Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The South Florida Water Management District (hereinafter "District") advertised for bids on Contract No. M-0137, Bid No. B-85-91, for the construction of a structure maintenance facility. The Specifications and Contract Documents for the project required that bidders submit a "Base Bid," which related to the essential components of the project, and three "add alternates," which related to additional items that the District might contract for over and above the Base Bid. The Notice To Contractors regarding this project included the following language: The right is reserved, as the interest of the District may require, to reject any or all proposals, to waive any informality in the proposal, or to readvertise for other or future proposals. Paragraph 2 of the Instructions To Bidders includes the following language: "The intent of the Proposal Form is to secure a price, based on unit prices, for the work described in the Contract. . . ." (emphasis added) Paragraph 4 of the Instructions To Bidders reads as follows: The District reserves the right to reject any and all proposals (i) when such rejection is in the interest of the District; (ii) if such proposal is void per se; or (iii) if the proposal contains any irregularities, PROVIDED, however, that the District reserves the right to waive any irregularities and to accept the lowest responsible bidder's proposal determined by the Engineer on the basis of the gross sum for which the work will be performed, arrived at by a correct computation of the base bid plus the alternate bid item or items selected by the District. Bid items will be considered by the District on the has is of budgetary capability. (First emphasis in original; second emphasis added.) Paragraph 5 of the Instructions To Bidders reads as follows: Proposals will be considered irregular if they show omissions, unauthorized alterations of form, additions not called for, conditional or unauthorized alternate bids, or other irre- gularities of any kind; also if the unit prices are unbalanced either in excess of or below the reasonable cost analysis values, or incomplete in any manner, including failure to bid on all items on the bid form. Paragraph 8 of the Instructions To Bidders reads as follows: No proposal can be withdrawn after it is filed unless the Bidder makes his request in writing to the District prior to the time set for the opening of bids, or unless the District fails to accept it within sixty (60) days after the date fixed for opening bids. Paragraph 10 of the Instructions To Bidders reads as follows: No interpretation of the meaning of the Plans, Specifications or other Contract Documents will be made to any Bidder orally. Every request for such interpretation should be in writing addressed to the Engineering & Construction Division, South Florida Water Management District, 3301 Gun Club Road, Post Office Box V, West Palm Beach, Florida, zip code 33402, and to be given consideration must be received at least Ten (10) calendar days prior to the date fixed for the opening of bids. Any and all such interpretations and any supplemental instructions will be in the form of written Addenda to the Specifications which, if issued, will be mailed by registered mail to all prospective bidders (at the respective addresses furnished for such purposes) not later than Five (5) calendar days prior to the date fixed for the opening of bids. Failure of any bidder to receive any such Addendum of interpretation shall not relieve any bidder from any obligation under his bid as submitted. All addenda so issued shall become part of the Contract Documents. The bid items are described in Section 01021 of the Specifications and Contract Documents. Subsection 1.01 of that Section describes what is included in the Base Bid as follows: The Base Bid includes all work shown on the plans and called for in the specifications for: Structure Maintenance Facility, complete. Building utilities including all rough-in required for alternate bid items whether or not alternate bids are accepted. Site work including utilities. All other costs of the project not attributable to Items 1 thru 3 above or Alternate Bid Nos. 1 thru 3 below. Subsection 1.02 of Section 01021 describes what is included in Alternate Bid No. 1 as follows: In the Base Bid all structural supports to receive the monorail trolley beams and hoists are included. Alternate No. 1 includes all work shown on the plans and called for in the specifications for two 15 ton capacity monorail hoists and trolley beams complete and operational. Work includes all final utility connections to points indicated on drawings, shipping, unloading at site, installation and final check-out and instruction to owner on operation of equipment as well as all other costs not attributable to items previously mentioned. Subsection 1.03 of Section 01021 describes what is included in Alternate Bid No. 2 as follows: In the Base Bid all mechanical and electrical rough-in is to be provided for the two offices and the toilet and locker rooms above. Alternate No. 2 includes all costs over the Base Bid for completing the offices, toilets and locker rooms including all plumbing and lighting fixtures, partitions, lockers finishes, structure and metal stair as indicated and specified in the applicable sections of these specifications. Subsection 1.04 of Section 01021 describes what is included in Alternate Bid No. 3 as follows: The Base Bid includes all site grading to finish elevations indicated. Alternate No. 3 includes all costs over the Base bid for providing subsurface preparation and asphaltic concrete paving to finish elevations indicated as described in Section 02513 for all areas where asphaltic concrete paving is shown. In September of 1984 the District had received bids for a similar project. Similar contract documents and bid forms were used for the project. Cox & Palmer Construction Company, Overland Construction Company, Inc., and Booth Construction, Inc., all submitted bids on the September 1984 project. All of the bids submitted on the September 1984 project, including the Booth bid, were submitted on an add alternates" basis. All of the September 1984 bids were rejected. A total of seven bidders submitted bids on the instant project. With the exception of Booth Construction, Inc., all of the bidders on the instant project calculated their bids on an "add alternates" basis. It was the clear intent of the architecture firm that prepared the Specifications and Contract Documents that the bids should be submitted on an add alternates" basis. There were no irregularities in the bidding process regarding the instant project prior to the opening of the first bid. At the duly appointed time a representative of the District began the process of opening and announcing the amounts of the bids. The first bid to be opened was the bid submitted by Overland Construction Company, Inc. The amounts bid by Overland were as follows: Base Bid $ 378,800 Alternate No. 1 64,000 Alternate No. 2 18,000 Alternate No. 3 11,200 Immediately after the announcement of the amounts bid by Overland, Mr. York, the Director of the District's Engineering and Construction Division, asked, "Is that an add-on or deduct?" Someone in the audience answered that it was an "add-on" bid. Mr. Gerachi, on behalf of Booth, promptly stated that the alternates should have been bid as "deducts". A general discussion ensued among members of the audience regarding whether the alternates should have been bid as "add-on" or "deducts." In order to continue with the bid opening process and to restore order in the room, a representative of the District announced that the matter would be resolved when the bids were tabulated and another representative of the District began the process of opening the rest of the bids. The bid submitted by Booth Construction, Inc., was the fourth bid to be opened. The amounts written on the Booth bid were as follows: Base Bid $ 396,586 Alternate No. 1 54,072 Alternate No. 2 14,597 Alternate No. 3 9,185 Immediately after the amounts of the Booth bid were announced, Mr. Alvin Booth, president of Booth Construction, Inc. stood up and stated that the Booth bid had been calculated on the basis of "deduct" alternates. The essence of his statement was that in calculating the amount of his company's Base Bid he had added to the base bid the sum of the three alternate bids with the understanding that the amounts shown for any of the three alternates would be deducted from his Base Bid if the District decided not to award a contract for one or more of the alternates. This statement following the opening of the Booth bid was the first time that anyone on behalf of Booth had made a specific unambiguous statement to representatives of the District responsible for this bidding process regarding the manner in which the Booth bid was calculated. 1/ The bid submitted by Cox & Palmer Construction Company was opened after the Booth bid. The amounts bid by Cox & Palmer were as follows: Base Bid $ 392,225 Alternate No. 1 38,770 Alternate No. 2 19,200 Alternate No. 3 11,456 The bid submitted by Booth Construction, Inc., was prepared by both Vincent Gerachi, an estimator and project manager employed by Booth Construction, Inc., and by Alvin Booth, president of Booth Construction, Inc. Mr. Gerachi has been an estimator on construction projects for approximately 12 years. Mr. Booth has been in the construction business for approximately 30 years and has had his own construction company for about 18 years. Both Mr. Gerachi and Mr. Booth were uncertain whether the alternate bids were supposed to be bid as "add-ons" or as "deducts." Neither of them attempted to do anything to resolve their uncertainty until the morning of the very day on which bids were to be submitted. On that morning Mr. Gerachi called a representative of the District to ask whether the bid should be prepared with the alternate bids calculated as "add-ons" or as "deducts." Mr. Gerachi spoke to Mr. Brown at the District, who suggested that Mr. Gerachi call the architecture firm that had prepared the Specifications and Contract Documents. Notwithstanding the provisions of Paragraph 10 of the Instructions To Bidders (see paragraph 6 of these findings of fact, above), it is a customary practice of the trade for bidders to communicate directly with project architects to resolve any uncertainties in the Specifications and Contract Documents. Indeed, it is generally understood in the trade that it is the duty of the bidder to communicate with the project architect to seek resolution of any ambiguities. Mr. Gerachi tried to reach the project architect by telephone, but was unable to reach him because the architect had already left his office to drive to the bid opening. Mr. Gerachi did not have an opportunity to talk to the architect prior to filing the Booth Construction bid because the architect did not come into the bid opening room until about one minute after 2:00 p.m. Mr. Gerachi talked to Mr. and Mrs. Booth before turning in the Booth bid. Mr. Gerachi prepared the Booth bid with the alternate bids calculated as "deducts" from the Base Bid. In other words, the amount of the Base Bid on the Booth bid included the sum of the three alternate bids, which alternate bids were also separately stated on the Booth bid. Alvin Booth participated in the preparation of the bid and was aware of the manner in which the Booth bid was calculated before the bid was submitted to the District. Even though the Base Bid on the Booth bid is in the amount of $396,586, it was the intention of Booth Construction, Inc., to bid $318,732 for the work described as being within the scope of the Base Bid. The reason for the higher amount being entered for the booth Base Bid is that Vincent Gerachi and Alvin Booth misinterpreted the Specifications and Contract Documents and added to the Booth Base Bid the sum of the Booth bids on each of the three Alternate Bids. 2/ This misinterpretation of the Specifications and Contract Documents was caused by the culpable negligence or willful inattention of Vincent Gerachi and Alvin Booth. After all of the bids were opened a representative of the District announced that the District would consider the matter and notify all bidders of its decision at a later date. Thereafter the District, having concluded that Booth Construction, Inc., had acted in good faith and that the irregularities in the form of its bid were "minor irregularities," decided to treat the oral statements by Mr. Gerachi and Mr. Booth as amendments to the Booth bid, to treat the Booth Base Bid as being $318,732, and to award a contract to Booth Construction, Inc., for the Base Bid and Alternate No. 1 in the amount of $372,804, calculated as follows: $318,732 (Amended Booth Base Bid) 54,072 (Booth Alternate No. 1 Bid) $372,804 (Total Contract) Booth Construction, Inc., has the ability to perform the contract and can perform the contract for the proposed contract amount of $372,804. Booth Construction, Inc., is a responsible bidder. The District estimate of the cost of the work covered by the Base Bid and Alternate No. 1 was $329,000. There are no irregularities in the bid submitted by Cox & Palmer Construction Company. Cox and Palmer Construction Company is a responsible and responsive bidder. The bid submitted by Cox & Palmer is the lowest responsive bid for the combination of the Base Bid and Alternate No. 1. 3/ The foregoing findings of fact include the substance of the majority of the findings proposed by the parties, although I have rejected a number of unnecessary details and editorial comments in the parties' proposals. Any proposed findings which are not incorporated in the foregoing findings are rejected on the grounds of not being supported by competent substantial evidence or as being contrary to the weight of the persuasive evidence.
Recommendation Based on all of the foregoing, I recommend that the South Florida Water Management District enter a Final Order to the following effect: Concluding that the irregularities in the Booth Construction, Inc., bid may not be waived and that the bid will be considered, as submitted, to be a Base Bid in the amount of $396,586; Concluding that in view of the foregoing treatment of the Booth bid, the bid of Palmer & Cox Construction Company is found to be the lowest responsive bid for the Base Bid plus Alternate No. 1; Concluding that the District will accept the bid of Palmer & Cox Construction Company and enter into a contract with Palmer & Cox Construction Company consistent with the amounts bid by Palmer & Cox Construction Com- pany for the Base Bid and Alternate No. 1; and Concluding that the petition of Overland Construction Company, Inc., is dismissed for lack of standing. DONE AND ORDERED this 9th day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH 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 July, 1985.
Findings Of Fact State Project No. 46090-3511 (the project) is for construction of the West Bay Bridge on State Road 79 in Bay County, Florida. Competitive bids on the project were solicited in February, 1990. The bid letting on the project was held in March, 1990. The Petitioner, Fairchild, the Hardaway Company and ten other contractors bid on the project. The Hardaway Company submitted the lowest bid on the project in the amount of $9,487,258.17. Fairchild submitted the next lowest bid in the amount of $9,835,279.34. Divergent Unit Prices and Imbalances. The part of the Hardaway Company's bid relating to construction of the foundation for the approaches to the bridge (the "structural bid") is obviously below reasonable cost in several respects. The contract specifications require the use of sand fill, shell fill, reinforcement grid (biaxial type 2), and Class III (seal) concrete. The Hardaway Company's unit prices for these items were, respectively, one dollar per cubic yard for the sand fill, fifty cents per cubic yard for the shell fill, twenty-five cents per square yard for the reinforcement grid, and ten cents per cubic yard for the Class III seal concrete. As a result, the Hardaway Company's bid for these items is obviously significantly below reasonable cost and approximately $95,500 below what Fairchild bid for the same portion of the contract. In contrast to the sand fill, shell fill, reinforcement grid and Class III concrete, the Hardaway Company's bid on some of the other parts of the structural bid were relatively high. The reinforcing steel for the substructure (Item 415-1-5) was bid at approximately twice reasonable cost (80 a pound versus, e.g., 42 in Fairchild's bid), resulting in $609,936.80 attributable to that part of the bid versus, e.g., $320,216.82 for Fairchild. The statistical average (the DOT's so-called "average 2") for the other serious bidders under this item also was 42 a pound. The Hardaway Company also bid obviously in excess of reasonable cost for the lump sum item of mobilization for pile installation--$600,000 versus $125,000 in Fairchild's bid and less in the bids of several of the others bidders. (The statistical average for the other serious bidders under this item was $225,000.) But the Hardaway Company bid only $60,000 for the lump sum item for removal of existing structures (versus $160,000 in Fairchild's bid) and only $30,000 for the lump sum item for removal and disposal of fender system (versus $110,000 in Fairchild's bid). The portion of the Hardaway Company's bid attributable to mobilization for the roadway work is significantly less than the Fairchild bid under this item ($200,000 versus $375,000) and partially counterbalances the excess in the part of the Hardaway bid for mobilization for the pile installation. The portion of the Hardaway Company's bid attributable to clearing and grubbing also was high, at $20,000 an acre versus a statistical average of $4,200 an acre for the other serious bidders, resulting in $216,000 for the Hardaway Company bid versus, e.g., $32,400 for the Fairchild bid and the $45,360 statistical average. DOT Review Procedures. Section 2-6 of the DOT's Standard Specifications applicable to the project provides: 2-6 Rejection of Irregular Proposals. A proposal will be subject to being considered irregular and may be rejected if it shows omissions, alterations of form, additions not called for, conditioinal or unauthorized alternate bids, or irregularities of any kind; also if the unit prices are obviously unbalanced, either in excess of or below the reasonable cost analysis values. The DOT is in the process of formulating a policy on the use of the Technical Review Committee in the bidding process. A proposed procedure has been developed, which has not yet been made final and has not yet been signed by the Secretary of the DOT, under which the Technical Review Committee would review the low bid on each contract, among other things not applicable to this case, for "any significant irregularities in unit bid prices" and for "unbalanced bidding." The DOT has not yet defined "any significant irregularities in unit bid prices" or "unbalanced bidding" for purposes of defining the event that triggers review by the Technical Review Committee. The DOT Director of the Office of Construction, Robert Buser, is of the opinion that the unit prices the Hardaway Company bid for the sand fill, the shell fill, the reinforcement grid and the Class III seal concrete are "significant irregularities in unit bid prices." On the other hand, the DOT's Preliminary Estimates Engineer, Robert Griner, who, unlike Buser, is a member of both the Technical Review Committee and its Preliminary Technical Subcommittee, and is of the opinion that the Hardaway bid for the sand fill, the shell fill, the reinforcement grid and the Class III (seal) concrete are "mathematical imbalances," not "significant irregularities in unit bid prices," which he would define as bids that omit a unit price, whose numerical values do not match words used to express the values, or that are not signed. Under Griner's approach, which was followed in this case, the Preliminary Technical Subcommittee looks at "mathematical imbalances" to see if they are "material imbalances." If the Preliminary Technical Subcommittee decides that it is not a "material imbalance," it simply reports this finding at the outset of the meeting of the Technical Review Committee, which accepts the finding and does not itself consider the matter any further. Only if the Preliminary Technical Subcommittee reports a "material imbalance" does the Technical Review Committee further consider the question. Front-end Bidding. Under the DOT contract for the project, like other items in the specifications, mobilization and land clearing and grubbing are paid in installments as the work proceeds. But, unlike the other items, all of the portion of the contract attributable to mobilization and land clearing and grubbing is paid by the time the entire project is half completed. Similarly, a contractor is paid for reinforcement steel (substructure) when it is delivered to the site. As a result, by shifting dollars in a bid to these "front-end," lump sum items, a contractor can manipulate the bid process and contract to reasonably insure himself of early payment of these inflated items regardless what may happen to the project later. In analyzing these front-end, lump sum items, Griner treated them (along with the unreasonably low bids on the sand fill, shell fill, reinforcement grids and C III seal concrete) as "mathematical imbalances." Following the guidance of a Federal Highway Administration (FHWA) memorandum, dated May 16, 1988, on the subject of "Bid Analysis and Unbalanced Bids," Griner analyzed the Hardaway bid to be sure it would not be susceptible to cost overruns (it was not) and to be sure the quantities were correctly estimated (they were). He also analyzed the additional cost to the DOT of paying the Hardaway Company early (by the half way point of the project) for the inflated front-end items to determine whether the "mathematical" imbalance was "material," i.e., whether "the mathematically imbalanced bid will result in the lowest ultimate cost to the Government." Based on a twelve percent interest rate, Griner calculated that the inflated front-end items would cost the DOT approximately an additional $98,000, 1/ still much less than the difference between the low Hardaway bid and any other bid. Based on this calculation, Griner concluded that the "mathematical imbalance" in the Hardaway bid was not a "material imbalance" and did not require the award of the bid to Fairchild or one of the other bidders. Griner overlooked and did not apply another portion of the method of analysis in the FHWA memorandum on "Bid Analysis and Unbalanced Bids" that states: There are numerous reasons why a bidder may want to unbalance his/her bid on a contract. One reason is to get more money at the beginning of the project. The bidder does this by overpricing the work done early in the project. This is called "front loading" the contract. The leading case in the "front loading" area is Matter of: Riverport Industries, 64 Comp. Gen. 441 (1985). Here the Comptroller General held that if the bid is front loaded, regardless if it is the lowest bid, it "should be viewed as materially unbalanced since acceptance of the bid would result in the same evils as an advance payment. An advance payment is prohibited by law." The "front loading" may also be materially unbalanced due to the cost of money that must be paid out early versus over the normal construction fo the project. Under the Hardaway Company bid, the pile mobilization, the land clearing and grubbing, and the reinforcement steel (substructure) parts of the bid are "front-ended." 2/ Under the method of analysis suggested by the FHWA memorandum, the Hardaway Company would be paid approximately $428,000 in "advance payments" under these two items if it is awarded the contract. Approximately $375,000 in pile mobilization, $183,600 in land clearing and grubbing, and $289,700 in the reinforcement steel were shifted to these front- end items from the unbalanced sand fill, shell fill, reinforcement grid, and Class III (seal) concrete items. These dollars The shifted dollars are estimated by taking the difference between the statistical average for these items and the Hardaway bid on them. Since roiughly half of the shifted dollars would be paid earlier than they would be paid if they were bid under the sand fill, shell fill, reinforcement grid and Class III (seal) concrete items, the amount of "advance payment," under the FHWA analysis would be approximately $428,000. Griner did not explain why he only followed part, but not all, of the method of analysis suggested by the FHWA memorandum, other than to say he overlooked it. But he also testified that it is common practice for contractors to submit mathematically unbalanced bids, and the DOT always analyzes them the way he did in this case. Indeed, in the March, 1990, bid letting, Griner found "mathematical imbalances" in 21 of the 29 low bids but no "material imbalances." The Fairchild bid also contains "mathematical imbalances." It also "front-ends" several items. The total dollar value of the "front-ending" in the Fairchild bid (including roadway mobilization) closely approximates that found in the Hardaway bid and, under the FHWA analysis, would result in approximately the same amount of advance payment. Under Section 101-2.2 of the DOT's Standard Specifications for this project, contractors are limited to a maximum of ten percent of the total contract for mobilization. The Hardaway Company's total mobilization bid is within the maximum under the specifications. Notwithstanding the imbalances in the Hardaway bid, and the so-called "advance payments" that would result from the "front-ending" in the Hardaway bid, the Hardaway bid remains the lowest and best bid on the project, and it is the best interest of the DOT and the public to award the contract to the Hardaway Company. Even if the Hardaway Company had bid the sand fill, shell fill, reinforcement grid, and Class III (seal) concrete items exactly as Fairchild did, Hardaway still would be low bidder. "Value Engineering" and Alleged Alternative or Contingent Bidding. Inferences reasonably could be drawn from the evidence that the Hardaway Company may intend to propose to the DOT that the approach to the bridge be re-engineered so as to eliminate the need for the sand fill, the shell fill, the reinforcement grid and the C III (seal) concrete. If the DOT accepts such a proposal, the contract between the DOT and the Hardaway Company would have to be modified. If the re-engineered project were to allow the Hardaway Company to do the job for less than its bid price, half (or, if the proposal is innovative or unique, up to 80%) of the savings would be paid to the Hardaway Company under what the DOT calls "value engineering." Under DOT procedures, "value engineering" proposals are not made or evaluated until after the original contract is signed with the successful bidder. It is not an alternative bid or a contingent bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order dismissing the bid protest filed by W. R. Fairchild Construction Company, Ltd., and awarding State Project No. 46090-3511 to the Hardaway Company. RECOMMENDED this 30th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of July, 1990.
The Issue Whether the decision by the State of Florida, Department of Corrections (DOC) to reject all bids received in response to Request For Proposal 93-RIVHSD- 075 (RFP) was arbitrary, capricious, fraudulent, illegal or dishonest. Additionally, Intervenor challenges Petitioner's standing to bring this proceeding since Bio-Medical Applications, Petitioner's wholly-owned subsidiary corporation, submitted the bid at issue and because Petitioner would not be a party to any contract awarded pursuant to the RFP.
Findings Of Fact Standing In its response to the Request For Proposal at issue in this proceeding, Bio-Medical Applications of Florida, Inc. (BMA) provides the following regarding vendor name and address: Vendor Name: Bio-Medical Applications of Florida, Inc. Vendor Mailing Address: c/o National Medical Care, Inc. 1601 Trapelo Road Walthem, Massachusetts 02154 In the bidder acknowledgment and ownership interest portion of its response to the RFP, BMA disclosed the following: ... This bid is presented in good faith without collusion or fraud and Ernestine M. Lowrie, as signer of the bid from Bio-Medical Applications of Florida, Inc. has full authority to bind as the principal bidder. All stock of Bio-Medical Applications of Florida, Inc. is held by Bio-Medical Applications Management Company, Inc. and all the stock of the latter corporation is held by National Medical Care, Inc., 1601 Trapelo Road, Walthem, Massachusetts 02154. All of the stock of National Medical Care, Inc. is held by W. R. Grace and Company. The Dialysis Services Division of National Medical Care, Inc. (NMC) is the largest division of NMC. In each state in which NMC has an interest in dialysis services operations, Bio-Medical Applications is organized as a corporate entity and is part of the Dialysis Services Division of the parent corporation, NMC. Petitioner in this proceeding, NMC, is not currently organized and registered as a corporation under the laws of the State of Florida. At the final hearing in this case, NMC's representative testified that he was not aware that NMC was registered to do business in the State of Florida but thought NMC had been operating in Florida for about 20 years. BMA is wholly owned by NMC. The Respondent agency originally expressed its intent to award the contract at issue to BMA. NMC has a substantial interest in the RFP and the contract at issue, therefore, its substantial interests will be affected by the agency's proposed action to reject all bids. NMC has alleged that the agency's decision to reject all bids was arbitrary, illegal, dishonest, and fraudulent. Further, Petitioner also contends that the agency decision to reject all bids, after BMA's bid proposal has been disclosed to competitors, undermines the competitive purpose of the bid process. The Request for Proposal On August 27, 1993, the DOC issued RFP No. 93-RIVHSD-075. The RFP requested bidders to submit bids for a contract to perform peritoneal dialysis and hemodialysis treatment at the Department's Broward Correctional Institution and its South Florida Reception Center. The RFP required that bid proposals be filed with the DOC by September 30, 1993. The RFP provided that a bidder would receive up to 50 points for its price proposal and up to 50 points for its qualitative proposal for a total of 100 possible points. The RFP also provided that the DOC reserved the right to reject all bids when the DOC determined it was in its best interest to do so. The Bid Evaluation Upon initial review of the proposals submitted in response to the RFP, the DOC originally calculated that Petitioner's subsidiary, BMA, had received 49 out of 50 possible points from its price, as well as qualitative proposal for a total of 98 points. On October 22, 1993, the DOC sent written notice to all proposers of its intent to award the contract to National Medical Care, Inc. (Petitioner). At the time it mailed its notice of intent, the DOC believed that the difference between the Bio-Medical and the lowest price proposal (received by HealthInfusion) was $156,780 over the five year term of the proposed contract. HealthInfusion and an additional disappointed bidder filed protests contesting the DOC's notice of intent. Based upon input from the protestors, the DOC learned that it had miscalculated the cost of Bio-Medical's proposal. When the DOC corrected its initial error in calculation, BMA's proposal was $340,000 higher over the first three years of the proposed contract and $972,000 higher than the lowest bidder for the entire five year contract term. The Decision to Reject All Bids On November 24, 1993, the DOC notified all bidders of its intent to reject all bids. In addition to the initial miscalculation of price in the bid, the DOC discovered what it considers to be other irregularities in the evaluation in this case. BMA was the existing provider at the time the RFP issued. The bid evaluators worked closely on a day to day basis with Petitioner's employees. The DOC believes the evaluators preferred that Petitioner be awarded the contract and that the evaluators were not objective. During the process of evaluation, the evaluators were provided a letter from a party representing one of the bidders which contained allegations regarding negative background information on other bidders. The DOC believes that the letter should not have been given to the evaluators and that access to the letter further affected the evaluator's ability to be objective. Admitted Facts NMC and the Respondent DOC filed a Prehearing Stipulation in which the following facts are admitted by those parties: The DOC issued Request for Proposal No. 93-RIVHSD-075 ("RFP"). The RFP requested bidders to submit bids for peritoneal dialysis and hemodialysis treatment at Broward Correctional Institution and South Florida Reception Center. Bid proposals had to be filed with the DOC by September 30, 1993. On November 24, 1993, the Department notified all bidders of its intent to reject all bids. The Department rejected all bids due to significant irregularities in the bid evaluation process and the price difference between the winning bid and the low bid was too great. (Emphasis supplied.) On December 3, 1993, National Medical Care, Inc. filed its notice of intent to protest the DOC's decision to reject all bids. On December 13, 1993, National Medical Care, Inc. filed its formal written bid protest. Burden of Proof Petitioner has failed to prove, by the preponderance of evidence, that the DOC acted arbitrarily, illegally, fraudulently or dishonestly in making its decision to reject all bids.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Respondent enter a final order dismissing NMC's protest of its decision to reject all bids in response to request for Proposal No. 93-RIVHSD-075. RECOMMENDED this 16th day of March, 1994, at Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7111BID The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's PFOF 1 is adopted in paragraph 8 of the Recommended Order (RO). Petitioner's PFOF 2 is adopted in paragraph 9 of the RO. Petitioner's PFOF 3 is hereby adopted. Petitioner's PFOF 4 is hereby adopted. Petitioner's PFOF 5, to the extent not conclusory, is adopted in paragraph 1 of the RO. Petitioner's PFOF 6 is hereby adopted. Petitioner's PFOF 7 is adopted in paragraph 2 of the RO. 8-9. Petitioner's PFOFs 8 and 9 are hereby adopted. Sentence 1 of Petitioner's PFOF 10 is hereby adopted. Sentence 2 of this proposed finding is rejected as conclusory. Petitioner's PFOF 11 is adopted in paragraph 14 of the RO. 12-14. Petitioner's PFOFs 12, 13 and 14 are hereby adopted. Petitioner's PFOF 15 is adopted in paragraph 2 of the RO. Petitioner's PFOF 16 is hereby adopted. Petitioner's PFOF 17 is adopted in paragraph 26 of the RO and is a fact, in effect, stipulated to by Petitioner and Respondent. Petitioner's PFOF 18 is adopted in substance in paragraph 21. To the extent not adopted in the RO, the remainder of Petitioner's PFOF 18 is hereby adopted. Petitioner's PFOF 19 is adopted in paragraph 13 of the RO. Petitioner's PFOF 20 is adopted, in substance, in paragraph 16 of the RO. 21-24. Petitioner's PFOFs 21-24 are hereby adopted. Petitioner's PFOF 25 is rejected as a conclusion. Petitioner's PFOF 26 is rejected as conclusory and argumentative. This proposed finding is also irrelevant based upon facts admitted by Petitioner. Petitioner's PFOF 27 is rejected as irrelevant based upon facts admitted to by Petitioner. 28-34. Petitioner's PFOFs 28-34 are hereby adopted to the extent relevant. Based upon Petitioner's admission that the Respondent rejected all bids based on "significant irregularities," these proposals are for the most part irrelevant and unnecessary to the conclusions reached. 35. Petitioner's PFOF 35 is hereby adopted. 36-39. Petitioner's PFOFs 36-39 are adopted. 40-44. Petitioner's PFOFs 40-44 are cumulative and not necessary to the conclusions reached. Respondent's PFOF: 1-19. Respondent's PFOFs 1-19 are adopted in the RO. 20. Respondent's PFOF 20 is rejected as conclusory. 21-22. Respondent's PFOFs 21 and 22 are adopted in the RO. 23. Respondent's PFOF 23 is rejected as argument. 24-26. Respondent's PFOFs 24-26 are adopted in the RO. 27. Respondent's PFOF 27 is rejected as conclusory. 28-29. Respondent's PFOFs 28 and 29 are adopted in the RO. 30-32. Respondent's PFOFs 30-32 are rejected as conclusions and argument. Respondent's PFOF 33 is hereby adopted. Respondent's PFOF 34 is rejected as argument. Intervenor's PFOF: 1-21. Intervenor's PFOFs 1-21 are adopted in substance in the RO. Intervenor's PFOF 22 is adopted, in substance, in paragraph 4 of the RO. Intervenor's PFOF 23 is hereby adopted. Intervenor's PFOF 24 is adopted in substance. Intervenor's PFOF 25 is hereby adopted. However, Intervenor has failed to prove that the activity of NMC is not within one of the several exceptions to the requirements of Section 607.1501, Florida Statutes. COPIES FURNISHED: Seann M. Frazier, Esquire Jennifer Kujawa-Graner, Esquire PANZA, MAURER, MAYNARD & NEEL, P.A. 3081 East Commercial Avenue Fort Lauderdale, Florida 33308 R. Beth Atchison, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Timothy G. Schoenwalder, Esquire BLANK, RIGSBY & MEENAN, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
The Issue The primary issue for determination is whether Respondent's decision to rescind a previous notice of award of a bid to Petitioner First Master Lessors, Inc., on the basis that the original bid was nonresponsive, was appropriate. If rescission of that bid award was proper, a secondary issue is whether Respondent was also justified in rejecting the competing bid submitted on behalf of Petitioner DSJ Realty Company Inc.
Findings Of Fact Respondent issued an Invitation To Bid in order to obtain a leasehold of 15,397 square feet of office space to house operations of its child support enforcement office in Lakeland, Florida, for a term of seven years with an option to renew the lease for two additional three year periods. The Invitation To Bid (ITB) states Respondent's reservation of the right to reject, if in the best interest of the State of Florida, any and all bids. Further, the invitation states a number of conditions that submitting bidders must meet in order for their bids to be deemed responsive. Among the stated conditions is the requirement that bids be submitted on the standardized bid submittal form enclosed in the ITB in compliance with conditions specified on that form. Further, bidders are directed to complete the bid submittal form providing acknowledgements requested by the form. Another stated condition of the ITB is the requirement that a bidder be the owner of record of the facility and parking areas offered for lease; or, if a lessee seeking to sublease, submit with the bid proposal documentation of authority to sublease the facility and parking areas. A further ITB condition requires each bid to be signed by the owner, corporate officers or legal representative of the bidding entity. Corporate, trade or partnership titles of the bidding entity are to be stamped or typewritten beside the actual signature. Bid submissions signed by an agent are required to be accompanied by written evidence from the owner of record documenting the agent's authority. All bid submittal signatures are to be notarized. Page 4 of the standardized bid submittal form enclosed in the ITB requires, in paragraph 11, that any bid offering premises for consideration (including parking areas), which are presently occupied or which will covered by other active leases on the anticipated lease effective date, must be accompanied by documentation executed by those tenants indicating their acknowledgement of the bid and their ability to vacate the premises by the proposed lease effective date. Submitting bidders are required to indicate whether this requirement is applicable to their bid. Page 4 of the standard bid submittal form contains a number of other conditions which require agreement by the submitting bidder. Proof of the bidder's agreement to those conditions is to be documented by the bidder's initials on each page of the bid submittal package and the bidder's notarized signature on page 16, the submittal form's concluding page. Among the conditions on Page 4 of the form is the agreement of the successful bidder to provide leased space to Respondent for exclusive use on a 24 hour basis, seven days per week during the term of any lease resulting from the bid. This condition further explicitly states that the space to be leased will be fully occupied during normal working hours of 8 a.m. to 5 p.m. during the week and may be fully or partially occupied at other times as necessary in Respondent's discretion. Respondent's bid request specified that bidders must offer a minimum of 65 parking spaces in conjunction with premises proposed for lease. Of those spaces, two spaces were required to meet requirements of accessibility for handicapped parking. Of the remaining spaces, 52 spaces were required to accommodate full size automobiles. All parking was required to be provided as part of the lease cost to Respondent and under the "control of the bidder, off street, suitably paved and lined." On May 16, 1989, five bids were opened, including those submitted on behalf of Petitioner DSJ Realty Company Inc. (DSJ), and Petitioner First Master Lessors, Inc. (MASTER). Out of the five bids opened, only the bids of MASTER and DSJ were determined to be responsive. After evaluation of the bids by Respondent's personnel, the bid was awarded to MASTER on July 6, 1989. On July 11, 1989, and in response to the award to MASTER, a notice of intent to protest the award was filed by counsel for Dale S. Jones, as trustee; DSJ; and Elizabethan Development, Inc. (ELIZABETHAN). By letter dated July 12, 1989, Alan Taylor filed a protest of the lease award to MASTER. That letter simply stated its efficacy as a protest with the words "[w]e hereby protest the award of lease # 590:2087 to First Master Lessors, Inc." No particular factual or legal basis for the protest was stated. Taylor is associated with ELIZABETHAN and his letter is typed on stationary of that business entity. Taylor, designated the bidder on page one of the DSJ bid submittal, was authorized to act solely on behalf of DSJ in the submission of its bid by its president, Dale S. Jones, Jr. Documentation of that authority is contained in a May 8, 1989 memorandum attached to the bid package. There is no documentation in the bid submittal package of DSJ that Taylor was empowered to act on behalf of ELIZABETHAN, or that ELIZABETHAN was authorized to act on behalf of any entity in regard to the bid submittal. While not set forth in the bid package, testimony at the final hearing establishes that Jones is the sole owner of DSJ. Subsequent to the filing of the DSJ protest, Respondent determined to reject the bids of MASTER and DSJ as nonresponsive. By letter dated August 28, 1989, Respondent informed both counsel for DSJ and MASTER of this decision. As set forth in the August 28, 1989 letter, Respondent's decision to reject the bid of DSJ was based upon the failure of DSJ's bid submittal to reflect that its agent, Alan Taylor, or the proposed lessee designated in that bid submittal, DSJ Realty Company, had control of the property offered for lease to Respondent. The August 28, 1989 letter also stated Respondent's rejection of MASTER's bid due to a lack of control of the property sought to be leased, specifically control over parking spaces to be provided in conjunction with the premises to be leased. MASTER's bid submittal stated that the bid requirements in paragraph 11 of the bid submittal form requiring documentation of acknowledgements by any existing tenants of the premises (including parking areas) offered for lease, and ability of those existing tenants to vacate the premises, was not applicable. In response to the bid requirement for 65 parking spaces, MASTER's bid proposed 17 "exclusive" spaces on site and 48 "nonexclusive" spaces off site. An attachment to the bid response was a copy of a letter dated June 10, 1983, from the First Christian Church to a predecessor of MASTER, First Bank of Lakeland. The church, located across the street from the site proposed to be leased to Respondent by MASTER, granted "permission to the First Bank of Lakeland to use our parking lot for the convenience of their employees." Subsequent to the opening of bids and receipt of DSJ's bid protest, MASTER provided Respondent with another letter from the church reciting permission for MASTER to use 48 spaces within the church parking lot for the parking of Respondent's employees and clients, provided that the church reserved the right to use those spaces at any time upon the giving of one week's written notice to MASTER. The church also reserved the right to cancel the agreement at any time upon the giving of 60 days written notice. The letter was dated May 15, 1989. Also, as established at the final hearing, yet another letter was sent to MASTER's authorized agent from the church. That letter documents the rejection by the church of any "formalization" of a reciprocal parking arrangement with regard to the premises proposed to be leased by MASTER. However, the letter, dated July 20, 1989, restated the church's consent to the use of the parking lot by tenants of the premises proposed for lease by MASTER in accordance with its previous letter of May 15, 1989. Another letter attached to the bid submittal of MASTER, is also dated May 15, 1989. Directed to Respondent's facilities services manager, this letter is signed by an individual named Geneva Pettus as "[a]gent for First Master Lessors, Inc." The letter signed by Pettus references the 1983 letter from the church and states in pertinent part: We further guarantee your parking requirements during the term of the lease and will accommodate such spaces either within our own building or other locations if changes in the above parking facilities should occur. The MASTER bid submittal contains no documentation of authority of Geneva Pettus to act as agent for MASTER. Further, as established by the proof at final hearing, the vast majority of on site spaces controlled by MASTER are leased to present tenants or their employees. Remaining unencumbered parking spaces are inadequate to meet Respondent's bid requirements. The "guarantee" by Pettus, absent her lack of authorization to act for MASTER, is further invalidated by failure of MASTER to provide acknowledgements, as required by paragraph 11 of the bid submittal form, from the existing lessees of those parking spaces controlled by MASTER which would have to be vacated in order to comply with bid requirements. The proof establishes that MASTER did not have control of a portion of the property submitted for lease consideration by Respondent, specifically the proposed parking areas. Such lack of control is nonresponsive to Respondent's bid requirements. Notably, the May 15, 1989 date of Pettus' letter coincides with the May 15, 1989 letter to MASTER from the church. Respondent's facilities service manager, involved in evaluation of the bid submittals, was understandably concerned that this letter's existence was not disclosed to Respondent's personnel prior to August 17, 1989. The position of the church as reflected in the letter caused Respondent's personnel to reevaluate the issue of whether MASTER's bid demonstrated the requisite control over the property submitted for bid consideration and concluded that such control was absent. The DSJ bid submittal contains the notarized signature of Dale S. Jones, Jr., in the space on page 16 reserved for the signature of the bidder. His signature is followed by the title "PARTNER." That term is not further described, nor is a partnership or connection of that partnership with Jones identified in the bid package. At the final hearing, Jones confirmed his signature. However, the proof fails to establish that the required initials on each page of the DSJ bid package are those of Jones. Jones was unacquainted with the bid package submitted on his behalf, having merely looked through the package before affixing his signature. Further, the bid submittal form, on page 16, has a blank space for insertion of the name of the bidder submitting the bid package. The bid package submitted on behalf of DSJ contains no name in this portion of the submittal form. Page 16 of the bid submittal form also requires that the bidder indicate the name of the entity in whose name the subsequent lease is to be written, if that entity is one other than the bidder. The bid, signed by Jones and submitted by Taylor on behalf of DSJ, contains the statement that any future lease resulting from the bid should be titled in the name of "DSJ REALTY COMPANY as managing and Leasing Agent for Crystal Lake 301 and 302 Joint Venture." Also attached to the DSJ bid submittal package is a copy of an instrument entitled "DEED TO TRUSTEE UNDER TRUST AGREEMENT." By terms of that instrument, the fee simple title to the property and appurtenances of the site of the building proposed to be leased by DSJ, was purportedly conveyed to Dale S. Jones, Jr., as "Trustee under Land Trust Agreement dated June 15, 1987". By terms of the deed, Jones is granted specific authority to convey, lease or otherwise exercise those rights to property which are commensurate with ownership. The grantor of the deed, dated July 7, 1987, is Florida Southern College. The bid package of DSJ contains no documentation that either Jones or DSJ is authorized to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." Further, the bid package of DSJ offers no explanation as to the identity of this entity. As established by Jones' testimony at hearing, the entities "Dale S. Jones, Trustee" and DSJ Realty, Inc., are not interrelated businesses. The DSJ bid submittal further contains no documentation of authority for ELIZABETHAN or Taylor to act as an agent on behalf of "Crystal Lake 301 and 302 Joint Venture." It is found that the bid submittal of DSJ is nonresponsive to the requirements of Respondent's ITB. In response to Respondent's letter rejecting the bids of Petitioners, counsel for both parties filed petitions dated September 8, 1989, protesting the decision and requesting administrative proceedings. The petition filed on behalf of DSJ, ELIZABETHAN, and Dale S. Jones, as Trustee, was entitled "PETITION FOR FORMAL HEARING AND FORMAL BID PROTEST" and alleges the submitting bidder to be ELIZABETHAN. The document, in support of the July 12, 1989 protest of the bid award to MASTER, sets forth specific grounds for that protest. Further, it is alleged in the petition that DSJ was appointed to act as the agent of Dale S. Jones, as trustee, in appointing ELIZABETHAN as his agent. It is found that these allegations, with regard to the identity of the submitting bidder, are not supported by any competent substantial proof; that Dale S. Jones, as trustee was not a submitting bidder; and that ELIZABETHAN was not a submitting bidder. Each petition filed in opposition to Respondent's August 28, 1989 rejection letter, was accompanied by a $5,000 cashier's check payable to Respondent. MASTER subsequently substituted this check with a surety bond. DSJ's July 12, 1989 protest of the bid award was not accompanied by any bond.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding the bids of MASTER and DSJ to be unresponsive; finding the cancellation of the award to MASTER to be justified; dismissing ELIZABETHAN and Dale S. Jones, as trustee, as petitioners in this proceeding; and rejecting all bids. DONE AND ENTERED this 14th day of November, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner Master's Proposed Findings. Petitioner MASTER's proposed findings consisted of 21 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, MASTER's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, MASTER's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Petitioner DSJ's Proposed Findings. Addressed in substance, remainder rejected as unnecessary. Rejected, unsupported by the evidence. Addressed in substance. Rejected, unnecessary to result. 7.-1I. Adopted in substance. Rejected, unsupported by the evidence. Addressed in substance. Adopted by reference. Adopted in substance. 16.-21. Not relevant inasmuch as Jones, in an individual capacity or the legal capacity of trustee or partner, was not a bidder. 22.-23. Adopted in substance. Rejected, legal conclusion, relevancy. Addressed in substance. 26 Rejected, not supported by the evidence. Taylor was authorized to act on behalf of DSJ Realty, Inc., by the corporate president. 27.-28. Rejected, not supported by the evidence; no evidence that Jones was a bidder. 29.-32. Rejected as unnecessary in view of result. 33.-42. Adopted in substance. Respondent's Proposed Findings. 1-12. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esq. Department of Health and Rehabilitative Services 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, FL 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller, Esq. General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Bruce Marger, Esq. 1700 66th Street, North Suite 501 St. Petersburg, FL 33710 David H. Simmons, Esq. 120 South Orange Avenue P.O. Box 67 Orlando, FL 32602 =================================================================
The Issue The issue for determination is whether the Intervenor was properly qualified to complete the construction project contemplated by Invitation to Bid No. DCF-03211120 (ITB)
Findings Of Fact The Department issued the ITB for a construction project, involving the re-roofing of Buildings 1 and 2 at 12195 Quail Roost Drive, Miami, Florida. The ITB was published in the Florida Administrative Weekly on December 24, 2008. The ITB outlined the terms and conditions for responsive bids. The ITB indicated, among other things, that all sealed bids were required to be submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, by January 15, 2009, at 2:00 p.m. Leo Development submitted its sealed bid at the location and by the date and time, in accordance with the ITB. FBM submitted its sealed bid by the date and time, but at a different location—the offices of Russell Partnership— contrary to the ITB. All other bidders submitted their sealed bids at the location and by the date and time, in accordance with the ITB. The Department’s architect of record on the project, Russell Partnership, and one of its principals, Terry Holt, performed the examination and bid tabulation. Mr. Holt, a registered architect for approximately 36 years, was very familiar with the procurement process and had extensive experience in determining whether a bidder was licensed by DBPR in order to complete the work contemplated for a project. The sealed bids submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, on or before January 15, 2009, at 2:00 p.m. were as follows: All Time Roofing, with a bid of $73,400.00; Taylor Roofing, with a bid of $59,708.00; Leo Development, with a bid of $54,109.00; John W. Hunter Enterprises, with a bid of $75,000.00; and Trintec Construction, with a bid of $75,500.00. 9. FBM’s bid was $71,600.00. Mr. Holt determined that Leo Development was the lowest bidder. FBM’s bid was not considered as being non-responsive. Additionally, Mr. Holt reviewed Leo Development’s website to ascertain as to whether any factors existed to disqualify Leo Development. The website failed to reveal any basis for Mr. Holt to disqualify Leo Development. Having discovered no basis to disqualify Leo Development as the lowest bidder, Mr. Holt submitted the list of bidders, with their bids, to Bill Bridges, the Department’s senior architect and a registered architect for approximately 25 years. Mr. Bridges was the person responsible for oversight of the ITB process. As Leo Development was the lowest bidder, Mr. Bridges reviewed the website of the Florida Department of State, Division of Corporations (Division of Corporations) in order to ensure that Leo Development was registered with the Division of Corporations. His review revealed that Leo Development was a fictitious name properly registered to Leo Premier Homes, LLC. Further, Mr. Bridges performed a license background check on Leo Development in order to ensure that Leo Development was licensed by DBPR. Mr. Bridges reviewed DBPR’s website, which revealed that Frank Anthony Leo was the owner of Leo Development and that the following licenses were issued by DBPR: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Development; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Development; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Development. Mr. Bridges confirmed and was satisfied that Leo Development was properly licensed to complete the work contemplated by the ITB. Mr. Bridges recommended that Leo Development be awarded the ITB as the lowest responsive bidder. FBM filed a written protest (Initial Protest) of “its exclusion from the bid tabulation.” The Department issued a Final Order Rejecting Bid Protest (Final Order) on February 19, 2009. The Final Order provided in pertinent part: FBM was determined non-responsive because the bid was not presented at the time and place specified in the ITB. . . FBM’s formal written protest alleges that FBM, on the date of the bid submission/bid opening, was misdirected as to the location of the bid opening. . . . FBM’s protest must be rejected because it does not state a claim that could entitle it to relief. . . In the context of a bid protest proceeding . . . the protest must adequately allege that the protestor could obtain the contract award or otherwise benefit should the protest be successful. . . Assuming all of FBM’s factual allegations are true and that those facts entitle FBM to have its bid considered, FBM would still be entitled to no relief. Had FBM’s bid been accepted, FBM would have been the third lowest of six bidders. FBM’s formal protest does not allege that the lowest and second lowest bids were deficient in any manner. FBM was not injured in fact, because it still would not have received the contract award. Accordingly, FBM’s formal written protest is REJECTED. No appeal was taken by FBM of the Department’s Final Order rejecting FBM’s Initial Protest. Among other findings, the Department’s Final Order on FBM’s Initial Protest found that, taking FBM’s allegations as true, FBM would have been the third lowest bidder. FBM would not have been the second lowest bidder. The parties agree that the holder of a certified building contractor’s license and a certified roofing contractor license would be permitted to complete the work contemplated by the ITB. Subsequent to the opening of the sealed bids, Leo Premier Homes, LLC, registered the fictitious name of Leo Roofing & Construction with the Division of Corporations. After the registration with the Division of Corporations and after the Department’s Final Order, licenses were issued by DBPR. As to the licenses issued, the record of the instant case provides2: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Roofing & Construction; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Roofing & Construction; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Roofing & Construction. The licenses reflect the same license numbers, as before, and only the fictitious name is different on each license to indicate Leo Roofing & Construction.3 The contract for the ITB was entered into between the Department and Leo Development. In these proceedings, the Department incurred costs in the amount of $1,311.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing FBM General Contracting Corporation’s Protest and awarding costs in the amount of $1,311.05 to the Department of Children and Family Services. DONE AND ENTERED this 21st day of August 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 21st day of August, 2009.
Findings Of Fact At some time prior to August 2, 1984, DOT issued bid blanks for a mini- contract for State Project No: 76020-3515, for work consisting of cleaning and guniting a concrete box culvert located on State Road 19, in Putnam County, Florida, approximately one mile south of the Cross Florida Barge Canal. The bid package, signed by C. A. Benedict, District Engineer, for the DOT, specifically reserved the right to reject any and all bids. The bid package broke the work down into three item numbers. The first was mobilization and called for one pricing unit. The second item called for maintenance of traffic at the work site and called for one pricing unit as well. The third area called for restoration of spalled areas (gunite) and called for approximately 437 cubic feet to be priced. In this regard, the plans furnished with the bid package and the bid package itself, in at least three separate locations, called for the bid as to the last item to be priced and paid for on a unit price basis. Petitioner submitted the lowest bid of seven bidders. It was determined to be faulty, however, in that though it properly priced the first two items, it failed to submit a unit price for the third item per unit, submitting instead a total price for the third item based on the entire cubic footage. Petitioner's bid indicated 437 cubic feet priced at a total of $17,832.00. Simple arithmetic permits a division which results in a unit price for each of the 437 cubic feet of $40,805. This last unit price, however, is not reflected on the bid submitted by Petitioner. Petitioner's bid is the only bid of the seven submitted which did not contain a unit price for each of the units in the third item. EDS has been in business since 1980. It performed one previous contract for DOT and is familiar with DOT's rules regarding bidding. It had ample opportunity to examine the plans and the bid blank before submitting its bid and admits that the unit price, though required, was omitted. Petitioner contends, however, that the omission is not a material variance and can be waived by Respondent. Respondent contends, on the other hand, that the failure to list the unit price in the third item is material. This determination is based on the fact that since the bid package calls for payment on a unit basis, the odd one- half cent per unit does not permit even money payment and requires rounding off. Even with this being true, the maximum difference would be one- half cent to be rounded off either upwards or downwards. At some point after opening, at least one of the unsuccessful bidders found out that Petitioner's bid failed to technically conform to the terms of the bid blank and at this point the second lowest bidder, Vann's Sandblasting, whose bid was $4,000.00 higher than that of Petitioner, and who had done several contracts for Respondent in the past, indicated that if petitioner's bid were not rejected, he would file a protest. The one-half cent variance, itself, is not material. Considering all factors, however, the failure to state the unit price may, under certain circumstances, be.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore: RECOMMENDED THAT Petitioner, EXPLOSIVE AND DIVING SERVICES, INC., be awarded the contract for State project No 76020-3515. RECOMMENDED this 27th day of February, 1985, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of February, 1985. COPIES FURNISHED: Gail S. Wood, President Explosive and Diving Services, Inc. Post Office Box 200 Clarksville, Florida 32430 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301 Paul Pappas, Secretary Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32301
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.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The School Board of Palm Beach County advertised for sealed bids for a project consisting of structural modifications and reroofing at Atlantic Community High School, project no. 000881600. All bidders were required to be prequalified by the School Board prior to the bid opening and had to exhibit evidence that similar work of equivalent magnitude had been accomplished prior to this bid. Language in the bid advertisement notified potential bidders that the School Board reserved the right to waive minor informalities in the bids, or to reject all bids. On April 5, 1989, the bids for the Atlantic Community High School (Atlantic) project were opened and a tabulation performed. All bidders had been prequalified by the School Board and had properly submitted the required bid bond. The results of the bid tabulation established GRI as the lowest bidder, Anderson second, and Milne & Nicholls third. Only three bids were timely received. The amount indicated on the GRI bid was stated only in numbers, not written in words. The written numbers, however, were clearly noted and GRI has, at all times, stated it intends to be bound by the figures listed. No error in the amount has been suggested. On April 5, 1989, Dr. Louwers, as contract administrator for the School Board, notified GRI that its bid for the Atlantic project had been deemed nonresponsive. The basis for this determination was GRI's failure to submit the bid book intact, failure to submit bid Form 00420 at the time of the bid opening, the lack of a warranty letter at the time of the bib opening, and the failure to state the price of the bids in words. GRI sought review of the determination that it had been nonresponsive and an informal hearing was conducted on April 11, 1989. As a result of that hearing, GRI'S bid was deemed responsive and all bidders were notified. Thereafter, Anderson timely challenged the intended bid award to GRI. At the time of the bid opening, GRI did not submit its bid book intact. Instead, GRI submitted the proposal form with the amounts indicated for each section together with the bid bond. The bid proposal form required the bidders to indicate an amount in several categories. These categories included a base bid and six alternates numbered 1 through 6. The amounts listed by all bidders were tallied and are specified on joint exhibit no. 10. GRI's bid was the lowest of the three bids received. Once the bids were opened, and it was determined who the three low bidders were, GRI immediately submitted its list of major subcontractors on Form 00420. Within 24 hours of the bid opening, GRI submitted its list of subcontractors and suppliers, Form 00430. Pertinent to this case are the following provisions found in the Instructions to Bidders, section 00100 of the bid package: BIDDING PROCEDURES: 3.01 All bids must be prepared using the forms contained in these specifications and submitted in accordance with the Instructions to Bidders. * * * 3.05 Preparation and Submission of Bid Proposal Form: Each bidder shall use Proposal Form contained in these specifications, indicate his bid prices thereon in proper spaces, for the entire work and for the alternates. Proposal Forms shall remain attached to the specifications.... Each proposal shall specify a unit price written in ink in both words and figures, * * * (d) The specification book is to be left INTACT, the cover signed by the Contractor, the proposal bid guarantee (Certified Check or Bid Bond) to be signed and filled out in the specification book which will be enclosed in a sealed envelope which shall be marked: * * 3.10 Subcontractors: At the time of the bid opening each bidder submitting a bid shall have in his possession a written list of the major subcontractors; namely, structural metal work and metal covering, structural manufacturer, lightweight insulating concrete, plumbing, HVAC, and electrical, whom he proposes to use on this work. The three (3) apparent low bidders will be required to submit Form 00420 (list of major subcontractors) to the Owner at the time of the opening of the bids.... Within 24 hours of the bid opening, the apparent low bidder shall submit Form 00430 (list of subcontractors and suppliers), completed in full to the Owner. Failure to submit these lists within the time period specified herein shall result in a non- responsive bid. * * * 6. REJECTION OF BIDS: 6.01 The bidder acknowledges the right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding documents, or if the bid is any way incomplete or irregular; to reject the bid of a bidder who is not in a position to perform the contract; and to re- advertise for other or further bid proposals. In addition to the foregoing, the apparent three lowest bidders were required to submit certifications to verify information regarding the roofing system included in their proposals. These certifications included: a certification verifying that the pre-engineered metal roofing system had been tested and approved by Underwriter's Laboratory as Class 90; a dealer certification verifying the supplier is a manufacturer's authorized and franchised dealer of the roofing system to be furnished including the date on which authorization was granted; an installer certification specifying that the installer had been regularly engaged in the installation of pre-engirieered metal buildings of same or equal construction to the system proposed including a list of successful installations performed within 200 miles of West Palm Beach, Florida; and a manufacturer's certification verifying that the manufacturer will provide warranties in accordance with the bid specifications. These certifications were to be provided with Form 00430, within 24 hours of being determined an apparent low bidder. GRI did not provide the certifications identified in paragraph 8 within 24 hours of April 5, 1989; however, all certifications were submitted prior to the final hearing in this cause. GRI was not deemed responsive by School Board personnel until after the informal hearing conducted on April 11, 1989. The letter to GRI notifying it of the results of the informal hearing was dated April 19, 1989. The issue of the certifications, therefore, did not arise until Anderson sought to challenge the decision reached by the informal hearing (that GRI was responsive). Anderson submitted all data required by the bid package at the time of the bid opening or within 24 hours of being determined an apparent low bidder. Anderson submitted the bid package intact and complete. According to bark Lottes, the project architect for the Atlantic bid, the manufacturer's certification required to be submitted within 24 hours of the the bid package was to assure the School Board that it would obtain the warranty designated in the bid specifications. Typically, a warranty is not issued until the work is completed. The purpose of the manufacturer's certication is to verify that the warranty, when issued, will be of the type and terms designated by the bid package. No structural deck replacement will be required for the Atlantic job. A general contractor would be required to perform structural deck replacement. GRI listed a general contractor, Mancini Building, among its list of subcontractors and suppliers. The roofing system proposed by GRI is to be manufactured by Varco- Pruden. The installer to perform the structural metal work for the roofing system proposed by GRI is Bretsnyder Netals, Incorporated (Bretsnyder). Bretsnyder has prior experience with metal roofs of the type designated by this bid project. Varco-Pruden has acknowledged Bretsnyder to be an authorized installer of the Varco-Pruden roofing system proposed by GRI. Varco-Pruden has provided a certification that it will warranty the roofing system pursuant to the bid specifications. GPI is registered as a roofing contractor with Gregg Wallick as its licensed roofing contractor. Anderson is a registered general contractor.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Palm Beach County enter a final order awarding the bid for the Atlantic project, project no. 000881600, to GRI, Inc. as the lowest responsive bidder. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division ofAdministrative Hearings this 23rd day of June, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2175BID Rulings on the proposed findings of fact submitted by Anderson: Paragraphs 1 through 3, 5, 6, 7, and 8 are accepted. Paragraph 4 is rejected as irrelevant or immaterial. Whether or not a general contractor is required to perform portions of the work for the Atlantic project is irrelevant to the resolution of the issue in this case. First, because a general cortractor was listed among GRI's subcontractors (the list of which was timely filed) and second, because the weight of the testimony established the project to be roofing in nature with no structural work required. Paragraph 9 is rejected as argument or unsupported by the weight of the evidence in this cause. Rulings on the proposed findings of fact submitted by the School Board: Paragraphs 1 through 15 are accepted. Paragraph 16 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by GRI: Paragraphs 1 through 4 are accepted. Paragraph 5 is accepted to the extent that it states the GPI bid to be lowest; however, as to the exact amount of the difference, it is rejected as contrary to the weight of the evidence. Paragraphs 6 through 8 are accepted. Paragraph 9 is rejected as argument. To the extent that the paragraph is addressed in findings of fact paragraphs 4 and 5, it is accepted. Paragraph 10 is accepted. Paragraph 11 is rejected as conclusion of law or argument except as provided in paragraphs of the preliminary statement, together with paragraphs 6, 8, 9, 12, and 13. COPIES FURNISHED: Jack S. Cox Merola, McCarthy & Cox, P.A. 4114 Northlake Boulevard Suite 301 Palm Beach Gardens, Florida 33410 Robert A. Rosillo Associate Counsel School Board of Palm Beach County 3323 Belvedere Road P.O. Box 24690 West Palm Beach, Florida 33416-4690 Nathan E Nason Gary N. Gerson Nason, Gildan, Yeager & Gerson, P.A. Post Office Box 3704 West Palm Beach, Florida 33402 Thomas J. Mills Superintendent of Schools School Board of Palm Beach County 3323 Belvedere Road P.O. Box 24690 West Palm Beach, Florida 33416-4690
The Issue Whether respondent should award the contract for the reroofing of Rickards High School, Project No. LCS-33016, to petitioner or reject petitioner's bid as unresponsive because it was not accompanied by a specimen copy of a manufacturer's roofing system guarantee?
Findings Of Fact By advertisement to bid prepared after February 8, 1991, and before March 21, 1991, the School Board advised prospective bidders where they could find drawings and specifications for reroofing James S. Rickards High School, Project No. LCS-33016. Petitioner's Exhibit No. 5. The advertisement to bid announced the bid deadline and stated that the School Board reserves the right to waive irregularities and/or information in any Bid and to reject any or all Bids in whole or part, with or without cause, and/or accept the Bid that in its judgment will be for the best interest of the School Board. Petitioner's Exhibit No. 5. The invitation to bid, Section B, 7., also addressed rejection of bids, stating: The Bidder acknowledges the right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding document, or if the bid is in any way incomplete or irregular; to reject the bid of a bidder who is not in a position to perform the contract; and to readvertise for other or further bid proposals. The Owner reserves the right to reject any or all bids when such rejection is in the interest of the Owner, and to reject the Bid of a Bidder who is not in a position to perform the Contract, or whose List of Subcontractors is improperly prepared, or not included in the Bid proposal. Failure to complete the Form PUR 7068 Sworn Statement under Section 287.133(3)(a), Florida Statutes on Public Entity Crimes and submit it with your bid or proposal will result in immediate disqualification of your bid or proposal. Petitioner's Exhibit No. 7. Only the failure to submit a completed Form PUR 7068 was identified as grounds for automatic rejection of a bid. The invitation to bid specified three different types of shingles that would meet the School Board's requirements. All three (including GAF 75) are of a premium grade, and guaranteed by their manufacturers for 20 years. The invitation to bid, Section Q, 4., entitled "Guarantees and Warranty," states: 4.01 Upon completion of the work, and before final payment, contractor shall furnish owner an unlimited ROOFING SYSTEM GUARANTEE with flashing endorsement covering all workmanship and materials issued by the roofing materials manufacturer for a period of 20 years from date of substantial completion. Petitioner's Exhibit No. 7. Earlier on, the invitation to bid, Section B, 3.05, states: (d) Contractor shall submit with his bid, proposal or quotation a specimen copy of the ROOFING SYSTEM GUARANTEE with flashing endorsement applicable to the project. Petitioner's Exhibit No. 7. According to Paul Byrd, respondent's Director of Construction, the purpose of requiring a specimen copy beforehand is twofold: the primary reason is to permit the evaluation of exclusion clauses, and, of less significance, he said, a specimen warranty shows that the bidder has a relationship with a manufacturer of roofing materials. Eight roofing contractors bid on the job, including Register Contracting Co., Inc. (Register). Petitioner Southeast's bid was low at $644,400, and Register was second low at $655,000. Petitioner's Exhibit No. 3. Southeast was the only one of the eight bidders who did not include a specimen copy of a manufacturer's roofing system guarantee with its bid. Register submitted two such specimens, one from Manville Products Corporation and one from GAF Building Materials Corporation (numbered 10446 9/88.) The LCS-33016 bid form proposal executed by Southeast and Register alike recites that the bidder has "examined carefully the . . . specifications . . . and if awarded the contract . . . will contract . . . to furnish all necessary . . . materials." Petitioner's Exhibits Nos. 1 and 2. The successful bidder may elect to use GAF 75, the Johns-Manville, or a third shingle specified in the invitation to bid. Well after the deadline for submitting bids, petitioner furnished the School Board a specimen copy of GAF Building Materials Corporation's guarantee, Petitioner's Exhibit No. 4, another form 10446 9/88 with wording identical to the copy Register submitted on time. Warranties differ depending on the grade of shingle, but this is the manufacturer's current form for all GAF 75 shingles. The form has blanks for "TYPE OF GUARANTEE," "PERIOD OF COVERAGE," "TYPE OF FLASHING," "AREA OF ROOF" and the like, none of which either Register or Southeast filled in. Form 10446 9/88 sets out exclusions from coverage and states that the guarantee "becomes effective only when bills for installation and supplies have been paid in full to the roofing contractor and materials suppliers, and the Guarantee charge has been paid to GAF. . . . [and] upon the satisfactory completion of the roof and GAF's execution of the Guarantee." Petitioner's Exhibit Nos. 2 and 4. The form also states, "The roofing contractor is NOT an agent of GAF." Id. (Emphasis is in original.) Mr. Byrd testified at hearing that the exclusion clauses in Form 10446 9/88 might be consistent with the unlimited guarantee required by the invitation to bid, Section Q, 4.01, but that he had not determined that they were consistent. On the other hand, he also testified that Register's bid is responsive and that, if Register is awarded the contract, Register will be free to use GAF 75 shingles, upon approval of submittals.
Recommendation It is, accordingly, RECOMMENDED: That respondent award petitioner the contract to reroof James S. Rickards High School, Project No. LCS-33016. DONE and ENTERED this 23rd day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 23rd day of May, 1991. COPIES FURNISHED: Fred C. Isaac, Esquire Lewis, Paul & Isaac, P.A. 2468 Atlantic Blvd. Jacksonville, FL 32207 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, FL 32302 Mr. Bill Woolley, Superintendent Leon County School Board 2757 W. Pensacola Street Tallahassee, FL 32304
Findings Of Fact Respondent issued an invitation to bid on March 13, 1992. Bid number SB 92-244I involved the disassembly and removal of an existing walk-in freezer and the furnishing and installation of a new walk-in freezer at Coral Sunset Elementary School. The invitations to bid provided in paragraph Y of the Special Conditions: Failure to file a specification protest within the time prescribed in Florida Statutes 120.53 3.(b) shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (sic) Bid specifications were included in the invitations to bid issued on March 13, 1992. Twenty-three bids were solicited. There were five responses. One of the responses was submitted by Choice Restaurant Equipment, Inc. ("Choice"). Choice is a vendor for equipment manufactured by Petitioner, Nor-Lake, Inc. ("Nor-Lake"). Nor-Lake is an out-of-state corporation with manufacturer's representatives in numerous states including Florida. 4, Petitioner, CHD Marketing Group ("CHD"), is the manufacturer's representative for Nor-Lake in Florida. CHD represents no other manufacturer of the product included in the bid response. Choice is a sales agent for CHD and other manufacturer's representatives in Florida. Choice sells the products of a variety of manufacturers but is the exclusive sales agent for CHD pursuant to a verbal agency agreement. Choice timely submitted a bid for bid number SB 92-244I on April 8, 1992, prior to the bid deadline of 2:00 p.m. on the same day. The successful bidder submitted its bid by Federal Express at 4:51 p.m on April 8, 1992. Respondent's Department of Purchasing and Stores (the "Department") had stated on March 13, 1992, when the invitations to bid were issued, that bid responses must be received by the Department no later than 2:00 p.m. on April 8, 1992, at the Department's address at 3980 RCA Boulevard/Suite 8044, Palm Beach Gardens, Florida, 33410-4276. Prior to April 8, 1992, the Department relocated to a new facility at 3326 Forest Hill Boulevard, West Palm Beach, Florida. The new address was posted at the old location and Department representatives were present at the old address to accept walk-in bids. Federal Express first attempted to deliver the successful bid at the Department's old address at 10:30 a.m. on April 8, 1992. Federal Express delivered the successful bid to the Department's new address at 4:51 p.m. At 2:00 p.m. on the same day, The Department announced that all bids were in and opened the bids that had been delivered. The successful bid and one other bid were delivered on April 8, 1992, after the public opening conducted at 2:00 p.m. on the same day. Bids were tabulated on April 9, 1992. Bid tabulations were posted on April 13, 1992, and the successful bid was announced. The successful bid was for $8,174.00. Three bids were lower than the successful bid. Choice's bid was for $7,742.56. The other two lower bids were for $8,020.00 and $6,620.00. All three lower bids were rejected as non- responsive. Choice's bid was rejected because it did not meet bid specifications for 22 gauge steel, thermostatically controlled door heaters, and reinforced steel door panels. CHD filed a Notice of Protest on April 14, 1992, and a Formal Written Protest on April 24, 1992. CHD's protest alleges that: Choice's bid was lower than that of the successful bidder; the successful bid was not timely made; the bids were not opened publicly in violation of bidding procedure requirements; and the bid specifications were arbitrary and capricious, favored one bidder, and that Choice's bid was responsive. Neither a notice of protest nor a formal written protest was submitted by Choice or Nor-Lake. Neither Choice nor Nor-Lake attended the informal protest conference conducted on April 30, 1992. On May 7, 1992, Respondent's Office of General Counsel issued its written notice of proposed agency action. The written notice recommended that the bid be awarded to the successful bidder and that CHD's protest be dismissed for lack of standing. CHD requested a formal hearing on May 14, 1992, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 15, 1992. The bid submitted by Choice was prepared by CHD but signed by the president of Choice. Neither Nor-Lake nor CHD signed a bid or were otherwise bidders of record for bid number SB 92-244I. Neither Choice, CHD, nor Nor-Lake, filed a notice of protest concerning the bid specifications within 72 hours after Choice received the notice of the project plans and specifications on March 13, 1992. The sole basis upon which CHD claims it is substantially affected is the adverse economic impact caused to it by the proposed agency action. The proposed agency action will result in lost sales from this and future transactions. CHD will lose commissions from this and future transactions. The dealer relationship between CHD and Choice will be damaged because Choice will not want to sell a freezer that is not acceptable to Respondent. The marketing strategy developed between CHD and Nor-Lake will be damaged because it is conditioned upon the award of public contracts.
