Findings Of Fact In July, 1989 the District published its request for bids (number 8980) for an atomic absorption spetrophotometer in local newspapers and to prospective interested parties, as shown in joint Exhibit 1 in evidence. The specifications for the instrument were included in the bid package and were authored by Mark Rials, the District's Laboratory Supervisor. The District received two bids for the instrument in response to the request for bids, one from Varian for approximately $57,000 and one from Perkin-Elmer for approximately $59,900. Mark Rials evaluated the bids. Upon evaluation it was determined that the Varian instrument proposal did not meet bid specifications in three major areas. The specifications required a system capacity of 40 megabytes, hard drive capability. The capacity offered by Varian in its bid was for 20 megabytes. The specifications required a combination of a 5 1/4 inch disk drive for its computer system as well as a 3 1/2 inch disk drive. Varian only bid the 3 1/2 inch diskdrive. It did not offer the 5 1/4 inch disk drive which was required. Additionally, at item IX of the specifications, the District required that a list be submitted with the bid which stated, on an item-by-item basis, how the instrument met or exceeded the specifications. Each item in the specifications had been carefully selected to insure optimum performance for the laboratory so that exceptions to the specifications were required to be noted and attached in the bid response. Varian failed to conform to this item of the specifications. This item allowed a vendor to describe in its bid response how it could differently meet the specifications in a better manner or even exceed the specifications, but Varian failed to provide this itemized list. It was also determined that the Varian bid did not conform with the specifications of item IV page 4 of the invitation to bid document concerning the provision of service manuals, system and application software documentation, methods, manuals, parts catalogs, supplies, accessories, catalog, and training manuals. Conversely, it was determined that the Perkin-Elmer bid was responsive in all respects, met the bid specification in these major categories and was the most responsive bidder. After witness Rials conducted the evaluation of the bids, in terms of compliance with the specifications, he and the District determined that the Perkin-Elmer bid was the lowest, responsive bidder which met all specifications. It duly published the intended award and notified all bidders of the bid results. In this evaluation and award process it was demonstrated that the District followed all applicable procedures in its rules and policies concerning evaluation and award. Varian timely filed an objection to the award of the bid; and in accordance with its normal bid protest procedures, the District scheduled a conference between representatives of Varian and District representatives to review Varian's bid. Varian made several statements at that meeting which constituted a substantial deviation from the bid package it had earlier submitted and amounted to an attempted restructuring of its bid in an effort to meet bid specifications. The District declined to countenance this effort and adhered to its initial intent to reject the bid which was submitted by Varian and to not allow the attempted material deviations to be ascribed to Varian's bid, after the point of bid opening and announcement of award. In summary, based upon the bid specifications issued by the District the evaluator's determination concerning the specifications that the evaluator drafted was that the Varian instrument failed to meet bid specifications because of the major deficiencies in the areas found above, regarding systems capacity, computer disk drive availability, and specification response. It has clearly been demonstrated by competent substantial evidence that the District's decision to reject Varian's bid was a reasonable one. It was based solely on a fair comparison of the response of the two bids to the specifications contained in the invitation to bid and notice to all potential vendors. In consideration of the facts established by the evidence in this record, it is found that the bid by Perkin-Elmer substantially met all bid requirements or specifications, even though the Perkin-Elmer bid was the second low bidder in terms of dollar cost. Since the low-cost bidder, Varian, failed to meet major bid specifications, the facts demonstrate that the Perkin-Elmer bid was the most responsive of the two bids at issue and is, therefore, the best bid. Consequently, award should be given to the Perkin-Elmer bid for the instrument in question.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties it is therefore RECOMMENDED: That the Southwest Florida Water Management District issue a final order denying the petition filed by Varian Instrument Group and awarding bid number 8980 to Perkin-Elmer Corporation, as the lowest, responsive bidder. DONE and ENTERED this 6th day of February, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990. APPENDIX Respondent's Proposed Findings of Fact 1-9 are accepted. Petitioner Filed No Proposed Findings of Fact. COPIES FURNISHED: Mr. Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Mickey McAllister District Sales Manager Varian Instrument Group 505 Julie Rivers Road, Suite 150 Sugar Land, TX 77478 A. Wayne Alfieri, Esquire Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
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 Whether the Department’s intended award of contract E2K97 for Asset Maintenance of the Duval County Roadways is contrary to the agency’s governing statutes, the agency rules or policies or the bid or proposal specifications.
Findings Of Fact The following facts were agreed between the parties in their Joint Pre-Hearing statement: On June 18, 2007, FDOT posted the solicitation for asset maintenance of the Duval County Roadways through procurement E-2K97. The RFP requested technical proposals and bids for a five-year contract for maintenance of identified roads in Duval County. The RFP provides that the scoring of the technical proposals is to be weighted as follows: Administration Plan (20%), Management and Technical Plan (30%), Operation Plan (30%), and Plan for Compliance with Standards (20%). ESI did not file a protest of the RFP's terms, conditions, specifications, or provisions governing the method of ranking proposals within 72 hours of the posting of the solicitation. A mandatory pre-bid meeting was held on July 10, 2007. The technical and price proposals for this project were due by August 9, 2007. Four firms submitted timely proposals in response to the RFP. They were ESI, DBI, Infrastructure Corporation of America (ICA) and VMS. The proposals were evaluated by three registered civil engineers who are employed by FDOT: Jerry Ausher, Julius Rinosa, and Mark Kuhn. All four firms were determined to be responsive and received scores on their technical proposal and price proposal. DBI's average score on its technical proposal was 88, the highest of the four firms. ESI's average score on its technical proposal was 75.33, the lowest of the four firms. ESI's price proposal bid was $44,759,500.00, the lowest of the four firms. DBI's price proposal bid was $48,748,886.00, the second lowest of the four firms. After combining the technical scores and price proposal scores, the total proposal scores for the four firms were as follows: DBI = 89.14, VMS = 85.19, ESI = 82.73, and ICA = 82.68. On September 4, 2007, FDOT posted its notice of intended award to DBI as the winning bidder. ESI filed a notice of intent to protest on September 7, 2007, followed by a formal written protest on September 17, 2007. DBI filed a Petition to Intervene which was granted on November 7, 2007. As the intended awardee, DBI has a substantial interest in the outcome of this proceeding and thus, has standing to intervene.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner’s Amended Formal Written Bid Protest be dismissed. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 31st day of March, 2008. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Denise Johnson, Esquire Assistant General Counsel Florida Department of Transportation Office of the General Counsel Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire 2104 Delta Way, Suite 9 Tallahassee, Florida 32303 J. Reuben Hamlin, Esquire Post Office Box 1620 Newberry, Florida 32669 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450
The Issue Whether Respondent should sustain Petitioner's challenge to the preliminary determination to reject Petitioner's bid as not responsive to Respondent's Invitation to Bid No. SB 91C-284V and to award the contract to another bidder that submitted a higher bid?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: On March 12, 1991, Respondent issued Invitation to Bid No. SB 91C-284V (hereinafter referred to as the "ITB") through which Respondent solicited the submission of bids to supply Respondent with prestressed concrete poles for a one year period beginning May 16, 1991. The ITB was a multi-page document with various component parts. Bidders were instructed on the first page of the ITB to complete and "RETURN ONE COPY OF ALL BID SHEETS AND THIS [BIDDER ACKNOWLEDGMENT] FORM." They were advised elsewhere on the first page of the ITB that "[o]ne copy of all bid documents that ha[d] page numbers, and this executed Invitation to Bid [Bidder Acknowledgment] [F]orm [had to] be returned for the Bid to be considered." The advisement concerning the requirement that all numbered pages had to be returned for a bid to be considered was repeated at the bottom of each numbered page of the ITB. Directly beneath the Bidder Acknowledgment Form on the first page of the ITB was the following provision: This Invitation to Bid, General Conditions, Instructions to Bidders, Special Conditions, Specifications, Addenda and/or any other pertinent document form a part of this proposal and by reference are made a part thereof. The ITB further provided, among other things, that "[i]n the best interest of [Respondent], [Respondent] reserve[d] the right to reject any and all bids and to waive any irregularity in bids received." Petitioner and South Eastern Prestressed Concrete, Inc. (South Eastern) submitted the only bids in response to the ITB. In accordance with the ITB'S instructions, Petitioner completed and returned to Respondent the Bid Summary Sheet, on which it indicated its price offer. It also completed and executed the Bidder Acknowledgment Form and returned it, along with the entire first page of the ITB, to Respondent. Petitioner, however, failed to return, as part of its bid submittal, all of the numbered pages of the ITB. Omitted from Petitioner's submittal were numbered pages 3 and 4. These missing pages contained paragraphs A. through N. of the ITB's Special Conditions, which covered the following subjects: A. Scope; B. Delivery; C. Award; D. Term of Contract; E. Brand Name; F. Catalog Cuts; G. Estimated Quantities; H. Bid Exempt; I. Bidders Responsibility; J. Corrections; K. Joint Bidding, Cooperative Purchasing Agreement; L. Withdrawal; 1/ M. Minority Certification Application; and N. Public Entity Crimes. There was nothing on numbered pages 3 and 4 of the ITB that the bidder needed to fill out or sign. While paragraphs M. and N. of the ITB's Special Conditions did make reference to certain forms that the bidder had to complete and submit to Respondent, these forms did not appear on either numbered page 3 or numbered page 4. They were separate documents. Petitioner completed these forms and submitted them to Respondent pursuant to the requirements of the Special Conditions. Petitioner did not propose in its bid submittal any contract terms or conditions that were at variance with those set forth in paragraphs A. through N. of the ITB's Special Conditions. Petitioner did not intend to signify, by failing to return numbered pages 3 and 4, any unwillingness on its part to adhere to contract terms and conditions set forth on those pages. Of the two bids submitted in response to the ITB, Petitioner's was the lowest. A preliminary determination, though, was made to reject Petitioner's bid because Petitioner had not returned numbered pages 3 and 4 of the ITB and to award the contract to South Eastern as the lowest responsive bidder. It is this preliminary determination that is the subject of the instant bid protest filed by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner the contract advertised in Invitation to Bid No. SB 91C-284V. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991.
The Issue Whether a bid dispute arising in connection with an emergency bid letting is an appropriate subject for formal administrative proceedings, in the absence of an administrative challenge to the fact of the emergency?
Findings Of Fact The parties stipulated that DOT had "received [Baxter's] notices of protest dated September 23, 1983, October 14, 1983, and December 16, 1983, protesting the Department of Transportation's determination that Baxter's Asphalt was not the lowest responsible bidder on this project and petitioning for formal administrative hearings." Baxter's bid was indeed the apparent low bid on Job No. 53030-3511, but DOT has taken the position that Baxter is not a responsible bidder, and has disregarded Baxter's bid on that account. The DOT has moved beyond proposed action and has actually awarded the contract to Gulf, the second low bidder. The parties stipulated: Pursuant to Section 120.53(5)(c) , Florida Statutes, the Department has decided to proceed with the award and execution of the contract with Gulf Asphalt Corporation in order to avoid what the Department perceived as an immediate and serious danger to the public health, safety, or welfare. DOT executed the contract with Gulf on January 6, 1984. As grounds for executing the contract, notwithstanding the pendency of formal administrative proceedings, the Secretary of the DOT stated: ...The conversion of this two lane roadway to a four lane facility is badly needed to increase the traffic capacity and improve the safety of the highway for the traveling public. This section of roadway has a structural rating of 35 which places it in the "Critical" range . . . [and] has an accident ratio of 1.244 which is almost 25 percent above the average rate. dditional funds were appropriated by the Florida Legislature so that work could proceed without delay. It is also imperative that these projects proceed in an orderly fashion to maximize the effective use of [DOT] construction in spection and supervisory personnel. Letter from Secretary Pappas to Baxter, December 23, 1983. Baxter does not concede that an emergency exists with respect to Job No. 53030- 3511, but did concede that the existence of an emergency was for the agency head to determine, subject only to judicial review. In its petition for formal administrative proceedings, Baxter did not raise the question whether an emergency exists. For purposes of the present administrative proceeding, there is no dispute or issue as to the existence of the emergency.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent dismiss petitioner's formal written protest as moot. DONE and ENTERED this 9th day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1984. COPIES FURNISHED: Frank A. Baker, Esquire Roberts and Baker P. O. Box 854 Marianna, Florida 32446 Robert I. Scanlan, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.
Findings Of Fact State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items. Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows: Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project. The prospective bidders were also given this information in the pre-bid meetings. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows: Bidder Total Bid D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500. Rovel Construction, Inc. $1,559,000. Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows: Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive. No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work. When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast BIN A02 Tallahassee, Florida 32399-1703 Robert A. Hingston, Esquire Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P. 901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134 Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health Miami-Dade County Health Department 1350 Northwest 14th Street Miami, Florida 33125 William G. Christopher, Esquire Brown Clark, A Professional Association 1819 Main Street, Suite 1100 Sarasota, Florida 34236
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In or about the fall of 1993, the Department issued a Request for Proposal and Bid Proposal Submittal Form (hereinafter referred to as the "RFP") for Lease No. 700:0674. Through the RFP, the Department solicited the submission of proposals to lease to the Department 5,748 square feet + 3 percent of office space in St. Lucie County for use as a probation and parole office commencing "5/1/94 or within 105 days after notification of award of bid whichever occurs last." According to the RFP, the term of the lease would be "[f]ive (5) years with an option to renew for an additional five (5) years." The probation and parole office in question is currently located in space leased to the Department by Petitioners.2 It has been at this location, which is in close proximity to the City of Fort Pierce police station, for approximately the last six years. Section A. of the RFP contained the "General Specifications and Requirements." The subject of "parking" was addressed in paragraph 7. of Section A., which provided as follows: Parking: Approximately 30 off-street spaces for the exclusive use of the employees and clients at no additional charge to the lessee. Parking space must be under the control of the bidder and be suitably paved, lined, and bumper pads installed. A minimum of two spaces must meet the requirements of the Standards for Special Facilities for physically disabled, Attachment D. BIDDER RESPONSE: a) exclusive spaces available on-site at no cost to the lessee; b) exclusive spaces available off-site at no cost to lessee. Spaces located from proposed facility. (distance) As An Option c) non-exclusive spaces available at no cost to lessee. Space located from proposed facility. (distance) Bidder's Initials Paragraph 12. of Section A. provided, in pertinent part, that "[t]he proposed space must be an existing building" and that the "[p]roposed use of this building must meet required zoning." Section B. of the RFP contained the "Space Requirement Criteria." Paragraphs 2. and 3. of Section B., which provided as follows, set forth the "Electrical requirements" and the "Telephone requirements," respectively: Electrical requirements Minimum of two duplex electrical outlets and one fourplex in each room or office including adequate additional fourplex outlets in each open clerical/file area. Facility complies with the National Electrical Code. BIDDER ACKNOWLEDGMENT Bidder's Initials Telephone requirements Minimum of one telephone outlet in each room or office including additional outlets in each open clerical/file area. All wiring, existing or to be installed, complies with the National Electrical Code, Section 8000-3, Paragraph d. BIDDER ACKNOWLEDGMENT Bidder's Initials The subject of "security" was addressed in paragraph 10. of Section B., which provided as follows: Security requirements: Security shall include but not be limited to the following: Locks on all outside doors and outside windows. Night lights on all outside doors. Night lights in parking area nearest building. Parking lot must be fully illuminated and create no dark shadows. Dead bolt locks on storage space doors. Convex detection mirrors in the lobby. Solid core doors swinging out into the lobby to separate lobby from secure areas. Electric pass-through buzzer locks (with keys) to be installed on solid core doors. Pass-through ports (similar to the Le Febure Model #BK-4431 walk up design window unit) to be used between the lobby and reception area. A two-way intercom system between reception area and the receptionist BIDDER ACKNOWLEDGMENT Bidder's Initials Paragraph 14. of Section B. listed certain "Miscellaneous requirements," including the following: PROTECTIVE ALARM SYSTEM The lessor shall, at his own expense, install or cause to be installed, maintain and arrange for 24 hours monitoring with a Certified Security Company during the term of this lease agreement the following equipment in regard to the alarm protective system: Burglar Alarm and Fire Alarm Door bugs and Window Tape Dual-Tech Motion Sensors for Computer and Typing areas Panic button with Silent Alarm Two 1/2" Bullet proof glass (lexan) in Reception and Cashier's windows . . . Staff of both sexes will be required to work in this facility during both daylight and evening hours. An environment in which staff can expect to be safe is essential. BIDDER ACKNOWLEDGMENT Bidder's Initials The "Evaluation Criteria (Award Factors)" were enumerated in Section of the RFP, which provided as follows: The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Rental, using Total Present Value methodology for basic term of lease (See #D, General Provisions Items 1 and 2) applying the preset value discount rate of 5.22 percent (Weighting: 40) Option period- rental rate proposed is within projected budgetary restraints of the department. (Weighting: 10) Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the Invitation to Bid. (Weighting: 15) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space. Building should be located in a professional business neighborhood.3 (Weighting: 7) Offers providing space all on the same floor. (Weighting: 5) Frequency and availability of satisfactory public transportation within one block of the offered space. (Weighting: 3) Availability of adequate dining facilities within two blocks of the offered space. (Weighting: 2) Proximity of offered space to the clients to be served by the Department at this facility. (Weighting: 5) Proximity of offered space to other Department activities as well as other public services. (Weighting: 3) Proximity of adequate parking area to the building. Must be well-lighted. (Weighting: 10) Total award factors= 100 The RFP's "General Provisions" were set forth in Section D. of the RFP. Among these "General Provisions" were the following: 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. . . . The Department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interest of the Department and the State. The Department reserves the right to reject any and all bid proposals for reasons which shall include but not be limited to the agency's budgetary constraints; waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the state, and if necessary, to reinstate procedures for soliciting competitive proposals. . . . 10. Late bids, modification of bids, or withdrawal of bids: (a) Any bid received at the office designated in the solicitation after the exact time specified for receipt will not be considered and will be returned unopened. . . . Sealed bids will be received until 11:00 a.m. on November 23, 1993 . . . at which time all bids will be publicly opened and read aloud. Notification of award will be made within 30 calendar days, and shall be given either by posting the bid tabulation at the location where bids were opened or by certified United States mail, return receipt requested. . . . Failure to file a protest within the time prescribed in Subsection 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Protests not filed within the prescribed time limit will not be considered. To comply with this statute, a written notice of protest must be filed with the contact person listed in the request for proposal within 72 hours after receipt of this notice. Within ten days after the notice of protest is filed, a formal written notice of protest must be filed with the contact person listed in the Request for Proposal. Any questions concerning the specifications should be directed in writing to David Smith. . . Petitioners, Gulf and Hoyt C. Murphy submitted bid proposals in response to the RFP using the form provided by the Department. At no time prior to the submission of their bids did any of them protest to the Department concerning any of the provisions of the RFP. Gulf offered the Department 5,820 net square feet of office space in a shopping plaza it owns in the City of Fort Pierce (hereinafter referred to as "Gulf's plaza"). Petitioners offered the Department the same space they currently lease to the Department. Gulf's plaza consists of several buildings which, together, take up approximately 32,000 gross square feet of space. These buildings are not fully occupied. Vacancies exist. The plaza presently has approximately 117 on-site parking spaces.4 Adjacent to the plaza, on an out-parcel, is a Wendy's restaurant which also offers off-street parking. On the completed forms that they submitted, Petitioners and Gulf agreed to meet all of the specifications and requirements set forth in the RFP, including those relating to zoning,5 off-street parking,6 security, and electrical and telephone wiring, and, in addition, proposed the following per square foot rates for the basic lease and option periods: -BASIC LEASE Petitioners Gulf First Year $13.90 $14.35 Second Year 14.65 14.35 Third Year 14.90 14.35 Fourth Year 15.20 14.70 Fifth Year 15.50 14.70 Option PERIOD First Year $15.75 $15.05 Second Year 16.00 15.05 Third Year 16.25 15.05 Fourth Year 16.50 15.40 Fifth Year 16.75 15.40 The Department, through its bid evaluation committee, evaluated each of the bid proposals in accordance with "Evaluation Criteria (Award Factors)" set forth in the RFP. As part of the evaluation process, members of the bid evaluation committee visited each of the properties offered for lease. It appeared to the committee members, upon their visit, to the Gulf property, that Gulf would be able to provide the Department with "30 exclusive [parking] spaces available on-site," as it had promised it would in the RFP. On December 16, 1993, the chairman of the bid evaluation committee sent the following interoffice memorandum to Maria Cortes, the Department's Region IV General Services Manager, concerning the results of the evaluation process: The Lease Evaluation Committee has completed its review of the bid proposals and has conducted an on-site inspection of each subject building being offered for the above referenced lease [Lease #700:0674]. The average score for each evaluation criteria is listed below by bidder number for each bid. #1 [Petitioners] #2 [Gulf] #3 [Murphy] 1. 39.20 40 34.8 2. 9.40 10 7.70 3. 15 15 15 4. 6.3 7 6.3 5. 5 5 5 6. 1 1 1 7. 1.3 2 1.3 8. 5 5 5 9. 3 3 3 10. 9.6 10 9.6 TOTAL 94.8 98 88.7 It is the recommendation of the Lease Evaluation Committee that it would be in the best interest of the Department of Correction and the State of Florida to award this bid to bid number two (2), C.G. Gulf Property Associates, L.P., a Delaware Limited Partnership. This bidder received the highest evaluation score and was the lowest bid. In evaluating the three bids that were submitted, the committee members did not take into consideration the costs that the Department would incur if the Department moved the probation and parole office from its present location to either Gulf's property or Murphy's property, inasmuch as such moving costs were not among the "Evaluation Criteria (Award Factors)" set forth in the RFP. In any event, these costs would be minimal because the Department would utilize free inmate labor to accomplish the move. By letter dated December 22, 1993, the Department advised Petitioners of its intention to award Lease No. 700:0674 to Gulf. Thereafter, Petitioners filed the protest that is the subject of the instant proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order awarding Lease No. 700:0674 to Gulf over the protest of Petitioners. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of March, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1994.
The Issue The issue for determination is whether the School Board of Broward County, Florida (“SBBC”) improperly awarded a contract pursuant to Invitation to Bid No. 21-244H for “Photo ID Card and Printing System Supplies” (“ITB”) to Intervenor, Identicard Systems, Inc. (“Identicard"). Petitioner Plasco, Inc. ("Plasco") contends that the recommended award to Identicard is clearly erroneous, contrary to competition, arbitrary, capricious, or contrary to the specifications of the ITB. The resolution of the ultimate issue turns on whether the uninitialed corrected figures contained within Plasco’s bid response for both the unit price and the total cost of Item 1(N) were a material deviation from the bid specifications requiring rejection of the bid.
Findings Of Fact SBBC desired to procure photo identification card and printing systems supplies to prepare identification cards for school district employees, students in selected schools, and outside vendors. SBBC has adopted School Board Policy 3320 which governs its purchasing of goods and services. On or about April 30, 2001, SBBC released the ITB. General Condition 1(c) of the ITB stated in pertinent part: EXECUTION OF BID: . . . If a correction is necessary, draw a single line through the entered figure and enter the corrected figure or use an opaque correction fluid. All corrections must be initialed by the person signing the bid even when using opaque correction fluid. Any illegible entries, pencil bids or corrections not initialed will not be tabulated. . . . General Condition 2 of the ITB stated in pertinent part: PRICES QUOTED: . . . Give both unit price and extended total. Prices must be stated in units to quantity specified in the bidding specification. In case of discrepancy in computing the amount of the bid, the Unit Price quoted will govern. . . . General Condition 7 of the ITB stated in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to withdraw this bid at any time prior to the time and date specified for the bid opening; to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder. . . . All awards made as a result of this bid shall conform to applicable Florida Statutes. Special Condition 3 of the ITB states as follows: AWARD: Bid shall be awarded by GROUP to the lowest responsive and responsible bidder meeting specifications, terms and conditions. Therefore, it is necessary to bid on every item in the group, in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC may need to order an individual component within a group. All items within a group must have an individual cost. Failure to state the individual cost for an item within a group will result in disqualification of the group. Bidder should carefully consider each item for conformance to specifications. In the event that one item in the group does not meet the specifications, the entire group will be disqualified. On June 7, 2001, Plasco, Identicard, and seven other companies submitted responses to the ITB. After receiving the bid responses, SBBC’s Purchasing Department examined and computed the figures submitted by each bidder for each item listed in the Bid Summary Sheets. For each item, a quantity figure had been supplied by SBBC in the bid specifications. The bid was structured so that the specified quantity would be multiplied by a unit price furnished by the bidder on its Bid Summary Sheets. The bidder was also required to furnish a total cost for each individual item in its Bid Summary Sheets. The bids submitted by both Identicard and Plasco contained a number of uninitialed corrections. Although such uninitialed corrections violated General Condition 1(c), the SBBC properly deemed such errors to be immaterial in every instance where only one figure per specified Item was tainted by a violation of this General Condition. For example, where a particular component of the bid required the bidder to specify a unit cost and a total cost for the quantity of goods specified in that particular component, the SBBC was willing to perform the mathematical calculation necessary to confirm the correctness of the uninitialed figure. As applied to this particular type of uninitialed correction, SBBC staff would multiply or divide the quantity specified in the ITB by the "untainted" number provided by the bidder to confirm the correctness of the uninitialed corrected figure submitted in violation of General Condition 1(c). The Bid Summary Sheet submitted by Plasco for Item 1(N) contained a different violation of General Condition 1(c), to wit, it contained two uninitialed corrected figures. The corrections were accomplished through the use of correction fluid. Plasco's Bid Summary Sheet with respect to Item 1(N) stated in pertinent part as follows: UNIT TOTAL PRICE COST * * * FARGO ACCESSORIES N. 3 each 81524 Thermal Printhead $389.35 ea $1,168.05 for Cheetah/Cheetah II/ Pro/Pro-L/Presto! Quatro/ Presto! System The Unit Price of $389.35 as well as the Total Cost of $1,168.05 for Item 1(N) set forth in Plasco’s bid was a corrected price and was not initialed by the person signing the bid on behalf of Plasco. Notwithstanding this "double correction," it was possible within the four corners of Plasco's bid to verify the unit price of the Item and thus to confirm, mathematically, a total price. The Item in question, a printhead, was the subject of four additional bid items. In each instance, Plasco bid $389.35 per printhead, a number which matched Plasco's corrected figure in Item 1(N). SBBC was not misled by Plasco's failure to initial either or both corrections in Item 1(N). Correctly using Plasco's uninitialed corrections as set forth in Item 1(N), SBBC accurately performed the calculations necessary to verify Plasco's bid; therefore the Bid Summary prepared by SBBC staff accurately reflected that Plasco was the low bidder at $93,449.68. The responses to the ITB were reviewed by school district staff on or about June 7, 2001. The so-called "double correction" in Item 1(N) was SBBC's sole basis for its decision to reject Plasco's low bid, and to recommend that Identicard's next lowest bid of $100,720.12 be accepted. At no time relevant to this case did SBBC have a written policy which compels that any bid containing two uninitialed corrections be excluded from consideration. The evidence establishes that SBBC was able to and in fact did accurately account for the individual numbers contained in Item 1(N), as well as any and all other numbers affected by the numbers supplied by Plasco in response to Item 1(N). Under the facts of this case, Plasco's error in failing to initial the corrections in Item 1(N) was immaterial. SBBC maintains that it must enforce its unwritten policy of excluding bids containing two uninitialed corrections within a single item in order to protect the integrity of the bid process. There is no evidence that the integrity of the bid process in this case was compromised in any way. No good faith argument was made that there was any type of collusion or improper conduct in connection with this bid. Instead, the evidence establishes that Plasco's bid was responsive and responsible in all material respects, inasmuch as SBBC staff was able to accurately ascertain, to the penny, the amount of Plasco's low bid. Plasco timely filed its Notice of Protest with SBBC on June 18, 2001. Plasco timely filed a Formal Written Protest with SBBC on June 27, 2001. Pursuant to Section 120.57(3)(c), Florida Statutes, and School Board Policy 3320, SBBC provided an opportunity for Plasco to meet with the agency’s Bid Protest Committee in an attempt to resolve the protest by mutual agreement. The Bid Protest Committee conducted a duly-noticed public meeting with Petitioner Plasco on July 9, 2001. Upon consideration, the Bid Protest Committee rejected the protest of Plasco and upheld the recommendation to award the bid to Identicard.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida, enter a Final Order awarding the ITB to Plasco, and, upon submission of documentation contemplated in the parties' stipulation regarding costs, assess costs of this action in Plasco's favor in its Final Order pursuant to School Board Policy 3320, VI (n). DONE AND ENTERED this 9th day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 October, 2001. COPIES FURNISHED: Mitchell W. Berger, Esquire David L. Ferguson, Esquire Berger Singerman 350 East Las Olas Boulevard Suite 1000 Fort Lauderdale, Florida 33301 Robert Paul Vignola, Esquire Steven H. Feldman, Esquire Broward County School Board K.C. Wright Administration Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Mark A. Emanuele, Esquire Panza, Maurer, Maynard & Neel, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308 Dr. Franklin Till, Jr., Superintendent Broward County School Board K.C. Wright Administration Building 600 Southeast Third Avenue Fort Lauderdale, Florida 33301 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact Introduction In February, 1988 respondent, Department of Revenue (DOR), issued a Request for Proposal and Bid Proposal Submittal Form (RFP) inviting qualified and interested vendors to submit proposals for providing approximately 19,300 square fee of office space in the central area of Broward County for DOR's district office. The contract was identified as Lease Bid No. 730-0083. The space was to be made available on July 1, 1988 or 30 days after the bid was awarded, whichever was later. According to the RFP, the term of the lease was five years with an option to renew for a second five year period. Sealed bids were to be filed in Tallahassee no later than 2:00 p.m. on May 2, 1988. The RFP scheduled a "preproposal conference" on April 4, 1988 at DOR's district office. It stated further, that any questions concerning the specifications should be directed to Thomas D. Cooper, DOR's assistant director of administration. Under DOR's bidding process, a four person evaluation committee made up of DOR district employees was assigned the responsibility of reviewing all bids and inspecting the proposed office sites. Using twelve prescribed evaluation criteria, one of which was the rental rate, the committee assigned numerical scores to the top seven bids. Its report was then forwarded to Tallahassee as a nonbinding recommendation. There, the assistant director of administration was charged with the responsibility of reviewing the committee's recommendations and to make a further recommendation to the executive director. As always, the final decision rested with DOR's then acting executive director, Sam D. Alexander. It was DOR's intention to ultimately award the contract to the vendor submitting the lowest and best proposal. Fifteen proposals were timely filed by various vendors, including petitioners, Intercontinental Properties, Inc. (Intercontinental) and Nu-West Florida, Inc. (Nu-West) , and intervenor, 241 East 76th Street Company d/b/a Fountains of Plantation (Plantation). After reviewing the proposals and office sites, the DOR evaluation committee assigned the following numerical scores to the top three bidders: Intercontinental-87 percent; Nu-West - 87 percent, and Plantation - 85 percent. However, it recommended that the bid not be awarded to Intercontinental because of its unfavorable site location and because no local government permits had been obtained to construct a drive-through facility. The committee characterized Nu-West's proposal as a "class operation" and noted that 1the committee is unanimous in it's (sic) recommendation that Nu-West Florida Inc.'s bid offers more for the Department when all factors are considered." Finally, the committee criticized Plantation's site location and anticipated delays in remodeling its building. This evaluation was forwarded to DOR's acting executive director on May 17, 1988. On Wednesday, June 1, 1988 DOR's assistant purchasing director, Barbie Foster, gave telephonic notice to all bidders that the contract would be awarded to Intercontinental and that other bidders had 72 hours in which to file a protest. At 11:30 a.m. that same day, DOR posted a "bid tabulation sheet" reflecting the unit cost (per square foot) of office space submitted by twelve vendors and recommending that the contract be awarded to Intercontinental. The tabulation sheet indicated also that unless the parties "file(d) a protest within the time prescribed in section 120.53(5), Florida Statutes," they waived their right to a hearing under chapter 120. Nu-West filed its protest on June 3, 1988. By June 6, two other protests had been filed, including that of Plantation. On June 9, 1988 DOR issued its first written advice on the subject to the parties. The advice, which was in the form of a letter from Foster to the president of Intercontinental, read as follows: This letter is to notify you that as of 11:30 A.M., June 6, 1988, the Department has received three (3) letters of Intent to protest the recommended contract submitted for office space in Ft. Lauderdale, Bid No.: 87/88-238. Enclosed please find copies of the (3) letters submitted. As you are aware, the awarding process on this lease is now at a stand still until the protests are resolved. The Department's legal counsel will be in touch with you in the very near future. Should you wish to contact Mr. Bill Townsend, Director of Technical Assistance, please feel free to do so, he can be reached at (904) 488-0712. A settlement conference was held in Fort Lauderdale on June 17 in an effort to informally resolve the matter. At that time, or shortly thereafter, DOR learned that the proposals of Intercontinental and Nu-West allegedly did not conform to specifications. On June 22, 1988 DOR issued its second notice of intent to award the contract and advised all vendors that the contract was being awarded to Plantation, the third ranked vendor, and that the proposals of Intercontinental and Nu-West were rejected as being nonresponsive. Such notice was in the form of a letter to each bidder advising the name of the successful bidder, giving a short summation of the reason why a particular vendor had been rejected and offering a clear point of entry to a formal hearing. In the case of Intercontinental, DOR advised that Intercontinental's bid was "non- responsive" since it failed "to comply with paragraph D4A, p. 14," it was "not the owner of record of the subject project," and it had not furnished its "authority to offer the facility." As to Nu-West, DOR found its bid "nonresponsive in the requirement of two drive-in stations as set forth in paragraph B14D, p. 14 of the Request for Proposal" because Nu-West had "indicated (it) would provide only one window and a drop box." These letters prompted the filing of formal protests by petitioners. Bid Requirements Pertinent to this controversy are two items in the RFP which formed the basis for DOR's rejection of petitioners' bids. First, Item B14 sets forth various miscellaneous requirements imposed on the bidder. Paragraph D. of that item provided as follows: The Department requires a drive-through teller facility similar to banking and savings and loan institutions. This may be located within the office or may be connected to the office by a pneumatic tube system (minimum of two stations required) (Emphasis added) This item was required because of a recently instituted DOR policy that all district offices have drive-in facilities for taxpayers. As old office buildings are vacated and new ones occupied, DOR requires that the new landlord provide teller facilities. At present, only three district offices in the state (Miami, Tampa and Tallahassee) have teller facilities but DOR plans eventually to install such facilities at all district offices. In this case, DOR envisioned a facility that would be similar to a small banking facility with two work stations that could handle two taxpayers simultaneously. It was necessary that teller facilities be provided since taxpayers often submit money and documentation and pose questions that must be answered by the tellers. As an alternative to two teller stations, DOR considered accepting one teller station and a drop box connected by a pneumatic tube to the main building. However, the use of a drop box without a pneumatic tube was unacceptable since DOR would "lose control" over deposits and lack the necessary security for handling taxpayer money. This item was considered to be material by the agency. Secondly, Item D.4.A. provided that: 4.A. Each proposal shall be signed by the owner(s) , corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility; i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids. If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submittal. (Emphasis added) The purpose of this item was to give DOR proof that the bidder was authorized to act for the property owner, or, if the bidder was not an agent, to give DOR written assurance that the bidder had an option to purchase, leasehold interest or some other form of interest in the subject property. This was because DOR could not be expected to sign a lease if it was unsure whether it would have the legal right to occupy the property. DOR considered this item to be a material item within the specifications. The first page of the RFP contained the following admonition to bidders: It is the bidder's responsibility to be familiar with all aspects of the bid package outlined below and attached hereto. Finally, page 14 of the RFP contained the following certification to be executed by the bidder when the bid was filed: I hereby certify as owner, officer, or authorized agent, that I have read the request for proposal package and all its attachments and acknowledge my understanding of and agreement to abide by all requirements and conditions contained therein. Intercontinental's Bid Intercontinental was not the owner of the property that was offered to DOR in Intercontinental's bid submission. This was confirmed at hearing by Intercontinental's leasing agent, Nestor Mendoza. According to Mendoza, the property was owned by a partnership using the name "441 South Partnership" but was leased to Intercontinental prior to the bid being submitted. Intercontinental filed its bid in Tallahassee on May 2, 1988. The certification on page 14 of Intercontinental's submission was signed in the following manner: Intercontinental Properties, Inc. Bidder's Name (typewritten) 59-1508950 Bidder's F.E.I.D. or S.S. Number (Illegible) Authorized Signature (manual)(Seal) Caroline Weiss Authorized Signature (typewritten) President Title (typewritten) Notwithstanding the requirement in item D.4.A., there was no documentation attached to Intercontinental's proposal reflecting that Intercontinental had authorization from the true owner to submit a bid or that it had a legal interest in the property. Therefore, DOR assumed that Intercontinental was the legal owner of the property. According to Mendoza, he carried documentation to Tallahassee on May 2 confirming Intercontinental's interest in the property but did not attach it to the proposal because he was under the impression that such documentation was necessary only if Intercontinental was "acting as an agent." Even though this "impression" was contrary to the requirements of the specifications, Mendoza maintained that he understood all RFP requirements. Mendoza was elated after receiving a telephone call on June 1, 1988 from Foster, who advised that Intercontinental had received the award. He was told also that, unless protests were filed within 72 hours, the firm would win the contract. In giving its preliminary intent to award the bid to Intercontinental, DOR overrode its committee's contrary recommendation. After a closer examination of Intercontinental's submission was made, DOR learned that, while Caroline Weiss, Intercontinental's president, had executed the bid submission, Intercontinental was not the legal owner of the property that was described in the proposal. DOR noted also that there was no documentation attached to the proposal, as required by item D.4.A. At a settlement conference held on June 17, 1988 Intercontinental maintained it had a leasehold interest in the property but declined, for whatever reason, to give DOR representatives any proof of this assertion. Because of this, DOR concluded properly that Intercontinental's bid was nonresponsive. During final hearing, Mendoza pointed out that, prior to the bid being submitted, DOR representatives had never questioned him concerning who was the true owner of the property and that he never made representations that Intercontinental owned the property. Intercontinental twice attempted to offer into evidence at hearing what purported to be a copy of a lease agreement in which Intercontinental had leased the property in question from another party. However, the document was never properly authenticated. Even if it had been authenticated, it was too late for Intercontinental to modify its bid submission since the documentation was required with Intercontinental's original submission filed on May 2, 1988. Nu-West's Bid Nu-West first learned of DOR's interest in new office space in February, 1988. After obtaining an RFP, Philip Saia, Nu-West's director of marketing and leasing, telephoned DOR's assistant director of administration to get clarification on several items in the specifications. Saia was told by Cooper to attend a prebid conference on April 4, 1988 in Fort Lauderdale. Also, he was told to telephone John Driggers, the author of the RFP and a district employee. Saia telephoned Driggers and was advised that all questions would be answered at the conference on April 4. Early on the morning of April 4, Saia met with Driggers and Bernard Fox, DOR district administrator, to discuss the item relating to the drive-through tellers and to show them Nu-West's facility. Saia's concern was that, due to space limitations and the cost of a pneumatic tube system, Nu-West would be priced "out of the ballpark" and would be unable to submit a bid. The three discussed other alternatives but reached no agreement. Driggers denied telling Saia that his proposal would comply with specifications but conceded he "probably led them to believe" that Saia's proposal would be "acceptable." Fox's principal concern was whether sufficient security could be provided for an unattached drop box. He voiced this concern to Saia. At the prebid conference later that day, another vendor queried the two DOR representatives (Driggers and Fox) about the drive-through teller requirement. Saia asked no questions. However, Saia contended that, in response to the other vendor's question, DOR representatives were "vague" and left the matter "very open." The actual dialogue between the vendor and Driggers is reflected in the transcript of the meeting received in evidence as DOR exhibit 1. According to the transcript the following exchange on the subject took place: (by unidentified vendor) On the drive through facility you asked about the pneumatic . . . you have a requirement for pneumatic tubes. (by John Driggers) Okay. On the drive through facility what we are trying to reflect there is we would prefer a facility for security purposes that would be contiguous with the office so that it would not be located away from the office. We would entertain a remote type facility that was connected with the office by pneumatic tubes or something that would be feasible. We don't necessarily kick out the possibility that we might use a facility that would not be contiguous to the office itself. However, we would look at that very carefully to make sure that it did meet requirements and that we could feel that it would be a secure place to use for the employees and for the . . . We do accept cash in these offices. What I'm trying to do is to give you some options there because there is no telling what kind of facility that you could come up with that would be acceptable. (Emphasis added) Driggers also advised vendors that if they had any further questions, they should be addressed to Fox. Saia concluded that, given the space limitations in Nu-West's building and the need for a local government site approval plan, the most cost-effective way to meet the requirement was to have one drive-through teller "adjacent to the building" and a drop-box in a separate location not contiguous to or connected with the main building. The use of a drop box was based on Saia's impression that DOR wanted the capability of receiving customer deposits after regular business hours and that a "facility" was not necessarily a teller window. He reasoned that this was comparable to the type of facilities used by banks and would be "a good solution to the problem." To reinforce his idea, Saia met with Fox a second time on April 19, 1988 and showed Fox his proposed plans. According to Saia, Fox told him the plans were "very acceptable." However, Fox's recollection of the conversation was different, and he remembered making no such commitment that the plans were acceptable. Instead, Fox told Saia that a drop-box with one window was better than only one window but that his overall concern was with security. In any event, Saia relied on this meeting to formalize the drop box plan in his bid submission. He went so far as to submit the plans to the City of Lauderdale Lakes for site review approval. Nu-West's submission was timely received by DOR. On page 8 of 14 of the RFP, Nu-West responded to the drive-through teller requirement with the following statement: Drive through teller window and one outside drop box will be provided in the manner shown on the enclosed site plan, subject to final approval by the City of Lauderdale Lakes, which has been applied for. (Preliminary approval has been obtained). The attached site plan is depicted on Joint Exhibit 3A and reflects a single drive-through teller facility. The drop box did not have a pneumatic tube system connecting the box to the main facility. This constituted a material deviation from the specifications. It is noted that of the fifteen vendors filing proposals, only Nu-West failed to provide for two drive-through tellers. A week or so after Nu-West's bid was submitted, the DOR evaluation committee visited Nu-West's office site. The team stayed on the premises for two hours. Saia recalled that even though the team discussed the proposed single drive-in teller facility idea and was shown its proposed location, he heard no objections. In its written evaluation report of Nu- West's bid dated May 17, the committee made no mention of any deficiency in the drive-through teller proposal and described Nu- West's proposed site as "a class operation." Nu-West was also given a grade of 87 and unanimously recommended for award of the contract. On June 2 Saia was advised by telephone that Intercontinental had been awarded the bid. Thereafter, Nu-West timely filed its protest. At the settlement conference held on June 17, Saia was not told his bid had been rejected because it was nonresponsive. He did not learn this until he received a telephone call a few days later from DOR's acting executive director. This was followed by DOR's letter of June 22 advising that Plantation had been awarded the bid and that Nu-West's bid had been rejected on the ground the proposal did not provide for two drive-through tellers. When this final decision was made by DOR, neither Cooper or Alexander were aware of any representations that might have been made to Saia by Fox or Driggers. Nu-West is willing to modify its proposal to provide a second drive- through teller. According to Saia, it can be accomplished with a $72,000 allowance Nu-West set aside to cover any deficiencies incurred during renovation. However, these modifications should have been filed with the original bid package in order to conform to specifications. Plantation's Bid Plantation was ranked number three numerically by the evaluation committee but, after the disqualification of Intercontinental and Nu-West, it had the highest numerical score and was considered the lowest and most responsive bid. Although Nu-West's proposed location in Plantation was questioned by another vendor as being in an inaccessible area of the county, DOR representatives concluded the office site was satisfactory. All material specifications were met by this bidder. 2/ Using a present value of lease payments, Plantation's bid was $1.23 per square feet cheaper than Nu-West's bid proposal but was slightly higher than Intercontinental's proposal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding Lease Bid No. 730-0083 to 241 East 76th Street Company d/b/a Fountains of Plantation. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 5th day of October, 1988.
The Issue Whether Respondent's determination that the bid submitted by Petitioner was non-responsive, was arbitrary, capricious, or beyond Respondent's scope of discretion as a state agency.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the formal hearing, the following relevant facts are made: A. Background The Department issued a Request For Proposal and Bid Submittal Form (BID) for a full service lease, Lease Number 700:0556, seeking to rent office space in an existing facility located in Polk County, Florida. Responses to the BID were to be filed with the Department by 10:00 a.m. on June 12, 1990. Six proposals were timely submitted in response to the BID, including McCarty's and Fearn's proposal. The Department evaluated the six proposals and made site visits to the properties proposed to be leased. The McCarty proposal received the highest evaluation score of 95.4 points, while the Fearn proposal received the second highest evaluation score of 92.6 points. Because the McCarty proposal had been found responsive to the BID and received the highest evaluation score, the Department awarded the lease contract for Lease No. 700:0556 to McCarty. Fearn filed a timely protest challenging the award to McCarty. The Fearn protest was referred to the Division of Administrative Hearings for hearing. However, after the protest was referred to the Division of Administrative Hearings but before McCarty could intervene or a hearing could be held, the Department reviewed the McCarty proposal and found it to be non- responsive. The Department determined that the McCarty proposal was non-responsive because the McCarty proposal was for more space than authorized by the BID and that not all owners of the property proposed to be leased signed the BID. After determining that the McCarty proposal was non-responsive, the Department rejected the McCarty proposal and awarded the lease contract for Lease No. 700:0556 to Fearn. Upon Fearn withdrawing its protest, the Division of Administrative Hearings closed its file by relinquishing jurisdiction to the Department and the Department entered a Final Order dismissing the Fearn protest. By letter dated July 31, 1990, the Department advised McCarty of its decision to reject his proposal as non- responsive and award the bid to Fearn. By this same letter, the Department advised McCarty of his right to file a protest and his right to a formal administrative hearing. B. Lease Space Requirement Prior to issuing the BID the Department submitted to the Department of General Services (DGS) a Request For Prior Approval of Space Need (BPM Form 4405) wherein the Department justified, through a Letter of Agency Staffing, the need for 3,108 square feet of office space to be located in an existing facility in Auburndale, Polk County, Florida. However, the Department requested approval of only 3,017 net square feet. DGS approved the request for 3,017 net square feet of space and the Department issued the BID referred to in Finding of Fact l. The BID requested bidders to submit proposals to lease 3,017 square feet (plus or minus 3%) measured in accordance with Standard Method of Space Measurement and advised the bidder that the space offered must be within the plus or minus three percent required. The maximum square footage requested by the BID was 3,108 square feet (3017 + 3%). The McCarty proposal was for 3,150 square feet or 42 square feet over the maximum requested. The Department was aware of, and considered, the square feet of rental space proposed by each response to the BID in the initial evaluation since it rejected two proposals for exceeding this requirement by 145 and 392 square feet, respectively. The Department apparently considered the excess 42 square feet of space in the McCarty proposal in its initial evaluation but through an oversight failed to reject the McCarty proposal as it had in the other two proposals. Upon the Fearn protest being filed the Department's legal office reviewed the McCarty proposal and determined that the excess 42 square feet of space was a deviation that should not have been waived. At this point, the McCarty proposal was found to be non-responsive. The price per square foot of the McCarty proposal in all years, one through five, was less than the Fearn proposal. The total price of the lease in the McCarty proposal, including the excess 42 square feet, in all years, one through five, was less than the Fearn proposal. There was no evidence that the cost of the McCarty proposal would exceed the amount budgeted by the Department for this lease. C. Signature of Owner(s) and Transfer of Ownership Requirements. At the time McCarty signed and submitted the BID he was co-owner of the property bid with Adrian Gabaldon. Gabaldon was aware that McCarty was offering the property in question for lease to the Department having witnessed McCarty's signature on the BID and having been involved with the Department personnel concerning the BID. Section D. 4. A, General Provision, page 8 of the BID provides in pertinent part: Each proposal shall be signed by the owner,(s), corporate officer(s), or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an agent, written evidence from the owner of record of his/her authority must accompany the proposal McCarty's signature was the only signature, as owner, appearing on the McCarty proposal. Below McCarty's signature the word "owner" was handwritten. Gabaldon signed the McCarty proposal as a witness to McCarty's signature and not as an owner. There is insufficient evidence to establish that at the time McCarty submitted his proposal the property bid was owned by a partnership consisting of McCarty and Gabaldon. There is no printed or typewritten partnership name in the vicinity of McCarty's signature in his proposal or anywhere else in his proposal. Sometime between the date McCarty submitted his BID and the date of the hearing, Gabaldon transferred his interest in the property bid to McCarty. D. General By signing the BID, McCarty agreed to comply with all terms and conditions of the BID and certified his understanding of those terms and conditions. In accordance with Section D.10., General Provisions, page 9 of the BID, all question concerning the specifications were to be directed to C. Donald Waldron. And, although McCarty or Gabaldon may have discussed the space requirement and other matters with certain employees of the Department, they knew, or should have known, that these questions should have been directed to Waldron. Otherwise, the answer could not be relied upon. Neither McCarty or Gabaldon ever contacted Waldron concerning the terms, conditions or specifications of the BID and, more specifically, concerning the space requirement or who was required to sign the BID. Submitted with the Fearn proposal was a letter from Entrepreneur of Tampa as owner of the property bid in the Fearn proposal appointing David Fearn, CCIM and The Fearn Partnership, Inc. as its agent to submit a proposal on behalf of Entrepreneur of Tampa.
Recommendation Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on October 16, 1990 in Tampa, Florida.
