Findings Of Fact The Respondent, Department of Corrections, by advertisement in a Jackson County, Florida newspaper on March 27, March 30 and April 6, 1988, sought bids for the provision of office space for the Department's offices in Marianna. The bid specifications, including, as pertinent hereto; minimum square footage, a requirement that Energy Performance Index calculations and certification thereof by an architect or engineer be shown, and the requirement that all parking spaces be on site, was made available to potential bidders on March 28. A pre-proposal conference of potential bidders was held on March 31 to explain and clarify the specifications. Bids were submitted by the two Petitioners, and the bids were opened on April 14, 1988. On or about April 19 or 20, Wendell Beall and Robert Sandall evaluated the bid proposals and made a preliminary determination that the Rainbow bid was non-responsive in three areas. It was determined that the required square footage depicted on the Rainbow bid was inadequate; the parking provision was inadequate in that not enough "on-site" spaces were shown on the bid; and the Energy Performance Index calculations and certification by an architect or engineer was not supplied. On April 21, 1988, the lease committee, chaired by Thomas Young, met and reviewed both bid packages submitted by the Petitioners and affirmed Mr. Beall and Mr. Sandall's findings, with the result that the agency decided to award the contract to Brooks. The bid specifications required a minimum of 12,756 net square feet of rentable office space. Only 11,862 square feet could be identified as net rentable square footage on the Rainbow bid's floor plan, as calculated in compliance with the "standard method of space measurement." This square footage calculation was consistent with the actual measurements of the building made by Mr. Beall himself. The Brooks' bid depicted an adequate amount of square footage in compliance with the specifications. Mr. Beall calculated the net rentable interior square footage by utilizing the standard method of space measurement provided for in the rules of the Department of General Services and, after deducting nonusable, nonrentable space under that standard, rule mandated method, he arrived at the net rentable office space figure of 11,862 square feet. Rainbow at no time has presented any conflicting measurement or alleged any specific errors in Mr. Beall's calculations. Item A-10 of the bid specifications requires a floor plan to be submitted showing the present configurations of the building, with measurements that equate to the required net rentable square footage. This means that the minimum square footage must be shown in the floor plan attached and submitted with the bid specifications, even if the building may contain more square footage. The Department supplied a specific number of offices of various sizes and a required configuration no floor plan in order to depict work units that should be constructed and/or arranged together, as part of the specifications in the Invitation to Bid documents. The purpose of this agency floor plan was to give potential bidders a guide to calculate the cost of remodeling existing space to meet the agency's needs so that those potential bidders could amortize that cost as part of the rental amount involved. Therefore, the proposed floor plan included in a bidder's package should not vary substantially from the final plan used to actually remodel the leased space in accordance with the agency's requirements. Accordingly, the only submittal of plans which is permissible subsequent to the bid opening, as contemplated by the bid specifications, are the final plans developed by a successful bidder in consultation with the agency after the bid award. No floor plan may be unilaterally submitted by a bidder after the bid opening since that would constitute an illegal amendment of the bid. Only a floor plan done in consultation with the agency in order to make final adjustments so that all office space and other related space will comply with the agency's precise requirements may be done after the bid is actually awarded, and this must be based upon the floor plan originally submitted in the bid itself in conformance with the bid specifications regarding office layout, square footage and the like. The Rainbow bid simply contained an inadequate amount of square footage necessary to be a responsive bid in this regard. An additional bid specification at issue concerns the requirement of 77 exclusive use, on-site parking spaces. The Rainbow bid only made provision for 27 on-site exclusive parking spaces, with the remaining 50 spaces of the required 77 being off the proposed building site, approximately 155 feet away, without sidewalk access to the proposed office building. The Brooks' bid incorporated all required parking spaces on the site, as required by the specifications. The Rainbow bid was non-responsive concerning the parking space specification as well. Mr. Beall prepared the bidding documents as Budget Manager for the Department of Corrections' Region I. He was the person designated in the bidding documents to answer any questions requiring clarification by prospective bidders before bids were prepared and submitted. Mr. Beall established that the intent of the agency with regard to this parking space requirement was to require all 77 parking spaces to be on-site. No bidder or prospective bidder asked any questions of Mr. Beall concerning this specification prior to the submittal of any of the bids. Mr. Brooks, however, did consult with Mr. Beall on the question of the Energy Performance Index specification item before he submitted his bid. Mr. Brooks is a former physics and advanced mathematics teacher with some 20 years experience in construction. He has been a licensed general contractor and master builder for residential, commercial and industrial types of construction for 11 years. He typically designs and draws his own plans, including those submitted with the bid at issue. He spent approximately 100 hours of his time on preparation of this bid. Mr. Brooks had previously been awarded a rid by the Department of Corrections on which he simply invalid the item concerning the Energy Performance Index (EPI) specification. That item was found to be responsive by the Department, and the bid was awarded to Mr. Brooks. On a subsequent bid on a different job, Mr. Brooks again merely initialed the EPI specification, which he intended to mean that he would perform the job at issue such that the EPI requirements would be met. He was not awarded the bid on that particular job, but upon his informally notifying the Department of Corrections that he might protest the decision to award the bid to a different bidder, the Department personnel advised him that they might choose to raise the issue of his responsiveness to the EPI specification in that situation. With this history in mind, Mr. Brooks, before submitting his bid, contacted Mr. Beall to inquire as to what would be considered an appropriate response to the EPI specification on the bidding documents. The EPI has been calculated by Mr. Brooks on numerous projects in the past, and he is capable of calculating it as to this project. He found, however, that it would be impossible to calculate a precise and accurate EPI specification response, because he would not have the final floor plan from which to calculate it, with all the information that would give him concerning room configurations, size, location and size of windows, size and type of heating and air-conditioning equipment and many other factors. Mr. Brooks could, however, give his certification that the energy performance requirement would be met, once the final plans were completed in conjunction with discussion with the agency after award of the bid, which comports with standard agency policy and practice. Because he was concerned that any energy performance calculations he might supply would not necessarily be accurate in the final analysis, in relation to the final "to be constructed" plans, Mr. Brooks contacted Mr. Beall to obtain his guidance about what would be considered a proper response to this specification item. Mr. Beall advised him that a letter certifying that he would comply with the specification as to this issue would be an appropriate alternative to simply initialing the specification. The same opinion was also voiced at the lease committee meeting. Mr. Beall's advice to Mr. Brooks in this regard was based upon advice given him by Mr. Edwin Johnson of the Department of General Services and was based upon past agency policy concerning treatment of this issue on previous bids considered by the lease committee. Previous bids had indeed been accepted in the form submitted by Mr. Brooks and had not been found to be nonresponsive as to the EPI issue. Thus, Mr. Brooks, in addition to initialing the specification concerning the EPI, also supplied the referenced letter certifying that he would comply with that specification and agency requirement. Rainbow, on the other hand, merely initialed that item in the specification and bidding document. Thus, the Brooks' bid is the more responsive on the issue of the EPI than the Rainbow bid. The bid award to Brooks was posted on May 2, and on May 4, Rainbow filed a Notice of Protest of she award which was received by the Department, timely on May 5. Shortly after that date, counsel for Rainbow requested that the Department's representatives and counsel meet with him and Mr. Jett, his client, of Rainbow Properties, to discuss the agency's award to Brooks and rejection of Rainbow's bid. On May 10, 1988, the Department's regional representatives and its counsel met with Mr. Jett of Rainbow Properties and his attorney, Mr. Barley. Mr. Jett used this opportunity to explain how he felt that the Rainbow bid had complied with the bid specifications in the three specific areas discussed above. The Department's counsel explained on that occasion that the bid could not be amended after opening and posting of the bids. Mr. Jett's bid had only shown 11,862 square feet identifiable as rentable space in the floor plan submitted with the bid, although 12,756 square feet were required by the bid specifications. Additionally, as discussed above, of the 77 required on-site parking spaces, only 27 were provided on site with 50 of them being off site, with Rainbow not establishing that it had ownership or right of control to the off site spaces. Additionally, as discussed above, there was the problem of no calculations or assurances being provided regarding the EPI specification, it merely having been initialed in Rainbow's bid submittal. At the May 10 meeting, Mr. Jett was given the opportunity to explain how his bid complied with the specifications at issue and to discuss how he felt the Department had misinterpreted his response or made an error in measuring or calculating the square footage available in his building. He provided no alternative calculations or measurements of the building, however, which would depict more than the 11,862 square feet measured by the Department's staff or which would show that measurement was incorrect. He was reminded that the only possible information he could legally provide the agency after the opening of bids was in the nature of minor clarification concerning how he had calculated the square footage. He was instructed that he could not revise his plans in order to establish that more square footage was available because that would be an illegal amendment of his bid after the bids were open and posted. At the May 10 meeting Mr. Jett also maintained that the Department had allowed for other than on site parking; however, but the bidding document or Invitation to Bid only contained one blank, and only one subsection on the bidding form, for the bidders to indicate 77 spaces designated as on site spaces. Mr. Jett maintained that since the Department had provided option "(A)" under this on-site parking specification item, that he was therefore free to add other options. Using that logic, however, it would also appear that he could have submitted a bid depicting spaces literally on the other side of town and still had a responsive bid. That clearly is not the correct interpretation of that specification. He also maintained that the EPI was impossible to calculate at the time of bidding, in view of the fact that final plans were not available to support the ultimate calculation. In any event, at the conclusion of this meeting, Department personnel informed Mr. Jett and his counsel that would inform him of its decision within a few days. The Department did not inform Mr. Jett that he would be permitted to amend his bid after obtaining professional help and redrawing his blueprint in an effort to show that the minimum square footage was available. Indeed, Rainbow and Mr. Jett did obtain the services of an architect and drew a new floor plan which it offered as PR-1 at the hearing. If the floor plan originally attached to Rainbow's bid, consisting of Exhibit PR-2 in evidence, is compared with the blueprint submitted by the architect after the meeting with the Department representatives on May 10, it can be discerned that the blueprint is not a mere refinement or clarification of the initial floor plan, but rather that major modifications have been made to the initial floor plan submitted with the bid. These consist of walls which have been moved, small rooms in some areas which have been eliminated, restrooms which have been deleted and an existing spiral staircase area which was eliminated, and a hallway enclosed, in order to add additional rentable square footage where new offices could be added. Thus, this blueprint offered at hearing was not a mere refinement or clarification of the original floor plan submitted with the Rainbow bid, but rather sufficiently different from original floor plan as to constitute a material amendment or modification to the bid. It therefore cannot be considered. The floor plan submitted with the bid was nonconforming to the bid specifications as to the square footage item and Rainbow cannot be permitted to rectify and correct that with the architect's new blueprint and floor plan offered at the time of the hearing. 1/ In short, insufficient square footage was depicted and that is not a minor waivable irregularity. Soon after this May 10 meeting, the Department changed its position, decided that both bids were not responsive and rejected them. Its alleged basis for doing so was that the Brooks bid was nonresponsive as to the energy performance index criteria and that the Rainbow bid was nonresponsive as to that criteria, as well as to those concerning minimum square footage and on-site parking availability; the same as the original grounds for rejecting Rainbow's bid. Timely formal protests of that second agency action were filed by both Brooks and Rainbow. In that connection, Rainbow's formal written protest of the original award to Brooks, which was announced and noticed on May 2, 1988, was untimely. The formal written protest must be filed within ten days of the notice of protest. Rainbow's original notice of protest was filed with the agency on May 5 and the formal written protest was not filed until May 17. Rainbow, in conjunction with its filing, filed a motion for leave to late-file the formal protest with the agency on the basis that it had mistakenly filed the formal protest with the Division of Administrative Hearings. That petition was filed with the Division on May 16th. The deadline for filing the formal protest was May 15th. Petitioner Rainbow, however, did not learn of the second intended agency action until May 16th, however, and may have been somewhat misled about the necessity of filing its formal protest by May 15th because of the informal discussion of May 10th. It is also true, however, that the informal meeting was improper, as discussed herein and was called at the behest of Rainbow without assurance that the filing time was tolled.
Recommendation In consideration of the above findings of fact and evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor RECOMMENDED that the petition of Rainbow Properties, a Florida general partnership, should be denied and dismissed for the reasons found and concluded above, and that the petition of C. Leon Brooks be GRANTED and that the subject bid be awarded to C. Leon Brooks. DONE and ENTERED this 27th day of October, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1988.
Findings Of Fact On February 28, 1990, Respondent issued an invitation to bid (ITB) on a construction project referred to as Florida Atlantic University Modulars. The ITB required a base bid and bids on five alternates to the base project. Each bidder was instructed that it must bid on the base project and on each alternate for its bid proposal to be considered responsive. On March 19, 1990, Addendum 1 to the ITB was issued to all prospective bidders. This was an informational addendum and advised the date, time, and location of the posting of the award recommendation. Addendum 1 was not required to be returned by the bidder as a part of the response to the ITB. On March 21, 1990, Addendum 2 to the ITB was issued to all prospective bidders. This was also an informational addendum and advised as to a non- mandatory, pre-bid conference to be held March 27, 1990. Addendum 2 was not required to be returned by the bidder as a part of the response to the ITB. On March 30, 1990, Addendum 3 to the ITB was issued to all prospective bidders. This addendum advised that the date and time for the bid opening had been changed to April 9, 1990, at 2:00 p.m. Addendum 3 also contained modifications, explanations and corrections to the original drawings and specifications which impacted the cost and scope of the project. Immediately above the signature line on the cover page of Addendum 3 was the following: This document must be returned in it's [sic] entirety with the bid. Please sign below to verify that you have read and understand all the changes. Item 2 on page ADD-1 of Addendum 3 required each bidder to submit its per unit price structure with its response to the ITB and provided, in pertinent part, as follows: ... The unit price shall not be included in Base Bid. Submit a separate sheet with bid package. The following instructions are given in Paragraph 1(c) of the Instructions to Bidder: NO ERASURES ARE PERMITTED. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids or corrections not initialed will not be tabulated. The instructions are repeated in Paragraph 1 of the General Conditions of the ITB: EXECUTION OF BID: ... No erasures are permitted. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids, or corrections not initialed will not be tabulated. The following is contained as part of the Instructions to Bidder: Failure to complete, sign, seal and return the required documents will result in rejection of your bid. Any questions should be directed to Susan Kuzenka, (305) 761-7460, Purchasing Department, Broward Community College. (Emphasis in the original.) Paragraph 8 of the General Conditions portion of the bid package provided, in pertinent part, as follows: 8. AWARDS. As the best interest of Broward Community College may require, the right is reserved to reject any and all bids and to waive any irregularity in bids received ... On April 9, 1990, Petitioner submitted a bid to Respondent in response to the ITB. Petitioner had received the complete bid package, including all instructions and addenda to the bid package. At the pre-bid conference held March 27, 1990, an employee of Respondent emphasized to the attendees that it was necessary for the bidders to return Addendum 3 in its entirety. Petitioner did not attend the non-mandatory, pre-bid conference. The base bid submitted by Petitioner was $1,085,790.00. The base bid of Double E Construction Co., the next low bidder and the bidder to whom Respondent intends to award the contract, was $1,113,300.00. Petitioner's bid for each of the alternates was lower than that of Double E Construction Co. Petitioner failed to return the entire Addendum 3 as instructed. On page four of the bid package Petitioner acknowledged that it had received Addendum 3, and it signed and returned the cover sheet to Addendum 3 under the language quoted in the foregoing Paragraph 4. Respondent considered this an important requirement because it wanted to prevent a bidder from later claiming that it had not received Addendum 3 or that it had received information different than that contained in Addendum 3. Petitioner made a correction to its bid for Alternate Number 3 found on page 5 of 13 of Petitioner's bid. Petitioner's bid for this alternate was $88,000. In the space for the written amount of the bid, Petitioner's president inserted by hand the words "Eighty-eight Thousand". In the space for the numerical insertion of the bid he initially wrote the sum $125,000 (which was the amount of Petitioner's bid for Alternate 4). He struck through the figure $125,000 and wrote above the stricken figure the figure $88,000. He did not initial his change. Respondent has never accepted changes to price quotations which were not initialed because it is concerned that uninitialed corrections on bids may result in challenges to the integrity of the bid process and may expose its staff to charges of collusion from a disgruntled bidder. Pioneer did not include a unit price structure in its bid as required by Addendum 3. The unit price structure is an informational item that is not separately considered by Respondent to determine the lowest bidder on this project. On April 6, 1990, Petitioner's estimator on this bid telephoned Susan Kuzenka regarding the unit price structure sheet to inquire as to the format that should be followed in submitting the unit price structure. Ms. Kuzenka is named in the Instructions to Bidder as the person in Respondent's purchasing department to whom questions about the bid process should be directed. Petitioner's estimator was told that the unit prices would be required to be submitted by the successful bidder at the pre-construction meeting after the bids were opened, but that the unit price structure need not be submitted with the bid. Petitioner's president verified this information on April 9, 1990, prior to the bid opening, during a telephone conference with the project engineer employed by Respondent for this project. In reliance on the information that was supplied by Respondent's agents, Petitioner did not submit its unit price structure sheet with its bid. Following its examination of all bids, the bid of Petitioner was disqualified on three grounds. The first reason cited by Respondent was that Petitioner failed to return the entire Addendum (3) as required. The second reason was that Petitioner did not initial a correction to a quoted price figure. The third reason was that Petitioner did not include the unit price structure as required in Addendum (3). Petitioner thereafter timely protested its disqualification and the intended award of the contract to Double E Construction Co. Petitioner contends that the reasons cited by Respondent for its disqualification are minor irregularities that should be waived by Respondent. Additionally, Petitioner contends that the third reason should not disqualify it because Petitioner acted in reliance upon the instructions of Respondent's agents in not submitting the unit price structure along with its bid package. This proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Broward Community College, enter a final order which denies the bid protest of Petitioner, Pioneer Contracting, Inc. DONE AND ENTERED this 29th day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer 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 June, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1, 2. 6 and 7 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 10. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings in the last sentence of paragraph 4 are rejected as being unnecessary to the conclusions reached because of the clear instructions contained in Addendum 3. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order. The proposed findings in the last two sentences of paragraph 5 are supported by the evidence, but are not adopted as findings of fact because they are unnecessary to the conclusions reached. All proposed findings of fact submitted on behalf of the Respondent are adopted in material part. Copies furnished: Eric L. Dauber, Esquire Beyer & Dauber Suite 5300 2101 W. Commercial Boulevard Ft. Lauderdale, Florida 33309 James D. Camp III, Counsel Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301 Janet Rickenbacker Director of Purchasing Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301
The Issue The issue for determination in this proceeding is whether a contract for a perimeter security system at Calhoun Correctional Institution and Holmes Correctional Institution should be awarded to Intervenor.
Findings Of Fact On January 19, 1994, Respondent issued an Invitation To Bid, Bid No. 94-INST-6197, the ("ITB"). The ITB requested bidders to submit bids to supply materials for perimeter security systems and to provide training for the installation and maintenance of the systems at Calhoun Correctional Institution and Holmes Correctional Institution. Responsive bids had to include materials and training necessary for Respondent to install and maintain the security systems. Bids had to be filed no later than February 10, 1994. Petitioner and Intervenor submitted bids along with three other bidders in a timely manner. The ITB required bidders to hold a Florida alarm contractor's license. Intervenor does not hold such a license. However, the ITB defines the term "bidder" to include an individual, firm, partner, or corporation. Intervenor's bid contemplated that it will supply the materials required in the ITB. Another company that holds a Florida alarm contractor's license will provide the training required for Respondent to install and maintain the security systems. Intervenor and the other company responded to the ITB as partners in a single bid that provides a single price for all materials and training required by the ITB. Intervenor's bid complies with the terms of the ITB and is responsive. Respondent notified Intervenor of its intent to award the contract to Intervenor as the lowest responsive bidder. Intervenor's bid is approximately $14,000 less than Petitioner's bid. Petitioner is the second lowest bidder. Respondent's interpretation that the ITB allows materials and training to be supplied separately by Intervenor and its partner is a reasonable interpretation that is neither arbitrary nor capricious. The intent and purpose of such an interpretation is to encourage flexibility that may result in savings to the state. The provision of materials and services by separate companies in Intervenor's bid will, in fact, result in substantial savings to the state. The terms of the bid does not create an unfair advantage for Intervenor. The term bidder is defined in the bid documents to include a partner and a corporation. Florida law expressly exempts Intervenor from the requirement for an alarm contractor's license if Intervenor merely supplies materials and does not fabricate or consume the materials in performing the work of a contractor. Section 489.503(10), Florida Statutes. Therefore, only Intervenor's partner is required to hold an alarm contractor's license, and, in fact, Intervenor's partner holds the requisite license. Respondent's interpretation of the ITB is consistent with applicable law. Any other interpretation of the ITB by Respondent would have purported to impose a stricter licensing requirement than that imposed by the legislature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of April, 1994. DANIEL MANRY 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 26th day of April, 1994. APPENDIX Petitioner's Proposed Findings of Fact 1.-5., 7-8. Accepted in substance 6. Irrelevant and immaterial Rejected as recited testimony Accepted in substance 11.-13. Rejected for the factual and legal reasons stated in the Recommended Order Respondent's Proposed Findings of Fact All of Respondent's proposed findings of fact are accepted in substance. COPIES FURNISHED: Beth Atchison, Esquire Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Teresa Hurtado Schaefer, CEO FSM, Inc. 3559 S. W. 69th Way Miramar, FL 33023 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Michael G. Kanche, Jr. Southwest Microwave 2922 South Rosevelt Street Tempe, Arizona 85282-2042
The Issue Whether the Department acted illegally, arbitrarily, dishonestly, or fraudulently when it rejected all of the bids submitted in response to Invitation to Bid No. 97-023-OR. See Section 120.57(3), Florida Statutes (1997).
Findings Of Fact Petitioner ABS is an authorized dealer for Neopost, a manufacturer of mailing equipment. Petitioner is also a Certified Minority Business Enterprise, pursuant to Chapter 287, Florida Statutes. Prior to the subject Invitation to Bid, the Department issued a similar Invitation to Bid. That bid was initially awarded to Pitney Bowes, Inc., but Pitney Bowes, Inc., was unable to meet delivery requirements of that bid, and the Department decided to re-bid. The Department issued the subject ITB No. 97-023-OR on March 10, 1997. Pursuant to its terms, the bid opening was held on April 29, 1997. The subject ITB provides, in pertinent part, as follows: At page 3 of 11 MANDATORY REQUIREMENTS The state has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must", or "will" (except to indicate simple futurity) in this Invitation to Bid/Request for Purchase indicates a requirement or condition from which a material deviation may not be waived by the State. The words "should", or "may" in this /Request for Purchase to Bid [sic] indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (emphasis supplied) At page 6 of 11 MANUFACTURER REPRESENTATIVE Bidder must provide proof of authorized dealership for equipment specified and the beginning and ending term of authorization. (emphasis supplied) SERVICE . . . Service is to be provided direct from the manufacturer. Third party service is acceptable only if it may be demonstrated that the location that is to provide the service can demonstrate 36 months experience in servicing the model proposed. Failure to receive this certification will be sufficient cause for rejection of this bid. (emphasis supplied) The manual signature of Ms. Klusmeier on ABS's April 1997 Bid certified that the bid was in compliance with all requirements of the ITB, "including but not limited to, certification requirements." ABS is not a manufacturer of the mailing equipment it bid. In its Bid, ABS enclosed a certificate issued by the Department's Minority Business Advocacy and Assistance Office certifying that ABS was a Minority Business Enterprise (MBE) under the provisions of Chapter 287, Florida Statutes. However, ABS failed to specifically include proof of authorized dealership for the equipment specified with its bid. At all times material, the Department's MBE office had a copy of ABS' manufacturer-dealer agreement with Neopost (the manufacturer) and an ABS catalogue displaying all the Neopost bid items and stating that ABS is an authorized dealer for Neopost. However, this information was not part of the subject bid response package. Rather, it had been previously submitted by ABS to obtain MBE certification. It was not re-submitted as part of ABS' ITB response package. ABS has manufacturer's (Neopost's) authorized service centers in Florida. ABS intended that ABS and another authorized dealer would provide service in the State of Florida for the equipment it bid. However, ABS failed to include with its Bid a demonstration that either ABS or the other dealer had a minimum of 36 months' experience servicing the Neopost equipment. The November 1996 ITB had requested the same manufacturer and service information as the subject April 1997 ITB, and ABS responded in the same way to both ITB's. ABS was not ruled unresponsive in November 1996 on that basis. In April 1997, ABS also initially was treated as a responsive bidder. On May 1, 1997, the only two bids (ABS and Pitney Bowes, Inc.) were opened by one of the Department's Purchasing Specialists, Oradell Rollins. The Department posted its intent to award the bid to ABS. On May 5, 1997, Pitney Bowes, Inc., the only other bidder for the subject ITB, filed a timely Notice of Intent to Protest with the Department. Pitney Bowes, Inc., is a manufacturer and bidder which services its own products. The Department's Purchasing Office has never established a pattern of accepting an MBE Certificate in lieu of specified bid elements. The Department afforded Pitney Bowes, Inc., an informal protest procedure without notification to, or participation by, ABS. On May 16, 1997, upon request from the Department's Director of Purchasing, ABS immediately forwarded a letter to the Department from Neopost advising that ABS was an authorized Neopost dealer; that ABS and others had been certified by the manufacturer to service the mailing equipment ABS had bid for the subject ITB; and that ABS had been servicing Neopost equipment for more than 36 months. Ms. Rollins had previously requested this information just after bids were opened but had not indicated it was urgent. This type of information is not normally requested after bid opening. The Department's Purchasing Office considered waiving the missing information because its personnel had dealt satisfactorily with ABS on other contracts for a number of years, but such waiver is not the Department's usual procedure. On May 15, 1997, Pitney Bowes, Inc., timely filed with the Department its Formal Written Protest. Petitioner faults this letter's recitation that the Pitney Bowes, Inc., representative saw the alleged flaws in the ABS bid on the day that bids were opened. Petitioner proved that the Pitney Bowes, Inc., representative could not have seen ABS's bid on the day of the bid opening, but the same information could have been derived subsequently. Pitney Bowes' April 1997, Notice of Protest is not in evidence for comparison with its Formal Written Protest. No nefarious dealings or collusion necessarily flows from the foregoing findings of fact. Based upon a review of the Formal Written Protest of Pitney Bowes, Inc., and upon advice of the Department's General Counsel, the Department determined that ABS's bid on the subject 1997 ITB was, in fact, nonresponsive because, when opened, it had failed to contain "proof of authorized dealership," and also had failed to include the required "certification" on "Third Party Service." On May 22, 1997, the Department sent a letter to ABS advising ABS of the Department's decision and further advising that the Department intended to re-bid for the equipment. ABS received the Department's letter on May 27, 1997. The Department's decision to re-bid instead of to award to Pitney Bowes, Inc., was in part determined by its desire to avoid situations in which there is only one responsive bidder. It was also influenced by Departmental concerns that the Pitney Bowes, Inc., bid was much higher than the disqualified ABS bid. Departmental personnel believed that a re-bid would secure a lower cost to the Department. ABS timely filed its Notice of Intent to Protest and its Formal Written Protest. Pitney Bowes, Inc. was given notice of the referral of Petitioner's protest to the Division of Administrative Hearings and chose not to intervene. ABS established that it currently provides mailing equipment for the Department all over the State of Florida and that it coordinates service for that equipment through a Neopost network in all those locations. However, ABS did not establish that it has provided or serviced exactly the same type of equipment for the Department at each of these locations, as ABS bid in April 1997. Over time, ABS has dealt with Purchasing Specialist Oradell Rollins on these other Departmental Contracts. Prior to the subject 1997 bid opening, Mr. Bowls, ABS's "Neopost Government Specialist," had informed her that ABS covered the State of Florida for Neopost. Ms. Rollins had received an ABS catalogue and ABS's MBE Certificate in connection with ongoing business prior to the April 1997 bid opening. ABS does not perceive that ABS using other dealers certified by the manufacturer (Neopost) constitutes ABS using "Third Party" service agents, nor does ABS consider itself to be a "Third Party," as that term is used in the subject ITB. However, the Department has consistently interpreted "Third Parties" to include any dealers who are not simultaneously manufacturers and bidders, and its ITBs require bidders who are not also manufacturers to demonstrate within their Bid that each service location is certified and has 36 months' experience at the time of bid opening.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a Final Order dismissing the protest of American Business Systems and establishing a time frame in which its Invitation to Bid may be relet. RECOMMENDED this 24th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 24th day of September, 1997. COPIES FURNISHED: Linda Klusmeier, Qualified Representative American Business Systems 8638 Phillips Highway, Room 12 Jacksonville, Florida 32256 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, South East 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, South East 303 Hartman Building Tallahassee, Florida 32399-2152
Findings Of Fact The invitation to bid on state Project Nos. 86906-9093, 86906-9094, and 86906-9085 (the "ITB") contained, among other things, 43 pages of Technical Specifications Roadside and Slope Mowing ("Technical Specifications"). Paragraph VI.A. of the Technical Specifications contained the following provision: When mowing areas within ten feet of the travel way, the equipment shall be operated in the direction of the traffic. This provision does not apply when the specific worksite (sic) is protected in accordance with the Florida Department of Transportation Roadway and Traffic Design standards [attached]. 3/ Respondent amended the ITB by letter dated May 1, 1990, which contained Addendum Nos. 1 and 2. Addendum No. 1 amended the invitations to bid on State Project Nos. 86906-9093 and 86906-9094 by deleting the "last" word "attached" from Paragraph VI.A. Addendum No. 2 amended the invitations to bid on State Project No. 86906-9085 by deleting the "last" word "attached" from Paragraph VI.A. No other changes were made in the amendments to the invitations to bid on the three state projects at issue in this proceeding ("Amended ITB"). The ITB contained a requirement that all bidders attend a Mandatory Pre-Bid Conference to allow bidders an opportunity to speak to Respondent's maintenance engineers about any concerns over the ITB. Petitioner attended the Mandatory Pre-Bid Conference conducted on April 26, 1990, for the ITB. 4/ The ITB and the Amended ITB contained a requirement that each bidder visually inspect the roadside areas to be mowed. Petitioner knew of the requirement for visual inspection and complied with that requirement. Petitioner had previous experience in mowing roadside areas for Respondent. The Florida Department of Transportation Roadway and Traffic Design standards ("Standards Index") was not attached to either the ITB or the Amended ITB. Paragraph 9 of the General District Contract Specifications provided that the successful bidder "...shall adhere to the requirements of Part VI of the Manual on Uniform Traffic Control Devices ("MUTCD")." Neither the ITB nor the Amended ITB included a copy of either the MUTCD or Part VI of the MUTCD. Petitioner received the ITB on April 12, 1990, and requested a copy of the Standards Index at that time from Teresa Martin, Assistant District Contracts Administrator, District Four, Florida Department of Transportation. Ms. Martin advised Petitioner on April 12, 1990, that no copies of the Standards Index were available locally and further advised Petitioner of the location and means for obtaining a copy of the Standards Index in Tallahassee, Florida. Petitioner made no attempt to obtain a copy of the Standards Index at that time. Petitioner again requested a copy of the Standards Index from Ms. Martin on May 2, 1990, and was advised again at that time of the location and means of obtaining a copy of the Standards Index. The bid package did not fail to contain any "plan" referred to in: Section 4, Scope of Work, paragraphs 4.1 and 4.2; Section 5, Control of the Work, paragraph 5.2; Section 12, Work Assignment and Planning for Routine Contract Maintenance, paragraphs 2 and 4-6, page 5, paragraph 1.2, page 20, Section II D., III A., page 24, Section IX, and page 64, Proposal. Petitioner presented no evidence or authority describing the applicable standard for defining a "plan". The ITB and Amended ITB contain a description of which roadsides are to be mowed, the manner in which the work should be performed, each pay item and the quantity estimated for each item, the estimated number of mowing cycles, and numerous other detailed provisions regarding mowing operations, operator safety, equipment maintenance, and conversion charts. While the ITB and Amended ITB are standard forms of contract issued by the Department of General Services, they are tailored to meet the specific needs of a mowing contract by means of the Technical Specifications. In the absence of evidence or authority to the contrary from Petitioner, the ITB and Amended ITB are found to include all relevant plans. Respondent failed to include either the "form of Contract" or "Bond" referred to in pages 1, 10, and 64 of the ITB and Amended ITB. Page 64 contained a form of bid proposal which required each bidder to sign a statement that the bidder had "...carefully and to [its] satisfaction examined the...form of Contract and Bond.. The ITB and Amended ITB did not fail to state standards for what is "customary to the mowing operation". The ITB and Amended ITB were prepared on a standard form of contract issued by the Department of General Services and used by Respondent to solicit bids for various types of commodities and services. The ITB and Amended ITB were used to solicit mowing services for specified roadside areas In Broward County, Florida. They were composed of general specifications, bidding documents, technical specifications, and mowing guidelines. The term "custom" by definition refers to the prevailing practice that has been established over time within a geographical area rather than the written terms of a contract. 5/ The definition of grass or vegetated roadside areas to be mowed, which is set forth in Section I, Description A, page 19, excludes certain plants and vines which are present in the areas to be mowed. 6/ Such a definition does not take into account the different toughness and clumping characteristics of each type of grass or weed within the mowing area. Differences in toughness and clumping characteristics of grasses and weeds can adversely alter the uniformity of cutting height. The Technical specifications neither define the term "routine mowing", as used in Sections II.D. and III.A., nor prescribe how high grass or weeds should be allowed to grow before Respondent issues a work order or a notice to proceed. Grass, weeds, plants, and vines in a roadside area that are left for several months without a work order being issued can grow to a height of 10 feet, develop very hard stems, or lay down during mowing and later rebound. The Technical Specifications do not contain a definition of minimum mower size. The frequency with which Respondent issues work orders or notices to proceed depends on growth conditions in the particular roadside area including rain and drought. The topography of the roadside areas to be mowed includes holes, boulders, and un-repaired washouts. The topographical characteristics of the roadside areas and the toughness and clumping characteristics of the grasses and weeds in the roadside areas adversely affect the ability of a successful bidder to comply with cutting height and green streak requirements in the Technical Specifications. 7/ The ITB and Amended ITB were neither arbitrary, capricious, nor beyond Respondent's discretion. The terms of the ITB and Amended ITB were not inherently uncertain or unreasonable. No evidence was presented that Respondent abused its discretion in soliciting the bids, that the accepted bid, if any, was not a reasonable price for the work solicited, that the law was not complied with, or that the contract to be awarded was not fair and capable of just and lawful enforcement. The ITB and Amended ITB were sufficiently precise to protect the public against collusive contracts, prevent favoritism toward contractors, and secure fair competition upon equal terms to all bidders. The ITB and Amended ITB afforded a basis for an exact comparison of bids among all bidders and did not reserve to an officer of the public body the power to make exceptions, releases, and modifications that would afford opportunities for favoritism after the contract is let.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of August, 1990. DANIEL MANRY 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 3rd day of August, 1990.
Findings Of Fact Respondent, through its Invitation to Bid (ITB) No. 123-395-98-C Rebid, seeks to award a 12-month contract for, the purchase of electronic data processing cards. Bids were opened on November 10, 1981, at which time Petitioner was the apparent low bidder. However, Respondent disqualified Petitioner's bid because Data Specialties Mart did not have a corporate charter number and had no manufacturing capability on the bid opening date. S. F. Holdings, Inc., is a Florida corporation, Charter No. 637983. Data Specialties Mart is a division of this corporation and has been assigned Vendor No. 00417 by Respondent. Confusion over Petitioner's identity arose from the section on Respondent's ITB where the vendor name is to be entered. Petitioner placed the name "Data Specialties Mart, Inc.," (non-existent as a corporation) in this block. Petitioner did, however, enter the S. F. Holdings, Inc., charter number and the Data Specialties Mart vendor number in adjacent blocks. A letter attached to the bid describes Data Specialties Mart as a marketing division of S. F. Holdings, Inc. Although this letter did not have as its purpose correction of the above error, it did provide the clarification Respondent should have sought. Furthermore, this relatively minor discrepancy could have been resolved through contact with the Petitioner. Petitioner stated by letter dated November 9, 1981, (attached to its bid) that "The cards will be produced through our Lakeland, Florida manufacturing facilities (formally [sic] known as National Electronics Computing Supplies, Inc.)." Respondent investigated the claimed ownership and determined that Petitioner did not possess the manufacturing facility on the bid opening date, November 10, 1981, as represented. Petitioner's president, who signed the letter, believed he would acquire the facility at a November 16, 1981, bankruptcy proceeding and thus claimed the facility for bid purposes. Although Petitioner did acquire the factory as anticipated, it possessed no manufacturing capability on the bid opening date.
Recommendation From the foregoing, it is RECOMMENDED that Respondent enter a final order dismissing the petition. DONE and ENTERED this 11th day of February, 1982, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1982. COPIES FURNISHED: Dean Bunch, Esquire Ervin, Varn, Jacobs, Odom and Kitchen Post Office Box 1170 Tallahassee, Florida 32302 William P. Beck, Esquire Department of General Services 457 Larson Building Tallahassee, Florida 32301 Thomas R. Brown, Executive Director Department of General Services Room 115, Larson Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's bid was responsive to the Department of Health and Rehabilitative Services' Invitation to Bid 590:2248 for lease space in Lake County, Florida.
Findings Of Fact Department of Health and Rehabilitative Services issued its Invitation to Bid (ITB) No. 590:2248 for lease space in Lake County, Florida. The ITB contained bidder specifications, evaluation criteria and documentation requirements. Petitioner Kevin T. Roberts submitted a bid within the time limits of the ITB. Petitioner Roberts attended a pre-bid conference conducted by HRS. In its ITB, HRS reserved the right to reject any and all bids. The ITB required that the bid must show control of the property by the owner of record, a lease with documentation, an option to purchase with documentation, or an option to lease with authority to sublease with documentation. The ITB required that the successful bidder enter into a lease with HRS on the lease form attached to the ITB as Attachment E (Joint Exhibit 1). This lease form required exclusive-use parking spaces. The ITB required a minimum of 300 parking spaces. Petitioner was present at the pre-bid conference where the exclusive nature of parking spaces required by the bid was discussed. Petitioner's bid contains 30 exclusive-use parking spaces. The site plan of the Lake Hills Shopping Center submitted with Roberts' bid shows a total of 378 parking spaces for the entire shopping center. Approximately one-half of the space in the center is included in the bid proposal. The available parking spaces are insufficient to meet the minimum requirements of the ITB. The shopping center involved in the bid proposal has approximately 40,000 square feet of lease space which was not included in the bid proposal. Diamondhead Partnership is a partnership under the laws of the State of Florida, and Kevin T. Roberts and Thomas E. Smith are the general partners of the partnership. Diamondhead Partnership holds an option to lease and authority to sublease 45,000 square feet of the commercial space located in the Lake Hills Shopping Center. Kevin T. Roberts submitted a bid proposal in his individual name for 45,000 square feet of commercial space located in the Lake Hills Shopping Center in Eustis, Lake County, Florida. The documentation to show control of the property filed by Roberts with his bid contained a copy of Diamondhead Partnership's lease option. Thomas E. Smith, the other general partner in Diamondhead Partnership, submitted a bid proposal in his individual name for the same 45,000 square feet of commercial space located in the Lake Hills Shopping Center in Eustis, Lake County, Florida, and relied on the same copy of Diamondhead Partnership's lease option. Kevin T. Roberts does not have control of the property that is the subject of his bid proposal. The ITB requires that the name of the entity submitting the bid be identified and, if a partnership, that the name of the partnership be typed or stamped on the bid. Further, Roberts used his personal social security number on his bid and not the partnership's tax ID number. The ITB requires the social security number or tax ID number of the entity submitting the bid. Diamondhead Partnership, the entity with control of the property, did not file a bid in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order rejecting the bid of Kevin T. Roberts as nonresponsive to ITB 590:2248. DONE and ENTERED this 28th day of January, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 January, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3-17(2-16); and 19(19) Proposed findings of fact 2 and 18 are irrelevant. COPIES FURNISHED: Frances S. Childers, Assistant Counsel HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Joe A. McClain, Attorney at Law McClain, Dwyer & Sestak, P.A. Post Office Box 4 402 East Church Avenue Dade City, FL 33526 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue This case concerns a challenge to the validity of Rules 13A-1.001(12), 13A- 1.002(1)(b) and 13A-1.002(3) , Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.
Findings Of Fact In the fall of 1988, the State of Florida, Department of Transportation (DOT) put out a Request for Proposals (RFP) as RFP-DOT-88-0l. Through this RFP the agency sought to acquire a new barrier and ticket toll collection system which would automate the toll collection operations and retrieval of audit data, having in mind increased reliability and performance. The project is principally one which envisions the purchase of commodities. It has an associated service component. Section 287.062(1)(e), Florida Statutes together with Section 287.073(3), Florida Statutes, established the basic authority for the award of RFP-DOT-88-01. The agency received responses in March, 1989, from three companies. The offerors were Petitioner and Intervenor and one other concern. The other company was AGS Informations, Inc. (AGS). Following evaluation DOT determined on May 18, 1989 to reject the Intervenor's proposal as nonresponsive. This rejection was followed by the Intervenor's notice of protest on Nay 25, 1989. A formal written protest was made on June 6, 1989. On July 31, 1989, Intervenor filed a notice of voluntarily dismissal of the formal written protest. This was addressed by the DOT final order of August 2, 1989 which dismissed the formal written protest. On November 21, 1989, DOT posted its intent to award a contract to Petitioner. This statement of intent to award was met by a notice of protest filed by Intervenor on November 27, 1989, followed by a formal written protest on December 6, 1989. The case was sent to the Division of Administrative Hearings for consideration and through response to a motion to dismiss the Hearing Officer in that case, DOAH Case NO. 89-6926B1D, entered a recommended order of dismissal. On January 22, 1990 DOT entered a final order dismissing Intervenor's petition and stating its intent to award the contract to Petitioner. An amendment to the January 22, 1990 order was made on February 21, 1990 reminding all concerned that the contract award was subject to review and approval by the Governor and Cabinet sitting as the State of Florida, Department of General Services to decide the propriety of the subject purchase which was an information technology resources purchase under Section 287.073, Florida Statutes. On February 21, 1990, DOT sent notice to the three offerors that it was rejecting all proposals submitted. As described in the notice of agency decision, DOT was operating on the basis that a further review of the proposals revealed that the proposals by AGS and Intervenor were nonresponsive. It went on to say that to have competitive offerors there must be two or more offers submitted by responsive and qualified offerors. In this instance DOT felt that it did not have two acceptable proposals and did not have a competitive offer. Because the commodities sought were available from more than one source, it had decided to withdraw its notice of intent to award which was contingent upon the approval of the Governor and Cabinet. On February 27, 1990, Petitioner gave a notice of protest of the DOT decision to reject all bids. This was followed by a formal written protest on March 9, 1990. Although the decision to reject all proposals was not opposed by Intervenor, the motion by the Intervenor to intervene in DOAH Case No. 90- 1583BID was granted allowing limited participation in support of the DOT decision to reject all proposals. That outcome tended to create the opportunity for Intervenor to participate in any re-advertisement for proposals. As revealed in the final hearing in DOAH Case No. 90-1583BID, DOT utilizes Chapter 13A, Florida Administrative Code, in the procurement process. Intervenor participated in the final hearing in DOAH Case NO. 90- 1583BID. The DOT decision to reject all proposals in which reliance upon the rules under challenge are perceived to support that decision has an adverse impact on Petitioner. By that arrangement Petitioner loses the opportunity for the contract. Additionally, it is placed in a disadvantaged position in that the particulars of its method of responding to the RFP have been revealed and are now known to the competitors who might be expected to utilize that information in a setting where a re-advertisement takes place. Under the circumstances, Petitioner filed its challenge to the existing rule on March 28, 1990. Intervenor sought the opportunity to intervene in this case on April 4, 1990, and that opportunity was granted on April 6, 1990. Intervenor intends to participate in any re-advertisements of the RFP. In his testimony at hearing William Monroe, Director of the Division of Purchasing for Respondent, established that in governmental purchasing the terms "offers" and "proposals" are synonymous. This opinion is accepted. Mr. Monroe also established that Respondent believed that it was implementing Section 287.012(15), Florida Statutes, when promulgating Rule 13A- 1.001(12), Florida Administrative Code. Through the promulgation of Rules 13A- 1.002(1)(b), and 13A-1.002(3), Florida Administrative Code, Respondent believed that it was implementing Section 287.062, Florida Statutes. Respondent interprets Section 287.062, Florida Statutes, to require an agency making a commodity purchase to use competitive sealed proposals in instances where invitations to bid are not used. Mr. Monroe in speaking for Respondent indicated that this interpretation gained support from the language set out in Section 287.001, Florida Statutes. According to Mr. Monroe the circumstance in which less than two responsive and qualified offerors respond to an RFP is one in which the procuring agency must reject all proposals or seek the approval from Respondent to negotiate with the one responsive offeror or where no responsive offerors were received to negotiate with someone whom the agency has chosen. Likewise, a sole source purchase negotiation must be approved by Respondent. Mr. Monroe's testimony, in speaking for Respondent, indicates that Respondent interprets the terminology within Section 287.062(2), Florida Statutes, "no competitive" to modify the words "bids" and "proposals." Thus, it is incumbent upon an agency to receive authority to negotiate in those instances where it receives less than two proposals submitted by responsive and qualified offerors who are responding to a RFP in acquiring commodities.
Findings Of Fact Facts based on stipulation These proceedings concern Petitioner's Bid Protest in connection with that certain project known as Chiller Installation, Glades Campus, Project NO. 9237, PBCC No. 6812. Petitioner has taken all steps necessary to perfect its bid protest in a timely manner and has standing to bring this bid protest. Petitioner and Respondent met and were unsuccessful in an attempt to resolve the bid protest as required by Section 120.53(5), Florida Statutes. M. K. Mechanical, Inc., a Florida corporation, is a State of Florida Certified Mechanical Contractor and as such was a "Qualified Bidder." The original specifications for the subject project contained few electrical specifications and were silent as to how an electrical contractor was to be licensed. The bid was due on Tuesday, January 12, 1993, at 2:00 p.m. On Friday, January 8, 1993, at 3:42 p.m., via facsimile transmission, M. K. Mechanical, Inc., received supplementary electrical specifications, thirty (30) pages in length. Contained in these supplementary specifications, for the first time, was a requirement that the electrical subcontractor had to be "locally" licensed. M. K. Mechanical, Inc.'s, primary place of business is in Edgewater, Volusia County, Florida. M. K. Mechanical, Inc.'s, submitted bid was proper in all respects other than an electrical subcontractor's name was not given, instead "to be determined" was inserted. M. K. Mechanical, Inc., submitted the lowest bid. Electrical subcontractor is a "major" subcontractor on this project. The sole basis for the decision by Respondent that Petitioner's bid was "non-responsive" was the failure to list an electrical subcontractor. Additional facts regarding bid specifications The bid specifications include the requirement that bidders list all "major subcontractors" and that the category of "major subcontractors" includes electrical subcontractors. Section 5.2.1 of the Contract Documents within the Bid Specifications provides as follows: Unless otherwise required by the Contract Documents or the Bidding Documents the Contractor at the bid opening shall furnish to the Owner and Architect Form 00420, a written list of the major Subcontractors; Site Utilities, Structural Concrete, Masonry, Structural Steel & Steel Joists, Plumbing, HVAC, Electrical and Roofing, who he proposes to use on this work.
Recommendation On the basis of all the foregoing, it is RECOMMENDED that Palm Beach Community College enter a Final Order in this case denying the protest of the Petitioner, M. K. Mechanical, Inc., and awarding the contract in Project No. 9237, PBCC No. 6812 to the Intervenor, Hill York Corporation. DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of July, 1993. COPIES FURNISHED: Sid C. Peterson, Jr., Esquire DeLoach & Peterson, P.A. Post Office Box 428 New Smyrna Beach, Florida 33170 James M. Adams, Esquire Gibson & Adams, P.A. Post Office Box 1629 West Palm Beach, Florida 33402 Herbert L. Dell, President Hill York Corporation Post Office Box 350155 Fort Lauderdale, Florida 33335 The District Board of Trustees Palm Beach Community College 4200 Congress Avenue Administration Building Lake Worth, Florida 33461 Attention: Mr. Dick Jones
Findings Of Fact Respondent (DHRS) published a Request for Proposals (RFP) for Medicaid transportation services on May 24, 1985. The RFP identified five transportation categories which would be the subject of the contract awarded the successful bidder. In response to the RFP, Petitioner (B & L Services) and Intervenor Friendly Checker Cab. Co. (Friendly) were the only entities to submit bid proposals. Friendly's response to the instant RFP was rated superior to the B & L proposal by the DHRS bid evaluation committee. The committee further recommended to the DHRS District Administrator that Friendly be awarded the contract. As noted, there were five categories of transportation involved in the current RFP. Friendly's bid was roughly equivalent to that of B & L Services' bid for both intracounty and intercounty non-emergency ambulance/stretcher service (one category) based on anticipated mileage. Because the RFP called for a "fixed price per unit of transportation" and because a "unit is defined as a one-way trip," (See RFP I.E.) it is questionable whether this portion of Friendly's bid was in compliance with the RFP. Friendly's bid was lowest for demand- responsive ambulatory transportation (more than 24 hour notice category) and demand- responsive ambulatory transportation (less than 24 hour notice category) whether or not the transportation to be provided was intercounty or intracounty. Friendly was lowest bidder for demand-responsive wheelchair transportation (more than 24 hour notice category) and for demand-responsive wheelchair transportation (less than 24 hour notice category) if the transportation was intracounty but B & L Services was low bidder for intercounty transportation in these last two categories. The RFP required that potential bidders possess a Medicaid Provider Number. B & L Services possessed such a number. Friendly also was an approved Medicaid provider and possessed a Medicaid Provider Number prior to submitting its proposal in response to the RFP, although Robert J. Siedlecki individually, did not. Robert J. Siedlecki purchased the entity known as Friendly Checker Cab and its trade name in 1978. At the time of the submission of the current bid proposals Siedlecki was operating Friendly as a sort-of one man show which he characterized as a "sole proprietorship" . There is only uncorroborated hearsay testimony that during the course of the preliminary informal bid resolution process, the Office of the Secretary of State verified to Vera Scharitt contract manager for DHRS; that Friendly Checker Cab Co. was "re-established" as a corporation on July 16, 1985. (After contract inception date). Accordingly there was established no limitation on Mr. Siedlecki's personal liability. Most of the bid evaluation committee members who testified erroneously believed they were rating a corporation when they rated the Friendly bid proposal because of the word/symbol "Co." Petitioner contended that this status of Friendly and interrelationship of Friendly to other business entities of which Robert J. Siedlecki is a principal constituted sufficient camouflaging of interests to render Friendly an unresponsive bidder. Prior to the RFP in question, both B & L Services and Friendly had provided transportation services to DHRS pursuant to contract. The preceding year; Friendly had submitted a proposal in response to an RFP similar to the RFP in question. Robert J. Siedlecki submitted that former bid as Friendly for the category of ambulatory transportation in the same manner in which he submitted his proposal for Friendly for the five category contract under consideration herein, except that the present Friendly bid title page utilizes the trade name "Friendly Checker Taxis Company", another trade name owned by Mr. Siedlecki and the document agreeing to contract specifications and requirements lists "Friendly Checker Taxicabs Co." The record is silent as to what "Friendly Checker Taxicabs Co." may bed but Mr. Siedlecki also owns it and the trade name of "Friendly Checker Cab. Co., Inc." which he stated is a corporation. The use of a different entity's name on the title page of the current Friendly bid proposal is characterized by Mr. Siedlecki as a "typographical error," because at his office they use these names interchangeably. In fact, although inadvertent and for no ulterior purpose; the interchangeable use of several different entity names throughout Friendly's bid proposal constitutes a material error which may have contributed to confusion of the bid evaluation committee over the identity and capability of the true bidder. The prior year; Friendly was awarded and provided the ambulatory transportation category of a similar contract. That award and the award of other categories to B & L Services in response to the prior year's RFP were apparently made category by category within the same five categories as were covered by the present RFP. B & L Services contends that the bid evaluation committee members were misled with regard to the present proposals by use of only one rating sheet per each bidder as opposed to one rating sheet per bidder per category bid on. The current RFP provided that: "III.D. . . .Proposers may submit a proposal for one or more types of services stated in this RFP" (RFP pp.2-3) and "V.C.4. . . .Proposers may submit a proposal for one or more types of service stated and must specify whether the cost is for countywide services, only, intercounty services only, or both." (RFP p.8) However, the current bid evaluation committee members who testified all erroneously believed a single contract for all five categories was intended. Only the non-voting contract manager testified otherwise. The rating sheet misled the committee in its established award procedure. Allegations of interrelationships between Intervenor Friendly and other business entities controlled by Mr. Siedlecki, such as "S & M," "Kinko Elevator," and "B & L Operating Co." (not to be confused with Petitioner B & L Services Inc.) were not established as camouflaging or confusing the identity of the true bidder. Paragraph L. of the RFP required that the original of all bid proposal responses be signed by an "official of the organization submitting the proposal who is authorized to bind the service operator to their proposal" (RFP page 6). Friendly's bid proposal title page indicates "Friendly Checker Taxi Company" with "Inquiries Coordinator Robert J. Siedlecki President," and "Project Director Karen Caputo." Robert J. Siedlecki testified that within Friendly's bid proposal response documents, he signed the page requiring acceptance of contract terms and conditions as Robert J. Siedlecki, individually. This document bears his signature with no title. He also testified that he signed the affidavit of non- involvement in any feasibility study of the implementation of the subject contract as Robert J. Siedlecki, individually. This document bears his signature with no title. He also testified that he signed the certificate of self-insurance as Taxi, Inc.'s self insurance fund administrator. This document refers to "Friendly Checker Taxi" with his signature as "administrator." The administrative assessment documents refer to "Friendly Checker Cab Co." with Robert J. Siedlecki as "director." He testified that he signed the financial statement as Robert J. Siedlecki as President of Friendly Checker Cab, Co. and this testimony is confirmed on the document itself. He testified that he signed the document agreeing to all specifications and requirements of the contract as Robert J. Siedlecki, individually. That document refers to "Friendly Checker Taxicab, Co." and is signed by Mr. Siedlecki with no title. All these documents were required by the RFP and their completion resulted in the higher rating for Friendly's proposal. However, rationalizations within the internal workings of Mr. Siedlecki's mind of when he is an official of different entities and when he is an individual is not easily discernible from the actual bid documents. These rationalizations affected full disclosure required by the RFP and contributed to confusion of the bid evaluation committee members as to the identity, nature, and capability of the true bidder. Concerning financial statements; the RFP required providers to: "V.D.4. Submit a copy of the most recent financial statement. A Certified Public Audit is preferred." (RFP p.8). B & L Services' financial statement in its current bid proposal was dated December 31, 1983. Its coversheet is dated March 12, 1984 and purports to be signed by a firm of certified public accountants. This coversheet is actually a statement that the March 12, 1984 compilation relies on representations of B & L Services' management. (Petitioner B & L Services). It may be B & L Services' "most recent" financial statement, but this "compilation" does not constitute a certified public accountant's unqualified opinion let alone a "certified statement" or "certified public audit" within certified public accounting standards. Friendly's financial statement submitted with its current bid proposal likewise was not a certified public audit but was dated May 15, 1985 and was verified by Robert J. Siedlecki as President of Friendly on June 19, 1985, and thus was more current than the financial statement of B & L Services. The Friendly financial statement seemingly contains all information associated with Friendly's operations, but does not contain all details of Robert J. Siedlecki's personal and individual assets and liabilities. As a result, the Friendly financial statement is substantially defective and misleading for a sole proprietorship. This defect is particularly significant in misstating Friendly's financial status in the instant case because Mr. Siedlecki individually is involved in other business dealings and litigation which could affect his personal liquidity and thus the capability of Friendly to perform the DHRS contract. B & L Services' response to the current RFP did not include an acceptance of responsibility statement nor a completed administrative assessment checklist, both of which were required by the RFP and failure of B & L Services to include each constituted a material and substantial noncompliance with the RFP. Friendly's response to the current RFP did include a completed administrative assessment. It also included an acceptance of responsibility statement which materially complied with the RFP in all other respects except concerning identity and capability of the true bidder as reflected in Finding of Fact 12, above. The current RFP called for five categories of transportation services. Intercounty transportation requirements (involving transportation portal to portal through three counties) and intracounty transportation requirements (involving transportation between any two points within Broward County) cross category lines. (See Findings of Fact 2 and 5 above). At least two categories of services to be performed under the current contract did not require a Broward County Non-Emergency Medical Transportation (NEMT) license. The RFP permitted the successful bidder to sub-contract for the provisions of services under the contract in question upon the following terms: "III.F. The proposer shall execute with the District X Medicaid Program Office a General Revenue Federal Funds Contract with appropriate attachments which complies with monitoring standards. Said provider may subcontract for provision of transportation services. The provider is responsible for assuring that the subcontractor meets all requirements for participation in the Medicaid Programs abides by the provisions of the contract and meets all state and local licensing requirements." (Emphasis supplied) (RFP pp. 3-4) Friendly, through Robert J. Siedlecki, made its decision to sub-contract the non-emergency transportation categories of the current contract some time around the time the bid was opened by DHRS. No information about subcontracting or subcontractors is apparent from Friendly's bid proposal documents. AAA Wheelchair Wagon Service had been issued a Broward County NEMT license on June 20, 1985, which was one day prior to the submission and opening of bid proposals and prior to the date set for inception of the contract. Prior to the start of the contract Friendly requested and received permission from DHRS to subcontract the wheelchair/stretcher portions of the contract to AAA Wheelchair Wagon Service. Petitioner's Exhibit 7, a 6/14/85 letter from Dr. Martin, Assistant Director Broward County Emergency Services Division, to Mrs. Nancy Porter, a bid evaluation committee member was submitted to the committee for informational purposes so the committee would know what entities were NEMT licensed by Broward County to do non-emergency medical transportation in Broward County. The letter, although vague; represents by elimination, that Friendly and AAA Wheelchair Wagon Service were not licensed on June 14, 1985 by Broward County but B & L Services, Inc. was so-licensed on that date. The RFP provides that: "I.D.6. List vehicles to be used, identifying number and licenses with proof of insurance, listing type and amount of coverage, attaching copies of all current applicable state and local licenses and permits," (RFP page 8) However, neither the DHRS contract manager nor any of the bid evaluation committee members who testified had any knowledge at all of what licenses were required to perform any of the contract's five categories, and none realized that certain licenses which were no longer necessary and/or which were issued to many other Siedlecki-owned entities or to Mr. Siedlecki personally had been attached to Friendly's proposal while B & L Services attached to its proposal its Broward County NEMT license but not its state NEMT license. Some of the 90 employees listed on Friendly's bid proposal should have been indicated as independent contractors instead. Additionally, the insurance compliance documents mention "Friendly Checker Taxi" and, according to Mr. Siedlecki's oral testimony, some of the vehicles listed as Friendly's property were apparently owned by independent dispatch drivers and some by Taxi, Inc., which is yet another entity owned and controlled by Robert J. Siedlecki. These errors result in a material noncompliance of Friendly's proposal with RFP requirement I.D. 6 (RFP page 8). However, the authority of Robert J. Siedlecki as administrator of the Taxi, Inc. Self- Insurance Fund in relation to the number of Taxi, Inc. vehicles listed in the Friendly bid proposal is less than clear from the record and since the burden of proof is upon Petitioner to demonstrate each element of non-compliance and the extent of this non-compliance by competent substantial evidence, no non- compliance arising from alleged criminal violations under Florida Statutes governing the requirements of self insurance funds and their administrators has been adequately demonstrated. The RFP required bidders to: "I.D.3. Submit evaluations of projects similar to the one proposed in the RFP (previous experience is desired but not required)" (RFP p.8). Friendly's bid proposal outlined 20 years of service to the community including service to and from the local airport. B & L Services contends this information is falsified due to Siedlecki's takeover of Friendly as sole proprietor of Friendly in 1978. The competent substantial evidence falls short of establishing deliberate falsification, but in light of the foregoing findings of fact and the sole proprietorship status of Friendly, this portion of the Friendly proposal is materially misleading of the overall experience of Friendly. B & L Services did not present any evidence to show that it was an eligible transportation provider under 10C- 7.45(3)(a) F.A.C. B & L Services presented no evidence to rehabilitate the deficiencies of its proposal and no evidence to show the superiority of its bid over that of Friendly. Pleadings of record indicate Petitioner and Respondent have entered into agreements concerning damages, if any, as part of their stipulations for continuance of the formal hearing but B & L Services presented no evidence of damages incurred by B & L Services as a result of the bid award to Friendly.
