. Addendum Number 2 further revised the bid specifications by providing the Revised–Appendix A–Summary Cost Sheet which informed bidders that "a Cost Summary Sheet must be completed for each options [sic] 36 months, 48 months and 60 months." SBBC intended to review the additional pricing offered for 48 and 60- month contract terms to determine whether those particular options were a better business decision for SBBC. Several factors were considered by SBBC in selecting the contract duration for the award under the ITB. The selection of the shorter 36-month contract term was consistent with the expressed terms of the ITB and addenda and the expressed preference of SBBC's governing board to refrain from entering into long-term contracts and enabled SBBC to be flexible in finding solutions to its copying needs and to take advantage of changes that may arise in technology; avoided problems the school district was currently experiencing with a long-term cost-per- copy contract which ranged from equipment performance issues to the long-term placement of technology in schools; and enabled the school district to conduct research to determine whether future implementation of a managed print solution would provide the school district with additional cost savings or financial benefits in contrast to the cost-per-copy services being procured through the ITB. Clearly, this selection was neither arbitrary nor capricious. SBBC's elected governing board has made it known by its actions taken at public meetings that it disfavors long-term contracts for the procurement of goods and services and has gone so far as to reduce the term of contracts from the dais. SBBC's staff determined that the pricing offered to SBBC for a 60-month contract term was not significant enough to recommend a contract longer than the 36-month term SBBC had been requesting since the release of the ITB. Any cost advantages offered by Toshiba's bids for Items 1, 2, and 3 were reduced by $525,000 per year due to the disqualification of its bid for Item 2, which failed to meet the ITB's specifications. Consideration of Managed Print Services Xerox Corporation informed SBBC that a managed print services (MPS) program could save millions of dollars per year and later submitted a no bid response to SBBC regarding the ITB because SBBC was not implementing a MPS program under the ITB. SBBC had also received proposals from vendors in October 2013 concerning a MPS program and concluded that there existed a potential annual savings of millions of dollars if such a program could be implemented. All of which were additional reasonable, rational reasons for SBBC to remain consistent with its decision to award the contracts for a term of 36 months and not something longer. The ITB contains standard terms and conditions which enable SBBC to terminate an awarded contract regardless of reason and with or without cause upon 30 days written notice to the other party. Toshiba wants SBBC to rescue Toshiba from its failure to submit required bids for 36-month and 48-month periods by forcing SBBC to award a contract obligating the agency for a longer duration under the ITB than desired by the agency and then have SBBC terminate the 60-month contract award for convenience after 36 months. SBBC includes termination for convenience provisions within its contracts for goods and services due to section 1011.14, Florida Statutes, which restricts the ability of district school boards to obligate public funds for a period beyond one year. The inclusion of the standard termination for convenience clauses in its ITBs enables SBBC to enter into contracts exceeding one year which affords the school district opportunities to obtain continuity of service and price advantages that would not be available under shorter contracts. While SBBC has the ability under the ITB to terminate contracts for convenience upon 30 days' notice, it rarely does so. SBBC has never exercised its right to terminate its two prior contracts for the services sought under this ITB. Any such termination requires action by SBBC's governing board during a public meeting. SBBC's staff would not engage in the sham of recommending a contract to its governing board for a contract term longer than the period for which it intends to procure services from a vendor. SBBC's procurement staff believes that using the termination for convenience clause in the manner Toshiba recommends can have an adverse effect upon the school district's ability to encourage bidders to participate in its competitive solicitations or to offer it their best pricing. Questions 1 and 59 of Addendum Number 1 of the ITB provide evidence of concern within the bidding marketplace that SBBC might exercise its termination for convenience clauses with regard to the services being procured under the ITB and support the perception of SBBC's that it should avoid a reputation for exercising such termination authority. Toshiba argues that SBBC somehow materially misled bidders through the ITB by stating in response to Question No. 3 concerning MPS of Addendum Number 1 that: The School District is not planning to implement a Managed Print Services at this time. The School District would like to receive Additional information regarding other districts that have implemented a Managed Print Services. There are no evaluation points associated with this ITB. SBBC's responses to Question No. 3 of Addendum Number 1 were accurate and did not mislead bidders. Toshiba is the only bidder to claim to have been misled. Section 6, Paragraph 10, of the ITB requested bidders provide SBBC with information about how the awardee could transition SBBC to a MPS model from the cost-per-copy model being offered under its bid. While SBBC requested such information from vendors within the bidding marketplace, there is no evidence that any bidder's provision or omission of such information within its bid submission was considered in the selection of the recommended awardees. In fact, ImageNet was recommended for award even though it did not provide this ancillary information about transition to a MPS delivery model. Rather, the recommended awardees for a 36-month contract term for Items 1 and 3 were determined solely on the basis of cost submitted for those items by the bidders, all in accordance with the ITB. A MPS program was a possible initiative being considered by SBBC's former Chief Information Officer prior to his departure from SBBC in February 2014, at which time the school district's current cost-per-copy contract was nearing its expiration. Although SBBC still had an interest in the possibility of a MPS program, it was not going in that direction at the time it needed to release a bid for copying services to replace its current expiring contract. Toshiba contends that SBBC was somehow required to disclose to bidders whether the potential future implementation of a MPS program might impact the contract award period that SBBC might choose under the ITB. A myriad of business considerations may inform an agency in selecting the length of its contracts for goods and services, and there is no law or rule that requires an agency to specify those factors within an ITB. Responsiveness of the Bidders Toshiba has attempted to argue that ImageNet, the recommended awardee for Item 1 and the alternate awardee for Item 3, was somehow non-responsive under the ITB and ineligible for award. In support of this argument, Toshiba has referenced Section 4, Paragraph 8, of the Special Conditions of the ITB which state as follows: MANUFACTURER'S CERTIFICATION: Bidder must submit with their ITB a notarized letter from manufacturer certifying that bidder is authorized to sell, service and warrant the multifunctional devices offered within this ITB. Failure of the bidder to provide this letter with their submitted bid or upon request shall result in disqualification of entire bid. If the bidder is the manufacturer, then bidder should state that their company is the manufacturer of the equipment provided in this bid (the letter does not need to be notarized). A bid is only disqualified under Section 4, Paragraph 8, of the ITB if (1) a notarized manufacturer's letter is omitted from the bid; and (2) the bidder fails to comply with a subsequent request from SBBC to provide the letter. No bidder, including Toshiba and ImageNet, included a notarized letter from a manufacturer with its bid. SBBC did not request any of the bidders to submit a notarized manufacturer's letter at any time after the submission of bids. As a result, none of the bids, including that of ImageNet, was non-responsive for a failure to satisfy Paragraph 8 of Section 4 of the ITB. Toshiba has also argued that all bids should be rejected due to Section 3, Paragraph 1(d), of the General Conditions of the ITB which concerns bidders' preference laws and states as follows: d) BIDDING PREFERENCE LAWS: ALL BIDDERS MUST COMPLETE AND SUBMIT THE LEGAL OPINION OF BIDDER'S PREFERENCE FORM IN ORDER TO BE CONSIDERED [sic] FOR AWARD. The State of Florida provides a Bidder's preference for Florida vendors for the purchase of personal property. The local preference is five (5) percent. Bidders outside the State of Florida must have an Attorney, licensed to practice law in the out-of-state jurisdiction, as required by Florida Statute 287.084(2), execute the "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form and must submit this form with the submitted bid. Such opinion should permit SBBC's reliance on such attorney's opinion for purposes of complying with Florida Statute 287.084. Florida Bidders must also complete its portion of the form. Failure to submit and execute this form, with the bid, shall result in bid being considered "non-responsive" and bid rejected. No bidder, including Toshiba, included an "Opinion of Out-of-State Bidder's Attorney on Bidding Preferences" form with its bid. Each bidder's omission of that form was for good reason. Section 3, Paragraph 1(d), of the General Conditions of the ITB is a boilerplate provision within SBBC's standard bidding documents that is included pursuant to section 297.084(2), Florida Statutes, for any competitive solicitations in which personal property is to be purchased by SBBC. In instances in which it solicits bids to purchase personal property, SBBC includes a "Bidder's Preference Statement" form and includes that form among the checked "Submittal Requirements" listed in Section 2, Page 1, of the ITB. This ITB did not include a "Bidders Preference Statement" form among the bidding documents or list it as one of the required submittals. The state law and the boilerplate provision at Section 3, Paragraph 1(d), of the General Conditions of the ITB are only applicable to competitive solicitations for the purchase of personal property and do not extend to competitive solicitations for the purchase of services. As Section 4, Paragraph 12, of the Special Conditions of the ITB makes it clear that the multi-functional devices to be provided by the awardee under the ITB will "remain the property of the vendor," the standard bidder's preference provision contained within the ITB is plainly inapplicable to this procurement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by Toshiba Business Solutions (USA), Inc., and upholds the awards of contracts under the procurement for a 36-month term from October 7, 2014, through November 30, 2017, to ImageNet Consulting of Miami, Inc., as the primary awardee for Item 1 and to Innovative Software Solution, Inc., as the alternate awardee for Item 1, and to Ricoh USA, Inc., as the primary awardee for Item 3 and to ImageNet Consulting of Miami, Inc., as the alternate awardee for Item 3. DONE AND ENTERED this 15th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2015. COPIES FURNISHED: Robert Paul Vignola, Esquire Office of the General Counsel Eleventh Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) William G. Salim, Jr., Esquire Moskowitz, Mandell, Salim and Simowitz, P.A. 800 Corporate Drive, Suite 500 Fort Lauderdale, Florida 33334 (eServed) Eric J. Rayman, Esquire Genovese, Joblove and Battista, P.A. PNC Center, Suite 1110 200 East Broward Boulevard Fort Lauderdale, Florida 33301 (eServed) Albert E. Dotson, Esquire Wendy Francois, Esquire Bilzin, Sumberg, Baena, Price and Axelrod, LLP 1450 Brickell Avenue, Suite 2300 Miami, Florida 33131 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Robert W. Runcie, Superintendent Broward County School Board Tenth Floor 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 (eServed) Pam Stewart Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Facts based on stipulation These proceedings concern Petitioner's Bid Protest in connection with that certain project known as Chiller Installation, Glades Campus, Project NO. 9237, PBCC No. 6812. Petitioner has taken all steps necessary to perfect its bid protest in a timely manner and has standing to bring this bid protest. Petitioner and Respondent met and were unsuccessful in an attempt to resolve the bid protest as required by Section 120.53(5), Florida Statutes. M. K. Mechanical, Inc., a Florida corporation, is a State of Florida Certified Mechanical Contractor and as such was a "Qualified Bidder." The original specifications for the subject project contained few electrical specifications and were silent as to how an electrical contractor was to be licensed. The bid was due on Tuesday, January 12, 1993, at 2:00 p.m. On Friday, January 8, 1993, at 3:42 p.m., via facsimile transmission, M. K. Mechanical, Inc., received supplementary electrical specifications, thirty (30) pages in length. Contained in these supplementary specifications, for the first time, was a requirement that the electrical subcontractor had to be "locally" licensed. M. K. Mechanical, Inc.'s, primary place of business is in Edgewater, Volusia County, Florida. M. K. Mechanical, Inc.'s, submitted bid was proper in all respects other than an electrical subcontractor's name was not given, instead "to be determined" was inserted. M. K. Mechanical, Inc., submitted the lowest bid. Electrical subcontractor is a "major" subcontractor on this project. The sole basis for the decision by Respondent that Petitioner's bid was "non-responsive" was the failure to list an electrical subcontractor. Additional facts regarding bid specifications The bid specifications include the requirement that bidders list all "major subcontractors" and that the category of "major subcontractors" includes electrical subcontractors. Section 5.2.1 of the Contract Documents within the Bid Specifications provides as follows: Unless otherwise required by the Contract Documents or the Bidding Documents the Contractor at the bid opening shall furnish to the Owner and Architect Form 00420, a written list of the major Subcontractors; Site Utilities, Structural Concrete, Masonry, Structural Steel & Steel Joists, Plumbing, HVAC, Electrical and Roofing, who he proposes to use on this work.
Recommendation On the basis of all the foregoing, it is RECOMMENDED that Palm Beach Community College enter a Final Order in this case denying the protest of the Petitioner, M. K. Mechanical, Inc., and awarding the contract in Project No. 9237, PBCC No. 6812 to the Intervenor, Hill York Corporation. DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1993. COPIES FURNISHED: Sid C. Peterson, Jr., Esquire DeLoach & Peterson, P.A. Post Office Box 428 New Smyrna Beach, Florida 33170 James M. Adams, Esquire Gibson & Adams, P.A. Post Office Box 1629 West Palm Beach, Florida 33402 Herbert L. Dell, President Hill York Corporation Post Office Box 350155 Fort Lauderdale, Florida 33335 The District Board of Trustees Palm Beach Community College 4200 Congress Avenue Administration Building Lake Worth, Florida 33461 Attention: Mr. Dick Jones
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.
Findings Of Fact The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close. No requests were made to the Department to place its explanation in writing and no written interpretation was provided. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not.. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.
The Issue Whether the protest herein is premature under the terms of the Request for Proposals and Section 120.53(5) F.S.
Findings Of Fact This proceeding concerns a protest by Amdahl regarding DHSMV's "notice of intent to benchmark" with Unisys pursuant to RFP 046-95 REBID. The RFP was issued on April 5, 1995. Meetings concerning the specifications were held on April 14 and 18, 1995. No protests were timely filed with regard to the specifications. On May 4, 1995, the agency issued its notice of intent to benchmark as more specifically described below. The RFP is divided into three sections: the technical proposal, the price proposal, and the benchmark. So far, all proposals have been evaluated and ranked by DHSMV based on technical and price criteria. At this stage, Unisys is ranked first, and Amdahl is ranked second. When it had determined that Unisys had received the highest combined score on the technical and price proposals, DHSMV posted the tabulated scores of all proposers and notified them of the agency's intent to proceed to the benchmark evaluation phase of the RFP with Unisys. In an abundance of caution, the agency included in its notice of intent to benchmark, to which was attached the final point tabulation for all competing vendors, the notice of a right to protest within 72 hours pursuant to Section 120.53 (5) F.S. Amdahl timely filed its notice of protest and its formal protest. Without unnecessary elaboration, the thrust of Amdahl's protest is directed to Sections 3.23 and 6.0 of the RFP and DHSMV's scoring of the technical and price proposals. That protest includes, but may not be limited to, an accusation that the agency improperly permitted Unisys to manipulate its certified minority business enterprise compliance after the submittal of its response to the RFP. Amdahl further asserted that since a tabulation was attached to the notice of intent to benchmark and due to the wording of Section 120.53(5)(b) F.S., DHSMV Rule 15-2.003(2), and RFP General Condition 5 and Special Condition 3.5, Amdahl was required to challenge the DHSMV scoring and tabulation at this point in time or be presumed to have waived its right to protest. Pursuant to Sections 4.1 and 4.2 of the RFP, the highest ranked proposer (as determined by the scoring system thus far) next must participate in a month-long benchmark designed to demonstrate the highest ranked proposer's ability to perform. If the highest ranked proposer fails the benchmark, DHSMV will eliminate the highest ranked proposer and the next ranked proposer will be given the opportunity to perform the benchmark. If the second ranked proposer fails, the third can try benchmarking, and so on. Once some proposer passes the benchmark tier of evaluation, the recommendation to award will be posted. Specifically, RFP specifications 4.1 and 4.2 which were not challenged by a protest within 72 hours of the last explanatory meeting thereon, read as follows: CONTRACT AWARD It is the intent of the DHSMV to require the qualified proposer scoring the highest number of points after the Technical evaluation, and Costs evaluation of the proposals to benchmark all proposed hardware and software on the configurations proposed . The Benchmark will be performed at the DHSMV, Kirkman Data Center, Tallahassee, Florida. Upon successful completion of the Benchmark described in ATTACHMENT-B , a recommendation to award the contract resulting from RFP 046-95-REBID will be submitted to the Governor and Cabinet of the State of Florida. Final award of a contract for this RFP will be contingent upon the agency obtaining third party financing. MANDATORY BENCHMARK REQUIREMENT The hardware and software proposed in this RFP shall be benchmarked using the performance criteria set forth in ATTACHMENT-B. This benchmark shall be performed utilizing ORACLE asw the DHSMV data- base standard. It is the responsibility of the proposer to insure that all hardware and software proposed meet this requirement. In the event any non conformity or noncompatibility is encountered at any time, the proposer will be eliminated from further consideration and the next highest points scoring proposer will be given the opportunity to perform the benchmark. (Emphasis in the original) DHSMV asserted unequivocally that in the present case, if Unisys does not pass the benchmark, then Unisys will be eliminated and Amdahl will be permitted to benchmark. It is equally clear that if Unisys passes the benchmark, then a recommendation to award will be issued. All concerned seem to recognize the foregoing as the natural flow of the RFP award procedure as contemplated by the RFP. Even the prayer for relief contained in Amdahl's petition states, in pertinent part, ". . . Amdahl requests that DHSMV suspend further action with respect to the contract award process until this protest is resolved by final agency action; . . . That a DOAH recommended order and a DHSMV final order be entered selecting Amdahl as the winning proposal for benchmarking and ultimate award of the contract; . . . . Amdahl asserts that it is both fairer and more efficient to score the competing proposals and resolve all scoring issues pertaining to the technical and price portions before benchmarking the interim winner, rather than providing an opportunity for the interim winner to negotiate the manner in which its products can be integrated to achieve conformance and compatibility with the agency's purposes; that the benchmarking procedure directed to Unisys cannot be monitored by Amdahl for possible protest purposes at a later stage; and that benchmarking permits Unisys to make further adjustments towards qualifying a minority enterprise that was not certified at the time Unisys submitted its proposal. Amdahl did not raise any of these issues prior to submitting its own bid.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the current petition without prejudice to its appropriate issues being raised within the statutory time frame after the agency's recommendation to award contract described in Section 4.1 of the RFP is issued and prior to that recommendation to award being sumitted to the Governor and Cabinet. DONE and RECOMMENDED this 6th day of June, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1995 COPIES FURNISHED: David K. Miller M. Stephen Turner Jay Adams BROAD AND CASSEL P.O. DRAWER 11300 215 South Monroe St. Ste 400 Tallahassee, Florida 32302 Enoch J. Whitney Judson Chapman Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 Mary Piccard W. Robert Vezina III Cummings, Lawrence & Vezina, P.A. 1004 De Soto Park Drive PO Box 589 Tallahassee, Florida 32302 Charles J. Brantley Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399
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 On December 5, 1984, the Department of Transportation (DOT) opened bids on State Project No. 89095-3414 and 89095-3419 in Martin County, Florida, for construction of a portion to the uncompleted I-95. Respondent was apparent low bidder but this bid was declared nonresponsive for failure to meet Disadvantaged Business Enterprise (DBE) requirements. On December 7, 1984, Good Faith Efforts Review Committee reviewed the bids and found Jasper Construction Company had achieved only 8.43 percent of the 10 percent DBE goal requirements of the contract and that all other bidders had reached or exceeded this requirement. This committee did not find Petitioner had made a good faith effort to meet the DBE goals. On December 12, 1984, the Federal Department of Transportation approved the award of the bid to Wiley N. Jackson Company, the second lowest bidder. Petitioner was notified of DOT's intent to reject its bid and by letter dated December 13, 1984, petitioner protested DOT's rejection of its bid for failure to comply with the 10 percent DBE requirement and of the proposed award of the bid to the second lowest bidder. That letter requested an opportunity to "meet with you" to show Petitioner had made a good faith effort to meet the DBE requirements. On December 14, 1984, representatives of Petitioner and Respondent met to consider Petitioner's good faith efforts to comply with the DBE requirements. The results of that meeting were not submitted in these proceedings but on December 17, 1984, Respondent gave notice of its intent to award the contract to Wiley N. Jackson Company by posting with the clerk of Agency Proceedings. By letter dated December 26, 1934, hand delivered by Petitioner to Respondent, Petitioner referred to two phases of the project on which it had bid, advised that Jasper would like to have both contracts awarded it but if the Department was not going to award the Palm Beach County project to Jasper it did not want to enter into the Palm Beach/Martin County project. Petitioner further stated it was interested in an all-or-nothing deal and would like to meet with DOT at the earliest convenient moment. Funds for this project are Discretionary Interstate Lapse Funds provided by the Federal Government. Construction on this project must commence not later than February 4, 1985, or the funds will revert to the U.S. Treasury. On January 4, 1985, DOT entered an Order finding that it was necessary to proceed with award of the contract without delay in order to avoid an immediate and serious danger to the public health, safety, and welfare, cited many of the above-noted facts, and advised the parties of their right to seek injunctive or appellate relief pursuant to Section 120.59(3), Florida Statutes. On January 5, 1985, Petitioner filed the REQUEST FOR IMMEDIATE HEARING which is the subject of this proceeding. This request was forwarded to the Division of Administrative Hearings by DOT on January 8, 1985, and immediately assigned to this Hearing Officer. On January 10, 1985, attempts to contact the attorneys for the parties revealed the attorneys were in circuit court on Petitioner's request for a temporary injunction to stop the bid procedure until Petitioner had an opportunity to litigate the good faith efforts by Jasper to comply with the DBE requirements. The circuit court denied Petitioner's request for a temporary injunction and scheduled a final hearing on the permanent injunction for January 22, 1985.
The Issue Whether the decision by the State of Florida, Department of Corrections (DOC) to reject all bids received in response to Request For Proposal 93-RIVHSD- 075 (RFP) was arbitrary, capricious, fraudulent, illegal or dishonest. Additionally, Intervenor challenges Petitioner's standing to bring this proceeding since Bio-Medical Applications, Petitioner's wholly-owned subsidiary corporation, submitted the bid at issue and because Petitioner would not be a party to any contract awarded pursuant to the RFP.
Findings Of Fact Standing In its response to the Request For Proposal at issue in this proceeding, Bio-Medical Applications of Florida, Inc. (BMA) provides the following regarding vendor name and address: Vendor Name: Bio-Medical Applications of Florida, Inc. Vendor Mailing Address: c/o National Medical Care, Inc. 1601 Trapelo Road Walthem, Massachusetts 02154 In the bidder acknowledgment and ownership interest portion of its response to the RFP, BMA disclosed the following: ... This bid is presented in good faith without collusion or fraud and Ernestine M. Lowrie, as signer of the bid from Bio-Medical Applications of Florida, Inc. has full authority to bind as the principal bidder. All stock of Bio-Medical Applications of Florida, Inc. is held by Bio-Medical Applications Management Company, Inc. and all the stock of the latter corporation is held by National Medical Care, Inc., 1601 Trapelo Road, Walthem, Massachusetts 02154. All of the stock of National Medical Care, Inc. is held by W. R. Grace and Company. The Dialysis Services Division of National Medical Care, Inc. (NMC) is the largest division of NMC. In each state in which NMC has an interest in dialysis services operations, Bio-Medical Applications is organized as a corporate entity and is part of the Dialysis Services Division of the parent corporation, NMC. Petitioner in this proceeding, NMC, is not currently organized and registered as a corporation under the laws of the State of Florida. At the final hearing in this case, NMC's representative testified that he was not aware that NMC was registered to do business in the State of Florida but thought NMC had been operating in Florida for about 20 years. BMA is wholly owned by NMC. The Respondent agency originally expressed its intent to award the contract at issue to BMA. NMC has a substantial interest in the RFP and the contract at issue, therefore, its substantial interests will be affected by the agency's proposed action to reject all bids. NMC has alleged that the agency's decision to reject all bids was arbitrary, illegal, dishonest, and fraudulent. Further, Petitioner also contends that the agency decision to reject all bids, after BMA's bid proposal has been disclosed to competitors, undermines the competitive purpose of the bid process. The Request for Proposal On August 27, 1993, the DOC issued RFP No. 93-RIVHSD-075. The RFP requested bidders to submit bids for a contract to perform peritoneal dialysis and hemodialysis treatment at the Department's Broward Correctional Institution and its South Florida Reception Center. The RFP required that bid proposals be filed with the DOC by September 30, 1993. The RFP provided that a bidder would receive up to 50 points for its price proposal and up to 50 points for its qualitative proposal for a total of 100 possible points. The RFP also provided that the DOC reserved the right to reject all bids when the DOC determined it was in its best interest to do so. The Bid Evaluation Upon initial review of the proposals submitted in response to the RFP, the DOC originally calculated that Petitioner's subsidiary, BMA, had received 49 out of 50 possible points from its price, as well as qualitative proposal for a total of 98 points. On October 22, 1993, the DOC sent written notice to all proposers of its intent to award the contract to National Medical Care, Inc. (Petitioner). At the time it mailed its notice of intent, the DOC believed that the difference between the Bio-Medical and the lowest price proposal (received by HealthInfusion) was $156,780 over the five year term of the proposed contract. HealthInfusion and an additional disappointed bidder filed protests contesting the DOC's notice of intent. Based upon input from the protestors, the DOC learned that it had miscalculated the cost of Bio-Medical's proposal. When the DOC corrected its initial error in calculation, BMA's proposal was $340,000 higher over the first three years of the proposed contract and $972,000 higher than the lowest bidder for the entire five year contract term. The Decision to Reject All Bids On November 24, 1993, the DOC notified all bidders of its intent to reject all bids. In addition to the initial miscalculation of price in the bid, the DOC discovered what it considers to be other irregularities in the evaluation in this case. BMA was the existing provider at the time the RFP issued. The bid evaluators worked closely on a day to day basis with Petitioner's employees. The DOC believes the evaluators preferred that Petitioner be awarded the contract and that the evaluators were not objective. During the process of evaluation, the evaluators were provided a letter from a party representing one of the bidders which contained allegations regarding negative background information on other bidders. The DOC believes that the letter should not have been given to the evaluators and that access to the letter further affected the evaluator's ability to be objective. Admitted Facts NMC and the Respondent DOC filed a Prehearing Stipulation in which the following facts are admitted by those parties: The DOC issued Request for Proposal No. 93-RIVHSD-075 ("RFP"). The RFP requested bidders to submit bids for peritoneal dialysis and hemodialysis treatment at Broward Correctional Institution and South Florida Reception Center. Bid proposals had to be filed with the DOC by September 30, 1993. On November 24, 1993, the Department notified all bidders of its intent to reject all bids. The Department rejected all bids due to significant irregularities in the bid evaluation process and the price difference between the winning bid and the low bid was too great. (Emphasis supplied.) On December 3, 1993, National Medical Care, Inc. filed its notice of intent to protest the DOC's decision to reject all bids. On December 13, 1993, National Medical Care, Inc. filed its formal written bid protest. Burden of Proof Petitioner has failed to prove, by the preponderance of evidence, that the DOC acted arbitrarily, illegally, fraudulently or dishonestly in making its decision to reject all bids.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Respondent enter a final order dismissing NMC's protest of its decision to reject all bids in response to request for Proposal No. 93-RIVHSD-075. RECOMMENDED this 16th day of March, 1994, at Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7111BID The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's PFOF 1 is adopted in paragraph 8 of the Recommended Order (RO). Petitioner's PFOF 2 is adopted in paragraph 9 of the RO. Petitioner's PFOF 3 is hereby adopted. Petitioner's PFOF 4 is hereby adopted. Petitioner's PFOF 5, to the extent not conclusory, is adopted in paragraph 1 of the RO. Petitioner's PFOF 6 is hereby adopted. Petitioner's PFOF 7 is adopted in paragraph 2 of the RO. 8-9. Petitioner's PFOFs 8 and 9 are hereby adopted. Sentence 1 of Petitioner's PFOF 10 is hereby adopted. Sentence 2 of this proposed finding is rejected as conclusory. Petitioner's PFOF 11 is adopted in paragraph 14 of the RO. 12-14. Petitioner's PFOFs 12, 13 and 14 are hereby adopted. Petitioner's PFOF 15 is adopted in paragraph 2 of the RO. Petitioner's PFOF 16 is hereby adopted. Petitioner's PFOF 17 is adopted in paragraph 26 of the RO and is a fact, in effect, stipulated to by Petitioner and Respondent. Petitioner's PFOF 18 is adopted in substance in paragraph 21. To the extent not adopted in the RO, the remainder of Petitioner's PFOF 18 is hereby adopted. Petitioner's PFOF 19 is adopted in paragraph 13 of the RO. Petitioner's PFOF 20 is adopted, in substance, in paragraph 16 of the RO. 21-24. Petitioner's PFOFs 21-24 are hereby adopted. Petitioner's PFOF 25 is rejected as a conclusion. Petitioner's PFOF 26 is rejected as conclusory and argumentative. This proposed finding is also irrelevant based upon facts admitted by Petitioner. Petitioner's PFOF 27 is rejected as irrelevant based upon facts admitted to by Petitioner. 28-34. Petitioner's PFOFs 28-34 are hereby adopted to the extent relevant. Based upon Petitioner's admission that the Respondent rejected all bids based on "significant irregularities," these proposals are for the most part irrelevant and unnecessary to the conclusions reached. 35. Petitioner's PFOF 35 is hereby adopted. 36-39. Petitioner's PFOFs 36-39 are adopted. 40-44. Petitioner's PFOFs 40-44 are cumulative and not necessary to the conclusions reached. Respondent's PFOF: 1-19. Respondent's PFOFs 1-19 are adopted in the RO. 20. Respondent's PFOF 20 is rejected as conclusory. 21-22. Respondent's PFOFs 21 and 22 are adopted in the RO. 23. Respondent's PFOF 23 is rejected as argument. 24-26. Respondent's PFOFs 24-26 are adopted in the RO. 27. Respondent's PFOF 27 is rejected as conclusory. 28-29. Respondent's PFOFs 28 and 29 are adopted in the RO. 30-32. Respondent's PFOFs 30-32 are rejected as conclusions and argument. Respondent's PFOF 33 is hereby adopted. Respondent's PFOF 34 is rejected as argument. Intervenor's PFOF: 1-21. Intervenor's PFOFs 1-21 are adopted in substance in the RO. Intervenor's PFOF 22 is adopted, in substance, in paragraph 4 of the RO. Intervenor's PFOF 23 is hereby adopted. Intervenor's PFOF 24 is adopted in substance. Intervenor's PFOF 25 is hereby adopted. However, Intervenor has failed to prove that the activity of NMC is not within one of the several exceptions to the requirements of Section 607.1501, Florida Statutes. COPIES FURNISHED: Seann M. Frazier, Esquire Jennifer Kujawa-Graner, Esquire PANZA, MAURER, MAYNARD & NEEL, P.A. 3081 East Commercial Avenue Fort Lauderdale, Florida 33308 R. Beth Atchison, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Timothy G. Schoenwalder, Esquire BLANK, RIGSBY & MEENAN, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Findings Of Fact The Palm Beach County School Board (Respondent) issued an invitation to bid (ITB) on February 16, 1993, requesting bids for the removal, preparation, and installation of carpet-glue down on project SB93C-216T. The ITB provided that all bids were to be submitted by March 31, 1993, at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent sections of the ITB to the case at hand include a section entitled "Invitation To Bid" which provides in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as a result of this bid shall conform to applicable Florida Statutes. Another section entitled "General Conditions, Instructions and Information for Bidders" provides in pertinent part: 26. Any and all Special Conditions that may vary from these General Conditions shall have precedence. The section entitled "Special Conditions" provides in pertinent part: C. AWARD: Bid will be awarded to the lowest and best bidder meeting specifications, terms and conditions . . . The School Board shall elect to award to a primary and a secondary vendor . . . . * * * N. CONTRACTOR QUALIFICATIONS: The contractor must have at least three years of verifiable experience in the floor covering contracting business. The contractor must have in force the required occupational licenses from Palm Beach County and it's municipalities. All documentation of the above requirements must be submitted with the proposed bid by each bidding contractor. The contractor shall not sub-contract any portion of their work, outlined in this contract, to any person(s) or company, without advance written permission from the Carpentry Supervisor of the Department of Maintenance & Plant Operations. Another section of the ITB entitled "Additional Information" provides in pertinent part: Additional information will not be a determining part of the award of this bid except in the instance where the per square yard prices are too close to determine a clear awardee. In that instance we will look at the optional items in this section as the determining factor. (This usage is also based upon all other factors being equal.) . . . Cost of heavy patching. $ per sq. ft. . . . Cost of heavy patching. $ per sq. ft. . . . By March 31, 1993, eight bids were received. However, only seven bids were considered. Respondent's Department of Contracting & Procurement reviewed the bids. On April 12, 1993, the Department of Contracting & Procurement (Department) posted the bid tabulations, which showed, inter alia, that the apparent lowest bidder was Carpetech at $28,029.61, that the apparent second lowest bidder was Buy the Square Yard (Petitioner) at $32,107.32, and that the apparent highest bidder was Acousti Engineering of Florida (Intervenor). Additionally, the recommendation was that the bid be awarded to the "lowest and best bidder meeting specifications, terms, and conditions" with Carpetech being the "Primary" bidder and Petitioner being the "Secondary" bidder. Moreover, the bid tabulation sheet noted that the "price" of each bid was determined by using a "hypothetical" that was typical of a School Board project. This was the first time that the bidders were aware of a hypothetical being used. Respondent had not used a hypothetical in past bids for this type of work, and it was not included in the bid specifications At first, after the bids were opened, Respondent's Department used the base bid, which excluded any alternate work, to determine the apparent lowest bidder. The calculation showed Intervenor as the apparent lowest bidder at $11.03 sq. yd. and Petitioner as the apparent second lowest bidder at $11.08 sq. yd. Carpetech's base bid was $11.295 sq. yd. A discussion ensued as to whether the bids were "too close"; but, there was no consensus as to the meaning of "too close." However, the Department determined that, taking into consideration the alternate work which would have to be done, Intervenor was not the best bidder. The Department first considered recommending the rejection of all bids and readvertising, but decided upon using a hypothetical which included the base bid and the alternates in the calculations. As a result of using the hypothetical, Carpetech, not Intervenor, was the apparent lowest bidder. However, Carpetech, unlike any other bidder, changed one of the specifications in its bid from the "cost of heavy patching" to the "cost of light patching." Respondent admits that a clerical error had occurred and that particular specification should have been "light" patching, instead of "heavy" patching. Also, Carpetech failed to submit an occupational license with its bid. However, subsequent to the bid opening, Carpetech submitted an occupational license. Like Carpetech, Intervenor also failed to submit an occupational license with its bid. 2/ To the contrary, Petitioner submitted an occupational license with its bid. The occupational license forbade Petitioner to have employees at its location but allowed it to hire outside employees, which meant that it could hire contract labor to perform under the contract of the bid. 3/ Out of the three bidders--Carpetech, Petitioner and Intervenor--only Petitioner is a minority owned business. Initially, when Petitioner began its business in December 1991, it was owned by a minority female and a minority male. Subsequently, for financial purposes, the minority female became the sole shareholder/owner and the minority male became the business consultant (consultant), receiving consulting fees. On or about March 24, 1992, Petitioner was certified as a Minority Business Enterprise (MBE) by Palm Beach County, and on or about March 19, 1992, it was certified as a MBE by Respondent, with the certification effective from May 1992 to May 1993. Petitioner became incorporated in or around April 1992 and again in July 1992 when the minority female became the sole owner. Prior to Petitioner's formation, its consultant had his own flooring business (carpet and tile sales and insulation) for several years. The prior business had financial difficulties which resulted in court judgements against it. Petitioner's sole owner was never involved in the consultant's prior business. She provides Petitioner's financial security, and there have been no court judgments against Petitioner. Respondent's Department was familiar with flooring work of Petitioner's consultant before he became associated with Petitioner. He had performed flooring work for Respondent in the past, which was very satisfied with his work. The Department was not aware of the court judgements against the prior business of Petitioner's consultant. However, even if it was, the judgments would not have had a negative effect on Petitioner in the award process of the current contract. On or about April 14, 1993, Intervenor filed its written protest, which was timely. On or about April 22, 1993, Petitioner filed its written protest, which was timely. On April 28, 1993, Respondent held an informal meeting on the written protests. On May 3, 1993, Respondent's counsel issued its recommendation on the protests, which was to "reject all bids and rebid with new terms and conditions and specifications" in order for all bidders to be given "a fair playing field."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on project SB93C-216T and readvertise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of December 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December 1993.
The Issue On March 16, 1992, Petitioner filed motions for attorney's fees and costs pursuant to Sections 57.105 and 120.57(1)(b)5., Florida Statutes. At hearing, Petitioner conceded that Section 57.105 is inapplicable to administrative hearings and the case proceeded on the issue of entitlement under Subsection 120.57(1)(b)5., Florida Statutes. The issue of an appropriate amount of fees and costs is moot, for the reasons set forth below, although that issue was reserved for ruling, if necessary, after an evidentiary hearing.
Findings Of Fact The following findings are gleaned from the record in case number 92- 0247BID. On June 21, 1991, the Department of Health and Rehabilitative Services (HRS), Developmental Services Program Office, published its need for six (6) bed or less intermediate care facilities for the developmentally disabled (ICF/DD) throughout the state, in each of eleven HRS planning districts. The notice solicited competitive proposal applications for varying numbers of beds in each district. The notice stated that applications would be received in each district no later than 5:00 p.m., September 19, 1991, and that final awards would be made on November 22, 1991. Sunrise Community, Inc. (Sunrise), filed petitions for formal hearing in response to denial of its proposal applications in several HRS districts. On January 2, 1992, the petitions were dismissed by HRS with leave to amend. An amended notice of bid protest and petition for formal hearing was filed by Sunrise on January 9, 1992, as to HRS District VII, and was forwarded to the Division of Administrative Hearings (DOAH) for conduct of the hearing. DOAH number 92-0247BID was assigned to the undersigned Hearing Officer and was set for hearing on January 31, 1992, within the deadline required by Section 120.53(5), Florida Statutes. HRS filed a motion to dismiss the amended petition on January 22, 1992, alleging that Petitioner, with its third-ranked proposal, lacked standing to protest, and further alleging that the amended petition lacked specificity. On January 23, 1992, Salem Village MRDD, Inc. (Salem), filed a Petition to Intervene, as the apparent successful bidder in HRS District VII. The second-ranked bidder, Community Services of Orange and Seminole, Inc. (CSOS) also petitioned to intervene in DOAH Case number 92-0247BID and had filed a separate Amended Notice of Bid Protest on January 17, 1992. HRS' motion to dismiss was heard on January 27, 1992. An order was entered on January 29, 1992, consolidating the Sunrise and CSOS petitions, granting Salem's petition to intervene, and denying HRS' motion to dismiss, but requiring Petitioner, Sunrise, to provide specifics of its factual allegations either through responses to discovery or in an amended petition to be served on opposing counsel prior to commencement of the hearing on January 31st. In the meantime, the parties were engaging in discovery, filing motions related to discovery and were proceeding towards hearing in this and the other cases arising from Sunrise's bid protests in other HRS districts. On the afternoon of January 30, the day before the scheduled hearing, after learning that CSOS was dismissing its petition, Sunrise withdrew its challenge in this District VII case and notified the parties by telephone. The Hearing Officer was notified directly by telephone by counsel for CSOS and the hearing scheduled to commence in Tallahassee on January 31 was cancelled. Without the participation of the second-ranked bidder, CSOS considered its chances of prevailing, as third-ranked bidder, were substantially reduced. A "Modified Amended Notice of Bid Protest," clearly mailed prior to Sunrise's voluntary dismissal, was filed at the DOAH on January 31, 1992. The identical pleading was apparently filed in this party's other bid protest cases in the other HRS districts, as the certificate of service reflects service on various other HRS district counsel. The pleading provides in paragraph 6.(a)- (z), pages 6-8, some specifics of Sunrise's allegations of defects in Salem's proposal and the bid committee's evaluation. The bid protest of Sunrise filed, not simultaneously, but at least contemporaneously with the protest of CSOS, the second-ranked bidder, did not itself cause delay in the process, and it was orally dismissed within hours or minutes of the attorney's discovery of dismissal by CSOS. The substantial weight of evidence in the record supports a finding that Sunrise's initiation and pursuant of a bid protest in Case number 92-0247BID was not for an improper purpose. There was a delay of several weeks between the oral dismissal and the order entered on March 20, 1992, remanding the file to HRS and closing DOAH's file. This delay was occasioned by the Hearing Officer's reluctance to close a file without written confirmation of dismissal, particularly since pleadings were still being docketed, erroneously, under the DOAH file number 92-0247BID. Those pleadings were identical to pleadings filed in several other HRS district bid cases that were still active. Salem, a party in those other cases, one of which proceeded to formal hearing and is waiting a recommended order, has not demonstrated any prejudice by that delay.
The Issue The ultimate issue for determination at formal hearing was whether the intended action by the Palm Beach County School Board to award the bid on Project No. 93-238V to LaPlant-Adair, as the lowest responsive bidder, departs from the essential requirements of law.
Findings Of Fact On March 15, 1993, Palm Beach County School Board (Respondent) issued an Invention to Bid (ITB), soliciting bids for the relocation of portable classroom structures for Project No. 93-238V. All sealed bids were required to be received by 2:00 p.m. on April 7, 1993. The ITB contained a provision that Respondent had the right to reject any and all bids. The "General Conditions, Instructions and Information for Bidders" section of the ITB notified bidders of Respondent's "minority/women business enterprise participation goal" and its "special conditions" which provided as follows: 24. ADMINISTRATIVE DIRECTIVE D-6.202: Pursuant to School Board Policy 6.146, Minority/Women Business Enterprise Program, a minimum goal of 15 percent has been established for certified minority/women business enterprise participation. The School Board strongly encourages active minority/women business enterprise participation on all contracts, proposals, bids professional services and other goods. The School Board of Palm Beach County is an Equal Opportunity Employer. * * * 26. SPECIAL CONDITIONS: Any and all Special Conditions that may vary from these General Conditions shall have precedence. The "Special Conditions" section of ITB provides, pertinent to this case: AWARD: Items in groups as marked, will be awarded by group. Therefore, it is necessary for a bidder to bid on every item in the particular group in which the bidder submits a bid in order to have a bid considered. It is also required that the bidder carefully consider each item, and make sure that each one meets the specifications as indicated. In the event that one item does not meet such specifications the entire group bid will be disqualified. It is anticipated that this bid will be awarded at the May 5, 1993, board meeting. TERM OF CONTRACT: The term of this contract shall be during the period June 20, 1993, through June 19, 1994, with the option to renew annually for a period of one (1) additional year. Annual renewal acceptance will be based on the successful bidder agreeing to terms, conditions and maintaining firm prices for the forthcoming year no later than April 15 in each contract year and acceptance of same by the School Board. All prices shall remain firm for the duration of this contract. SCOPE OF WORK: The successful bidder (hereinafter referred to as the contractor) shall furnish, at their expense, all supervision, equipment, machines, tools, materials, labor, transportation, and other facilities and services necessary to accomplish relocation of portable structures as specified herein . . . The contractor shall be responsible for correction/replacement, according to local codes and School Board's satisfaction, of all water lines, sanitary lines, electrical lines, curbs, sidewalks, streets, parking lots, grassed areas, structures, etc., broken or damaged as the result of contractor's operations . . . Contractor shall be responsible for complete and total relocation of portables to include tie down straps and any and all accessories attached to portable structures . . . Contractor shall provide transport and placement of all precast concrete foundation blocks . . . * * * U. ADMINISTRATIVE DIRECTIVE D-6.202: Pursuant to School Board Policy 6.146, Minority/Women Business Enterprise Program, a minimum goal of 15 percent has been established for certified minority/women business enterprise participation. The School Board strongly encourages active minority/women business enterprise participation on all contracts, proposals, bids, professional services and other goods. School Board Policy 6.146--Minority/Women Business Enterprise Policy-- provides in pertinent part: (2) DISTRICT GOAL To increase the participation of minority and women's business enterprises in the school district's contracts related to procurement, goods and non-professional services, construction, maintenance and renovation, and professional services. (5) PERFORMANCE OBJECTIVES * * * The MBE programs will implement a voluntary 15 percent participation goal of the total amount of funds allocated for school board purchases, professional services and contracts to be awarded to certified M/WBES upon School Board approval. The goals are reviewed annually by the M/WBE council Appropriate language including but not limited to minority participation and goals will be included in all bid documents. * * * All contract and bid documents will include procedural documentation of good faith efforts to include M/WBES to participate as associates, joint-ventures, and subcontractors. * * * Establish a program where staff may provide bonus points for companies employing M/WBES on joint ventures, and as subcontractors to enhance minority participation. (m) Establish a mechanism to delete and/or amend "option to renew" clauses in contracts to vendors once the bid time is completed. Respondent solicited nine bids and received six responses. Of the responses, three returned the ITB with bids and three returned the ITB with a no bid. The three that bid were Gainsborough Construction, Inc., LaPlant-Adair Company and Petitioner. The bids were opened on April 7, 1993. No evidence of irregularities at the bid opening was presented, and neither of the parties contend that there were any irregularities. The bids were reviewed by Respondent's Contracting & Procurement (CP) and its Maintenance and Plant Operations (MPO). CP's buyer/purchasing agent who determines the responsiveness of bids and prepares the tabulation sheet determined that all bids were responsive and that LaPlant-Adair Company was the apparent lowest bidder at a bid of $14,245; whereas, Gainsborough Construction, Inc., submitted a bid of $24,412, and Petitioner a bid of $24,432. However, because of the differences among the bidders in the cost per mile for moving the different structures, Respondent's CP and MPO staff, specifically, CP's buyer/purchasing agent and MPO's major project team leader, determined that an analysis also needed to be developed to provide a fair assessment of the bids to make certain that Respondent was not being over charged, i.e., to make certain that LaPlant-Adair was the lowest and best bid. The ITB provides that eight different types of portable structures were to be moved. Realizing that relocation of the portable classrooms depended upon the student population at each school in the district and the shift of the population, Respondent's staff determined that there was no way to know which portable classrooms would be relocated, the number of each to be relocated and the distance of the relocation. Hence, they formulated an analysis to fairly assess the situation, which consisted of (1) using the percentage of portables in each size in Palm Beach County's school system and the average number of miles portables had been moved over the past year, which was approximately 10 miles, and (2) applying these figures to the ITB's quoted figures by each bidder for "set-up, mobilization, unloading, and tie-down charge." The results showed that LaPlant-Adair's bid was the lowest bid and satisfied Respondent's staff that there was no overcharge. LaPlant-Adair remained the apparent lowest and best bidder. The bid specifications were silent on the use of any mathematical analysis to be used by Respondent. Of the three bids submitted, only Petitioner met and exceeded the minority/women business enterprise (M/WBE) participation goal of 15 percent. Petitioner's minority participation was 16 percent, and it provided supporting documentation with its bid. Because Petitioner included M/WBE participation in its bid, Petitioner's bid quote increased. Petitioner interpreted Respondent's M/WBE participation goal as being mandatory for bids. For several years, Petitioner has been involved in bidding for state and county projects, and both have minority participation requirements. Petitioner's experience was that if the minority participation percentage was not met, the bidder was not awarded a contract even if the bidder was the lowest bidder. Respondent's M/WBE participation is a "goal," not a requirement, and not mandatory. It has not been used in Respondent's prior ITBs. This was the first bid in which it had been included by Respondent. In 1991, Respondent awarded to Petitioner, over LaPlant-Adair, the contract for relocating portable classrooms. The contract had an option to renew. For the 1992-93 contract year, Petitioner renewed its option and continued as the contractor until 1993 at which time Respondent stopped renewing options and placed contracts on a one year term. During the term of Petitioner's contract, Respondent was satisfied with Petitioner's performance. At the time of the protest, Petitioner was using LaPlant-Adair as a subcontractor relocating portable classrooms for Respondent under the 1992-93 contract. As subcontractor, LaPlant-Adair performed 75 percent to 80 percent of the work involved in the relocating. Prior to Petitioner being awarded the 1991 contract and prior to being the subcontractor to Petitioner, LaPlant-Adair had been awarded the contract by Respondent for relocating portable classroom structures. Respondent was satisfied with LaPlant-Adair's performance under the contract. Based upon the bid quotes, the analysis performed, and responsibleness, LaPlant-Adair was recommended to be awarded the contract, as the lowest responsive and responsible bidder. The second lowest responsive and responsible bidder was Gainsborough Construction, and Petitioner was third. On April 16, 1993, Petitioner filed a protest of the intended action to award the contract to LaPlant-Adair and requested a hearing. Subsequently, on April 26, 1993, Petitioner filed a formal protest in letter form providing the basis for its protest: (1) LaPlant-Adair skewed the numbers in its bid; and neither LaPlant-Adair nor Gainsborough Construction, the second lowest responsive and responsible bidder, met the minority participation goal and, in fact, showed no attempt to do so. On May 13, 1993, an informal hearing was held by Respondent in an attempt to resolve the protest. At the informal hearing, Petitioner included an additional challenge which was that the recommendation process for awarding the contract varied from the bid specifications. Respondent determined that Petitioner's claims were without merit and that LaPlant-Adair would be recommended for award of the contract at Respondent's meeting on June 2, 1993. Both Petitioner and LaPlant-Adair are ready, willing and able to perform the work in accordance with their bid documents.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting Petitioner's protest and awarding the bid on the portable classrooms relocation Project No. 93-238V to LaPlant-Adair. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of Sepember 1993. ERROLL H. POWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1993.
