The Issue Whether Petitioner's and Intervenor's protest should be sustained?
Findings Of Fact FCH is a Florida Corporation authorized to do business in the State of Florida. At all times material to this case, Leo Young, Sr., was president of FCH. FCH the bid protester herein, previously was under contract with the Respondent under a 1994-95 RFP. While the business relationship started in a collegial manner, over time disputes arose between FCH and the Respondent involving FCH's performance and course of dealings under the subject contract. The Respondent received several holder complaints about FCH's behavior. The parties attempted to work out these differences in good faith, though near the end of the relationship, communications did "break down" between the two. Despite these differences, there is no evidence that the Department allowed the contracting problems to interfere with the RFP or evaluation process. Nothing in the record suggests that the evaluators improperly, illegally, unfairly, arbitrarily, or discriminatorily exercised their reasonable discretion and judgment in scoring the proposals to the best of their ability based upon the specifications and requirements set forth in the RFP. On April 11, 1997, the Department issued and advertised RFP BF 12/96-97, "Request for proposal for auditing, processing, collecting and delivering of unclaimed property held outside the State of Florida." An offeror's conference, was held on the initial RFP. After the conference a revised RFP was developed and delivered to each potential offeror. The RFP required offerors by May 2, 1997, to file a letter of intent to submit proposals. Petitioner did not submit such a letter with the Department by the May 2 deadline. After May 2, 1997, the Petitioner attempted to submit written questions regarding the subject RFP to the Department. These questions were returned to FCH because of FCH's failure at that time to file a letter of intent by the May 2, 1997, deadline. On May 9, 1997, the Petitioner filed with the Department a Notice of Intent to protest the RFP specifications. On May 19, 1997, the Department and the Petitioner entered into a stipulation resolving the Petitioner's protest of the RFP specifications. As part of the stipulation, the Department extended the filing date for the Petitioner to file its letter of intent to submit a proposal in consideration for the Petitioner's withdrawing its protest of the bid specifications. As a consequence of the stipulation, Petitioner was permitted to participate in the RFP process and submit a proposal on the RFP. Four proposals were submitted to the Department by FCH, State Street, NAPPCO, and Florida Property Recovery Consultants. The RFP was titled "Request for proposal for auditing, processing, collecting and delivering of unclaimed property held outside the State of Florida." The purpose of the RFP is to hire contractors to locate abandoned property for the state by doing audits of out-of-state companies holding property considered abandoned pursuant to Chapter 717, Florida Statutes. The RFP contained the following provisions relevant to this case. WRITTEN QUESTIONS AND OFFEROR'S CONFERENCE * * * (b) Offeror's Conference Upon request by a prospective offeror, the Department shall conduct an offeror's conference in accordance with the calendar of events in Room 334 of the Fletcher Building, Tallahassee, Florida at 2:00 P.M. (EST). Please send meeting request to Andrew Grosmaire, Contract Manager, as listed on the cover of this RFP. The purpose of the conference is to provide additional clarification regarding written questions previously submitted by the prospective offeror. Attendance is not mandatory. EVALUATION OF PROPOSALS Evaluation Information The contract will be awarded to the offeror(s), at the sole discretion of the Department whose proposal(s) is determined to be the most advantageous to the Department as formulated by the rating sheet. Evaluation Process The Department will conduct a comprehensive fair, and impartial evaluation of proposals received in response to this RFP. The process to be followed is described in the following sections and is to be conducted in four phases: Phase I - Evaluation of Mandatory Requirements Phase II - Evaluation of Technical Proposals Phase III - Evaluation of Fee Schedule Phase IV - Evaluation of Phases I - III Evaluation Committee An Evaluation committee will be established to assist the Department in selecting a Provider for services set forth in this RFP. The Committee will have a minimum of three members and at least one member external to the Department. The Committee will be responsible for proposals evaluation including reference checks and other verifications. The proposal evaluators may require an on site demonstration of the offeror's ability to provide the services at a level commensurate with the proposal and the Department's needs. RFP Rating Sheet The RFP rating sheet which lists evaluation criteria and specific indicators of criteria will be used to assess the degree to which the offeror's response meets those criteria as identified in Section 13. These criteria and the specific indicators of the criteria will be weighted so that each response to the RFP can be numerically valued and ranked. Phase I - Evaluation of Mandatory Requirements The purpose of this phase is to determine if each proposal is sufficiently responsive to the RFP to permit a complete evaluation. The Contract Manager will review the proposals for the mandatory requirements. Any proposal failing to meet any of the mandatory requirements of this RFP will be disqualified. Phase II - Technical/Services Proposal References, Resources, Prior Experience, and Procedures Each offeror shall have all of the following minimum qualifications; sufficient experience, sufficient and competent resources to perform the services, and sufficient procedures to enable the provider to perform the services The Committee members will evaluate the RFP to enable the provider to perform the services. The Committee members will evaluate the RFP for content and feedback from references in determining the offeror's past experience/ability in providing the scope of services outlined in this contract. A maximum of ninety points (out of a total of 100 points) can be awarded. Failure to submit the minimum references will disqualify a proposal from further consideration. Phase III - Evaluation of Fee Schedules For each proposal received acknowledging the services outlined in this RFP, the corresponding Fee Schedule will be examined. All fee proposals must be expressed solely in the form of a percentage of the dollar amount of the property delivered or value thereof. A total maximum value of ten (10) points will be awarded (out of a total of 100 points) to the lowest proposed fee percentage submitted. A provider shall not submit a proposal in excess of 13 percent. All other proposals equal to 13 percent or lower will be awarded points based on the following formula: (Lowest percentage proposal\other proposer's percentage) x 10. Calculation of points awarded to other proposals will use the lowest percentage amount proposed as a constant numerator and the percentage amount of the offeror being scored as the denominator. The result will always be less than one (1.0). The ratio is then multiplied by the maximum number of points given to the fee schedule of the RFP. This formula only includes valid proposals. If the answer to the formula results in a number with decimals, the decimals will be rounded to the nearest whole number when awarding points for Phase III; .5 points will be rounded upward and less than .5 will be rounded downward. Phase IV - Evaluation of Phases I - III The Contract Manager will combine those points assigned by each committee member and average all scores to determine the offeror submitting the highest rated proposal. A minimum averaged score of 80 points must be obtained by the offeror. If the minimum score is not obtained, the offeror will be disqualified. SUBMISSION OF PROPOSALS Prospective offerors shall submit two clearly identified separate sealed packages (proposals) which will be opened and evaluated in two stages. PACKAGE #1 - Technical and Proposed Services This separate package marked "RFP BF 12/96-97, Technical and Proposed Services" shall contain one original and five copies of all responses to this RFP as identified in Section 13 below, other than the "Fee Schedule." PACKAGE #2 - Fee Schedule This separate package, identified as the "RFP BF 12/96-97, Fee Schedule" shall contain one original and five copies and which shall include the offeror's proposed bid for all services set forth in the RFP including any additional services over and above the minimum set forth by the Department in this RFP. The proposed cost shall be expressed as a percentage of the dollar amount of the property delivered or value thereof. Failure to submit the bid cost data in a separate package shall result in a disqualification of the offeror. Sealed proposals must be received by the Florida Department of Banking and Finance, Purchasing Office, Room 252-D, Fletcher Building, Tallahassee, Florida 32399-0350, on or before the date and time indicated in the section entitled "Calendar of Events." All proposals must be plainly marked on the outside of the package to indicate date and time of proposal opening and RFP number. Proposals shall be prepared simply and economically. The Department is not liable for any cost incurred by an offeror in responding to this RFP. DOCUMENTS REQUIRED IN SUBMITTING PROPOSAL The documents required in submitting the technical and services proposal package are identified below. These items identified are the minimum requirements acceptable by the Department. Any proposal which does not meet these requirements will not be considered. offeror must follow the proposed format outlined below. This will produce uniform formatting of proposals which ensures fairness in rating by the Evaluation Committee members in locating information quickly when questions arise. Each heading of the outline must be addressed and in proper order. The proposal should provide a complete and detailed description of the offeror's ability to meet the requirements of this RFP. Signed State of Florida Request for Proposal, Contractual Services, Form PUR 7033 (An original form is required.) The offeror must designate, in writing, the official spokesperson of their organization authorized to sign all applicable documents required in this RFP. The offeror shall designate the location of its office within the USA to be used during the duration of this contract. An offeror must provide evidence that the organization is a legal entity. Incorporated providers must provide as an attachment to the proposal either a copy of the corporation's most current annual report on file with the appropriate state agency, or, if incorporated during the past 12 months, a copy of the corporation's articles of incorporation and charter number assigned by the appropriate state agency. Businesses which are not incorporated must provide as an attachment to the proposal a copy of their business or occupational license. Partnerships shall submit documentation of compliance with the applicable provisions of Chapter 620, Florida Statutes. The proposal must include a notarized and sworn statement indicating that the offeror will comply with all of the terms and conditions stated in the RFP. The proposal must include a notarized and sworn statement indicating that the offeror has not had any prior involvement with this RFP. This contract is subject to Chapter 112, Florida Statutes, regarding conflict of interest. The proposal must include a notarized and sworn statement indicating the offeror does not have a conflict of interest described in this RFP or Chapter 112, Florida Statutes. The offeror must disclose the name of any State employee who owns, directly or indirectly, an interest of ten percent or more in the offeror's firm or any of its subsidiaries. No Department staff shall have any interest or receive any compensation, directly or indirectly, in the offerors firm or any of its subsidiaries. This shall be an ongoing requirement and failure to comply will subject the contract to cancellation. The offeror shall provide the following for its designated custodian as described in this RFP; name, address, contact person, telephone number, proof of licensure by applicable governmental agencies, and the account number where the funds will be deposited. The offeror shall provide a sample of the indemnification agreement to be used between the Department and the holder. The offeror shall provide a sample of the monthly work report detailing the number of examinations being performed for the Department and the status of each examination. The offeror shall provide a proposal on training the Department's staff and examiners in the field of abandoned property in the first year of this contract as described in this RFP. The offeror shall provide a proposal on hosting a holder seminar for the Department before April 1, 1998, as described in this RFP with details such as location, date, and time, duration, topics, guest speakers, etc. The offeror must either supply at least three (3) references showing the offeror has previously conducted abandoned/unclaimed property examinations pursuant to Chapter 717, Florida Statutes, or to any other state's abandoned/unclaimed property law or must demonstrate the ability to perform the services specified herein. The offeror shall provide a listing of the states, the contact person and their telephone where the offeror has a valid contract to perform similar services as described in this RFP. If there are no current contracts, please indicate. The offeror must include a list of organizations of which the offeror is a member that would promote compliance with Chapter 717, Florida Statutes and abandoned property laws throughout the United States. An example of organizations would include various stock transfer associations, corporate secretary chapters, UPHLC, NAUPA, etc. If there are no current memberships, please indicate. The offeror shall provide a written summary of the experience of the organization in examining holders for unclaimed property. The offeror must include a chart of the organization, indicating how its staff will fit into the total organization, and how each member of the staff will relate to one another. The offeror must include a resume/vita for each principal of the business who will perform professional services for the RFP. The offeror shall describe its experience in interpreting various state laws and case law relating to the unclaimed property including a resume/vita and a written summary of their counsel's legal experience in dealing with unclaimed property and/or Chapter 717, Florida Statutes. The offeror shall detail the procedure to be used in processing records from a holder once the records are received from the holder. The procedure shall include a process to ensure records are processed in a timely fashion. The offeror shall provide a written summary of the examination process to be used in examining for unclaimed property. The offeror shall provide an examination manual to be used in examining holders detailing the process of examining for unclaimed property. The offeror shall provide the procedures which will allow the Department to direct, coordinate, and participate in the examination of holders of unclaimed property holders as outlined in this RFP. The offeror shall describe its database and the ability to maintain a compatible database with the Department's database. The offeror must describe the security procedures to be implemented to ensure all personnel working in the examination process will maintain the security and confidentiality of examinations at all times. Within forty-five days of the execution of the contract, the Provider shall acquire a fidelity bond, financial guaranty bond, fidelity insurance, or other financial guaranty providing protection to the Department against theft, loss, or other illegal diversion of funds from an entity duly licensed in the State of Florida in the amount of $100,000 in a form acceptable to the Department. The offeror shall submit a separate package clearly identified as "Fee Schedule" and marked on the outside with the RFP number and opening date as described in the section entitled "Calendar of Events." The Fee Schedule shall be submitted in terms expressed as a percentage of the dollar amount of property delivered or value thereof. (emphasis supplied) As indicated, the RFP also contained an evaluation sheet for use by each evaluator, which categorized the areas of review and the point scoring applicable to each. Andrew Grosmaire, Financial Examiner Analyst Supervisor for the Abandoned Property section, was the contract manager for the Division. In that capacity, he was responsible for the principal drafting of the RFP for handling the logistics of the evaluation process and for completing the Phase I review of the proposals. Additionally, he had been the contract manager over FCH's current contract with the Department. In the past, Mr. Grosmaire had had numerous conflicts with FCH over some of FCH's practices. In fact Mr. Grosmaier considered some of FCH's practices to be unethical. The opinions held by Mr. Grosmaier are debatable depending on one's philosophy on how aggressive a business should be in auditing an entity. Additionally, Mr. Grosmaier believed FCH had submitted a false statement requesting payment for work it had performed. The issue was eventually forwarded by the Division for criminal investigation by the Department. In short, the relationship between Mr. Grosmaier and FCH was highly strained and was generally known throughout the Division. However, the evidence did not show that the low opinions of Mr. Grosmaire had any impact on the Department's RFP process. Mr. Grosmaire conducted the threshold determination of whether the proposals contained the minimum documentation required by the RFP and necessary to pass on to the evaluation stage. To that end, Mr. Grosmaire determined FCH and the other offerors met the RFP's threshold requirements. Mr. DeVries is the Bureau Chief for the Abandoned Property section. He was responsible for putting together the evaluation committee according to the terms of the RFP and the requirements of Florida Statues. Mr. DeVries decided to populate the evaluation committee with individuals outside the abandoned property section in order to diminish any bias arguments he anticipated would be raised as a result of prior disputes with FCH. Additionally, he wished to capitalize on certified public accounting and auditing experience held by individuals outside the abandoned property section. The intent was for the evaluators to be able to determine whether the offerors' proposals — in particular their manuals and methodology — met American Auditing Institute standards. Additionally, the Comptroller wished to have persons outside the agency participate in RFP evaluations. Therefore, at least one of the members of the evaluation committee would not be an employee of the Department. Up to the time of posting the award, The evaluation team utilized by the Department relative to the RFP consisted of the following individuals: Rick Sweet, a Financial Examiner with the Abandoned Property section of the Department of Banking and Finance. Bob Dearden, a Financial Administrator with the Department of Banking and Finance, Division of Accounting and Auditing, with a background in auditing. Richard Law, a certified public accountant and a member of the accounting firm, Law, Redd, Crona, and Munroe located at 2727 Apalachee Parkway, Tallahassee, Florida 32301. Peter DeVries appointed Mr. Sweet, a non-CPA, abandoned property financial analyst, to the evaluation committee. Mr. DeVries also contacted William Monroe, Division Director for the Comptroller's Division of Accounting and Auditing, and requested that Mr. Monroe appoint an individual from his section to evaluate the proposals. Mr. Monroe chose Mr. Dearden to serve on the evaluation committee. Mr. Grosmaire contacted the Florida Institute of Certified Public Accountants in order to obtain the name of a non-departmental, CPA qualified to serve on the evaluation committee. The Florida Institute referred Mr. Law to the Division and he was placed on the evaluation committee. All of the initial committee members had sufficient knowledge of auditing procedures and were qualified to evaluate this RFP. Mr. Grosmaire provided the evaluators with copies of the submitted proposals, the revised RFP, and the evaluation sheets for their use in scoring. Mr. Grosmaire informed the evaluators that in performing their evaluations they were to only consider the RFP and the documents submitted by the offerors. No other instructions were given to the initial committee members. The evaluators kept the materials provided for approximately one week and performed their respective evaluations. During that time no other significant contact relative to this proceeding occurred between the evaluation committee members and Mr. Grosmaire. There is simply no evidence that Mr. Grosmaire improperly attempted to adversely influence the independent evaluations of the various evaluators. As indicated, each evaluator individually reviewed the RFP, the scoring criteria, and scored each proposal against the RFP requirements. Each evaluator placed their scoring numbers on their respective rating sheets. Mr. Sweet, a financial examiner with the Abandoned Property section, as noted, evaluated the proposals, Mr. Sweet has had training in both abandoned property and in auditing. In performing his evaluations, he exercised his best discretion and judgment in arriving at his scores. In sum, his explanations for scoring as he did were reasonable. Mr. Sweet had previous experience in evaluating similar RFP's in that he was on the evaluation team for the previous year's RFP concerning the same subject matter. Neither Mr. Young or FCH objected to Mr. Sweet's involvement as an evaluator on the previous RFP. Additionally, Mr. Sweet, in performing his evaluation, telephoned a reference, an employee of the State of Maine, listed by FCH. He wrote her responses regarding FCH down on a reference check sheet. The reference noted to Mr. Sweet that they "were contacted by nearly every holder contacted by FCH with complaints." In terms of what strengths the reference would recommend as to FCH, the reference responded "none." Mr. Dearden, a financial administrator for the Department of Banking and Finance, Division of Accounting and Auditing, also served as an evaluator of the proposals. Prior to and during his activity as an evaluator, Mr. Dearden had no prior contact or involvement with any of the offerors, including FCH. In addition, he had little contact with either Mr. Grosmaire or Mr. DeVries and was not influenced by anyone in the agency relative to the manner in which he scored the various proposals. Mr. Dearden had also previously been an evaluator on an abandoned property RFP dealing with the collection of in-state property. Mr. Dearden utilized his best efforts to review each RFP, the evaluation standards, and score each proposal on its terms. The explanations for his scoring were reasonable. While Mr. Dearden had limited prior experience in abandoned property, his experience in auditing as well as his review of the RFP requirements and previous experience as an abandoned property evaluator allowed him to adequately evaluate the proposals. According to the RFP specifications, a minimum average score of 80 was required in order for an offeror to be awarded a contract. Based upon the averaged scoring, State Street and NAPPCO scored over 80 points; FCH and Florida Property Recovery Consultants scored under 80 points. In particular, State Street's overall scores were 89, 88, and 90; NAPPCO's scores were 87, 81, and 86. FCH's scores were 66, 71, and 60 and those of Florida Property Recovery Consultants, Inc., were 42, 57, and 49. Based on these scores, the Department posted the award sheet, indicating the award of a contract to State Street and NAPPCO. The proposal tabulation and notice of award was posted on June 18, 1997. On June 20, 1997, FCH filed a Notice of Intent to Protest with the Department. The notice was timely filed within 72 hours of posting the bid/proposal tabulation. On June 30, 1997, FCH filed a formal written protest of the RFP. The formal protest was timely filed within 10 days of the filing of the Notice of Intent to Protest. Subsequent to the posting of the intent to award and the filing of this bid protest, the Department learned that Florida Statutes required that at least three employees of the Department who "have experience and knowledge in the program areas and service requirements for which contractual services are sought" serve on the evaluation committee. Section 287.057(15), Florida Statutes. The initial committee only had two such employees on the evaluation committee. In order to correct this oversight, Mr. Devries requested that Mr. Monroe, Division Director of Accounting and Auditing, appoint another employee to the evaluation committee. Mr. Monroe appointed Michael Gomez, a state employee, to the committee to additionally evaluate the proposals. Mr. Gomez has an extensive background in auditing and accounting and was qualified to evaluate the proposals. In fact, the evidence showed that all the committee members were familiar with the program and auditing requirements of the abandoned property section. He had no prior dealings or communications with FCH or any other bidder prior to the time of his evaluation of the proposals. Mr. Gomez received the evaluation materials from Mr. Grosmaire. Mr. Grosmaire also instructed Mr. Gomez as he had the other three committee members. Mr. Gomez reviewed the RFP and the proposals and submitted his scores on June 9, 1997. Mr. Gomez scored the proposals as follows: Florida Property Recovery Consultants, Inc.: 59; State Street Bank: 98; FCH: 76; and NAAPCO: 94. Mr. Gomez, in performing his evaluations, exercised his best discretion and judgment and felt comfortable evaluating the RFP auditing proposal based upon his auditing background. His explanations for the scores he gave were reasonable and did not change the original rankings of the initial committee. The evidence did not demonstrate that the Department's belated compliance with the statute caused any prejudice to the offerors or undermined the goals of the RFP process. Moreover, the evidence did not demonstrate that the department acted arbitrarily, capriciously or in bad faith in either its process, evaluation or intended award of the contract outlined in this RFP. Therefore, the protest should be dismissed.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Office of the Comptroller, Department of Banking and Finance, enter a Final Order awarding contracts to State Street and NAPPCO and denying Petitioner's and Intervenor's request for relief and dismiss their protests. DONE AND ENTERED this 25th day of November, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1997. COPIES FURNISHED: Will J. Richardson, Esquire Richardson Law Offices, P.A. Post Office Box 12669 Tallahassee, Florida 32317-2669 H. Richard Bisbee, Esquire Office of the Comptroller 101 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350 Stanford P. Birnholz, President Florida Property Recovery Consultants, Inc. 8090 Atlantic Boulevard, F-79 Jacksonville, Florida 32201 Harry Hooper, Esquire Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Robert F. Milligan, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Findings Of Fact 1. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is clear and convincing evidence to support the Administrative Law Judge’s Findings of Fact.
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Section 120.57(1)(I), F.S., on August 9, 2001, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the Administrative Law Judge in the above styled case, and Respondent's Exceptions to the Recommended Order. The Petitioner was represented by Robert A. Crabill, Esq. The Respondent was present at the Board meeting and was represented by his counsel, Jeffrey A. Blau, Esq. Upon consideration of the Administrative Law Judge’s Recommended Order, the exceptions filed thereto, the arguments of the parties, and after a review of the complete record in this matter, the Board makes the following findings:
The Issue The issue is whether Petitioner is liable to Respondent for costs it incurred in removing a drum containing gasoline and water that was located on Petitioner’s property.
Findings Of Fact At all times relevant to this proceeding, Petitioner owned a house (Petitioner's property or site), located at 217 20th Avenue North, St. Petersburg, Florida. The back of Petitioner's property was adjacent to an alley. Next door to Petitioner's property was another house owned by Petitioner. Between September 1995 and December 1995, Petitioner's property was unoccupied and undergoing extensive renovations. Petitioner hired Craig Quirk as the carpenter for the renovation project. Mr. Quirk worked on the project on a full-time basis during the entire period Petitioner's property was being renovated. One morning in late September when Mr. Quirk arrived at Petitioner's property to work, he discovered a wrought-iron stand and a 55-gallon drum in the backyard of Petitioner's property. Prior to that day, the drum had not been on Petitioner's property. Because the stand and drum were in the area where Mr. Quirk usually parked the vehicle, he and a helper dragged the drum and rack to the edge of the yard. The drum had a cap on it and was not leaking. Later that morning, when Petitioner came to the site, Mr. Quirk reported his discovery of the 55-gallon drum on Petitioner's property. At the time renovations were being made to Petitioner's property, Petitioner rented a dumpster which was used as a receptacle for construction debris. Mr. Quirk knew that the house owned by Petitioner and next door to Petitioner's property was on the market. Therefore, during the renovation of Petitioner's property, Mr. Quirk always utilized the dumpster in order to keep Petitioner's property clean. One or two days after learning about and observing the 55-gallon drum on the site, Petitioner telephoned a friend, Anthony Regan, to seek advice about removing the drum from Petitioner's property. At the time of Petitioner's call, Mr. Regan had two-and-a-half years of experience working as a truck driver for a hazardous waste facility. Although Mr. Regan is not a hazardous waste expert, because of his work experience, he is familiar with certain aspects related to hazardous waste and its disposal. Furthermore, Mr. Regan knows individuals within his company who can provide specific information regarding hazardous waste. At Petitioner's request, Mr. Regan went to the site to examine the 55-gallon drum and to assess what should be done with it. After being shown the drum by Petitioner, Mr. Regan temporarily removed the cap from the drum and inserted a stick in it. Based on his observation and assessment, Mr. Regan determined that the 55-gallon drum contained petroleum and water. When Mr. Regan observed the drum, it was not leaking and did not appear to be an environmental hazard. While at the site, Mr. Regan informed Petitioner that county amnesty program might provide assistance in removing the 55-gallon drum from Petitioner's property. Also, Mr. Regan told Petitioner that he would get an estimate from someone at the hazardous waste company for which Mr. Regan worked regarding the cost of removing the drum. Mr. Regan indicated that, after he checked on the county amnesty program and the estimate, he would report his findings to Petitioner. Between eight and ten days after going to Petitioner's property, Mr. Regan shared the results of his inquiries with Petitioner. First, Mr. Regan learned that the county amnesty program would not remove the drum because it did not belong to Petitioner, but had been dumped on Petitioner's property. Second, Mr. Regan reported to Petitioner that the hazardous waste company for which Regan worked could remove the 55-gallon drum from Petitioner's property for $350.00. Mr. Regan offered to look into the matter further, but prior to doing so went out-of-town for four or five weeks. Upon Mr. Regan’s return, Petitioner immediately contacted him to determine if additional information had been obtained concerning removal of the drum. While Mr. Regan had obtained no more additional information regarding removal of the drum, he suggested that Petitioner call the Sheriff’s Office. It was then that Petitioner made calls to several local agencies regarding the removal of the drum. Petitioner first called the police department, which in turn referred him to the county dump. The county dump could not assist Petitioner, but referred him to the Sheriff’s Office. Petitioner then called the Sheriff’s Office and spoke to Bob Aukenbaur, who told Petitioner that it was Petitioner's responsibility to have the drum removed. Because Petitioner was dissatisfied with Mr. Aukenbaur’s response, Petitioner called and attempted to speak to the Sheriff. Although unsuccessful in this regard, Petitioner did speak to an executive assistant, who promised to check into the matter. Approximately two days later, the executive assistant telephoned Petitioner and indicated that he was unable to find an amnesty program that would provide assistance to Petitioner. However, the executive assistant provided Petitioner with the telephone number of the Department of Environmental Protection and suggested that Petitioner call that agency for help. Petitioner then contacted the Department's regional office in Tampa, where he spoke to Jane Donnelly. The focus of Petitioner’s inquiry was whether it was his responsibility to remove the drum that had been “illegally dumped” on his property. After asking Petitioner several questions, Ms. Donnelly promised to get back with him. Several days after Petitioner contacted Department, Leslie Webster, an employee of the Department's regional office in Tampa and a Department trainee, visited the site to investigate the matter. When Ms. Webster arrived at the site, Petitioner and Paul Roney, the project design supervisor, were there. Petitioner showed Ms. Webster where the drum was located and explained to her that the drum had been dumped on his property. After Ms. Webster's on-site investigation, a form entitled "Initial Report of Emergency Response Incident" (Initial Report) was completed and forwarded to the Department's Tallahassee office. Petitioner was not provided with the Initial Report. The form bears the signature of Leslie Webster and is dated November 29, 1995. According to the Initial Report, the date of the incident was two weeks prior and the date the incident was reported to the Bureau of Energy Response was November 27, 1995. These dates do not accurately reflect the date of the incident and the date the incident was first reported. The Initial Report indicates that the incident was reported by Petitioner; that the “type of incident” is identified as “dumping“; that the incident description is noted as “abandoned drum(s)"; that the responsible party is “unknown”, and that the material in the drum is identified as from one to fifty- five gallons of gasoline and water. Also, the Initial Report has a “narrative” section. Nothing in this section indicates that Ms. Webster or anyone in the Department informed Petitioner that he was responsible for having the drum removed from the site. In situations such as this, the Department typically explains to the property owner what his responsibilities are with respect to a nonleaking drum. The property owner is then given a specified amount of time in which to remove the drum. The amount of time given to the property owner to remove the drum from his property varies, depending on the particular circumstances. The Department communicates this information to property owners in person, by telephone, or in writing. However, the Department's preferred manner of providing notice to property owners is to “talk face to face with people and let them know the circumstances they’re under.” When a Department investigator or other staff member visits a site and talks to the property owner about his responsibilities for removing pollutants or hazardous substances, no written notice is provided to the property owner reiterating the substance of the conversation. When Ms. Webster went to investigate the matter related to the drum on Petitioner’s property, there is no evidence that she told the Petitioner that he was responsible for removing the drum and that he was required to do so within a specified time. Likewise, there is no evidence that Ms. Webster told Petitioner that if he failed to remove the drum, the Department would have it removed and assess Petitioner the cost of such removal. Several days after Ms. Webster went to the site to investigate the matter, the drum remained on Petitioner’s property. Concerned that the drum had not been removed, Petitioner again called the Department's regional office in Tampa and spoke to Ms. Donnelly. During this conversation, Petitioner acknowledged that Ms. Webster had been to his property, but he expressed concern that the drum had not yet been removed. Ms. Donnelly then told Petitioner not to worry about it and stated, “I think we’re going to take care of it.” On or about November 29, 1995, the Department of Environmental Protection had the drum removed at a cost of $1,783. By letter dated August 5, 1996, more than eight months after the drum was removed from Petitioner’s property, the Department billed Petitioner $1,873.64 for costs and expenses incurred in removing the drum from Petitioner's property. This amount included administrative and investigative costs of $90.64 and $1,783 for the removal of the drum. Pursuant to the letter, Petitioner was given thirty days from the date of the letter in which to remit the amount due. Petitioner refused to pay the $1,873.64, and on the date of the hearing, the amount remained outstanding. The Department has incurred litigation costs of $2,090.93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department dismissing the claim against Petitioner, James J. Wooten, and finding that he is not liable to the Department for $3,964.57 in costs. DONE AND ORDERED this 18th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James J. Wooten, pro se 145 25th Street, South CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1997. St. Petersburg, Florida 33705 Kathelyn M. Jacques, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner is James Newberry Jr., who was also the Petitioner in the underlying challenge to Emergency Rule 64B14ER98-1 of Respondent Florida Board of Orthotists and Prosthetists, designated as DOAH Case No. 98-1186RE. The underlying case was brought pursuant to Section 120.56(5), Florida Statutes, pertaining to "Challenging Emergency Rules; Special Provisions." Mr. Newberry prevailed therein. The instant costs and fees case has been brought, in the alternative, pursuant to Sections 120.595(3) and 57.041, Florida Statutes. These are the only statutes relied upon in the Petition. In oral argument, Petitioner's counsel acknowledged that no case law exists to support an award of fees and/or costs under Section 57.041, Florida Statutes. The Petition does not contain an allegation that Petitioner incurred the attorney's fees set out in the attached affidavit of Ryan Garrett. The Petition does not attach any contract for attorney's fees. Petitioner's counsel acknowledged orally that no contract for fees existed and that the statements of the attorneys representing Petitioner addressed to "The Board of Orthotists Certification" in Baltimore, Maryland were addressed in that way because of an agreement between that private corporate entity and Petitioner Newberry, who is one of its members. By that agreement, apparently not reduced to writing, the Maryland corporation agreed to provide Petitioner with an attorney and pay the attorney's fees and further advanced all Petitioner's costs. "The Board of Orthotists Certification," also known as "The Board for Orthotics and Prosthetics Certification," of Baltimore, Maryland was not a party to the underlying emergency rule challenge. No evidence of its standing, if any, to challenge the emergency rule nor even of its involvement with Mr. Newberry for fee purposes was presented in DOAH Case No. 98- 1186RE.
Findings Of Fact By Invitation to Bid for Lease NO. 590:1944, Respondent invited lease proposals for approximately 15,206 square feet of office space "located within the following boundaries: On the North, Aloma Avenue/Fairbanks Avenue the East, Semoran Boulevard the South, Colonial Drive, and on the West, Mills Avenue." The geographic area includes as many as 100 office buildings, although the invitation only generated three bids. The Invitation to Bid announced a Pre-Bid Conference on December 22, 1987. Interested parties were directed to contact Linda N. Treml, whose telephone number was provided, for "bid specifications and information regarding the space." The Invitation to Bid stated that "[a]ny questions concerning this project are to be directed to [Ms. Treml]" and "prospective bidders are encouraged to consult with [Ms. Treml] beforehand in an attempt to enable as correct a bid submittal as possible." The Invitation to Bid required that certain attachments accompany the bid proposal and referred the prospective bidder to paragraph 9 of the Bid submittal Form. The required attachments included a scaled floorplan "showing present configurations with measurements," net rentable square footage calculations using floorplan measurements, and a preliminary site layout. The Invitation to Bid stated that Respondent reserved the right to waive any minor informalities or technicality and seek clarification" of bids received, when such is in the best interest of the state. Responding to Respondent's newspaper advertisement and direct-mail solicitation for bids, James W. Boyle, who is a real estate broker active in leasing and property management, requested from Ms. Treml an Invitation to Bid and Bid Submittal Form. Mr. Boyle regularly reviews announcements of forthcoming leasing activity by state agencies. If he is aware of a building that appears to meet the agency's requirements, he contacts the building's owner or manager and informs him or her that he may have a prospective tenant. After receiving the bid materials for Lease No. 590:1944, Mr. Boyle contacted Kathryn Doyle, who is the leasing manager of Petitioner, and learned that Petitioner could accommodate Respondent's space needs for the term sought in the Lakeview 436 office building. Mr. Boyle assisted Ms. Doyle in the preparation of the Bid Submittal Form for Petitioner. In his first conversation with Ms. Doyle, Mr. Boyle ascertained that Petitioner's building carried a Semoran Boulevard street address and in fact had direct access to Semoran Boulevard. Petitioner's building lies on the east side of Semoran Boulevard, which serves as the eastern boundary of the geographic area described in the Invitation to Bid. Three bids were submitted in response to the subject Invitation to Bid. When they were opened, Ms. Treml and her supervisor, George A. Smith, determined that bids of Petitioner and a third party were nonresponsive because their office buildings were outside the geographic area specified in the Invitation to Bid. These bids were not considered further. Mr. Boyle had previously represented the owners of the FARE building several months earlier in a bid for Lease No. 590:1895. The Invitation to Bid in that case, which was issued by Respondent and named Ms. Treml as the contact person, provided that the proposed office space must be located within the following boundaries: Beginning at the intersection of US 17-92 and Colonial Drive, then west on Colonial Drive to the intersection of Edgewater Drive, then north on Edgewater Drive to the intersection of Kennedy Blvd. . ., then east on Kennedy Blvd. . . . to the intersection of US 17-92, then south on US 17- 92 to the point of beginning." Although Mr. Boyle's client was not awarded Lease NO. 590:1895 for reasons not relevant here, his client's bid, as well as the bid of another unsuccessful bidder owning a building on the east side of the highway serving as the east boundary of the geographic area, were considered responsive and thus within the specified geographic area. Ms. Treml interpreted the boundary description in Lease NO. 590:1944 differently from the boundary description in Lease NO. 590:1895. The description for Lease NO. 590:1895 defined the boundaries by "beginning" at a certain intersection, then proceeding "on" a highway, and so on. The description for Lease NO. 590:1944 defined the boundaries by identifying landmarks "on the north," then the "east," and so on. At the time of assisting in the preparation of Petitioner's bid, Mr. Boyle was also aware of an Invitation to Bid issued by Respondent for Lease NO. 590:1875. In this case, Respondent specified office space "in the following area of Brevard County, Florida: Beginning at the intersection of U.S. Highway 1 and State Road 50, then West on SR-50 to the intersection of 1-95, then North on 1-95 to the intersection of SR-406 . . . then East on SR-406 to the intersection of U.S. 1, then South on U.S. 1 to the point of beginning." In the case of Lease NO. 590:1875, the bid contact person, Lynn Mobley, issued a clarification letter stating that any building located on either side of the boundary road with an address on the boundary road would be considered to be within the boundary. Ms. Mobley and her supervisor, Ernest Wilson, who are Respondent's District 7 Facilities Services Assistant Manager and Manager, respectively, have consistently advised potential bidders that a building located on a boundary highway is included in the geographic area even though it would be outside the area if the dividing line were the centerline of the highway. Mary Goodman, Chief, Bureau of Property Management of the Department of General Services, testified that, in the course of her review of leasing activities by various state agencies, she has historically guided agencies that, if a building abuts a boundary highway but is not, strictly speaking, within it, the agency "could waive that as a minor technicality and consider it a responsive bid." Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner spoke to Ms. Goodman prior to submitting the subject bid proposal. Ms. Treml customarily waives minor irregularities in bid submittals. However, she does not treat the location of a building outside the geographic area as a minor irregularity. To do so would be unfair to owners of other buildings outside the geographic area who took the geographic description at its face value and never submitted bids. Ms. Doyle received the bid materials from Mr. Boyle after the Pre-Bid Conference had taken place. However, Mr. Boyle elected not to attend the Pre- Bid Conference at which Ms. Treml explained, among other things, her interpretation of the specific geographic area. He chose not to attend because he felt that he would not learn anything relevant at the conference, which was attended by a representative of Intervenor. Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner contacted Ms. Treml prior to submitting Petitioner's bid. Mr. Boyle, whose compensation in this case is entirely contingent upon a successful bid, estimates that he spent about 20 hours working on Petitioner's bid. Ms. Doyle estimates that she spent about 40 hours working on the bid. Petitioner also spent $800 in obtaining an "as-built" drawing of the space that accompanied its proposal. By letter dated February 22, 1988, Respondent notified the bidders of its decision to award the lease contract to Intervenor. Petitioner filed a notice of intent to protest the award by letter dated February 24, 1988. Ms. Treml met Mr. Boyle and Ms. Doyle on March 1, 1988, and cited the location of Petitioner's building as the only reason for the determination of nonresponsiveness. The attempt at mediation having failed, Petitioner filed a formal written protest of the award by letter dated March 3, 1988. Petitioner attached to its bid proposal an "as-built" drawing. Although drawn to scale, the drawing did not bear the measurements of the then- present interior tenant improvements, mostly walls, nor did it disclose on its face any calculations showing how the rentable area was computed from the gross area. These omissions were due to Mr. Boyle's advice to Ms. Doyle that such information would be unnecessary in this case. The omissions from Petitioner's "as-built" drawing were rendered less critical by the fact that Respondent would have the right under the lease to require the landlord, at its expense, to remove the present improvements and re- configure the space to Respondent's demands. However, one purpose of the floorplan is to show where the space is located within the building. Another purpose is to verify the rentable area calculation by showing the measurements of items, such as restrooms, that should not be included in the rentable area for which Respondent is charged rent. The drawing is supposed to show the rentable area computation. Additionally, even though Respondent could insist on a total renovation of the premises, Respondent might wish to evaluate whether it could use a portion of the existing space in order to reduce the possibility of construction delays. George A. Smith, the Senior Management Analyst for Respondent who reviewed Ms. Treml's determination of nonresponsiveness prior to the award of the subject lease, testified that the deficiencies in Petitioner's "as-built" drawing were not a "minor irregularity."
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is the lowest responsive bidder with regard to an invitation to bid for Project Number KD-05/NG-05 (The ITB). Specifically the issues involve whether the Petitioner adequately complied with specifications regarding submission of a check list with the bid and whether the site plan submitted by the Petitioner was sufficient in accordance with the bid specifications.
Findings Of Fact The Petitioner, Koblar Constructors and Engineers (Koblar) is a sole proprietorship owned by Andrew Koblar of Gainesville, Florida. The Respondent (Department) is an agency of the State of Florida charged with the operation of the Florida prison system including the installation and maintenance of sanitation systems for Florida Prisons. The Intervenor is Elkins Constructors, Incorporated, a Florida corporation, (Elkins) which in the initial intended agency action was recommended to be awarded the contract involved in this proceeding. The United States Environmental Protection Agency (EPA) issued an Order on November 26, 1990 finding that the Waste Water Treatment Facility at the Starke Prison operated by the Department violated Section 301(a) of the so called "Clean Water Act" as amended at 33 U.S.C. Subsection 1311(a). The violation allegedly related to the system's failure to meet final effluent limitations concerning BOD, suspended solids and nutrients, as stipulated in the NPDES permit Number FL0038245 issued by the EPA to the Department with regard to that Waste Water System at the Starke Prison. Being aware of the EPA Order and the need for corrective action in order to avoid severe civil penalties, the Department issued Invitation to Bid Project Number KD-05/NG-05 (ITB) on September 30, 1990, in order to install a facility and equipment which would correct the violation of the sewage effluent limitations as stipulated in the Department's NPDES Permit. The upgrading of the Waste Water Plant involved in the ITB included installation of new aeration tanks, final clarifiers, final filters, and appurtenant equipment and facilities. In order to prepare the ITB and then to evaluate the bid responses to it, the Department selected William M. Bishop, Consulting Engineers, Inc. (Bishop) as the consulting engineer on this project. Bishop's duties included the drafting of the ITB specifications and conditions, evaluating the proposals submitted in response to it and recommending the award of the contract. At various times after the preparation of the initial ITB Bishop also prepared four addendums to it. The ITB stated that the contract would be awarded to the lowest, responsive bidder. The proposals were to include bid quotations, used to determine lowest price and other documents and data to determine the responsiveness of the proposals. Koblar timely submitted a base bid of $1,390,000.00 with additional costs for Alternative No. 1 involving a "Traveling Bridge Filter" for $328,400.00; for additive Alternative No. 2: "Emergency Generator" for $65,223; and additive Alternative No. 3: "Communinutor" for $38,584.00. Elkins submitted a base bid of $1,520,000.00, with additional costs for additive Alternative No. 1: The Traveling Bridge Filter, for $375,000.00; additive Alternative No. 2: The Emergency Generator, for $53,000.00; and additive Alternative No. 3: The Communinutor for $20,000.00. Five bids were received by the Department, including Koblar's and Elkins' Bids. The bids were evaluated by Mr. Murphy of Bishop Engineering. The Bishop representative found Koblar's bid nonresponsive and rejected it. It was deemed nonresponsive because it allegedly failed to include the required information on the submittal check list as well as an adequate site plan. Mr. Michael Murphy, the Engineer evaluating the bids maintained he was unable to evaluate Koblar's bid because it lacked that information. After evaluation of the bids, Bishop recommended awarding the bid to Elkins as the lowest responsive bidder. On December 5, 1990, the bid results were posted with Elkins as the announced winner. The ITB consisted of a package containing instructions to prospective bidders and specifications for the construction of the project which primarily consisted of a Waste Water Treatment Plant. The ITB required a pre-engineered package Waste Water Treatment Plant which would meet the Performance Criteria set out in the Specifications. Bidders were required to submit a base bid for the plant itself and prices for three additive alternatives as delineated above. After the Department issued the ITB on September 30, 1990, the engineer met with representatives of Smith and Lovelace, Inc., a Wastewater Treatment Plant Manufacturer. These representatives provided to the Engineer, Mr. Murphy, calculations for the performance of the Waste Water Treatment Plant it wished to make available for bidders. As a result of that meeting, the Engineer approved Smith and Lovelace's Plant as a manufacturer of the Waste Water Treatment Plant sought. The Engineer then issued an addendum to the ITB notifying bidders that the Smith and Lovelace plant was approved for the project. The Engineer issued the addendum because he determined that the Smith and Lovelace equipment and materials could meet the project specifications. Section 11395 paragraph 1.5.1 provided that bidders submit the following materials: Site plan showing arrangement of treatment units and yard piping and any modifications required to match the piping arrangements shown on the plans. The performance and operating characteristics for the plant including the electrical load requirements and the oxygen transfer efficiency of the diffusers proposed for the aeration tanks. A listing of tank volumes and surface areas. A list of names, addresses, and telephone numbers of at least five (5) owners of plants using the proposed treatment arrangement and equipment for verification of operation and maintenance considerations. The calculations submitted to the consulting engineer by the Smith and Lovelace firm and the proposal provided him contained all the information requested by paragraph 1.5.1. Addendum 2 to the ITB included a "submittal check list" form. The submittal check list form listed the categories of technical information and provided a space for inserting the results of calculations which were requested by paragraph 1.5.1. In response to this, Koblar wrote the following notation on its check list form: "See enclosure or prequalification on file with engineer." The enclosure consisted of a technical scale drawing of the Smith and Lovelace plant reflecting a directional north arrow. This was Koblar's site plan pursuant to Item 1 on the submittal check list. The prequalification information referred to by Koblar consisted of the design and calculations submitted by Smith and Lovelace which had induced the consulting engineer, Mr. Murphy, to approve that company as a manufacturer and issue the addendum to Paragraph 1.4.4. Engineer Murphy knew that the notation on the check list form referred to that same information, accordingly to his testimony. Nothing in the instructions to bidders with the ITB precluded bidders from referencing information already in the consulting engineer and bid evaluator's possession, which was done by Koblar in this case. On December 5, 1990, the Department posted the bid results which reflected that the Respondent rejected Koblar's bid as nonresponsive. That posting announced the intent to award the contract to Elkins. Koblar timely filed a notice of intent to protest and a formal written protest pursuant to Section 120.53 of the Florida Statutes and the case was ultimately transferred to the undersigned hearing officer and tried on January 18 and 22, 1991. The Department's position was that the Koblar bid contained certain omissions which constituted material major irregularities such that they could not be cured or waived in the view of the Department. The two objections to Koblar's bid involved Koblar's failure to fill in all blank spaces on the submittal check list with the calculations contained in the Smith and Lovelace presubmitted information and its position that the Koblar's site plan submitted was insufficient to comply with its view of the bid specification. Mr. Michael Murphy of Bishop Consulting Engineers, the Engineer assigned to prepare the Invitation to Bid, evaluate bids and recommend selection of a bidder, acknowledged in his testimony that the information previously submitted by Smith and Lovelace of the Department contained all of the information required by the checklist and that that information met the specifications contained in the ITB. Mr. Murphy had notified Smith and Lovelace that its design calculation's meet the specifications prior to the date bids were submitted. He was of the opinion, however, that he could not properly refer to the Smith and Lovelace information to which his attention had been directed by Koblar in its bid submittal. According to the Department that would have provided Koblar a competitive advantage over other bidders. The evidence showed that if Koblar had transcribed the information onto the check list from the Smith and Lovelace data and provided a site plan which precisely met the consulting engineer's view of what the site plan should depict, particularly with regard to location of and connection of yard piping and relationship to existing infrastructure (buried pipes), the Department would have found its bid responsive and awarded the contract to Koblar since it was the lowest bidder by a significant amount (approximately $146,000). There were certain irregularities in the bid of Elkins as well, as shown by the testimony of Mr. Murphy. Mr. Murphy opined that these irregularities were not material because they were obvious ones and easily correctable. There was evidence that certain information provided by Elkins on its check list did not meet the minimum specifications for the contract but that those deficiencies could be corrected by adjusting certain calculations. Because Mr. Murphy concluded that Elkins' bid could meet specifications, depending on how the calculations were done, Elkins' bid was considered to be responsive. There was also testimony that perhaps one of the criteria on the check list, Item 2b, was not met by the calculations submitted by Smith and Lovelace. This testimony is inconsistent with the extensive testimony and evidence to the contrary and is rejected. However, if any such deficiency had existed, it could be cured or eliminated by applying the same standards or differing calculation procedures which the engineer applied to make Elkins' submittals acceptable. The Elkins' bid did not meet the minimal standard for the aerobic digester. The minimal requirement was a 207,000 gallon capacity tank. Elkins' bid reflected a 180,000 gallon tank. This also rendered its bid proposal more than $18,000 cheaper than the Koblar bid as to this particular item. During the first day of the hearing, Engineer Murphy testified that he considered this to be a minor error and that Elkins could be required to provide a 207,000 tank and would not be entitled to a change order and (more money) for doing so. Four days later in his testimony, the Engineer testified that the bid was not necessarily in error at all because the minimum design criteria were flexible. According to Mr. Murphy, the specifications minimums as originally issued were firm ones, but as a result of changes of Addendum 2, the minimum requirements were only guidelines. Therefore, if Elkins' 180,000 gallon tank proposed was based on calculations using an industry standard, rather than the minimum requirement called for in the specification its calculation for the tank capacity would have been acceptable. In other words, with a smaller capacity tank, if Elkins proposal made provision for enhancing the oxygen feed rate, then the same performance standard could be achieved possibly even with the smaller capacity tank. Similarly, on the first day of the hearing Mr. Murphy testified that he rejected Koblar's bid because he did not feel it was appropriate to incorporate by reference the design calculations previously submitted by Smith and Lovelace, but that those calculations did meet the specifications. On the second day of the hearing, he indicated that Koblar's calculations did not meet the specification for oxygen transfer with regard to the aerobic digester. However, if the calculations testified to by the engineer as establishing acceptability of the Elkins' Bid were applied to Koblar's Bid, Koblar's bid would also be acceptable. Under Elkins' calculations using 20 MG/L effluent BOD (instead of the 5 MG/L specified), the minimum required oxygen rate would be 361 pounds. Koblar's bid provided for 398 pounds oxygen feed rate per hour and therefore would exceed the minimum requirements. In summary, if the justification for allowing Elkins to disregard the specifications in arriving at the tank capacity requirement held true, then the specifications relating to the requirements on the check list were not rigid requirements were performance related and were nothing more than guide lines and therefore cannot serve as a basis for rejecting either bid. The testimony of Mr. Murphy taken in its totality establishes that Koblar's bid would have been accepted as responsive if it had transferred the calculations from the Smith and Lovelace pre-submitted information onto its actual physical check list and if Koblar had submitted a site plan which the engineer felt met his own expectations. The engineer testified that Koblar site plan was nonresponsive and unacceptable because he himself contemplated a plan which would show precisely where the plant would be located, oriented and how its piping would connect or relate exactly to the piping of the existing facility. Koblar's site plan indeed provided a directional arrow showing how the plant would be placed on the site, direction-wise, and the specification plans themselves in the ITB provided only a limited area for its location so it could not be placed in any other location. Therefore, because of the directional arrow, it was clear how the plant would be placed and connect to the existing facility, in reality. The plant could only be moved a few feet in any direction within the geographically limited area or location contained in the ITB plan depiction part of the specifications. Because the limited area for location provided in the specification plans precludes placement of the plant at any other location on the entire site, and because the directional arrow provided in Koblar's site plan shows how the plant would be oriented, it becomes obvious how the connections to existing piping and the existing facility would be made. The fact that the site plan submitted by Koblar does not show the final precise location or the actual "foot print" of the plant to be installed is, at most, a minor irregularity. It is obvious how the connections would be made. They could only be made one way. In fact, the engineer testified that if Koblar had submitted a drawing showing the precise location anywhere in the specified area in the ITB plans it would have been acceptable. Yet the engineer also testified that he felt the site plan was insufficient because he feared Koblar would request a "change order." He feared Koblar would request a change order if he ordered Koblar to place the plant somewhere different in the specification area from where originally contemplated, possibly because of additional piping, etc. The engineer's stated fear that a change order might result in additional costs under these circumstances is not acceptable. The same result would occur if Koblar had submitted a drawing showing the location of the plant closer than that which the engineer ultimately ordered. Yet he acknowledged that if Koblar had done so its submittal would have been acceptable. The Department's own engineer, Mr. Scott, testified that it was clear how Koblar intended to connect the two facilities, that is, the existing one and the new one proposed and that the arrangement would work. Therefore, the supposed fear of a change order was not shown to well-founded. The asserted fear of a change order request from Koblar is inconsistent with the engineer's own discussion and evaluation of Elkins' Bid. The Elkins' submittal showed an intent to use a 180,000 gallon aerobic digester. The engineer intended to require Elkins to provide a 207,000 gallon aerobic digester (the so called "muffin monster"). When a bidder places the owner or his engineer on notice that he has based his bid on a specific assumption and the engineer demands something different, it is logical to anticipate a change order dispute. It is not logical to anticipate a change order dispute when the bid order provides that the project will be constructed within the limitations provided in the plans. Therefore, the asserted fear that Koblar would request a change order does not justify rejection of its bid when considered in the light of the engineer's rationale regarding the Elkins' Bid. If the possibility of a change order dispute could be considered in determining irregularity of a bid, it would be considerably more of a factor in the Elkins' Bid Evaluation, which was actually deemed responsive by the engineer, Mr. Murphy. Mr. Murphy's rejection of the Koblar's site plan was based on a subjective expectation of what the site plans should look like rather than what the specifications actually required. The specifications in fact included a drawing showing the limits in which the new plant would be located. Both Mr. Murphy and Mr. Scott, the Department's own engineer acknowledged that Koblar's drawing of the new plant which was submitted with the bid could be fitted into the limits shown on the specification drawings and the north directional arrow showed the manner in which the plant would be oriented, at which point the manner in which the piping had to be connected became obvious. That was what was required by Paragraph 1.3.1 of the specifications and Koblar's submittal complied with that. Further, Koblar's testimony shows that the he has bound himself to submit no additional costs as change orders based on the final precise placement of the plant in the relation to existing infrastructure and the ultimate connection to the existing facilities. The Department did not present evidence or explanation to justify its assertion that Koblar had actually gained unfair competitive advantage by the manner in which it submitted its bid. Both engineers testifying for the Department were repeatedly asked to explain the advantage which Koblar received. Initially Mr. Murphy responded that Koblar would have been advantaged if the bid had been accepted because the other bidders did not incorporate by reference the pre-submitted information. Mr. Scott, the Department's own engineer, acknowledged that there would have been no economic advantage to Koblar by incorporating the pre-submitted information by reference in its bid, although, conceivably, time savings to Koblar in bid preparation might have been helpful. On the last day of the hearing, however Mr. Murphy elaborated on Mr. Scott's theme in testifying that he felt that there might be a certain amount of time involved in filling out the bid form which could have been saved by Koblar by relying on the pre-submitted information, which might have allowed Koblar to take advantage of a last minute, lowest price from his supplier before making the bid submittal. This conjectural, competitive, economic advantage has not been established however and has been shown to be incorrect. Even Mr. McMurray, the President of Elkins, acknowledged in his testimony that any bidder can change its bid up to the very last minute as to any item. His testimony about the ability to change a bid or a bid item up to the last minute before bid opening shows that ability to make last minute changes in bids is not affected by the amount of time the contractor had already put in the bid preparation prior to bid opening. There was no showing that Koblar gained any last minute price knowledge from any manufacturer or other source or any other advantage which he could put in his bid at the last minute and make use of any purported time gained by submitting a bid which incorporated pre-submitted information by reference rather than a more time consuming preparation of the bid "from scratch." Moreover, any bidder involved could have referred to the pre- submitted information on file with the consulting engineer in lieu of preparation, from "scratch," of all the calculations and other information referenced in the above bid specification paragraphs at issue, including the fact that any bidder could have submitted a site plan similar to the one submitted by Koblar because that was all the specifications required. In summary, it was not established that Koblar received any unfair economic advantage over other bidders by merely incorporating by reference design calculations which had been pre-approved and were in the possession of the engineer. The information was such that any engineer could look at it and insert the numbers and calculations onto the submittal list at issue with no room for variation in the result. The numbers say what the numbers say and there is no opportunity for a variation such that Koblar would gain a competitive advantage over other bidders thereby. The same consideration is true of the site plan controversy. The information required by the relevant specification regarding the location of the new plant and its connection to the old plant could be derived from the drawings submitted by Koblar. There was no opportunity for Koblar to change the results of that information. Therefore, the assertions by the Respondent's witnesses that allowing Koblar to rely on the pre-submitted Smith and Lovelace information, and accepting its drawing as responsive to the site plan specification somehow provided Koblar an extra opportunity at responsiveness and "lowest best bid," to the competitive disadvantage of the other bidders, is simply inaccurate and not supported by the evidence of record.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered awarding the contract for construction of Project No. KD/5-ND/5 to Koblar Constructors and Engineers. ENTERED this 27th day of March, 1991, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact: 1-28 Accepted. Respondent's Proposed Findings of Fact: 1-10 Accepted. 11 Rejected as subordinate to the hearing officer's findings of fact on this subject matter. 12-19 Accepted. Rejected as immaterial to the dispositive material issues presented and subordinate to the hearing officer's findings of fact on this subject matter. Accepted. Accepted generally speaking, but subordinate to the hearing officer's findings of fact on this subject matter as to the specific dispositive material issues presented. Accepted. 24-29 Accepted. 30-34 Accepted. Rejected as subordinate to the hearing officer's findings of fact on this subject matter and not entirely supported by the preponderant weight of the evidence. Rejected for the same reason as number 35. 37-38 Accepted. 39-43 Rejected as subordinate to the hearing officer's findings of fact on this subject matter and as not being in accordance with the preponderant evidence of record. 44-48 Rejected (same reason). Accepted only to the extent that it demonstrates the Department's position in this proceeding and not accepted for the truth of the reason for the initial award decision. Rejected as not in accordance with the preponderant weight of the evidence and as subordinate to the hearing officer's findings of fact on this subject matter. Accepted. 52-54 Rejected as subordinate to the hearing officer's findings of fact on this subject matter. 54 is rejected addi- tionally as being not in accordance with the preponderant weight of the evidence. 55-57 Rejected as subordinate to the hearing officer's findings of fact on this subject matter and as not in accordance with the preponderant weight of the evidence. Rejected as subordinate to the hearing officer's findings of fact on this subject matter and as not supported by the preponderant evidence of record. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. Intervenor's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the hearing officer's findings of fact on this subject matter and not entirely in accordance with the preponderant weight of the evidence. Accepted. Accepted. Rejected as subordinate to the hearing officer's findings of fact on this subject matter. 12-13 Accepted, except as to paragraph (b) which is rejected as subordinate to the hearing officer's findings of fact on this subject matter and as contrary to the preponderant weight of the evidence. 14-15 Accepted, but not necessarily dispositive of material issues presented. COPIES FURNISHED: Drew Koblar 2009 Northwest 67th Place Gainesville, Florida 32606 Deanna Eftoda, Esquire Assistant General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 B. Thomas Whitefield, Esquire Ulmer, Murchison, Ashby & Taylor 1600 First Union Building Post Office Box 479 Jacksonville, Florida 32201 Richard L. Dugger, Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500
Findings Of Fact Bayfront commenced construction of the biological waste incinerator here at issue prior to March 21, 1992, the effective date of the moratorium on construction of biological waste incinerators and was exempt from that moratorium. An inspection of the premises on April 9, 1992, (exhibit 5) showed substantial work had been accomplished and the inspector concluded, and DEP's legal counsel concurred, that in order to have achieved the construction progress shown on April 9, 1992, the work had to have been commenced prior to March 21, 1992. Further, a building permit to renovate the building into which the waste incinerator was placed was issued November 12, 1991, (exhibit 7) and a building permit to install a waste incinerator was issued March 4, 1992, (exhibit 6). No contradictory evidence was submitted by Petitioner. Respondent's witnesses testified without contradiction that Bayfront's application for an operation permit was complete in all respects, including certification by a professional engineer; that all test results showed the emissions into the atmosphere were within the prescribed standards; that certain conditions contained in the construction permit as a result of the settlement agreement resolving the challenge to the issuance of the construction permit are contained in the operation permit; that those conditions exceed the conditions required by the rules for incinerators; and that Bayfront affirmatively provided the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information that the operation of the incinerator will not discharge, emit, or cause pollution in contravention of DEP's standards as contained in Rule 17-4.070(1), Florida Administrative Code. This testimony is accepted as factual. The draft permit authorizes Bayfront to burn a maximum of fifteen hundred pounds per hour of waste. Each time a test run is conducted to check the emissions, the pounds of waste burned per hour during the test establishes an upper limit on the rate of burning waste. As explained by James L. McDonald, the engineer processing air pollution applications for the Department at Transcript p. 50-51: The construction application asked for a permit at fifteen hundred pounds per hour. So the construction permit is -- the condition that we would want, the Department would normally want the test within ten percent of that fifteen hundred pounds an hour in order to go ahead and issue, if its in total compliance, to issue an operating permit at fifteen hundred pounds. Since the test came in at a reduced rate, below the ten percent, then that's why in the operating permit condition twenty-one says you're limited to the rate that we're, the test was conducted. [sic] Now, also, its interesting to note that in their test, if you look at their runs two and three -- because there are rules that say the Department could accept two runs out of three if a condition occurred that was out of their control -- if your average runs two and three, they would average within ten percent of fifteen hundred. So, as a permit processor, it even gave me some reasonable assurance that they could probably comply with the fifteen hundred. But, since the test of all three runs came in as an average of twelve fifty-one, then the operating permit included that twelve fiftyone. And like the real world out there, just like power plants, when it comes time for their annual testing, if they are at half speed, their business is down, it allows them to test at half speed. We won't require them to go up to full speed. They can test at half speed. But then they are limited there. And if they go above it at a later date they would have to retest. So they can work their way back up to where the Department has reasonable assurance that the upper limit of fifteen hundred pounds -- that's where later in condition twenty-one of the operating permit it says but in no case shall the maximum permit or burning rate of fifteen hundred pounds per hour be exceeded. Petitioner's second two grounds for challenging the issuance of the operation permit was answered by McDonald's testimony, above quoted, and this evidence was not rebutted by Petitioner. The primary thrust of the evidence presented by Petitioner was that Bayfront had somehow misled the City of St. Petersburg regarding the operation of the incinerator and had not complied with all of the City's requirements in other respects, ergo, Bayfront could not be relied on to comply with the conditions in the operation permit. This evidence is irrelevant to the determination of whether or not the operation of the incinerator complies with all of the Department rules. The conditions of the operating permit require Bayfront to submit periodic reports to the Department from which the Department can determine whether the conditions in the permit are being complied with. Furthermore, the Department requires the permittee to notify the Pinellas County Department of Environmental Management at least fifteen days prior to the date on which each formal compliance test is to begin (Permit Condition No. 22) to allow them to witness the test, if desired. The construction permit, complying with the settlement agreement, required Bayfront to adhere to more frequent testing and more extensive testing then is required by the rules for operating biological waste incinerators. All of the tests and reports submitted by Bayfront on the operation of this incinerator met all of the requirements in the construction permit and the draft operation permit.
Recommendation It is RECOMMENDED that Bayfront Medical Center be issued Permit No. AO52- 224337 to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida. DONE AND ENTERED this 16th day of November 1993 in Tallahassee, Leon County, Florida. K. N. AYERS 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 November 1993. COPIES FURNISHED: Adrian W. Helm, Esquire 925 14th Avenue North St. Petersburg, Florida 33712 Daniel N. Burton, Esquire Thomas K. Maurer, Esquire Terri L. Gillis-Tucker, Esquire Foley and Lardner 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
