The Issue The issue in this case is whether a contract on Florida Department of Law Enforcement Bid No. B-904 should be awarded to Petitioner, E. L. Cole Photography, Inc., as the only responsive bidder.
Findings Of Fact Respondent, the Florida Department of Law Enforcement (hereinafter referred to as the "Department"), issued an Invitation to Bid (hereinafter referred to as the "ITB"), designated Bid No. B-904, on May 5,1999. The ITB requested bids on photographic film and paper for use by is crime laboratories. No challenges to the specifications of the ITB were filed. Seventy-nine items of photographic film and paper were listed in the ITB. Bidders were requested to provide a unit price for each item. Bidders were also requested to provide a total price for the Department's amount of film and paper it estimated its laboratories would use. There was not a minimum or maximum amount the Department could purchase under the contact. The total quantities listed in the ITB were estimates only. The successful bidder was required to provide the items listed in the ITB for the costs listed in the winning bid for any amount of the items purchased by the Department. One of the 79 items for which bids were requested in the ITB was duplicated. The item was Catalog Number 171-6042, Kodak C.P.O. [contrast process ortho film] 4/5 (100sht/pkg) (hereinafter referred to as the "Duplicated Item"). The Duplicated Item was listed as item 3 on numbered page 10 and as item 16 on numbered page 12 of the ITM. On page 10, item 3 was listed as Catalog #171-6042 and a Description of Kodak C.P.O. 4X5 (100sht/pkg). The Estimated Quantity was 470 pkg. On page 12, item 16 was listed as Catalog #171-6042 and a Description of Contrast Process Ortho Film 100/4X5. The Estimated Quantity was 75 bx. The duplication was the result of a response to a 1996 ITB, Bid No. B-843 (hereinafter referred to as the 1996 ITB). In the 1996 ITB the Department had listed items similar to those listed in the instant ITB. The Duplicated Item was correctly described in one location in the 1996 ITB, but was also incorrectly described in the 1996 ITB. A bidder corrected the description in its response. This correction caused the Duplicated Item to be listed in two locations. When the ITB was prepared, the Department used the same list of items it had used in the 1996 ITB, as corrected. The Department failed to discover the Duplicated Item. The ITB included General Conditions used in most, if not all, invitations to bid. The ITB also included specific conditions. Among the specific conditions the ITB included the following: BID EVALUATION There are two (2) biddable categories for photographic supplies in this Invitation to Bid that are separated into Attachment "A" - Film, Black & White and Color and Attachment "B" - Paper, Black & White and Color. Vendors may bid on either one or both of the attachments, but vendors are to price the attachments separately. Vendors must price all the items listed on the attachment(s) unless there is a duplication of an item or, an item has been discontinued by the manufacturer. Bidder must indicate that information by entering "DISCONTINUED" or "DUPLICATION" by that item on the appropriate attachment(s). All items marked "Discontinued" will be verified. Bids which do not meet the requirements specified in this Invitation to Bid will be considered non- responsive. Responsive bids meeting the mandatory requirements will be evaluated. [Emphasis in original]. Another specific condition included in the ITB is titled "Mandatory Requirement." The Mandatory Requirement condition provides the following: The us of "shall", "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. The Mandatory Requirement condition also provides that "[m]aterial deviations can not be waived." A "material deviation" is defined as follows: A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the Invitation to Bid requirements, provides an advantage to one bidder over the quantity or quality of items bid, or on the cost to the State. . . . Several bids were received in response to the ITB. The bids were opened on June 15, 1999. Eddie L. Cole, majority stockholder of Petitioner, E. L. Cole Photography, Inc. (hereinafter referred to as "Cole Photography"), attended the opening. Seven bids were determined to be responsive, including Cole Photography and Mardel Enterprises, Inc. (hereinafter referred to as Mardel"). Cole Photography and Mardel are minority business enterprises. Pursuant to the ITB, minority business enterprises were entitled to a ten percent price preference. Cole Photography's and Mardel's bids were, therefore, reduced by ten percent before determining the lowest bid on the ITB. Initially the Department made adjustments to all of the responsive bids based upon "discrepancies" between the items listed in the ITB by the Department and the products actually available. The bid tabulation on the ITB was posted by the Department between July 6 and July 9, 1999. Mardel was determined to be the lowest bidder after the ten percent minority business enterprise preference was applied. Cole Photography protested this determination. Following Cole Photography's protest, the Department recalculated the responses to the ITB. Items previously excluded by the Department in its tabulation were included in the recalculation. The inclusion of those items in the recalculation are not at issue in this proceeding. In addition to including the previously excluded items, however, the Department also excluded the double inclusion of the Duplicated Item. Mardel had bid a unit price of $106.03 per package for the estimated quantity of 470 pkg for item 3 on page 10 of the ITB. The total price bid by Mardel was $49,834.10. Cole Photography bid a unit price of $102.15 for item 3 on page 10. The total price bid by Cole Photography was $48,010.50. Mardel bid a unit price of $106.03 per box for the estimated quantity of 75 boxes for item 16 on page 12 of the ITB. The total price bid by Mardel was $7,952.25. Mardel failed to indicate that item 16 on page 12 of the ITB was a duplication as required by the specific conditions of the ITB. Cole marked item 16 on page 12 as "Duplication." In its recalculation of the bid submittals, the Department excluded the $7,952.25 bid for item 16 on page 12 of the ITB submitted by Mardel. No adjustment of Cole Photography's bid was necessary. Mardel's total bid before the reduction for the Duplicated Item was $349,448.75. Cole Photography's total bid was $343,063.40. After the reduction for the Duplicated Item, Mardel's bid was $341,496.50. After the reduction for the ten percent minority business enterprise preference, Mardel's bid was $310,362.21 and Cole Photography's bid was $311,929.11. The Department indicated its intent to award the contract on the ITB to Mardel. Cole Photography was third lowest bidder. Mardel's bid on the Duplicated Item has no impact on the ultimate amount of costs the Department may incur as a result of awarding a contract on the ITB, since Mardel bid the same unit price for Item 3 on page 10 and Item 16 on page 12. Therefore, the Department may purchase any amount of the item for the unit price bid by Mardel. If Cole Photography had been the lowest bidder, the Department would have been able to purchase any amount of the Duplicated Item for the unit price Cole Photography bid. Including Mardel's two bids on the Duplicated Item results in an arbitrarily inflated bid. The failure of all of the responsive bidders except Cole Photography to indicate that the Duplicated Item constituted a duplication on the ITB as required in the specific conditions was a "deviation" from the ITB's requirements. Even with this deviation, the responsive bids are still "in substantial accord with the Invitation to Bid requirements," and they do not provide "an advantage to one bidder over the quantity or quality of items bid, or on the cost to the State." Therefore, the failure to indicate that the failure to note the Duplicated Item does not constitute a "material deviation" as defined in the ITB. Both parties have filed Motions for Costs and Charges in this case pursuant to Section 287.042(2)(c), Florida Statutes. Cole Photography has incurred costs, excluding attorney's fees, in the amount of $264.15. The Department has incurred costs, excluding attorney's fees, in the amount of $51.40.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Law Enforcement finding that E. L. Cole Photography, Inc., failed to prove that the decision of the Department finding that Mardel Enterprises, Inc., submitted the lowest responsive bid to the ITB was "clearly erroneous, contrary to competition, arbitrary, or capricious" and dismissing the bid protest of E. L. Photography, Inc. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 9th day of November, 1999. COPIES FURNISHED: Sherwood S. Coleman, Esquire Kwall, Showers, and Coleman, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 John P. Booth, Assistant General Counsel Karen Simmons, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1498 Tallahassee, Florida 32302-1489 James T. Moore, Commissoner Florida Department of Law Enforcement Post Office box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Respondent should have qualified Petitioner's proposed television production for Florida's 2005/2006 Entertainment Industry Financial Incentive pursuant to the requirements of Section 288.1254, Florida Statutes (2005).
Findings Of Fact In 2003, the Legislature created Respondent within the Office of the Governor, Office of Tourism, Trade and Economic Development (OTTED). Since that time, Respondent has administered an entertainment industry financial incentive program (the incentive program) subject to specific appropriation. The purpose of the program in part is to encourage the use of Florida as a site for filming and providing production services for motion pictures, made-for-television movies, commercials, and television programs. For fiscal year 2004/2005, the Legislature appropriated $2.45 million for the incentive program. The Legislature set aside $10 million for the incentive program in fiscal year 2005/2006. Petitioner is a Delaware corporation, which is based in Weddington, North Carolina. The corporation has no assets. Ban Mandell is Petitioner's president and only identified corporate officer. Mr. Mandell does not know if the corporation has issued any shares of stock. Since 1996, Petitioner has been the production company for the "The New Home Show" (show/series), which has aired several series on the Public Broadcasting System (PBS) through its sponsor television station, PBS Station WTVI, in Charlotte, North Carolina. The concept of the show is to begin with a vacant lot, to film the construction of a house by licensed builders and tradesmen, and to complete the project with a fully furnished home. In addition to Station WTVI, other sponsors have provided products to Petitioner to use in the construction of houses for prior shows. For example, Owens Corning underwrote a series in Tennessee for an 8,000 square-foot Owens Corning Systems Thinking Home. Additionally PBS underwriters have provided funds to produce shows in the past. Each show or series is a unique production. The filming does not take place on a traditional set, studio, or backlot. Instead, Petitioner films all scenes on location at the construction site. If the project demonstrates how to tile a bathroom, filming takes place during the actual performance of the work by tradesmen, providing the viewer with an understanding of the whole process. It takes longer to film a series than traditional television programs. Filming cannot take place every day because it is ongoing throughout the construction process. It took Petitioner 18 months to film its most recent project. Petitioner's first show was in 1996. The show consisted of 18 episodes about the construction of one home, the "Wedge Plantation," in North Carolina. Mr. Mandell personally advanced some of the money to finance the construction of the house. He and his family now live in the home. In 1997, Petitioner filmed eight episodes in Tennessee about the construction of a home for Owens Corning. This house was sold after its completion. In 1999 and 2000, Petitioner videotaped the construction of two houses in Lake Park, North Carolina. Petitioner filmed 18 episodes about a Victorian home called South Port, and eight episodes about a home called the Empty Nester. In 2004 and 2005, Petitioner filmed eight episodes about the construction of a golf course house in North Carolina. The series about the golf course house is complete except for editing. Excluding the series about the golf course house, Station WTVI has aired the first three series of completed projects. PBS makes each completed series available for distribution nationally by other PBS-member stations that want to include the shows in their programming. Pursuant to a contract between Station WTVI and Petitioner, Station WTVI must be identified as a co-producer on all shows that it sponsors. Station WTVI also requires that all monies from any source that are used to pay for the projects be paid directly to the station. Station WTVI receives and disperses all funds and ensures that all contributors receive the appropriate acknowledgement. Sometime in early June 2005, Respondent notified interested filmmakers regarding policies and procedures that OTTED adopted for the 2005/2006 incentive program. A letter dated June 1, 2005, stated as follows in relevant part: . . . Before you submit the appropriate application, . . . there are a few important things about the process that you must be aware of. The policies and procedures in the following document are the only official policies adopted by the State of Florida pertaining to the Entertainment Industry Financial Incentive Program. There are NO other persons, agents, organizations, financial institutions or businesses who in any way represent the policies of the State of Florida regarding the details of the Entertainment Industry Financial Incentive Program. In an effort to adhere to the new laws pertaining to this incentive and application process, we will only accept completed applications via Federal Express or U.S. Certified Mail. Any other form of delivery will not be accepted and your application will be returned. No applications will be accepted if they are postmarked before June 13, 2005. Applications received before this time and date will be returned. * * * 5. These policies and procedures, along with the application process, are contingent upon House Bill 1129 being signed into law by the Governor. Respondent's 2005 policies and procedures include the following pertinent provisions: POLICIES AND PROCEDURES Definitions: * * * Principal Photography--The phase in production in which all of the moving images are photographed and recorded according to the instructions of the screenplay in preparation for later editorial cutting and assembly. Production Costs--The costs of real, tangible, and intangible property used and services performed in the production, including preproduction and postproduction, of qualified filmed entertainment. Production costs generally include, but are not limited to: Wages, salaries, or other compensation for technical and production crews, directors, producers, and performers who are residents of this state. Expenditures for sound stages, backlots, production editing, digital effects, sound recordings, sets, and set construction. Expenditures for rental equipment, including, but not limited to, cameras and grip or electrical equipment. Expenditures for meals, travel, accommodations, and goods used in producing filmed entertainment that is located and doing business in this state. Qualified Expenditures--Production costs for goods purchased or leased or services purchased, leased, or employed from a resident of this state or a vendor or supplier who is located and doing business in this state, but excluding wages, salaries, or other compensation paid to the two highest-paid employees. Qualified Production--. . . [A] production is not a qualified production if it is determined that the first day of principal photography in this state occurred prior to certification by the Office of Tourism, Trade, and Economic Development (OTTED). * * * The Application Procedure: Qualified Production: Any company engaged in this state in producing filmed entertainment may submit an application to the OFE for the purpose of determining qualification for receipt of reimbursement. The Office of Tourism, Trade and Economic Development (OTTED) shall make the final determination for actual reimbursement through a certification process. Applications received between June 13, 2005, and June 24, 2005 (the "Principal Photography Application Period"), will be placed into one of two queues (defined below), according to principal photography start date. If more than one project in a queue has the same principal photography start date, those projects with the same principal photography start date will also be placed in the queue on a first-come, first-served basis. Applications received between June 27, 2005, and January 31, 2006, will be placed into one of the two queues on a first-come, first-served basis. On February 1, 2006, the remaining funds within both queues will be combined into a single queue and distributed based on a project's principal photography start date. * * * The Decision-Making Process: The decision-making process for designating filmed entertainment as a qualified production will follow the following sequential steps. Completed General Project Overview and Application is received in the OFE and reviewed to ensure all necessary documentation is attached. If the application is not complete, or documents are missing, the OFE will fax a letter to the production company listing the missing information and documents and the application will not be considered for qualification. Project review by the OFE to determine if the production is a qualified production . . . . After the production has been qualified by the OFE, the OFE will notify the OTTED of the applicant's qualification and the amount of reimbursement. After the OTTED has certified the amount of funds for the production, the OFE will notify the applicant of its determination . . . Expenditures made prior to certification by the OTTED will not be considered for reimbursement. A written contract between the production company and the State of Florida will be drafted and fully executed. * * * OFE Evaluation of the General Project Overview and Application: For a qualified production, the OFE will consider the following questions, among others, when making a determination if the production is qualified: a. The Application: Is it completely filled out, signed and dated? Are there further questions that must be asked and answered? Are all of the necessary documents included? * * * c. The Budget: Does the production have the necessary financing in place to begin production on the designated start date? Will the production spend a minimum of $850,000 on qualified expenditures in this state? * * * e. A Completion Bond: i. Will there be a completion bond in place with an industry recognized completion bond company before principal photography begins? If not, does the production company have the necessary financing in place to complete the shooting? * * * Availability of Funds: Annual funding for the Entertainment Industry Financial Incentive Program is subject to legislative appropriation. The State of Florida's performance and obligation to pay under the contract is contingent upon an annual appropriation by the legislature. If and when, the legislature makes funds available, the OFE will consider each project until all of the funds are committed, or June 20, 2006, whichever comes first. If an application is received and is qualified, but no funds are available, the OFE will notify the company in writing within five days. If the qualified company wishes to remain in the queue in the event funds become available in that fiscal year, it must inform the OFE in writing within five days. Disqualification: A qualified production will cease to be qualified if the OFE determines: The principal photography start date: Occurred before funds had been certified by the OTTED to the production company; or Does not start on the day indicated in the Project Overview on applications received between June 13, 2005, and June 24, 2005, for any reason other than an act of God . . . . Mr. Mandell became interested in producing a series of the show in Florida a few years ago. He particularly was interested in telling the story of the vacation home concept as it has been developing in central Florida. Vacation homes are well-known among European tourists who visit central Florida. The concept is not well-known to many Americans. There are approximately 50,000 vacation homes available in the vicinity of Orlando, Florida. Tourists rent the homes on a weekly basis. Instead of staying in one or two hotel rooms, a family can stay in a vacation home with multiple bedrooms, baths, pool, and other amenities. The vacation homes generate tax revenue for Florida because they are subject to hotel tax. In anticipation of potentially coming to Florida, Mr. Mandell signed up for Respondent's periodic e-mail service. Through these e-mails, Mr. Mandell learned about the financial incentive program. He understood from the beginning that there was some uncertainty as to whether the program would go forward. On or about June 8, 2005, Petitioner applied for a Florida sales tax exemption for the entertainment industry. The sales tax exemption application erroneously stated that PBS Station WTVI was its parent company. Asserting that its first day of principal photography would be August 1, 2005, Petitioner asserted that it intended to build four or five homes in Lake County, Florida, for a PBS do-it-yourself show. The sales tax exemption was valid for only 90 days. However, Mr. Mandell believed that building more than one home at a time would make the filming go faster, speeding up the production process by shooting more than once or twice a week. Following Petitioner's submission of the application for the 90-day sales tax exemption, a member of Respondent's staff, Niki Welge, advised Mr. Mandell that the incentive program was going forward. Ms. Welge referred Mr. Mandell to Respondent's website for details. Ms. Welge also informed Mr. Mandell that Respondent would rank applications received during the "Principal Photography Application Period" (between June 13, 2005, and June 24, 2005) based on the "Principal Photography" start date. Based on Mr. Mandell's conversation with Ms. Welge and existing contacts for Florida crew members, Mr. Mandell decided to move Petitioner's "Principal Photography" start date from August 1, 2005, to July 1, 2005. Mr. Mandell also decided to go forward with a much larger project than originally planned. Mr. Mandell decided to build a neighborhood consisting of 395 or 396 vacation homes in Lake County, Florida, with Platinum Properties of Central Florida, Inc. (Platinum Properties), Clermont, Florida, as the builder/developer. The 395 homes were in addition to the four homes in Lake County, Florida, that Petitioner intended to build with Better Built Homes, Inc., Melbourne, Florida, as the contractor. Prior to submission of Petitioner's application, Mr. Mandell reviewed Respondent's Policies and Procedures and Section 288.1254, Florida Statutes (2004), the version of the statute that was available on MyFlorida.com. Mr. Mandell then filled out the application on June 9 and 10, 2005. Petitioner's application indicates that Petitioner intends to film at least 13 episodes in Florida for The New Home Show (500 Series). The application also indicates that Petitioner has already begun preproduction at vacation homes in Polk County, Florida. According to the application, Petitioner intends to film for approximately 52 days, between July 1, 2005, and June 30, 2006, in three Florida counties: Lake, Polk, and Orange. Paragraph 9 of the application requires the applicant to describe its Florida qualified expenditures and to include a total production budget with a breakout of the estimated Florida expenditures. Paragraph 9 of Petitioner's application states as follows in relevant part: Estimated total expenditure on Florida resident wages (excluding the salaries for the two highest paid Florida resident employers): $500,000 Estimated expenditures on Florida lodging: $20,000 Name of hotel(s): Private Vacation Homes Total number of room nights: 200 [the application skips subsection c] Estimated expenditures on Florida set construction: $10,500,000 Estimated expenditures on purchase or rent for real and personal property: $17,000,000 Estimated expenditures on other services rendered by Florida companies: $100,000 Please list the other services: Misc. Construction Services * * * h) Total estimated qualified Florida expenditures: $28,120,000 According to the application, Petitioner intended to spend $500,000 on Florida resident wages. Mr. Mandell based this figure on building just 50 homes and spending at least $10,000 in labor for each home. Petitioner projected that it would spend $20,000 on Florida lodging. This figure covered 200 nights in hotels and vacation homes. Petitioner anticipates spending $10,500,000 on set construction. Mr. Mandell based this figure on the cost of constructing 50 houses. A set is traditionally a temporary structure. Petitioner will not have a set. Instead, Petitioner is proposing to build over 300 homes to be sold as permanent, fixed structures. Petitioner estimates that it will spend $17,000,000 for the purchase or rent of real or personal property. According to Mr. Mandell, this figure represents the cost of the acreage at the "Platinum" site, plus the cost of the infrastructure. However, the purchase of real estate and the construction of infrastructure are not related to the television episodes that Petitioner proposes to film. In any event, all of the lots are already sold and the buyers have contracted for the construction of homes. The last estimate was $100,000 for other services rendered by Florida companies. However, Mr. Mandell did not have anything specific in mind. The general project overview and application included the following admonition: IMPORTANT NOTE: If the following documents are not submitted with your application your application will not be considered complete: Script Budget Production/Shooting Schedule Proof of Financing Your application will not be considered for qualification and will be returned if the requested documents are not attached. Mr. Mandell attached a proposed budget to Petitioner's application. The proposed budget was written in narrative form and states as follows in pertinent part: The New Home Show will be responsible for over $20,000,000 in expenditures within in Florida from July 01, 2005, through June 30, 2006. Construction of homes and neighborhoods is always our biggest expense representing over 80% of the total expenditures. . . . We will start with four homes built by Better Built Homes, Inc. The budget for these four homes will be over $1,000,000. The homes will be built in an established neighborhood that the producer has located four vacant lots in. These homes will be finished during December 2005. In September 2005, we will start working with our 2nd builder/developer, which is Platinum Properties, Inc. We are in the process of contracting for several homes with Platinum. The expenditures for these homes will be over $15,000,000. * * * In the past, our funding comes from five different areas for these projects. Those areas are: Producer's advance PBS underwriters Builder Developer State Incentives The PBS Underwriter funds and the State Incentive are important funds for The New Home Show because they do not require re- payment. All of the other categories are loans that are repaid from the proceeds from the sale of the homes that we build. Our PBS presenting station is WTVI in Charlotte. All funds for underwriters as well as state incentives must be paid to PBS station WTVI. The producer cannot receive these funds. WTVI is the co-producer of The New Home Show on PBS and approves all budgets and disburses all funds regulated by PBS. PBS has very strict rules and regulations regarding the funding of all PBS shows including The New Home Show and we adhere to those rules and regulations. In addition to the budget, Mr. Mandell prepared a production/shooting schedule to be attached to the application, along with the following: (a) an undated letter from the Director of PBS PLUS and PBS SELECT describing PBS's distribution process and the importance of PBS's underwriting guidelines in very general terms; (b) an undated letter from an advertising agency; (c) a copy of a script from a prior show; and (d) seven pages of PBS's promotional material for the show's 2005 project about the golf course home. In the very early morning hours of June 10, 2005, Mr. Mandell realized that the package of material was in excess of 13 ounces, and that it would not fit in a regular envelope. He decided to send it to Respondent by U.S. Certified Mail, no return receipt requested, in a heavy-duty priority mail envelope. Mr. Mandell uses an Internet postage service, which is the equivalent of having a postage meter. At 3:31 a.m. on June 10, 2005, Mr. Mandel purchased on-line postage in the amount of $6.15 for priority mail, flat-rate delivery, certified, with a ship date of June 13, 2005, on the shipping label. He did not request or pay an additional fee for a "green card" return receipt. The Internet postage service provided Mr. Mandell with a Customer Online Label Record, showing that the label was printed on June 10, 2005, with a June 13, 2005, ship date. The instructions from the Internet postage service contain the following request, "Please use this shipping label on the 'ship date.'" During the hearing, Mr. Mandell stated that he could have printed the shipping label with any date between June 10, 2005, and June 17, 2005. Respondent's policies and procedures clearly require Respondent's staff to determine whether an applicant has the necessary financing in place to begin production on the designated start date and to complete shooting. The policies and procedures do not explain what documents will meet the "proof of financing" requirement. To answer his questions in this regard, Mr. Mandell called Ms. Welge. On June 10, 2005, Mr. Mandell advised Ms. Welge that the show would be financed through construction loans. He explained that Petitioner could not provide Respondent with a bank statement showing a sum of money in a bank account because construction loans do not operate in that manner. A borrower does not retrieve construction loan funds from the lender until the builder needs them. Financial institutions loaning construction funds do not escrow the entire sum, but provide funds on a drawdown basis, based on percentage of completion. After speaking to Ms. Welge, Mr. Mandell sent her an e-mail on Friday, June 10, 2005, at 4:06 p.m. The e-mail inquired whether a letter from the real estate company that was financing the show would satisfy the "proof of financing" requirement. Petitioner's June 10, 2005, e-mail included a draft of a letter allegedly from Platinum Properties, identified only as a Florida real estate developer. The proposed letter stated as follows in relevant part: . . . Subject to timing and construction issues, we look forward to working with The New Home Show on this project. The New Homes Show's project is the creation of an entire vacation home neighborhood in central Florida. If we are able to go forward with The New Home Show on this project, it will be funded with a combination of bank and trade lines, which Platinum Properties utilizes on a regular basis. We have assured the producers of The New Home Show that we have adequate credit lines to cover any and all construction on this project. We expect the cost of this project will be $ of which $ is expected to be spent between 07/01/05 and 06/30/06. Upon receiving Mr. Mandell's e-mail, Ms. Welge shared the proposed letter with others on Respondent's staff. First, she sent it to Scott Fennell, OTTED's Deputy Director, who was providing administrative leadership to Respondent's staff during a vacancy in the position of Film Commissioner. Ms. Welge sent the e-mail to Mr. Fennell on Friday, June 10, 2005, at 4:11 p.m. Mr. Fennell did not immediately respond to Ms. Welge's inquiry about the proposed "proof of financing" letter. On June 10, 2005, Ms. Welge also discussed Petitioner's proposed letter regarding "proof of financing" from Platinum Properties with Susan Simms, Respondent's Los Angeles Liaison. Ms. Welge then contacted Mr. Mandell, advising him that the proposed letter was not sufficient because it contained contingencies. Later in the evening on June 10, 2005, Mr. Mandell contacted Danial Lambdin from Better Built Homes, Inc. During a telephone conversation, Mr. Mandell and Mr. Lambdin, drafted the unsigned, undated "proof of financing" letter that Petitioner ultimately submitted with its application. The letter states as follows in pertinent part: This letter confirms that you have contracted for the construction of four (4) single family vacation homes in Lake County, Florida. I am pleased to be involved with The New Home Show and am excited about working with you. I can confirm that I have an adequate line of credit to complete these homes for you. My Bank is Riverside National Bank at 417 First Ave., Indialantic, FL 32903. My primary contact is Monica Silveria. Their phone number is 321-725-7200. Mr. Mandell typed the letter addressed to himself in Weddington, North Carolina, with the address of Better Built Homes, Inc., Melbourne, Florida, as the letterhead. Very late on Friday, June 10, 2005, or very early on Saturday, June 11, 2005, Mr. Mandell completed the application form and the preparation of all attachments. He placed all of the documents in the priority mail envelope and attached the prepaid certified mail shipping label with the predated ship date. Mr. Mandell then dropped the envelop in an outgoing "mail tote" at his home. Mr. Mandell does not know when the U.S. Post Office received the application and its attachments. Someone at his home takes the mail tote to the post office in Charlotte, North Carolina, every day. The U.S. Post Office delivered the application and its attachments to the state's off-site mail-screening facility on Monday, June 13, 2005, at 3:43 a.m. On Monday, June 13, 2005, at 6:18 a.m., Mr. Fennell answered Ms. Welge's inquiry about the sufficiency of Petitioner's proposed letter regarding "proof of financing" from Platinum Properties. Mr. Fennell responded that "[t]his seems a bit light, but I don't know what typically passes for 'proof of financing' in the film world." On Monday, June 13, 2005, at 9:43 a.m., Ms. Simms responded by e-mail to Mr. Fennell regarding Petitioner's proposed letter regarding "proof of financing" from Platinum Properties. Ms. Simms stated that the contingencies in the proposed letter were potential deal-killers, and that Ms. Welge was able to let Petitioner know on Friday that this was not acceptable as proof of financing. Respondent received the application on Monday, June 13, 2005, at 3:29 p.m. Later that day at 6:21 p.m., Respondent faxed Petitioner a letter, notifying Mr. Mandell that Petitioner did not qualify for the incentive program for the following two reasons: (a) The application was postmarked on June 11, 2005; and (b) The application did not contain any documents containing proof of financing. Respondent sent this letter without contacting Better Built Homes, Inc., or its financial institution. Following receipt of Respondent's June 13, 2005, denial letter, Mr. Mandell contacted Raquel Cisneros, another member of Respondent's staff. Ms. Cisneros and Ms. Welge were the only staff members involved in reviewing Petitioner's application on June 13, 2005. Mr. Fennell signed the June 13, 2005, denial letter but did not review the application. Mr. Mandell explained to Ms. Cisneros that the application was not postmarked on June 11, 2005. Ms. Cisneros admitted during the hearing that the denial letter did not have a postmark of June 11, 2005. Mr. Mandell also inquired of Ms. Cisneros why the June 13, 2005, denial letter stated that the application contained no documents to demonstrate "proof of financing," when the Better Built Homes, Inc., letter had been attached to the application. Ms. Cisneros advised Mr. Mandell that the Better Built Homes, Inc. letter was deficient because it did not contain an amount of financing. Mr. Mandell was unable to obtain an extension of time for Petitioner to serve an "election of rights." Therefore, Mr. Mandell filed an "election of rights" form with Respondent on June 16, 2005. Respondent's June 13, 2005, denial letter provided Petitioner with the opportunity to provide Respondent with additional documents. On June 17, 2005, Petitioner took advantage of that opportunity by submitting a letter dated June 17, 2005, from Platinum Properties. The letter states as follows in pertinent part: We are looking forward to this venture of together building 395 Vacation homes in Lake County with the support, cooperation and abilities that "The New Home Show" brings to the project. Attached you will find the Lender Commitment to get started on the Millbrook Manor Project from AmBanc Commercial Lending Services. Lawrence M. Maloney signed the June 17, 2005, "proof of financing" letter as president of Platinum Properties. Attached to Mr. Maloney's letter was the first page of a Conditional Commitment from AmBanc Commercial Lending Services (AmBanc), Saint Charles, Missouri. The AmBanc Conditional Commitment states that Millbrook Manor/Larry Maloney (Borrower) has executed the document and requested financing in connection with a project described therein. The Conditional Commitment also states that the project has been conditionally approved to receive financing in the maximum principal amount of $15,000,000. The single-page Conditional Commitment does not contain a description of Millbrook Manor. Petitioner did not hear further from Respondent until Petitioner received a second denial letter on June 24, 2005, the last day of the initial two-week window for applications. Respondent based its second denial of Petitioner's application on the following reasons: The submitted budget does not distinguish the production costs as defined in Section 288.1254(2)(b) of the Florida Statutes. The submitted budget does not contain an adequate breakout of the estimated Florida expenditures as opposed to overall project expenditures as described on page five of the General Project Overview and Application. Designated recipients of state incentives must be party to the application and subsequent contractual agreements. Your application states, 'All funds for underwriters as well as state incentives must be paid to PBS station WTVI. The producer cannot receive these funds.' There is inadequate evidence that the application was sent via FedEX or U.S. Certified mail as required on page one (1) of the Entertainment Industry Financial Incentive Policies and Procedures. 'Any other form of delivery will not be accepted and your application will be returned.' On June 27, 2005, Petitioner submitted its second "election of rights" form. Petitioner also provided Respondent with its second statement of disputed facts. Respondent anticipated that it would receive some applications on June 13, 2005, by Federal Express or Certified U.S. Mail by overnight or same-day delivery service. Respondent's staff included the requirements that no applications would be accepted if they were postmarked before June 13, 2005, and only then if they were sent by Federal Express or U.S. Certified Mail in an effort to ensure a fairer process for evaluating the applications received during the critical first two-week principal photography application period. However, the policies and procedures do not require that the applications be mailed on or after June 13, 2005. In the instant application process, Respondent approved at least one other application that Respondent received on June 13, 2005. As to the requirement for "proof of financing," at least one other approved applicant (Britt Allcroft Productions/Britt Allcroft) contained an unsigned letter from a third party, which contained a contingent intent to "assist" in obtaining financing for the production if it was able to obtain $2 million from the incentive program. For this application, Respondent's staff engaged in a telephone conference call with the applicant, obtaining verbal assurances that the letter from the third party constituted a promise to provide financing for the remainder of the production not covered by the other more specific non-contingent promises of financing and licensing agreements. Additionally, the Britt Allcroft application indicated that a completion bond was in place to cover any shortfall in financing, guaranteeing that the production would be completed. Petitioner's application did not contain a completion bond. Another approved applicant (Rolling Films Company) provided Respondent with two contingent letters from third parties, indicating their intent to provide partial financing for the production only if the remaining funds were obtained by a date certain. That application also included a letter from the applicant, indicating the applicant's intent to finance the production for any amount not covered by the third parties. Petitioner's application refers to the funding of prior shows as including producer's advance and PBS underwriters. It does not state that Petitioner agreed in this case to fund the show over and above the amount to be financed by Better Built Homes, Inc., in the amount of $1,000,000 for four homes or the $15,000,000 that Platinum Properties promised to provide for the construction of 395 homes. Additionally, there is no persuasive evidence that Mr. Mandell gave Respondent verbal assurances that Petitioner or PBS intended to fund any shortfall in funds to complete the show, which has projected total production costs in excess of $28,000,000. The letter from PBS Plus & PBS Select agrees to assist in Petitioner's effort to fund the show but does not say how much funding Petitioner could anticipate from PBS underwriters. It is obvious that Respondent's staff is confused about the "proof of financing" requirement. For example, Ms. Cisneros testified in deposition that an applicant only needed to show financing in place for one-half of its total production costs. During the hearing, Ms. Cisneros testified that an application had to show "proof of financing" all of its production costs. Ms. Welge testified in deposition that an applicant had to demonstrate "proof of financing" for its Florida expenditures. Ms. Simms testified that an applicant had to establish "proof of financing" for the entire production budget. Mr. Fennell freely admits that he does not know what constitutes "proof of financing" for an entertainment production.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application. DONE AND ENTERED this 10th day of October, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 10th day of October, 2005. COPIES FURNISHED: Pamella Dana, Director Office of Tourism, Trade, and Economic Development The Capitol, Suite 1902 Tallahassee, Florida 32399-0001 Susan Albershardt, Commissioner Office of Film and Entertainment The Capitol, Suite 202 Tallahassee, Florida 32399-0001 S. Elysha Luken, Esquire Smith, Currie & Hancock, LLP 1004 DeSoto Park Drive Tallahassee, Florida 32301 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 1 Tallahassee, Florida 32399-1050 Ted Bonanno, Esquire Office of the Governor The Capitol, Suite 2001 401 South Monroe Street Tallahassee, Florida 32399-0001
The Issue Whether or not Respondent properly awarded Image Resources, Inc., the bid for computer graphics equipment as set forth in bid No. 9-428-D.
Findings Of Fact On February 20, 1989, Petitioner's district manager, James W. Mercer, met with USF agents Frank Ribaudo and Renee Clements, for the purpose of discussing the needs of the Learning Resource Center's proposed new graphics work station. On March 6, 1989, Mercer delivered to Ribaudo the Petitioner's hard copy proposal for the graphics work station which was considered by Respondent in preparing its RFP. In May 1989, the University of South Florida (USF) issued a RFP for a computer graphics system for the Learning Resource Center of the Health Sciences Center of the University, proposal No. 9-428-D. On May 26, 1989, Petitioner received a copy of USF's RFP which included, among other things, Appendix A, a verbatim copy of the hard copy proposal as prepared and submitted by Petitioner in early March, 1989. Included with the RFP was also an Appendix B which was prepared by another offerer. Appendix B had the appearance of a "shopping list" for various computer equipment for USF's graphics work station. Petitioner, based on what it construed as an inconsistency between Appendix A and B, called Tom DeBella for clarification and was told that the proposal should be prepared according to the specifications called for in Appendix A which took precedence over Appendix B to the extent there were any inconsistencies between the two appendices. The effect of Petitioner's conversation with DeBella removed all inconsistencies between the appendices. Petitioner delivered its RFP to the purchasing agent at USF on June 9, 1989, in a timely fashion. On June 10, 1989, an addendum no. 1, extending the date to respond to the RFP until June 16, 1989, was prepared by Respondent and delivered to the various offerers. Petitioner notified Respondent on June 16, 1989, that its RFP, as originally submitted on June 9, 1989, should be considered as its final offering. Respondent received proposals from three offerers, Rainbow Graphics Technology, Inc., Image Resources, Inc., and Blumberg Communications, Inc. On June 16, 1989, the bids were tabulated and the documentation of the three offerers were presented to a committee for evaluation. The committee met and on July 5, 1989, drafted a memo which was delivered to the purchasing department stating its recommendation to accept the system offered by Intervenor, Image Resources, Inc. The three offerers submitted responses to the RFP as follows: Image Resources, Inc., submitted a timely response for the sum of $79,860.00; Blumberg Communications, Inc., submitted a timely response for the sum of $94,075.00 and; Rainbow Graphics Technology, Inc., timely submitted its response for the sum of $97,484. In preparing the RFP, Frank Ribaudo attended various seminars where computer graphics equipment was displayed, worked with various vendors and utilized the knowledge gained from the liaison with the vendors, the seminars and his contact person at USF's medical center, Dr. Kaufman. Prior to submitting their proposals, the three vendors responding to the RFP were invited to the University to review the facility and the university's layout to determine exactly what specific graphic system would be needed to best satisfy USF's requirements. Of the three vendors responding to the RFP, Petitioner submitted the highest response. Intervenor, Image Resources, Inc., was the lowest offerer of the three vendors responding to the RFP. All of the responses were evaluated by the Learning Resources Center HFC Committee in accordance with the procedures of Chapter 287.062(1), Florida Statutes. USF, following review by its evaluation committee, accepted the response submitted by Intervenor as the lowest responsive offer. The RFP called for an integrated system capable of industrial quality 3/4" video output. Specifications in the RFP also called for optical storage as being critical to management of TARGA files. The specifications required that hard disk performance of 13 MS and optical storage were critical to the management of TARGA files. Petitioner submitted a proposal providing a hard disk system with a speed of 1 MS which exceeds the specifications called for in the RFP. Petitioner also included a Shinko ChC-345 printer which is not postscript compatible and does not have an internal controller with a microcompressor and 8 MB RAM as specified in Appendix A. Intervenor's proposed printer is postscript compatible with the software package included in its proposal. Specifications in the RFP require a video adapter capable of 32-BIT color or PAL and Intervenor's proposal is capable of handling 32-BIT color. Intervenor is an authorized dealer to handle the Matrix instruments film recorder and has offered to serve and maintain the equipment it proposed for one year, a substantially longer period than the 90 day warranty offered by the manufacturer, Matrix.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent, the University of South Florida Purchasing Department, enter a final order upholding the award of the bid proposal for the computer graphics system to Image Resources, Inc., and deny Petitioner's request to resubmit this proposal as an Invitation to Bid under Chapter 287.12(8), Florida Statutes (1988 Supp.). 1/ DONE and ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 12th day of December, 1989.
The Issue The issues are: (1) whether the Petitioner's notice of bid protest filed on June 5, 1996, was timely under Section 120.53(5), Florida Statutes, and, if not, whether Petitioner has waived its right to participate in bid protest proceedings; and (2) if Petitioner's bid protest was timely filed, whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in rejecting the Petitioner's bid.
Findings Of Fact The Petitioner is a general contractor which operates in Alachua County and surrounding areas. The Respondent is the governing body of the school district in Alachua County. In April and May, 1996, the Respondent publicly advertised an Invitation to Bid on the Project which consists of hard courts for basketball, driveway paving and new drainage provisions. Petitioner and three other bidders timely submitted sealed bids to the Respondent at its office located at the E. Manning, Jr. Annex, 1817 East University Avenue, Gainesville, Florida. Petitioner's bid proposal included a Contractor's Qualification Statement setting forth Petitioner's experience and financial qualifications to act as the general contractor for the Project. There is no evidence that Petitioner is disqualified as a responsible bidder because: (a) it colluded with other bidders; (b) it based its proposal on bid prices which were obviously unbalanced; (c) it included any false entry in its bid proposal; or (d) it failed to completely fill out the required list of subcontractors. The Invitation to Bid does not set forth any other specific conditions which would disqualify an otherwise responsible bidder. However, Respondent reserves the right to reject any and all bids when it determines that such rejection is in its interest. Respondent publicly opened the bids and read them aloud at 2:00 P.M. on May 9, 1996 as required by the Invitation to Bid. Petitioner did not attend the opening of the bids. The Invitation to Bid specified that the bids would be "tabulated and evaluated by the Superintendent of Schools of Alachua County or member or members of his staff or other individual or individuals designated by him." Edward Gable is Respondent's Director of Facilities. The Superintendent designated Mr. Gable to evaluate bids received for facility projects and to formulate recommendations to Respondent. The Invitation to Bid does not set forth a time certain in which Respondent will notify bidders of its decision or intended decision. However, it does state as follows: At the next regular or special meeting of the Board or at the designated meeting thereafter, the bids, as so opened, tabulated and evaluated, and the recommend- ation of the Superintendent of Schools of Alachua County regarding them shall be presented to the lowest responsible bidder meeting the requirements of the law and the State Board of Education Regulations. In Section 19.1 of the Instructions to Bidders, Respondent informs bidders that it will award the contract to the lowest bidder as soon as possible provided that the lowest bid is reasonable and in Respondent's best interest. The Invitation to Bid provides bidders with the following notice relative to Respondent's decision or intended decision concerning a contract award: The Board shall provide notice of its decision or intended decision concerning a contract award. Notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statues, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written "Notice of Protest" within seventy-two (72) hours after posting or notification. A formal written protest shall be filed within ten (10) calendar days after filing the 'Notice of Protest.' Section 17.1 of the Instructions to Bidders contains the following language concerning Respondent's decision or intended decision: 17.1 The Board shall provide notice of its decision or intended decision concerning a contract award. For any other decision, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Section 18.1 of the Instructions to Bidders provides as follows: Bid tabulations with recommended awards will be posted for review by interested parties at the Planning and Construction Department, 1817 East University Avenue, Gainesville, Florida, following the bid opening, and will remain posted for a period of 72 hours. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute as (sic) waiver of proceeding under Chapter 120, Florida Statutes. The Invitation to Bid and the Instructions to Bidders distinguish between a protest concerning a contract award and a protest related to the specifications contained in an invitation to bid or in a request for proposals. In the latter context, a bidder must file a written protest within seventy-two (72) hours after receipt of the project plans and specifications. This case does not involve a protest of a bid solicitation. By virtue of the above referenced provisions in the Invitation to Bid and the Instructions to Bidders, Respondent gave all bidders sufficient and reasonable notice that a posted tabulation together with its recommendation constituted Respondent's intended decision. The bid specifications in the instant case required bidders to submit a bid on a base contract for certain school facility improvements with alternate bids relative to additional improvements in the event Respondent decided to include such features in the Project. Petitioner's base bid was $135,000; it was the lowest bid submitted. The next low bid was from Watson Construction Company, Inc. (Watson) at $133,345. Two additional bids were higher than Watson's bid. On the morning of May 30, 1996 one of Petitioner's employees, Roger "Dave" Williams" phoned Mr. Gable to inquire about the status of the bid award. Mr. Gable was unavailable to take the call. Mr. Williams left a message for Mr. Gable to return the call. Next, at approximately 10:00 a.m. on May 30, 1996, Mr. Williams called a member of Mr. Gable's staff who stated that, as far as he knew, Respondent had not made a decision on the contract. Mr. Gable completed his evaluation and posted the bid tabulation on May 30, 1996 at 3:00 p.m. Included on the bid tabulation was the following statement: RECOMMENDED ACTION: It is recommended that the Board reject the low base bid as submitted by D. E. Wallace Construction Corporation, Alachua, Florida, due to past unsatisfactory contract performance. It is recommended that the Board accept the base bid of $133,345. and award a contract for construction totaling $133,345. to Watson Construction, Gainesville, Florida. Completion of this project shall be within ninety (90) consecutive calendar days from the date indicated in the 'Notice to Proceed.' The bid tabulation clearly notes that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Respondent regularly posts notices of intended decisions concerning bid awards on a bulletin board in the main hallway of the E. D. Manning Annex. A title at the top of the bulletin board identifies it as the location for bid postings. Respondent posts a copy of Section 120.53(5), Florida Statutes, and a copy of the Respondent's Policy DJC--Bidding Requirements below the title of the bulletin board. Respondent has adopted Policy DJC as a rule through a formal rulemaking process. Policy DJC states as follows in pertinent part: The Board shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery. For any other Board decisions, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. The notice shall contain the following two paragraphs. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written notice of protest within 72 hours after the posting or notification. A formal written protest shall be filed within 10 calendar days after filing the notice of protest. . . . Failure to file a timely notice of protest or failure to file a timely formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Immediately below Policy DJC is a space where Respondent always posts its bid tabulations which include the recommended action on each project and notice that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The bottom of the board, in large letters, contains the following words: "Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." This permanent bulletin board, read as a whole, contains more than enough information to provide bidders with notice of an intended decision and the time frames within which a disappointed bidder must file a written protest. Although he was not required to do so, Mr. Gable telephoned Petitioner's office on the afternoon of May 30, 1996 to advise its president, D. Wallace, of the recommendation. Petitioner was not available to accept that call. Mr. Gable placed another courtesy telephone call to Petitioner on the morning of May 31, 1996. During that conversation, Mr. Gable informed Mr. Wallace of the recommendation for Respondent to reject Petitioner's bid and accept the next lowest bid. Petitioner's representative inspected the posting board in the afternoon on May 31, 1996. On June 3, 1996, Respondent sent Petitioner by facsimile transmission a copy of the agenda for Respondent's June 4 meeting, items H.1. of which was: H.1. Bid Award for Project SBAC CB436 - Newberry High School Site Improvements. Bids for the construction of this project were received on May 9, 1996. Recommendation will be presented. The seventy-two hour window in which a bidder may file a protest does not include Saturdays, Sundays or holidays. Therefore, the time in which a bidder could have filed a protest of Respondent's intended decision in this case, expired June 4, 1996 at 3:00 p.m. No bidder had filed a written protest at that time. Respondent held a regular meeting on June 4, 1996, at 7:00 p.m. When Respondent considered the bid award for Project SBAC CB 436, Mr. Gable presented the recommendation that the Board reject Petitioner's bid and accept Watson's bid due to Petitioner's past unsatisfactory contract performance. Petitioner's counsel spoke against the recommendation. At that time the Petitioner had not filed any written notice of protest. After discussion, Respondent voted to award the contract to Watson. Respondent and Watson executed a contract for the construction of the Project on June 4, 1996. The next day, on June 5, 1996, at 3:40 p.m., Petitioner filed with Respondent, by facsimile transmission, a Notice of Protest challenging the award of the contract for the Project to Watson. The filing of this protest was untimely. Therefore, Petitioner waived its right to protest Respondent's decision or intended decision on the Project. The basis of Respondent's intended decision and ultimate final decision to reject Petitioner's low bid was due to Petitioner's past unsatisfactory performance. The following facts support a finding that Petitioner was not a responsible bidder. Respondent awarded Petitioner the contract for a previous construction project, Project SBAC CA 149, Additions and Renovations for Terwillegar Elementary School. That project included the construction of a number of school buildings. The contract amount was approximately 5.1 million dollars. The last building in the Terwillegar project became "substantially complete" in September, 1995. In January, 1996, Mr. Gable wrote a letter to Petitioner, informing him of the outstanding punch list items for the Terwillegar project. A contractor must complete punch list items and have them approved prior to "final completion." In the Terwillegar Project, the contract provided for compilation of items on the punch list within thirty (30) days from "substantial completion." As of May 30, 1996, Petitioner had not responded to Mr. Gable's letter about the Terwillegar punch list, nor had it completed the punch list. Many of the items on the list were minor, but some of the items involved the safety or integrity of the building structure. The Terwillegar project contract also contained a project closeout section which listed a variety of documents and other materials that Petitioner had to provide to Respondent as part of the "final completion." Included in the Terwillegar project's closeout were items such as insurance change-over requirements, warranties, workmanship bonds, maintenance agreements, final certifications, a final payment request, consent of surety, maintenance manuals, record drawings, record specifications, record project date, and operating instructions. As of May 30, 1996, Petitioner had not provided any of the Terwillegar project closeout materials to the Respondent. The delay in project closeout, after substantial completion, is completely unacceptable to the Respondent. Prior to the opening of bids in this case, Petitioner filed a civil suit against Respondent seeking approximately $1,500,000 representing the unpaid contract balance, subcontractors' and material suppliers' claims for labor and material, and other delay-related damages on the Terwillegar project. Petitioner's claim that Respondent's intended decision and/or final decision was based on personal animosity and bias against Mr. Wallace is contrary to more persuasive evidence. Specifically, Petitioner's Exhibit 6 is not persuasive evidence of bias. The Petitioner's president, D.E. Wallace, has over 30 years in the construction field, including 22 years as an owner/operator of a general contractor company. He has completed more than 100 projects in north Florida in the past eighteen (18) years, including 30 school board construction projects. Mr. Wallace has worked on approximately nine (9) school board projects in Alachua County. He holds himself out as being "completely familiar and knowledgeable in government and building codes, ordinances, regulations, etc."
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Respondent enter a final order dismissing the Petitioner's protest as untimely. DONE and ENTERED this 9th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: David L. Worthy, Esquire 4128 Northwest 13th Street Gainesville, Florida 32609 Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues in this bid protest proceeding are whether the bid of Professional Leasing & Development Corporation on state project, job number 48020-3543, was properly rejected for failure to prequalify to bid on the project; and whether the Department properly rejected the bid failure to: meet disadvantaged business enterprise ("DBE") requirements in soliciting minority subcontractors to work on the project, or make a good faith effort to meet the DBE goals set for this project?
Findings Of Fact Professional Leasing & Development Corporation ("Professional") filed a bid on state project, job number 4802 0-3543, which was opened on January 22, 1986 for work on an intersection in Escambia County. The only other bidder was Edward M. Chadbourne, Inc., which the Department declared the lowest responsible bidder, and which declined to participate in these proceedings after notice. The parties stipulated at the hearing that the bids submitted by both bidders were in due form and were submitted in a timely fashion. The parties also stipulated that the Department posted its bid tabulation on March 3, 1986, designating Chadbourne as the lowest responsible bidder, and a timely protest was filed by Professional following that posting. This job is the first Department of Transportation job on which Professional has submitted a bid. It had not prequalified to bid on the job. Warnings appear on pages one and seven of the bid blank that if the bid amount is greater than $150,000, the contractor must be prequalified. The bid blank clearly states in large print on page 7 that if the contractor is not prequalified and the bid is in excess of $150,000, the bid will be rejected. The bid package submitted by Professional was for a total contract amount of $149,973.68. This amount contained errors in the prices for certain items in the bid. These resulted from Professional's errors in the extension of the unit price for items 300 1 3, tack coat; 5331 2, type s asphaltic concrete; and 5337 1 5, asphaltic concrete friction course. The errors are small, aggregating $76.32. The total amount of the bid, as corrected by the unit prices given by Professional in its bid blank, is $150,050. The bid was rejected by the Department for failure to prequalify. When preparing its bid, Professional made efforts to meet the DBE goal set by the Department of Transportation of 8 percent of the contract amount. It sought bids from two minority businesses for striping, and for guardrail and paved ditches,the second of which was a bid from a women's business enterprise which is not considered in meeting the DBE goal. Additional efforts might have been made to obtain DBE subcontract bids by the other principal in the corporation, William Stubstad, but the testimony at the final hearing did not indicate what those efforts may have been. Neither are they reflected in the bid documents. On the DBE/WBE utilization form number 1 submitted with the bid, Professional listed eight potential subcontractors; the striping subcontractor had been certified by the Department of Transportation as a DBE. Written by hand at the bottom of the form was the statement "no other local DBEs in area." Professional's bid reflected only a 3.2 percent utilization of DBE subcontractors, while the goal set by the Department was 8 percent of the contract amount. Based on this submittal, the Department found inadequate documentation of a good faith effort to meet the DBE goal and rejected the bid. Many other subcontractors are certified as DBEs by the Department for work such as signs, guardrails, landscaping and paved ditches. Professional's bid documents give no evidence that these other firms had been solicited to submit bids.
Recommendation It is recommended that the protest of Professional Leasing and Development Corporation be rejected, and the contract be awarded to Edward M. Chadbourne, Inc. DONE AND ORDERED this 2nd day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0788BID The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner: No proposed findings of fact were submitted. Rulings on Proposed Findings of Fact Submitted by Respondent: Covered in Findings of Fact 1 and 5. First sentence is covered in Findings of Fact 3 and 5; the remainder of the proposed finding is covered in Conclusion of Law 1. Generally covered in Finding of Fact 4. The portion of the proposal dealing with Standard Specifi- cation 2-1, 1986 Edition, is rejected because that section was not placed in evidence at the hearing, nor was leave requested to file that specification after the hearing. Covered in Finding of Fact 5. Covered generally in Conclusions of Law 2 and 3. Covered in Conclusion of Law 6. Rejected on the grounds that Section 2-5.3.2 of the Supplemental Special Provision of the Bid Specifications was not proven at the final hearing, nor was leave requested to file them as an exhibit after the hearing. Covered in Finding of Fact 7. Covered in Finding of Fact 7. The portion of proposal 10 found on page 4 is covered in Finding of Fact 7; the remainder is rejected as cumulative. Covered in Finding of Fact 7. Rejected because there is no evidence in the record concerning the consistency with which the Department requires full compliance with DBE goals, and because no issue was raised in this proceeding by Professional with respect to inconsistency in Department policy, making the finding irrelevant. COPIES FURNISHED: Thomas E. Drawdy Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Larry D. Scott, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Harold Pridgen President Professional Leasing & Development Corp. 25 East Nine Mile Road Pensacola, Florida 32514 Edward M. Chadbourne, Inc. 4375 McCoy Drive Pensacola, Florida 32503
The Issue The issue for consideration in this case is whether Petitioner, E. L. Cole Photography, Inc., was properly denied award of Bid Number 97-DC-7059, to provide photographic film to the Department.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Department of Corrections, was an agency of the State of Florida, with authority to procure goods, supplies, and services from vendors through the process of competitive bidding. Sometime prior to February 14, 1997, the Department sent out Invitations to Bid soliciting bids for the providing of photographic film. Both Kodak 135 mm color-and black-and-white film and five different types of Polaroid instant camera film were needed for use by the agency, state-wide. Bids were to be submitted in time for the scheduled bid opening on February 25, 1997. This was a procurement reserved for minority bidders. The bids were opened, as scheduled, on February 25, 1997. Petitioner was one of seven bidders. The low bidder, Laube Photo, was disqualified because it was not a certified minority business. Of the remaining six bidders, Ace Office Supply submitted a bid of $3,151.00 on Item 1, the Kodak film; and a bid of $175,250 on Item 2, the Polaroid film. Ace’s total bid was $178,601.00. Petitioner’s bid was $3,793.20 on the Kodak film; and $181,425.00 on the Polaroid film, for a total of $185,218.20. All the bids from the other bidders were higher than that of Petitioner. Based on the figures submitted, Ace Office Supply was the low responsive bidder. It’s certification as a minority bidder was confirmed by the agency’s minority office. In its protest submitted on March 6, 1997, Petitioner addressed the warranty which pertains to the film to be supplied. Petitioner questioned whether that warranty would cover film proposed to be furnished by Ace, which Petitioner contends would be gray market product. Special Condition 16 of the Invitation to Bid provides in pertinent part: A warranty is required on all items purchased against defective materials, workmanship and failure to perform in accordance with required industry performance criteria, for a period of not less than ninety (90) days from date of acceptance by the purchaser. Any deviation from this criteria must be documented in the vendor's bid response or the above statement shall prevail. Neither Ace nor the Petitioner indicated any deviation from the warranty requirements. Therefore, the warranty stated applies to product supplied by either bidder. Petitioner also challenged the difference between the bids as relates to the description of the commodity to be provided. Though not required to do so by the Invitation to Bid, Petitioner listed the catalogue number of each item and enclosed with the bid pertinent pages from the manufacturers' catalogues reflecting the commodity and the catalogue number. Ace listed only the commodity and the product number as opposed to the catalogue number. Both methods are acceptable, however. The use of the product description by Ace was no more than a minor irregularity which did not affect the price, nor did its use give Ace an unfair advantage. By the same token, Petitioner's use of the incorrect catalogue number in one instance was also an irregularity, but it, too, was considered minor. From both submittals, it was clear that the product offered was the product sought, and the price for each item was clearly stated. The specifications contained in the bid solicitation in issue were not prioritized in importance. Price, quality, and warranty were all important. The warranty requirement was inserted to ensure against the provision of substandard product. Both Ace and Petitioner provided the requisite warranty, and Ms. Holcomb presumed both bidders would have honored it. The only area of difference between the bids was in price. Both Petitioner and Ace have provided products to the Department in the past. There have been no complaints regarding either the product provided or the service provided by either supplier. "Gray market” products are those made outside the United States by or under license of a manufacturer, which bear the brand name of the manufacturer, but which are not intended for sale in this country through the manufacturer's authorized distributors. They may or may not carry a full manufacturer's warranty. There is no reference to gray market goods in the Invitation to Bid, and Ms. Holcomb did not consider the possibility of gray market goods being furnished until Petitioner raised the issue in its letter of March 6, 1997. When Ms. Holcomb received this letter, she checked with the minority certification office which indicated it would not certify anyone who supplied gray market goods. Thereafter, Ms. Holcomb referred the matter to the Department's legal staff, and she is not aware of what that office did regarding the gray market issue. The evidence regarding the position of the minority certification office regarding gray market goods is hearsay evidence and may not be dispositive of that issue. Mr. Cole, Petitioner's owner and a long-time photographer, raised the issue of gray market product because it has been his experience that when vendors bid inside of their commodities specialty field, a gray market product can be sold at a lower price resulting in a competitive disadvantage to other responsive bidders. Though cheaper in price, a gray market product may not carry the same manufacturer's warranty as does product sold on the authorized market. In addition, many gray market products do not meet the same quality standards of manufacture as authorized products. Mr. Cole claims Ace would provide a gray market product based on the fact that the prices quoted by Ace are below the prices quoted by Petitioner. Cole submitted the manufacturers' price lists with his bid in the hope that all vendors would be bidding on the same product. Referencing the prices submitted by Ace in its bid, Mr. Cole concludes that the film to be supplied by Ace is not an authorized product. His experience indicates that gray market dealers' prices are similar to those quoted by Ace. Mr. Cole admits there is nothing in Ace's bid to indicate it would not honor the ninety-day warranty called for in the Invitation for Bid. He also admits that gray market products could meet the warranty requirement, and there is nothing in the IFB which prohibits gray market film, notwithstanding the other evidence of record that the minority certification office would not certify providers who offered gray market goods. It also must be noted that on at least two items called for in the IFB, Petitioner underbid Ace. This happened because Petitioner elected to take a loss on those items, but, Cole contends, Ace's use of gray market prices allowed it to underbid him overall. There is no independent evidence that the product to be submitted by Ace would be gray market product. In any case, the evidence shows that Petitioner substantially underbid four other responsive bidders in this procurement. Mr. Cole does not see that as a problem, since the price differential between Petitioner's bid and the next lowest bidder is not, in his opinion, disqualifying. This argument is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order in this case awarding procurement 97-DC-7059, to provide photographic film to the Department, to Ace Office Supply. DONE AND ENTERED this 29th day of August, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1977. COPIES FURNISHED: Matthew M. Carter, II, Esquire 610 North Duval Street Tallahassee, Florida 32301 Scott E. Clodfelter, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500
Findings Of Fact The Respondent, Department of Corrections, by advertisement in a Jackson County, Florida newspaper on March 27, March 30 and April 6, 1988, sought bids for the provision of office space for the Department's offices in Marianna. The bid specifications, including, as pertinent hereto; minimum square footage, a requirement that Energy Performance Index calculations and certification thereof by an architect or engineer be shown, and the requirement that all parking spaces be on site, was made available to potential bidders on March 28. A pre-proposal conference of potential bidders was held on March 31 to explain and clarify the specifications. Bids were submitted by the two Petitioners, and the bids were opened on April 14, 1988. On or about April 19 or 20, Wendell Beall and Robert Sandall evaluated the bid proposals and made a preliminary determination that the Rainbow bid was non-responsive in three areas. It was determined that the required square footage depicted on the Rainbow bid was inadequate; the parking provision was inadequate in that not enough "on-site" spaces were shown on the bid; and the Energy Performance Index calculations and certification by an architect or engineer was not supplied. On April 21, 1988, the lease committee, chaired by Thomas Young, met and reviewed both bid packages submitted by the Petitioners and affirmed Mr. Beall and Mr. Sandall's findings, with the result that the agency decided to award the contract to Brooks. The bid specifications required a minimum of 12,756 net square feet of rentable office space. Only 11,862 square feet could be identified as net rentable square footage on the Rainbow bid's floor plan, as calculated in compliance with the "standard method of space measurement." This square footage calculation was consistent with the actual measurements of the building made by Mr. Beall himself. The Brooks' bid depicted an adequate amount of square footage in compliance with the specifications. Mr. Beall calculated the net rentable interior square footage by utilizing the standard method of space measurement provided for in the rules of the Department of General Services and, after deducting nonusable, nonrentable space under that standard, rule mandated method, he arrived at the net rentable office space figure of 11,862 square feet. Rainbow at no time has presented any conflicting measurement or alleged any specific errors in Mr. Beall's calculations. Item A-10 of the bid specifications requires a floor plan to be submitted showing the present configurations of the building, with measurements that equate to the required net rentable square footage. This means that the minimum square footage must be shown in the floor plan attached and submitted with the bid specifications, even if the building may contain more square footage. The Department supplied a specific number of offices of various sizes and a required configuration no floor plan in order to depict work units that should be constructed and/or arranged together, as part of the specifications in the Invitation to Bid documents. The purpose of this agency floor plan was to give potential bidders a guide to calculate the cost of remodeling existing space to meet the agency's needs so that those potential bidders could amortize that cost as part of the rental amount involved. Therefore, the proposed floor plan included in a bidder's package should not vary substantially from the final plan used to actually remodel the leased space in accordance with the agency's requirements. Accordingly, the only submittal of plans which is permissible subsequent to the bid opening, as contemplated by the bid specifications, are the final plans developed by a successful bidder in consultation with the agency after the bid award. No floor plan may be unilaterally submitted by a bidder after the bid opening since that would constitute an illegal amendment of the bid. Only a floor plan done in consultation with the agency in order to make final adjustments so that all office space and other related space will comply with the agency's precise requirements may be done after the bid is actually awarded, and this must be based upon the floor plan originally submitted in the bid itself in conformance with the bid specifications regarding office layout, square footage and the like. The Rainbow bid simply contained an inadequate amount of square footage necessary to be a responsive bid in this regard. An additional bid specification at issue concerns the requirement of 77 exclusive use, on-site parking spaces. The Rainbow bid only made provision for 27 on-site exclusive parking spaces, with the remaining 50 spaces of the required 77 being off the proposed building site, approximately 155 feet away, without sidewalk access to the proposed office building. The Brooks' bid incorporated all required parking spaces on the site, as required by the specifications. The Rainbow bid was non-responsive concerning the parking space specification as well. Mr. Beall prepared the bidding documents as Budget Manager for the Department of Corrections' Region I. He was the person designated in the bidding documents to answer any questions requiring clarification by prospective bidders before bids were prepared and submitted. Mr. Beall established that the intent of the agency with regard to this parking space requirement was to require all 77 parking spaces to be on-site. No bidder or prospective bidder asked any questions of Mr. Beall concerning this specification prior to the submittal of any of the bids. Mr. Brooks, however, did consult with Mr. Beall on the question of the Energy Performance Index specification item before he submitted his bid. Mr. Brooks is a former physics and advanced mathematics teacher with some 20 years experience in construction. He has been a licensed general contractor and master builder for residential, commercial and industrial types of construction for 11 years. He typically designs and draws his own plans, including those submitted with the bid at issue. He spent approximately 100 hours of his time on preparation of this bid. Mr. Brooks had previously been awarded a rid by the Department of Corrections on which he simply invalid the item concerning the Energy Performance Index (EPI) specification. That item was found to be responsive by the Department, and the bid was awarded to Mr. Brooks. On a subsequent bid on a different job, Mr. Brooks again merely initialed the EPI specification, which he intended to mean that he would perform the job at issue such that the EPI requirements would be met. He was not awarded the bid on that particular job, but upon his informally notifying the Department of Corrections that he might protest the decision to award the bid to a different bidder, the Department personnel advised him that they might choose to raise the issue of his responsiveness to the EPI specification in that situation. With this history in mind, Mr. Brooks, before submitting his bid, contacted Mr. Beall to inquire as to what would be considered an appropriate response to the EPI specification on the bidding documents. The EPI has been calculated by Mr. Brooks on numerous projects in the past, and he is capable of calculating it as to this project. He found, however, that it would be impossible to calculate a precise and accurate EPI specification response, because he would not have the final floor plan from which to calculate it, with all the information that would give him concerning room configurations, size, location and size of windows, size and type of heating and air-conditioning equipment and many other factors. Mr. Brooks could, however, give his certification that the energy performance requirement would be met, once the final plans were completed in conjunction with discussion with the agency after award of the bid, which comports with standard agency policy and practice. Because he was concerned that any energy performance calculations he might supply would not necessarily be accurate in the final analysis, in relation to the final "to be constructed" plans, Mr. Brooks contacted Mr. Beall to obtain his guidance about what would be considered a proper response to this specification item. Mr. Beall advised him that a letter certifying that he would comply with the specification as to this issue would be an appropriate alternative to simply initialing the specification. The same opinion was also voiced at the lease committee meeting. Mr. Beall's advice to Mr. Brooks in this regard was based upon advice given him by Mr. Edwin Johnson of the Department of General Services and was based upon past agency policy concerning treatment of this issue on previous bids considered by the lease committee. Previous bids had indeed been accepted in the form submitted by Mr. Brooks and had not been found to be nonresponsive as to the EPI issue. Thus, Mr. Brooks, in addition to initialing the specification concerning the EPI, also supplied the referenced letter certifying that he would comply with that specification and agency requirement. Rainbow, on the other hand, merely initialed that item in the specification and bidding document. Thus, the Brooks' bid is the more responsive on the issue of the EPI than the Rainbow bid. The bid award to Brooks was posted on May 2, and on May 4, Rainbow filed a Notice of Protest of she award which was received by the Department, timely on May 5. Shortly after that date, counsel for Rainbow requested that the Department's representatives and counsel meet with him and Mr. Jett, his client, of Rainbow Properties, to discuss the agency's award to Brooks and rejection of Rainbow's bid. On May 10, 1988, the Department's regional representatives and its counsel met with Mr. Jett of Rainbow Properties and his attorney, Mr. Barley. Mr. Jett used this opportunity to explain how he felt that the Rainbow bid had complied with the bid specifications in the three specific areas discussed above. The Department's counsel explained on that occasion that the bid could not be amended after opening and posting of the bids. Mr. Jett's bid had only shown 11,862 square feet identifiable as rentable space in the floor plan submitted with the bid, although 12,756 square feet were required by the bid specifications. Additionally, as discussed above, of the 77 required on-site parking spaces, only 27 were provided on site with 50 of them being off site, with Rainbow not establishing that it had ownership or right of control to the off site spaces. Additionally, as discussed above, there was the problem of no calculations or assurances being provided regarding the EPI specification, it merely having been initialed in Rainbow's bid submittal. At the May 10 meeting, Mr. Jett was given the opportunity to explain how his bid complied with the specifications at issue and to discuss how he felt the Department had misinterpreted his response or made an error in measuring or calculating the square footage available in his building. He provided no alternative calculations or measurements of the building, however, which would depict more than the 11,862 square feet measured by the Department's staff or which would show that measurement was incorrect. He was reminded that the only possible information he could legally provide the agency after the opening of bids was in the nature of minor clarification concerning how he had calculated the square footage. He was instructed that he could not revise his plans in order to establish that more square footage was available because that would be an illegal amendment of his bid after the bids were open and posted. At the May 10 meeting Mr. Jett also maintained that the Department had allowed for other than on site parking; however, but the bidding document or Invitation to Bid only contained one blank, and only one subsection on the bidding form, for the bidders to indicate 77 spaces designated as on site spaces. Mr. Jett maintained that since the Department had provided option "(A)" under this on-site parking specification item, that he was therefore free to add other options. Using that logic, however, it would also appear that he could have submitted a bid depicting spaces literally on the other side of town and still had a responsive bid. That clearly is not the correct interpretation of that specification. He also maintained that the EPI was impossible to calculate at the time of bidding, in view of the fact that final plans were not available to support the ultimate calculation. In any event, at the conclusion of this meeting, Department personnel informed Mr. Jett and his counsel that would inform him of its decision within a few days. The Department did not inform Mr. Jett that he would be permitted to amend his bid after obtaining professional help and redrawing his blueprint in an effort to show that the minimum square footage was available. Indeed, Rainbow and Mr. Jett did obtain the services of an architect and drew a new floor plan which it offered as PR-1 at the hearing. If the floor plan originally attached to Rainbow's bid, consisting of Exhibit PR-2 in evidence, is compared with the blueprint submitted by the architect after the meeting with the Department representatives on May 10, it can be discerned that the blueprint is not a mere refinement or clarification of the initial floor plan, but rather that major modifications have been made to the initial floor plan submitted with the bid. These consist of walls which have been moved, small rooms in some areas which have been eliminated, restrooms which have been deleted and an existing spiral staircase area which was eliminated, and a hallway enclosed, in order to add additional rentable square footage where new offices could be added. Thus, this blueprint offered at hearing was not a mere refinement or clarification of the original floor plan submitted with the Rainbow bid, but rather sufficiently different from original floor plan as to constitute a material amendment or modification to the bid. It therefore cannot be considered. The floor plan submitted with the bid was nonconforming to the bid specifications as to the square footage item and Rainbow cannot be permitted to rectify and correct that with the architect's new blueprint and floor plan offered at the time of the hearing. 1/ In short, insufficient square footage was depicted and that is not a minor waivable irregularity. Soon after this May 10 meeting, the Department changed its position, decided that both bids were not responsive and rejected them. Its alleged basis for doing so was that the Brooks bid was nonresponsive as to the energy performance index criteria and that the Rainbow bid was nonresponsive as to that criteria, as well as to those concerning minimum square footage and on-site parking availability; the same as the original grounds for rejecting Rainbow's bid. Timely formal protests of that second agency action were filed by both Brooks and Rainbow. In that connection, Rainbow's formal written protest of the original award to Brooks, which was announced and noticed on May 2, 1988, was untimely. The formal written protest must be filed within ten days of the notice of protest. Rainbow's original notice of protest was filed with the agency on May 5 and the formal written protest was not filed until May 17. Rainbow, in conjunction with its filing, filed a motion for leave to late-file the formal protest with the agency on the basis that it had mistakenly filed the formal protest with the Division of Administrative Hearings. That petition was filed with the Division on May 16th. The deadline for filing the formal protest was May 15th. Petitioner Rainbow, however, did not learn of the second intended agency action until May 16th, however, and may have been somewhat misled about the necessity of filing its formal protest by May 15th because of the informal discussion of May 10th. It is also true, however, that the informal meeting was improper, as discussed herein and was called at the behest of Rainbow without assurance that the filing time was tolled.
Recommendation In consideration of the above findings of fact and evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor RECOMMENDED that the petition of Rainbow Properties, a Florida general partnership, should be denied and dismissed for the reasons found and concluded above, and that the petition of C. Leon Brooks be GRANTED and that the subject bid be awarded to C. Leon Brooks. DONE and ENTERED this 27th day of October, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1988.
The Issue Whether the decision of Respondent, Seminole County School Board, not to include Petitioner, Cady Studios, LLC, in its award of a yearbook and photography services contract was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact Respondent, School Board, operates the public school system established for the School District of Seminole County, Florida. See § 1001.30, Fla. Stat. The School Board oversees 37 elementary schools, 12 middle schools, nine high schools, and seven special centers. The Seminole County School District includes over 67,000 students. The School Board is an authorized governmental entity allowed to contract for commodities or services using the competitive solicitation process set forth in section 287.057, Florida Statutes. See §§ 1010.04 and 1001.41(4), Fla. Stat. On July 18, 2017, the School Board published [Request for Proposal] #17180001P-LL, Yearbook and Photography Services (the “RFP”). Through the RFP, the School Board solicited qualified vendors to provide Photography Services to Seminole County Public Schools. The initial contract for the Photography Services runs for three years, with a possible extension of another two years. Prior to this RFP, the School Board had never used a request for proposal to solicit the Photography Services. Thirteen photography and yearbook vendors, including Cady Studios, responded to the RFP. Ultimately, as further explained below, the School Board determined to offer the top seven vendors a contract to provide the Photography Services. Cady Studios was ranked eighth. Consequently, Cady Studios was not selected under the RFP. Cady Studios is a family-owned portrait company based in Florida and has provided school portrait services since 1998. Cady Studios has partnered with over 50 schools in central Florida, and is an approved vendor in 35 Florida school districts. The School Board published the RFP, as well as an Addendum, on VendorLink and Demand Star websites. The School Board used these two on-line platforms to disseminate information regarding the solicitation to interested vendors. The School Board provided links to VendorLink and Demand Star on the district’s website. After the School Board posted the RFP on July 18, 2017, the School Board did not receive any protests to the terms, conditions, or specifications contained in the RFP.5/ Pertinent to this matter, Cady Studios never protested the RFP’s terms, conditions, or specifications, or the School Board’s decision to competitively solicit bids for the Photography Services under section 287.057. As stated in the RFP, the School Board conducted a pre- proposal conference on July 27, 2017. During this meeting, the School Board offered interested vendors the opportunity to ask questions about the RFP, as well as educate themselves about the process. Cady Studios did not attend the pre-proposal conference. On August 2, 2017, the School Board posted an Addendum to the RFP which requested specific pricing information for the Photography Services to be offered to high schools, middle schools, and/or elementary schools in Seminole County. Proposals for the Photography Services were due on August 15, 2017. Thirteen school photography and yearbook vendors, including Cady Studios, presented proposals in response to the RFP. RFP, Section V, directed each vendor to deliver “One (1) original, One (1) copy, and ten (10) electronic [USB] thumb drive version[s]” of its proposal to the School Board. To score the proposals, as set forth in RFP, Section IV, 1.A, the School Board formed an Evaluation Committee. The voting members consisted of an executive director from an elementary school, a middle school, and a high school (or their designees), as well as a local business advisory member. A non-voting School Board member was also included on the Evaluation Committee. The individuals selected to serve as the voting members of the Evaluation Committee included Dr. Trent Daniel (Principal, Lake Brantley High School); Byron Durias (Principal, Sanford Middle School); Tina Langdon (Principal, Sabal Point Elementary School); and Donald Miller (Business Advisory Member). Karen Almond served as the non-voting School Board member. After the School Board assembled the Evaluation Committee, the four voting members received training on the RFP’s scoring procedure. The training was conducted by Luangel Lowder, the School Board’s Purchasing Agent, on August 17, 2017. Ms. Lowder drafted and prepared the RFP. She also facilitated the RFP process. Ms. Lowder distributed training notes to each evaluator, which included guidance on how to score the proposals. In her written comments, Ms. Lowder wrote, “The Vendor Submittals are on Individual Jump Drives. I do have a hard copy if needed.” Ms. Lowder also provided “Adjectival Descriptor Rating Guidelines,” which the voting members were to use to score the proposals. Regarding a score of “0,” the guidelines explained: Unsatisfactory (0): Not responsive to question. “Unsatisfactory” is defined as a response not meeting the requirements without major revisions and proposes an unacceptable risk. “Unsatisfactory” demonstrates a misunderstanding of the requirements; the approach fails to meet performance or capability standard and contains major omissions and inadequate detail to assure the evaluator that the respondent has an understanding of the requirement. RFP, Sections IV and V, also listed the specific evaluation criteria, as well as the adjectival scoring system, the Evaluation Committee was to use to determine each vendor’s score. RFP, Section V, directed that “[e]ach response shall be organized and presented in the following sequence and will include the following at a minimum”: Tab 1-Respondent’s Profile and Submittal Letter (Non- Scored) Tab 2-Experience of Personnel (Weighted Value 25) Tab 3-Technical Approach Methodology (Weighted Value 30) Tab 4-References (Weighted Value 10) Tab 5-Fee Schedule (Weighted Value 35) Tab 6-Confidential Materials, Financial Statement and Litigation (Non-Scored) Tab 7-Exceptions to Draft Contract (Non-Scored) Tab 8-Addenda (Non-Scored) Tab 9-Required Documents (Non-Scored) The proposals were to be scored on a scale of 0 to 4 with a score of 0 as the least favorable, and a score of 4 as the most favorable in all sections. RFP, Section IV, 1.C, noted that a vendor’s response would receive a score of 0 if it was “Unsatisfactory: Not responsive to the question.” The RFP did not provide objective measures for the evaluators to score the proposals. Instead, the School Board relied on the experience and judgment of each evaluator as to what score to award in each category. The RFP notified vendors that, after the proposals were evaluated, the Evaluation Committee might conduct interviews or presentations from a shortlist of vendors. Per the terms of the RFP, the School Board required each winning vendor to enter into a Master Services Agreement. The Master Services Agreement was to ensure that each vendor for the Photography Services complied with, and operated under, the same terms and conditions. These standard terms and conditions included, but were not limited to, requirements for background checks, licenses, certificates of insurance, as well as the use of a common commission’s structure. Thereafter, the School Board intended for each district school to select a company from the list of approved vendors from whom they desired to obtain the Photography Services. After the 13 vendors presented their proposals on August 15, 2017, the School Board distributed a thumb [USB] drive from each vendor to each Evaluation Committee member. At that point, each committee member separately scored each proposal using the four weighted criteria listed in RFP, Section V: Experience of Personnel (25 points), Technical Approach Methodology (30 points), References (10 points), and Fee Schedule (35 points). On September 21, 2017, the Evaluation Committee convened a “short-list meeting” to discuss the scores each committee member awarded to each vendor. When Cady Studios’ proposal came up for review, two committee members, Dr. Trent Daniel and Byron Durias, announced that the USB drives they had been given for Cady Studios were blank. Dr. Daniel had tried her USB drive on two computers with similar results: the USB drive did not contain any files. Ms. Lowder then asked both members if they wished to review another USB drive or a paper copy of Cady Studios’ presentation so that they could score its proposal. Dr. Daniel declined. On her score sheet for Cady Studios, Dr. Daniel wrote before the short-list meeting, “could not read USB - empty.” During the discussion between the other evaluators, Dr. Daniel added: “notes, experience limited, reference from school, senior package high, presentation of bid, partnership w/ Herff Jones.” At the end of the discourse, because she had no proposal to score, Dr. Daniel disclosed to the Evaluation Committee that she awarded Cady Studios a score of “0” in every category. Mr. Durias, however, was willing to evaluate Cady Studios during the short-list meeting. Therefore, Ms. Lowder provided him another USB drive that did contain Cady Studios’ proposal. After his review, Mr. Durias awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 1 – References, and 2 – Fee Schedule. Each USB drive that Tina Langdon and Donald Miller received for Cady Studios contained its proposal, which they scored. Ms. Langdon awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 3 – Fee Schedule. Mr. Miller awarded Cady Studios: 3 – Experience of Personnel, 2 – Technical Approach Methodology, 3 – References, and 2 – Fee Schedule. At the final hearing, Dr. Daniel explained that she passed on the opportunity to rescore Cady Studios’ proposal because, in her mind, a blank response (or USB drive) equated to a nonresponsive proposal. In other words, she scored what she had been given. Cady Studios’ proposal was “unsatisfactory” because it contained no response to the questions. Dr. Daniel further commented that Cady Studios’ failure to ensure that its proposal was properly copied onto all of its USB drives was irresponsible and unprofessional. This carelessness gave Dr. Daniel apprehension about the quality of service Cady Studios would provide if it could not follow the RFP’s explicit directions. Following the discussion and scoring of the vendors’ proposals, the Evaluation Committee members ranked all 13 vendors by overall total weighted scores. The Evaluation Committee’s final list of vendors and their scores read as follows: Grad Images: 1335 Life Touch: 1290 Leonard’s: 1272.5 Dean Stewart: 1140 Strawbridge: 1095 Josten’s: 1030 Walsworth: 1010 Cady Studios: 720 Barksdale: 715 Nation Wide: 710 Monden Studios: 705 Herff Jones: 670 Ritoba: 585 As shown above, Cady Studios received the eighth highest score. The Evaluation Committee then discussed which vendors it should invite back for informal interviews. After a brief deliberation, the Evaluation Committee reached a consensus that it should extend an interview to the top seven vendors on the scoring list. Dr. Daniel and Ms. Lowder explained that this division was chosen because of the “natural break” in the scores between the seventh ranked vendor (Walsworth) and the eighth ranked vendor (Cady Studios). Ms. Lowder relayed that the relatively large scoring differential between Walsworth (1010) and Cady Studios (720) (nearly 300 points) appeared to separate the top vendors from the others. Therefore, to narrow down the list of vendors to those most qualified to provide the Photography Services, the Evaluation Committee chose this gap as the dividing line. Dr. Daniel relayed that she had previously used this “natural break” scoring technique in cheerleading and dance competitions. Ms. Lowder testified that the RFP did not establish an exact number of vendors the School Board should select to provide the Photography Services. Neither did the RFP state how the vendors were to be condensed, if at all. The Evaluation Committee, however, felt that the number of approved vendors should be limited. A truncated list of vendors would provide a more manageable group for the School Board to oversee to ensure that each vendor offered a similar pricing structure and consistent services. This action would also make it easier for individual schools to select the vendor with which they desired to work. As a result of the Evaluation Committee’s “natural break” methodology, Cady Studios was not grouped with the winning vendors for the Photography Services. As a non-selected vendor, Cady Studios was not authorized to offer Photography Services to the district schools for the length of the RFP contract period (3 to 5 years). Cheryl Olsen serves as the School Board’s Director of Purchasing and Distribution. In this role, she supervised the procurement activities. After the Evaluation Committee’s short- list meeting, Ms. Olsen prepared a “Short List Letter” for the top seven vendors. The letter notified the vendors of their ranking on the short list and invited them back for informal interviews with the Evaluation Committee. On September 22, 2017, Ms. Lowder forwarded Ms. Olsen’s letter to the seven short-listed vendors. The interviews were scheduled for September 28, 2017. On September 28, 2017, the Evaluation Committee met with each of the seven short-listed vendors. Following the interviews, the Evaluation Committee decided that the School Board should offer the Photography Services to all seven short- listed vendors. That afternoon, Ms. Olsen drafted a Notice of Intended Decision announcing the intent to award the RFP to the top seven vendors. Ms. Olsen posted the Notice of Intended Decision on-line through both VendorLink and Demand Star. The Notice of Intended Decision stated: The Purchasing and Distribution Services Department hereby notifies all firms of an intended decision regarding the award of the [RFP] as outlined below or attached. The firms on the attached list will be recommended to the School Board on October 17, 2017 with final contracts to be presented at a future meeting. Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes.[6/] Attached to the Notice of Intended Decision was the list of the seven vendors who the Evaluation Committee intended to recommend to the School Board for award of the RFP. Cady Studios was not included on the list. On October 10, 2017, the School Board formally approved an award of the Photography Services to the seven vendors identified in the Notice of Intended Decision. On November 7, 2017, the School Board entered into a Master Services Agreement with each of the seven winning vendors for the Photography Services. The initial term of the Master Services Agreements runs from November 8, 2017, through November 7, 2020. Jimmy Smith works as the Market Vice President for Cady Studios. In his role, Mr. Smith oversees all of Cady Studios’ photography services in Florida. Mr. Smith prepared Cady Studios’ proposal for the RFP. Mr. Smith explained that he is familiar with the competitive solicitation process. He has previously submitted proposals on behalf of Cady Studios for school photography services in Pinellas, Hillsborough, and Brevard Counties. In a typical school portrait arrangement, the parents/students directly pay the studio for the photography services. The studio then pays a commission back to the school. Prior to the RFP, Cady Studios was an approved vendor for the School Board. Cady Studios had worked with approximately four schools in the Seminole County School District. Mr. Smith was also familiar with VendorLink and Demand Star, the on-line platforms the School Board used to publish information regarding the RFP. Mr. Smith learned about the RFP after the School Board had already posted notice of the solicitation on July 18, 2017. However, by August 9, 2017, Mr. Smith had registered Cady Studios with VendorLink, and began receiving the notifications regarding the RFP. On Sunday, September 24, 2017, Mr. Smith found out about the Evaluation Committee’s short-list from another vendor. Mr. Smith then accessed the VendorLink website and spotted the Evaluation Committee’s invitation to the seven top vendors to return for informal interviews. When he discovered that Cady Studios was not included on the list, he concluded that Cady Studios would not be awarded the Photography Services contract. Mr. Smith promptly wrote an e-mail to Ms. Lowder. He asked her for any information as to why Cady Studios did not make the Evaluation Committee’s shortlist. Ms. Lowder received Mr. Smith’s e-mail the following morning on Monday, September 25, 2017. She replied to Mr. Smith both through an e-mail, as well as a phone call. During the phone call, Ms. Lowder offered to meet with Mr. Smith for a “debriefing” to review the Evaluation Committee’s decision. Ms. Lowder did not offer any information as to why Cady Studios was not included with the short-listed vendors. Ms. Lowder and Mr. Smith scheduled the debriefing meeting for Thursday, October 5, 2017. In the meantime, Mr. Smith received the School Board’s Notice of Intended Decision on September 28, 2017. He did not contact Ms. Lowder to reschedule the debriefing meeting. On October 5, 2017, Mr. Smith met with Ms. Lowder and Ms. Olson for the debriefing meeting. They reviewed the results of the Evaluation Committee’s short-list meeting, as well as each evaluator’s scores. During this meeting, Mr. Smith first discovered that one evaluator (Dr. Daniel) scored Cady Studios’ proposal with a “0” in every category. Mr. Smith further learned that Cady Studios received this score because the USB drive Dr. Daniel had been given was blank. At the final hearing, Mr. Smith adamantly declared that all 10 USB drives that he produced for the School Board contained Cady Studios’ proposal. He had no idea why two of the drives were blank when opened by Dr. Daniel and Mr. Durias. Mr. Smith also pointed out (correctly) that the RFP contained no provisions regarding what an evaluator was supposed to do with a blank USB drive. The RFP certainly did not direct the evaluator to score the proposal with all zeros. In his communications with Ms. Lowder, Mr. Smith never indicated that Cady Studios intended to protest the School Board’s ranking of vendors, or challenge the School Board’s decision in any other manner. However, on October 12, 2017, legal counsel for Cady Studios, Jeff Childers (Cady Studios’ counsel in this administrative matter), wrote to Ms. Olsen questioning the results of the RFP. Mr. Childers referenced the fact that one evaluator failed “to assign any points in any category to Cady.” Mr. Childers concluded by requesting that the School Board consider resolving this issue informally by allowing Cady Studios “to join the other seven authorized proposers” to provide Photography Services to district schools. On October 16, 2017, Ms. Olsen responded to Mr. Childers in a letter saying: The Notice of Intent to Award this solicitation was posted on September 28, 2017 at 2:24 p.m. In accordance with School Board Policy 7.71, Resolution of Bid Protests, “Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation.” Ms. Olsen then noted that, as of the date of her letter, Cady Studios had not filed a written notice of protest with the Office of the Superintendent or Clerk of the School Board. At the final hearing, Ms. Olsen (as well as Ms. Lowder) explained that, because the School Board posted its Notice of Intended Decision on Thursday, September 28, 2017, the 72-hour deadline to file a protest fell on Tuesday, October 3, 2017. (Saturday, September 30, 2017, and Sunday, October 1, 2017, are excluded in the computation of the 72-hour time period. See § 120.57(3)(b), Fla. Stat.) The fact that Mr. Smith’s debriefing meeting occurred two days after the 72-hour period had elapsed did not change the protest calculation. As described above, the School Board’s Notice of Intended Decision specifically stated, in pertinent part: Failure to file a protest within the time prescribed in section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of the proceedings under Chapter 120, Florida Statutes. Similarly, RFP, General Purchasing Terms and Condition, Paragraph 10, entitled, RFP TABULATIONS, RECOMMENDATIONS, AND PROTEST, addressed the possibility of a bid protest and stated: Failure to file a protest within the time prescribed in Section 120.57(3) Florida Statutes will constitute a waiver of proceedings under Chapter 120, Florida Statutes and School Board Rules.[7/] Paragraph 10 also referenced School Board Policy 7.71, Resolution of RFP Protest, and included a link to the School Board’s policy webpage where the Policy 7.71 could be accessed. Policy 7.71, Section V, states: Notice of Protest - Any person who claims to be adversely affected by a proposed award of a bid and who has standing to protest an award of a bid, may file a written notice of protest with the Office of the Superintendent or Clerk of the School Board not later than seventy-two (72) hours of the time of the posting of the bid tabulation. In the event notice of intent to award a bid is issued by certified mail or express delivery service return receipt requested, the notice of protest must be filed on or before 4:30 p.m. on the third day following the date of receipt of the notice. In computing the deadline for filing, Saturdays, Sundays, and legal holidays observed by the School Board shall be excluded. Despite Ms. Olsen’s letter, as well as the language regarding protests in the RFP and the Notice of Intended Decision, Cady Studios formally filed a Notice of Protest with the School Board on November 9, 2017. At the final hearing, Mr. Smith acknowledged that 72 hours following the Notice of Intended Decision (not including Saturday and Sunday) fell on October 3, 2017. Therefore, to explain the delay in submitting Cady Studios’ Notice of Protest, Mr. Smith testified that he did not become aware of the material deficiencies in the Evaluation Committee’s review of Cady Studios’ proposal until he met with Ms. Lowder on October 5, 2017. Mr. Smith further admitted that he was not fully aware that Cady Studios only had 72 hours in which to protest the Notice of Intended Decision. Instead, he relied on Ms. Lowder to explain the RFP process, as well as the basis for the Evaluation Committee’s selection of the winning vendors. Consequently, Mr. Smith asserted that Cady Studios “was misled or lulled into inaction by” the School Board’s (Ms. Lowder’s) action of not scheduling a debriefing meeting until two days after the 72-hour protest window had closed. Mr. Smith maintained that if he had been informed of the deadline, Cady Studios would have filed immediately. Mr. Smith conceded that he was familiar with the protest language contained in the RFP’s General Purchasing Terms and Conditions, and was generally aware that the RFP referred to section 120.57(3). Mr. Smith further disclosed that he had read RFP, Paragraph 10, which identified Policy 7.71. However, he did not click the link to actually read the policy. Mr. Smith estimated that, by not making the School Board’s list of approved vendors for the Photography Services, it will lose approximately $2,000,000 worth of business and opportunity costs every year over the life of the contract. At the final hearing, Ms. Lowder responded to Mr. Smith’s testimony by pointing out that, even if Dr. Daniel had awarded Cady Studios with a “1” in each category, Cady Studios’ score would only have increased to 820. As the next lowest score to Cady Studios was 1010, Cady Studios’ adjusted score would still have fallen significantly below the top seven vendors. Continuing to conjecture, Ms. Lowder commented that if Dr. Daniel had given Cady Studios scores similar to the lowest score awarded by the other committee members, Cady Studios’ score would have equaled 935. This score is still below the “natural break” threshold of 1010. On cross examination, however, Ms. Lowder agreed that if Dr. Daniel awarded Cady Studios scores similar to the highest score awarded by the other committee members, Cady Studios would have received a score of 990--much closer to, but still below, the “natural break.” Ms. Lowder and Ms. Olsen also remarked that November 9, 2017, the date Cady Studios eventually filed its Notice of Protest, was 27 business days after the deadline to file a bid protest (and 25 business days after Mr. Smith learned the Evaluation Committee’s scores at the debriefing meeting). Cady Studios’ Notice of Protest was also submitted after the School Board had entered into a Master Service Agreement with each of the seven winning vendors. As discussed in detail below, the evidence presented at the final hearing establishes that Cady Studios failed to timely file its notice of protest within 72 hours after the School Board posted its Notice of Intended Decision. Further, Cady Studios did not prove that it may circumvent the filing deadline based on the defense of equitable tolling. Therefore, Cady Studios’ challenge of the School Board’s intended award of the Photography Services must be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board enter a final order dismissing Cady Studios’ protest as untimely filed. DONE AND ENTERED this 23rd day of January, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 23rd day of January, 2019.
The Issue The issues in this bid protest are whether Intervenor's bid was nonresponsive because Intervenor, a corporation formed in 2005, lacks the required five years' experience in the tree trimming business; and, if so, whether Respondent's preliminary decision to award Intervenor the contract at issue was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Pursuant to Invitation to Bid No. 27-054X (the "ITB"), which was issued on August 10, 2006, Respondent Broward County School Board ("School Board") solicited bids for "Tree Trimming, Planting, Hurricane Cleanup, and Removal Service." Interested vendors were instructed to bid prices on numerous items of service. The items were sorted into two groups, Group A and Group B. The School Board intended to designate a "primary vendor" for each group, who in the ordinary course of events would receive the largest volume of work, but it reserved the right to procure services from the second and third lowest bidders in each group should it become necessary or desirable to do so. Bids were due on September 13, 2006. Section 4 of the ITB contained "Special Conditions" applicable to this procurement. Of interest in this case is Special Condition No. 11, which specified the qualifications a vendor needed to be considered for an award: BIDDER'S QUALIFICATIONS: Bidder must have at least five years experience in tree trimming services within the Miami-Dade, Broward and Palm Beach tri-county area. Bidder must submit, with the bid or uponrequest, the attached Bidder's Profile form. This report must include a minimum of three references from commercial jobs. Each reference should include the address of the actual job, work accomplished and a phone number and contact person. (Emphasis in original.) The Bidder Profile form to which Special Condition 11 referred was located in Section 7 of the ITB as Attachment 1. At the top of the Bidder Profile appeared the following direction and warning: THIS INFORMATION MUST BE SUBMITTED WITH THE BID. FAILURE TO COMPLETE THIS SECTION WILLDISQUALIFY THE SUBMITTED BID. (Emphasis in original.) Paragraph 12 of the Bidder Profile form stated as follows: References Required. Contractor to provide a list of three references. Three references from jobs completed in each of the past three years. More than one dozen vendors timely submitted bids, which the School Board opened on September 13, 2006. Among the bidders were Petitioner Phil's Expert Tree Service, Inc. ("Expert") and Intervenor Innovative Environmental Services, Inc. ("Innovative"). After tabulating the bids, the School Board determined that Innovative was the lowest and best bid from a responsive, responsible bidder with regard to Group A, followed by Expert and All County Tree & Landscape Co., Inc. ("All County"), in that order. Thus, when the award recommendations were posted on September 27, 2006, Innovative was named the intended primary awardee for Group A, Expert the first alternate, and All County the second alternate.1 Innovative is a family business whose principals are Craig and Deborah Conway, husband and wife. In the year 2000, the Conways moved to South Florida from Pennsylvania, where, for more than 20 years, they had operated a tree trimming and land clearing business. After arriving in Florida, the Conways entered into a business arrangement with Donald Richter, a certified arborist, whereby they jointly provided tree trimming services under the name "ASAP Tree Service" or "Don Richter's ASAP Tree Service." In October 2002, the Conways formed a corporation called Independent Equipment South, Inc. ("Independent"). Independent operated an equipment sales and rental business whose inventory consisted of equipment that was not being used in the family's tree trimming operations. Eventually, the Conways' tree trimming service become part of Independent's business portfolio as well. In February 2005, Innovative was incorporated. At all times relevant to this procurement, Mrs. Conway has been the sole corporate officer, Mr. Conway the company's Director of Operations. In addition, at all relevant times, Innovative has employed or otherwise retained Mr. Richter as its certified arborist. Although Innovative and Independent are separate corporate entities, the two businesses operate out of the same location, have the same employees, and use the same equipment. The Conways commonly refer to their businesses as "IES," using that acronym interchangeably to mean either Innovative or Independent (or both). Innovative's Bidder Profile, which was submitted together with its bid, referred to——and incorporated——an attachment entitled, "Brief Company History." The Brief Company History provided background information on Innovative's provenance, albeit from a layperson's perspective. Written by nonlawyers, the summary was not always technically precise, from a legal standpoint, in its descriptions of the various business associations in which the Conways have been involved. Seizing on the least artful phrases, Expert contends that some of the statements in the Brief Company History were false and perhaps even fraudulent. The undersigned, however, finds otherwise. To the point, the Brief Company History reflects an honest attempt truthfully to describe the Conways' family businesses, which is reasonably accurate when read and understood from the perspective of the small-business owners who prepared it. That said, the undersigned finds and determines that Innovative——as distinct from its principals and/or personnel—— did not have five years' experience in the tree trimming business when it bid on the contract at hand, notwithstanding the wealth of tree trimming experience at its disposal. Indeed, having been in existence for fewer than two years at the time it submitted its bid, Innovative, as a separate legal entity, could not possibly have garnered, in its own right, five years' experience doing anything. For the same reason, though Innovative provided plenty of references, the ones that stemmed from jobs completed before February 2005 necessarily related to providers other than Innovative, such as ASAP Tree Service, who actually existed then. To be sure, the providers who earned the references from earlier jobs upon which Innovative relied either were predecessor business associations or individuals who would become personnel of Innovative——but they were not Innovative. Innovative simply could not have performed or completed any jobs before its creation. It is determined, therefore, as a matter of ultimate fact, that Innovative's bid did not strictly conform to the plain language of Special Condition No. 11. Like Innovative, Expert is a family-owned business. Founded in 1985 by Philip Simeone, Expert was incorporated in 1992. Though Expert clearly possesses the length of experience for which Special Condition No. 11 called, Expert failed in its Bidder Profile to provide three references "from jobs completed in each of the past three years," as instructed in paragraph 12 of the ITB's Section 7, Attachment 1. Instead, Expert gave two references from jobs completed in 2006 plus another from a job completed in 2004. Expert's bid did not contain a reference from a job completed in 2005. Expert contends that the School Board should have rejected Innovative's bid as materially nonresponsive (for lacking the requisite five years' experience) and awarded the contract to Expert as the lowest responsive bidder. The School Board and Innovative take the position that the School Board's decision to treat Innovative's bid as responsive was not clearly erroneous, arbitrary, or capricious. Turning the tables, the School Board and Innovative argue that Expert's own bid deviated from Special Condition No. 11, in that Expert failed to provide a reference from a job completed in 2005.2 Yet both assert that "it was reasonable for [the School Board] to waive the requirement of the Bidder Profile form that one . . . reference[] be [from] a job completed in the year 2005." Somewhat inconsistently, however, Innovative argues further that Expert's "bid proposal cannot be sustained"——evidently due to its material nonresponsiveness. This apparent inconsistency follows from Innovative's attempt to play down its alternative position, which is that if "a contrary conclusion [had] been reached as to [Innovative's] experience"—— meaning that if the School Board had chosen not to waive any irregularity concerning Innovative's length of corporate experience——then the "same analysis would apply to" Expert—— meaning that Expert's bid too should have been disqualified. Thus, even though Innovative maintains that the School Board reasonably waived any irregularities in Expert's bid, Innovative is unwilling to concede that the School Board did not err in determining that Expert's bid was responsive, evidently out of concern that such an admission might compromise its fallback position. Innovative's bottom line is that if Innovative's bid were to be disqualified as materially nonresponsive, then Expert's bid would need to be rejected, too.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that (a) declares Innovative's bid to be materially nonresponsive and, accordingly, rescinds the proposed award to Innovative; and (b) declares Expert's bid to be materially nonresponsive and, accordingly, rejects the same. Because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation as to whether the School Board should award the contract to All County (which was the putative "second alternate") or reject all bids and start over. DONE AND ENTERED this 19th day of March, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2007.
Findings Of Fact On August 24, 1981, Famous Brands Television and Appliances, Inc., entered into a Consent Order with the State Attorney for Palm Beach County, Florida, whereby Famous Brands, together with its principals and officers and agents, agreed to cease and desist from utilizing "bait and switch" practices or be held in contempt of court. At all times material to that litigation, Respondent Bill Lacek was the president of Famous Brands Television and Appliances, Inc. Famous Brands became bankrupt. Lacek knew that his credibility had been affected by his management of Famous Brands. Therefore, when he opened V.T.S. Video, Inc., a similar business, he placed the corporation in the name of his sister Rose Richard. Although ostensibly the president and sole director of V.T.S. Video, Rose Richard's duties were limited to those of a bookkeeper/office manager, the same duties which she had when she worked for her brother at Famous Brands. V.T.S. Video was in the business of advertising and offering for sale video, television and stereo products to the general public. The business was located at 25 North Military Trail, West Palm Beach, Florida. Respondent Bill Lacek formulated, controlled, and directed the acts and practices at V.T.S. Video. He was personally responsible for the purchasing, advertising, marketing, and promoting of the products sold by V.T.S. Video. He personally wrote the advertising, established the sales commission structure for the employees of V.T.S. Video, and attended sales meetings. Lacek solicited customers through newspaper advertising, including advertisements in The Palm Beach Post. Lacek's advertisements included ads for Sony and Hitachi televisions and video cameras. Respondent Lacek's advertisements were not bona fide offers to sell the advertised products. When customers appeared at V.T.S. Video to purchase the advertised Sony or Hitachi products, they were told by V.T.S. Video employees that the Sony or Hitachi products were not available or that the only product available was a "floor model," i.e., a model which has been used at the business for demonstration purposes and which frequently has been damaged and is, therefore, an unattractive product for purchase. Additionally, Lacek and the employees of V.T.S. Video would disparage the advertised products and "switch" the shopper to a different brand, the item which Lacek intended to sell instead of the advertised product. To assure that his salesmen would follow his established "switch and bait" techniques, Lacek set the sales commission structure so that no commission was paid to a salesman who sold the advertised product (if one were available) rather than the product to which the customer was to be switched. Further, the advertisements written by Lacek did not disclose the fact that the advertised item was a floor model. Hopper Electronics in Miami purchases from the factory rebuilt or refurbished products which it then sells to wholesalers. A rebuilt or refurbished product is a product which has been returned to the factory as defective by a customer or a distributor. The factory repairs the item and then re-boxes it for sale. In other words, a rebuilt or refurbished ("RB") product is a used product. Lacek purchased from Hopper on behalf of V.T.S. Video between 3,000 and 5,000 Emerson "RB" products between approximately late 1986 and late 1987. All of the Emerson RB units purchased from Hopper Electronics carried a label saying "RB" on the back of the unit itself and a label saying "RB" on the box containing the unit. Lacek paid Hopper Electronics a total of $780,000 for Emerson RB units during that time period. Although Lacek knew that the RB units were used and not new products, his newspaper ads for those units did not disclose that the products were used or that they were RB products. The Emerson televisions and VCRs purchased from Hopper were sold to the public as new products. Lacek instructed his employees not to disclose that the Emersons were not new products. If a customer questioned the "RB" label appearing on the back of the unit or on the box, the customer was told that the product had been re-boxed or that the product was from Riviera Beach. Respondent Bill Lacek knew that his sales practices were deceptive and that they constituted unfair trade practices, even prior to the institution of this proceeding, since they were the same practices that he was enjoined from utilizing when he signed the Consent Order on behalf of Famous Brands Television and Appliances, Inc., in 1981. Respondent Lacek's practices in the operation of V.T.S. Video have injured the public. Two Assistant Attorneys General represented Petitioner at the final hearing in this cause. Attached to Petitioner's proposed recommended order are affidavits from those attorneys stating that they have spent 220 hours combined in the "investigation and resolution" of this matter. Petitioner has failed to submit a cost affidavit and has therefore waived its statutory right to recover reasonable costs in this action. The Agreed Final Order to Cease and Desist entered into by Petitioner and Respondents V.T.S Video, Inc., and Rose Richard the day before the final hearing in this cause provides that Respondent V.T.S. Video, Inc., will pay to Petitioner the sum of $10,000 in civil penalties plus the sum of $15,000 for attorney's fees in this action.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered: Finding Respondent Bill Lacek guilty of the allegations in the Complaint filed against him; Ordering Respondent Bill Lacek to cease and desist from all violations of Chapter 501, Part II, Florida Statutes, and of Chapter 2-9, Florida Administrative Code; Assessing against Respondent Bill Lacek a civil penalty in the amount of $1,500,000; and Denying Petitioner's claim for reimbursement of its attorney's fees and costs against Respondent Bill Lacek. DONE and ENTERED this ,7th day of March, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0505 Petitioner's proposed findings of fact numbered 5, 7-15, and 17 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact. Petitioner's proposed finding of fact numbered 16 has been rejected as not being supported by the record in this cause. COPIES FURNISHED: Rhonda G. Lapin, Esquire Andy Itzkovits, Esquire Assistant Attorneys General Suite N921 401 N.W. Second Avenue Miami, Florida 32128 James S. Telepman, Esquire 340 Royal Palm Way Post Office Box 2525 Palm Beach, Florida 33480 (Last known address for Respondent Bill Lacek) Honorable Robert A. Butterworth Attorney General The Capitol Tallahassee, Florida 32399-1050 =================================================================
