Findings Of Fact On or about August 10, 1979, HRS caused a legal advertisement to be published concerning its Purchase Order No. 52579, requesting bids for window film installation pursuant to HRS Bid No. 30-497WR. The Invitation to Bid provided, in part, that: As the best interests of the State may require, the right is reserved to make award(s) by individual item, group of items, all or none or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. When it is determined there is competition to the lowest responsive bidder, then other bids may not be evaluated. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. Among the special conditions of the Invitation to Bid was the following: The successful bidder will furnish and install window insulation film on all glass exposures of buildings designated as one through eight with the exception of these [sic] windows now having film installed. These buildings are commonly known as the Winewood Complex which is located at One Winewood Blvd., Tallahassee, Florida 32301. Subleased or other occupied space will be an addition to the basic glass square footage of buildings five, six, seven and eight now occupied by the Department of Corrections, Winewood Office Park Lmtd. and the Parole and Probation Commission. Prospective bidders will be provided these applicable locations by the project manager. The bid will contain a diagram and listing of these square footages. The computations of total square footages of applicable glass areas will be separated by buildings. This is necessary so that after the installation of the film on each building is completed and accepted by the project manager, an invoice can be submitted for payment. [Emphasis added]. In addition, tee following clause was also contained in the Special Conditions of the Invitation to Bid: All work performed by the Contractor in completing the subject project shall be guaranteed by the Contractor against all defect resulting from the use of materials, equipment and workmanship for a period of five years from the date of final completion of the subject project. If, within any guarantee period, repairs or changes are required in connection with the guarantee work, which in the opinion of the Owner is rendered necessary as a result of the use of materials, equipment or workmanship which are defective or inferior or not in accordance with the terms of the Contract, the Contractor shall, promptly upon receipt of notice from the Owner and without expense to the Owner, proceed to: Place in satisfactory condition in very [sic] particular all of such guaranteed work, correct all defects therein; and make good all damages to the structure or contents thereof, which in the opinion of the Owner, is the result of the use of materials, equipment, or workmanship which are inferior, defective, or not in accordance with the terms of the Contract; and made [sic] good any work or materials or the equipment and contects [sic] of structures or site disturbed in fulfilling any such guarantee. [Emphasis added]. The Special Conditions also provided that: No interpretation of the meaning of the Drawings, specifications, or other Bidding Documents, no correction of any apparent ambitquity [sic], inconsistency or error therein, will be made to any Bidder orally. Every request for such interpretation or correction should be in writing, addressed to the Project Manager. All such interpretations and supplemental instruction will be in the form of written addenda to the Bidding Documents. Only the interpretation or correction so given by the Project Manager in writing, shall be binding and prospective Bidders are advised that no other source is authorized to give information concerning, or to explain or interpret the Bidding Documents. Finally, the Invitation to Bid also provided for modification of bids if received in writing prior to bid opening. HRS distributed more than 25 bid invitations pursuant to the aforementioned bid, and in response thereto received four bids, one of which was a "no bid". Of the three remaining bidders, Solar-X of Tallahassee submitted a total bid of $34,624.88, based upon a measurement of 29,096 square feet at a price of $1.19 per square foot; Florida Solar Power, Inc. submitted a total bid of $30,079.14, based upon 30,693 square feet at $.98 per square foot; and, finally, Petitioner submitted a total bid of $43,555.10 based upon a calculation of 37,874 square feet at $1.15 per square foot. The bids of Solar-X of Tallahassee and Florida Solar Power, Inc. were determined to be unresponsive to the Invitation to Bid for reasons not here pertinent. Although Petitioner's bid contained a total square footage on which it proposed to install window film, the bid did not break down the area of glass on a per-building basis as required by the conditions of the Invitation to Bid. In addition, the conditions of the Invitation to Bid required that building space occupied by sublessors be separately computed in bid responses in order to attempt to pass on to those sublessors their pro-rata share of the cost. Petitioner did not separate this space in its bid as required. Petitioner also failed to furnish with its bid a diagram of exposed glass area in each building as required in the special conditions. Finally, Petitioner's bid response contained the following warranty provision: . . .3M Company and the [Petitioner] warrants [sic] "SCOTCHING" Brand Solar Control films against peeling, cracking, crazing, or loosening for a period of five (5) years after installation in the event the product is found to be defective under this warranty. [Petitioner] will replace such quantity of the film proved to be defective with the [Petitioner] additionally providing the reapplication labor free of charge for the first two (2) years of the warranty. The customer shall pay for any reapplication labor charges during the last three (3) years of the warranty. . .[Emphasis added]. At final hearing, a representative of Petitioner testified that this warranty was the manufacturer's warranty, and that Petitioner, as the seller of the product, intended that full warranty protection in accordance with the conditions of the Invitation to Bid be part of Petitioner's bid. However, nothing to this affect appears in Petitioner's bid, nor did Petitioner attempt to modify its bid in writing before bid opening to make HRS aware of its intentions in this regard. Although bid opening was initially scheduled for August 24, 1979, the opening date was extended to September 4, 1979, by addendum to the Invitation to Bid. After opening, bids ware reviewed by the staff of the Director of the Office of General Service in HRS for technical compliance with the Invitation to Bid. As a result of this review, it was determined that Petitioner's bid was the only bid submitted which complied with all provisions of the bid specifications, and the staff, therefore, recommended award of the contract to Petitioner. At this point the question of the award of the contract came to the attention of the Purchasing Director of HRS's Central General Services, whose office is responsible for evaluation of bids for compliance with the terms and conditions of an Invitation to Bid, state purchasing law and administrative rules relating to state commodity purchases. During the course of this review, it was determined that Petitioner's bid did not comply with the conditions of the Invitation to Bid in that it failed to break down its bid on a per-building basis and, additionally, improperly qualified the five-year warranty requirement contained in the Invitation to Bid and its conditions. At the Federal hearing in this cause the Purchasing Director for Central General Services also testified that he had received oral communications from other vendors, some of whom submitted bids and some who did not, to the effect that the technical specifications of the Invitation to Bid were tailored to the products sold by Petitioner to such an extent as to effectively close the bidding process to competition. None of these vendors protested the content of the specifications as required in the Invitation to Bid, nor was any direct testimony adduced at final hearing in this cause from these vendors. Although the Division of Purchasing of the Department of General Services also concluded that the bid specifications were too restrictive, there is insufficient evidence in the record in this proceeding upon which to base a conclusion that the specifications contained in the Invitation to Bid were either tailored to Petitioner's product, or were so restrictive as to limit competitive bidding. Indeed, one of the actual bidders, Solar-X of Tallahassee, submitted a bid which complied with the technical specifications, but was rejected because it included an unacceptable contingency clause for late delivery. After extensive in-house review by various HRS employees, a letter dated October 4, 1979, was forwarded to all vendors advising that HRS, after ". . .an extensive analysis of the bid responses. . ." had decided to reject all bids and issue a second call for bids. This letter also indicated that ". . .areas of concern which were expressed relative to the initial invitation will be addressed in the second call." The letter did not attempt to further identify the "areas of concern." The facts of record in this proceeding clearly establish that Petitioner's bid was not responsive to the Invitation to Bid. Petitioner did not include in its bid a diagram of each building on which window film was to be installed, nor did the bid indicate the number of square feet contained in each building. The two vendors whose bids were rejected apparently had no difficulty complying with this requirement. As a result, HRS was precluded from comparing the per-building cost of the competing bids, and, had the contract been awarded to Petitioner, HRS could not have determined the proper amount of periodic progress segments without performing independent measurement. Most importantly, however, Petitioner improperly qualified the five- year warranty provision contained in the Special Conditions. Petitioner's bid, on its face, limited its responsibility to replacement of defective window film during the five-year warranty period, and required that HRS be responsible for payment of labor charges for reinstallation during the last three years of the warranty period. This warranty qualification was clearly contrary to the requirement that any product replacement or reinstallation be without expense to HRS for a period of five years from the date of final completion of the project. There was extensive testimony at final hearing concerning allegations by Petitioner of improper conduct on the part of the HRS Purchasing Director for Central General Services which allegedly resulted in the decision to reject all bids and submit a second call for bids. Testimony on this issue involved Petitioner's assertion that the HRS employee's relationship by marriage to one of the unsuccessful bidders led to his conclusion that the technical specifications were so narrowly drawn as to preclude a consideration of his relative's product, and that the specifications should be redrafted so as to allow consideration of products other than Petitioner's. In light of the fact that Petitioner's bid was not responsive to the Invitation to Bid, in that it improperly qualified the warranty required, and did not contain square footage computations on a per-building basis, it is unnecessary to reach the question of the propriety of any conduct on the part of the HRS employee. The propriety of the rejection of Petitioner's bid was determined by Petitioner's failure to comply with the Special Conditions of the Invitation to Bid, and could not have been affected by the alleged misconduct on the part of an employee of HRS. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such proposed findings of fact have not been adopted in this Recommended Order, they have been specifically rejected as being irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue Whether Respondent, the University of Florida, discriminated against Petitioner, Tracey Krefting, previously known as Tracey Hardin, on the basis of a handicap as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact The Parties. The Petitioner, Tracey Krefting, formerly known as Tracey Hardin, is a handicapped individual. She suffers from seizure disorder. Ms. Krefting graduated from the University of Florida in May of 1990. She received a bachelor of science degree with a major in advertising. Ms. Krefting had experience as an advertising sales representative prior to her employment by the Respondent. The Respondent, the University of Florida (hereinafter referred to as the "University"), is a State university located in Gainesville, Florida. Within the College of Journalism and Communications of the University is a radio station, WRUF. WRUF was an auxiliary operation of the University responsible for raising revenue to fund all of its expenses, including the salaries for its sales representatives. No state funding was received directly or indirectly from the University by WRUF. Ms. Krefting's Employment by the University. Ms. Krefting was employed by the University at WRUF on July 28, 1992. Ms. Krefting was employed as "OPS", other personnel services. Ms. Krefting was employed to act as one of six or seven sales representatives of WRUF. As of January 29, 1993, Robert Clark was the General Manager of WRUF. Mr. Clark was Ms. Krefting's supervisor from January 29, 1993 until her termination from employment. Sales Representative Qualifications. The essential function of sales representatives for WRUF was to sell radio time for advertising. This function was an essential function because the revenue necessary to operate WRUF was generated in this manner. Sales representatives were responsible for servicing existing clients and for finding new clients. An essential requirement of the sales representatives of WRUF, including Ms. Krefting, was the ability to travel to the businesses and offices of WRUF's advertising clients and prospective clients. Sales representatives were generally required to spend 80 percent of their working hours out of the office servicing clients and seeking new clients. Continuous contact and an ongoing relationship with clients was required. Contacts with clients were expected to be face to face and not just over the telephone. In addition to being required to make regular contacts with clients, sales representatives were also required to make themselves available to visit their clients with little notice. Obtaining new clients usually required more than one contact with a prospective client by a sales representative. The sales representative was required to sell himself or herself and the station and must gain the trust of the prospective client. Sales representatives were also responsible for performing public service work. This work entailed the providing of public service announcements. The public service work performed by sales representatives did not directly generate revenue for WRUF. Neither the application for employment completed by Ms. Krefting when she was initially employed at WRUF nor the University's OPS personnel requisition form authorizing her employment included any of the necessary skills or qualifications for the sales representative position she was hired to fill. Ms. Krefting was aware at the time she was hired, however, that she would be required to travel to her clients locations and to the locations of prospective clients. There are other means of transportation available which would have allowed Ms. Krefting to reach clients and prospective clients: vehicle driven by a hired driver, public transportation, taxi, and walking. The evidence failed to prove, however, that there were any reasonable means of transportation available to Ms. Krefting other than driving herself which would have allowed her to meet the requirements of a sales representative for WRUF. Ms. Krefting's Handicap. On April 18, 1993, Ms. Krefting fell while rollerskating. Ms. Krefting hit her head on the ground when she fell. On April 19, 1993, Ms. Krefting was admitted to the emergency room of the North Florida Regional Medical Center. The evidence failed to prove that the injury she suffered on April 18, 1993, caused Ms. Krefting to suffer any seizure. On May 6, 1993, Ms. Krefting suffered a seizure while leaving her home to go to work. Ms. Krefting was ultimately diagnosed as having "seizure disorder." At all times relevant to this proceeding, Ms. Krefting suffered from a "handicap." Ms. Krefting's Inability to Drive. On or about May 18, 1993, Ms. Krefting provided a letter from George Feussner, M.D., dated May 18, 1993, to Mr. Clark. In the letter Dr. Feussner indicated that Ms. Krefting was able to return to work but that she could "not operate a motor vehicle " Although Dr. Feussner did not indicate how low Ms. Krefting would be unable to drive, Ms. Krefting informed Mr. Clark that Dr. Feussner had informed her that she would not be able to drive until she was seizure free for one year from the date of her last epileptic seizure, May 6, 1993. As a result of the restriction on Ms. Krefting's ability to drive and based upon Florida law, Rules 15A-5.003 and 15A-5.004, Florida Administrative Code, Ms. Krefting was unable to drive herself to see existing or prospective clients until at least May 6, 1994. Ms. Krefting discussed with Mr. Clark the possibility of hiring a "tenant" of hers to drive her around. Ms. Krefting did not identify the "tenant." Nor did Ms. Krefting inform Mr. Clark that she had completed making arrangements with anyone to drive her. Mr. Clark did not preclude Ms. Krefting from making arrangements to have someone provide transportation for her. Mr. Clark did tell Ms. Krefting that it would have to be determined what implications, if any, a driver would have on WRUF's workers compensation coverage. The resolution of this issue was to be delayed, however, until Ms. Krefting made concrete arrangements for a driver and discussed those arrangements with Mr. Clark. Ms. Krefting failed to finalize any arrangement for a driver. Had Ms. Krefting provided her own driver, at her own expense, Ms. Krefting may have been able to meet the requirement of her position that she be able to provide her own transportation. Ms. Krefting, however, did not take the necessary steps to hire a driver prior to her termination from employment. Ms. Krefting talked to her tenant, Kenneth Vest, about acting as her driver. Mr. Vest worked in the same building that Ms. Krefting did. Mr. Vest worked Sunday through Wednesday from 3:30 p.m. to 1:30 a.m. He was, therefore, generally available for part, but not all, of Ms. Krefting's working hours. Mr. Vest was generally willing to drive Ms. Krefting, if he were compensated. Ms. Krefting did not discuss with Mr. Vest the exact hours that he would be expected to drive her or her schedule. Nor did Ms. Krefting discuss compensation with Mr. Vest. Ms. Krefting failed to prove that Mr. Vest or any other individual was available at any time relevant to this proceeding, or at the final hearing, to provide transportation for her in a manner that would fulfill her responsibilities as a sales representative. Because of the restriction on Ms. Krefting's ability to drive and her failure to make alternative arrangements to have someone like Mr. Vest drive her, Ms. Krefting failed to prove that she met all the qualifications of her position with WRUF. Ms. Krefting did not meet all the qualifications of her position. But for her handicap, however, Ms. Krefting would have met all of the qualifications of a sales representative. The University's Decision to Terminate Ms. Krefting's Employment. On or about May 24, 1993, Mr. Clark informed Ms. Krefting that WRUF could not continue to employ her because of her inability to drive. Ms. Krefting suggested alternative means of meeting her responsibilities with Mr. Clark when she was informed that WRUF would not be able to continue her employment. Mr. Clark considered the suggestions, but did not accept any of them. On June 16, 1993 Mr. Clark agreed to extend Ms. Krefting's termination date to accommodate her efforts to find another postition within the University. Ms. Krefting was ultimately terminated from employment in early July of 1993. Ms. Krefting was terminated because she was prohibited from driving her vehicle and there was no other reasonable means of meeting her responsibilities to service clients and prospective clients. The University's Inability to Accommodate Ms. Krefting's Inability to Drive. During 1993, the financial condition of WRUF was precarious. WRUF was operating at a loss. Three employees had been terminated and a department had been eliminated. Another vacant position had not been filled. WRUF was forced to borrow funds from the University and a foundation account in order to continue operating. At all times relevant to this proceeding, WRUF was unable to create a newly funded position or to allow a sales representative to fail to generate reasonably expected revenues. Ms. Krefting suggested several possible alternatives to accommodate her inability to meet her requirement that she be able to drive. The suggestions were discussed with, and considered by, Mr. Clark. One suggestion Ms. Krefting made to Mr. Clark was to create a new position. The position would entail performing all of the public service work of the sales representatives. Mr. Clark rejected this proposal because it entailed the creation of a new position. The creation of a new position was not a reasonable accommodation. The creation of a new position, especially one that did not generate revenue, would have created a financial hardship on WRUF. The evidence also failed to prove that the public service work could be performed without the need for travel. A second suggestion Ms. Krefting made to Mr. Clark was to restructure her position so that she would be responsible for the preparing of proposals, filing, handling incoming sales calls and telemarketing. In effect, this suggestion also entailed the creation of a new position. This suggestion was rejected by Mr. Clark. Ms. Krefting's second suggestion was not a reasonable accommodation. It would have created an undue financial hardship on WRUF because there was not sufficient work to justify such a position. A third suggestion made by Ms. Krefting to Mr. Clark was that she be teamed with another sales representative who would do all the driving. Mr. Clark rejected this suggestion. Ms. Krefting's third suggestion was not a reasonable accommodation. Teaming two sales representatives would have reduced the effectiveness of two sales representatives who would be available to visit different clients and prospective clients at the same time if they were not teamed. This would have created an undue financial hardship on WRUF. A fourth suggestion made by Ms. Krefting to Mr. Clark was that she use public transportation and taxis. Mr. Clark rejected this suggestion. Although it is questionably whether Ms. Krefting's fourth suggestion constitutes an accommodation, to the extent that it does, it was not a reasonable accommodation. Public transportation does not provide the flexibility required of sales representatives because of the inadequacy of routes and schedules of available transportation. A fifth suggestion made by Ms. Krefting to Mr. Clark was that she provide her own driver. It is questionable whether the use of a driver, as suggested by Ms. Krefting, constitutes an accommodation. To the extent that Ms. Krefting was suggesting that WRUF provide her a driver, her suggestion was not a reasonable accommodation. If WRUF had been required to provide the driver, it would have caused an undue hardship on WRUF. Finally, Ms. Krefting suggested that a student intern from the University's College of Journalism be assigned to work with her and that the intern provide the driving required by her position. Mr. Clark rejected this suggestion. Ms. Krefting had discussed the idea of using an intern with Dr. Joseph Pisani, the Chair of the Advertising Department of the College of Journalism. Although Dr. Pisani was not opposed to the use of an intern-if the intern was properly used-he was opposed to the use of an intern primarily or exclusively as a driver. The suggestion that interns be used was not a reasonable accommodation. Student interns usually are only available to work as an intern for a maximum of 12 hours a week. Additionally, the 12 hours a week that an intern would be available depends upon their class schedule. Therefore, student interns would not be available for a sufficient period of time for Ms. Krefting to fulfill the responsibilities of her position. Although it is not impossible to find a student that would be willing to act as an intern full-time, the evidence failed to prove that it was likely that a student could be found that would be willing to take no classes for up a year or that it would be financially feasible for a student to do so. Mr. Clark did not actually attempt to implement any of Ms. Krefting's proposals. Mr. Clark also did not "consult with any experts" about the proposed accommodations. Mr. Clark's failure to attempt to implement any of the proposals or to consult with experts was not, however, necessary. The issue confronting Mr. Clark was not one involving a decision which required special knowledge or understanding of Ms. Krefting's handicap, or the needs of persons who suffer from seizure disorder. The only issue confronting Mr. Clark was how to accommodate the inability of a sales representative to transport herself to meet the needs of clients and prospective clients. Mr. Clark had all the necessary information to decide how to deal with this issue: Ms. Krefting, regardless of her condition or needs, was prohibited from driving an automobile for at least a year. Mr. Clark was fully aware of the impact of this restriction on WRUF and the resulting inability of a sales representative to carry out their responsibilities. The suggested accommodations made by Ms. Krefting also required no special knowledge or understanding. The suggestions only required an understanding of the needs of WRUF and what was expected of sales representatives. Ms. Krefting's Loss of Income. Subsequent to her termination by WRUF Ms. Krefting remained unemployed until February of 1994. After her termination by WRUF Ms. Krefting received unemployment benefits of approximately $3,500.00 Ms. Krefting earned $800.00 for part-time employment in March of 1994. Ms. Krefting was unable to work from April of 1994 until June of 1994. Ms. Krefting is currently employed. Ms. Krefting's Complaint. Ms. Krefting filed a Charge of Discrimination with the Commission on or about August 18, 1993 alleging that the University had discriminated against her on the basis of her handicap. On or about January 21, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 17, 1994, Ms. Krefting filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. Conclusion. The evidence in this case failed to prove that the University terminated Ms. Krefting's employment because of her disability. Ms. Krefting was terminated by the University because she could not meet all of the requirements of her position. The evidence failed to prove that the University could reasonably accommodate Ms. Krefting's inability to drive without undue hardship to WRUF's activities. Ms. Krefting failed to prove that the University discriminated against her on the basis of her handicap.
The Issue The issue in this case is whether the Respondent, the Department of Highway Safety and Motor Vehicles (the Department), should enter into a contract with Southern Photo Supply as low responsive bidder under Invitation to Bid (ITB) 052-98; the Petitioner, E. L. Cole Photography, Inc., contends such a contract would breach the Petitioner's contract under ITB 055-97.
Findings Of Fact On May 14, 1997, the Respondent, the Department of Highway Safety and Motor Vehicles (the Department), awarded a contract for miscellaneous photographic supplies to the Petitioner, E. L. Cole Photography, Inc., as the low responsive bidder under ITB 055-97. ITB 055-97 replaced a similar contract awarded to Southern Photo Supply, as the low responsive bidder under ITB 039-94. Both ITBs were restricted to minority business enterprises (MBEs). Both ITBs (039-94 and 055-97) specified supplies listed under "Product Groups." The preamble to the "Product Groups" list in the bid specifications for both ITBs stated: The following product groups include the listed representative products and the anticipated order quantities for the representative products during the . . . contract period. These lists are based on a combination of experience and estimation, and are furnished to assist bidders to determine their interest in the contract and to estimate the type and volume of business that might be derived from the contract. However, the agency reserves the right to vary both products used and quantities required as may best serve the interests of the agency in carrying out agency business. Both lists included a group consisting of various types of color negative standard roll film in quantities ranging from 120 to 360 rolls. ITB 039-94 was for an eighteen-month contract (through June 30, 1995), renewable for two additional twelve-month terms. ITB 055-97 was for a five-year contract (through June 30, 2002), renewable for one additional five-year term. Both ITBs (039-94 and 055-97) included the following provision entitled "Additions/Deletions": "As products and agency requirements change over the life of the contract the agency may add new or different products to an appropriate discount group, or increase the use of products, at the same discount rate, or discontinue or reduce the use of products." Twice during the life of the 1994 contract, the Department solicited price quotes from Southern Photo for a large order of a type of color negative standard roll film not specifically listed under "Product Groups" in ITB 039-94. Southern Photo responded that it would sell the film to the Department at a 33% discount, which was even higher than the already deep 32% discount for color negative standard roll film in Southern Photo's response to ITB 039-94. The Department saw no need to solicit price quotes from other suppliers to verify that Southern Photo's 33% discount was deep enough to justify foregoing the issuance of an ITB for the film, with attendant administrative costs and delay. Instead, the Department added the purchase to the 1994 contract using the "Additions/Deletions" clause. The second time the Department added a large order of a type of color negative standard roll film not specifically listed under "Product Groups" in ITB 039-94 was about the time it was awarding the contract to the Petitioner under ITB 055-97. In the Petitioner's response to ITB 055-97, the discount for color negative standard roll film in the Petitioner's response to ITB 055-97 was 18%. Upon inquiry, the Department was advised that Southern Photo again would sell the large order at a 33% discount. Given the depth of Southern Photo's discount, as compared to the discount for color negative standard roll film offered in the Petitioner's response to ITB 055-97, the Department's decision was logical and reasonable. The Department assumed that the Petitioner would not reduce its price for color negative standard roll film from an 18% discount down to a 33% discount. It also was logical and reasonable for the Department to believe that it would not get a price quote from any other MBE that would be enough below Southern Photo's price quote to justify the administrative cost and delay of issuing an ITB for the film. On or about April 22, 1998 (long after Southern Photo's contract under ITB 039-94 had expired and well into the Petitioner's contract under ITB 055-97), the Department decided it needed to place another large (11,000-roll) order of color negative standard roll film that was not specifically listed under "Product Groups" in ITB 055-97, namely Kodak Ektapress PJ400 135/36 (PJ400). The Department asked the Petitioner for a price quote. The Petitioner took the position that the order was covered by its contract under ITB 055-97 and quoted a price ($4.95 a roll) that would reflect the 18% discount offered on color negative standard roll film in the Petitioner's response to ITB 055-97. The Department believed that it could buy the PJ400 film at a price low enough to justify the administrative cost and the delay of issuing an ITB for the film instead of adding it to the Petitioner's contract at $4.95 a roll. To ascertain if its belief was accurate, the Department solicited price quotes from several other MBEs and was able to obtain lower quotes, including a quote from Southern Photo of $3.96 a roll. The Department decided that the prospect of possibly saving $11,000 or more would be worth the administrative cost and delay of issuing an ITB for the film. On or about May 22, 1998, the Department issued ITB 052-98 for 11,000 rolls of PJ400 film. Both the Petitioner and Southern Photo responded. Southern Photo again offered a price of $3.96 a roll. Recognizing that it was not bound by the 18% discount in its response to ITB 055-97, the Petitioner bid $4.30 a roll. However, the Petitioner submitted its response "under protest." The Petitioner made clear in the cover letter to its response that the Petitioner still believed that the 11,000 rolls of PJ400 film should be added to the Petitioner's contract under ITB 055-97. On June 4, 1998, the Department posted notice of its intent to award the contract to Southern Photo. The Petitioner filed a notice of protest on June 9 and a formal protest on June 22, 1998. In its protest, the Petitioner took the position that the intended award of the contract to Southern Photo would breach the Petitioner's contract under ITB 055-97. In part, the Petitioner based its protest on its understanding that, at the opening of the responses to ITB 055-97, the Department's Chief of Contract Purchasing, William R. Rothman, answered in the affirmative a question from the Petitioner's principal, Eddie Lee Cole, Sr., as to whether the Petitioner would be the supplier of all of the Department's needs for photographic supplies under ITB 055-97. Cole's testimony in support of the Petitioner's protest is rejected as being either a miscommunication or a misunderstanding on his part. It is not believed that the Department's Chief of Contract Purchasing would have answered such a question in the affirmative in the face of the provisions of ITB 055-97. See Findings 2 through 4, supra. Despite the possible ambiguity injected by the use of the phrase "representative products" in the preamble to the "Product Groups" list in the bid specifications for ITB 055-97, Rothman testified that he viewed the purpose of the phrase to be to give the Department flexibility in the use of the "Additions/Deletions" clause. In particular, Rothman understood the purpose of the phrase to be to alert bidders that the Department would not necessarily purchase all listed products or purchase them in the listed quantities. Given Rothman's interpretation of ITB 055-97, it is not likely that Rothman would have given an affirmative answer to Cole's alleged question. If he did, it is found that Rothman's answer was intended to incorporate the provisions of the ITB as defining the contractual relationship between the Department and the Petitioner. The Petitioner's protest also was based in part on evidence that, on at least one occasion, the Department purchased from the Petitioner photographic supplies not specifically listed under "Product Groups" in ITB 055-97 without making formal use of the "Additions/Deletions" clause. However, it is found that the Department's action in that regard was an oversight from not carefully comparing its purchase orders to the "Product Groups" list. Reading the ITB in its entirety and in pari materia, it is found that the phrase "representative products" was not intended to require the Department to purchase large (11,000- roll) orders of color negative standard roll film not specifically listed under "Product Groups" in ITB 055-97 from the Petitioner. (Despite this finding, it is suggested that rephrasing the language in future ITBs may eliminate ambiguity, as well as the cost and delay it apparently caused in this case.) The Petitioner's protest also was based in part on its concern that, despite virtually identical pertinent ITB provisions, the Petitioner was not treated under its contract (ITB 055-97) the same way as the Department treated Southern Photo under its contract (039-94). However, as reflected in these findings, the Department actually treated both contractors the same; the outcome of that treatment was different only because Southern Photo's price quotes for large orders of color negative standard roll film not specifically listed under "Product Groups" were much lower than the Petitioner's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the Petitioner's bid protest and awarding the contract under ITB 052-98 to Southern Photo Supply. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Barbara Hobbs, Esquire Cummings, Hobbs and Wallace, P.A. 1020 East Lafayette Street, Room 205 Tallahassee, Florida 32301 Judson M. Chapman, Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 2399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 2399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Whether, in making a preliminary decision to award a contract for the subject services, Respondent 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 challenges the evaluation of the past performance section of the responses to the procurement document. Also at issue is whether Respondent violated the Sunshine Law in deciding to reject Petitioner’s bid protest.
Findings Of Fact Stipulated Facts Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. On September 21, 2009, the Department issued the subject RFP. The RFP sets forth the purpose of the procurement (on Page 1 of the RFP) as follows: Request for Proposals (RFP): A 36-slot Facility-Based Day Treatment Program as described in the Services to be Provided (Attachment I) in a Provider owner/leased facility in Circuit 11, Miami-Dade County. The provider shall provide the day treatment program for youth placed on probation, and youth transitioning back into the community who are referred for conditional release or post-commitment probation services. The provider shall design, develop, implement and operate an evidence-based, facility- based day treatment program with the capability to provide an after- school/evening component. Petitioner submitted a timely response to the RFP. On December 18, 2009, Respondent posted its Notice of Agency Action which indicated its intent to award the contract to PSF. On December 28, 2009, Petitioner filed a Formal Written Protest and Petition for Administrative Hearing (Petition) pursuant to Section 120.57(3), Florida Statutes (2009), and Florida Administrative Code Rule 28-110.004. Pursuant to the provisions of Section 120.57(3)(d), Florida Statutes (2009), representatives from Petitioner and Respondent met in an attempt to settle or to resolve the formal bid protest filed by Petitioner. Respondent's representatives at the January 13, 2010, meeting included Tonja W. Matthews, Amy Johnson, Paul Hatcher, and Shahin Iranpour. Petitioner's representatives at the January 13, 2010, meeting were Thomas Petersen and Jennifer Fiorenza. No public notice was given ahead of, and no minutes were taken at, the meeting between Petitioner's representatives and Respondent's representatives on January 13, 2010. Respondent's representatives briefly met separately after hearing from Petitioner to determine whether or not any further questions or information was needed from Petitioner.1 After January 13, 2010, and before January 21, 2010, Respondent's representatives Amy Johnson, Rex Uberman, and Paul Hatcher individually or collectively discussed Petitioner's Bid Award Protest with some or all of the Respondent's personnel present at the January 13, 2010, meeting with Mr. Petersen and Ms. Fiorenza. They ultimately decided to uphold Respondent's Notice of Agency Action (issued December 18, 2009) as to the subject RFP. No public notice was given of the proposed agency action, i.e., Respondent's intended decision to uphold its Notice of Agency Action as to the subject RFP, nor were minutes taken which recorded this intended action. In a letter dated January 21, 2010, Respondent notified Petitioner of its decision to uphold its decision to award to PSF and inquired as to whether Petitioner wished to proceed with a formal hearing before DOAH. Petitioner responded in the affirmative, Respondent forwarded the Petition to DOAH, and this proceeding followed. Past Performance Section XIX of Attachment B sets forth "General Instructions for Preparation of the Proposal." Subparagraph F of Section XIX (found at page 17 of 73 of Joint Exhibit 1) provides, in part, as follows: F. Past Performance - (Volume 3) The purpose of this section is for the prospective Provider to demonstrate its knowledge and experience in operating similar programs by providing information requested on Attachment C, part I, II, and/or III. Each prospective Provider shall limit the Past Performance section to no more than 15 pages. These pages shall include the information requested on Attachment C, Parts I, II, and/or III and all required supporting documentation. . . . Attachment C, Part 1, is a form styled "Data Sheet: Past Performance of Non-Residential Programs" (page 21 of 73 of Joint Exhibit 1). That form has column headings for the vendor to insert the required information as follows: "Program Name," "Contract Number," "Program Type," "Contract Begin Date," "Contract End Date," "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," "Failure to Report," "Number of Completions during FY 2006-2007," "2006-2007 Recidivism Rate," QA Deemed Status." Each column heading has a footnote that clarifies the type information required. For example, a footnote explains that QA is a reference to Quality Assurance. The column headed "Program Type" contains a footnote (footnote 3) which sets forth the non-residential programs that qualify for evaluation under the category "Past Performance of Non-Residential Programs" as follows: 3. During the past year from the date of the RFP issuance, the program type (Supervision, Day Treatment, Conditional Release, Respite, Independent Living, Diversion, Juvenile Assessment Centers) for the majority of the time the Vendor operated the program. Footnote 3 explicitly sets forth Diversion Programs and Juvenile Assessment Centers (JAC) as programs that will qualify for evaluation under the category "Past Performance of Non-Residential Programs." Petitioner did not file a challenge to the specifications of the procurement document within 72 hours of its posting as required by Section 120.57(3)(b), Florida Statutes. The scoring criteria and methodology for Past Performance are set forth in the RFP. Petitioner and PSF only operate programs in Florida. The scoring at issue in this proceeding is that of "Part I - Evaluation for Past Performance in Florida". Under that category, a vendor could receive a maximum of 420 points. Paul Hatcher is Respondent's employee who evaluated the responses to the Past Performance section of the RFP. Petitioner is the current provider of the services being solicited by the subject RFP. In its response to Attachment C, Petitioner listed that program in the appropriate columns of Attachment C. The program operated by Petitioner was appropriately listed because it is categorized by Respondent as being a non-residential program. There is no contention that Mr. Hatcher failed to appropriately evaluate Petitioner's Past Performance. Petitioner was awarded a total of 268 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. In its response to Attachment C, PSF listed one diversion program and two juvenile assessment centers (JAC) as non-residential programs it operated in the State of Florida. One JAC did not qualify for evaluation because it had not been in operation for a sufficient period of time. Mr. Hatcher evaluated PSF's Past Performance on the basis of the diversion program and one of the two JACs. PSF was awarded a total of 312 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. Mr. Hatcher appropriately included the diversion program and the JAC program in his evaluation of PSF's Past Performance for Non-Residential Programs because Footnote 3 explicitly includes those programs as programs non-residential programs that qualify for evaluation.2 There is no contention that Mr. Hatcher failed to score PSF's Past Performance in accordance with the scoring criteria and methodology set forth in the RFP. The RFP provides that vendors who operate DJJ contracted non-residential programs in Florida can be awarded a maximum of 1905 points. Respondent awarded PSF the higher overall score of 1422.27 points. Respondent awarded Petitioner a score of 1327.34 points. Petitioner failed to establish that Respondent incorrectly scored the two responses to the RFP, and it failed to establish that Respondent incorrectly determined to award the procurement to PSF. Sunshine Law Section 120.57(3)(d)1., Florida Statutes, provides the following after a bid protest is filed: (d)1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest. The purpose of the meeting on January 13, 2010, between the employees of Respondent and the representatives of Petitioner identified above, was to provide Petitioner an opportunity to argue why PSF should not be awarded the procurement. The group of employees represented Respondent's legal counsel and representatives from Respondent's Probation Programs (headed by Mr. Uberman) and its Bureau of Contracts (headed by Ms. Johnson). The purpose of the meeting was to determine the factual and legal basis for Petitioner's bid protest. The group of Respondent's employees who met with Petitioner's representatives on January 13, 2010, did not vote either during the meeting or after the meeting's conclusion. A day or two before she wrote her letter of January 21, 2010, Ms. Matthews contacted by telephone Ms. Johnson to determine whether the Bureau of Contracts thought some action other than the award of the procurement to PSF should be taken. Ms. Matthews also contacted by telephone Mr. Hatcher, who represented the Probation Programs, with the same inquiry. Ms. Johnson made the decision that the position of the Contract division was to uphold the award to PSF. Mr. Hatcher, after consulting with Mr. Uberman, made the decision that the position of the Probation Programs was to uphold the award to PSF. In separate telephone calls the Contract division and the Probation division advised Ms. Matthews that the award to PSF should be upheld. Ms. Matthews thereafter prepared and sent the letter that advised the vendors of the DJJ's decision.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order that denies Petitioner's bid protest and upholds the award of the procurement to PSF. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2010.
The Issue The issue in this case is whether the Respondent, School Board of Broward County, Florida (Respondent or Board) may require bidders to comply with specifications and conditions for a bid solicitation that pertains to audiovisual, photographic equipment and related supplies, and computer peripherals as set forth in, and identified as, Invitation to Bid No. 27-040N. The Petitioner, Audio Visual Solutions Corporation (Petitioner), timely filed a challenge to the bid specifications and conditions for the subject acquisition.
Findings Of Fact The Petitioner is a corporation that deals, resells and provides audio, video, and conferencing equipment to various entities throughout the state. The Petitioner represents a number of trade names in the electronics industry and serves educational and governmental markets in the State of Florida. The Petitioner holds contracts to provide electronic equipment to the Respondent at the present time. As part of its ongoing operation, the Petitioner routinely responds to bid invitations and solicitations such as the one at issue. The Petitioner’s standing to challenge the specifications in the instant matter is not disputed. In the instant matter, the Petitioner received the ITB for the Respondent’s bid No. 27-040N and began a detailed review of the general, special, and other specifications set forth in the ITB. The Petitioner determined it would evaluate the overhead expenses required, labor and documentation, invoicing, delivery, and other specifics that would play a part in pricing the products for response to the ITB. At all times material to the allegations of this protest, the Respondent was the entity charged with the responsibility of acquiring goods and services to support the operation of the public schools in Broward County, Florida. Respondent was the appropriate entity with whom the protest should have been filed as it was the procuring entity for ITB No. 27-040N. The Respondent bears the ultimate burden for all procurement necessary to operate the public schools for Broward County, Florida. The review process used by the Petitioner in this case is the same process it has utilized in the past when it has successfully obtained contracts with the Respondent. The bid evaluation Petitioner performs is necessary to determine whether the ITB is within the scope of its operations. On or about April 24, 2006, the Petitioner forwarded a Notice of Intent to Protest regarding certain Special Conditions of the subject ITB. The Petitioner filed its notice within 72 hours of receipt of the ITB. On May 4, 2006, as the wording for the disputed Special Conditions remained unresolved, the Petitioner filed a Formal Written Protest to contest the conditions and specifications of ITB No. 27-040N. The Respondent has not disputed the timeliness of the instant protest. Throughout the pre-hearing process, the parties met and continued efforts to resolve the disputed points. As set forth in the Joint Pre-Hearing Stipulation, disputes regarding Special Conditions 22, 23, 28, 29, 31, 32, 33 and 34 were resolved during the School Board Bid Protest Meeting or immediately prior to the formal hearing. The findings and resolutions set forth regarding the challenge to each of those Special Conditions are set forth in the Joint Pre-Hearing Stipulation and are adopted here by reference. At hearing, left unresolved were the Petitioner’s challenges to Special Conditions 3, 18, 20, and 27 of ITB No. 27-040N. In the ITB at issue, “SBBC” refers to the Respondent. The Petitioner challenged Special Condition 3 for several reasons. That provision stated: AWARD-For Bid Items 1 through 38: In order to meet the needs of the school system and SBBC, each ITEM shall be awarded to one primary and up to two alternate responsive and responsible bidders meeting specifications, terms and conditions. The lowest awardee in an item or group shall be considered the primary vendor and should receive the largest volume of work. SBBC reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) it is in the best interest of SBBC to do so regardless of reason. For Bid Item 39: In order to meet the needs of SBBC, awards will be made to all bidders who submit a catalog and offer a discount or net pricing from the most current vendors catalog/price sheet. These bidders shall then be in a favorable position to compete for the Board’s business, and those who offer lowest net prices for those items, that comply with the specifications and otherwise meet requirements, should obtain the largest volume of business. After award of this bid, any bidder receiving an award who violates any specification, term or condition of this bid can be found in default of its contract, have its contract canceled, be subject to the payment of liquidated damages, and be removed from the bid list and not be eligible to do business with this School Board for two years, as described in General Conditions 22, 23 and 53. (Emphasis in original). At hearing, the Respondent agreed that the words “regardless of reason” in the first section of Special Condition 3 would be deleted. The other concerns regarding this provision were not resolved. Thus, for the items to be procured the remaining terms of this provision would be applicable. The ITB sought responses for various items of equipment by unit price. For example, Item 1 of the ITB identified the equipment sought as “Multi-Media Projector: UltraPortable Low-End.” The bid summary sheet provided that an approved model for the item would be an Epson E3. Further, the quantity listed was for 2000. A bidder would be expected to provide the unit price, the total price (presumably applying that unit price to the volume sought), and then disclosing what percentage the unit price has been discounted off the manufacturer’s list price. For each of the 38 items identified by the ITB, a bidder would be required to provide all of the requested information. As to Item 38, the bidder was required to include quotes for multiple components of the item. The Petitioner maintains that Special Condition 3 does not conform to the Florida Administrative Code. Specifically, Petitioner believes that an award to multiple bidders violates Florida Administrative Code Rule 6A-1.012. The Petitioner also believes that Special Condition 3 violates a policy of the Broward County Purchasing Policy rules. Specifically, Petitioner argues that Respondent’s policy set forth in Purchasing Policy 3320 requires a single award. Essentially, the Petitioner contends that multiple awardees are not acceptable as the Respondent is required, by law, to award the contract to the lowest and best responsible and responsive bidder. When multiple awards are made the Respondent is not selecting the lowest and best. Therefore, for each item identified the Respondent should select the lowest and best responsible and responsive bid. Similarly, as it relates to Special Condition 3, Item No. 39, an award will be made to all bidders who submit a catalog and offer a discount on pricing from the most current vendor’s catalog/pricing sheet. Again, if all bidders are accepted, no one bidder will be identified as the lowest and best responsive and responsible bidder. Additionally, since some vendors use the same catalog, the lowest (or greatest percentage discount) bidder is not well served since all bidders will know the percentages (once the bid is opened). Disclosing the percentage will not assure that the Respondent will receive the item at the lowest possible price since the Respondent is not obligated to use the catalog of the lowest priced bidder. Further, a vendor using a catalog that has prices that are higher (for the same item) can offer a higher percentage discount and not affect the overall net to them. For every purchase the Respondent would have to compute the item price and apply the discount before the real cost could be known. The Petitioner challenged Special Condition 18. In pertinent part, that provision stated: VOLUME DISCOUNT: Through history, it is known that SBBC purchases the same item in high volume. In order for SBBC to leverage a pricing advantage, bidders are to provide, on the bid summary sheet, the lowest net price for purchasing a minimum of one. Additionally, SBBC will release quotes to awardees for volume purchasing and request the best and the lowest net price for ordering the quantity of items indicated on released quotes. The awardee that offers the lowest cost will be awarded that quote. This provision is offensive to the Petitioner because it allows the second bite of the apple. That is, by requiring the bidders to disclose their pricing for this ITB and then allowing all awardees to come back after-the-fact with a second “quote” does nothing to assure that the competitive pricing inherent in the bid process has been protected. Any awardee could, after seeing the pricing offered by the competition, know the discounts applied by the competition. This process according to the Petitioner defeats the purpose of finding the lowest bidder at a fixed point in time. The ITB responses merely create a pool of potential winners. So long as a bidder was lowest on one item, it will be assured an opportunity to “quote” on all purchases (and will do so having the competition’s best numbers). Who would offer their best prices on all items in response to this ITB? No one. The bidder that offers (at whatever low price) the best price on any single item is designated an “awardee” and gets to try to defeat the competition on each “quote” subsequently announced. Moreover, the “quotes” are not guaranteed the same protections as the sealed bid process. Consequently, the Respondent may purchase thousands of dollars of items without being assured that they were given the lowest and best price. The “quotes” may exceed $25,000. Special Condition 20 was also challenged by the Petitioner for the same reason. That provision states, in pertinent part: QUOTES: SBBC anticipates the procurement of bundled classroom solutions with installation. Therefore, SBBC reserves the right to solicit quotes for these solutions at any time during the contract period. The quotes will only be released to awardees of this contract. The models that become components of the solution must be the same models that were awarded as a specific item. However, there is no guarantee that an awardee of a model of a component of the solution will be the awardee of the quote. SBBC is opening competition to all awardees of this contract to offer the best pricing for these solutions. Section 5, Additional Information, Bundled Classroom Solutions includes a form that bidder is to complete and return with the bid. Bidder is to state if it wants to receive quotes, and if it has the capability to provide the necessary licensing and certifications associated with installation and wiring, not to include, high voltage electrical installation. Awardee of the quoted solution will be solely responsible for any issues related to the installation and minimum three [sic] warranty period of the bundle. Additionally, bidder must have an established working relationship with an SBBC awarded high voltage electrical company. This form is a questionnaire that is for informational purposes and will not be considered in determining award. Special Condition 27 provides: BALANCE OF LINE ITEM DISCOUNT (ITEM 39): SBBC encourages all awardees for this item to offer SBBC additional discounts for volume purchases of like items. SBBC reserves the right to release quotes for large catalog volume purchases. Bidders are required to offer a balance of line single, fixed percentage discount for equipment ($1000.00 or greater) and supplies (under $1000.00) off bidders catalog for any Audiovisual, Photographic Equipment and Related Supplies, and Computer Peripherals not itemized on the Bid Summary Sheets. This percent must be stated in the Bid Summary Sheet. An omission from this entry will be considered as a 0% discount offered from catalog. The single fixed percentage discount quoted by bidder shall apply to the catalog list price for all catalog items. This percentage discount does not include the itemized equipment listed on the Bid Summary Sheet. Items excluded from single fixed percentage discount should be listed on a separate piece of paper. These items will be excluded and should not be purchased. In the event a bidder handles catalog items that carry a little or no percentage, this fact shall be taken into consideration and percentages offered shall be a single fixed percentage discount for each category (supplies and equipment) and catalog. Awardees may offer SBBC additional educational discounts at any time and invoice SBBC at a greater discount than their bid discount. According to the Petitioner, bundled solutions have the possibility and the likelihood of exceeding $25,000. If so, the requirement for sealed bids by allowing only quotes would be circumvented. The Respondent seeks to obtain the needed equipment at the lowest possible cost to the School Board. By using the “quotes” procedure it believes it will achieve a lower cost per item purchased. The “quote” procedure to be used does not, however, allow entities not within the “awardee” group to participate. If the purpose of the “quote” is to secure the lowest possible price at a fixed point in time (at a point in time future to the ITB opening), the possible savings available through another entity outside those within the “awardee” class is lost. Further, members of the “awardee” class have no incentive to provide their lowest price for all items bid in response to this ITB.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order amending the specifications challenged to assure that the award of the items will be to a single lowest and best responsible and responsive bidder. The Petitioner’s challenge to the provisions must be sustained as a matter of law. S DONE AND ENTERED this 30th day of October, 2006, in Tallahassee, Leon County, Florida. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2006. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Mitchell D. Adler, Esquire Greenspoon Marder, P.A. Trade Centre South, Suite 700 100 West Cypress Creek Road Fort Lauderdale, Florida 33309-2140
The Issue The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.
Findings Of Fact State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items. Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows: Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project. The prospective bidders were also given this information in the pre-bid meetings. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows: Bidder Total Bid D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500. Rovel Construction, Inc. $1,559,000. Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows: Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work. When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 27th day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Robert A. Hingston, Esquire Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P. 901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134 Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health Miami-Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125 William G. Christopher, Esquire Brown Clark, A Professional Association 1819 Main Street, Suite 1100 Sarasota, Florida 34236
The Issue Whether Petitioner's response to invitation to bid 93C-116T was properly rejected.
Findings Of Fact An invitation to bid (ITB) for a contract to supply and for a contract to install acoustical ceiling tiles were solicited by Respondent on October 26, 1992. Bid proposals were filed by four bidders, one of which was the Petitioner. On November 18, 1992, bids were opened and posted, and it was determined that the apparent low bidders were bidders other than Petitioner. The bid submitted by Petitioner was rejected by Respondent on the grounds that Petitioner failed to sign the anti-collusion statement. Thereafter, Petitioner timely filed its bid protest to challenge the rejection of its bid. On December 16, 1992, an informal bid protest meeting was held which resulted in the issuance of a letter rejecting the informal bid protest. Thereafter, the bid protest was referred to the Division of Administrative Hearings, and this proceeding followed. On the first page of the ITB form used by Respondent, the bidder is to insert its name, address, telephone number, and federal employer identification number (or social security number). The bidder is also required to manually sign an anti-collusion statement and to type or print the name and title of the person who signed the statement. Petitioner failed to execute the anti- collusion statement and it did not furnish the information required by this section of the form. The anti-collusion statement is as follows: ANTI-COLLUSION: the signed bidder certifies that he or she has not divulged, discussed or compared his or her bid with other bidders and has not colluded with any other bidder or parties to a bid whatever. (NOTE: No premiums, rebates or gratuities [are] permitted either with, prior to, or after any delivery of materials. Any such violation will result in the cancellation and/or return of materials (as applicable) and the removal from the bid list(s). Also on the first page of the ITB form used by Respondent are certain "General Conditions, Instructions and Information for Bidders", including the following: EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above [the signature line for the anti-collusion statement]. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. ... Also on the first page of the ITB form used by Respondent is the following: AWARDS: In the best interest of the School Board, the Board reserves the right to ... waive any irregularity in bids received ... All awards made as a result of this bid shall conform to applicable Florida Statutes. After Petitioner's bid was rejected, Petitioner's bid was not further evaluated. The uncontroverted testimony on behalf of Petitioner was that its bid for the installation of the tile would have been the lowest bid had it been evaluated. Respondent's past practice has consistently been to reject bids where the anti-collusion statement is not properly executed by the bidder. The rationale for this practice is to safeguard against collusion among bidders. Petitioner's failure to execute the anti-collusion statement was an oversight on the part of Franklin C. Taylor, Jr., the officer who prepared the response on behalf of the Petitioner. Franklin C. Taylor, Jr., executed the "Drug-Free Workplace Certification" and the "Sworn Statement Pursuant to section 287.133(3)(a), Florida Statutes, On Public Entity Crimes" as required by the ITB and attached both certifications to Petitioner's response. Petitioner asserts that it is ready, willing, and able to perform the contract and that the failure to sign the anti-collusion statement was an error that can now be corrected or that can now be waived as a minor irregularity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which dismisses Petitioner's bid protest. DONE AND ENTERED this 9th day of March, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1993. COPIES FURNISHED: Franklin C. Taylor, Jr. Herbert J. Taylor Custom Ceilings of the Palm Beaches, Inc. Post Office Box 9592 Riveria Beach, Florida 33404 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica C. Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, Suite C 320 West Palm Beach, Florida 33406-5869 Abbey G. Hairston, General Counsel Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C 302 West Palm Beach, Florida 33406-5813
Findings Of Fact Since 1984 Respondent Department of Health and Rehabilitative Services (hereinafter "the Department") has served as the distributing agency for United States Department of Agriculture surplus foods to be distributed to needy people in the State of Florida. These foods are butter, processed cheese, non-fat dry milk, cornmeal, rice, flour, and honey. The Department contracts with companies in the food storage and distribution business-to store the surplus food and distribute it to emergency feeding organizations. The emergency feeding organizations then distribute the food to needy persons. Each year the Department enters into contracts for various regions within the State. Petitioner Wales Industries, Inc. (hereinafter "Wales"), Intervenor Mid-Florida Freezer Warehouses, Ltd. (hereinafter "Mid-Florida"); and Gulf Cargo Services, Inc. (hereinafter "Gulf Cargo"); have all been awarded contracts with the Department over the years for storage and distribution of the surplus foods in the various regions of the State. On or about June 12, 1987, the Department issued an Invitation for Bid (hereinafter "IFB 87-1") which advised prospective bidders that sealed bids would be opened on July 10, 1987 for a contract for the storage and distribution of the surplus foods for the period of October 1, 1987 to September 30, 1988. A bidder under IFB 87-1 would be required to store the above-described commodities in dry, chilled, and frozen storage. The provider must also be able to ship the commodities under dry, chilled, and frozen conditions to emergency feeding organizations throughout the state. The bid evaluation criteria set forth in Paragraph E of IFB 87-1 provide, in part, as follows: c. The bid will be awarded to the Bidder submitting the lowest delivered price per CWT for dry, cold, and frozen donated foods inclusive for each Region, combination of regions, or statewide as bid. The bid price for pick-up at the Provider's warehouse is informational, but is not a consideration in award of the bid. Paragraph numbered eight of the General Conditions of IFB 87-1 notifies actual or prospective bidders who dispute the reasonableness, necessity, or competitiveness of the terms and conditions therein or of the bid selection or contract award recommendation that they must file a protest within the time prescribed in section 120.53(5), Florida Statutes, or be deemed to have waived their right to do so. IFB 87-1 included an estimate of the number of cases and weights of commodities to be handled by a provider per region. This information was characterized as "History of 1986-1987 Cases and Pounds" but this characterization was amended to "Estimates of 1986-1987 Cases and Pounds" by letter of amendment dated June 18, 1987. IFB 87-1 provides elsewhere that these distribution rates are subject to change. By further letter of amendment dated June 23, 1987, the Department notified prospective bidders that bids based upon combinations of regions were acceptable, and revised bid sheets with blanks for the dollar bid for each of the three types of commodities were provided to prospective bidders with the letter of amendment. On June 26; 1987; the Department conducted a bidder's conference for IFB 87-1. Representatives from Wales and Mid-Florida attended the bidder's conference and asked questions of the Department's representatives concerning IFB 87-1. Wales, Mid-Florida, and Gulf Cargo (among others) submitted sealed bids by the deadline at 2:00 p.m., July 10, 1987. Gulf Cargo submitted a bid for Region I only. Wales submitted individual bids for each of Regions I through VI. Mid- Florida submitted individual bids for Regions II through VI and two bids combining various regions except for Region I. Gulf Cargo was awarded a contract for Region I, and Mid-Florida was awarded a contract based on its combined bid for Regions II through VI. The bid awards were announced on July 17, 1987. Wales' notice of intent to file formal written protest is dated July 23, 1987. Wales filed its formal written protest on July 31, 1987. The volume and type of surplus foods distributed through the program is solely dependent upon the commodities made available to the Department by the federal government. There is no guarantee that the State of Florida will receive any particular amount or mix of the commodities distributed through the program. Therefore, the data supplied by the Department to prospective bidders regarding the volume and type of surplus foods to be stored and distributed is based upon actual historical data and is the most accurate data available. Neither IFB 87-1 nor the contracts for previous years under this program guarantee the successful bidder any amount of revenue or any volume of goods to be handled. The method of bid evaluation that was set forth in IFB 87-1, which was emphasized at the bidder's conference, and which was memorialized in the Department's June 29, 1987 listing of questions and answers from the bidder's conference and sent to all prospective bidders was the same the Department would average the bid prices for each type of commodity, i.e., frozen, dry and chilled. The averaging method utilized results in the lowest cost accruing to Use State and actually resulted in a lower bid price for the 1987-88 contracts than the 1986-87 contracts. The actual cost to a provider of storing and transporting frozen, chilled, and dried commodities varies according to the facilities and equipment owned by each prospective bidder. The averaging method utilized by the Department for IFB 87-1 permits bidders to develop competitive bids based upon the bidder's individual costs, storage facilities and equipment; and the bidder's anticipation of the volumes and types of commodities likely to be received from the federal government. The information provided in IFB 87-1 as to drop sites for delivery by the providers was sufficient for prospective bidders to develop competitive bids. The requirement contained in IFB 87-1 that the provider would be responsible for providing off-loading facilities in Dade, Broward, and Duval counties did not prevent the formulation of competitive bids.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is, RECOMMENDED that a Final Order be entered dismissing the bid protest filed by Wales Industries Inc.; awarding the 1987-88 contract for Region I to Gulf Cargo Services, Inc.; and awarding the 1987-88 contract for Regions II-VI to Mid-Florida Freezer Warehouses Ltd. DONE and RECOMMENDED this 14th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3317BID The Department's proposed findings of fact numbered 1-3 and 7 have been adopted either verbatim or in substance in this Recommended Order. However, the Department's proposed findings of fact numbered 4-6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Mid-Florida's proposed findings of fact numbered 1-20 have been adopted either verbatim or in substance in this Recommended Order. Wales' proposed findings of fact numbered 1-4 and 9 have been adopted either verbatim or in substance in this Recommended Order. However, Wales' proposed findings of fact numbered 12-15 have been rejected as being contrary to the evidence in this cause; Wales' proposed finding of fact numbered 16 has been rejected as not being supported by the evidence in this cause; and Wales' proposed findings of fact numbered 5-8, 10, and 11 have been rejected as being subordinate to the issues under consideration herein. COPIES FURNISHED: Sam Powers Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Martin R. Dix Esquire Barnett Bank Building Suite 800 315 South Calhoun Street Tallahassee, Florida 32301 Robert Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32399-0700 Harold T. Bistline Esquire Building 1, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner, J. D. Pirrotta Company (JDP), is a general contracting company located in Orlando, Florida. JDP has bid on projects involving construction of schools or educational facilities, including projects for Valencia Community College. Respondent, District Board of Trustees of Valencia Community College, is the governing body of the community college, with the authority to award contracts. Valencia Community College (VCC), in Bid #90/91-06, advertised for sealed bids for interior remodeling and renovation of existing buildings' modules 3 and 5, on its west campus on South Kirkman Road, in Orlando, Florida. The sealed bids were due at or before 2:30 p.m., on December 13, 1990, in the purchasing department of VCC, 190 South Orlando Avenue, Suite 402B, Orlando, Florida 32801. The Invitation to Bid includes a voluminous project manual containing instructions to bidders, various forms, a standard contract text and detailed specifications. A separate bid packet contains the set of drawings for the construction work. The advertisement of the Invitation to Bid, and Section 00100 of the Project Manual, Instructions to Bidders, paragraph 14A, reserve for the owner the right to reject any or all bids and to waive any and all "informalities". (Respondent's Exhibits #1 and #2) Section 00100, Instructions to Bidders, paragraph 18, provides: 18. SUBCONTRACTORS, ETC. The bidders at bid date shall submit to Owner a list of all subcontractors and other persons and organizations (including those who are to furnish the principal items of material and equipment) proposed for those portions of the work as to which such identification is so required. Such list shall be accompanied by an experience statement with pertinent information as to similar projects and other evidence of qualifications for each such subcontractor, person and organization if requested by Owner. If Owner, after due investigation has reasonable objection of any proposed subcontractor, other person or organization either may, before giving the Notice of Award, request the apparent successful bidder to submit an acceptable substitute without an increase in bid price. If the apparent successful bidder declines to make any such substitution, the contract shall not be awarded to such bidder, but his declining to make any such substitution will not constitute grounds for sacrificing his bid security. A subcontractor, other person or organization so listed and to whom Owner does not make written objection prior to the giving of the Notice of Award, will deemed acceptable to Owner. Should the subcontractors list be revised, for any reason, architect and Owner shall be immediately notified. (Respondent's Exhibit #2) Paragraph 9, Section 00300, the bid form, provides: The following documents are attached to and made a condition of the Bid: Required Bid Security in the form of a Bid Bond. A tabulation of subcontractors and other persons and organizations required to be identified in this Bid. Required Bidders Qualification Statement with supporting data. (Respondent's Exhibit #2) Section 00700, the Public Entity Crimes statement form, includes these instructions: Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy/copies of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. (Respondent's Exhibit #2) The Instructions to Bidders and the drawings include a total of ten deductive alternatives to be addressed in the bids, to afford VCC some flexibility in the event the base bid might be higher than the agency's available funds. In response to the advertisement and request for sealed bids, VCC received bids from the following seven contractors: Seacoast Constructors and Consultants; JDP; Southland Construction, Inc.; Harbco, Inc.; Technical Design Systems, Inc.; Hembree Construction, Inc.; and Waltree Construction, Inc. The bids were opened publicly and read aloud beginning shortly after the submittal deadline on December 13, 1990. Jack C. Crawford, Vice-President for Administrative Services, and Stephen Richard Childress, Purchasing Manager, participated in the bid opening on behalf of VCC. Seacoast Constructors was the lowest bidder, at $1,274,000.00, base bid; JDP was the second lowest bidder, at $1,297,000.00, base bid. None of the bidders submitted bids containing all of the requested or required information. None of the bidders included a deduct alternative requested by Drawing E-10, General Notes number 2. Only JDP included the deduct alternative requested by Drawing E-6, General Notes number 2. Seacoast Constructors and Consultants failed to include Form PUR 7068, Public Entity Crimes statement, with their bid, but it executed and submitted the form to VCC on December 13th, the date of the opening. Two of the bidders, JDP and Harbco, failed to submit subcontractor lists with their bids. At the time of hearing, JDP had still not submitted its list. For this project the low base bid is within VCC's available funds, and it does not intend to rely on any of the deduct alternatives in the bids. Following the bid opening, the bid tabulation form was posted on a bulletin board in the administration building. A copy of the tabulation form was also placed in a folder which includes recommendations on other bids and which is maintained at the desk of the security guard outside the room where the bids are opened. Inside the front cover of the folder, in the bottom left hand corner, is a small typewritten statement: Failure to file a protest within the time described in S. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. There is no evidence of any other notice of section 120.53, F.S. remedies to bidders, including in the advertisement or in instructions to bidders. JDP filed a written bid protest in a letter dated December 13, 1990 and received on December 14, 1990. The letter clearly states that it is a formal protest, pursuant to Section 120.53(5), F.S. It argues that bids submitted by Seacoast Constructors and others were unresponsive and should be rejected for failure to include the Public Entity Crimes Statement, for failure to bid on a deduct alternative, and for other reasons (immaterial, because they apply to higher bidders). The protest letter requested award to JDP. JDP met with representatives of VCC to attempt to resolve the protest. At the meeting, Joseph Pirrotta was informed that his bid was considered nonresponsive because it failed to include a subcontractors' list. The meeting did not resolve the matter, and on December 19, 1990, Joseph Pirrotta sent a follow-up letter arguing that the text of the bid instructions only require a subcontractors' list for "...portions of the work as to which such identification is so required", and nowhere in the bid packet was any reference to which were required. JDP considered that the subcontractors' list was, therefore, unnecessary. The December 19th letter also reiterated JDP's request to reject the other bids and to award the contract to JDP. The December 13th and 19th letters are the only written protests by JDP. VCC has previously awarded contracts to bidders who failed to submit a Public Entity Crimes Statement with their bid. It considers such failure an "informality" subject to waiver. It considers failure to submit a list of subcontractors an economic advantage with respect to other bidders. Representatives of VCC have recommended to its board that the contract be awarded to Seacoast Constructors, the lowest bidder.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the District Board of Trustees of Valencia Community College enter its final order awarding the contract in Bid #90/91-06 to Seacoast Constructors and Consultant, and rejecting the protest of J.D. Pirrotta Company. DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991. COPIES FURNISHED: Leslie King O'Neal, Esquire P.O. Drawer 1991 Orlando, FL 32802 Jeffrey S. Craigmile, Esquire Brian P. Kirwan, Esquire 390 N. Orange Ave., Ste. 2180 Orlando, FL 32801 Jack C. Crawford Vice President Administrative Services Valencia Community College P.O. Box 3028 Orlando, FL 32802
The Issue Whether Miami-Dade Community College (hereinafter referred to as the "College") should sustain Petitioner's challenge to the Evaluation Committee's recommendation to award the contract advertised in Request for Proposal 956-34 ("Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus") to Intervenor, as the proposer submitting the proposal considered to be "in the best interest of the College?"
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The College offers an academic program of flight instruction to its students. Such instruction is provided by independent contractors under contract with the College. Petitioner, a Florida corporation, provided such instruction from January 1, 1992, to December 31, 1995, pursuant to an agreement with the College that was executed on November 26, 1991, and amended July 28, 1995. 1/ Through Request for Proposal 956-34, entitled "Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus" (hereinafter referred to as the "RFP"), the College requested the submission of proposals from prospective providers interested in providing students of the College with flight training instruction at Kendall-Tamiami Executive Airport. The College's Director of Purchasing, Linda Pagliaro, sent the following letter to prospective providers along with the RFP: The College is accepting proposals from flight training providers to provide flight training instruction to students of Miami- Dade Community Colleges's Aviation Program. This proposal shall be submitted on the form(s) which are included in this package and returned in the enclosed envelope. The College shall evaluate all proposals submitted and shall award the contract for the proposal which the College determines to be in its best interest. The completed proposal shall be submitted to the Purchasing Dept., Room 9254, Miami-Dade Community College, 11011 S.W. 104 Street, Miami, FL 33176, before opening time of 3:00 p.m. on October 26, 1995. Proposals received after this opening time will be returned to the vendor unopened. Vendors may attend a pre-proposal conference, to be held October 17, 1995, at 9:00 a.m., at the Kendall Campus, 11011 S.W. 104 Street, Room 9254, Miami, Florida. The College reserves the right to accept any proposal deemed to be in the best interest of the College, to waive any irregularities in any proposal, and may reject any and all proposals. Any questions regarding this proposal may be directed to Mr. Edward Vasquez, Buyer, at (305) 237-2231. The College's "intent" in issuing the RFP was explained as follows in Section 1.0 of the RFP: The intent of this Request for Proposal is to obtain an agreement with a flight training provider to provide flight training instruction at the Kendall-Tamiami Executive Airport for students of Miami-Dade Community College. Provider must currently at at least one location possess a FAAR Section 141 Pilot School Certifi- cate for Flight and Ground (see Section 7.4.4). The term of the Contract shall be for an initial period of two years. By written agreement of the parties, the agreement may be extended for three additional one year terms. Flight training providers may propose service for Kendall-Tamiami Executive Airport only. Another provider has already been recom- mended to provide service at Opa-Locka Airport. It is anticipated that approximately 75 percent of the flight training hours will be flown from Kendall-Tamiami Executive Airport. The successful proposer shall enter into an agreement acceptable to the College to provide Flight Training Instruction for Miami-Dade Community College Students "Contract," the minimum terms of which are incorporated into this Request for Proposal document. (see Section 7.0.) Section 3.0 of the RFP informed prospective providers that they had the opportunity (but were not required) to attend a pre- proposal conference at which they would be able to "ask questions regarding the College's requirements as contained in this Request for Proposal." Section 4.0 described, as follows, the "required information" that had to be provided to the College: Vendors submitting proposals must completely fill in all information requested on the attached PROPOSAL COVER SHEET (ATTACHMENT "A"). Vendors submitting proposals must completely fill in all information requested on the attached PROPOSAL SCHEDULE OF FEES (ATTACHMENT "B"). Providers submitting proposals must supply a brief history of the firm/organization submitting the proposal. This history should include: How long the company has been in business under the present management/ownership. Identity and background of the principals, including the position/title of each principal. Current number of employees. Certification(s) currently held by proposer. List and attach copies. Description and location of all current facilities operated by proposer. List of at least five customers, preferably public or governmental organizations, for which you have provided a similar service. List must include reference name, address, telephone number, contact person, and a description of the service provided. In addition, the College reserves the right to contact current or former customers of the proposer not provided as part of the proposal. Label this part of the proposal Response to Section 4.3. Providers submitting proposals must supply a list of all aircraft which will be made available for performance of the Contract. This list must include the make, model number and equipment included in each aircraft proposed. The Provider should also indicate if the aircraft is leased or owned and the age of the aircraft. Label this part of the proposal Response to Section 4.4. Proposers submitting proposals must supply a narrative description of the flight training program proposed for each location. This descrip- tion must include: Number of flight training instructors and other personnel (by category) available for per- formance of the contract, including re[l]e[v]ant experience, certificates, qualifications and ratings held. Proposed facilities to be made available for performance of the contract, including maintenance and repair facilities, classrooms and offices. Description of the intended flight training curriculum for the four courses indicated in Attachment "B." The description of the flight training curriculum must include, but is not limited to, course outlines or training stages, lesson objectives, and evaluation criteria. The College prefers the Jeppesin Sanderson ground and flight training curriculum. If the provider intends to use the Jeppesin Sanderson curriculum, only a brief statement of that fact is necessary. Label this part of the proposal Response to Section 4.5. Providers submitting proposals must provide a narrative description of their safety record, including a list of all safety violations, incidents/accidents, fines, penalties, investi- gations, suits, claims and judgments, which have occurred during the last three years, or which are pending. Label this part of the proposal Response to Section 4.6. Providers submitting proposals must supply a financial statement audited by a public accountant certified by the State of Florida, or by the provider's financial officer, for the most recent fiscal or calendar year. Label this part of the proposal Response to Section 4.7. In addition to the required information noted in Sections 4.1 through 4.7, providers submitting proposals may include any additional information which may be helpful to the College in analyzing the vendor[']s ability to provide the service described in the Request for Proposal documents. Label this part of the proposal Response to Section 4.8. Section 5.3 of the RFP established 3:00 p.m. on October 26, 1995, as the deadline for the submission of responses to the RFP. Sections 5.4 and 5.5 discussed the subject of prospective providers' questions concerning the RFP. These sections of the RFP provided as follows: Any questions concerning this Request for Proposal shall be directed to Mr. Edward Vasquez, (305) 237-2231, and not to any other person or department at the College. Contacting other members of the Evaluation Committee will result in vendor disqualification. The Purchasing Department will determine whether an addendum should be issued as a result of any questions or other matters raised. If issued, the addendum will be incorporated into the Request for Proposal and will become part of the purchase agreement. The last date for vendors to submit written questions relative to this Request for Proposal will be October 18, 1995, (see Tentative Time Schedule). Questions must be received in the Purchasing Department by 3:00 p.m. and shall be sent to Mr. Edward Vasquez. Questions may also be submitted via facsimile machine, (305) 237-2895. Section 6.0 of the RFP described the proposal evaluation and recommendation process. It provided as follows: An Evaluation Committee will review and evaluate all proposals received and will recommend award to the provider(s) whose proposal is considered to be in the best interest of the College. Providers may be asked to meet with members of the Evaluation Committee for the purpose of clarifying or expanding upon any information contained in their proposal. In addition, the Evaluation Committee may require a visit to the proposer's current place of business for the purpose of observing the business operation, specifically as it relates to the proposed aircraft and maintenance facilities. The College reserves the right to accept any proposal deemed to be in the best interest of the College, to waive any irregularities in any proposal, and to reject any all proposals. The criteria to be used for evaluation shall include the following (not necessarily in order of importance): 2/ Cost Vendor Experience Available Aircraft Proposed Training Program Vendor Safety Record Vendor Financial Condition 3/ Notices of decision or intended decision to recommend or reject proposals shall be posted in the Purchasing Department on November 3, 1995. In the event that an unsuccessful bidder desires to protest the College's notice of intended decision to award or reject proposals, the adversely affected bidder shall be required to comply with Miami-Dade Community College Bid Protest Procedures, a copy of which is available from the Purchasing Department, including, without limitations, filing a notice of protest with the Director of Purchasing in writing within seventy-two (72) hours after the posting or, in the case of a mailing or hand delivery, within 72 hours after receipt of the notice of intended decision, and filing a formal written protest within 10 calendar days after the date the notice of protest is filed. Failure to file a protest within the time prescribed herein, which complies with Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. According to Section 2.1 of the RFP, the "[e]valuation of [p]roposals" would take place "October 27-November 2, 1995." Article I of the College's Bid Protest Procedures for Purchasing Department (which procedures were referenced in Section 6.5 of the RFP) addresses the subject of "protest of invitations to bid and requests for proposal." It provides as follows: All bidders and proposers are required thoroughly to review invitations to bids and requests for proposals ("RFP's") within a reasonable time after receipt. Any concerns or comments relating to the bidding or RFP documents shall be brought to the attention of the Director of Purchasing, Miami-Dade Community College (the "College"), or a designated person in the Purchasing Department, in writing promptly after receipt; provided, however, that should the bidder or proposer desire to protest the bid solicitation or RFP, or any of the bidding or RFP documents, including without limitation, the specifications, requirements or procedures thereof, the bidder or proposer shall (i) file a Protest Notice (in accordance with Article III of these Procedures) with the Director of Purchasing of the College, within 72 hours after the initial date (set forth in the public advertisement by the Board) in which the bidding or RFP documents, as the case may be, shall be made available to the bidders or proposers, or, in the case where the bidding or RFP documents are mailed to the bidders or proposers, within 72 hours after the bidding or RFP documents are received by the applicable bidder or proposer (provided that in the case where such documents are mailed, failure to receive such documents shall not be cause for rejection of all bids or proposals and rebidding); and (ii) file a Formal Protest (in accordance with Article III of these Procedures) with the Director of Purchasing of the College within 10 days after the date the Protest Notice is filed. The failure to comply with the foregoing procedures shall be a waiver by the bidder or proposer of any right to later protest on the basis of the form, content and substance, including without limitation, the specifications, requirements or procedures, of the bidding or RFP documents. For the purposes of the procedures contained herein, the capitalized term "Bidder" shall refer to a bidder or proposer and the capitalized term "Bid" shall refer to a bid or proposal as applicable. Article III of the College's Bid Protest Procedures sets forth "bid protest filing requirements." Section 3.1 of Article III provides as follows: Any bidder adversely affected by the decision or intended decision to award, recommend or reject Bids of the College shall file a notice of protest (the "Protest Notice") in writing with the Director of Purchasing of the College, within seventy-two (72) hours after the posting of the Bid tabulation or receipt of written notice of the intended decision (if such written notice is given), and shall file a formal written protest (the "Formal Protest") with such person within ten (10) calendar days after the date the Protest Notice was filed. The failure to file a Protest Notice or failure to file a Formal Protest within the time periods specified above shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Section 3.2 of Article III provides as follows: Except as otherwise expressly provided herein, in calculating time periods if the last day of the period is a Saturday, Sunday or legal holiday (as designated in Section 110.117, Florida Statutes) or any other day on which the College is closed, the period will run until the close of business on the next day which is not a Saturday, Sunday, legal holiday or on which the College is open for business. A Protest Notice or Formal Protest which is not received within the time periods specified in this Article III shall not be valid, and the failure to so file a Protest Notice and/or Formal Protest in accordance with these time periods shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Section 3.3 of Article III provides as follows: A Protest Notice or Formal Protest shall be effective and deemed filed upon receipt by the Director of Purchasing of the College. Accordingly, a Notice of Protest or Formal Protest is not valid and shall not be considered unless it is received by such a person within the times specified in Section 3.1 above. Section 3.5 of Article III prescribes the contents of a Protest Notice. It provides as follows: A Protest Notice shall at least contain the following information: (i) the Project Number or other Bid identification and a brief descrip- tion of the Bid solicitation involved, (ii) the protesting Bidder's name, address and telephone number, (iii) the name of the authorized repre- sentative of the protesting Bidder to whom all communications should be directed, and (iv) a brief factual summary of the bases for the protest. Section 3.6 of Article III prescribes the contents of a Formal Protest. It provides as follows: A Formal Protest shall state with particularity the facts and law upon which the protest is based and shall contain the following information: (i) the Project Number or other Bid identification and a brief description of the Bid solicitation involved, (ii) a clear and comprehensive statement explaining the grounds for the protest, (iii) the applicable statutes, rules, regulations and other legal authority supporting the protest, and (iv) the relief sought by the protesting Bidder. Section 4.1 of Article III provides that "[w]ithin seven (7) calendar days following receipt of the Formal Protest (excluding Saturdays, Sundays, legal holidays or days [o]n which the College is closed), the College shall provide an opportunity to resolve the protest by mutual agreement between the parties." Section 4.3 of Article III provides that "[w]hen a protest cannot be resolved by mutual agreement in accordance with the provisions of Section 4.1 above within such 7-day period and if there is a disputed issue of material fact, then the matter shall be referred to the Florida Department of Administration, Division of Administrative Hearings, 4/ for formal proceedings in accordance with Section 120.57(1), Florida Statutes, and Chapter 22I-6 [now Chapter 60Q-2] and 28, Florida Administrative Code, unless the parties agree by written stipulation to resolve the dispute by informal proceedings as provided herein." The pre-proposal conference referenced in Section 3.0 of the RFP was held, as scheduled, on October 17, 1995. Petitioner sent a representative to the conference. Intervenor did not. At the conference, Petitioner's representative, Juan Naranjo, delivered a letter from Petitioner's President and sole shareholder, Thomas Shaffer, to the College's contact person (as designated in Sections 5.4 and 5.5 of the RFP), Edward Vasquez. The letter read as follows: After a thorough review of the aforementioned RFP, we hereby submit the following requests for modification and clarification of the terms contained therein: Section 7.3.1.1.8(d) Not all Silver Express Flight Instructors are "employees" as defined by the Internal Revenue Service. Some are employed as independent contractors. Section 7.3.1.1.8(f) Not all Flight Instructors have an Associate's Degree. Section 7.3.1.1.9(a) and (g) Mike Smithers, Chief Instructor of Silver Express does not have either an ATP rating, or an Associate's Degree. Section 7.3.1.2.1(a), (iii) Although appendix C(7) requests the number or percentage of aircraft to incorporate an ADF receiver, the above referenced section specifies that all aircraft shall contain an ADF. Nine of our 14 aircraft are so equipped. Section 7.3.3.1(a) Silver Express is insured for $1,000,000.00 under our commercial lines policy and $1,000,000.00/ $100,000.00 per seat for the aircraft liability. The coverage you request is not available to the company. Section 7.5.2 Include cost of living increases; and Silver Express offers aircraft that fall outside of the fee schedule as set forth in Appendix D. Should a student choose to fly one of the more expensive aircraft, the Board will not deny payment of invoices for such services. Section 7.5.2.1 Clarify (duplication of records). Specifically list the software and equipment required. Include as Section 7.5.2.2 The Board shall provide Contractor with real time access to Student account balances via electronic link on a seven day per week basis. If you have any questions, please feel free to call. Shaffer arrived at the conference site as the conference was ending. He did not sign the conference sign-in sheet. After the conference, Shaffer met with Vasquez, at Vasquez's invitation, to discuss in detail the contents of the letter Nananjo had delivered earlier that day on Shaffer's behalf. At the end of the meeting, Vasquez suggested that Shaffer include in Petitioner's proposal the issues raised in the letter. Four prospective providers submitted proposals in response to the RFP: Avionics Parts and Service Corporation (hereinafter referred to as "Avionics"); 5/ Florida Institute of Technology (hereinafter referred to as "FIT"); Petitioner; and Intervenor. 6/ On the "proposal cover sheet" ("Attachment A"), which was referenced in Section 4.1 of the RFP, Intervenor indicated that the "legal name of the entity" submitting its proposal was "Husta International Aviation, Inc." In its response to Section 4.3a. of the RFP, Intervenor stated the following in its proposal: The Joe Husta Aircraft Corporation was formed in September 1986. Later on the company was renamed Husta Aviation, Inc. Due to the relocation from Kendall Tamiami Executive Airport to the Opa Locka Airport on May 8, 1995, the company is now known as Husta International Aviation. The flight school and charter service are currently doing business as Husta Aviation, Inc. The entire time the company has been owned by Joseph Husta. In its response to Section 4.3d. of the RFP, Intervenor stated the following in its proposal: Currently Husta International Aviation holds a Part 135 charter certificate and a Part 141 Flight school certificate. Photocopies of these certificates are contained in the back of this section. The Part 141 certificate to which Intervenor referred in its response to Section 4.3d. of the RFP (Certificate Number MNLS307B) was actually issued to Joe Husta Aircraft Corporation, the entity which, according to Intervenor's response to Section 4.3a. of the RFP, was later renamed Husta Aviation, Inc. Husta International Aviation, Inc., and Husta Aviation, Inc., are now, and were at the time Intervenor submitted its proposal, separate and distinct corporate entities. 7/ The two corporations are "in the process" of merging, but the merger has not yet been finalized. On November 20, 1995, Certificate Number MNLS307B was reissued to Intervenor in anticipation of the merger. In its response to Section 4.3e. of the RFP, Intervenor stated the following in its proposal: The facilities currently in use by Husta Inter- national Aviation at our Kendall-Tamiami Executive facility located at 14160 S.W. 129th Street, Miami, Florida 33186, include an establishment of approximately 1440 square feet. The facilities are located at the departure end of runway 9R, immediately next to the United States Customs office. This allows quick access to the runway, meaning shorter taxi times for students. There are four private briefing areas, in addition to a large lounge and dining areas. Maintenance will be available on an on call basis from our Opa Locka based maintenance staff. (Intervenor made this very same statement in its response to Section 4.5B. of the RFP.) The "establishment" at Kendall-Tamiami Executive Airport referred to in Intervenor's response to Section 4.3e. of the RFP was leased from Metro-Dade County by Husta Aviation, Inc., not by Intervenor. In its response to Section 4.3f. of the RFP, Intervenor stated, in pertinent part, the following in its proposal: f. List of Customers . . . 5. Universidad Aerovias Contact: Ricardo H. Schoer Diestal, Flight School Director AV Tahel Esq. Ruiz Cortines S/N Col Pensador Mexicano 15520 Mexico, D.F. Miami phone (305)362-1493 From January 1993 through August 1994, Husta Aviation provided Initial, Instrument, Commercial, and Multiengine Instruction to over 100 University of Mexico Graduates. The instruction to which Intervenor referred in its response to Section 4.3f. of the RFP was actually provided to students from Aeromexico. The instruction was provided at the Universidad Aerovias. In its response to Section 4.6 of the RFP, Intervenor stated the following in its proposal: During the past three years at Husta Aviation, Inc., there has been only one safety related incident. On July 15, 1994, an Universidad Aerovias student pilot, during a crosswind landing, hit the wingtip on a C-152. The total damage to the aircraft was less than $12,000. During the last three years at Husta Aviation, Inc., there have been no other safety violations, incidents/accidents, fines, penalties, investiga- tions, suits, claims, and judgments levied against Husta Aviation, Inc. In its response to Section 4.7 of the RFP, Intervenor provided, as part of its proposal, a Statement of Operations (including revenue and costs, as well as expenses) for the period from May 8, 1995 through August 31, 1995, of the Husta Aviation Flight School, and a Balance Sheet reflecting the assets and liabilities of the Husta Aviation Flight School as of August 31, 1995. These documents were prepared, but not certified, by Intervenor's chief financial officer. Petitioner, in its response to Section 4.7 of the RFP, advised the College of the following: Audited financial statements are unavailable for the fiscal year ending May 31, 1995. The enclosed statements are uncorrected and intended to be used as a reference only. In its response to 4.8 of the RFP, Intervenor stated the following in its proposal:
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the College enter a final order dismissing, for lack of standing, Petitioner's protest of the Evaluation Committee's recommendation that the contract advertised in Request for Proposal 956-34 be awarded to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of February, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1996.
