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.
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation, Department), was the state agency responsible for the construction and maintenance of public funded highways within this state not otherwise maintained by federal, county or local government instrumentalities. On or about February 24, 1994, the Department indicated its intention to reject all bids in the two procurements pertinent to the issues herein on the basis that every bid received, from several bidders, exceeded its official cost estimate prepared as a part of the procurement process. This is consistent with a Department policy, itself consistent with statute, to reject all bids on a particular procurement, if the lowest bid received is for a sum greater than the Department's official cost estimate plus 15 percent. Leamington's bids in both procurement actions were rejected for the additional reason that it was not a responsible bidder since it had been declared in default on other state projects. By letter dated March 2, 1994, filed in each procurement in issue here, Leamington formally protested its rejection by the Department for the stated non-responsive, (default), grounds. Leamington's protests made no reference to the rejection of all bids. The matters were referred for formal hearing on the protests and were subsequently set for hearing on April 4, 1994. On March 31, 1994, pursuant to direction by the Hearing Officer, Thomas H. Duffy, counsel for the Department, contacted John Hummel, Leamington's President, to confirm the hearing time and location and, if possible, to agree upon the terms of a pre-hearing stipulation. During that conversation, Mr. Hummel indicated his intention to be present at the scheduled hearing. He also indicated to Mr. Duffy his dissatisfaction with the Department's procurement procedures and his intention to bid on and file protests on as many Department procurements as he could in order to disrupt the Department's procurement operations. Mr. Hummel did not appear at the protest hearing at the scheduled time nor any time thereafter. The hearing was postponed an additional fifteen minutes to allow him ample time to appear. He also did not advise the Hearing Office of his intention not to appear before the hearing, nor did he contact the Hearing Officer thereafter with any reason for his nonappearance. At the hearing, counsel for the Department advised he had received a facsimile notice from Mr. Hummel withdrawing Leamington's protest in both protest cases. Thereafter, the undersigned entered a Recommended Order on the procurement issues recommending approval of the procurement action taken by the Department in each case. A Final Order on those matters has not, as of the date of this Final Order, been issued by the Department. Leamington has also filed bids in several other Department procurements. In some, it failed to post the required bid bonds and in others, failed to be pre-qualified as required due to the amount involved in the bids. Its bids were unusually similar even though the procurements were different, raising the inference that the bids were not serious but made only as a predicate for a disruptive, frivolous protest action. At no time did a representative from Leamington appear to present evidence in support of its protests. To the contrary, Leamington's actions appear to establish a pattern of harassment and abuse of the procurement process consistent with Mr. Hummel's stated intention. Thomas Duffy, counsel for the Department during the period leading up to and for the hearing on Leamington's pertinent protests, expended 26.4 hours in preparation for that hearing. He estimates the fair market value of his time as an attorney at $100.00 per hour. This estimate appears reasonable. Waldemar H. Clark, Jr., the Department's District Contracts Attorney, expended approximately 6.25 hours on the two procurements involved here. He estimates the fair value of his time as an attorney as $30.20 per hour for a total cost of $189.31. This estimate appears reasonable but somewhat low. Edward C. Thompson, the Department's District Contract Administrator expended 1.75 hours on the instant procurements and estimates the value of his time at $26.04 per hour for a total cost of $45.57. This appears reasonable. Richard A. Marino, an employee of the Department's Maintenance Contracts section expended a total of $555.90 in travel expenses and hearing preparation time. His breakdown of expenses appears reasonable. A.J. Spalla, an attorney in private practice in Tallahassee who previously worked for the Department of Transportation, and an expert regarding reasonableness of attorney's fees evaluated the matter in issue here and concluded that a reasonable attorney's fee for legal services rendered by the staff attorneys for the Department in this matter would be $4,000.00. Paul Martin, also an attorney, and currently an Assistant Attorney General opines that $2,000.00 would be a reasonable attorney's fee for the work done for the Department in this case. The combination of $2,829.31 for both attorneys involved in this matter on behalf of the Department is well within the range of estimates by the Department's experts. No evidence to contradict these estimates was presented, and it is found that the estimated amounts are reasonable. The other expenses are, as well, reasonable.
Findings Of Fact On February 25, 1994, DACS issued an Invitation to Bid ITB/DF-93/94-49 to obtain competitive bids for contractual services involving a biological assessment of approximately 44,334 acres of the Goethe State Forest in Levy County, Florida. The Invitation to Bid provided that the bids received would be opened at 2:30 p.m. on March 21, 1994. The Special Terms, Conditions and Specifications of the Invitation to Bid provided that references submitted by the bidder must be those of the bidder. The General Conditions of the Invitation to Bid provided that the Department may waive any minor irregularity or technicality in the bids received. Bids must be evaluated upon the information furnished with the bid. No other information is used. At the bid opening, Conway was the apparent low bidder at $0.71 per acre for a total of $31,477.14, and Environmental Services was the apparent second low bidder at $1.0438 per acre for a total of $46,275.66. ESP's bid was approximately 47 percent higher than Conway's bid. ESP's bid was responsive to the ITB and ESP is qualified to perform the work required under the ITB. Conway submitted three references with its bid. However, Conway's three references were for work previously performed by Ms. Duever as an individual or as an employee of another company. The references were not those of the bidder, Conway. Linda Duever, the sole officer and director of Conway Conservation, Inc., read the invitation to bid and was aware of the specific requirement for references of the bidder. Ms. Duever thought the Department and the Invitation to Bid emphasized the importance of similar work to that sought by the Department. She did not seek information about the reference requirements, even though she had some doubt about the references she was submitting, thinking she could supplement the bid later if necessary. Nor did she protest the specifications within the timeframes established by Chapter 120, Florida Statutes. Conway is a closely January 26, 1993. However, Conway Conservation, Inc., and Linda Duever are two separate and distinct entities. The evidence demonstrated that the references of the bidders were an important part of the information to consider in the award of this bid since the references indicated that the bidder had the expertise to perform the work required in the bid but also had the financial wherewithal to complete such work and hire the necessary personnel or subcontractors to successfully complete the work required in the Invitation to Bid. In this case, Petitioner's references demonstrated expertise in the areas of knowledge required to complete a biological survey. However, what the references did not show and could not show because they did not reflect business done by Conway, was the financial ability of Conway to adequately complete a biological survey. Such information was very important to the Department and was not a minor irregularity nor technicality which could, or should, have been waived by DACS. Given these facts Petitioner's bid was not responsive to the Invitation to Bid and the Department was correct in rejecting Petitioner's bid and awarding the project to ESP. Finally, Conway is not certified by the Department of Management Services as a minority business enterprise pursuant to Section 288.703(4), Florida Statutes, although the evidence demonstrated that Petitioner could easily be so certified. However, bidder's minority status, either certified or not certified, does not change the result in this case. Status as a Minority Business Enterprise was not a consideration in this bid award. Therefore, Minority Business Enterprise status, or lack thereof, did not and could not have had any impact on the outcome. Moreover, the Department has no authority to change the terms and conditions under which a bid is to be awarded after the bids are opened in order to grant more favorable treatment to a potential minority business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order in this case dismissing Petitioner's formal protest and awarding the contract for the Project to Environmental Services and Permitting, Inc. DONE AND ENTERED this 7th day of July, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2121BID The facts contained in paragraphs A, B, D, E, F, G, H, I, K, L, M, O, Q, R and S, of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs C, J, N and P of Petitioner's Proposed Findings of Fact were subordinate. The facts contained in paragraphs 1, 2, 4, 5, 8, 9, 10, 12, 13 and 14 of Petitioner's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 6, 7, 11, 15, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 17 and 18 of Petitioner's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: Isadore Rommes Senior Attorney Legal Office 515 Mayo Building Tallahassee, FL 32399-0800 Kent A. Zaiser P. O. Box 6045 Tallahassee, FL 32314-6045 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, FL 32399-0810 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, FL 32399 John T. Lavia, Esquire Landers & Parsons, P.A. Post Office 271 Tallahassee, Florida 32302
The Issue Whether in making a preliminary decision to award a contract for the subject services under Invitation to Bid No. 12-039T – Refuse Services (the ITB) Respondent School Board of Broward County, Florida (the School Board) acted contrary to a governing statute rule policy or project specification; and if so whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner Ace Waste Services, LLC (Petitioner) challenges the determination that the bids submitted by the apparent low bidder, the apparent low second low bidder, and the apparent low third low bidder were responsive and responsible bids meeting the specifications contained in the ITB.
Findings Of Fact School Board Policy 3320 entitled "Purchasing Policies" is the agency's rule governing the purchasing of goods and services. On October 7, 2011, the School Board issued the ITB which was entitled "Refuse Services." On October 18, 2011, the School Board issued Addendum No. 1 to the ITB. The refuse services were to be provided to 58 district school sites, which were collectively referred to as Group 1. The Bidder Acknowledgement found at Section 1.0 of the ITB states in pertinent part as follows: I agree to complete and unconditional acceptance of this bid all appendices and contents of any Addenda released hereto; I agree to be bound to all specifications terms and conditions contained in this ITB . . .. I agree that this bid cannot be withdrawn within 90 days from due date. Section 3 of the ITB states as follows at General Condition 3(b): MISTAKES: Bidders are expected to examine the specifications delivery schedules bid prices and extensions and all instructions pertaining to supplies and services. Failure to do so will be at Bidder's risk. Section 3 of the ITB states as follows at General Condition 35: PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person desiring to protest the conditions/specifications of this Bid/RFP or any Addenda subsequently released thereto shall file a notice of intent to protest in writing within 72 consecutive hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest with ten calendar days after the date the notice of protest was filed. Saturdays Sundays legal holidays or days during which the school district administration is closed shall be excluded in the computation of the 72 consecutive hours. If the tenth calendar day falls on a Saturday Sunday legal holiday or day during which the school district administration is closed the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday Sunday legal holiday or days during which the school district administration is closed. Section 120.57(3)(b) Florida Statutes as currently enacted or as amended from time to time states that "The formal written protest shall state with particularity the facts and law upon which the protest is based." Failure to file a notice of protest or to file a formal written protest within the time prescribed by [section 120.57(3)(b)] or a failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. The failure to post the bond required by School Board Policy 3320 Part VI within the time prescribed by School Board Policy 3320 Part VI as currently enacted or as amended from time to time shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. Notices of protest formal written protests and the bonds required by School Board Policy 3320 Part VI shall be filed at the office of the Director of Supply Management and Logistics 7720 West Oakland Park Boulevard, Suite 323 Sunrise, Florida 33351 (fax 754-321-0936). Fax filing will not be acceptable for the filing of bonds required by School Board Policy 3320 Part VI. Section 3 of the ITB states as follows at General Condition 36: POSTING OF BID RECOMMENDATIONS/TABULATIONS: Any person who files an action protesting an intended decision shall post with the School Board at the time of filing the formal written protest a bond payable to the School Board of Broward County Florida in an amount equal to one percent (1%) of the Board's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours excluding Saturdays Sundays legal holidays and other days during which the School Board administration is closed of receipt of notice of intent to protest. The estimated contract amount shall be established on the award recommendation as the "contract award amount." The estimated contract amount is not subject to protest pursuant to [section 120.57(3)]. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond the School Board may accept a cashier's check official bank check or money order in the amount of the bond. If after completion of the Administrative Hearing process and any appellate court proceedings the School Board prevails the School Board shall recover all costs and charges which shall be included in the Final Order or judgment including charges made by the Division of Administrative Hearings but excluding attorney's fees. Upon payment of such costs and charges by the protestant the bond shall be returned. If the protestant prevails then the protestant shall recover from the Board all costs and charges which shall be included in the Final Order or judgment excluding attorney's fees. Section 3 of the ITB states as follows at Special Condition 1: INTRODUCTION AND SCOPE: The School Board of Broward County Florida (hereinafter referred to as "SBBC") desires bids on REFUSE SERVICES for solid waste removal as specified herein. Prices quoted shall include pick up at various schools departments and centers within Broward County Florida. Section 4 of the ITB states as follows at Special Condition 3: AWARD: In order to meet the needs of SBBC Bid shall be awarded in its entirety to one primary and one alternate responsive and responsible Bidders meeting specifications terms and conditions. The lowest Awardee shall be considered the primary vendor and should receive the largest volume of work. Therefore it is necessary to bid on every item in the group and all items (1-58) in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC reserves the right to procure services from the alternate Awardee if: the lowest Bidder cannot comply with service requirements or specifications; in cases of emergency; it is in the best interest of SBBC. After award of this bid any Awardee who violates any specification term or condition of this bid can be found in default of its contract have its contract canceled be subject to the payment of liquidated damages and be removed from the bid list and not be eligible to do business with this School Board for two years as described in General Conditions 22 and 55. Section 4 of the ITB states as follows at Special Condition 7: ADDING OR DELETING SITES: SBBC may during the term of the contract add or delete service wholly or in part at any SBBC location. When seeking to add a location SBBC shall request a quote from both Awardees. The lowest Bidder shall receive an award for the additional location. If additional service is requested for an existing site already receiving service the current service provider will be contacted to provide a new quote based on the pricing formula submitted in response to this ITB or a subsequent quote. Section 4 of the ITB states as follows at Special Condition 11: RECEPTACLES: The Awardee shall furnish receptacles in good repair. . . .The Awardee shall furnish any and all equipment materials supplies and all other labor and personnel necessary for the performance of its obligations under this contract. Design of all equipment is subject to the approval of the Manager Energy Conservation Utility Management or his designee and must be replaced upon notification without additional cost to SBBC. DESCRIPTION: All receptacles used for solid waste referenced in Group 1 on the Bid Summary Sheets and the Tamarac location listed in Section 5 Additional Information unless otherwise indicated shall be provided by the Awardee at no additional cost. Bin receptacles shall be provided for SBBC use in the cubic yard capacities as indicated on the Bid Summary Sheets. Receptacles shall be bin-type units steel or plastic lift-up lids NO SIDE DOORS unless specifically requested for 8 cu. yd. fitted for automatic loading on casters where necessary for chute operations. (Receptacles not on casters must have a 6" – 12" clearance from ground to bottom of bin for easy cleaning underneath.) TWO AND THREE YARD CONTAINERS: It will be necessary for The Awardee to supply the two (2) and three (3) yard containers to hold compacted refuse at a ratio of approximately 4:1. These containers are designed for front-end loading. THESE UNITS ARE IDENTIFIED ON THE BID SUMMARY SHEET BY A SINGLE ASTERISK (*) NEXT TO THE CONTAINER SIZE. Section 4 of the ITB states as follows at Special Condition 20: SMALL IN-HOUSE COMPACTION UNITS(approximately two yards): The following schools have in-house compaction units which will need to be provided by the Awardee. Waste is compacted at an approximate ratio of 3:1. Collins Elementary Oakridge Elementary Sheridan Hills Elementary Section 4 of the ITB states as follows at Revised Special Condition 14: PRICING – ALL INCLUSIVE COST GROUP 1 ITEMS 1– 58: Bidder shall submit fixed monthly costs where indicated on the Bid Summary Sheets for each location based on 4.33 weeks per month. (This number is derived by dividing 52 weeks by 12 months). Monthly costs stated shall be an all-inclusive cost for providing receptacles refuse removal and disposal including but not limited to all necessary labor services material equipment taxes tariffs franchise fees maintenance and applicable fees. SBBC agrees to pay the Broward County Disposal Adjustment (tipping fees) in effect at the time. Increases to this fee will be paid as assessed by Broward County. Any decreases in these rates shall be passed on to SBBC as well. No bid specification protest was filed by any person concerning the original ITB or Addendum No. 1. Nine companies submitted timely responses to the ITB. Each bidder submitted a monthly bid and an annual bid. The School Board thereafter ranked the respective bids. Intervenor was the apparent low bidder with a monthly bid of $39,576 and an annual bid of $474,918.38. All Service was the apparent second low bidder with a monthly bid of $40,540.90 and an annual bid of $486,490.80. WSI was the apparent third low bidder with a monthly bid of $47,671.71 and an annual bid of $572,060.52. Petitioner was the apparent fourth low bidder with a monthly bid of $50,177.73 and an annual bid of $602,132.76. On November 2, 2011, the School Board's Purchasing Department posted the agency's intended recommendation for award of the ITB. The intended decision was (A) to award to Intervenor as the primary vendor for Group 1 (1 through 58); and (B) to award to All Service as the first alternate for Group 1 (1 through 58). On November 4, 2011, Petitioner timely filed its Notice of Protest with the School Board's Purchasing Department. On November 14, 2011, Petitioner timely filed its Formal Bid Protest with the School Board's Purchasing Department and delivered the required bid protest bond. The School Board formed a Bid Protest Committee that met with Petitioner on December 19, 2011, to consider Petitioner's formal written protest in accordance with section 120.57(3)(d)(1) and School Board Policy 3320. The parties were unable to resolve the protest by mutual agreement and the School Board sent Petitioner a notice of non-resolution of dispute. Section 1 of the ITB precludes a bidder from withdrawing its bid within 90 days of its submission to the School Board. At the time of the formal hearing 106 days had passed since the submission of bids. No bidder, including Intervenor, has indicated that it committed an error in calculating its prices submitted under the ITB or asked the School Board to excuse it from the prices it offered under the ITB. To the contrary, Intervenor's counsel represented at the formal hearing that Intervenor was standing by its bid. Generally, compacted waste is heavier and more expensive to dispose of than non-compacted waste. The ITB identifies the number and size (in cubic yards) of the receptacles to be placed at each location and the number of pick-ups per weeks to occur for each receptacle. The ITB also informs the bidders whether a receptacle was compacted or non-compacted. If compacted the ITB set forth the ratio of compaction. Bidders were also asked to bid a monthly cost and any applicable fees charged by the facility receiving the waste to arrive at total monthly cost for each receptacle to be furnished. The bidders were required to provide a total monthly bid for the services and a total annual bid for the services. The bidders were to use the information set forth in the ITB to calculate their bids. Petitioner asserts that the bids submitted by Intervenor, All Service, and WSI were not responsible bids because those bids failed to factor in the higher costs of disposing of waste that had been compacted. Petitioner contends that the reference to compaction ratios constitute specifications by the School Board to require all bidders to calculate their pricing utilizing the compaction ratios. Petitioner describes the referenced compaction ratios as "multipliers" that needed to be used by the bidders in calculating their prices for handling and disposing of compacted waste. Petitioner is seeking to impose its interpretation of the ITB as requiring each of the bidders to calculate its bid using the same pricing methodology that Petitioner employed. There is no ambiguity in the ITB, and there is no factual basis to conclude that all bidders were required to prepare their bids in the same fashion as Petitioner. There is nothing set forth in the ITB that required the School Board to interpret its reference to the compaction ratios as being a specification of a "multiplier" for pricing as opposed to a description of the capacity of the receptacles to be used at each of the school locations. At no point is the word "multiplier" used in the ITB to specify that the bidders were required to engage in mathematics involving multiplying their prices against some unit price the bidders were specifying in their bids. The ITB specifies the frequency with which the varying container sizes needed to be picked up at each of the 58 schools with the weight or volume of the container not being a factor in setting the specification of how often the container is to be picked up by the awardee. No adjustments were to be made to the prices paid by the School Board based on the weight of the container when removed. The School Board did not specify in the ITB that a bidder was required to charge the same monthly cost at each school for a similarly-sized refuse container nor did the School Board require different pricing for compacted waste as compared to non-compacted waste. Petitioner's assertion that the bidders were required to use those ratios as a multiplier when bidding on the cost of disposing of compacted waste is rejected as being contrary to the plain language of the ITB. The compaction ratios were provided to the bidders as information only. There is no requirement that a bidder use a particular methodology in determining its bid amounts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Broward County Florida enter a Final Order that adopts the findings of fact and conclusions of law contained herein, dismisses the protest filed by Petitioner Ace Waste Services LLC, and upholds the award of the procurement to Choice as primary awardee and to All Service as alternate awardee. DONE AND ENTERED this 20th day of March 2012, in Tallahassee Leon County Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March 2012.
The Issue The issue in this case is whether the Department of Agriculture and Consumer Services (Department) acted in an arbitrary or capricious manner in rejecting all bids due to the vagueness of an addendum to bid specifications, and rebidding a contract for the installation and replacement of EDB water filters.
Findings Of Fact In September, 1986, Global submitted a bid to the Department for the installation and exchange of EDB water filters. The three lowest bidders, including Global, were disqualified. This bid was designated DOF-ADM-13. On or about November 14, 1986, the Department issued new bid specifications, and an invitation to bid designated DOF-ADM-29. Bidders were required to prequalify, but in other respects these specifications were essentially the same as the previous bid, DOF-ADM-13. The deadline for prequalification was December 2, 1986. Prior to the prequalification deadline, Global contacted the Department's contract manager, John Folks, and sought a change in the following prequalification requirement: All vendors must provide in writing from the National Water Quality Association proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a NWQA CWD-V certification and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers. Please note the calendar of events for deadlines. (Emphasis Supplied.) Global did not have NWQA level V certified installers, and therefore, could not qualify under this provision. However, they did have Class I plumber's licenses, the highest designation in North Carolina, the company's headquarters. James Tate, Global's Vice President, testified that a Class I plumber's license is the same as a master plumber in Florida. The Department's contract manager approved and issued an addendum which constituted an amended bid specification on November 20, 1986, to permit a Class I plumber's license or equivalent, as follows: All vendors must provide in writing from the National Water Quality Association proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a NWQA CWD-V certification or a class one plumber's license or equivalent and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers. Please note the calendar of events for deadlines. (Emphasis Supplied.) On December 3, 1986, Folks determined that Global was qualified to bid. Global submitted its bid on DOF-ADM-29 in a timely manner, and upon opening of all bids on December 15, 1986, was determined to be the lowest qualified bidder. Global was informed on December 15, 1986, that it was the winning bidder. However, on December 19, 1986, the Department posted its tabulation on bid DOF-ADM-29 which rejected all bids "due to ambiguities in specifications and prequalifying requirements." The specific reason for this rejection was that upon review of the addendum by the Department's General Counsel at the time, Robert Chastain, it was determined that the addendum was vague and ambiguous. Specifically, Chastain and Folks concluded that the reference to Class I plumber's license was ambiguous since such a designation does not exist in Florida, and it was unclear whether such licensure in another state would allow a plumber to work in the four Florida counties affected by this bid. This ambiguity in the addendum had been brought to the Department's attention by a competing bidder, Continental Water Systems, Inc., after bids had been opened on December 15, 1986, through a threatened bid protest. In rejecting all bids, the Department was attempting to avoid a protest either by Continental, if the award was made to Global, or by Global, if the award was made to Continental. The Department was reasonably concerned with the creation of a health emergency if the purchase of EDB filters was delayed through the filing of a bid protest. It sought to avoid any such delay by rejecting all bids and rebidding this contract as DOF-ADM-41 which contained the following redrafted specification: All vendors must provide in writing proof that all management personnel involved in the development of the bid and in the completion of the contract (if vendor is awarded bid) have a National Water Quality Association (NWQA) CWD-V certification or are a certified master plumber in the State of Florida and that all staff members involved in the actual construction, installation and maintenance of the filter systems are NWQA certified installers or are a certified plumber in accordance with county regulations and requirements in the State of Florida. (Emphasis Supplied.) The redraft of the prequalification specification in DOF-ADM-41 corrected the ambiguities created by the November 20, 1986, addendum to DOF-ADM- 29, as to both management and staff. Global's notice of protest of the Department's decision to reject all bids was timely filed on December 23, 1986, as acknowledged-by the Department's then General Counsel, pursuant to Rule 13A-1.006(3), Florida Administrative Code, which is presumed valid. On January 23, 1987, the Commissioner of Agriculture issued a Declaration of Emergency in order to be able to proceed with the rebid, DOF-ADM- 41, despite Global's protest of the rejection of all bids in DOF-ADM-29. This Declaration of Emergency was upheld in Global Water Conditioning v. Department of Agriculture, 521 So.2d 126 (Fla. 1st DCA 1987). The contract in DOF-ADM-41 was awarded in February, 1987, to Continental. The contract for the installation and exchange of EDB water filters is an on going project, and, with the exception of the prequalification changes referenced above, the specifications for bids D0F-ADM-13, 29 and 41 were essentially the same.
Recommendation Based on the foregoing, it is recommended that the Department enter a Final Order dismissing Global's protest to the rejection of all bids in DOF-ADM-29. DONE AND ENTERED this 26th day of July, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 26th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2642 BID Rulings on Global's Proposed Findings of Fact: This is not a proposed finding of fact, but a restatement of the issue in this case. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. 6-7. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 6. Rejected as irrelevant to the issue of whether the Department acted arbitrarily in rejecting all bids due to vagueness of the specifications. 10-16. Adopted in Findings of Fact 7 and 8. Rejected in Findings of Fact 8, 9, and 10. Rejected as cumulative. Adopted in Finding of Fact 13. Adopted in Finding of Fact 11. 21-22. Adopted in Finding of Fact 12. 23-26. Rejected as not based on competent substantial evidence in the record, and as irrelevant. Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 2. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative. Adopted in. Finding of Fact 5. Adopted in Finding of Fact 6. 9-12. Adopted in Findings of Fact 7 and 8. 13-17. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 11. 20-23. Adopted in Findings of Fact 9 and 10. 24-26. Rejected as irrelevant to the issue of whether the Department acted arbitrarily or capriciously in rejecting all bids due to ambiguities in the specifications. 27-28. Adopted in Finding of Fact 12. 29. Rejected as not based on competent substantial evidence, and as irrelevant. COPIES FURNISHED: James C. Barth, Esquire 433 North Magnolia Drive Tallahassee, Florida 32308 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory E. Horne, General Counsel Clinton H. Coulter, Esquire Mayo Building, Room 515 Tallahassee, Florida 32399-0800
The Issue The issues in this bid protest are whether Intervenor's bid materially deviated from the project specifications and, if so, whether Respondent's preliminary decision to award Intervenor the construction contract at issue was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Pursuant to an Invitation to Bid (the "ITB"), Respondent Department of Management Services ("DMS") solicited bids on a project known as the ICARE Baypoint School Classroom Addition (the "Project").3 Bids were due on September 22, 2005. As a condition of submitting a bid, interested contractors needed first to be "prequalified" by DMS. DMS prequalified Petitioner Merkury Corporation ("Merkury") and Intervenor E.L.C.I. Construction Group, Inc., ("ELCI"), among several others. Each bidder was required to submit a "Base Bid" (i.e. the total price for all work, including labor and materials, specified in the ITB), together with a price for each of six numbered "Alternates."4 The contract would be awarded to the responsive bidder offering the lowest bid, the latter being defined as, generally speaking, the bid proposing the lowest aggregate price on the Base Bid plus the cost(s) of any Alternate(s) chosen by DMS.5 Of interest in this case is Alternate No. 1, which, in the ITB as originally issued, appeared as follows: Alternate No. 1 — Allowance for Owner [=DMS] contribution for buried feeder conduit to the electrical transformer (Owner will provide number). Alternate No. 1 referred to the work——described in the Electrical Site Plan (which was part of the ITB)——that would be necessary to bring electricity to the Project (hereafter, the "electric service connection"). In brief, establishing the electric service connection entailed installing the wiring between the electrical panel in the new building and the nearest transformer, which latter belonged to the local electric company, Florida Power & Light ("FP&L"). DMS knew that the Project would need power. Thus, Alternate No. 1 was not optional, as the nomenclature might suggest. But the cost of establishing the electric service connection would be largely dependent on factors exclusively within FP&L's control. And as of the time the ITB was issued, DMS had been unable to obtain from FP&L sufficient information to allow bidders accurately to estimate the cost of this particular item. The purpose of Alternate No. 1, therefore, was to make the electric service connection a non-competitive item. This would be accomplished by DMS's providing prospective bidders with a cost estimate based on information to be obtained from FP&L. DMS expected that each competing contractor would bid the same amount on Alternate No. 1, namely, the amount that DMS had provided. As initially defined, however, Alternate No. 1 was somewhat confusing, and at the pre-bid meeting in early September 2005, an issue was raised about DMS's intent regarding this item. As a result, Addendum No. 1 to the ITB, which was issued on September 8, 2005, to address questions raised at the pre-bid meeting, included the following: ADDENDUM NO. 1 — ITEM NO. 5: An allowance shall be carried for the cost of new service connection from new transformer to nearest FP & L point of service. Owner will provide budget number to be carried for this allowance. This addendum amended the description of Alternate No. 1, making clearer (it was believed) DMS's intent that the electric service connection not be a point of competition between the bidders, as each would carry, as an allowance, the Owner-provided budget number for this item. Unfortunately for everyone concerned, DMS never provided the interested contractors the budget number reflecting the estimated cost of establishing the electric service connection.6 Consequently, none of the bidders proposed a dollar figure for Alternate No. 1. Instead, each responded to Alternate No. 1 by stating, in effect, that the requested allowance could not be provided according to the specifications (which unambiguously instructed that DMS would provide the number to be carried for this allowance). To be sure, the bidders' respective responses to Alternate No. 1 were not identical. Merkury, for example, wrote "N/A," which is commonly understood to mean "not applicable." ELCI's bid proposal, on the other hand, stated, "By Owner." Merkury argues that the phrase "By Owner" means that DMS, rather than ELCI, should be responsible for establishing——at DMS's expense——the electric service connection. The undersigned rejects this interpretation of ELCI's bid as unpersuasive and unsupported by the greater weight of the evidence. In the instant context, the phrase "By Owner" is most readily and reasonably understood, objectively, as being functionally the equivalent of "N/A." ELCI was simply expressing the idea that the budget number (not the work) would be provided by DMS——a reasonable response, given the language of Alternate No. 1. In sum, despite some differences in wording, every one of the responses to Alternate No. 1, including ELCI's, was the product of the bidder's inability, in the absence of the Owner-provided budget number, to carry as an allowance the Owner-provided budget number. Of the five contractors who timely submitted a bid proposal, Merkury's Base Bid of $2,874,597 was the lowest, followed closely by ELCI's Base Bid of $2,877,000. DMS decided to take all six Alternates, however, and after the additional costs were added, ELCI was deemed the lowest responsive bidder, Merkury the second lowest. Accordingly, on October 17, 2005, DMS announced its intent to accept ELCI's bid in toto and award ELCI the contract for the Project. Protesting the intended award, Merkury takes the position that DMS's failure to provide the budget number for Alternate No. 1 effectively rendered this item a nullity, compelling the bidders to include in their respective Base Bids the cost of the electric service connection, which work remained a part of the Project, by virtue of the bid specifications, notwithstanding the loss of Alternate No. 1. Consistent with this understanding of the effect of DMS's silence regarding the budget figure, Merkury took into account the anticipated cost of establishing the electric service connection when working up its Base Bid, ultimately adding $33,388 to the bottom line as a result. ELCI, in contrast, assuming that DMS eventually would provide the figure for the allowance, did not factor into its Base Bid calculation the cost of the electric service connection. ELCI guessed correctly, for in choosing Alternate No. 1, DMS decided that it would provide the successful bidder with the budget number when such became available and thereafter pay the cost of establishing the electric service connection via a change order. Merkury maintains that DMS should have rejected ELCI's bid as materially non-responsive (because the costs that were used in preparing ELCI's Base Bid did not include the cost of establishing the electric service connection) and awarded the contract to Merkury as the lowest responsive bidder. In light of Merkury's argument, it is relevant to note that the ITB called for the Base Bid to be given as a lump sum, without breaking out individual costs; that is, in fact, how each of the six responding contractors presented their respective Base Bids. Thus, there was no way for DMS to know, upon opening the bids, that Merkury's Base Bid included a cost component relating to the electric service connections, while ELCI's did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered directing that the proposed award to ELCI be implemented in accordance with DMS's intentions. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2006.
The Issue Whether Petitioners' protest should be sustained?
Findings Of Fact Based upon the evidence adduced at the final hearing, the parties' factual stipulations, and the record as a whole, the following Findings of Fact are made: The Parties The Department is a state agency responsible for, among other things, administering the State of Florida's abandoned property program. SMSC is a Delaware corporation authorized to do business in the State of Florida. McGladrey & Pullen, LLP, is an Iowa limited liability partnership licensed and registered to conduct business in the State of Florida. It has 70 offices nationwide (including offices in Fort Lauderdale and West Palm Beach, Florida) from which it provides accounting and consulting services to its clients. Garcia & Ortiz, P.A., is a Florida professional association licensed and registered to conduct business in the State of Florida. Like McGladrey & Pullen, LLP, it provides accounting and consulting services, but does so on a smaller scale. (It has approximately ten employees working out of two offices.) Garcia & Ortiz, P.A., is registered with the State of Florida as a certified minority business enterprise (providing "accounting, auditing, review, compilation services, tax services, management advisory services, [and] data processing services."). On July 29, 1993, McGladrey & Pullen, LLP, and Garcia & Ortiz, P.A., by written agreement, formed a joint venture known as the "McGladrey & Garcia Joint Venture" "for the purpose of submitting bids to the Resolution Trust Corporation ('RTC') to perform various services for the RTC under one or more contracts to be issued by the RTC." The Request for Proposals On or about January 17, 1997, the Department issued and advertised a Request for Proposal, RFP No. BF11/96-97 (RFP), soliciting the submission of proposals "for the providing of services for the receipt and processing of unclaimed property" for the period from June 1, 1997, through May 31, 2000,2 and, "upon mutual agreement in writing," "up to three additional years." The RFP contained the following statement of "purpose:" The purpose of this RFP is to solicit proposals and cost data from organizations that are interested in providing the services to meet all or part of the statement of need above in a modern business environment and who shall perform some or all of the following services: Process annual reports in various formats from holders of unclaimed property pursuant to Chapters 43.19, 402.17, 705.103, 717, 732.1101, 733.816, and 744.534, Florida Statutes and the State's vendors involved in the auditing for unclaimed property; . . . Handle and remit funds, tangible property as necessary and securities received with the annual reports to the State; Process inquiries from holders and distribute information to holders of unclaimed property; Make one attempt to locate owners of unclaimed property and mail claim forms to the apparent owners; Process inquiries from the public and distribute information to the citizens throughout the United States on unclaimed property being held by the Department; Process claim forms received from apparent owners of unclaimed property; Process and issue payment on approved claims to the owners; Process the denial of claims and send the proper documentation to the State upon a request for a hearing by the claimant regarding the denial; Provide access to the public records in accordance with the requirements of Chapter 119, Florida Statutes; . . . Provide a security plan which protects the information on the ADPB [Abandoned Property Database] from unauthorized access or change, and; Assist the Department with the advertising of unclaimed property pursuant to Chapter 717.118, Florida Statutes. Provide an accounting of funds, reports and claims to the Department's satisfaction. The further purpose of this RFP is to set forth the criteria and the process by which the Provider will be evaluated and the basis on which the selection is to be made. Section V.E) of the RFP set forth various "special conditions," including the following: 2. Mandatory Requirements The Department has determined that certain mandatory requirements must be included as part of any proposal. The use of the terms "shall," "must" or "will" (except to indicate simple futurity) in this RFP indicates a mandatory condition. The words "should" or "may" in this RFP indicates desirable attributes or conditions but are permissive in nature. Deviation from or omission of such a desirable feature will not itself cause rejection of the proposal, but may result in fewer points awarded by an evaluator. In this proposal process alternative means of accomplishing mandatory requirements, with reasonable assurance of satisfactory results will be considered and may be accepted. Such alternatives should be clearly identified by the Respondent in any proposal. 5. Non-Valid Proposals, Non-Responsible Respondents Proposals not meeting all mandatory requirements of this RFP or that fail to provide all required information, documents or materials will be rejected as non-valid. Respondents whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the requirements of the RFP may be rejected as non-responsible. The Department reserves the right to determine which proposals meet the material requirements of the RFP and which respondents are responsible. Legal Requirements Applicable provisions of all federal, state, county and local laws and administrative procedures, regulations, or rules shall govern the development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between persons submitting a proposal hereto and the Department. Lack of knowledge of the law or applicable administrative procedures, regulations or rules by any Respondent shall not constitute a cognizable defense against their effect. 14. Assignment of Contract The Contract cannot be assigned or subcontracted except with the prior written approval of the Department. Monies which become due thereunder are not assignable except with the prior written approval of the Department, and the concurrence of the Comptroller of the State of Florida. In the event of such approval, the terms and conditions hereof shall apply to and bind the party or parties to whom the Contract is assigned as fully and completely as the Provider is thereunder bound and obligated. No assignment, if any, shall operate to release the Provider from its liability for the prompt and effective performance of its obligations under the Contract. Section VI. of the RFP addressed the subject of the "evaluation of proposals." Its prefatory paragraph read as follows: The contract will be awarded to the Respondent at the sole discretion of the Department, whose proposal is determined to be the most advantageous to the Department and the people of Florida. The Respondent must demonstrate through the proposal that that it possesses the expertise and capabilities to perform the services specified herein; has the staff that possesses the experience that closely aligns with the expertise needed by the Department; and that has the integrity, honesty and responsibleness to complete all requirements of the RFP. Section VI.A) was entitled "Award Notice" and provided as follows: Notice of intent to award contract as a result of this Request for Proposals shall be posted in Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida on the date and time shown on the Calendar of Events. Issuance of this Request for Proposals does not oblige the State to select a Respondent or to award a contract. Section VI.B) was entitled "Legal Requirements for Proposals" and provided as follows: Applicable provisions of all Federal, State and County regulations shall govern development, submission and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes that may arise between persons submitting a proposal hereto and the Department, by and through its employees or authorized representatives. Lack of knowledge by any Respondent shall not constitute a recognizable defense against the legal effect thereof. All corporations seeking to do business with the State shall at the time of submitting a proposal in response hereto, be registered with the Department of State in accordance with the provisions of Chapter 607, Florida Statutes. To be eligible for consideration, each corporation shall include as part of their required documentation, their corporate charter number, or if appropriate, have attached to their proposal a signed statement that said corporation is exempt from the requirements of Chapter 607, Florida Statutes. Similarly, partnerships seeking to submit a proposal shall have complied with the applicable provisions of Chapter 620, Florida Statutes. Section VI.C) was entitled "evaluation team" and provided as follows: The evaluation team will be established to assist the Department in selecting the best Provider for the services set forth in this RFP. The evaluation team will have a minimum of five members. At least two of the members will be from outside the Department. The team will be responsible for proposal evaluation including reference checks and other verifications as required. Section VI.D) was entitled "Evaluation Sheet" and provided as follows: The evaluation sheet to be used by each evaluator may be found in Appendix I. The evaluation sheet lists evaluation criteria and the specific indicators of criteria [that] will be used to assess the degree to which the Respondent's proposal meets the criteria identified in Section VII. Evaluation sheets will be weighted so that each response to the RFP can be numerically valued and the results compared. The "evaluation sheet . . . found in Appendix I" listed the following awards:" "evaluation criteria" and "possible [point] ITEM POSSIBLE AWARD 1) References 2 2) Experience of Principals 2 3) Financial Statements 1 TECHNICAL SUBMISSION Notification of Holders and Holder Seminar 2 Holder Information 2 Annual Reports 2 Penalties and Extensions 2 Holder Information and Inquiries 2 Receipt of Reports & Reconciliation 3 Record Retention of Reports 2 Contacting Apparent Owners 1 Handling Inquiries 2 Origination of Claims 1 Receipt of Claims 1 Initial Processing of Claims 2 Processing and Payment of Claims 3 Exceptions 1 Tracking 1 Records 2 Automation 4 Security Plan 3 Implementation Plan 2 Disaster Recovery Plan 2 Reports Processing Flow Chart and Narrative Procedures 3 Section VI.E) of the RFP described the "evaluation procedure" that the Department would follow in assessing proposals. It provided as follows: The evaluation process will take place in five phases: Phase I- Meeting of mandatory requirements Phase II- Technical evaluation of proposals Phase III- Oral Presentation Phase IV- Public Opening and Evaluation of Fee Schedules Phase V- Posting of Final Results Phase I Mandatory Documentation Worth 0 Points Total During Phase I of the evaluation process the Contract Manger will carefully evaluate all the proposals to ensure that all mandatory documents have been submitted. Failure of any organization or entity to submit all mandatory items will result in that proposal being withdrawn from further consideration. Upon completion of Phase I of the evaluation process each evaluation team member will be provided the proposals to evaluate. Phase IIA. Technical Evaluation Worth 50 Points Total During Phase II of the evaluation process the evaluators will rate selected criteria from each proposal in regard to the RFP. Each area specified on the evaluation sheet will be given a subjective score based on how well the proposal answers the minimum specifications, on the innovativeness and clarity of the response and on any extra benefit to the State where responses exceed minimum specifications. After each evaluator has independently completed his evaluation sheet (see Appendix I) [t]he total assigned points for each proposal will be averaged across all five evaluators. B. Minority Business Participation Worth 10 Points Total If twenty-four percent or more of the Contract value- 10 points. If less than 24 percent, proposed percentage divided by twenty-four, times []103 No participation by Certified Minority Business Enterprises (CMBEs), no points The Department of Banking and Finance wishes to encourage award of the Contract, or subcontracting of portions of the Contract to, or purchase of good[s] and services from, State of Florida CMBEs. Each Respondent must state whether or not Respondent is a CMBE, and if not, what percentage of the total Contract price will be spent with CMBE firms who will be supplying them. The CMBE participation claimed in the technical proposal must be substantiated in the price proposal, or points assigned for the unsubstantiated CMBE participation will be withdrawn. NOTE: Not all minority business enterprises are presently certified by the State. However, only certified CMBEs will be considered in evaluating this portion of a Respondent's proposal. The Issuing Officer has a directory of CMBEs which is available for review upon request. Respondents may also obtain information of CMBEs by contacting: Minority Business Advocacy and Assistance Office 107 Gaines Street Tallahassee, Florida 32399-0950 Telephone (904) 487-0915 The Contract Manager will average the points for each respondent upon completion of Phase II. Phase III Oral Presentations Worth 10 Points Total An oral presentation is required in accordance with the Calendar of Events. Respondents must address/discuss advantages/strengths of its proposal including but not limited to any of the following areas: Vendor Qualifications (Project experience/project team qualifications) Scope of Solution (Equipment/Software/Installation/Maintenance/ Training/Project Management and Liaison) The presentation will be allowed a maximum of four hours per Respondent and will be given to the assembled evaluation team who shall independently award points for the presentation. Presentations will be given in Room 547 of the Fletcher Building, Tallahassee, Florida. Points will be averaged across the evaluation team members. Phase IV Worth 30 Points Total The Fee Schedule must be submitted in a separate and sealed envelope and must be labeled "Request for Proposal for the Providing of Services for the Receipt and Processing of Unclaimed Property, RFP BF11/96-97." When Phases II and III have been completed and the scores averaged, the Purchasing Agent in accordance with the Calendar of Events will open the Fee Schedules. The Purchasing Agent will evaluate the fee schedules. The lowest cost proposal will be awarded a maximum of 30 points based on lowest overall cost (Block G on the Fee Schedule (Schedule J)). The instructions for filling out the form are as follows: The Abandoned Property Program has three easily measured outputs. The Department proposes to pay the Provider based on these three measurable outputs. Production under the contract may exceed anticipated levels in one output area but not in another. For that reason, Respondents are requested to estimate cost for each area of effort that is separately depicted on the Fee Schedule. The planned number of units for each area; 16,000 reports, 320,000 inquiries made by telephone, and 160,000 claims processed are the anticipated levels of effort for Fiscal Year 1997-98. The projected cost per unit in each area must include items that are ancillary or support functions associated with that portion of process. For example: The inquiries cost will be a per unit cost based on 320,000 transactions. For the inquiries section of the effort the measurable transaction will be defined as an incoming phone call on the 1-888/1-800 line. Ancillary or support services that must also be provided in the inquiries portion of the process would include, but not be limited to, such things as answering e-mail or surface mail inquiries, maintaining an Internet site, the amortized cost of the equipment placed in the public access spaces in Tallahassee, and the proportional cost of equipment, supplies and maintenance. The cost of inquiries support services will have to be figured into the gross cost of maintaining the inquiries section and then divided by 320,000 to arrive at a per unit cost. The gross cost of operating the inquiries unit must be entered into block D of the Fee Schedule. The per unit cost must be entered into block C. This procedure must be repeated for each of the three sections. The Provider will invoice the Department and be paid based upon performance of units performed in each area and the cost per unit. Costs under the contract may overrun the target amount in Block B or D or F but in no case shall the Provider without prior and specific written permission from the Department's Contract Manager exceed the block G amount. It is the responsibility of the Provider to keep the Contract Manager apprised of the status of the payments and to alert the Contract Manager as early as possible to the possibility that block B, D or F amounts may be exceeded. Add blocks B, D and F to get the total cost of the contract. Enter this figure in block G. Comparison between Respondent[]s will take place at the bottom line (Block G) Enter the annual cost of the equipment in the public records room (four workstations) and the proportional cost of the T-1 line into block H. The cost of the equipment and line identified in block H is for Departmental use only. The cost must included as an ancillary cost in block D. The purpose of this particular cost breakdown is to document contractor performance against measures of success. If activity in one area of the contract is significantly out of tolerance in comparison to expectation and it is evident that available funding will degrade performance, the Department may request increased spending authority based on performance to date. The Lowest Cost (LC) proposal block G divided by the Proposal being Considered (PC) block G cost will be multiplied by 30 to determine point value comparison. LC/PC x 30 = points for fee schedule In the event the result is not an integer, the values below .50 will be rounded down to the nearest integer. Values of .50 and above will be rounded up. The points awarded from the fee schedule evaluation will be added to the averaged scores of the evaluation team and used to determine the selection of a Provider. In the event of a tie the contract will be awarded in accordance with Section 60A-1.011, Florida Administrative Code (see Appendix K) The instructions for filling out the form are as follows: Example: Respondent A bids $3.0 M (block G) and Respondent B bids $4.0 M (block G) Respondent A gets: $3M/$3M x 30 = 30 points Respondent B gets: $3M/$4M x 30 = 23 points Phase V Posting Upon completion of Phase IV the intent to award will be posted at Room 250D of the Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0350 Section VII. of the RFP listed the "documents required in submitting proposal." It provided as follows: For purposes of uniformity among proposals, documents must be arranged in this order. Original Form- PUR 7033 State of Florida- Request for Proposal Contractual Services Acknowledgment Designated Spokesperson for RFP The Respondent must designate, in writing, the official of the organization authorized to sign all applicable documents in this RFP. Proof of Legal Entity Respondent must provide evidence that the organization is a legal entity. Incorporated Respondents must provide either a copy of the corporation[']s[] most recent annual report on file with the appropriate state agency, or, if incorporated within the last 12 months, a copy of the corporation[']s[] Articles of Incorporation and Charter Number assigned by the appropriate agency. Businesses that are not incorporated must provide a copy of their business or occupational license. Partnerships must submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes. The proposal must include a sworn and signed statement that the Respondent will comply with all the terms and conditions of the RFP and applicable addenda. Conflict of Interest This contract is subject of Chapter 112, Florida Statutes regarding conflict of interest. The proposal must include a signed statement that the Respondent has no conflict of interest. The Respondent must disclose the name of any State employee who owns directly or indirectly, an interest of five percent (5%) or more in the Respondent's firm or any of its subsidiaries. This shall be an ongoing requirement for the life of the contract and failure to comply will subject the contract to cancellation. Designated work site within Florida. The Respondent shall include the geographic location of the site where the processing of reports and claims will take place. The Respondent must include a minimum of three references on the integrity and honesty and responsibility of the firm and their experience in processing data, handling inquiries and processing claims for payment. Include satisfaction with services provided, and the ability of the contractor to adapt and adjust to changing requirements in an innovative and positive manner. The Respondent must include a chart of the organization, indicating how the Respondent's staff will fit into the total organization. The Respondent must include a resume/vita for each principal of the business who will perform professional services for the proposed project. Financial Statements- The Respondent must provide evidence of sufficient financial resources and stability to provide the short term financing needed by the State of Florida. At a minimum this evidence must include financial statements audited by a certified public accountant that includes balance sheets and income statements for the Respondent's two most recent fiscal years. These documents should break out subsidiary data if the Respondent is part of a larger entity. Technical submission in response to Section II Scope of Services of the RFP, organized in response to each subheading in Section II. Security plan Implementation plan in accordance with Appendix E Disaster recovery plan Reports and receipts processing flow chart and narrative procedures. Depict separation of duties. Claims processing and payment flow chart and narrative procedures. Depict separation of duties. Proof of insurability to $1,000,000.00 per employee theft or malfeasance. Drug Free Workplace Certification Preference for Offerors with Drug-free Workplace Program: Pursuant to Section 287.087, Florida Statutes, preference must be given to offerors which certify having a drug-free workplace whenever two or more proposals which are equal with respect to price, quality, and service are received. Offerors must sign and return Appendix L with the proposal to qualify for this preference. Completed Fee Schedule- Sealed in a separate envelope marked "Fee Schedule for RFP BF11/96-97" Addendum Acknowledgment Forms Appendix L to the RFP (reference to which was made in Section VII.R.) read as follows: IDENTICAL TIE PROPOSALS- Pursuant to Section 287.087, Florida Statutes, preference shall be given to businesses with drug-free workplace programs. Whenever two or more proposals which are equal with respect to price, quality, and service are received by the State for the procurement of commodities and contractual services, a proposal received from a business that certifies it has implemented a drug-free workplace program shall be given preference in the award process. Established procedures for processing tie proposals will be followed if none of the offerors have a drug-free workplace program. In order to have a drug- free workplace program, a business shall: Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying actions that will be taken against employees for violations of such prohibitions. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug-free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. Give each employee engaged in providing the commodities or contractual services that are under proposal a copy of the statement specified in paragraph 1. In the statement specified in paragraph 1., notify the employees that, as a condition of working on the commodities and contractual services that are under proposal, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendre to, any violation of Chapter 893, Florida Statutes, or of any controlled substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days after such conviction. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, by any employee who is so convicted. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this program. In order to qualify for this tie proposal preference, this certification must be completed and submitted with the proposal. As the person authorized to sign the statement, I certify that the offeror complies fully with the above requirements. Offerors's Name: Signature Name- Typed or Printed Date Bidders' Conference A bidders' conference was conducted by the Department on February 4, 1997. Among those in attendance at the conference were representatives of SMSC and State Street Bank & Trust Company (State Street).4 Neither McGladrey & Pullen, LLP, nor Garcia & Ortiz, P.A., sent a representative to the conference. The following discussion concerning the subject of subcontracting took place at the conference: Q: Page 30, Part V, Section 14: Does this section prohibit any subcontracting, or only subcontracting for those tasks specifically addressed by the RFP? Only those specifically addressed with Department approval. Q: Bill Gavin [one of State Street's representatives at the conference]- If Provider is considering sub-contracting during the relationship of the proposed bid, what does the Provider do for approval? Peter DeVries [bureau chief of the Department's Bureau of Abandoned Property]- Spell out the parts of the contract that are anticipated to be subcontracted. This is to protect us from someone who is not a corporate entity coming in and saying that he can do the whole job and we find out he is not doing anything. He is using subcontractors and trying to manage them as a shell corporation. It should be part of the proposal. SMSC's Proposal SMSC submitted one of the two proposals the Department received in response to the RFP.5 SMSC's proposal contained the following statement concerning "minority business participation:" SMSC is not a Florida Certified Minority Business Enterprise (CMBE). However, SMSC intends to subcontract with Interim Personnel of North Florida, Inc., a CMBE. They are already performing on an existing contract with SMSC in our Panama City Servicing Center. Their certification is shown below. The participation of Interim Personnel is reflected in the completed fee schedule in Section 20. They will provide at least 10 percent of the contract value. They will provide employees who will be located in our Panama City Servicing Center. Additionally, some $500,000 in equipment purchasing will be offered to minority firms and procured from them if their prices are equal or less than our standard prices. We expect this to equal 3% of the contract award over the life of the contract. The completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal reflected (in Block G) a "total annual cost" of $4,800,000.00 and (in Blocks J and K) "total annual CMBE purchases" of $980,000.00, amounting to 20.42% of the "total annual cost." The Other Proposal The cover page of the other proposal that the Department received in response to the RFP, which hereinafter will be referred to as the "MGS Proposal," indicated that it was "[p]resented by McGladrey & Garcia, Joint Venture [and] State Street Bank & Trust Company."6 Printed at the bottom of various pages of the MGS Proposal were "McGladrey and Garcia, Joint Venture/State Street Bank & Trust Company." The MGS Proposal contained an introductory letter signed by Mark Jones of McGladrey & Pullen, LLP, J. Edward Del Rio of Garcia & Ortiz, P.A., and William Gavin of State Street, which read, in part as follows: McGladrey & Garcia, JV, with its subcontractor, State Street Bank & Trust, is pleased to present its response to RFP BF11/96-97: Services for the Receipt and Processing of Unclaimed Property. The McGladrey/State Street team is exceptionally well qualified to assume responsibility for administering the State of Florida's Abandoned Property program. Our team brings the following experience and resources to this contract: . . . Experience of the Team: McGladrey & Garcia JV is a joint venture between McGladrey & Pullen LLP, and Garcia & Ortiz, PA. . . McGladrey & Pullen is the nation's 7th largest accounting and consulting firm. . . . Garcia & Ortiz is one of the largest independent accounting and consulting firms in the State of Florida. . . . State Street Bank & Trust is one of the leading servicers of financial assets in the world. . . . Section A. of the MGS Proposal contained a completed Original Form PUR 7033. Typed in under "vendor name" on the form were "McGladrey & Pullen, LLP[,] Garcia & Ortiz, P.A. and State S[t]reet Bank." The form included the following certification, which was signed by Mark Jones in his capacity as "[p]artner:" I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency of the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. Section B. of the MGS Proposal contained the following statement: Designated Spokesperson for RFP Mark A. Jones, a Partner of McGladrey & Pullen is authorized to negotiate and sign all applicable documents in the RFP, and any contractual documents that are party to this contract between the State of Florida and McGladrey & Pullen, LLP and Garcia & Ortiz, P.A.7 In Section C. of the MGS Proposal (dealing with "proof of legal entity"), reference was made to "the members of our team, including McGladrey & Pullen, Garcia & Ortiz, and State Street Bank." No mention was made of the McGladrey & Garcia Joint Venture, nor was any proof of the joint venture's existence as a legal entity included (along with the documentation that was provided relating to McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street), in this section of the proposal. The following witnessed, but unsworn, statement, signed by Mark Jones (and the witness), constituted Section D. of the MGS Proposal: Compliance With Terms and Conditions of RFP I, Mark A. Jones, Partner of McGladrey & Pullen, LLP, acknowledge and agree that we will comply with all terms and conditions of the RFP and applicable addenda. Section E. of the MGS Proposal consisted of an unsigned statement regarding "conflict of interest," which read, in part, as follows: Conflict of Interest Conflicts We understand that this contract is being awarded subject to the provisions of Chapter 112, Florida [S]tatutes. We affirmatively state that no officer, director, employee or agency of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank is also an officer or an employee of the Department, the State of Florida, or any of its agencies. We affirmatively state that no state officer or any employee owns, directly or indirect[ly], an interest of five percent (5%) or more of McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank. We affirmatively state that neither McGladrey & Pullen, LLP; Garcia & Ortiz, PA; or State Street Bank paid, or will pay, any compensation to any employee, agent, lobbyist, previous employee of the Department or any other person who has registered or is required to register under Section 112.3215, Florida Statutes, in seeking to influence the actions of the Department in connection with this procurement. Litigation McGladrey & Pullen, LLP: . . . Garcia & Ortiz, PA: . . . State Street Bank: . . . The McGladrey and Garcia Joint Venture was not mentioned in this section of the MGS Proposal. Section F. of the MGS Proposal discussed a "designated work site within Florida." It read as follows: Designated Work Site Within Florida We propose to house our Unclaimed Property Processing operation in Tallahassee. We have identified seven suitable sites within a five mile radius of the Fletcher Building, and we will make our final selection upon notification of contract award. Although McGladrey & Pullen and its network affiliates have 10 offices in Florida that could house the Unclaimed Property Processing Function, the advantages of establishing our facility in Tallahassee are compelling. Our outsourcing experience has conclusively shown us that physical proximity is essential. Technology is wonderful, but nothing is an effective substitute for personal communication. We fully expect that during the transition period we will be meeting several times each week with the Department's oversight people, and there will routinely be the need to meet on short notice to resolve issues or special situations. Driving one or two hours to accomplish these meetings places an unnecessary roadblock to success. Further, we anticipate that the need for close, personal communication will continue throughout the term of the contract. The RFP refers to a number of future initiatives in technology, operations, and outreach. Close coordination between the Department and us is required; this will be greatly facilitated by placing our operation in Tallahassee. In addition, ongoing contract oversight and issues resolution (either holders or claimants) will be made much easier with a Tallahassee location. Finally, we will be seeking selected staff of the State's Unclaimed Property Bureau who will lose their jobs as a result of the outsourcing contract. We have successfully done this on other outsourcing contracts to the mutual benefit of us, the displaced employees, and client. Maintaining the operation in Tallahassee will greatly enhance our ability to attract good people to a career opportunity with our firm. In Section G. of the MGS Proposal, the qualifications of the "McGladrey/State Street team" were described. The McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street were all mentioned in this section of the proposal. Individuals expected to play key roles in the delivery of services under the contract, if awarded, were identified in Section H. of the MGS Proposal. The resumes of these individuals, who included employees of the McGladrey & Garcia Joint Venture, McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street, were set forth in Section I. of the MGS Proposal. Section J. of the MGS Proposal contained unaudited financial statements for McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation (identified in Section J. as "a division within State Street Bank & Trust Company.")8 In Section Q. of the MGS Proposal, written proof of the insurability of McGladrey & Pullen, LLP, Garcia & Ortiz, P.A., and State Street Boston Corporation was provided. Section R. of the MGS Proposal consisted of a completed, signed (by Mark Jones) and dated (February 25, 1997) "Certification of Drug-Free Workplace Program" (Appendix L). Typed in on the line where the "[o]fferor's [n]ame" was to be indicated were "McGladrey & Pullen, LLP, Garcia & Ortiz, P.A. and State Street Bank." Section S. of the MGS Proposal contained a completed Fee Schedule (Appendix J), which reflected (in Block G) a "total annual cost" of $7,520,000.00. Attached to this completed Fee Schedule was the following written statement: The firm or Garcia & Ortiz, P.A. is a certified Minority Business Enterprise (CMBE), certified by the Florida Minority Business Advocacy and Assistance office. Attached is a copy of the certification. Forty percent of the contract value will be spent with Garcia & Ortiz, P.A. Evaluation of the SMSC and MGS Proposals Both SMSC's proposal and the MGS Proposal were deemed to be responsive to the RFP. Copies of the two proposals, along with copies of the RFP, were submitted to the evaluation team on March 3, 1997. Phase IIA. A team of five evaluators evaluated the two proposals submitted in response to the RFP for technical merit. SMSC's proposal received scores of 23, 48, 49, 50 and 47 from the evaluation team members for a point total of 217, which, when "[a]veraged across all five evaluators," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 43.4 for Phase IIA. ("Technical Evaluation") of the "evaluation procedure." The MGS Proposal received scores of 50, 45, 50, 50 and 44 from the evaluation team members for a point total of 239, which, when "[a]veraged across all five evaluators," yields a score of 47.8. for Phase IIA. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase IIA., "rounded down" the SMSC score (of 43.4) to 43 and "rounded up" the MGS score (of 47.8) to 48. Phase IIB. In calculating the number of points to award SMSC's proposal for Phase IIB. ("Minority Business Participation") of the "evaluation procedure" set forth in Section VI.E) of the RFP, the Department used the "proposed percentage" of "Annual Contract to CMBE" (20.42) indicated in Block K of the completed Fee Schedule (Appendix J) that SMSC submitted as part of its proposal. The "proposed percentage" reflected participation by Interim Personnel of North Florida, Inc., ("10 percent of contract value," which, on an annual basis, would amount to $480,000.00) and, in addition, the "$500,000 in equipment purchasing" that SMSC represented in its proposal would "be offered to minority firms and procured from them if their prices [we]re equal or less than [SMSC's] standard prices." Dividing SMSC's "proposed percentage" by 24 and multiplying the result by 10 yields a score of 8.508, which the Department "rounded up" to 9, notwithstanding that Phase IIB. of the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding." If SMSC had received "Minority Business Participation" credit only for Interim Personnel of North Florida, Inc.'s, proposed participation in the project (and not for the "$500,000 in equipment purchas[es]" it indicated it would make, under certain conditions, from "minority firms" (hereinafter referred to as the "Minority Equipment Purchases"), it would have received, in accordance with the provisions of Section VI.E) of the RFP, 4.16 points for Phase IIB. Because the MGS Proposal provided for "Minority Business Particiapation" in excess of 24% of the "contract value," it was awarded the maximum number of points (10) for Phase IIB. Phase III Oral presentations were made (to the evaluation team) in support of each of the two proposals submitted in response to the RFP. The oral presentation made in support of SMSC's proposal received scores of 6, 10, 9, 5 and 10 from the evaluation team members for a point total of 40, which, when "[a]veraged across the evaluation team members," in accordance with the "evaluation procedure" set forth in Section VI.E) of the RFP, yields a score of 8 for Phase III. ("Oral Presentations ") of the "evaluation procedure." The oral presentation made in support of the MGS Proposal received scores of 10, 5, 8, 10 and 5 from the evaluation team members for a point total of 38, which, when "[a]veraged across the evaluation team members," yields a score of 7.6 for Phase III. Although the "evaluation procedure" set forth in Section VI.E) of the RFP made no provision for "rounding" the "averaged scores of the evaluation team," the Department, in determining the amount of points to be awarded for Phase III, "rounded up" the MGS score (of 7.6) to 8. Phase IV Of the two proposals submitted in response to the RFP, SMSC's proposal was the "lowest cost (LC)." Accordingly, in accordance with the provisions of Section VI.E) of the RFP, it was awarded the maximum number of points (30) for Phase IV of the "evaluation procedure." Dividing the amount in Block G on SMSC's completed Fee Schedule (Appendix J) by the amount in Block G on the completed Fee Schedule submitted as part of the MGS Proposal and multiplying the result by 30 yields a score of 19.148, which the Department "rounded down" to 19 in accordance with the provisions of Phase IV of the "evaluation procedure" set forth in Section VI.E) of the RFP, which, unlike the provisions of Phases II and III, provide for "rounding" when "the result is not an integer" ("down," in the case of "values below .50," and "up," in the case of "[v]alues of .50 and above.") Total Points for Phases IIA., IIB., III and IV According to the Department's calculations9 (which were determined, in writing, by its Office of the General Counsel, to have been "in substantial compliance10 with the evaluation methodology set forth in the RFP"), SMSC's point total for Phases IIA., IIB., III and IV combined was 90, compared to 85 for the MGS proposal. Had the Department not used the "rounding" provisions of Phase IV to calculate the points awarded for Phases IIA., Phase IIB. and Phase III, and had it determined (as Petitioners allege it should have) that the only CMBE participation for which SMSC was entitled to receive "Minority Business Participation" credit was the proposed ("10 percent of the contract value") participation of Interim Personnel of North Florida, Inc., SMSC would have received 85.56 total points for Phases IIA., IIB., III and IV combined, compared to 84.40 for the MGS proposal. Notice of Intended Award On March 18, 1997, the Department posted a bid/proposal tabulation sheet indicating its intent to award SMSC a contract pursuant to the RFP. The bid/proposal tabulation sheet reflected that the combined point totals for SMSC's proposal and the MGS Proposal were 90 and 85 points, respectively. Petitioners' Protest On March 20, 1997, Petitioners filed their Notice of Protest with the Department. The notice was filed within 72 hours after posting of the bid/proposal tabulation sheet. On March 28, 1997, (which was within ten days after the filing of the notice), Petitioners filed their formal written protest challenging the intended award of the contract advertised in the RFP to SMSC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioners' protest of the Department's decision to award the contract advertised in RFP No. BF11/96-97 to SMSC. DONE AND ENTERED this 30th day of May, 1997, in Tallahassee, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997.
The Issue The issues in this bid protest are whether Intervenor's bid was nonresponsive because Intervenor, a corporation formed in 2005, lacks the required five years' experience in the tree trimming business; and, if so, whether Respondent's preliminary decision to award Intervenor the contract at issue was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Pursuant to Invitation to Bid No. 27-054X (the "ITB"), which was issued on August 10, 2006, Respondent Broward County School Board ("School Board") solicited bids for "Tree Trimming, Planting, Hurricane Cleanup, and Removal Service." Interested vendors were instructed to bid prices on numerous items of service. The items were sorted into two groups, Group A and Group B. The School Board intended to designate a "primary vendor" for each group, who in the ordinary course of events would receive the largest volume of work, but it reserved the right to procure services from the second and third lowest bidders in each group should it become necessary or desirable to do so. Bids were due on September 13, 2006. Section 4 of the ITB contained "Special Conditions" applicable to this procurement. Of interest in this case is Special Condition No. 11, which specified the qualifications a vendor needed to be considered for an award: BIDDER'S QUALIFICATIONS: Bidder must have at least five years experience in tree trimming services within the Miami-Dade, Broward and Palm Beach tri-county area. Bidder must submit, with the bid or uponrequest, the attached Bidder's Profile form. This report must include a minimum of three references from commercial jobs. Each reference should include the address of the actual job, work accomplished and a phone number and contact person. (Emphasis in original.) The Bidder Profile form to which Special Condition 11 referred was located in Section 7 of the ITB as Attachment 1. At the top of the Bidder Profile appeared the following direction and warning: THIS INFORMATION MUST BE SUBMITTED WITH THE BID. FAILURE TO COMPLETE THIS SECTION WILLDISQUALIFY THE SUBMITTED BID. (Emphasis in original.) Paragraph 12 of the Bidder Profile form stated as follows: References Required. Contractor to provide a list of three references. Three references from jobs completed in each of the past three years. More than one dozen vendors timely submitted bids, which the School Board opened on September 13, 2006. Among the bidders were Petitioner Phil's Expert Tree Service, Inc. ("Expert") and Intervenor Innovative Environmental Services, Inc. ("Innovative"). After tabulating the bids, the School Board determined that Innovative was the lowest and best bid from a responsive, responsible bidder with regard to Group A, followed by Expert and All County Tree & Landscape Co., Inc. ("All County"), in that order. Thus, when the award recommendations were posted on September 27, 2006, Innovative was named the intended primary awardee for Group A, Expert the first alternate, and All County the second alternate.1 Innovative is a family business whose principals are Craig and Deborah Conway, husband and wife. In the year 2000, the Conways moved to South Florida from Pennsylvania, where, for more than 20 years, they had operated a tree trimming and land clearing business. After arriving in Florida, the Conways entered into a business arrangement with Donald Richter, a certified arborist, whereby they jointly provided tree trimming services under the name "ASAP Tree Service" or "Don Richter's ASAP Tree Service." In October 2002, the Conways formed a corporation called Independent Equipment South, Inc. ("Independent"). Independent operated an equipment sales and rental business whose inventory consisted of equipment that was not being used in the family's tree trimming operations. Eventually, the Conways' tree trimming service become part of Independent's business portfolio as well. In February 2005, Innovative was incorporated. At all times relevant to this procurement, Mrs. Conway has been the sole corporate officer, Mr. Conway the company's Director of Operations. In addition, at all relevant times, Innovative has employed or otherwise retained Mr. Richter as its certified arborist. Although Innovative and Independent are separate corporate entities, the two businesses operate out of the same location, have the same employees, and use the same equipment. The Conways commonly refer to their businesses as "IES," using that acronym interchangeably to mean either Innovative or Independent (or both). Innovative's Bidder Profile, which was submitted together with its bid, referred to——and incorporated——an attachment entitled, "Brief Company History." The Brief Company History provided background information on Innovative's provenance, albeit from a layperson's perspective. Written by nonlawyers, the summary was not always technically precise, from a legal standpoint, in its descriptions of the various business associations in which the Conways have been involved. Seizing on the least artful phrases, Expert contends that some of the statements in the Brief Company History were false and perhaps even fraudulent. The undersigned, however, finds otherwise. To the point, the Brief Company History reflects an honest attempt truthfully to describe the Conways' family businesses, which is reasonably accurate when read and understood from the perspective of the small-business owners who prepared it. That said, the undersigned finds and determines that Innovative——as distinct from its principals and/or personnel—— did not have five years' experience in the tree trimming business when it bid on the contract at hand, notwithstanding the wealth of tree trimming experience at its disposal. Indeed, having been in existence for fewer than two years at the time it submitted its bid, Innovative, as a separate legal entity, could not possibly have garnered, in its own right, five years' experience doing anything. For the same reason, though Innovative provided plenty of references, the ones that stemmed from jobs completed before February 2005 necessarily related to providers other than Innovative, such as ASAP Tree Service, who actually existed then. To be sure, the providers who earned the references from earlier jobs upon which Innovative relied either were predecessor business associations or individuals who would become personnel of Innovative——but they were not Innovative. Innovative simply could not have performed or completed any jobs before its creation. It is determined, therefore, as a matter of ultimate fact, that Innovative's bid did not strictly conform to the plain language of Special Condition No. 11. Like Innovative, Expert is a family-owned business. Founded in 1985 by Philip Simeone, Expert was incorporated in 1992. Though Expert clearly possesses the length of experience for which Special Condition No. 11 called, Expert failed in its Bidder Profile to provide three references "from jobs completed in each of the past three years," as instructed in paragraph 12 of the ITB's Section 7, Attachment 1. Instead, Expert gave two references from jobs completed in 2006 plus another from a job completed in 2004. Expert's bid did not contain a reference from a job completed in 2005. Expert contends that the School Board should have rejected Innovative's bid as materially nonresponsive (for lacking the requisite five years' experience) and awarded the contract to Expert as the lowest responsive bidder. The School Board and Innovative take the position that the School Board's decision to treat Innovative's bid as responsive was not clearly erroneous, arbitrary, or capricious. Turning the tables, the School Board and Innovative argue that Expert's own bid deviated from Special Condition No. 11, in that Expert failed to provide a reference from a job completed in 2005.2 Yet both assert that "it was reasonable for [the School Board] to waive the requirement of the Bidder Profile form that one . . . reference[] be [from] a job completed in the year 2005." Somewhat inconsistently, however, Innovative argues further that Expert's "bid proposal cannot be sustained"——evidently due to its material nonresponsiveness. This apparent inconsistency follows from Innovative's attempt to play down its alternative position, which is that if "a contrary conclusion [had] been reached as to [Innovative's] experience"—— meaning that if the School Board had chosen not to waive any irregularity concerning Innovative's length of corporate experience——then the "same analysis would apply to" Expert—— meaning that Expert's bid too should have been disqualified. Thus, even though Innovative maintains that the School Board reasonably waived any irregularities in Expert's bid, Innovative is unwilling to concede that the School Board did not err in determining that Expert's bid was responsive, evidently out of concern that such an admission might compromise its fallback position. Innovative's bottom line is that if Innovative's bid were to be disqualified as materially nonresponsive, then Expert's bid would need to be rejected, too.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that (a) declares Innovative's bid to be materially nonresponsive and, accordingly, rescinds the proposed award to Innovative; and (b) declares Expert's bid to be materially nonresponsive and, accordingly, rejects the same. Because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation as to whether the School Board should award the contract to All County (which was the putative "second alternate") or reject all bids and start over. DONE AND ENTERED this 19th day of March, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2007.
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 The issue is whether the Department of Health’s proposed award of Invitation to Bid No. DOH 04-191 to Lachat Instruments- Hach Co. is contrary to the Department’s governing statutes, rules, policies, or the specifications in the Invitation to Bid for the reasons alleged by Petitioner.
Findings Of Fact The Department issued ITB No. DOH 04-191 to solicit bids for the purchase of a Discrete Analyzer System (DAS) and a three-year service/maintenance agreement for the DAS. The DAS is a piece of laboratory equipment that is used primarily to analyze the chemical composition and level of nutrients in wastewater. Bids were submitted in response to the ITB by Systea, Lachat, and OI. The bids were opened and reviewed by the Department’s staff. The Department’s purchasing office reviewed the pricing information in the bids, and its laboratory staff reviewed the technical components of the bids. Lachat was determined, based upon that review, to be the low bidder and, therefore, the Department posted notice of its intent to award the contract to Lachat. Systea filed with the Department a notice of protest and a formal written protest challenging the award of the contract to Lachat. The sole basis of Systea’s protest is that the “grand total” line in Lachat’s bid was left blank and that the omission is not a minor irregularity that can be waived by the Department.2 The protest seeks to have Lachat’s bid “disqualified” based upon that omission. Special Condition 5.1 of the ITB required bidders to “submit all mandatory, technical, and pricing data in the formats specified in the Invitation to Bid.” Special Condition 6.16 stated that “[b]ids that do not meet the requirements specified in this Invitation to Bid will be considered non-responsive.” Similarly, paragraph 14 of the General Instructions to Bidders states that the “[f]ailure to comply with terms and conditions, including those specifying information that must be submitted with a response, shall be grounds for rejecting a response.” The pricing data referenced in Special Condition 5.1 was to be provided by the bidders on the Price Page, which is Attachment II of the ITB. The Price Page has space for the bidders to enter their “unit price” and the “total amount” for the DAS as well as space for the bidders to enter their annual price for the three- year service/maintenance agreement required by the ITB. The Price Page also has space for the bidders to enter their “grand total,” and it is undisputed that the “grand total” was to reflect the sum of the individual prices referenced in the preceding paragraph. Inclusion of the “grand total” on the Price Page is a mandatory requirement of the ITB because Special Condition 5.5 states that the Price Page “must be filled out as indicated” (emphasis supplied),3 and Special Condition 6.15 states that the contract is to be awarded to the bidder offering “the lowest grand total for the items being solicited.” Thus, the omission of the “grand total” on the Price Page of a bid renders the bid non-responsive unless the omission is waived by the Department. Special Condition 6.10 prohibits the Department from waiving “material deviations” in the bids that relate to the mandatory requirements of the ITB. That condition does not similarly prohibit the Department from waiving non-material deviations. Other provisions of the ITB expressly authorize the Department to waive non-material deviations. For example, Special Condition 6.16 reserves the Department’s right to waive “any minor irregularity or technicality in bids received,” and paragraph 15 of the General Instructions to Bidders reserves the Department’s right to waive “any minor irregularity, technicality, or omission.” (All emphases supplied). The Price Page in Lachat’s bid listed prices for the DAS and for each year of the required service/maintenance agreement, but the “grand total” line on the Price Page was left blank. Thus, Lachat’s bid was technically non-responsive. In addition to the Price Page, Lachat’s bid included a document titled “Proforma [sic] Price Quotation.” The Department staff did not consider the “Proforma” document in determining the responsiveness of Lachat’s bid or in tabulating the bid’s “grand total.” The document was ignored by Department staff because it was not something that was specifically required by the ITB. The prices listed on the “Proforma” document correspond to the prices itemized on the Price Page in Lachat’s bid. The document also makes reference to the one-year parts and labor warranty that is included in the price of the DAS (and required by Special Condition 4.6) as well as the components included in the annual price that Lachat bid on the Price Page for the service/maintenance agreement, which is referred to in the “Proforma” as a “field service partnership”. The components of the “field service partnership” listed in the “Proforma” -- i.e., “onsite, priority service, two preventative maintenance visits, and parts and labor” -- are materially the same as the required components of the service/maintenance agreement referenced in Special Condition 4.7. As part of its review of the bids, the Department staff tabulated a “grand total” for Lachat’s bid by adding the unit prices itemized on the Price Page of Lachat’s bid. The result of that tabulation was $46,548, which was lower than the “grand total” in the bids submitted by Systea and OI. The Department staff would have performed this calculation even if Lachat had filled-in an amount on the “grand total” line in order to verify the underlying calculations. Indeed, the Department staff also verified the calculations in Systea’s and OI’s bids, which each included an amount on the “grand total” line. Department staff confirmed the $46,548 figure with a representative of Lachat, as it is authorized to do under paragraph 14 of the General Instructions to Bidders. That paragraph provides that “[b]efore award, the [Department] reserves the right to seek clarifications . . . deemed necessary for proper evaluation of the submissions.” The amount entered on the “grand total” line on the Price Page of Systea’s bid is $49,995. That figure equals the sum of the unit prices itemized on the Price Page of Systea’s bid. The amount entered on the “grand total” line on the Price Page of IO’s bid is $52,427.50. That figure is inexplicably higher than the sum of the unit prices itemized on the Price Page of IO’s bid. The sum of the itemized prices is $49,747.50. The Department staff did not contact OI to seek clarification regarding this discrepancy because OI would not have been the lowest bidder even if the unit prices in its bid were correct. In posting the contract award, the Department listed OI as the third-lowest bidder based upon the “grand total” in its bid, rather than the second-lowest bidder based upon the Department’s tabulation of the itemized costs in the bid. The omission of the “grand total” on the Price Page of Lachat’s bid is a minor irregularity because the bid contained (on the Price Page) all of the figures necessary to calculate the “grand total,” and the tabulation of the “grand total” was a simple mathematical calculation that the Department would have made in any event to verify the accuracy of the "grand total" based upon the unit prices itemized on the Price Page. If Lachat’s bid was rejected based upon the omission of the “grand total” on the Price Page, there would be a negative fiscal impact on the Department of more than $3,000 because the bids of Systea and OI (as tabulated by the Department) were that much higher than Lachat’s bid. The legislative appropriation for the Department’s purchase of the DAS expires on June 30, 2005, and the Department will lose the appropriated funds unless it expends or encumbers the funds by 5:00 p.m. on that date. A purchase order must be issued to encumber the funds, and the purchase order must identify the entity that the funds will be paid to.
