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 Whether Miami-Dade Community College (hereinafter referred to as the "College") should sustain Petitioner's challenge to the Evaluation Committee's recommendation to award the contract advertised in Request for Proposal 956-34 ("Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus") to Intervenor, as the proposer submitting the proposal considered to be "in the best interest of the College?"
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The College offers an academic program of flight instruction to its students. Such instruction is provided by independent contractors under contract with the College. Petitioner, a Florida corporation, provided such instruction from January 1, 1992, to December 31, 1995, pursuant to an agreement with the College that was executed on November 26, 1991, and amended July 28, 1995. 1/ Through Request for Proposal 956-34, entitled "Aviation Program Flight Training Provider, Kendall-Tamiami Executive Airport, Homestead Campus" (hereinafter referred to as the "RFP"), the College requested the submission of proposals from prospective providers interested in providing students of the College with flight training instruction at Kendall-Tamiami Executive Airport. The College's Director of Purchasing, Linda Pagliaro, sent the following letter to prospective providers along with the RFP: The College is accepting proposals from flight training providers to provide flight training instruction to students of Miami- Dade Community Colleges's Aviation Program. This proposal shall be submitted on the form(s) which are included in this package and returned in the enclosed envelope. The College shall evaluate all proposals submitted and shall award the contract for the proposal which the College determines to be in its best interest. The completed proposal shall be submitted to the Purchasing Dept., Room 9254, Miami-Dade Community College, 11011 S.W. 104 Street, Miami, FL 33176, before opening time of 3:00 p.m. on October 26, 1995. Proposals received after this opening time will be returned to the vendor unopened. Vendors may attend a pre-proposal conference, to be held October 17, 1995, at 9:00 a.m., at the Kendall Campus, 11011 S.W. 104 Street, Room 9254, Miami, Florida. The College reserves the right to accept any proposal deemed to be in the best interest of the College, to waive any irregularities in any proposal, and may reject any and all proposals. Any questions regarding this proposal may be directed to Mr. Edward Vasquez, Buyer, at (305) 237-2231. The College's "intent" in issuing the RFP was explained as follows in Section 1.0 of the RFP: The intent of this Request for Proposal is to obtain an agreement with a flight training provider to provide flight training instruction at the Kendall-Tamiami Executive Airport for students of Miami-Dade Community College. Provider must currently at at least one location possess a FAAR Section 141 Pilot School Certifi- cate for Flight and Ground (see Section 7.4.4). The term of the Contract shall be for an initial period of two years. By written agreement of the parties, the agreement may be extended for three additional one year terms. Flight training providers may propose service for Kendall-Tamiami Executive Airport only. Another provider has already been recom- mended to provide service at Opa-Locka Airport. It is anticipated that approximately 75 percent of the flight training hours will be flown from Kendall-Tamiami Executive Airport. The successful proposer shall enter into an agreement acceptable to the College to provide Flight Training Instruction for Miami-Dade Community College Students "Contract," the minimum terms of which are incorporated into this Request for Proposal document. (see Section 7.0.) Section 3.0 of the RFP informed prospective providers that they had the opportunity (but were not required) to attend a pre- proposal conference at which they would be able to "ask questions regarding the College's requirements as contained in this Request for Proposal." Section 4.0 described, as follows, the "required information" that had to be provided to the College: Vendors submitting proposals must completely fill in all information requested on the attached PROPOSAL COVER SHEET (ATTACHMENT "A"). Vendors submitting proposals must completely fill in all information requested on the attached PROPOSAL SCHEDULE OF FEES (ATTACHMENT "B"). Providers submitting proposals must supply a brief history of the firm/organization submitting the proposal. This history should include: How long the company has been in business under the present management/ownership. Identity and background of the principals, including the position/title of each principal. Current number of employees. Certification(s) currently held by proposer. List and attach copies. Description and location of all current facilities operated by proposer. List of at least five customers, preferably public or governmental organizations, for which you have provided a similar service. List must include reference name, address, telephone number, contact person, and a description of the service provided. In addition, the College reserves the right to contact current or former customers of the proposer not provided as part of the proposal. Label this part of the proposal Response to Section 4.3. Providers submitting proposals must supply a list of all aircraft which will be made available for performance of the Contract. This list must include the make, model number and equipment included in each aircraft proposed. The Provider should also indicate if the aircraft is leased or owned and the age of the aircraft. Label this part of the proposal Response to Section 4.4. Proposers submitting proposals must supply a narrative description of the flight training program proposed for each location. This descrip- tion must include: Number of flight training instructors and other personnel (by category) available for per- formance of the contract, including re[l]e[v]ant experience, certificates, qualifications and ratings held. Proposed facilities to be made available for performance of the contract, including maintenance and repair facilities, classrooms and offices. Description of the intended flight training curriculum for the four courses indicated in Attachment "B." The description of the flight training curriculum must include, but is not limited to, course outlines or training stages, lesson objectives, and evaluation criteria. The College prefers the Jeppesin Sanderson ground and flight training curriculum. If the provider intends to use the Jeppesin Sanderson curriculum, only a brief statement of that fact is necessary. Label this part of the proposal Response to Section 4.5. Providers submitting proposals must provide a narrative description of their safety record, including a list of all safety violations, incidents/accidents, fines, penalties, investi- gations, suits, claims and judgments, which have occurred during the last three years, or which are pending. Label this part of the proposal Response to Section 4.6. Providers submitting proposals must supply a financial statement audited by a public accountant certified by the State of Florida, or by the provider's financial officer, for the most recent fiscal or calendar year. Label this part of the proposal Response to Section 4.7. In addition to the required information noted in Sections 4.1 through 4.7, providers submitting proposals may include any additional information which may be helpful to the College in analyzing the vendor[']s ability to provide the service described in the Request for Proposal documents. Label this part of the proposal Response to Section 4.8. Section 5.3 of the RFP established 3:00 p.m. on October 26, 1995, as the deadline for the submission of responses to the RFP. Sections 5.4 and 5.5 discussed the subject of prospective providers' questions concerning the RFP. These sections of the RFP provided as follows: Any questions concerning this Request for Proposal shall be directed to Mr. Edward Vasquez, (305) 237-2231, and not to any other person or department at the College. Contacting other members of the Evaluation Committee will result in vendor disqualification. The Purchasing Department will determine whether an addendum should be issued as a result of any questions or other matters raised. If issued, the addendum will be incorporated into the Request for Proposal and will become part of the purchase agreement. The last date for vendors to submit written questions relative to this Request for Proposal will be October 18, 1995, (see Tentative Time Schedule). Questions must be received in the Purchasing Department by 3:00 p.m. and shall be sent to Mr. Edward Vasquez. Questions may also be submitted via facsimile machine, (305) 237-2895. Section 6.0 of the RFP described the proposal evaluation and recommendation process. It provided as follows: An Evaluation Committee will review and evaluate all proposals received and will recommend award to the provider(s) whose proposal is considered to be in the best interest of the College. Providers may be asked to meet with members of the Evaluation Committee for the purpose of clarifying or expanding upon any information contained in their proposal. In addition, the Evaluation Committee may require a visit to the proposer's current place of business for the purpose of observing the business operation, specifically as it relates to the proposed aircraft and maintenance facilities. The College reserves the right to accept any proposal deemed to be in the best interest of the College, to waive any irregularities in any proposal, and to reject any all proposals. The criteria to be used for evaluation shall include the following (not necessarily in order of importance): 2/ Cost Vendor Experience Available Aircraft Proposed Training Program Vendor Safety Record Vendor Financial Condition 3/ Notices of decision or intended decision to recommend or reject proposals shall be posted in the Purchasing Department on November 3, 1995. In the event that an unsuccessful bidder desires to protest the College's notice of intended decision to award or reject proposals, the adversely affected bidder shall be required to comply with Miami-Dade Community College Bid Protest Procedures, a copy of which is available from the Purchasing Department, including, without limitations, filing a notice of protest with the Director of Purchasing in writing within seventy-two (72) hours after the posting or, in the case of a mailing or hand delivery, within 72 hours after receipt of the notice of intended decision, and filing a formal written protest within 10 calendar days after the date the notice of protest is filed. Failure to file a protest within the time prescribed herein, which complies with Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. According to Section 2.1 of the RFP, the "[e]valuation of [p]roposals" would take place "October 27-November 2, 1995." Article I of the College's Bid Protest Procedures for Purchasing Department (which procedures were referenced in Section 6.5 of the RFP) addresses the subject of "protest of invitations to bid and requests for proposal." It provides as follows: All bidders and proposers are required thoroughly to review invitations to bids and requests for proposals ("RFP's") within a reasonable time after receipt. Any concerns or comments relating to the bidding or RFP documents shall be brought to the attention of the Director of Purchasing, Miami-Dade Community College (the "College"), or a designated person in the Purchasing Department, in writing promptly after receipt; provided, however, that should the bidder or proposer desire to protest the bid solicitation or RFP, or any of the bidding or RFP documents, including without limitation, the specifications, requirements or procedures thereof, the bidder or proposer shall (i) file a Protest Notice (in accordance with Article III of these Procedures) with the Director of Purchasing of the College, within 72 hours after the initial date (set forth in the public advertisement by the Board) in which the bidding or RFP documents, as the case may be, shall be made available to the bidders or proposers, or, in the case where the bidding or RFP documents are mailed to the bidders or proposers, within 72 hours after the bidding or RFP documents are received by the applicable bidder or proposer (provided that in the case where such documents are mailed, failure to receive such documents shall not be cause for rejection of all bids or proposals and rebidding); and (ii) file a Formal Protest (in accordance with Article III of these Procedures) with the Director of Purchasing of the College within 10 days after the date the Protest Notice is filed. The failure to comply with the foregoing procedures shall be a waiver by the bidder or proposer of any right to later protest on the basis of the form, content and substance, including without limitation, the specifications, requirements or procedures, of the bidding or RFP documents. For the purposes of the procedures contained herein, the capitalized term "Bidder" shall refer to a bidder or proposer and the capitalized term "Bid" shall refer to a bid or proposal as applicable. Article III of the College's Bid Protest Procedures sets forth "bid protest filing requirements." Section 3.1 of Article III provides as follows: Any bidder adversely affected by the decision or intended decision to award, recommend or reject Bids of the College shall file a notice of protest (the "Protest Notice") in writing with the Director of Purchasing of the College, within seventy-two (72) hours after the posting of the Bid tabulation or receipt of written notice of the intended decision (if such written notice is given), and shall file a formal written protest (the "Formal Protest") with such person within ten (10) calendar days after the date the Protest Notice was filed. The failure to file a Protest Notice or failure to file a Formal Protest within the time periods specified above shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Section 3.2 of Article III provides as follows: Except as otherwise expressly provided herein, in calculating time periods if the last day of the period is a Saturday, Sunday or legal holiday (as designated in Section 110.117, Florida Statutes) or any other day on which the College is closed, the period will run until the close of business on the next day which is not a Saturday, Sunday, legal holiday or on which the College is open for business. A Protest Notice or Formal Protest which is not received within the time periods specified in this Article III shall not be valid, and the failure to so file a Protest Notice and/or Formal Protest in accordance with these time periods shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Section 3.3 of Article III provides as follows: A Protest Notice or Formal Protest shall be effective and deemed filed upon receipt by the Director of Purchasing of the College. Accordingly, a Notice of Protest or Formal Protest is not valid and shall not be considered unless it is received by such a person within the times specified in Section 3.1 above. Section 3.5 of Article III prescribes the contents of a Protest Notice. It provides as follows: A Protest Notice shall at least contain the following information: (i) the Project Number or other Bid identification and a brief descrip- tion of the Bid solicitation involved, (ii) the protesting Bidder's name, address and telephone number, (iii) the name of the authorized repre- sentative of the protesting Bidder to whom all communications should be directed, and (iv) a brief factual summary of the bases for the protest. Section 3.6 of Article III prescribes the contents of a Formal Protest. It provides as follows: A Formal Protest shall state with particularity the facts and law upon which the protest is based and shall contain the following information: (i) the Project Number or other Bid identification and a brief description of the Bid solicitation involved, (ii) a clear and comprehensive statement explaining the grounds for the protest, (iii) the applicable statutes, rules, regulations and other legal authority supporting the protest, and (iv) the relief sought by the protesting Bidder. Section 4.1 of Article III provides that "[w]ithin seven (7) calendar days following receipt of the Formal Protest (excluding Saturdays, Sundays, legal holidays or days [o]n which the College is closed), the College shall provide an opportunity to resolve the protest by mutual agreement between the parties." Section 4.3 of Article III provides that "[w]hen a protest cannot be resolved by mutual agreement in accordance with the provisions of Section 4.1 above within such 7-day period and if there is a disputed issue of material fact, then the matter shall be referred to the Florida Department of Administration, Division of Administrative Hearings, 4/ for formal proceedings in accordance with Section 120.57(1), Florida Statutes, and Chapter 22I-6 [now Chapter 60Q-2] and 28, Florida Administrative Code, unless the parties agree by written stipulation to resolve the dispute by informal proceedings as provided herein." The pre-proposal conference referenced in Section 3.0 of the RFP was held, as scheduled, on October 17, 1995. Petitioner sent a representative to the conference. Intervenor did not. At the conference, Petitioner's representative, Juan Naranjo, delivered a letter from Petitioner's President and sole shareholder, Thomas Shaffer, to the College's contact person (as designated in Sections 5.4 and 5.5 of the RFP), Edward Vasquez. The letter read as follows: After a thorough review of the aforementioned RFP, we hereby submit the following requests for modification and clarification of the terms contained therein: Section 7.3.1.1.8(d) Not all Silver Express Flight Instructors are "employees" as defined by the Internal Revenue Service. Some are employed as independent contractors. Section 7.3.1.1.8(f) Not all Flight Instructors have an Associate's Degree. Section 7.3.1.1.9(a) and (g) Mike Smithers, Chief Instructor of Silver Express does not have either an ATP rating, or an Associate's Degree. Section 7.3.1.2.1(a), (iii) Although appendix C(7) requests the number or percentage of aircraft to incorporate an ADF receiver, the above referenced section specifies that all aircraft shall contain an ADF. Nine of our 14 aircraft are so equipped. Section 7.3.3.1(a) Silver Express is insured for $1,000,000.00 under our commercial lines policy and $1,000,000.00/ $100,000.00 per seat for the aircraft liability. The coverage you request is not available to the company. Section 7.5.2 Include cost of living increases; and Silver Express offers aircraft that fall outside of the fee schedule as set forth in Appendix D. Should a student choose to fly one of the more expensive aircraft, the Board will not deny payment of invoices for such services. Section 7.5.2.1 Clarify (duplication of records). Specifically list the software and equipment required. Include as Section 7.5.2.2 The Board shall provide Contractor with real time access to Student account balances via electronic link on a seven day per week basis. If you have any questions, please feel free to call. Shaffer arrived at the conference site as the conference was ending. He did not sign the conference sign-in sheet. After the conference, Shaffer met with Vasquez, at Vasquez's invitation, to discuss in detail the contents of the letter Nananjo had delivered earlier that day on Shaffer's behalf. At the end of the meeting, Vasquez suggested that Shaffer include in Petitioner's proposal the issues raised in the letter. Four prospective providers submitted proposals in response to the RFP: Avionics Parts and Service Corporation (hereinafter referred to as "Avionics"); 5/ Florida Institute of Technology (hereinafter referred to as "FIT"); Petitioner; and Intervenor. 6/ On the "proposal cover sheet" ("Attachment A"), which was referenced in Section 4.1 of the RFP, Intervenor indicated that the "legal name of the entity" submitting its proposal was "Husta International Aviation, Inc." In its response to Section 4.3a. of the RFP, Intervenor stated the following in its proposal: The Joe Husta Aircraft Corporation was formed in September 1986. Later on the company was renamed Husta Aviation, Inc. Due to the relocation from Kendall Tamiami Executive Airport to the Opa Locka Airport on May 8, 1995, the company is now known as Husta International Aviation. The flight school and charter service are currently doing business as Husta Aviation, Inc. The entire time the company has been owned by Joseph Husta. In its response to Section 4.3d. of the RFP, Intervenor stated the following in its proposal: Currently Husta International Aviation holds a Part 135 charter certificate and a Part 141 Flight school certificate. Photocopies of these certificates are contained in the back of this section. The Part 141 certificate to which Intervenor referred in its response to Section 4.3d. of the RFP (Certificate Number MNLS307B) was actually issued to Joe Husta Aircraft Corporation, the entity which, according to Intervenor's response to Section 4.3a. of the RFP, was later renamed Husta Aviation, Inc. Husta International Aviation, Inc., and Husta Aviation, Inc., are now, and were at the time Intervenor submitted its proposal, separate and distinct corporate entities. 7/ The two corporations are "in the process" of merging, but the merger has not yet been finalized. On November 20, 1995, Certificate Number MNLS307B was reissued to Intervenor in anticipation of the merger. In its response to Section 4.3e. of the RFP, Intervenor stated the following in its proposal: The facilities currently in use by Husta Inter- national Aviation at our Kendall-Tamiami Executive facility located at 14160 S.W. 129th Street, Miami, Florida 33186, include an establishment of approximately 1440 square feet. The facilities are located at the departure end of runway 9R, immediately next to the United States Customs office. This allows quick access to the runway, meaning shorter taxi times for students. There are four private briefing areas, in addition to a large lounge and dining areas. Maintenance will be available on an on call basis from our Opa Locka based maintenance staff. (Intervenor made this very same statement in its response to Section 4.5B. of the RFP.) The "establishment" at Kendall-Tamiami Executive Airport referred to in Intervenor's response to Section 4.3e. of the RFP was leased from Metro-Dade County by Husta Aviation, Inc., not by Intervenor. In its response to Section 4.3f. of the RFP, Intervenor stated, in pertinent part, the following in its proposal: f. List of Customers . . . 5. Universidad Aerovias Contact: Ricardo H. Schoer Diestal, Flight School Director AV Tahel Esq. Ruiz Cortines S/N Col Pensador Mexicano 15520 Mexico, D.F. Miami phone (305)362-1493 From January 1993 through August 1994, Husta Aviation provided Initial, Instrument, Commercial, and Multiengine Instruction to over 100 University of Mexico Graduates. The instruction to which Intervenor referred in its response to Section 4.3f. of the RFP was actually provided to students from Aeromexico. The instruction was provided at the Universidad Aerovias. In its response to Section 4.6 of the RFP, Intervenor stated the following in its proposal: During the past three years at Husta Aviation, Inc., there has been only one safety related incident. On July 15, 1994, an Universidad Aerovias student pilot, during a crosswind landing, hit the wingtip on a C-152. The total damage to the aircraft was less than $12,000. During the last three years at Husta Aviation, Inc., there have been no other safety violations, incidents/accidents, fines, penalties, investiga- tions, suits, claims, and judgments levied against Husta Aviation, Inc. In its response to Section 4.7 of the RFP, Intervenor provided, as part of its proposal, a Statement of Operations (including revenue and costs, as well as expenses) for the period from May 8, 1995 through August 31, 1995, of the Husta Aviation Flight School, and a Balance Sheet reflecting the assets and liabilities of the Husta Aviation Flight School as of August 31, 1995. These documents were prepared, but not certified, by Intervenor's chief financial officer. Petitioner, in its response to Section 4.7 of the RFP, advised the College of the following: Audited financial statements are unavailable for the fiscal year ending May 31, 1995. The enclosed statements are uncorrected and intended to be used as a reference only. In its response to 4.8 of the RFP, Intervenor stated the following in its proposal:
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the College enter a final order dismissing, for lack of standing, Petitioner's protest of the Evaluation Committee's recommendation that the contract advertised in Request for Proposal 956-34 be awarded to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of February, 1996. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 1996.
The Issue The issue presented for decision in this case is whether Respondent, the Florida Department of Transportation (the "Department"), improperly dismissed the formal written protest of Petitioner, Diversified Management and Construction, Inc. ("Diversified"), on the ground that it was not filed within 10 days of the filing of Diversified's notice of intent to protest.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: In response to the RFP, seven contractors submitted proposals by the deadline of 5 p.m. on August 1, 2000. On August 2, 2000, the bid opening was conducted by Betty Wilson, the Department’s deputy district manager, and was witnessed by Department employees Scott Walters and Jerry Obert. At 2 p.m. on August 8, 2000, the Department posted the proposal tabulation, indicating the Department’s intent to award the contract to Preferred Building Solutions, Inc. The proposal tabulation indicated that Diversified was ranked third out of the seven proposers. The proposal tabulation contained the following notice, as required by Section 120.57(3), Florida Statutes: Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. On August 8, 2000, after the proposal tabulation was posted, John Jazesf, the president of Diversified, contacted the Department by telephone and requested copies of several of the proposals via facsimile transmission. The Department declined to fax the proposals to Mr. Jazesf because they were too voluminous, but offered to make them available for review at the Department’s Tallahassee office. On the afternoon of August 8, Mr. Jazesf also contacted John Agliano, an attorney. He told Mr. Agliano that he was thinking about filing a protest, but would not know until he went to Tallahassee and reviewed the proposals. Mr. Jazesf testified that he did not discuss protest time lines or any other specifics with Mr. Agliano. On August 9, 2000, Mr. Jazesf traveled from Tampa to Tallahassee and reviewed the proposals. He also discussed the proposed contract award with several Department officials. On August 10, 2000, Mr. Jazesf spoke by telephone from Tampa with James C. Myers, the Department’s agency clerk. Mr. Jazesf testified that their conversation lasted between 20 and 30 minutes. They discussed the requirements for filing the notice of protest, whether a third ranked proposer had standing to protest, and whether documents could be filed with the Department via facsimile transmission. Mr. Jazesf testified that he told Mr. Myers that Diversified would file its formal written protest, either “two weeks from Friday” or on August 25, 2000. On the date of the conversation, “two weeks from Friday” was August 25, 2000. Mr. Myers testified that he could not recall the details of this conversation. Mr. Jazesf acknowledged that Mr. Myers did not respond to his statement as to when the formal written protest would be filed. As the agency clerk, Mr. Myers is responsible for date stamping all documents addressed to the Clerk of Agency Proceedings. He is not authorized to provide legal advice to potential protesters, or to make judgments as to whether documents are timely filed. On August 11, 2000, Diversified filed its notice of protest and faxed a copy of its protest bond to the Department. There is no dispute between the parties that the notice of protest was timely filed or that a faxed copy of the bond was acceptable. The August 11, 2000, filing of the notice of protest established a deadline of August 21, 2000, for the filing of the formal written protest, pursuant to the ten-day filing requirement of Section 120.57(3), Florida Statutes. Between August 11 and August 21, 2000, neither the Department nor Mr. Jazesf, or anyone else on behalf of Diversified, contacted each other concerning the formal written protest. Diversified failed to file its formal written protest on Monday, August 21, 2000. On his own, Mr. Jazesf attempted to calendar the appropriate date for filing its formal written protest. He reviewed several state statutes and municipal ordinances to confirm in his mind that the "10 day" rule meant ten working days, rather than ten calendar days. Mr. Jazesf specifically reviewed Section 120.57, Florida Statutes; Rule 28-110.005, Florida Administrative Code; Section 1.18 of the RFP; the Bid Tabulation Sheet; federal regulations providing for a ten working-day notification requirement for asbestos stripping; and, Section 108.4.3, Southern Building Code (1997), expressly providing a 30 calendar-day notice of appeal deadline. Mr. Jazesf testified that his review led him to conclude that August 25, 2000, ten working days after filing the notice of protest, was the deadline for filing the formal written protest. Mr. Jazesf testified that he also relied on the silence of Mr. Myers in response to his statement that Diversified intended to file its formal written protest on August 25, 2000. On August 22, 2000, one day after the statutory deadline to file its formal written protest, Mr. Jazesf faxed a memo to Mr. Myers indicating that the formal written protest would be filed by August 25, 2000. Again, Mr. Myers did not respond. Diversified did not retain legal counsel in connection with the bid protest on or before August 21, 2000. Diversified filed its formal written protest on August 25, 2000, four days after the statutory deadline, and ten working days after the filing of the notice of protest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the protest filed by Diversified Management and Construction, Inc. for failure to file the formal written protest within ten days of filing its notice of protest. DONE AND ENTERED this 5th day of December, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of December, 2000. COPIES FURNISHED: Brian A. Crumbaker, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 John J. Agliano, Esquire C. David Harper, Esquire Annis, Mitchell, Cockey, Edwards & Roehm, P.A. Post Office Box 3433 Tampa, Florida 33601 James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450
Findings Of Fact On December 5, 1984, the Department of Transportation (DOT) opened bids on State Project No. 89095-3414 and 89095-3419 in Martin County, Florida, for construction of a portion to the uncompleted I-95. Respondent was apparent low bidder but this bid was declared nonresponsive for failure to meet Disadvantaged Business Enterprise (DBE) requirements. On December 7, 1984, Good Faith Efforts Review Committee reviewed the bids and found Jasper Construction Company had achieved only 8.43 percent of the 10 percent DBE goal requirements of the contract and that all other bidders had reached or exceeded this requirement. This committee did not find Petitioner had made a good faith effort to meet the DBE goals. On December 12, 1984, the Federal Department of Transportation approved the award of the bid to Wiley N. Jackson Company, the second lowest bidder. Petitioner was notified of DOT's intent to reject its bid and by letter dated December 13, 1984, petitioner protested DOT's rejection of its bid for failure to comply with the 10 percent DBE requirement and of the proposed award of the bid to the second lowest bidder. That letter requested an opportunity to "meet with you" to show Petitioner had made a good faith effort to meet the DBE requirements. On December 14, 1984, representatives of Petitioner and Respondent met to consider Petitioner's good faith efforts to comply with the DBE requirements. The results of that meeting were not submitted in these proceedings but on December 17, 1984, Respondent gave notice of its intent to award the contract to Wiley N. Jackson Company by posting with the clerk of Agency Proceedings. By letter dated December 26, 1934, hand delivered by Petitioner to Respondent, Petitioner referred to two phases of the project on which it had bid, advised that Jasper would like to have both contracts awarded it but if the Department was not going to award the Palm Beach County project to Jasper it did not want to enter into the Palm Beach/Martin County project. Petitioner further stated it was interested in an all-or-nothing deal and would like to meet with DOT at the earliest convenient moment. Funds for this project are Discretionary Interstate Lapse Funds provided by the Federal Government. Construction on this project must commence not later than February 4, 1985, or the funds will revert to the U.S. Treasury. On January 4, 1985, DOT entered an Order finding that it was necessary to proceed with award of the contract without delay in order to avoid an immediate and serious danger to the public health, safety, and welfare, cited many of the above-noted facts, and advised the parties of their right to seek injunctive or appellate relief pursuant to Section 120.59(3), Florida Statutes. On January 5, 1985, Petitioner filed the REQUEST FOR IMMEDIATE HEARING which is the subject of this proceeding. This request was forwarded to the Division of Administrative Hearings by DOT on January 8, 1985, and immediately assigned to this Hearing Officer. On January 10, 1985, attempts to contact the attorneys for the parties revealed the attorneys were in circuit court on Petitioner's request for a temporary injunction to stop the bid procedure until Petitioner had an opportunity to litigate the good faith efforts by Jasper to comply with the DBE requirements. The circuit court denied Petitioner's request for a temporary injunction and scheduled a final hearing on the permanent injunction for January 22, 1985.
Findings Of Fact The bid protest, which is the petition for administrative hearing, is a letter to the Clerk of Agency Proceedings, Department of Transportation, from Irwin M. Hart, President, Winko-Matic Signal Company, dated September 13, 1985. The bid protest letter alleges that Winko-Matic bidded as a joint venture on State Project No. 72000-3542 with BHT Electrical. The bid protest further alleges that Winko-Matic is currently working on the same intersections in Jacksonville, and Traffic Control Devices is a strong competitor of BHT, and that Winko-Matic fears that there will be severe problems arising from having two competitors working in the same intersection at the same time. The bid protest letter does not allege that Traffic Control Devices was not the lowest responsible bidder or that Winko-Matic was the lowest responsible bidder. None of the exhibits or testimony presented at the final hearing by Winko-Matic was directed to the issue of whether Traffic Control Devices was not the lowest responsible bidder, or the issue of whether Winko-Matic was the lowest responsible bidder. All of the evidence was directed to the issue of problems that might arise if Traffic Control Devices and Winko- Matic work in the same intersection together at the same time. The Respondent presented evidence, not contradicted by the Petitioner, that the Petitioner's bid was the fifth lowest out of about six bids. Traffic Control Devices, Inc. submitted the lowest bid. The formal opening of the bids on State Project 72000- 3542 was July 31, 1985. The Notice of Solicitation was four weeks before that date. The Petitioner did not file a notice to protest the Notice of Solicitation at any time prior to the final hearing. The only notice to protest filed by the Petitioner is the one mentioned above in paragraph 1. There is no direct evidence in the record that the Petitioner in fact received the Notice of Solicitation, but it must have received some form of notice since it submitted a bid.
Recommendation It is therefore recommended that the Florida Department of Transportation enter its final order dismissing the petition for a section 120.57(1), Fla. Stat., for lack of a substantial interest. DONE and ENTERED this 6th day of November, 1985, in Tallahassee, Florida. Hearings Hearings 1985. COPIES FURNISHED: Irwin M. Hart, President WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative this 6th day of November, Winko-Matic Signal Company 6301 Best Friend Road Norcross, Georgia 30071 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the protest herein is premature under the terms of the Request for Proposals and Section 120.53(5) F.S.
Findings Of Fact This proceeding concerns a protest by Amdahl regarding DHSMV's "notice of intent to benchmark" with Unisys pursuant to RFP 046-95 REBID. The RFP was issued on April 5, 1995. Meetings concerning the specifications were held on April 14 and 18, 1995. No protests were timely filed with regard to the specifications. On May 4, 1995, the agency issued its notice of intent to benchmark as more specifically described below. The RFP is divided into three sections: the technical proposal, the price proposal, and the benchmark. So far, all proposals have been evaluated and ranked by DHSMV based on technical and price criteria. At this stage, Unisys is ranked first, and Amdahl is ranked second. When it had determined that Unisys had received the highest combined score on the technical and price proposals, DHSMV posted the tabulated scores of all proposers and notified them of the agency's intent to proceed to the benchmark evaluation phase of the RFP with Unisys. In an abundance of caution, the agency included in its notice of intent to benchmark, to which was attached the final point tabulation for all competing vendors, the notice of a right to protest within 72 hours pursuant to Section 120.53 (5) F.S. Amdahl timely filed its notice of protest and its formal protest. Without unnecessary elaboration, the thrust of Amdahl's protest is directed to Sections 3.23 and 6.0 of the RFP and DHSMV's scoring of the technical and price proposals. That protest includes, but may not be limited to, an accusation that the agency improperly permitted Unisys to manipulate its certified minority business enterprise compliance after the submittal of its response to the RFP. Amdahl further asserted that since a tabulation was attached to the notice of intent to benchmark and due to the wording of Section 120.53(5)(b) F.S., DHSMV Rule 15-2.003(2), and RFP General Condition 5 and Special Condition 3.5, Amdahl was required to challenge the DHSMV scoring and tabulation at this point in time or be presumed to have waived its right to protest. Pursuant to Sections 4.1 and 4.2 of the RFP, the highest ranked proposer (as determined by the scoring system thus far) next must participate in a month-long benchmark designed to demonstrate the highest ranked proposer's ability to perform. If the highest ranked proposer fails the benchmark, DHSMV will eliminate the highest ranked proposer and the next ranked proposer will be given the opportunity to perform the benchmark. If the second ranked proposer fails, the third can try benchmarking, and so on. Once some proposer passes the benchmark tier of evaluation, the recommendation to award will be posted. Specifically, RFP specifications 4.1 and 4.2 which were not challenged by a protest within 72 hours of the last explanatory meeting thereon, read as follows: CONTRACT AWARD It is the intent of the DHSMV to require the qualified proposer scoring the highest number of points after the Technical evaluation, and Costs evaluation of the proposals to benchmark all proposed hardware and software on the configurations proposed . The Benchmark will be performed at the DHSMV, Kirkman Data Center, Tallahassee, Florida. Upon successful completion of the Benchmark described in ATTACHMENT-B , a recommendation to award the contract resulting from RFP 046-95-REBID will be submitted to the Governor and Cabinet of the State of Florida. Final award of a contract for this RFP will be contingent upon the agency obtaining third party financing. MANDATORY BENCHMARK REQUIREMENT The hardware and software proposed in this RFP shall be benchmarked using the performance criteria set forth in ATTACHMENT-B. This benchmark shall be performed utilizing ORACLE asw the DHSMV data- base standard. It is the responsibility of the proposer to insure that all hardware and software proposed meet this requirement. In the event any non conformity or noncompatibility is encountered at any time, the proposer will be eliminated from further consideration and the next highest points scoring proposer will be given the opportunity to perform the benchmark. (Emphasis in the original) DHSMV asserted unequivocally that in the present case, if Unisys does not pass the benchmark, then Unisys will be eliminated and Amdahl will be permitted to benchmark. It is equally clear that if Unisys passes the benchmark, then a recommendation to award will be issued. All concerned seem to recognize the foregoing as the natural flow of the RFP award procedure as contemplated by the RFP. Even the prayer for relief contained in Amdahl's petition states, in pertinent part, ". . . Amdahl requests that DHSMV suspend further action with respect to the contract award process until this protest is resolved by final agency action; . . . That a DOAH recommended order and a DHSMV final order be entered selecting Amdahl as the winning proposal for benchmarking and ultimate award of the contract; . . . . Amdahl asserts that it is both fairer and more efficient to score the competing proposals and resolve all scoring issues pertaining to the technical and price portions before benchmarking the interim winner, rather than providing an opportunity for the interim winner to negotiate the manner in which its products can be integrated to achieve conformance and compatibility with the agency's purposes; that the benchmarking procedure directed to Unisys cannot be monitored by Amdahl for possible protest purposes at a later stage; and that benchmarking permits Unisys to make further adjustments towards qualifying a minority enterprise that was not certified at the time Unisys submitted its proposal. Amdahl did not raise any of these issues prior to submitting its own bid.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the current petition without prejudice to its appropriate issues being raised within the statutory time frame after the agency's recommendation to award contract described in Section 4.1 of the RFP is issued and prior to that recommendation to award being sumitted to the Governor and Cabinet. DONE and RECOMMENDED this 6th day of June, at Tallahassee, Florida. ELLA JANE P. 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 6th day of June, 1995 COPIES FURNISHED: David K. Miller M. Stephen Turner Jay Adams BROAD AND CASSEL P.O. DRAWER 11300 215 South Monroe St. Ste 400 Tallahassee, Florida 32302 Enoch J. Whitney Judson Chapman Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399 Mary Piccard W. Robert Vezina III Cummings, Lawrence & Vezina, P.A. 1004 De Soto Park Drive PO Box 589 Tallahassee, Florida 32302 Charles J. Brantley Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399
The Issue Whether in making a preliminary decision to award a contract for the subject services under Invitation to Bid No. 12-039T – Refuse Services (the ITB) Respondent School Board of Broward County, Florida (the School Board) acted contrary to a governing statute rule policy or project specification; and if so whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner Ace Waste Services, LLC (Petitioner) challenges the determination that the bids submitted by the apparent low bidder, the apparent low second low bidder, and the apparent low third low bidder were responsive and responsible bids meeting the specifications contained in the ITB.
Findings Of Fact School Board Policy 3320 entitled "Purchasing Policies" is the agency's rule governing the purchasing of goods and services. On October 7, 2011, the School Board issued the ITB which was entitled "Refuse Services." On October 18, 2011, the School Board issued Addendum No. 1 to the ITB. The refuse services were to be provided to 58 district school sites, which were collectively referred to as Group 1. The Bidder Acknowledgement found at Section 1.0 of the ITB states in pertinent part as follows: I agree to complete and unconditional acceptance of this bid all appendices and contents of any Addenda released hereto; I agree to be bound to all specifications terms and conditions contained in this ITB . . .. I agree that this bid cannot be withdrawn within 90 days from due date. Section 3 of the ITB states as follows at General Condition 3(b): MISTAKES: Bidders are expected to examine the specifications delivery schedules bid prices and extensions and all instructions pertaining to supplies and services. Failure to do so will be at Bidder's risk. Section 3 of the ITB states as follows at General Condition 35: PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person desiring to protest the conditions/specifications of this Bid/RFP or any Addenda subsequently released thereto shall file a notice of intent to protest in writing within 72 consecutive hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest with ten calendar days after the date the notice of protest was filed. Saturdays Sundays legal holidays or days during which the school district administration is closed shall be excluded in the computation of the 72 consecutive hours. If the tenth calendar day falls on a Saturday Sunday legal holiday or day during which the school district administration is closed the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday Sunday legal holiday or days during which the school district administration is closed. Section 120.57(3)(b) Florida Statutes as currently enacted or as amended from time to time states that "The formal written protest shall state with particularity the facts and law upon which the protest is based." Failure to file a notice of protest or to file a formal written protest within the time prescribed by [section 120.57(3)(b)] or a failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. The failure to post the bond required by School Board Policy 3320 Part VI within the time prescribed by School Board Policy 3320 Part VI as currently enacted or as amended from time to time shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. Notices of protest formal written protests and the bonds required by School Board Policy 3320 Part VI shall be filed at the office of the Director of Supply Management and Logistics 7720 West Oakland Park Boulevard, Suite 323 Sunrise, Florida 33351 (fax 754-321-0936). Fax filing will not be acceptable for the filing of bonds required by School Board Policy 3320 Part VI. Section 3 of the ITB states as follows at General Condition 36: POSTING OF BID RECOMMENDATIONS/TABULATIONS: Any person who files an action protesting an intended decision shall post with the School Board at the time of filing the formal written protest a bond payable to the School Board of Broward County Florida in an amount equal to one percent (1%) of the Board's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours excluding Saturdays Sundays legal holidays and other days during which the School Board administration is closed of receipt of notice of intent to protest. The estimated contract amount shall be established on the award recommendation as the "contract award amount." The estimated contract amount is not subject to protest pursuant to [section 120.57(3)]. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond the School Board may accept a cashier's check official bank check or money order in the amount of the bond. If after completion of the Administrative Hearing process and any appellate court proceedings the School Board prevails the School Board shall recover all costs and charges which shall be included in the Final Order or judgment including charges made by the Division of Administrative Hearings but excluding attorney's fees. Upon payment of such costs and charges by the protestant the bond shall be returned. If the protestant prevails then the protestant shall recover from the Board all costs and charges which shall be included in the Final Order or judgment excluding attorney's fees. Section 3 of the ITB states as follows at Special Condition 1: INTRODUCTION AND SCOPE: The School Board of Broward County Florida (hereinafter referred to as "SBBC") desires bids on REFUSE SERVICES for solid waste removal as specified herein. Prices quoted shall include pick up at various schools departments and centers within Broward County Florida. Section 4 of the ITB states as follows at Special Condition 3: AWARD: In order to meet the needs of SBBC Bid shall be awarded in its entirety to one primary and one alternate responsive and responsible Bidders meeting specifications terms and conditions. The lowest Awardee shall be considered the primary vendor and should receive the largest volume of work. Therefore it is necessary to bid on every item in the group and all items (1-58) in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC reserves the right to procure services from the alternate Awardee if: the lowest Bidder cannot comply with service requirements or specifications; in cases of emergency; it is in the best interest of SBBC. After award of this bid any Awardee who violates any specification term or condition of this bid can be found in default of its contract have its contract canceled be subject to the payment of liquidated damages and be removed from the bid list and not be eligible to do business with this School Board for two years as described in General Conditions 22 and 55. Section 4 of the ITB states as follows at Special Condition 7: ADDING OR DELETING SITES: SBBC may during the term of the contract add or delete service wholly or in part at any SBBC location. When seeking to add a location SBBC shall request a quote from both Awardees. The lowest Bidder shall receive an award for the additional location. If additional service is requested for an existing site already receiving service the current service provider will be contacted to provide a new quote based on the pricing formula submitted in response to this ITB or a subsequent quote. Section 4 of the ITB states as follows at Special Condition 11: RECEPTACLES: The Awardee shall furnish receptacles in good repair. . . .The Awardee shall furnish any and all equipment materials supplies and all other labor and personnel necessary for the performance of its obligations under this contract. Design of all equipment is subject to the approval of the Manager Energy Conservation Utility Management or his designee and must be replaced upon notification without additional cost to SBBC. DESCRIPTION: All receptacles used for solid waste referenced in Group 1 on the Bid Summary Sheets and the Tamarac location listed in Section 5 Additional Information unless otherwise indicated shall be provided by the Awardee at no additional cost. Bin receptacles shall be provided for SBBC use in the cubic yard capacities as indicated on the Bid Summary Sheets. Receptacles shall be bin-type units steel or plastic lift-up lids NO SIDE DOORS unless specifically requested for 8 cu. yd. fitted for automatic loading on casters where necessary for chute operations. (Receptacles not on casters must have a 6" – 12" clearance from ground to bottom of bin for easy cleaning underneath.) TWO AND THREE YARD CONTAINERS: It will be necessary for The Awardee to supply the two (2) and three (3) yard containers to hold compacted refuse at a ratio of approximately 4:1. These containers are designed for front-end loading. THESE UNITS ARE IDENTIFIED ON THE BID SUMMARY SHEET BY A SINGLE ASTERISK (*) NEXT TO THE CONTAINER SIZE. Section 4 of the ITB states as follows at Special Condition 20: SMALL IN-HOUSE COMPACTION UNITS(approximately two yards): The following schools have in-house compaction units which will need to be provided by the Awardee. Waste is compacted at an approximate ratio of 3:1. Collins Elementary Oakridge Elementary Sheridan Hills Elementary Section 4 of the ITB states as follows at Revised Special Condition 14: PRICING – ALL INCLUSIVE COST GROUP 1 ITEMS 1– 58: Bidder shall submit fixed monthly costs where indicated on the Bid Summary Sheets for each location based on 4.33 weeks per month. (This number is derived by dividing 52 weeks by 12 months). Monthly costs stated shall be an all-inclusive cost for providing receptacles refuse removal and disposal including but not limited to all necessary labor services material equipment taxes tariffs franchise fees maintenance and applicable fees. SBBC agrees to pay the Broward County Disposal Adjustment (tipping fees) in effect at the time. Increases to this fee will be paid as assessed by Broward County. Any decreases in these rates shall be passed on to SBBC as well. No bid specification protest was filed by any person concerning the original ITB or Addendum No. 1. Nine companies submitted timely responses to the ITB. Each bidder submitted a monthly bid and an annual bid. The School Board thereafter ranked the respective bids. Intervenor was the apparent low bidder with a monthly bid of $39,576 and an annual bid of $474,918.38. All Service was the apparent second low bidder with a monthly bid of $40,540.90 and an annual bid of $486,490.80. WSI was the apparent third low bidder with a monthly bid of $47,671.71 and an annual bid of $572,060.52. Petitioner was the apparent fourth low bidder with a monthly bid of $50,177.73 and an annual bid of $602,132.76. On November 2, 2011, the School Board's Purchasing Department posted the agency's intended recommendation for award of the ITB. The intended decision was (A) to award to Intervenor as the primary vendor for Group 1 (1 through 58); and (B) to award to All Service as the first alternate for Group 1 (1 through 58). On November 4, 2011, Petitioner timely filed its Notice of Protest with the School Board's Purchasing Department. On November 14, 2011, Petitioner timely filed its Formal Bid Protest with the School Board's Purchasing Department and delivered the required bid protest bond. The School Board formed a Bid Protest Committee that met with Petitioner on December 19, 2011, to consider Petitioner's formal written protest in accordance with section 120.57(3)(d)(1) and School Board Policy 3320. The parties were unable to resolve the protest by mutual agreement and the School Board sent Petitioner a notice of non-resolution of dispute. Section 1 of the ITB precludes a bidder from withdrawing its bid within 90 days of its submission to the School Board. At the time of the formal hearing 106 days had passed since the submission of bids. No bidder, including Intervenor, has indicated that it committed an error in calculating its prices submitted under the ITB or asked the School Board to excuse it from the prices it offered under the ITB. To the contrary, Intervenor's counsel represented at the formal hearing that Intervenor was standing by its bid. Generally, compacted waste is heavier and more expensive to dispose of than non-compacted waste. The ITB identifies the number and size (in cubic yards) of the receptacles to be placed at each location and the number of pick-ups per weeks to occur for each receptacle. The ITB also informs the bidders whether a receptacle was compacted or non-compacted. If compacted the ITB set forth the ratio of compaction. Bidders were also asked to bid a monthly cost and any applicable fees charged by the facility receiving the waste to arrive at total monthly cost for each receptacle to be furnished. The bidders were required to provide a total monthly bid for the services and a total annual bid for the services. The bidders were to use the information set forth in the ITB to calculate their bids. Petitioner asserts that the bids submitted by Intervenor, All Service, and WSI were not responsible bids because those bids failed to factor in the higher costs of disposing of waste that had been compacted. Petitioner contends that the reference to compaction ratios constitute specifications by the School Board to require all bidders to calculate their pricing utilizing the compaction ratios. Petitioner describes the referenced compaction ratios as "multipliers" that needed to be used by the bidders in calculating their prices for handling and disposing of compacted waste. Petitioner is seeking to impose its interpretation of the ITB as requiring each of the bidders to calculate its bid using the same pricing methodology that Petitioner employed. There is no ambiguity in the ITB, and there is no factual basis to conclude that all bidders were required to prepare their bids in the same fashion as Petitioner. There is nothing set forth in the ITB that required the School Board to interpret its reference to the compaction ratios as being a specification of a "multiplier" for pricing as opposed to a description of the capacity of the receptacles to be used at each of the school locations. At no point is the word "multiplier" used in the ITB to specify that the bidders were required to engage in mathematics involving multiplying their prices against some unit price the bidders were specifying in their bids. The ITB specifies the frequency with which the varying container sizes needed to be picked up at each of the 58 schools with the weight or volume of the container not being a factor in setting the specification of how often the container is to be picked up by the awardee. No adjustments were to be made to the prices paid by the School Board based on the weight of the container when removed. The School Board did not specify in the ITB that a bidder was required to charge the same monthly cost at each school for a similarly-sized refuse container nor did the School Board require different pricing for compacted waste as compared to non-compacted waste. Petitioner's assertion that the bidders were required to use those ratios as a multiplier when bidding on the cost of disposing of compacted waste is rejected as being contrary to the plain language of the ITB. The compaction ratios were provided to the bidders as information only. There is no requirement that a bidder use a particular methodology in determining its bid amounts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Broward County Florida enter a Final Order that adopts the findings of fact and conclusions of law contained herein, dismisses the protest filed by Petitioner Ace Waste Services LLC, and upholds the award of the procurement to Choice as primary awardee and to All Service as alternate awardee. DONE AND ENTERED this 20th day of March 2012, in Tallahassee Leon County Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March 2012.
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a public contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact The Request for Proposals In the fall of 2002, the Board issued Request for Proposals No. 026-CC10 (the “RFP”) to solicit offers on a contract for internet-based collaborative construction and claims reduction support services. As stated in Section II at page 1, the purpose of the RFP was [t]o commission one or more firms to provide the Board with internet-based collaborative construction and claims reduction support services. It is intended that this technology be gradually phased into the construction program as new projects from the District’s Capital Construction Five- year Work Plan come online. Miami-Dade County Public Schools is the fourth largest public school system in the nation and has a large-scale on-going capital construction program. The deadline for submission of proposals in response to the RFP was November 26, 2002. Section V of the RFP, which was titled “Required Information to be Submitted by Proposers,” prefaced a list of ten specific items with the instruction that “[a]ll proposals shall contain the following information and shall be presented in the following format[.]” There is no dispute that material compliance with Section V was mandatory and that proposals could be——and in fact were——disqualified from consideration for failure to include all of the required information. Section VI of the RFP set forth the scope of work. It provided, in pertinent part: The proposer(s) shall provide Internet collaborative construction and claims reduction support services for use in connection with the [Board]’s capital construction program which should include but not be limited to, the following: The proposer should provide an off- the-shelf application product and application service provider services on a purely web-based system. Users will access and interface with the application via the internet using Internet ExplorerTM browser software running on computer workstations under typical WindowsTM operating system. Users should not have to purchase or have installed on their workstations any other applications in order to use the application service provider's application. The application service provider should host all applications and data and own and/or own the lease to their facility as well as all hardware and software. The application should include but not limited to the following: * * * 9. Custom web site documents folders and subfolders creation and organization and the ability to submit multiple documents or files (select, drag and drop) to the project web site electronically from authorized computer workstations. Project folders should be capable of storing, including but not limited to, all plans, drawings, specifications, contracts, general conditions, surveys, geo-technical photographs, reports and other documents typically encountered in a multiple-large- project construction program. * * * 11. Ability to submit documents to specific web site documents folders or attach them to specific forms using facsimile machines to allow non-computer users to interface with the system. Ability to electronically print documents directly to web site documents folders from other WindowsTM applications. Ability to download documents from the project site and to resubmit them as new versions with all original maintained and accessible. * * * C. Furnish and install a zoom/tilt/pan web-camera and connect to a high speed Internet connection at each construction site. Proposers should provide web camera server equipment and ISP services necessary to support web camera functions such as automatic multiple daily view picture taking, picture archival and retrieval and time lapse playback of pictures. Section VII of the RFP, which prescribed various “submittal requirements,” stated in relevant part: Proposers shall indicate in their submittal, the capabilities of their system regarding the above scope of work, as well as the following: Initial set-up process, list Licenses requirements, state the software and hardware requirements for M-DCPS in order to use the web-based system (i.e. browser plug- ins, operating systems, etc). * * * E. Describe the training program to train M-DCPS in use of the web-based system, on site, number of classes, number of students and hours of training proposed. * * * Describe travel distance from technical support to M-DCPS. Provide technical support in person at M-DCPS when required. The Evaluation On December 9, 2002, a group of individuals who had been appointed to serve on a committee (the “Evaluation Committee”) whose task was to make a recommendation to the Board as to whom should be awarded the contract met to review the six proposals that were timely submitted in response to the RFP. The Evaluation Committee unanimously agreed that the proposals submitted by E-Builder, Constructware, and another vendor were responsive to the requirements of Sections V, VI, and VII; the other proposers were eliminated from further consideration. The Evaluation Committee decided to invite the three remaining contenders to make presentations to the Evaluation Committee at a later date. The Evaluation Committee met again on December 16, 2002. At that time, the three proposers still in the competition were allowed one hour apiece to demonstrate, explain, and answer questions about their respective solutions. After the presentations, the Evaluation Committee voted for the proposal which best met the needs of the District. When the votes were tallied, Constructware was the winner, with E-Builder in second place. Accordingly, the Evaluation Committee agreed to recommend that the contract be awarded to Constructware. Relevant Details About Constructware’s Proposal Because the instant protest is based largely on E- Builder’s contention that Constructware’s proposal was materially nonresponsive to several provisions in Sections VI and VII of the RFP, the following is a brief look at the relevant aspects of Constructware’s response to the RFP. In its proposal, Constructware addressed the items contained in Section VI by interlining specific responses within the relevant language of the RFP, which language was reproduced in its entirety. For present purposes, given the reasons for the recommended disposition that follows, it is not necessary to quote Constructware’s responses to Section VI, which are included in the evidentiary record in any event. Suffice it to say that Constructware’s proposal was complete in the sense that for each item listed in Section VI, Constructware provided a response, offered a solution, or explained what it could do if awarded the contract. Turning to Section VII, Constructware’s proposal stated in pertinent part as follows: [With reference to Section VII.A.,] Constructware is a true [Application Service Provider] requiring only a web-browser and a connection to the Internet. The System can function on a 56K connection, but faster bandwidth is recommended for maximum performance. * * * [With reference to Section VII.E.,] Constructware has established a team of individuals specifically geared to train and implement the application to M-DCPS’ unique needs. The Solution Group is made up of professional Implementation Managers and Certified Constructware Trainers. In most cases, the Implementation Manager will meet with your executive team to understand the scope of the program / project(s) and the desired goal of using the application. With this information and direct feedback from your team, the Implementation Manager will develop a scope document to help guide the team through this rollout. This information will be shared with the Certified Constructware Trainers to develop a custom training plan to meet your goals. Throughout the rollout, the Implementation Managers will stay in contact with your executive team to provide status and update the rollout plan as the project progresses. The following is a list of the standard training and implementation options available: Private Training – ½ day to 5 day per student depending on the amount of the product utilized and the type of user trained. Class sizes for private training are limited to 12 students. Train the Trainer – 5 day course designed to train in-house individuals to act as your personal certified trainer. Public Training – 3-day course in our Atlanta Headquarters covering the majority of the modules available. Implementation Services Orientation – Offered as part of the initial database setup, this orientation would assist your Constructware Supervisor on how to get started with the system. This orientation is done remotely utilizing Webex technology. * * * [With reference to Section VII.G.,] [b]ecause Constructware is an Internet-based application, technical support staffs have not been required to travel to a client’s site to resolve issues. Constructware utilizes the Webex technology to review user browser settings in the event a user has any problems accessing the product. Clients wanting a true web-based system should exercise caution dealing with vendors offering on site technical support. This is a prime indicator of workstation setups and additional software loads not required on true web-based solutions. Constructware’s Solutions Group offers consultant visits to ensure proper connectivity and browser settings in the event clients lack the technical staff that would normally handle these procedures. Constructware is headquartered near Atlanta, Georgia. All support staff and consultants are based in this office, but are accustom [sic] to traveling to client sites throughout the nation when required. E-Builder’s Protest By letter dated December 18, 2002, E-Builder was told that it would not be awarded the contract. The letter, however, did not notify E-Builder, as it should have pursuant to Section 120.57(3)(a), Florida Statutes, that failure to file a formal protest within the time prescribed in Section 120.57(3) would constitute a waiver of proceedings under the Administrative Procedure Act (“APA”). To better understand what happened next, it is useful to know that the RFP, at page iii, set up an informal protest procedure as a nonexlusive alternative to formal administrative proceedings under the APA. According to this informal procedure, [p]roposers may file letters of protest no later than 48 hours prior to the Board Meeting for which the award is scheduled to be made. These letters of protest will be reviewed by Staff. Staff will offer the protesting proposer the opportunity for a meeting to discuss the protest. If the proposer is not satisfied with the response to the protest, he/she may request to address the School Board. On January 13, 2003, E-Builder submitted an “Official Letter of Protest” that was timely under the above quoted provisions because the Board was scheduled to make the award at its meeting on January 15, 2003. As a result of E-Builder’s informal protest, the item relating to the contract in question was removed from the Board’s agenda for January 15. By letter dated February 10, 2003, E-Builder was informed that the Board’s staff had decided that the informal protest was without merit and that E-Builder had “failed to demonstrate violation of any established procedures or misconduct on the part of the evaluation committee.” E-Builder was further notified that it could “request to address the school board [at its next meeting on February 12, 2003, when the award was expected to be made], or invoke the provisions of § 120.569 Florida Statutes.” On February 12, 2003, within 72 hours after receiving the letter just discussed, E-Builder delivered to the Board a letter styled “Supplement to Official Letter of Protest.” In this supplemental protest letter, E-Builder reiterated its desire to protest the intended award and expressed its intent to address the Board later that day. While there is room for debate, the undersigned finds and concludes that E-Builder’s correspondence of February 12, 2003, constituted a “notice of protest” which was effective to commence the formal bid protest process pursuant to Section 120.57(3)(b), Florida Statutes. At its meeting on February 12, 2003, the Board heard from E-Builder concerning the pending protest, and following that the recommendation to award Constructware the contract was tabled. (As of the date of the final hearing, the Board had taken no further action toward awarding the contract.) On February 20, 2003, E-Builder filed with the Board a “Petition of Committee Recommendation Regarding Request for Proposal No.: 026-CC10 and for Formal Administrative Hearing.” The undersigned finds and concludes that this petition constituted a timely filed “formal written protest” as that term is used in Section 120.57(3)(b), Florida Statutes; as such, the February 20, 2003, petition is the operative pleading in this case. As bases for relief, E-Builder asserted in its petition, among other things, that Constructware’s proposal was materially nonresponsive for failure to comply with several of the RFP’s allegedly mandatory requirements. E-Builder also alleged that the Evaluation Committee had failed to take into account total annual cost when weighing the merits of the respective proposals.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order declaring E-Builder’s protest to be without substantial merit and authorizing the award of the subject contract to Constructware. DONE AND ENTERED this 10th day of October, 2003, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2003.
Findings Of Fact Petitioner, J. D. Pirrotta Company (JDP), is a general contracting company located in Orlando, Florida. JDP has bid on projects involving construction of schools or educational facilities, including projects for Valencia Community College. Respondent, District Board of Trustees of Valencia Community College, is the governing body of the community college, with the authority to award contracts. Valencia Community College (VCC), in Bid #90/91-06, advertised for sealed bids for interior remodeling and renovation of existing buildings' modules 3 and 5, on its west campus on South Kirkman Road, in Orlando, Florida. The sealed bids were due at or before 2:30 p.m., on December 13, 1990, in the purchasing department of VCC, 190 South Orlando Avenue, Suite 402B, Orlando, Florida 32801. The Invitation to Bid includes a voluminous project manual containing instructions to bidders, various forms, a standard contract text and detailed specifications. A separate bid packet contains the set of drawings for the construction work. The advertisement of the Invitation to Bid, and Section 00100 of the Project Manual, Instructions to Bidders, paragraph 14A, reserve for the owner the right to reject any or all bids and to waive any and all "informalities". (Respondent's Exhibits #1 and #2) Section 00100, Instructions to Bidders, paragraph 18, provides: 18. SUBCONTRACTORS, ETC. The bidders at bid date shall submit to Owner a list of all subcontractors and other persons and organizations (including those who are to furnish the principal items of material and equipment) proposed for those portions of the work as to which such identification is so required. Such list shall be accompanied by an experience statement with pertinent information as to similar projects and other evidence of qualifications for each such subcontractor, person and organization if requested by Owner. If Owner, after due investigation has reasonable objection of any proposed subcontractor, other person or organization either may, before giving the Notice of Award, request the apparent successful bidder to submit an acceptable substitute without an increase in bid price. If the apparent successful bidder declines to make any such substitution, the contract shall not be awarded to such bidder, but his declining to make any such substitution will not constitute grounds for sacrificing his bid security. A subcontractor, other person or organization so listed and to whom Owner does not make written objection prior to the giving of the Notice of Award, will deemed acceptable to Owner. Should the subcontractors list be revised, for any reason, architect and Owner shall be immediately notified. (Respondent's Exhibit #2) Paragraph 9, Section 00300, the bid form, provides: The following documents are attached to and made a condition of the Bid: Required Bid Security in the form of a Bid Bond. A tabulation of subcontractors and other persons and organizations required to be identified in this Bid. Required Bidders Qualification Statement with supporting data. (Respondent's Exhibit #2) Section 00700, the Public Entity Crimes statement form, includes these instructions: Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy/copies of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid. (Respondent's Exhibit #2) The Instructions to Bidders and the drawings include a total of ten deductive alternatives to be addressed in the bids, to afford VCC some flexibility in the event the base bid might be higher than the agency's available funds. In response to the advertisement and request for sealed bids, VCC received bids from the following seven contractors: Seacoast Constructors and Consultants; JDP; Southland Construction, Inc.; Harbco, Inc.; Technical Design Systems, Inc.; Hembree Construction, Inc.; and Waltree Construction, Inc. The bids were opened publicly and read aloud beginning shortly after the submittal deadline on December 13, 1990. Jack C. Crawford, Vice-President for Administrative Services, and Stephen Richard Childress, Purchasing Manager, participated in the bid opening on behalf of VCC. Seacoast Constructors was the lowest bidder, at $1,274,000.00, base bid; JDP was the second lowest bidder, at $1,297,000.00, base bid. None of the bidders submitted bids containing all of the requested or required information. None of the bidders included a deduct alternative requested by Drawing E-10, General Notes number 2. Only JDP included the deduct alternative requested by Drawing E-6, General Notes number 2. Seacoast Constructors and Consultants failed to include Form PUR 7068, Public Entity Crimes statement, with their bid, but it executed and submitted the form to VCC on December 13th, the date of the opening. Two of the bidders, JDP and Harbco, failed to submit subcontractor lists with their bids. At the time of hearing, JDP had still not submitted its list. For this project the low base bid is within VCC's available funds, and it does not intend to rely on any of the deduct alternatives in the bids. Following the bid opening, the bid tabulation form was posted on a bulletin board in the administration building. A copy of the tabulation form was also placed in a folder which includes recommendations on other bids and which is maintained at the desk of the security guard outside the room where the bids are opened. Inside the front cover of the folder, in the bottom left hand corner, is a small typewritten statement: Failure to file a protest within the time described in S. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. There is no evidence of any other notice of section 120.53, F.S. remedies to bidders, including in the advertisement or in instructions to bidders. JDP filed a written bid protest in a letter dated December 13, 1990 and received on December 14, 1990. The letter clearly states that it is a formal protest, pursuant to Section 120.53(5), F.S. It argues that bids submitted by Seacoast Constructors and others were unresponsive and should be rejected for failure to include the Public Entity Crimes Statement, for failure to bid on a deduct alternative, and for other reasons (immaterial, because they apply to higher bidders). The protest letter requested award to JDP. JDP met with representatives of VCC to attempt to resolve the protest. At the meeting, Joseph Pirrotta was informed that his bid was considered nonresponsive because it failed to include a subcontractors' list. The meeting did not resolve the matter, and on December 19, 1990, Joseph Pirrotta sent a follow-up letter arguing that the text of the bid instructions only require a subcontractors' list for "...portions of the work as to which such identification is so required", and nowhere in the bid packet was any reference to which were required. JDP considered that the subcontractors' list was, therefore, unnecessary. The December 19th letter also reiterated JDP's request to reject the other bids and to award the contract to JDP. The December 13th and 19th letters are the only written protests by JDP. VCC has previously awarded contracts to bidders who failed to submit a Public Entity Crimes Statement with their bid. It considers such failure an "informality" subject to waiver. It considers failure to submit a list of subcontractors an economic advantage with respect to other bidders. Representatives of VCC have recommended to its board that the contract be awarded to Seacoast Constructors, the lowest bidder.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the District Board of Trustees of Valencia Community College enter its final order awarding the contract in Bid #90/91-06 to Seacoast Constructors and Consultant, and rejecting the protest of J.D. Pirrotta Company. DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991. COPIES FURNISHED: Leslie King O'Neal, Esquire P.O. Drawer 1991 Orlando, FL 32802 Jeffrey S. Craigmile, Esquire Brian P. Kirwan, Esquire 390 N. Orange Ave., Ste. 2180 Orlando, FL 32801 Jack C. Crawford Vice President Administrative Services Valencia Community College P.O. Box 3028 Orlando, FL 32802
The Issue The issue is whether Respondent Department of Corrections acted in a manner contrary to its governing statutes, rules or policies, or the bid specifications in giving notice of its intent to award the contract for Invitation to Bid No. 96-DC- 6847R to Intervenor Behring Diagnostics, Inc.
Findings Of Fact On February 19, 1996 the Department issued an ITB for the provision of automated drug testing equipment, an automated data management system, and drug assays for the analysis of urine specimens collected at the Department’s major institutions and community facilities. After receiving and reviewing bids from Roche, Behring, and Abbott Laboratories (Abbott), the Department issued a Notice of Intent to Reject All Bids on April 10, 1996. On April 30, 1996 the Department issued ITB 96-DC-6847R for the same services. The same three vendors, Roche, Behring and Abbott, submitted bids which were opened on June 5, 1996. On its face, Roche’s bid of $.60 per test was the lowest cost of the three bids. Behring submitted a bid of $.90 per test. The Department’s evaluation committee correctly determined that bids submitted by Roche and Abbott were not responsive to the bid specifications. Roche’s bid was not responsive because: (1) it failed to include the cost of a printer at each site as part of the equipment package; and (2) it failed to indicate the vendor’s unconditional willingness to provide litigation support at no cost to the Department in defense of a legal challenge to the vendor’s technology. The bid specifications clearly required that printers be included as part of the computer hardware. Roche did not list printers anywhere in the narrative portion of its bid response. Roche’s response stated that it covered all items pertaining to the system hardware portion of the bid. The response indicated that Roche would provide the Department with Antek-LabDAQ report management software and listed specific items of hardware that would be included. But Roche did not list a printer. Roche’s bid response stated that the LabDAQ system would print reports. Roche included copies of a sample report sheets. Roche submitted other information describing the LabDAQ system that contained pictures of a printer. It also submitted a magazine article reviewing the LabDAQ system which listed an “Okidata printer” as part of the required hardware. However, the article noted that the software could be purchased separately. Submittal of this information was insufficient to indicate that Roche’s bid included the cost of a printer. Roche’s failure to include a printer in its bid was a material deviation from the bid requirements. The ITB clearly required the vendor to provide unequivocal litigation support at no cost to the Department if someone challenged the provider’s technology in a court action. This was a material requirement in the ITB. Roche responded that “upon request from the State and if deemed necessary Roche will provide documentation, affidavits and sworn testimony to substantiate the performance of the technology incorporated in the OnLine system.” (Emphasis added.) This ambiguous response was not an absolute commitment for Roche to provide the litigation support required by the specifications. In one section of Roche’s response it stated that it was “not aware of any past or present lawsuits that have been filed in connection to the COBAS MIRA Plus or the OnLine reagents.” In another section, Roche responded that a federal district court upheld drug testing results provided from a COBAS/Online system. These inconsistent statements may have resulted in a minor deviation from the bid specification. However, they are sufficient to further undermine confidence in Roche’s bid as submitted. During the hearing, Roche presented testimony that it intended for its bid of $.60 per test to include both printers and unconditional litigation support. This testimony constitutes an inappropriate attempt to amend Roche’s bid response. It does not change the fact that Roche’s bid, on its face, was not responsive as submitted. On the other hand, Behring’s bid was responsive to the specifications. It contained only one minor irregularity that provided no advantage to Behring. Roche has presented no evidence to the contrary. The Department’s evaluation committee did not complete the scoring process to compare the three vendors’ scores. Such a comparison is unnecessary where there is only one responsive bidder. By letter dated August 26, 1996 the Department again informed the vendors that it intended to reject all bids and issue a new request for proposals in September. Even though the Department had determined that Behring was the only responsive bidder, the letter did not address the responsiveness of any of the bids. The letter stated that the Department anticipated making changes to the specifications that would require a more structured response, i.e. revise the ITB to include a checklist for every required item which the bidder would cross-reference in its bid response. There is no evidence that the Department anticipated making changes to the substance of the specifications. On or about September 5, 1996 Behring sent the Department a Notice of Intent to protest the rejection of all bids and subsequently filed a timely formal written protest. In its formal protest, Behring referred to the Department’s conclusions in a memorandum dated August 23, 1996 that Behring was the only bidder to submit a conforming bid. Roche did not file a protest of the decision to reject all bids. On or about September 26, 1996 the Department sent Roche notice of Behring’s protest and enclosed a copy of Behring’s formal protest in Division of Administrative Hearings Case Number 96-4475BID. Roche did not intervene in the bid protest. The final hearing in the bid protest was scheduled for final hearing on October 23, 1996. The day before the hearing, representatives of the Department and Behring met to discuss the possibility of settling the case. Shortly before the settlement conference, the Department’s counsel called a Roche representative, Betty Bennett, and informed her that Behring had requested a meeting to attempt to resolve the protest. He was unable to make contact with an Abbott representative. No one from Roche attended the meeting. The Department did not issue any formal written notice that it intended to settle the case with Behring. The Department did not know prior to the meeting what the parties would discuss. The Department did not attend the meeting expecting to “negotiate a contract.” At the meeting, Behring initially took the position that the Department should award the contract to Behring at $.90 per test and not seek further competitive bids. The Department took the position that the contract should be subject to additional competitive bidding to determine what the result would be with more than one competitive bid. After further discussion, Behring offered to lower its bid price. The Department’s representatives left the room to discuss the offer. Upon their return, Department representatives made Behring a lower counteroffer. Behring and the Department eventually arrived at an oral settlement under which the Department would award the contract to Behring at a price of $.77 per test and Behring would dismiss its protest. The Department based its decision to settle the bid protest with Behring on the following: (a) the risk of losing the bid protest and being required to pay Behring $.90 per test; (b) the desire not to further extend the existing contract at the current price of $1.07 per test; (c) the risk that a third attempt to solicit competitive bids would result in another protest and further delay; (d) the fact that Behring had submitted responsive bids to the two previous solicitations; (e) the assumption that subsequent bids by Roche and Abbott would be higher when they included the omitted items that caused their rejection. There is no persuasive evidence to indicate that the Department’s reasons for settling Behring’s bid protest were pretextual or otherwise invalid. The Department correctly concluded that it might have to pay Behring $.90 per test if it lost the bid protest regardless of the applicable standard of proof in that proceeding. The Department also was justified in assuming that Roche’s bid price would be higher when it included the previously omitted printers. For these and other reasons set forth above in the Findings of Fact, the Department’s decision to settle the case by negotiating a lower contract price with Behring was in the best interest of the state of Florida. On October 23, 1996 the Administrative Law Judge in Case No. 96-4475BID entered an order closing the file of the Division of Administrative Hearings and relinquishing jurisdiction to the Department. The Department did not issue a Final Order setting forth the final disposition of the case. By letter dated October 30, 1996 the Department informed Roche and Abbott that it had negotiated a satisfactory contract with Behring pursuant to Rule 60A-1.018(1)(b), Florida Administrative Code. This letter advised Roche that the Department intended to award the contract to Behring. In the letter, the Department gave Roche the opportunity to request a hearing pursuant to Chapter 120, Florida Statutes, to protest the intended agency action. By letter dated November 8, 1996, Roche protested the notice of intended award to Behring. Without objection, Roche submitted an amended petition on December 10, 1996. Behring filed a petition for leave to intervene on November 27, 1996. An order dated December 11, 1996 granted that motion.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order awarding the contract for ITB No. 96-DC-6847R to Behring Diagnostic, Inc., and dismissing the protest of Roche Diagnostic Systems. DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
