Findings Of Fact On March 17, 1994, the Department issued a request for proposal, RFP- DOT-93/94-9025, for the provision of rest area/welcome station security services for the Department's districts geographically identified as 1, 2, 3, 5, and 7. The request for proposal (RFP) contained instructions to proposers, a scope of services, and attachments. Pursuant to the RFP, sealed technical and price proposals were to be submitted to the Department's headquarters no later than 2:30 p.m., April 20, 1994. The RFP contained the procedure which the Department would follow to evaluate and score competing proposals. Petitioner, Intervenor, and others timely submitted proposals to be evaluated by the Department. After reviewing the proposals, the Department posted its proposed tabulations for each of the districts. This posting, on May 10, 1994, identified the proposer to whom the Department intended to award the contract in each of the districts. Petitioner was ranked first in district 5. The intended award for district 5 is not in dispute. Petitioner was ranked second in districts 1, 2, and 7. Intervenor was ranked first in those districts. Petitioner was ranked third in district 3. Intervenor was ranked first in that district, and another proposer ranked second ahead of Petitioner. On May 13, 1994, Petitioner timely filed a notice of intent to protest the intended awards to Intervenor in districts 1, 2, 3, and 7. Subsequently, Petitioner timely filed the formal written protest which is the subject of this case. During the last week in June, 1994, the Secretary of the Department issued a declaration of emergency pursuant to Section 120.53(5), Florida Statutes, and awarded the contracts notwithstanding the pendency of this case. As a result, before the end of June, 1993, the Department and Intervenor executed contracts for districts 1, 2, 3, and 7; each with a July 1, effective date. The substantial interests of Petitioner are affected by the Department's award to Intervenor of the contracts for districts 1, 2, 3, and 7, as are the interests of Intervenor to support those contracts. Section 1.1 of the RFP defined "proposer" as follows: For the purpose of this document, the term "proposer" means the prime Consultant acting for itself and those individuals, partnerships, firms, or corporations comprising the proposer's team. The term "proposal" means the complete response of the proposer to the request or invitation for proposals, including properly completed forms and supporting documentation. Section 1.7 of the RFP established the "qualifications for consultant services" as follows: General The Department will determine whether the proposer is qualified to perform the services being contracted based upon the Consultant demonstrating in its proposal satisfactory experience and capability in the work area. The proposer shall include the necessary experienced personnel and facilities to support the activities associated with this contract. Qualifications of Key Personnel Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Contract Manager. Authorizations and Licenses The Consultant must be authorized to do business in the State of Florida. Such authorization and/ or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact: Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399 (904)487-6052 Review of Facilities After the proposal due date and prior to contract award, the Department reserves the right to perform or have performed, an on-site review of the proposer's facilities. This review will serve to verify data and representations submitted by the Proposer and to determine whether the proposer has an adequate, qualified, and experienced staff, and can provide overall management facilities. The review will also serve to verify whether the Proposer has finan- cial capability adequate to meet the contract requirements. In the event the Department determines that the size or nature of the proposer's facilities or the number of experienced personnel (including technical staff) are not reasonably adequate to ensure satisfactory contract performance, the Department has the right to reject the proposal. Section 1.8 of the RFP provided: General The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussion of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that the proposal will become a part of the official file on this matter without obligation to the Department. Responsiveness of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non- responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper and/or undated signatures. Multiple Proposals Proposals may be rejected if more than one proposal is received from an individual, firm, partnership, or corporation, or combination thereof, under the same or different names. Such duplicate interest may cause the rejection of all proposals in which such proposer has participated. Subconsultants may appear in more than one proposal. Other Conditions Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership, or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects. Proposal will be rejected if not delivered or received on or before the date and time specified as the due date for submission. Waivers The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers. Section 1.10 of the RFP provided: 1.10 Contractual Obligations The general terms and conditions of any agree- ment between the Department and the selected proposer will be guided by State procedures. Each individual, partnership, firm or corporation that is part of the proposer's team, either by joint venture, or subcontract, will be subject to, and comply with, the contractual requirements. The basic form of Agreement shall be the State of Florida Department of Transportation's Contractual Service Agreement, attached hereto as Attachment II. Section 1.19 of the RFP provided: 1.19 Award of the Contract The Department intends to award the contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department IN EACH DISTRICT. Section 1.21 of the RFP provided: 1.21 Contract Execution The Department and the successful proposer will enter into a contract establishing the obligations of both parties, FOR EACH DISTRICT. Section 1.16.2 of the RFP provided: 1.16.2 Technical Proposal(Part I)(6 copies) (Do not include price information in Part I) The Proposer must submit six (6) copies of the technical proposal which are to be divided into the sections described below. Since the Department will expect all technical proposals to be in this format, failure of the Proposer to follow this outline may result in the rejection of the proposal. The technical proposal must be submitted in a separate sealed package marked "Technical Proposal Number RFP-DOT-93/94-9025." EXECUTIVE SUMMARY The Executive Summary is to be written in non- technical language to summarize the proposer's experience, overall capabilities, and approaches for accomplishing the services specified herein. The proposer is encouraged to limit the summary to no more than ten (10) pages. PROPOSER'S MANAGEMENT PLAN The Proposer shall provide a management plan which explains the approach, capabilities, and means to be used to administer and manage the work. Administration and Management Proposer should include a description of the organizational structure and management style established and the methodology to be used to provide quality services and to maintain schedules; as well as the means of coordination and communication between the organization and the Department. Identification of Key Personnel Project Manager: Provide the name of Project Manager on Proposer's team, as well as a resume. A description of the functions and responsibilities of the person relative to the task to be performed is required. The approximate percent of time to be devoted exclusively for this project and to the assigned tasks also must be indicated. Contract Supervisors: Provide the names and resumes of all supervisors proposed. If you are proposing on more than one District, the number of supervisors should be consistent with the number of Districts being proposed. PROPOSER'S TECHNICAL PLAN Technical Approach This section should explain the approach, capabilities, and means to be used in accomp- lishing the tasks in the Scope of Services for each District. (i.e.; number of security guards, phones, vehicles, backup capabilities for equipment and personnel, etc.) Facility Capabilities A description and location of the proposer's facilities as they currently exist and as they will be employed for the purpose of this work must be identified. Section 1.17 of the RFP provided the criteria for the proposal evaluation. That section provided, in part: Evaluation Process: A Selection Committee, hereinafter referred to as the "Committee", will be established to review and evaluate each proposal submitted in response to this Request for Proposal (RFP). The Committee will be comprised of at least three persons with background, experience, and/or professional credentials in the service area. The Contractual Services Office will distribute to each member of the Committee a copy of each technical proposal. The committee members will independently base their evaluation of each proposal on the same criteria in order to assure that values are uniformly established. The Committee will evaluate each technical proposal on its own merit without compar- ison to proposals submitted by other firms and individuals. The Committee will assign points, utilizing the technical evaluation criteria identi- fied herein and complete a technical summary. * * * During the process of evaluation, the Committee will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. The Committee shall make a determination of the responsibility level of each Proposer. Proposals that are determined to have been submitted by non-responsible Proposers will be so marked. Criteria for Evaluation Technical Proposal Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan, and Technical Plan for understanding of project, qualifications, technical approach and capabilities, to assure a quality product. Price Proposal SEPARATE EVALUATION WILL BE DONE BY EACH DISTRICT PROPOSED Price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider. Price analysis is conducted through the comparison of price quotations submitted FOR EACH DISTRICT. The criteria for price evaluation shall be based upon the following formula: (Low Price/Proposer's Price) x Weighted Price Points = Total Points Point Distribution (Weighted Values) The following point system is established for scoring the proposals: Point Value Technical Proposal 30 Price Proposal 70 Certified Minority Business Enterprise 10 Total Points 110 Borg-Warner Protective Services Corporation (Borg-Warner ) timely submitted a response to the RFP and proposed to provide services to the Department by using its affiliates or subsidiaries in each of the districts. Borg-Warner identified Wells Fargo Guard Service Inc. of Florida (Wells Fargo) as the service provider for districts 1 and 2; NYCO and Burns International as the providers for district 3; and Burns International for district 7. Prior to submitting its proposal, Borg-Warner communicated with the Department to inform it of the plan to submit its response as Borg-Warner offering the services of its operating divisions in each geographical area. The Department approved the concept of one proposal with each district clearly identified by provider. Wells Fargo is wholly-owned by Borg-Warner. Burns International Security Services, Inc., was a former corporate name for the entity now known as Borg-Warner. Burns International Security Services is a fictitious name that has been registered to Borg-Warner (or its predecessors) since 1982. "NYCO" is a fictitious name registered to Borg-Warner. The following Department employees served on the selection committee that evaluated and scored the RFP proposals: Larry Alan Reese All districts Dominic Richard All districts Richard A. Marino District 1 R.S. Manning District 2 Thomas W. Cook, Jr. District 3 Raymond D. Benedict District 7 Mr. Reese was the chairman of the selection committee; his point awards together with scores from two other members were tabulated for each district to arrive at the assignment of points for each proposer for criteria 1 (technical proposal). The price proposal (worth a point value up to 70) is not in dispute. The selection committee did not calculate the points assigned for price and it is presumed such calculations have been computed correctly. Similarly, points for firms utilizing certified minority business enterprise participation (worth a point value up to 10) are not in dispute. The selection committee did not tabulate the points assigned for MBE participation, and it is presumed such calculations have been computed correctly. All submittals were screened by the Department's contract services office to verify the proper forms (both in type and quantity) were timely submitted by each proposer. Such review is not in dispute. At all times material to this case, Borg-Warner has been appropriately licensed, or has submitted materials to become licensed, as required by the RFP. No administrative action has been taken to deny or limit Borg-Warner's right to do business through its affiliates or subsidiaries in Florida. Borg-Warner's proposal clearly and accurately identified the subsidiaries or affiliates who were to perform services in each geographic district proposed. The selection committee members were employees of the Department with experience in the areas of contracts, maintenance, and service requirements. While the members had limited, if any, expertise in terms of providing security services, each member has had experience in evaluating a management plan for providing services for the Department. It is found that such experience and the directions of the RFP adequately apprised them of the criteria for scoring the proposals for this RFP. Mr. Richard drafted the scope of services for this RFP and relied on his research of another contract and applicable statutes and rules. Mr. Reese participated in the administration of the Department's first contract for security guard services and assisted Mr. Richard. Mr. Marino, who is the maintenance contracts engineer for District 1, participated in the administration of the Department's first contract for security guard services. He has 25 years of experience with the Department, has drafted and reviewed scopes of services for other projects, and has reviewed RFP proposals for at least one other service contract. Mr. Manning, a maintenance engineer in District 2, participated in the administration of the Department's first contract for security guard services. He has 33 years of experience with the Department. Mr. Cook, an assistant district maintenance engineer in District 3, participated in the administration of the Department's first contract for security guard services. He has worked for the Department 23 years and has scored other RFP proposals in the past. Mr. Benedict, a maintenance contract engineer in District 7, participated in the administration of the Department's first contract for security guard services. He has written scopes of services for other projects and reviewed RFP proposals for another services contract. None of the criteria within the technical proposal for evaluation are of such a complex or technical nature that the selection committee members would not fully understand the proposals being submitted. Additionally, such criteria were not challenged as vague or ambiguous. No proposal was rejected as vague or ambiguous. The RFP sought submittals from contractors who could best ensure that properly licensed security guards would be at each rest area or welcome station 24 hours per day, seven days per week. Such contractor was to provide supervision for such guards to assure that they followed applicable laws and the general criteria set forth in the scope of services. Of the 30 possible points allowed for the technical proposal, 20 were identified for management, the other 10 points were split between the technical plan and facilities. Aside from the point distribution set forth in paragraph 45, the selection committee members were given discretion as to how, within the given parameters, to assign the points scored. Each reviewer scored the points consistently within the parameters described above and consistently assigned points as they deemed appropriate within that guideline. That is, for example, each consistently scored the 20 points for management in the same manner for each proposer. While the selection committee members individually may not have used the same method for scoring (each had discretion in applying the given criteria), each was consistent to their own system of evaluation when applying it to each proposal. Each evaluation was consistent with the RFP instructions to independently evaluate each proposal on the same criteria to assure uniform values. Each evaluator scored each proposal on its own merit without comparison to another proposal. The proposals were not ranked against one another but, rather received scores based upon the reviewer's comparison of it to the RFP terms. The committee members did not reject any proposal, or fail to review any, due to its nonresponsiveness to the RFP. The committee members did not reject any proposal, or fail to review any, because the proposer was deemed nonresponsible. The committee members had flexibility in scoring the proposals but did so consistently for each submittal reviewed. Borg-Warner submitted an unambiguous offer to perform the scope of services called for in the RFP and, therefore, its proposal was responsive. At all times material to the RFP Borg-Warner was able to perform the services called for in the RFP. Borg-Warner's proposal included all forms and was appropriately signed and dated. Its proposal was not conditional. The Borg-Warner proposal met the "other conditions" criteria found at Section 1.8.4 of the RFP. Moreover, it is found that no credible evidence was offered to establish collusion or other misconduct in connection with the submittal of this proposal. No proposer was favored or disadvantaged by the method or procedures utilized by the Department in the award of this project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Transportation enter a final order dismissing Petitioner's challenge to the award of RFP-DOT-93/94-9025 to Borg-Warner. DONE AND RECOMMENDED this 31st day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. 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 31st day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3160BID Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 9, 27, 30, 31, 38, 42, 43, 51, 52, 55, 61, 62, 63, 65, 66, 67, 68, 71, 72, 73, 74, 87, 88, 89, 99, 105, 106, 109, 110, 111, 114, and 115 are accepted. Paragraph 10 is rejected as vague or irrelevant. Paragraph 11 is rejected as vague or irrelevant. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 14 is rejected as contrary to the weight of the credible evidence. Petitioner's argument is misplaced: since Borg-Warner may perform security services state-wide it makes little difference whether it chooses to use its foot or its hand or some other portion of its corporate body to perform the services. Since all must account to the head, they are not in competition with each other. In this case, Borg-Warner designated which affiliate, division, or subsidiary would perform the work for each district identified. Paragraph 15 is rejected as irrelevant. Paragraph 16 is rejected as contrary to the weight of the credible evidence or irrelevant. See comment to paragraph 14 above. Paragraph 17 is rejected as irrelevant. Paragraph 18 is rejected as contrary to the weight of the credible evidence. Paragraph 19 is rejected as contrary to the weight of the credible evidence. Paragraph 20, the first sentence, is accepted. The second sentence is rejected as speculative or irrelevant. Paragraph 21, the first sentence, is accepted. The remainder is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 26 are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraph 28 is rejected as incomplete or contrary to the exhibit when reviewed in its totality. Paragraph 29 is rejected contrary to the weight of the credible evidence. The second sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is rejected as irrelevant. With regard to paragraph 34 it is accepted that Borg-Warner acquired companies which became members of it corporate family; regardless of whether those entities are doing business under fictitious names or otherwise, it is clear they were properly identified and authorized by the parent to perform the services in each of the districts proposed. Paragraphs 35 and 36 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 37 is rejected as vague, incomplete or contrary to the weight of credible evidence. Paragraph 39 is rejected as irrelevant. Paragraph 40 is rejected as repetitive, irrelevant or contrary to the weight of credible evidence. Paragraph 41 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 45 is rejected as irrelevant. Paragraph 46 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 47 through 50 are rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 53 the first sentence is accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 54 the first three sentences are accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 56 (including all subparts), 57, 58, and 59 are rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 60 and others which state what the committee "may" do, the committee had the authority to do many things, it was not required to take any specified action such that the failure to exercise its authority automatically constituted some breach of their duties. As there is no evidence that the committee acted arbitrarily or favored one proposer over another, its decision not to take action is not a material issue. Therefore, the paragraph is rejected as contrary to the weight of the total evidence or irrelevant. Where paragraphs 61 through 63 and 65 through 67 have been accepted they have been considered to accurately state what occurred, no conclusion should be reached that should suggest the actions were inappropriate or contrary to the duties given to them. Paragraph 69 is rejected as contrary to the weight of credible evidence. Paragraph 70 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 75 is rejected as contrary to the weight of credible evidence. Paragraph 76 is rejected as incomplete, inaccurate or contrary to the weight of credible evidence. Paragraphs 77 through 86 are rejected as irrelevant or contrary to the weight of credible evidence. While some portions of the proposed findings are accurate the totality of what the paragraphs suggest, that the committee inappropriately scored the responses, is rejected as contrary to the weight of the evidence. Paragraph 90 is rejected as an incomplete statement and is therefore rejected as contrary to the weight of credible evidence. Paragraph 91 is rejected as contrary to the weight of credible evidence. Paragraphs 92 through 95 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 96 is rejected as argument. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as argument and contrary to the weight of credible evidence. Paragraphs 100 through 104 are rejected as contrary to the weight of credible evidence. Paragraph 107 is rejected as contrary to the weight of credible evidence. Paragraph 108 is rejected as contrary to the weight of credible evidence and argument. Paragraph 112 is rejected as contrary to the weight of credible evidence. Paragraph 113 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 6, 8 through 14, 16 through 41, 43 through 47, 49 through 54, 57, 58, 59, paragraph erroneously marked 39 after 60, 61 through 68, 70, and 71 are accepted. With regard to paragraph 7, Section 1.7.3 not 1.7.2 specifically stated: The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. * * *[Emphasis added.] In light of the foregoing, it is expressly found that the RFP only mandated licensure at the time of the contract and not at the time of the RFP proposal. With regard to paragraph 15, the response filed by Borg-Warner identified the entities through whom the work would be performed as its "divisions." See letter dated 20 April 1994, Joint Ex. 3. However, the record in this case (and the RFP response in its totality) make it clear that Borg- Warner proposed to use its "divisions" or its affiliates or its subsidiaries, whichever name should be used, which are controlled by the parent entity to perform the services in the districts identified. There was no confusion as to which sub-entity would perform the service. Additionally, it is expressly found that the parent Borg-Warner, at all times material to this case, owned or controlled its affiliates. Paragraph 42 is rejected as argument. Paragraph 48 is rejected as argument. Paragraph 55 is rejected as irrelevant. Paragraph 56 is rejected as an incomplete statement. It is found, however, that three-person committees utilizing consistent review criteria as to each proposal reviewed would produce objective results despite the subjectiveness involved in each individual review. If criteria are consistently applied the three results taken together are reliable. Paragraph 60 is rejected as an incomplete statement. The proposals were to be evaluated on an individual basis reviewed against the criteria of the RFP; that is what the committee members did. That they may have compared responses from one proposer to the next is understandable; however, the scores given related not to each other but to the criteria of the RFP. With regard to paragraph 69, the evaluation process is described in Section 1.17.1 of the RFP, that section does not specify that every word of every page must be read. However, it is presumed that the committee will be required to fairly review the documents submitted. In this case, it is found that while every word of every page may not have been read, the individual members consistently and thoroughly reviewed the proposals submitted. Except as explained herein, paragraph 69 is rejected as argument. Paragraph 72 is rejected as argument. Rulings on the proposed findings of fact submitted by the Intervenor: Paragraphs 1 through 12, 19, 20, 24 through 31, 33, 34, 36, 38 through 48, 50, 51, and 55 are accepted. Paragraphs 13 through 18 are rejected as irrelevant. The RFP required licensure and compliance with Chapter 493 at the time of contracting. Paragraph 21 is rejected as repetitive or unnecessary. Paragraphs 22 and 23 are rejected as irrelevant or repetitive. Paragraph 32 is rejected as repetitive or irrelevant. The last sentence of paragraph 35 is accepted; otherwise rejected as incorrect or inaccurate quote. Paragraph 37 is rejected as incorrect summary and repetitive. Paragraph 49 is rejected as irrelevant. Paragraphs 52 and 53 rejected as vague or contrary to the weight of the evidence. Paragraph 54 is rejected as irrelevant. COPIES FURNISHED: Paul R. Ezatoff Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Thomas H. Duffy Department of Transportation Haydon Burns Building, Room 562 605 Suwanee Street Tallahassee, Florida 32399-0458 Bruce Culpepper Davisson F. Dunlap, Jr. D. Andrew Byrne Pennington & Haben, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0458 Thorton J. Williams General Counsel 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0458
The Issue Whether Respondent acted contrary to the agency's governing statutes, rules or policies, or the bid specifications in its proposed decision to award a contract to Intervenor Xerox Corporation pursuant to Request for Proposal ("RFP") No. 07-015- 040-RFP.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: On December 15, 2006, PCS issued the 2007 RFP, entitled "Copier Program--Request for Proposals." The 2007 RFP was intended to provide a comprehensive copier program for the entire Pinellas County School District from the award date of the bid, then anticipated to be February 20, 2007, through June 30, 2012. The purpose of the 2007 RFP was stated as follows in Section 3.1 of the General Information section: [PCS] requests proposals from experienced and qualified vendors to provide a comprehensive copier program countywide which fulfills the priorities and needs expressed by district focus groups. PCS wishes to partner with a qualified vendor who will continue to improve information sharing, right size number of assets, and reduce the number of device types while lowering the district's cost. Vendors may propose whatever program they feel best meets the district's needs and are not restricted in any way other than to meet the basic equipment specifications, terms and conditions outlined in this bid. . . . (Emphasis added) A statement of the 2007 RFP's "scope" set forth in the Special Conditions similarly provided: [PCS] requests proposals from experienced and qualified vendors to provide a comprehensive copier program countywide which fulfills the priorities and needs expressed by district focus groups. Vendors may propose whatever program they feel best meets these needs and a district evaluation committee made up of participants from the focus groups will evaluate proposals and make the selection it feels best meets these needs based upon a set of criteria published in this document. . . . [Emphasis added] The 2007 RFP provided for proposals to be received no later than January 18, 2007, at 3:00 p.m. The 2007 RFP contained General Terms and Conditions, setting forth the standard boilerplate terms common to all PCS procurements, and Section 1 of "Special Conditions" particular to this contract.1 These were followed by: Section 2, "Personnel Matrix"; Section 3, "General Information"; Section 4, "Program Specifications"; Section 5, "Equipment Specifications"; Section 6, "Cost Proposal"; and Section 7, "Contractor Response." PCS has adopted the General Terms and Conditions as rules, codified in Part A of the PCS Purchasing Handbook. Paragraph 1(g) of the General Terms and Conditions, "Freight Terms," provided: All items are to be bid FOB destination with all transportation charges prepaid and included in the bid prices and title transferring to the district at the time of delivery, unless otherwise stated in bid invitation. Any exceptions to these freight terms taken by the bidder must be clearly stated in the bidder's proposal. The purchasing department will evaluate any such exceptions and determine if the exception constitutes grounds for rejection of the bidder's proposal. [Emphasis added] Paragraph 3 of the General Terms and Conditions, "Acceptance and Withdrawal of Bids," provided: A bid (or amendment thereto) will not be accepted by the purchasing department after the time and date specified for the bid opening, nor may a bid (or amendment thereto) which has already been opened in public be withdrawn by the bidder for a period of sixty (60) calendar days after the bid opening date and time, unless authorized by the purchasing department. By written request to the purchasing department, the bidder may withdraw from the bid process and ask to have their sealed bid proposal returned at any time prior to the closing date and time for the receipt of bid proposals. Paragraph 14 of the General Terms and Conditions, "Variance to Bid Documents," provided: For the purpose of bid evaluation, bidders must clearly stipulate any or all variances to the bid documents or specifications, no matter how slight. If variations are not stated in the bidder's proposal, it shall be construed that the bid proposal submitted fully complies in every respect with our bid documents. Paragraph 30 of the General Terms and Conditions, "Errors and Omissions," provided: In the event an error or obvious omission is discovered in a bidder's proposal, either by the purchasing department or the bidder, the bidder may have the opportunity of withdrawing their bid, provided they can produce sufficient evidence to document that the error or omission was clerical in nature and unintentional . . . This privilege shall not extend to allowing a bidder to change any information contained in their bid proposal; however, in the event of a minor omission or oversight on the part of the bidder, the purchasing department (or designee) may request written clarification from a bidder in order to confirm the evaluator's interpretation of the bidder's response and to preclude the rejection of their bid, either in part or in whole. The purchasing department will have the authority to weigh the severity of the infraction and determine its acceptability. Paragraph 31 of the General Terms and Conditions, "Basis of Award of Bids," provides: "A Bidder who substitutes its standard terms and conditions for the district's, or who qualifies its bid in such a manner as to nullify or limit its liability to the district will be considered nonresponsive." The standard form cover sheet to both the 2006 and 2007 RFPs contained a "Note to Bidder" that stated: "A signed bid submitted to the School Board obligates the bidder to all terms, conditions and specifications stated in this bid document, unless exceptions are taken and clearly stated in the bidder's proposal." (Emphasis added) The Special Conditions of the 2007 RFP included a provision titled "Acceptance of Vendor Responses," which stated: "The purchasing department reserves the right to accept proposals from multiple vendors, and to accept or reject portions of a proposal based upon the information requested. Vendors may be excluded from further consideration for failure to fully comply with the requirements of this RFP solely at the purchasing department's discretion." (Emphasis added) The Special Conditions of the 2007 RFP also included a provision entitled "Integrity of Bid Documents," which stated: Bidders shall use the original Bid Proposal Forms provided by the Purchasing Department and enter information only in the spaces where a response is requested. Bidders may use an attachment as an addendum to the Bid Proposal form if sufficient space is not available on the original form for the bidder to enter a complete response. Any modifications or alterations to the original bid documents by the bidder, whether intentional or otherwise, will constitute grounds for rejection of a bid. Any such modifications or alterations that a bidder wishes to propose must be clearly stated in the bidder's proposal response and presented in the form of an addendum to the original bid documents. Both Xerox and IKON timely submitted proposals in response to the 2007 RFP. Evaluations of the responses to the RFP were based on a two-step procedure. First, a focus group of individuals from the Pinellas County School District would analyze the bids and award points based on the specifications and the Proposal Evaluation Form set forth in the RFP. The maximum award was 100 points, with 80 points constituting the threshold for further consideration. Second, those vendors which met the 80-point threshold would compete solely on price. Those bidders who did not score 80 points in the first stage would not have their price bids opened. By January 24, 2007, the focus group had finalized its evaluations, and the cost proposals were to be opened on January 26, 2007. Both IKON and Xerox scored above the 80 point level. IKON received a score of 87 points from the focus group and Xerox received a score of 81 points. Xerox's proposal included, among 15 unnumbered appendices, an appendix titled "Xerox Clarification Addendum to the RFP." This Addendum contained four "clarifications" of portions of the General Terms and Conditions, seven "clarifications" regarding the Program Specifications portion of the Special Conditions, and 12 items under the heading "Other Xerox Service Terms" that purported to set forth contractual provisions regarding service, personnel, risk of loss, limitations on liability, payment schedules, and other standard contract terms. PCS's purchasing department conducted a responsiveness review of the proposals prior to sending them to the focus group for substantive evaluation, but did not notice the Xerox Addendum. Mark Lindemann, the director of purchasing for PCS, testified that it is not customary for bidders to submit such an addendum, and, therefore, his staff was not looking for it when conducting their responsiveness review. On January 30, 2007, after the focus group had performed its evaluation of all the bids, and the cost proposals had been opened and the bid tabulations had been posted on the PCS website, Colin Castle of IKON brought to the attention of the PCS purchasing department the presence of the Xerox Addendum. Geri Pomerantz is the Xerox employee responsible for public sector solicitations in the Southeast United States. She is responsible for understanding the terms and conditions of a solicitation, for pricing the solution based on the customer's requirements, and for ensuring that Xerox submits a responsive proposal. Ms. Pomerantz signed and submitted Xerox's proposal in response to the 2007 RFP. Ms. Pomerantz believed that the Xerox Addendum complied with the "Integrity of Bid Documents" provision of the Special Conditions, quoted above. By submitting the Addendum, Xerox sought to clarify areas of the RFP, to explain how Xerox was meeting the requirements of the RFP, and to propose new items where Ms. Pomerantz believed the RFP was silent on important terms. Ms. Pomerantz testified that, to comply with the "Integrity of Bid Documents" provision, Xerox included the proposed clarifications in the body of its proposal, where that was possible, then further called them to the attention of PCS by placing them in the Addendum. Though unnumbered, the Xerox Addendum is clearly identified in the Table of Contents at the front of the Xerox proposal and on a separate tab on the side of the proposal. Xerox incorporated its clarifications in the body of its proposal in those places where the 2007 RFP requested a response from the vendor, i.e., Section 4, the Program Specifications portion and Section 5, the Equipment Specifications portion. Xerox incorporated clarifications to the following Program and Equipment Specifications: Section 4.3.1-–Equipment Build Status; Sections 4.3.4, 5.3.2 and 5.3.13 –-Price Offering; Sections 4.7.4 and 4.7.5-–Inspection and Acceptance; Section 4.10.2-–Response Time; Section 4.10.3-– Uptime; Section 4.10.4--Electronic Meter Reads; and Section 4.17–-Insurance Specifications for Contractors. The General Terms and Conditions did not call for a vendor response, and Xerox's clarifications or proposed modifications to those were made only in the Addendum. The introduction to the Xerox Addendum provides as follows: We have reviewed your Invitation to Bid ("Bid")[2] for a Copier Program, and have prepared a proposal that we believe addresses your requirements. However, some of the Board's requirements require that we make some limited clarifications to the terms and conditions included in your Bid. These clarifications are set forth below and are part of our Proposal. In addition, we have included some additional terms and conditions, which are also included as part of our Proposal. Should there be a conflict between the terms and conditions of the various documents the order of precedence will be this Addendum, followed by your Bid. Please note that if any of the terms or clarifications are inconsistent with Florida law or otherwise unacceptable to you, Xerox agrees to negotiate a reasonable alternative that is acceptable to both parties. Our team is also prepared to discuss the Xerox Proposal in greater detail and, if required, adjust our offering based on your final requirements, which may include a modification to our proposed equipment, support services, terms and conditions, and/or price offering. The Xerox Addendum expressly proposed clarifications or modifications to four provisions of the General Terms and Conditions. Paragraph 1(g), set forth in full above, contains PCS's standard freight terms and describes the process by which a vendor may take exception to those terms: exceptions must be clearly stated in the proposal, and the purchasing department will determine whether the exceptions constitute grounds for rejecting the vendor's proposal. The Xerox Addendum proposed to transfer to PCS the cost of any "non-standard delivery or removal expenses, such as additional costs where additional time or resources are required to disassemble equipment due to lack of adequate facility access, or the need to use stair creepers or cranes to deliver equipment to upper floors of buildings.3 Ms. Pomerantz justified this variance by asserting that the 2007 RFP was silent regarding the issue of "non- standard delivery", and that Xerox was merely offering a clarifying solution to this problem. Mr. Lindemann believed this clarification to be salutary, based on disputes PCS has had with its current vendor, IKON, regarding unusual delivery issues. Paragraph 1(g) of the General Terms and Conditions specifically allowed the vendor to propose exceptions to the standard freight terms, provided those exceptions were clearly stated and the vendor understood that its exceptions could be grounds for rejection of its proposal. Thus, it is found that the Xerox Addendum did not materially deviate from the provisions of the RFP as to this variance. The Xerox Addendum also proposed modification of paragraph 11 of the General Terms and Conditions, which states that PCS has "sole and exclusive property" rights to any discovery, invention or work product produced under the contract. Xerox proposed that any work developed under this contract would be of a generic nature and would remain the sole property of Xerox. Mr. Lindemann reasonably opined that this was not a material deviation because there was no intellectual property involved in this RFP. The Xerox Addendum did not materially deviate from the provisions of the RFP as to this variance. The Xerox Addendum proposed modification of paragraph 41 of the General Terms and Conditions. Paragraph 41 provided that unless otherwise specified in the Special Conditions, all items requested "must be new, the latest model manufactured, first quality, carry the manufacturer's standard warranty and be equal to or exceed the specifications" listed in the RFP. In this instance, the Special Conditions did provide otherwise. Section 4.3.1 of the Program Specifications provided, in relevant part, that vendors "may propose all used, all new or a combination of new and used equipment, but all equipment must meet the minimum standards outlined later in this section. To assure ease of operation for end users, if used equipment is proposed it should all be of the same brand and model within any given Group of copiers, within any given facility." The Xerox Addendum simply provided clarification regarding the company's terminology for its equipment. The equipment provided by Xerox would be either "Newly Manufactured," "Factory Produced New Models," or "Remanufactured," internal Xerox distinctions regarding the use of new, reconditioned or recycled components, and Xerox disclaimed any intent to use reconditioned, recycled, refurbished or used equipment as defined by industry standard. In this instance, Xerox submitted a clarification that did not deviate from or attempt to modify the Program Specifications. The Xerox Addendum proposed modification of paragraph 44 of the General Terms and Conditions, the limitation of liability provision, which provided: The bidder guarantees to save [PCS], its agents and employees, harmless from liability of any nature or kind for use of any copyrighted or non-copyrighted materials, secret process, patented or unpatented inventions, articles or appliances, furnished or used in performance of the contract for which the contractor is not the patentee, assignee or licensee. The Xerox Addendum to paragraph 44 provided as follows: Xerox agrees that it will indemnify the Board from all copyright and patent information that is included in Xerox- branded equipment/software. However, Xerox will not indemnify the Board, its directors, officers, employees, volunteers, and agent [sic] for any patent infringement caused by complying with the Board's requirement to use, or the Board's use of, the Xerox- branded/supplied equipment with equipment or software not provided by Xerox. Mr. Lindemann testified that this modification of the limitation of liability provision would most likely require PCS to purchase additional contingent liability insurance, which would be a cost essentially passed on from Xerox to PCS. It is found that the Xerox Addendum materially deviated from the provisions of the RFP as to this variance. The Xerox Addendum proposed a second limitation of liability provision in the section titled "Other Xerox Service Terms," which was essentially a list of standard terms and conditions that Xerox proposed to take precedence over similar provisions in the 2007 RFP. This second limitation of liability proposal provided as follows: Excluding personal injury (including death), property damage, and intellectual property indemnification on Xerox branded equipment, Xerox will not be liable to you for any direct damages in excess of $100,000 or the amounts you've paid to Xerox, whichever is greater. Neither party shall be liable to the other for any special, indirect, incidental, consequential or punitive damages arising out of or relating to this Agreement, whether the claim alleges tortious conduct (including negligence) or any other legal theory. Any action you take against Xerox must be commenced within two (2) years after the event that caused it. Ms. Pomerantz testified that when she read the RFP she focused on the indemnification language in paragraph 44 of the General Terms and Conditions regarding copyright and patent issues. She thought the RFP was silent on broader indemnification issues, and she sought to clarify it with this proposed language. Mr. Lindemann testified that the $100,000 limitation of liability could result in costs to PCS in the event of a judgment against PCS and might require the purchase of additional liability insurance. Mr. Lindemann believed this proposed limitation on liability was a material deviation and formed the basis for his request to Xerox to withdraw the Addendum. Paragraph 31 of the Standard Terms and Conditions states: "A Bidder who substitutes its standard terms and conditions for the district's, or who qualifies its bid in such a manner as to nullify or limit its liability to the district will be considered nonresponsive." (Emphasis added) It is found that the Xerox Addendum materially deviated from the provisions of the RFP as to this variance. 34. Sections 4.3.4, 5.3.2, and 5.3.13 of the Program/Equipment Specifications related to the vendors' cost proposals provide: 4.3.4 Whatever type of pricing methodology is proposed, it shall include all costs associated with the administration of the service, including, but not limited to: all imaging devices, any peripheral equipment (file servers, etc.), delivery, removal, installation, training, dedicated technician(s), all supplies needed to operate the imaging devices except paper, delivery of supplies and removal of the equipment upon termination of this contract. * * * 5.3.2 Pricing should include all costs associated with the administration of the service, including, but not limited to all imaging devices, delivery, removal, installation, training, certified technicians and all supplies except paper needed to operate the imaging devices. * * * 5.3.13 Pricing must include all costs associated with the administration of the service, including, but not limited to all copier devices, delivery, removal, installation, training, certified technician(s), all supplies except paper, end-user training and semi-annual customer satisfaction surveys. The three quoted provisions state that price proposals must include all costs associated with the administration of the service in question, except for paper, delivery of supplies, removal of equipment upon contract termination, end user training, and customer satisfaction surveys. The Xerox Addendum sets forth a monthly minimum and cost-per-copy charge that would cover standard equipment, supplies, maintenance, delivery and removal, installation and user training, but would require PCS to pay for "optional accessories," "non-standard operating supplies," "excess rigging" needed due to inadequate site access or the need to use stair creepers or cranes to install or remove equipment,4 overtime service coverage, and expenses associated with site preparation. The Xerox Addendum attempted to vary the quoted Special Conditions that require the vendor's price to include all costs associated with delivery, removal, and installation and, thus, materially deviated from the provisions of the RFP. Sections 4.7.4 and 4.7.5 of the Program Specifications required the vendor to "provide and pay for all material, labor, tools, transportation and handling, and other facilities necessary for the furnishing, delivery, assembly plus inspection before, during and after installation of all items specified herein." The Xerox Addendum to Sections 4.7.4 and 4.7.5 attempted to limit Xerox's obligation to inspect the devices by stating that they are "deemed accepted" upon installation unless PCS specifically requires an inspection. It is found that the Xerox Addendum materially deviated from the provisions of the RFP as to this variance. Section 4.17.1 of the Program Specifications required acceptance testing for each imaging device and accessory, including a period of four consecutive business days, each containing seven hours of operational use time, in which the equipment maintains a 95 percent level of performance. The Xerox Addendum to Section 4.17.1 attempted to limit Xerox's obligation to inspect the devices by stating that they are "deemed accepted" upon installation unless PCS specifically requires an inspection. It is found that the Xerox Addendum materially deviated from the provisions of the RFP as to this variance. Section 4.10.2 of the Program Specifications provided requirements regarding service calls and response times. This condition defines "response time" as the interim between the user's call to the repair office and the appearance of a certified technician on-site who is prepared to effect repairs. Section 4.10.2 provides that the response time cannot exceed four hours. PCS would have the option of charging the contractor $50.00 per failure to meet this four-hour response time requirement. The Xerox Addendum proposed that service response times be averaged quarterly according to a formula by which "target response time" would be divided by "average service response time," which is measured by dividing the sum of all service call response times during the quarter by the total number of service calls. Xerox proposed that the $50.00 charge be imposed based upon Xerox's failure to meet "the 90-day 4 hour average unit response time commitment." IKON also proposed to calculate the response time using a quarterly average, providing for an average response time "of 2 to 6 hours for all customer service calls located within 30 miles of an IKON service center, and 4 to 8 hours for all customer service calls located 30 miles or more from an IKON service center." IKON's proposal did not clearly state how far IKON's nearest service center is located from any Pinellas County school site. Another section of IKON's proposal discusses the company's recent consolidation of its "customer care centers," which "provide direct customer support" and house "the field service call center and inside sales function for a geographical region," into four central locations, the closest to Pinellas County being in Atlanta, Georgia. In this instance, both Xerox and IKON have proposed material deviations from the RFP requirement. Section 4.10.2 of the Special Conditions set forth a simple response time requirement that PCS itself could monitor and enforce without input from the vendor. Both Xerox and IKON attempted to substitute complex formulas arriving at quarterly averages for response time. IKON's proposal further attempted to make its compliance with the four hour response time requirement contingent upon the location of IKON's service centers. Section 4.10.3 of the Special Conditions requires a guaranteed uptime of 95 percent per machine for any 90-day period, and further requires that machines failing to maintain 95 percent uptime must be removed and replaced with an identical or comparable model at no cost to PCS. The Xerox Addendum announced an uptime objective of maintaining an average 95 percent equipment uptime performance based on a three-month rolling average, a variation in the wording of Section 4.10.3 that does not materially change the RFP requirement. Xerox also offered slight variations in the definition of "downtime" that are in the nature of clarifications rather than amendments to Section 4.10.3. The Xerox Addendum also contained 12 "Other Xerox Service Terms," essentially Xerox's standard terms and conditions dealing with service guarantees, personnel, substitution of equipment or software, risk of loss for equipment, treatment of confidential information, compliance with laws, vendor liability for customer-supplied items, the limitation of liability provision discussed above, force majeure, payment upon 45 days of invoice, breach of contract and remedies thereto, and a procedure for amendment of the contract. The 2007 RFP's General Terms and Conditions contain requirements for breach of contract, limitation of liability, standards of conduct for vendor personnel, and equipment substitution. Thus, the Xerox Addendum violated the following language in paragraph 31 of the Standard Terms and Conditions: "A Bidder who substitutes its standard terms and conditions for the district's, or who qualifies its bid in such a manner as to nullify or limit its liability to the district will be considered nonresponsive." In summary, the Xerox Addendum materially deviated from the requirements of the 2007 RFP in the following ways: it varied from the limitation of liability requirements of paragraph 44 of the General Terms and Conditions; it offered a cost proposal that was not all-inclusive, in contravention of Sections 4.3.4, 5.3.2, and 5.3.13 of the Program Specifications; it attempted to limit inspections after installation and acceptance testing, in contravention of Sections 4.7.4, 4.7.5, and 4.17.1 of the Special Conditions; it varied from the response time requirements of Section 4.10.2 of the Special Conditions; and it attempted to substitute several of Xerox's standard terms and conditions for those of PCS, in violation of paragraph 31 of the General Terms and Conditions. After learning of the Xerox Addendum from Mr. Castle on January 30, 2007, PCS reviewed the Addendum and concluded that it included material deviations to the terms and conditions of the RFP solicitation and that either the Addendum or Xerox's bid must be withdrawn. Negotiations commenced between PCS and Xerox. On February 2, 2007, Xerox offered PCS a revised Addendum. PCS rejected the revised Addendum and informed Xerox that the Addendum must be withdrawn in its entirety. On February 5, 2007, Xerox notified PCS by letter that it was withdrawing the Addendum from its proposal. Also on February 5, 2007, PCS posted its notice of intent to award the contract to Xerox. IKON's protest complained that Xerox's letter did not accomplish a complete withdrawal of the deviations included in the Xerox Addendum, because many of those deviations remained in the main body of the Xerox proposal. As noted above, Xerox incorporated its clarifications in the main body of its proposal in those places where the 2007 RFP requested a response from the vendor. These clarifications were included in Section 7.1.4 of the Xerox proposal, "Proposed Work Plan, Transition Plan." When Xerox withdrew its Addendum, it did not also submit a revised proposal that deleted the Addendum provisions from those places where they had been incorporated into the main body of the proposal. Nevertheless, both Xerox and PCS understood that withdrawal of the Addendum accomplished the complete withdrawal of the materials included in the Addendum, including where they were incorporated into the main body of the Xerox proposal. This understanding was reasonable under the circumstances. However, IKON raises a related objection that is more pertinent. Xerox was allowed to withdraw its Addendum, and then was awarded the contract. Thus, the winning proposal is different than the proposal that was reviewed and scored by the PCS focus group. IKON argues that it is very likely that Xerox would not have passed the 80-point threshold without the Addendum provisions that were incorporated into the main body of the proposal. Mr. Lindemann of PCS believed that Xerox's score would probably have been higher without the Addendum provisions. The salient point is that both sides are free to speculate about what the score of the winning bid might have been, because PCS proposes to award a contract on a proposal that was never reviewed or scored in the manner prescribed by the 2007 RFP. PCS argues that the withdrawal of the Xerox Addendum was entirely in keeping with the RFP, citing paragraph 3 of the General Terms and Conditions, quoted in full above and relevant portion of which provides: A bid (or amendment thereto) will not be accepted by the purchasing department after the time and date specified for the bid opening, nor may a bid (or amendment thereto) which has already been opened in public be withdrawn by the bidder for a period of sixty (60) calendar days after the bid opening date and time, unless authorized by the purchasing department. [Emphasis added] PCS contends that the emphasized language grants the purchasing department authority to allow a bidder to withdraw a portion of its bid after the bids have been opened. This is correct, if the portion in question is a timely submitted amendment to the original bid.5 In their arguments, both PCS and Xerox equate the terms "amendment" and "addendum," and assume that the Xerox Addendum could be withdrawn as an "amendment" to the Xerox proposal. However, the Xerox Addendum was not an amendment to the Xerox proposal; it was an integral part of that proposal. The Addendum did not amend anything contained in the Xerox proposal; rather, it attempted to "amend" the terms of the RFP. The underscored portion of paragraph 3 anticipates the late withdrawal of an entire bid or an amendment to a bid, not a wholesale grant of authority to the purchasing department to allow a bidder to save a nonresponsive proposal by withdrawing the objectionable provisions. PCS argues that Xerox was given no economic or competitive advantage in being allowed to submit and then withdraw its Addendum. Ms. Pomerantz testified that none of the items in the Addendum would have affected the price bid by Xerox, because they were essentially items of overhead that Xerox cannot "cost out" to include in a price proposal. However, the testimony by Mr. Lindemann convincingly made the point that some of the variations from RFP terms offered by Xerox would affect PCS's costs regardless of their impact on Xerox's price proposal. Passing on costs to the agency that have been absorbed by IKON and the other vendors in their proposals works to Xerox's economic advantage and to the detriment of PCS. Xerox had an obvious competitive advantage in being granted the opportunity to amend its proposal after the substantive proposals were opened and evaluated and the price proposals had been opened and posted. Xerox was also granted the option, afforded to no other bidder, of simply declining to withdraw its Addendum and thereby walking away from the procurement after submitting a proposal that, under the terms of the RFP, is supposed to bind the vendor for a period of 90 days. Subsection 120.57(3)(f), Florida Statutes, provides, in relevant part: In a protest to an invitation to bid or request for proposals procurement, no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered. . . . The PCS rules and RFP provisions, correctly understood, do not contravene this statutory requirement. They grant the purchasing department the flexibility to allow a bidder, under special circumstances, to withdraw from a given procurement after submitting a bid, and they allow PCS to waive slight variations or minor irregularities in a bid. To the extent that PCS interprets its rules and RFP to allow Xerox to substantially amend its proposal after the opening,6 as occurred in this procurement, then PCS has violated its governing statutes in a fashion that is clearly erroneous, contrary to competition, arbitrary, or capricious. PCS argues that even if the Xerox Addendum contained material deviations, the RFP and PCS's rule permitted bidders to submit addenda with material deviations. PCS based this argument on that portion of Section 3.1 of the Special Conditions stating that bidders "may propose whatever program they feel best meets the district's needs and are not restricted in any way other than to meet the basic equipment specifications, terms and conditions outlined in this bid." When read within the context of the Special Conditions in their entirety, this language clearly contemplates allowing the vendors to offer creative solutions within their field of substantive expertise, i.e., the establishment of a comprehensive copier program countywide. It was rational for the drafters of the RFP to assume that a company such as Xerox enters the process in possession of more knowledge and experience in the field of copier installation, service, and repair than the school district possesses. PCS conducted focus groups to determine the top priorities of the school personnel who use the copiers and presented the bidders with specifications broad enough to allow maximum flexibility in crafting proposals responsive to the listed priorities. However, there are rarely "creative solutions" to boilerplate RFP terms such as shipping, limitation of liability, the requirement that cost proposals be all-inclusive, inspection of equipment prior to acceptance, and response time for repairs. These are areas in which the purchasing department of PCS may be presumed to have at least as much expertise as Xerox or IKON. Variations from the RFP's requirements proposed by a bidder regarding these items are likely to be self-serving efforts to protect the bidder's interests or pass on costs to the agency. Paragraph 31 of the General Terms and Conditions recognizes this reality by stating that a bidder that substitutes its standard terms and conditions for those of PCS will be considered nonresponsive.7 PCS is correct that the "Integrity of Bid Documents" paragraph of Section 1 of the Special Conditions of the 2007 RFP allows bidders to submit addenda that clearly state "modifications or alterations that a bidder wishes to propose." However, contrary to PCS's treatment of Xerox in this procurement, the RFP does not state that the bidder may propose modifications of the RFP terms without risk.8 The cited paragraph clearly warns bidders that proposed modifications or alterations constitute grounds for rejection of a bid. The paragraph does not, and under Subsection 120.57(3)(f), Florida Statutes (2006), could not, state that bidders will be given the opportunity to withdraw those portions of their proposals deemed nonresponsive after bid opening. PCS also emphasizes the first sentence of the "Acceptance of Vendor Responses" paragraph of the Special Conditions: "The purchasing department reserves the right to accept proposals from multiple vendors, and to accept or reject portions of a proposal based upon the information requested." However, the next sentence of that paragraph states that the remedy is not after-the-fact withdrawal of the rejected portion of the proposal, but rejection of the proposal: "Vendors may be excluded from further consideration for failure to fully comply with the requirements of this RFP solely at the purchasing department's discretion." Both PCS and Xerox raised the issue of the 2006 RFP in an effort to show that IKON was now attacking a process from which it earlier benefited. In the 2006 procurement, IKON was allowed to withdraw portions of an addendum after a competitor filed a protest. PCS ultimately rejected all of the 2006 Proposals because of confusion on the part of the bidders, partly related to the fact that IKON was allowed to withdraw its addendum but a competitor was not given the same opportunity. PCS then issued the 2007 RFP in December 2006 to procure the same copy services sought by the 2006 RFP. The 2006 RFP is relevant only to show that PCS has allowed the withdrawal of amendments in at least one previous procurement, a moot point because PCS has freely stated its position that it has the authority to reject an addendum without rejecting the entire proposal. Xerox's original proposal, including the Addendum, was nonresponsive for the reasons set forth above. PCS's effort to save Xerox's low bid by allowing it to withdraw the Addendum violated Subsection 120.57(3)(f), Florida Statutes (2006), as well as the terms of the RFP. The remaining question is whether IKON's proposal was responsive and may therefore be awarded the contract. As already found above, IKON's proposal materially deviated from Section 4.10.2 of the Special Conditions by substituting a complex formula for the simple response time requirement of the RFP and by making compliance with the four- hour response time requirement contingent upon the location of IKON's service centers.9 Section 7.1.3 of the Contractor Response portion of the 2007 RFP, "Proposed Models and Equipment Configurations," provides the following: The respondent must provide a comprehensive description of its proposed standard models and equipment configurations for each of the various grade levels (elementary, middle, high school). Consideration should be given to the stated needs of the focus groups (Section 3), particularly "ease of operation", "accessibility" to machines and "reliability". Vendors should provide detailed, technical product literature for each piece of equipment proposed including all options. The respondent should also describe what flexibility will be allowed for adding or deleting equipment as program needs change and how that will effect the amount billed according to the cost proposal plan proposed. [Emphasis added] Section 7.1.7 of the Special Conditions, "Cost Proposal," provides the following: Respondent must include a complete, detailed cost proposal which encompasses all costs associated with the proposed program. The cost proposal must allow for flexibility to add or delete equipment as program needs change. The district will not entertain any proposals to purchase or lease any equipment. [Emphasis added] IKON's proposal contained the following paragraph within its response to Section 7.1.3 of the Special Conditions: As requested by PCS in Section 7.1.7 of the Invitation to Bid, IKON's cost proposal allows for flexibility. IKON will permit PCS to add or delete equipment as PCS' needs change by permitting PCS to upgrade or downgrade equipment at the beginning or at the end of its fiscal year. Under this program, PCS may replace upgraded or downgraded equipment with additional equipment that addresses PCS' needs. Specifically, IKON will permit PCS to identify up to [three] percent of the overall equipment fleet value procured by PCS from IKON, including models and specifications that are representative of the entire fleet population, as flexible equipment that may be upgraded or downgraded at the beginning or at the end of the fiscal year, while all other equipment may be canceled only in the event of a non- appropriation or termination for cause. The flexible equipment may also be relocated or otherwise used to facilitate a rightsizing program, as directed by PCS. PCS may utilize this flexibility program in its own discretion. In no event shall either party be liable to the other party for any indirect, special or consequential damages. Xerox contends that by limiting PCS to a three percent change in the overall equipment fleet value, IKON's proposal materially deviates from Sections 7.1.3 and 7.1.7 of the Special Conditions, which required that PCS have the flexibility to increase or decrease the size of the copier fleet to meet its needs. However, Section 7.1.3 did not prescribe the amount of "flexibility" required in the vendors' bids; rather, it expressly requested the vendors to "describe what flexibility will be allowed for adding or deleting equipment." IKON's bid described the allowed flexibility as three percent of the overall equipment fleet value and was thus responsive on its face. The evidence presented at hearing was insufficient to determine whether a three percent limit would be so restrictive of PCS's needs to add or delete equipment as to render IKON's proposal nonresponsive. More problematic is the last sentence of the quoted paragraph: "In no event shall either party be liable to the other party for any indirect, special or consequential damages." Xerox cogently argues that if its own proposed limitation of liability is a material deviation, then this similar limitation of liability included in the IKON bid must also be found a material deviation. IKON responds that it is clear from the context that this limitation of liability provision, unlike that in Xerox's proposal, applies only to Section 7.1.3. For this reason, IKON contends, PCS determined that IKON's bid was responsive. IKON argues that its own limitation of liability provision is implicated only in the event that PCS requires additional equipment and that it does not limit any direct liability of IKON to PCS and concerns only a distinct class of damages: indirect, special or consequential damages. The position of the quoted sentence, at the end of the final paragraph of IKON's response to Section 7.1.3 of the Special Conditions, supports IKON's contention that the limitation of liability applies only to that section. However, the wording of the sentence ("In no event . . .") indicates a broader intended application. IKON also failed to explain why the requirement of additional equipment, and only the requirement of additional equipment, raised concerns within IKON that indirect, special or consequential damages might be claimed by either party to the contract. At best, this provision is ambiguous in the scope of its application and, in any event, seeks to limit the liability of IKON beyond the limits provided by the RFP. If Xerox's limitations of liability constitute material deviations, then so must IKON's. IKON's proposal thus contains two material deviations from the RFP, one regarding response time and one regarding limitations of liability. IKON's proposal is nonresponsive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that PCS enter a final order that (a) declares Xerox's bid to be materially nonresponsive and, accordingly, rescinds the proposed award to Xerox; and (b) declares IKON's bid to be materially nonresponsive and, accordingly, rejects the same. Because the choice of remedies for invalid procurement actions is ultimately within the agency's discretion, the undersigned declines to make a recommendation as to whether PCS should award the contract to the next-lowest responsive bidder or reject all bids and start over. DONE AND ORDERED this 10th day of May, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2007.
The Issue The issue in this case is whether the bid specifications, together with other applicable authority, require that a bid, in order to be responsive, contain any written list of subcontractors.
Findings Of Fact On September 26, 1989, Respondent issued a document entitled, Specifications for Replacement of Air Conditioning, West Orange High School, Winter Garden, Florida, Engineers Project No. 89-016. As amended by three addenda, the above-described specifications shall be referred to as the "ITB." Respondent duly advertised for bids ore September 26, October 3, and October 10, 1989. The advertisement did not state that Respondent reserved the right to waive minor irregularities. In response to the ITB, Florida Mechanical, Inc. ("FMI") and B & I Contractors, Inc. ("B & I") timely submitted bids. For the base work and alternate 1, which Respondent ultimately decided to select, FMI bid $1,439,000, B & I bid $1,438,000, and a third bidder, S. I. Goldman, Company bid $1,621,000. These bids are recorded on a Bid Tabulation Sheet prepared by the engineer retained by Respondent for the project. The Bid Tabulation Sheet contains eight columns. Four columns record bid amounts for the base work and various alternates. The remaining columns are entitled, "Bidder," "Bid Bond," "Addenda," and "Subs." Each of the three bidders were named in one of the rows beneath the "Bidder," column. Each bidder had one "X" in its "Bid Bond" column and three "X"s in its "Addenda" column. However, only FMI and S. I. Goldman Company had "X"'s in their "Subs" columns. By resolution adopted on November 29, 1989, Respondent directed that all bids were rejected and that the Superintendent would correct any ambiguities and uncertainties in the ITB and solicit new bids. The resolution noted that Respondents staff had recommended that, if any bid were accepted, it should be that of B & I. However, [FMI] submitted with its bid a list of Major Sub-contractors of the form displayed in the [ITB], and B & I did not submit wish its aid a list of Major Sub-contractors[.] The resolution concluded that Respondent based on advice of staff and counsel, found that the [ITB is) ambiguous and/or uncertain as to whether or not a bidder must submit along with his bid a list of Major Sub-contractors, (b) that because of such ambiguity and/or uncertainty, it would be unfair and/or improper for [Respondent] to accept either of the bids received by it, and (c) that as a result thereof [Respondent] should reject all bids received by it for ,the Project and should solicit new bids for the Project as soon as is reasonably feasible after correction by [Respondents] staff of any ambiguity and uncertainty as aforesaid in the [ITB]. FMI and B & I each timely filed a notice of intent to protest and formal written protest of Respondent's decision to reject each company's respective bid. S. I. Goldman did not protest the decision and is not a party to the subject case. At a meeting on December 12, 1989, Respondent elected to refer the bid protests to the Division of Administrative Hearings for a formal hearing., At the beginning of the hearing, the parties filed a written stipulation, which stated that the only issue for determination was which Petitioner should be awarded the contract and not whether Respondent should seek further bids or award the contract to another bidder. The stipulation also stated that the Petitioners and Respondent agreed to abide by the recommendation of the hearing officer. At the hearing, the parties further stipulated that the sole issue for determination is whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. In addition, the parties stipulated that both Petitioners had standing and the protests were timely and sufficient. The ITB requires that each bidder familiarize itself with all federal, state, and "Local Laws, ordinances, rules, and regulations that in any manner affect the work." Under the section entitled, "Preparation and Submission of Bids," the ITB states: "Each bidder shall use the Bid Form that is inserted herein, and may copy or reproduce the form on this own letterhead." Among other requirements, the ITB requires two bonds. The first is a "bid guarantee" of at, least five percent of the amount of the bid. The form of this guarantee may be cash or a Bid Bond." The other bond described in the ITB a 100% public construction bond. The surety on this bond must have been admitted to do business in Florida, must have been in business and have a record of successful continuous operation for at least five years, and must have at least a Bests Financial Rating of "Class VI" and a Bests Policyholder Ration of "A." The Bid Form contained in the ITB is two pages. Among other things, the Bid Form requires that the bidder receiving written notice of acceptance of its bid must provide the prescribed payment and performance bond and execute the contract within ten days after notification. The next document in the ITB is a single page entitled, "Form of Bid Bond." The provisions on this page identify the A.I.A. document to use and state that the Bid Bond "shall be submitted with the Bid Proposal Form." The next document in the ITB is a single page entitled, "List of Major Subcontractors." The List of Major Subcontractors states: Bidders shall list all major subcontractors that will be used if a contract is awarded. Additionally, bidders shall identify in the appropriate box whether or not that trade specialty is minority owned. Another paragraph defines minority ownership. The remainder of the form consists of ten rows for the "bidder" and nine major subcontractors, such as concrete, electrical, HVAC, and controls, and blanks where the bidder can indicate which of these entities are minority owned. The next document in the ITB is the Owner-Contractor Agreement, which is followed by tie Form of Construction Bond, General Conditions, and Supplementary General Conditions. Section 7.11 of the Supplementary General Conditions establishes certain requirements to be performed after the submission of bids. This section provides: Pre-Award Submittals: Before the Contract is awarded the apparent low bidder shall provide the following information to the owner. A copy of the Contractors current State of Florida General Contractor's or Mechanical Contractors License. Pre-Construction Meeting. After the Notice to Proceed and within eight (8) business days of the Owner [sic], the Contractor shall meet with the Owner, Engineer and Subcontractors that the Owner may designate... The Contractor shall provide the following to the Owner. * * * 2. A written list of all Subcontractors, material men and suppliers with such information as requested by the Owner or Engineer. * * * The remaining documents in the ITB are the technical specifications for the job. The three addenda supply additional technical information not relevant to this case. Respondent has promulgated rules with respect to the bidding process ("Rules"). The ITB does not refer to the Rules, which define and use many terms that are found in the ITB. For instance, Rule 1.1.25 defines the phrases, "Performance and Payment Bond," which is the same phrase used in the Bid Form in the ITB. The Rules define several other capitalized terms that are also used in the ITB, such as Bid Bond, Bid Guarantee, Bidder, and Contractor. Rule 4.1 similarly states that the bidder is familiar with federal, state, and "Local Laws, Ordinances, Rules and Regulations that in any manner affect the Work." Rule 6.1 describes the process by which a bidder is to prepare and submit bids and the Bid Guarantee in language similar to that contained in the ITB. Rule 6.2 discusses the listing of subcontractors. Rules 6.2.1 and 6.2.2 state: General Contractor shall include as an integral part of his bid a List of Subcontractors he proposes to use. The Bidder shall enclose this list in a 4" x 9" envelope, sealed and marked "List of Subcontractors" and identified ... The Bidder shall enclose said envelope with his bid proposal in the mailing envelope. The List of Subcontractors enclosed with tee Proposal of each Bidder will be examined by the ... Engineer before the Proposal is opened and read. In the event that the form is not properly executed and signed, the Proposal of that Bidder will be returned to him unopened... Rule 6.3 requires a Statement of Surety as another "integral part" of each bid. Rule 6.3.3 states: The Statement of Surety will be opened examined by the ... Engineer prior to the opening of the Proposal.... Although similar to Rule 6.2, Rule 6.3 lacks the warming that if the Statement of Surety is not "properly executed and signed, the Proposal of that Bidder will be returned to him unopened." Rule 19.1 sets forth the requirements, for the surety. These requirements are different than those set forth in the ITB. Rules 19.1.1 and 19.1.2 require, as does the ITB, that the surety be admitted to do business in the State of Florida and shall have been in business and have a record of successful continuous operations for at least five years. However, Rule 19.1.1 requires that the surety be represented by a reputable and responsible surety bond agency licensed to do, business in the State of Florida and have a local representative in the Orlando area. Rule 19.1.3 requires minimum Bests ratings of "A" in "management," and, as to "strength and surplus," "AAA+" in financial rating and $12,500,000 minimum surplus. Rule 19.1.3.3 also requires that the surety be listed on the U.S. Treasury Departments Circular 570. The bids of FMI and S. I. Goldman Company contained a completed List of Major Subcontractors. The bid of B & I did not. No bidder included a Statement of Surety with its bid.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Orange County enter a Final Order awarding the subject contract to Florida Mechanical, Inc. ENTERED this 15th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of FMI All of FMI's proposed findings have been adopted or adopted in substance. Treatment Accorded Proposed Findings of B & I 1-4: adopted or adopted in substance. 5: adopted, except that the staff recommended that, if the bid was to be awarded, that it be awarded to B & I. 6: adopted in substance. 7: rejected as conclusion of law and, to the extent fact, subordinate. 8-12: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as subordinate. 18: rejected as unsupported by the greater height of the evidence. 19-21: rejected as subordinate. 22: rejected as beyond the scope of the issues and irrelevant in view of the stipulation. In the stipulation, the parties agreed that the issue to be addressed would not be whether the intended agency action of Respondent was lawful (i.e., not arbitrary, fraudulent, dishonest, or otherwise improper), but rather whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. COPIES FURNISHED: James L. Schott, Superintendent The School Board of Orange County, Florida P.O. Box 271 Orlando, FL 32802 Charles Robinson Fawsett, P. A. Shutts & Bowen 20 North Orange Avenue Suite 1000 Orlando, FL 32801 James F. Butler, III Smith, Currie & Hancock 2600 Peachtree Center Harris Tower 233 Peachtree Street, N.E. Atlanta, GA 30043-6601 William M. Rowland, Jr., Esq. Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue P.O. Box 305 Orlando, FL 32803
The Issue Did Respondent Department of Labor and Employment Security (Department) properly reject the response submitted to the Department's Request For Proposal No. RFP 96-033-VA, For Computer Hardware and Related Equipment Maintenance Including Operating Software (RFP) by Petitioner Knaus Systems, Inc. (Knaus)? Did the Department provide Knaus with a clear point of entry to challenge the Department's decision, and, if so, did Knaus timely file its notice of protest or formal written protest?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On January 29, 1996, the Department issued an RFP which requested a Vendor Technical Proposal (technical proposal) and a Vendor Cost Proposal (cost proposal). Knaus was on the Department's bidder's list and received a copy of the RFP around the end of January, 1996. Knaus is engaged in the business of selling and servicing computer hardware, and currently has nine contracts with the State of Florida in response to requests for proposals. As required by Rule 60A-1.002(9)(a), Florida Administrative Code, the original RFP contained the Department of Management Services' Form PUR 7033, revised 1/9/95, (cover sheet), which in pertinent part provides: PROPOSALS WILL BE OPENED 3:00 P.M., MARCH 19. 1996 and may not be withdrawn within 30 days after such date and time. POSTING OF PROPOSAL TABULATIONS Proposal tabulations with recommended awards will be posted for review by interested parties at the location where proposals were opened and will remain posted for a period of 72 hours. Failure to file a protest with- in the time prescribed in Section 120.53(5), Florida Statutes shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Posting will be on or about MARCH 21, 1996 In pertinent part, Sections 2 and 5 of the RFP provide: 2.1 RFP Submission Date Vendors shall submit their proposals on or before the date and time indicated in Section 5.9 and to the location indicated in Section 5.12 of this Request For Proposal. * * * 2.5 Addenda All addenda to this Request For Proposal will be in writing, with content and number of pages described, and sent to all Vendors known to be in receipt of this Request For Proposal. The Vendor must acknowledge receipt of all addenda in in writing and submit with the Proposal. * * * 5.1 Bid Evaluation and Award Proposals which do not meet the requirements specified in this Request for Proposal will not be considered for award. Please return your sealed bid response in the enclosed self-addressed envelope labeled: BID: RFP 96-033-VA TIME: 3:00 p.m. DATE: March 19, 1996 The Proposal number must be clearly marked on the outside of the vendors submittal. Failure to identify a Proposal in the above prescribed manner shall result in automatic disqualification of the Proposal. * * * 5.9 Calendar of Events Listed below are the important date and times by which actions noted must be taken or completed. If the Department finds it necessary to change any of these dates or times, the change will be accomplished by addendum. Date/Time Event February 13, 1996 Written Vendors Inquiries Due February 22, 1996 Pre-proposal Conference (Vendor attendance is mandatory) February 28, 1996 Addenda issued by Department March 19, 1996 Opening of Vendor 3:00 p.m Technical Proposals April 2, 1996 Opening of Vendor 10:30 a.m. Cost Proposals April 4, 1996 Posting of RFP Award * * * Responsiveness and Rejection of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in the Request For Proposal. A Proposal may be rejected if it fails to meet the general requirements and mandatory specifications as stated in this Request for Proposal. . . . Submission of Proposals Sealed proposals must be received by the Department of Labor and Employment Security at the address noted below, on or before the date and time shown in Section 5.9 "Calendar of Events". . . . * * * The vendor must submit both a technical proposal for evaluation and a cost proposal. Both proposals must be in a separate sealed envelope and clearly marked on the outside stating technical proposal or cost proposal Both proposals must be delivered as stated above. * * * Proposals, including amendments, may be mailed or hand-delivered, but in either case must be received no later than 3:00 P. M. on March 19, 1996. . . . NUMBER OF COPIES: 1 original and 5 copies for each category bid SUBMIT TO: Vonnie Allen -- DLES Computer Maintenance, Department of Labor and Employment Security, 2012 Capitol Circle S.E. 104 Hartman Building, Tallahassee, Florida 32399-2169 DEADLINE: March 19, 1996 at 3:00 p.m * * * 5.16 Posting of Recommended Award Proposal tabulation with recommended award will be posted for review by interested parties at the Department's Office of Purchasing on or about the date noted on the cover sheet of this RFP, and will remain posted for a period of seventy-two (72) hours, not including weekends or holidays. [Emphasis supplied] In accordance with the initial RFP, the technical and cost proposals were to be submitted in separate sealed envelopes within a single envelope to the Department on or before 3:00 p.m. on March 19, 1996, which was also the date for opening the technical proposals. All vendors, including Knaus, understood that for their response to the RFP to be timely both the technical proposal and the cost proposal had be received by the Department on or before 3:00 p.m. on March 19, 1996, the time and date scheduled for opening the technical proposals set out in Section 5.9. The date (March 21, 1996) shown on the cover sheet of the RFP for posting proposal tabulations with recommended awards is different from the date (April 4, 1996) shown in Section 5.9 of the RFP for posting RFP award. It is unclear whether these are two separate events requiring separate dates or a conflict as to the posting date. In accordance with the terms of the RFP, the Department conducted a mandatory Pre-proposal Conference on February 22, 1996. Knaus was represented at this conference. Questions raised by Knaus and other vendors at this conference necessitated an amendment to the RFP. On March 13, 1996, the Department issued Addendum [No.] 1 to the RFP, a copy of which was received by Knaus. In pertinent part, Addendum [No.] 1 provides: March 13, 1996 Addendum: [No.] 1 Bid: [No.] 96-033-VA Opening Date/time: March 19, 1996, changed (Technical) to April 2, 1996 April 2, 1996 changed to April 16, 1996 (Cost) Dear Sir or Madam: The subject Request for Proposal is hereby amended as follows: * * * 5.1, 5.9, 5.12 RFP Technical Opening is to be changed from 3:00 p.m. on March 19, 1996 to 3:00 p.m. on April 2, 1996. The Cost Opening is to be changed from 10:30 a.m. April 2, 1996 to 10:30 a.m. April l6, 1996. Addendum [No.] 1 did not amend or delete the requirement of the RFP that the technical and cost proposals be sealed in separate envelopes and both envelopes to be placed in the self-addressed envelope furnished with the RFP and submitted to the Department. All vendors, other than Knaus, relying only on the RFP and Addendum [No.] 1 concluded that both the technical and cost proposal were to be submitted on or before the opening of the technical proposal and therefore, submitted their technical and cost proposals on or before 3:00 p.m. on April 2, 1996. None of the vendors, including Knaus, submitted their response to the RFP on or before March 19, 1996, the original submittal date for responses and the original opening date for technical proposals. The Department received Knaus' technical proposal on April 1, 1996, and Knaus' cost proposal on April 5, 1996. On April 11, 1996, Vonnie Allen, the Department's Purchasing Specialist, telephoned Anthony J. Knaus, President and Chief Executive Officer for Knaus, to advise him that the Knaus proposal was non-responsive because the Department had not received both the technical and cost proposal before the opening of the technical proposals at 3:00 p.m. on April 2, 1996. During this telephone conversation, Anthony Knaus expressed his understanding of Addendum [No.] 1 as not requiring receipt of the cost proposal by the Department before the opening of the technical proposal at 3:00 p.m. on April 2, 1996. After his conversation with Vonnie Allen on April 11, 1996, Anthony Knaus wrote Allen a letter advising her that based on Addendum [No.] 1 that Knaus intended to file a protest in regards to the RFP. On April 15, 1996, Anthony Knaus again wrote Allen a letter in regards to the April 11, 1996, telephone conversation advising Allen that he had not received written notification from the Department of Knaus' noncompliance with the RFP but that Knaus would proceed with the protest. The letter further advised Allen that Knaus intended to file a formal protest. On April 19, 1996, Barbara Chance, Purchasing Director for the Department, wrote Knaus a letter advising Knaus that its response to the RFP was non-responsive due to the cost proposal not being submitted as stated in the RFP, and returning Knaus' certified check that had been submitted with its proposal. No further explanation of the basis for this determination was included in the letter. Likewise, there was no notice of Knaus' right to challenge the Department's determination as required by Section 120.53(5)(b), Florida Statutes, and Rule 60A-1.001(7) and (8), Florida Administrative Code. On April 23, 1996, the Department issued what is titled "NOTIFICATION [No.] 2" concerning Cost Opening Date which advised Responsive Vendors that the cost opening had been moved to 9:00 a.m. on April 24, 1996, and such opening was to be held at the Hartman Building, 2012 Capital Circle, Southeast. The letter further advised the Responsive Vendors that posting of the intended award would be "approximately Thursday, April 25, 1996 at 9:00 a.m.". Since the Department did not consider Knaus a responsive vendor, Knaus did not receive a copy of "NOTIFICATION [No.] 2". Knaus was never advised by the Department of the change in dates for the posting of intended award prior to or during the time of posting. On April 25, 1996, Dennis H. McVeen, General Manager for Knaus, wrote the Department's General Counsel concerning Barbara Chance's letter of April 19, 1996, and requested that Knaus be advised of the exact deadline for filing its protest. The Department never responded to this letter. The Department did not respond to any of Knaus' letters, and has yet to advise Knaus of its right to contest the Department's determination that because Knaus' cost proposal was not received by the Department on or before the opening of the technical proposal at 3:00 p.m. on April 2, 1996, Knaus' response to the RFP was non-responsive . On April 25, 1996, the Department posted the bid tabulations for the RFP, which, in pertinent part, states: "FAILURE TO FILE A PROTEST WITHIN THE TIME PRESCRIBED IN SECTION 120.53(5). FLORIDA STATUTES, SHALL CONSTITUTE A WAIVER OF PROCEEDINGS UNDER CHAPTER 120, FLORIDA STATUTES." The Bid Tabulation indicated a Posting Time/Date from 8:00, 4/25 until 8:00, 4/30. The Bid Tabulation does not indicate whether 8:00 was a.m. or p.m. However, Allen testified that it was intended to be a.m. Knaus was listed on the Bid Tabulation as to "Technical only" and was shown as NR or non-responsive. The Department has not fully evaluated Knaus' response to the RFP. Knaus obtained a copy of the Bid Tabulation sometime after 8:00 a.m. on April 30, 1996, which was after the time for posting. Obtaining a copy of the Bid Tabulation was the result of Knaus' own efforts and cannot be attributed to any efforts on the part of the Department. Knaus filed its Petition For Administrative Proceedings, Notice of Protest and Formal Written Protest on May 13, 1996, with the Department. Knaus did not file a Notice of Intent to Protest or Formal Protest addressed to the specifications contained in the RFP or Addendum [No.] 1. There was no evidence that Knaus gained any advantage by submitting the cost proposal after the technical proposals were opened. There is sufficient evidence to establish facts to show that Knaus knew or should have known that the RFP as amended by Addendum [No.] 1 required that both the technical and cost proposal be submitted together on or before April 2, 1996.
Recommendation Based 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 that Knaus' failure to timely submit its cost proposal was a minor irregularity and is waived, and directing staff to reevaluate all responses, including Knaus', under the RFP, as amended. RECOMMENDED this 24th day of July, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-2365BID The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Knaus' Proposed Findings of Fact. Proposed findings of fact 1 through 37, 44, 45 and 47 are adopted in substance as modified in Findings of Fact 1 through 25. Proposed findings of fact 38 through 43 go to the weight of the testimony of witness and are not considered as proposed findings of fact. Proposed finding of fact 46 is neither material nor relevant. Proposed finding of fact 48 is covered in the Preliminary Statement. Department's Proposed Findings of Fact. 1 Proposed findings of fact 1 through 14 and 16 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. 2. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Douglas L. Jamerson, Secretary Department of Labor and Employment Security Suite 303, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Daniel H. Thompson, Esquire Berger and Davis, P.A. 215 South Monroe Street, Suite 804 Tallahassee, Florida 32301
The Issue These consolidated bid protests, pertaining to Invitation to Bid #595-581 issued by Respondent, present the following issues: as to Case No. 91-5344B1D whether the bid protest filed by National Cleaning Services of Florida, Inc. should be upheld and as to Case No. 91-5345B1D whether the bid protests filed by Royal Services, Inc. should be upheld. The following sub-issues are presented: Whether Respondent acted in an arbitrary and capricious manner in rejecting the bid of Royal Services, Inc., the apparent low bidder. Whether Respondent should award the bid to either National or Royal. Whether Respondent should convene an evaluation committee to evaluate the bids. Whether Respondent acted in an arbitrary and capricious manner in rejecting all bids.
Findings Of Fact Respondent, Department of Health and Rehabilitative Services (DHRS) issued Invitation to Bid Number 595-581 (ITB) in the Spring of 1991. 1/ The ITB solicited bids for the provision of specifically identified housekeeping services at South Florida State Hospital (SFSH), a DHRS facility in District X of DHRS. Robert L. Slater is a contract manager employed by DHRS at SFSH. Mr. Slater had, since 1986, the responsibility of preparing the bid solicitation for SFSH housekeeping services. Mr. Slater prepared the ITB that is the subject of this proceeding. The procedure established by District X for the review of ITB solicitations is as follows: v'... all RFP/ITB documents must be reviewed and approved by Grants Management, Budget, District Legal Counsel and the District Administrator prior to their release and advertisement. District X procedure requires that a form accompany the ITB as it is circulated for review. The form provides identifying information about the ITB and a place for the reviewer to indicated his or her approval or disapproval, his or her signature, the date, and any comments. Mr. Slater did not submit the ITB for the appropriate review. Prior to publishing the ITB, Mr. Slater left the ITB in the in-house mail box of David A. Sofferin, the Administrator of SFSH, without the accompanying form. After the ITB was returned to him without any indication as to whether Mr. Sofferin had reviewed it, Mr. Slater published the ITB without it being reviewed as required by District X procedure. There was no evidence as to whether Mr. Sofferin reviewed the ITB before its release. Mr. Slater initially refused to deliver to Royal a copy of the ITB package. He took this action because he did not believe that SFSH wanted Royal as a provider. This was the first and only time Mr. Slater had refused to deliver a bid package to an interested bidder. It was only after Royal complained to DHRS District X legal counsel that Mr. Slater provided a copy of the ITB package to Royal. Royal did not attend the pre-bid meeting because the notification was contained in the bid package, which was received by Royal after the meeting. There was no showing that Royal's inability to attend this meeting prejudiced it in submitting its bid. The ITB contained the following in paragraph 7 of the "General Conditions" portion: AWARDS: As the best interest of the state may require, the right is reserved to ... reject any and all bids ... The "Bidder Qualifications" section of the ITB provided, in pertinent part, as follows: Bidder qualifications must be satisfactory to South Florida State Hospital. The hospital reserves the right to waive informalities in any Bid and to reject any and all Bids or to accept any Bid, any combinations of alternatives that in our judgment will be in the best interest of the State of Florida. Each bidder shall furnish as a part of his/her Bid a written statement in evidence of their ability to accomplish the specified work. This statement must include information as to the immediate availability or ownership of the necessary; (sic) equipment to perform this work, and the financial worth or reputability (sic) of the bidder and experience which the bidder has had in successfully completing projects of a similar size, scope and responsibility. Experience must be evidenced by three (3) references. The following appears in the ITB in a section entitled "Bidder Qualifications Evaluation Criteria": All bidders' qualifications will be evaluated by a selection team using the following criteria: (yes or no response) "Fatal" criteria/any (sic) Bid receiving a "no" response on any items in this category will not be considered any further. /2 Bidders Organizational Capability Does the synopsis of the bidder's corporate qualifications indicate the ability to manage and completely deliver the services required? Do the evaluations and/or recommendations of the bidder indicate an acceptable level of past performance? Budget or Rate Analysis Does the proposed rate meet the "reasonable and necessary" test? Does either a cost or price analysis indicate that the cost or rate is appropriate and reasonable? Under the "Bidders' Qualification Checklist" portion of the ITB, a checklist type form is provided. This checklist provides a line for the name of the bidder, the name of the reviewer, and the date. Part I of the checklist provides "Fatal" Criterion questions with six questions to be answered in a yes or no fashion. There is no contention that either Royal or National failed to meet a "fatal" item. Part II of the checklist is as follows: Is the ability to manage and completely deliver the services apparent? Is satisfactory past performance apparent? (0-10) x WV of 5 Part III of the checklist is as follows: Does the proposed rate meet the reasonable and necessary test? Is the rate appropriate? (0-10) x WV of 5 There is no indication in the ITB as to how the selection team is to be appointed 3/ or as to how the selection team is to apply the criteria contained in the ITB. The items under Parts II and III of the checklist are to be considered using a weighted values for the scores received in response to the questions. There is no indication as to how these weighted responses are to be factored in to the selection process or whether these items are to be considered additional "fatal" items if the bidder receives poor scores in these categories. If it is assumed that these questions should be considered additional "fatal" items, there is no indication as to what score, if any, is necessary for a bidder to "pass" these categories. DHRS never convened a selection team to review the bids. On May 24, 1991, the bids were opened and tabulated by a bid clerk. This bid clerk did not review the bids to determine whether the criteria in the ITB had been met. The Royal bid was tabulated as being $434,704.32 for residential buildings and $101,088.48 for administrative buildings (for a total of $535,792.80.) The National bid was tabulated as being a total of $626,397.36. The decision to reject the Royal bid was made by J. E. Harmon, the Assistant Hospital Administrator, based on a conversation he had with Mr. Slater following the bid opening. Mr. Slater told Mr. Harmon that he believed that Royal had "low balled" its bid and that Royal's performance had been unsatisfactory when it had had the contract. Royal filed a lawsuit against DHRS for breach of contract that involved Mr. Slater and the manner in which Royal was paid. Royal contends that Mr. Slater's bias against it stems not from poor service, but because of this lawsuit. This contention is contrary to the greater weight of the evidence and is rejected. On May 31, 1991, a letter signed by Mr. Harmon, but drafted by Mr. Slater, refunded Royal's check that had been posted in lieu of a bid bond and notified Royal as follows: Please be advised that the Bid submitted by your company has been rejected in the best interest of the State of Florida. This action was determined to be necessary because of your company's poor performance at this facility from August 30, 1989 through June 30, 1990. Also on May 31, 1991, Mr. Slater prepared and sent a letter (which he signed) to each bidder, which provides as follows: The selection process has been completed for the above referenced Invitation to Bid. The selection committee's recommendation to the District Administrator is to award the contract to National Cleaning of Florida, Inc. The Department appreciates your time and interest in the Invitation to Bid. We encourage your continued interest in HRS contractual services. You have the right to protest this decision as described here: Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120 and shall not be considered. To comply with this statute, a written notice of intent to protest must be filed with the contact person listed in the Invitation To Bid within 72 hours after receipt of this notice. Within 10 days after the notice of intent is filed, a formal written notice of protest must be filed with the contact person listed in the Invitation to Bid. The formal written protest must be accompanied by a bond payable to the department in the amount of $5,000 or 1% of the department's estimate of the total volume of the proposed contract, whichever is less. Royal thereafter timely protested DHRS' action in rejecting its bid and in announcing that the recommendation would be made to the District Administrator to award the bid to National. No action was taken by DHRS on these protests until DHRS referred Royal's protests stemming from Mr. Harmon's letter of May 31, 1991, and Royal's protest stemming from Ms. Borland's letter of July 12, 1991, 4/ to the Division of Administrative Hearings for formal hearing by its "Notice of Referral and Notice to Bidders" dated August 22, 1991, and filed with DOAH on August 23, 1991. 5/ After Royal filed its protests following the two letters dated May 31, 1991, DHRS reviewed the bids and the process that had been followed in issuing those bids. DHRS determined that it preferred to issue a RFP (request for proposals) for these contractual services rather than soliciting these services by an ITB. This decision was based, in large part, on the desire to give greater weight to the ability of the bidders to satisfactorily perform the required services and on the fact that Royal had filed a protest. On July 12, 1991, DHRS notified bidders by letter signed by Maureen D. Borland, Acting District Administrator, that all bids were rejected, that the services will be the subject of an RFP, and that the contact person was Mr. Slater. The letter notified the bidders that they had the right to protest the decision and advised as to the procedure to be followed and the time constraints to be observed in filing a protest. Following the letter of July 12, 1991, both National and Royal perfected protests of the decision to reject all bids. National contends that the Royal bid was properly rejected. National further contends that any defect in the evaluation process can be cured by convening the evaluation committee to review the remaining bids. Royal contends that the ITB completely describes the services desired by SFSH, that an RFP is not appropriate, and that an RFP would only serve as a means for DHRS to discriminate against Royal. Royal further contends that price is the primary factor to be considered, that it was the low bidder, and that it should be awarded the bid. Royal contends in the alternative that DHRS erred in rejecting all bids and that the evaluation committee should be convened to evaluate its bid along with the other bids. Royal had a contract to provide housekeeping services at SFSH from August 30, 1989 through June 30, 1990. This contact was let pursuant to a RFP. Mr. Slater was the contract manager for the housekeeping services when this contract was procured. The contract could not be renewed beyond June 30, 1990, because the RFP failed to include prices for the second and third years of the contract. The following year, the contract was solicited on an ITB basis, and was awarded to Allstate Specialty Services as the lowest and best bidder. Mr. Slater was the contract manager for the procurement of these services. DHRS was not satisfied with the services provided during the time Royal had the contract for housekeeping services. Various deficiencies were discussed with the project manager during weekly meetings. There were no written statements of deficiencies given to Royal by DHRS while Royal had the housekeeping contract, and no deductions were made from any payment to Royal. On May 7, 8, and 9, 1990, an inspection of SFSH was made by DHRS Office of Licensure and Certification. This report which followed the inspection noted several deficiencies in the housekeeping services. The record was not clear, however, whether the deficiencies were the result of Royal's poor performance or whether the deficiencies were the result of DHRS purchasing an insufficient level of services. The record is clear that Mr. Slater had not been pleased with the services performed by Royal when it had the contract. Mr. Slater was pleased with Mr. Martin, Royal's project manager, but he did not feel that Royal had sufficient supervision of its employees and that Royal should have devoted more workers to the project. As compared to the contract entered into for the period August 30, 1990, through June 30, 1990, the subject ITB was described by Mr. Slater as being more stringent, tighter, and improved. The subject ITB was intended to cure the problem of lack of supervision by inserting specific requirements as to the level of supervision the provider would have for its employees. There was insufficient evidence to sustain DHRS contention that Royal was an unqualified bidder. There was insufficient evidence to sustain DHRS contention that Royal's bid was a "low ball" bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which rejects all bids submitted in response to the subject Invitation to Bid. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of October, 1991. CLAUDE B. ARRINGTON 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 23rd day of October, 1991.
Findings Of Fact Nine bids were received for Contract E4571, Project/Job No. 99004-3516 ("E4571"). Petitioner's bid was timely received. Respondent opened bids on December 13, 1991. Respondent posted its intent to award E4571 to J & D Tropical Landscape Design on December 20, 1991. Section 1.2 of the Bid Specifications for E4571, as modified by the Special Provisions, states: A contractor's bid shall be in the form of a unit price for each unit expected to be accomplished. The Special Provisions to E4571 require each bidder to submit a single unit price for each pay item called for in the Bid Price Proposal. Item 4 in the Special "Provisions provides: It shall be the responsibility of the Contractor to submit to the Department A SINGLE unit price for each pay item called for in the Bid Price Proposal. The Contractor shall be responsible for his/her method of averaging. Failure to comply shall result in the Contractor's Bid Proposal being declared "Irregular" and such Bid Proposals will be rejected. (emphasis added) Petitioner's Bid Proposal was properly declared irregular and rejected by Respondent. Petitioner failed to comply with the requirements of Item 4 in the Special Provisions by failing to submit a single unit price for each pay item, by failing to correctly average a unit price, and by failing to state the unit price in words. The Unit Price Sheet on page 23 of the Bid Proposals contains the following table listing item numbers A582- 2 through A584-4. Petitioner listed item number A583 as follows: ITEM PLAN ITEM DESCRIPTION AND UNIT PRICE $ AMOUNTS NUMBER QUANTITIES UNIT PRICE (IN FIGURES) (Exten- (IN WORDS) sion Price) 3/ A583 4 200.000 TREES (8' TO 20, 85 20400 PLANT ' HEIGHT OR CLEAR TRUNK) @ DOLLARS CENTS The actual extension price 4/ for 200 trees at $85 per unit is $17,000 rather than the $20,400 stated by Petitioner in the table on page 23. The "Contract Total" stated by Petitioner in the bottom right corner of the table is $37,013.20. The "Contract Total" that should have been stated if Petitioner intended the extension price of item number A583-4 to be $17,000 would have been $33,613. The "Contract Total" listed by a bidder on the Unit Price Sheet is the unverified contract price. The actual contract price is determined by Respondent pursuant to the formula given in Section 1.3 of the Bid Specifications. Section 1.3 of the Bid Specifications foil E4571 states: The contract price is defined as the sum of the unit bid price times the planned work for each item as shown on the Unit Price Sheet. Petitioner would have been the lowest successful bidder irrespective of whether Respondent had replaced the extension price for item number A583-4 and the "Contract Total" stated by Petitioner with the actual extension price for item number A583-4 and the actual "Contract Total" . However, Respondent is precluded from doing so by Section 3-1 of the Standard Specifications For Road ,and Bridge Construction ("Standard Specifications"), published by the Florida Department of Transportation (1991) and by the Special Provisions for E4571. Respondent follows "Section 3-1 of the Standard Specifications for the purpose of evaluating bid proposals. Section 3-1 is used, in part, to determine the extension price for item numbers listed on the Unit Price Sheet. Section 3- 1 provides in relevant part: In the event of any discrepancy in the three entries for the price of any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, In which case they shall govern over the unit price shown in words. Petitioner did not show the unit price in words for any item number on the Unit Price Sheet, including item number A583-4. There is a discrepancy in the three entries for item number A583-4 on the Unit Price Sheet. Petitioner failed to show the unit price for item number A583-4 in words, and the unit price and extension price are not in agreement. Under such circumstances, Respondent interprets Section 3-1 of the Standard Specifications as requiring that Petitioner's bid be declared irregular and rejected. Respondent's interpretation of Section 3-1 of the Standard Specifications is reasonable and is consistent with the mandate in Item 4 of the Special Provisions for E4571. See Finding 4, supra. Furthermore, in practice, the correct unit price of a pay item is necessary to process payment under the contract and the contractor must submit invoices based upon the pay items and unit prices listed in its bid. The bid specifications for E4571 provide that a bidder is responsible for his or her own averaging of a stated unit price, and that if a bidder fails to provide a single unit price for each pay item on the Unit Price Sheet the bid shall be declared "Irregular" and will be rejected. The requirement to provide a single unit price for each pay item was emphasized by Respondent at the mandatory pre-bid meeting. Petitioner's representative attended the mandatory pre-bid meeting. No challenges were made to the bid specifications by any bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order dismissing the protest filed by Petitioner. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (964) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1992.
The Issue The issue is whether respondent's license as a certified general contractor should be disciplined for the reasons stated in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Robert P. Haynes, held certified general contractor license number CG C023689 issued by petitioner, Departmentt of Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was doing business as Monarch Homes of Southwest Florida, Inc. (Monarch) located at 1221 S.W. 21st Terrace, Cape Coral, Florida. From October 1987 until January 1989 respondent was Monarch's registered qualifying agent. Monarch engaged in the home building business in the Lee County area. Another entity, Monarch Realty of Lee County, Inc. (Monarch Realty), a real estate firm, sold homes for Monarch through a model center located in Cape Coral and owned by Monarch. In a typical sale, a buyer would first deal with a real estate salesman employed by Monarch Realty who filled out a portion of the paperwork for the transaction and accepted a deposit from the buyer. It is noted that the realty firm was given blank contracts by Monarch for use in the sales activities. The deposit and paperwork were then forwarded by the salesman to the sales manager who completed the contract and paperwork and then gave the deposit to the broker who deposited the money in the real estate firm's escrow account. However, the contract would be between Monarch and the buyer. Prior to acceptance of the contract by Monarch, respondent, who worked at a different office, would normally review the contract and initial the same if it was financially and technically feasible from a contractor' s perspective. On November 19, 1988, Roy Torgierson visited the model center for the purpose of entering into a contract with Monarch to have a new home built on his lot at 5 15 N.E. 21st Place, Cape Coral, Florida. The contract called for a price of $67,433 subject to Torgierson obtaining a mortgage, and required Torgierson to give a deposit in the amount of $1,000. While at the model center, Torgierson dealt exclusively with Brad Trowe, a real estate salesman employed by Monarch Realty. After Torgierson executed the contract and gave Trowe a check made payable to "Monarch Homes" as a deposit on the transaction, Trowe forwarded the check and paperwork to the sales manager at the model center as he did in all other transactions. The contract was later accepted by Monarch but the signature of the individual who signed on behalf of Monarch is not legible. Also, Torgierson's check was deposited into Monarch Homes of Southwest Florida, Inc.'s bank account rather than the real estate firm's escrow account. There is no evidence that respondent reviewed or had knowledge of this contract or that he was aware a deposit had been made by Torgierson and deposited into Monarch's bank account. Approximately two or three weeks later, Torgierson made application for financing with a local lending institution and learned that Monarch was experiencing serious financial problems. Torgierson promptly telephoned Trowe and requested a refund of his deposit. Trowe advised him that he would contact Monarch and request a refund on Torgierson's behalf. When he received no refund, Torgierson telephoned the president of Monarch, Dominick Ponti, on several occasions requesting a refund. Each time Ponti advised him not to worry and that he would receive his money. The customer eventually hired an attorney who sent a demand letter to Monarch on January 10, 1989. To date, no refund has been given to Torgierson and Monarch has long since gone out of business. It is also noted that construction on Torgierson's home was never begun by Monarch or respondent. Respondent's relationship with Monarch involved a review and approval of contracts for financial and technical feasibility from a contractor's perspective. He was not a shareholder or partner of the firm and had no say in any other aspect of the firm's business. Similarly, he had no relationship with Monarch Realty. Respondent was unaware of the Torgierson- Monarch contract since it was never sent to him for review and approval, and he did not know of Torgierson's problems until the complaint herein was filed. Indeed, respondent was never contacted by Torgierson concerning the contract or a refund of his deposit. Like Torgierson, Haynes characterizes himself as a victim of Monarch, which went out of business without giving notice to its qualifying agent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint be dismissed, with prejudice. DONE and ENTERED this 21st day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 21st day of November, 1990. APPENDIX Petitioner: 1-3. Partially adopted in finding of fact 1. 4-5. Partially adopted in finding of fact 3. 6. Rejected as being unnecessary. 7-8. Partially adopted in finding of fact 4. 9. Rejected as being unnecessary. Respondent: 1. Partially adopted in finding of fact 1. 2. Partially adopted in finding of fact 2. 3. Partially adopted in finding of fact 5. 4-6. Partially adopted in finding of fact 2. 7. Partially adopted in finding of fact 5. 8. Partially adopted in finding of fact 2. 9-10. Partially adopted in finding of fact 3. 11-12. Partially adopted in finding of fact 4. Partially adopted in finding of fact 3. Partially adopted in finding of fact 4. Note - Where proposed findings of fact have been partially used, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, or not supported by the evidence. COPIES FURNISHED: Robert B. Jurand, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Thomas G. Eckherty, Esquire 12934 Kenwood Lane, S.W., #89 Fort Myers, FL 33907 Kenneth D. Easley, Esquire 1940 N. Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Fred Seely Executive Director Post Office Box 2 Jacksonville, FL 32202
The Issue Whether the selection was arbitrary because evaluators were not state employees and were not technically trained? Whether the selection was arbitrary to the extent non-price criteria were used in comparing proposals? Whether Urban Media's proposal was non-responsive because no organizational chart was supplied, because it contained no financial statement or any "statement of work" or a statement incorporating all specifications? Whether Blue Chip's $2500 estimate of administrative costs was responsive? Whether Blue Chip's proposal was non-responsive for failure to quote an unconditional price or to state specific objectives? Whether Blue Chip's financial statements were acceptable, being based on estimates pertaining to a construction company or to a "systems-management" company? Whether Blue Chip had adequate organizational capability to gather the staff to perform the contract? Whether its proposal was sufficiently definite or based on impermissible estimates?
Findings Of Fact By request for proposals No. 88-277, HRS solicited offers to create a statewide media campaign publicizing its "One Church, One Child Program," an effort to enlist churches with African American congregations in placing African American children for adoption with African American families. Proposals Responsive Three days after the June 24, 1988 deadline, Pamela Ann Eby opened every proposal that had been filed on time. She and two other HRS employees reviewed the proposals for responsiveness. Before referring them to an evaluation committee, comprised principally of members of the One Church, One Child Program Board of Directors, they determined that all four were "technically adequate." This included Urban Media's proposal, Joint Exhibit No. 1, which contained a "statement of work," HRS Exhibit No. 9, financial statements, HRS' Exhibit No. 10, a statement of objectives, HRS' Exhibit No. 12, and a timetable both for production and for media exposure. HRS' Exhibit No. 13. Blue Chip's own witness acknowledged that signing the proposal, including ancillary forms, as Urban Media's representatives did, incorporated all specifications called for in the request for proposals, by reference. Nothing was improper or deficient about the "administrative expense" Urban Media budgeted. Although Blue Chip produced a witness who took issue with the level of detail in some items of Urban Media's proposal, the witness testified that he could not say any deviations he perceived were material. Urban Media's proposal was responsive to the request for proposals. Clear Choice Before deliberating as a group, each committee member evaluated each proposal individually, using the form "proposal rating sheet" that had been furnished to the proposers as part of the request for proposals. The Rev. Messrs. R. B. Holmes, W. O. Granger, Elroy Barber, Willie C. Bell, Jr., the Rev. Ms. Cynthia Parker, who has had experience with media and public relations, and Dr. Juanita Clay, the HRS employee who is state coordinator of the Program, served as the committee that assessed the proposals' comparative merits. The proposal rating sheets asked raters to assign points for various criteria. Of 104 possible points, Blue Chip received scores ranging from 21 to The lowest score any committee member gave Urban Media exceeded Blue Chip's highest score by 27 points. At least one committee member gave Urban Media a perfect 104 score. When they met to make their decision, the committee unanimously chose Urban Media. The committee wanted a "top quality" media campaign. Blue Chip is a construction company that has also installed computers. They questioned Blue Chip's ability to deliver at all, and remarked the lack of any previous work of this kind. One committee member reportedly said, "If we're adding on to a building, maybe Blue Chip is who we want to use." The committee recommended that new proposals be solicited, if necessary, rather than making an award to Blue Chip, even though they ranked Blue Chip's Second. By letter dated July 6, 1988, Ms. Eby notified Urban Media that its proposal had been selected. Award of the contract has not been accomplished pending the present proceedings.
The Issue Whether Respondent's determination that the bid submitted by Petitioner was non-responsive, was arbitrary, capricious, or beyond Respondent's scope of discretion as a state agency.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the formal hearing, the following relevant facts are made: A. Background The Department issued a Request For Proposal and Bid Submittal Form (BID) for a full service lease, Lease Number 700:0556, seeking to rent office space in an existing facility located in Polk County, Florida. Responses to the BID were to be filed with the Department by 10:00 a.m. on June 12, 1990. Six proposals were timely submitted in response to the BID, including McCarty's and Fearn's proposal. The Department evaluated the six proposals and made site visits to the properties proposed to be leased. The McCarty proposal received the highest evaluation score of 95.4 points, while the Fearn proposal received the second highest evaluation score of 92.6 points. Because the McCarty proposal had been found responsive to the BID and received the highest evaluation score, the Department awarded the lease contract for Lease No. 700:0556 to McCarty. Fearn filed a timely protest challenging the award to McCarty. The Fearn protest was referred to the Division of Administrative Hearings for hearing. However, after the protest was referred to the Division of Administrative Hearings but before McCarty could intervene or a hearing could be held, the Department reviewed the McCarty proposal and found it to be non- responsive. The Department determined that the McCarty proposal was non-responsive because the McCarty proposal was for more space than authorized by the BID and that not all owners of the property proposed to be leased signed the BID. After determining that the McCarty proposal was non-responsive, the Department rejected the McCarty proposal and awarded the lease contract for Lease No. 700:0556 to Fearn. Upon Fearn withdrawing its protest, the Division of Administrative Hearings closed its file by relinquishing jurisdiction to the Department and the Department entered a Final Order dismissing the Fearn protest. By letter dated July 31, 1990, the Department advised McCarty of its decision to reject his proposal as non- responsive and award the bid to Fearn. By this same letter, the Department advised McCarty of his right to file a protest and his right to a formal administrative hearing. B. Lease Space Requirement Prior to issuing the BID the Department submitted to the Department of General Services (DGS) a Request For Prior Approval of Space Need (BPM Form 4405) wherein the Department justified, through a Letter of Agency Staffing, the need for 3,108 square feet of office space to be located in an existing facility in Auburndale, Polk County, Florida. However, the Department requested approval of only 3,017 net square feet. DGS approved the request for 3,017 net square feet of space and the Department issued the BID referred to in Finding of Fact l. The BID requested bidders to submit proposals to lease 3,017 square feet (plus or minus 3%) measured in accordance with Standard Method of Space Measurement and advised the bidder that the space offered must be within the plus or minus three percent required. The maximum square footage requested by the BID was 3,108 square feet (3017 + 3%). The McCarty proposal was for 3,150 square feet or 42 square feet over the maximum requested. The Department was aware of, and considered, the square feet of rental space proposed by each response to the BID in the initial evaluation since it rejected two proposals for exceeding this requirement by 145 and 392 square feet, respectively. The Department apparently considered the excess 42 square feet of space in the McCarty proposal in its initial evaluation but through an oversight failed to reject the McCarty proposal as it had in the other two proposals. Upon the Fearn protest being filed the Department's legal office reviewed the McCarty proposal and determined that the excess 42 square feet of space was a deviation that should not have been waived. At this point, the McCarty proposal was found to be non-responsive. The price per square foot of the McCarty proposal in all years, one through five, was less than the Fearn proposal. The total price of the lease in the McCarty proposal, including the excess 42 square feet, in all years, one through five, was less than the Fearn proposal. There was no evidence that the cost of the McCarty proposal would exceed the amount budgeted by the Department for this lease. C. Signature of Owner(s) and Transfer of Ownership Requirements. At the time McCarty signed and submitted the BID he was co-owner of the property bid with Adrian Gabaldon. Gabaldon was aware that McCarty was offering the property in question for lease to the Department having witnessed McCarty's signature on the BID and having been involved with the Department personnel concerning the BID. Section D. 4. A, General Provision, page 8 of the BID provides in pertinent part: Each proposal shall be signed by the owner,(s), corporate officer(s), or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an agent, written evidence from the owner of record of his/her authority must accompany the proposal McCarty's signature was the only signature, as owner, appearing on the McCarty proposal. Below McCarty's signature the word "owner" was handwritten. Gabaldon signed the McCarty proposal as a witness to McCarty's signature and not as an owner. There is insufficient evidence to establish that at the time McCarty submitted his proposal the property bid was owned by a partnership consisting of McCarty and Gabaldon. There is no printed or typewritten partnership name in the vicinity of McCarty's signature in his proposal or anywhere else in his proposal. Sometime between the date McCarty submitted his BID and the date of the hearing, Gabaldon transferred his interest in the property bid to McCarty. D. General By signing the BID, McCarty agreed to comply with all terms and conditions of the BID and certified his understanding of those terms and conditions. In accordance with Section D.10., General Provisions, page 9 of the BID, all question concerning the specifications were to be directed to C. Donald Waldron. And, although McCarty or Gabaldon may have discussed the space requirement and other matters with certain employees of the Department, they knew, or should have known, that these questions should have been directed to Waldron. Otherwise, the answer could not be relied upon. Neither McCarty or Gabaldon ever contacted Waldron concerning the terms, conditions or specifications of the BID and, more specifically, concerning the space requirement or who was required to sign the BID. Submitted with the Fearn proposal was a letter from Entrepreneur of Tampa as owner of the property bid in the Fearn proposal appointing David Fearn, CCIM and The Fearn Partnership, Inc. as its agent to submit a proposal on behalf of Entrepreneur of Tampa.
Recommendation Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on October 16, 1990 in Tampa, Florida.
