The Issue Whether the Department acted illegally, arbitrarily, dishonestly, or fraudulently when it rejected all of the bids submitted in response to Invitation to Bid No. 97-023-OR. See Section 120.57(3), Florida Statutes (1997).
Findings Of Fact Petitioner ABS is an authorized dealer for Neopost, a manufacturer of mailing equipment. Petitioner is also a Certified Minority Business Enterprise, pursuant to Chapter 287, Florida Statutes. Prior to the subject Invitation to Bid, the Department issued a similar Invitation to Bid. That bid was initially awarded to Pitney Bowes, Inc., but Pitney Bowes, Inc., was unable to meet delivery requirements of that bid, and the Department decided to re-bid. The Department issued the subject ITB No. 97-023-OR on March 10, 1997. Pursuant to its terms, the bid opening was held on April 29, 1997. The subject ITB provides, in pertinent part, as follows: At page 3 of 11 MANDATORY REQUIREMENTS The state has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must", or "will" (except to indicate simple futurity) in this Invitation to Bid/Request for Purchase indicates a requirement or condition from which a material deviation may not be waived by the State. The words "should", or "may" in this /Request for Purchase to Bid [sic] indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (emphasis supplied) At page 6 of 11 MANUFACTURER REPRESENTATIVE Bidder must provide proof of authorized dealership for equipment specified and the beginning and ending term of authorization. (emphasis supplied) SERVICE . . . Service is to be provided direct from the manufacturer. Third party service is acceptable only if it may be demonstrated that the location that is to provide the service can demonstrate 36 months experience in servicing the model proposed. Failure to receive this certification will be sufficient cause for rejection of this bid. (emphasis supplied) The manual signature of Ms. Klusmeier on ABS's April 1997 Bid certified that the bid was in compliance with all requirements of the ITB, "including but not limited to, certification requirements." ABS is not a manufacturer of the mailing equipment it bid. In its Bid, ABS enclosed a certificate issued by the Department's Minority Business Advocacy and Assistance Office certifying that ABS was a Minority Business Enterprise (MBE) under the provisions of Chapter 287, Florida Statutes. However, ABS failed to specifically include proof of authorized dealership for the equipment specified with its bid. At all times material, the Department's MBE office had a copy of ABS' manufacturer-dealer agreement with Neopost (the manufacturer) and an ABS catalogue displaying all the Neopost bid items and stating that ABS is an authorized dealer for Neopost. However, this information was not part of the subject bid response package. Rather, it had been previously submitted by ABS to obtain MBE certification. It was not re-submitted as part of ABS' ITB response package. ABS has manufacturer's (Neopost's) authorized service centers in Florida. ABS intended that ABS and another authorized dealer would provide service in the State of Florida for the equipment it bid. However, ABS failed to include with its Bid a demonstration that either ABS or the other dealer had a minimum of 36 months' experience servicing the Neopost equipment. The November 1996 ITB had requested the same manufacturer and service information as the subject April 1997 ITB, and ABS responded in the same way to both ITB's. ABS was not ruled unresponsive in November 1996 on that basis. In April 1997, ABS also initially was treated as a responsive bidder. On May 1, 1997, the only two bids (ABS and Pitney Bowes, Inc.) were opened by one of the Department's Purchasing Specialists, Oradell Rollins. The Department posted its intent to award the bid to ABS. On May 5, 1997, Pitney Bowes, Inc., the only other bidder for the subject ITB, filed a timely Notice of Intent to Protest with the Department. Pitney Bowes, Inc., is a manufacturer and bidder which services its own products. The Department's Purchasing Office has never established a pattern of accepting an MBE Certificate in lieu of specified bid elements. The Department afforded Pitney Bowes, Inc., an informal protest procedure without notification to, or participation by, ABS. On May 16, 1997, upon request from the Department's Director of Purchasing, ABS immediately forwarded a letter to the Department from Neopost advising that ABS was an authorized Neopost dealer; that ABS and others had been certified by the manufacturer to service the mailing equipment ABS had bid for the subject ITB; and that ABS had been servicing Neopost equipment for more than 36 months. Ms. Rollins had previously requested this information just after bids were opened but had not indicated it was urgent. This type of information is not normally requested after bid opening. The Department's Purchasing Office considered waiving the missing information because its personnel had dealt satisfactorily with ABS on other contracts for a number of years, but such waiver is not the Department's usual procedure. On May 15, 1997, Pitney Bowes, Inc., timely filed with the Department its Formal Written Protest. Petitioner faults this letter's recitation that the Pitney Bowes, Inc., representative saw the alleged flaws in the ABS bid on the day that bids were opened. Petitioner proved that the Pitney Bowes, Inc., representative could not have seen ABS's bid on the day of the bid opening, but the same information could have been derived subsequently. Pitney Bowes' April 1997, Notice of Protest is not in evidence for comparison with its Formal Written Protest. No nefarious dealings or collusion necessarily flows from the foregoing findings of fact. Based upon a review of the Formal Written Protest of Pitney Bowes, Inc., and upon advice of the Department's General Counsel, the Department determined that ABS's bid on the subject 1997 ITB was, in fact, nonresponsive because, when opened, it had failed to contain "proof of authorized dealership," and also had failed to include the required "certification" on "Third Party Service." On May 22, 1997, the Department sent a letter to ABS advising ABS of the Department's decision and further advising that the Department intended to re-bid for the equipment. ABS received the Department's letter on May 27, 1997. The Department's decision to re-bid instead of to award to Pitney Bowes, Inc., was in part determined by its desire to avoid situations in which there is only one responsive bidder. It was also influenced by Departmental concerns that the Pitney Bowes, Inc., bid was much higher than the disqualified ABS bid. Departmental personnel believed that a re-bid would secure a lower cost to the Department. ABS timely filed its Notice of Intent to Protest and its Formal Written Protest. Pitney Bowes, Inc. was given notice of the referral of Petitioner's protest to the Division of Administrative Hearings and chose not to intervene. ABS established that it currently provides mailing equipment for the Department all over the State of Florida and that it coordinates service for that equipment through a Neopost network in all those locations. However, ABS did not establish that it has provided or serviced exactly the same type of equipment for the Department at each of these locations, as ABS bid in April 1997. Over time, ABS has dealt with Purchasing Specialist Oradell Rollins on these other Departmental Contracts. Prior to the subject 1997 bid opening, Mr. Bowls, ABS's "Neopost Government Specialist," had informed her that ABS covered the State of Florida for Neopost. Ms. Rollins had received an ABS catalogue and ABS's MBE Certificate in connection with ongoing business prior to the April 1997 bid opening. ABS does not perceive that ABS using other dealers certified by the manufacturer (Neopost) constitutes ABS using "Third Party" service agents, nor does ABS consider itself to be a "Third Party," as that term is used in the subject ITB. However, the Department has consistently interpreted "Third Parties" to include any dealers who are not simultaneously manufacturers and bidders, and its ITBs require bidders who are not also manufacturers to demonstrate within their Bid that each service location is certified and has 36 months' experience at the time of bid opening.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a Final Order dismissing the protest of American Business Systems and establishing a time frame in which its Invitation to Bid may be relet. RECOMMENDED this 24th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1997. COPIES FURNISHED: Linda Klusmeier, Qualified Representative American Business Systems 8638 Phillips Highway, Room 12 Jacksonville, Florida 32256 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, South East 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, South East 303 Hartman Building Tallahassee, Florida 32399-2152
The Issue The ultimate issues to be resolved in this proceeding are whether the Respondent should award a contract in accordance with an invitation to bid to the Petitioner, to some other bidder, or reject all bids and reissue an invitation. Petitioner contends that it was the low bidder in response to the invitation; that its bid was responsive; and to the extent that it was not responsive, any defects were of a minor sort which should be waived. Petitioner contends that the Respondent has previously waived irregularities such as existed in the Petitioner's bid and should therefore waive them in this case. The Respondent contends that the Petitioner's bid was not responsive, that the irregularities in Petitioner's bid are not minor, that any mistakes the Respondent has made in past acquisitions should not be repeated, and that the contract should be awarded to another company.
Findings Of Fact The Respondent issued an invitation to bid for a project known as the "Animal Science/Dairy Science Building" at the University of Florida. The project was given No. BR-108 by the Respondent. Petitioner was the lowest bidder in response to the invitation. The next lowest bidder, Charles R. Perry Construction Company, submitted a bid approximately $37,000 higher than Petitioner's bid. Perry has not filed any formal protest nor intervened in this proceeding. Petitioner is a responsible contractor and has in the past entered into construction contracts with the Respondent. Petitioner's bid was rejected by the Respondent. The Petitioner protested the rejection of its bid in a timely manner. Paragraph "B-15" of the bid specifications provides in pertinent part, as follows: In order that the Owner may be assured that only qualified and competent sub- contractors will be employed on the project, each Bidder shall submit with his Proposal a list of the subcontractors who would perform the work for each Divi- sion of the Specifications as indicated by the "List of Subcontractors" form contained in these Specifications... only one subcontractor shall be listed for each phase of the work. * * * No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner. Section "B" of the invitation for bid provided space for the bidder to list the name and address of subcontractors for the roofing, masonry, plumbing, mechanical, electrical, meat processing equipment, and controls and instrumentation phases of the project. In Section "B" of its bid, Petitioner listed two subcontractors for the plumbing, mechanical, and controls and instrumentation phases of the project. Listing two subcontractors does not comport with the bid specification requiring that only one subcontractor be listed for each phase. Petitioner listed two subcontractors because one of the subcontractors submitted a proposal to Petitioner only fifteen minutes prior to the time when the bid had to be submitted, and Petitioner was unsure of whether the last-minute proposal included all of the work that the Petitioner anticipated would be required. In addition, Petitioner felt that one of the subcontractors may not have been acceptable to the Respondent. The requirement that bidders list only one subcontractor for each phase of a project helps to discourage "bid shopping." Bid shopping is a practice whereby a contractor who receives a bid from a subcontractor approaches another subcontractor with that bid and encourages the other subcontractor to reduce its price. If the other subcontractor responds, this reduced price can be taken back to the original subcontractor. The original subcontractor is then confronted with the choices of either lowering its bid or losing the project. Bid shopping that occurs after a bid has been accepted by the owner does not benefit the owner. It benefits only the bidder, who is able to reduce its costs and therefore increase its profit. Requiring that one subcontractor be listed for each phase cannot serve to completely eliminate bid shopping. A contractor could still bid shop by listing itself as the subcontractor, then after winning the contract shop between several subcontractors. A contractor could also bid shop by changing subcontractors after the bid award. In either case, however, the contractor would need to secure the approval of the owner. The practice is thus discouraged. If a bidder lists two subcontractors for a phase of the project, that bidder would have an advantage over those who listed only one subcontractor. Listing two subcontractors enables the bidder to make a choice as to the best subcontract bid at a time later than the choice is made by bidders who list only one subcontractor. In addition, listing two subcontractors makes it easier for the bidder to engage in bid shopping, which would be more difficult for bidders who listed only one subcontractor. Paragraph "B-24" of the bid specifications for this project provides in pertinent part: The Contract will be awarded . . . to the lowest qualified bidder pro- vided his bid is reasonable and it is in the best interest of the Owner to accept it. * * * The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The listing of two subcontractors for phases of the project is not a mere informality in the bid. It is directly contrary to Paragraph "B-15" of the bid specifications. It would not be in the interest of the owner to accept a bid in which two subcontractors are listed for phases of the project. The integrity of the acquisition process would be damaged by allowing such a deviation because a bidder who listed two subcontractors would have gained an advantage over bidders who complied with the bid specifications. It is not in the best interest of the Respondent to waive the defect in the Petitioner's bid. On at least two prior occasions, the Respondent awarded contracts to bidders who listed more than one subcontractor per phase of the work. One of these projects was for a gymnasium at Florida Atlantic University (Project No. BR-603). Another was for a window replacement project at Florida State University (Project No. BR-342). In at least three other projects, the Respondent awarded contracts where the bidder failed to list the name of any subcontractor for one or more phases of the work. These were for the cancer center at the University of South Florida (Project No. BR-569), the student housing facility at the University of South Florida (Project No. BR-576), and an expansion project at Florida A & M University (Project No. BR-343). The bid specifications for all of these projects were not offered into evidence; however, the Respondent had utilized the same specifications as required in this project at all pertinent times. Failing to list any subcontractor for a phase of a project constitutes approximately the same defect in a bid response as listing two subcontractors. It provides even greater opportunities for bid shopping and an advantage to the bidder over those who list subcontractors as required by the specifications. In several other projects, it appears that the Respondent has awarded contracts to bidders whose bids contained defects of the same magnitude, but a different sort than the listing of two subcontractors. It does not appear that the Respondent has awarded contracts where bidders have listed more than one subcontractor, no subcontractor, or otherwise violated bid specifications because of any policy or because of any expressed waiver of the defect. Rather, it appears that the Respondent has not adequately policed bids to determine responsiveness to the bid specifications. This is especially true with respect to the listing of subcontractors. It appears that no one on the Respondent's staff took the responsibility to consider whether one subcontractor was listed for each phase of a project as required in the specifications. The only policy that the Respondent established was a policy of being too lax in examining bids. The Petitioner did not list two subcontractors for various phases of this project because of any reliance on past conduct of the Respondent. Petitioner's agent overlooked the bid requirements in Preparing its bid response. In prior bids submitted by the Petitioner in response to bid invitations issued by Respondent, Petitioner listed only one subcontractor, as required. Generally, unless it is otherwise required, Petitioner prefers to list two subcontractors because of the flexibility it provides to the owner and to Petitioner. Petitioner was not aware that Respondent had previously awarded contracts to bidders who listed more than one subcontractor for a phase of the work when it submitted its bid in this instance.
Findings Of Fact Background On February 23, 1988, Respondent, Department of General Services (Department), issued an invitation to bid (ITB) numbered 218-285-400-6, whereby it sought to establish a 24-month term contract for the purchase of large lamps, photo lamps, and studio, theatre, television, and video lamps by all State of Florida agencies. By April l, 1988, the bid opening date, four bids had been filed with the Department. On April 12, 1988, the bid results were posted by the Department. The bid results revealed that Petitioner, Mercedes Lighting and Electrical Supply, Inc. (Mercedes), was the lowest bidder and that Intervenor, Marpan Supply Company, Inc. (Marpan), was the second lowest bidder. The bid results further revealed that the bid of Mercedes had been rejected because it did not include a list of in-state service representative(s) as required by the ITB, and that the Department proposed to award the contract to Marpan. On April 12, 1988, Mercedes timely filed its notice of protest with the Department. Along with its notice of protest, Mercedes submitted a list of its in-state service representatives, and noted on its letter of transmittal that this list was "not included at time of bid." The bid documents Pertinent to this case, the ITB contained the following special condition: Service Availability of in-state representation to assist in proper application and to resolve technical problems is a requirement of this bid and the resulting contract. Bidders must, therefore, include as part of the bid a list of in-state service representative(s) who will be responsible for providing these services during the term of the proposed contract. Failure to comply with this requirement will result in disqualification of bid. . . . The coordination effort will be handled by the specific individual designated on the ordering instruction sheet. The ITB also contained the following general condition: 7. INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the Invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A 1.006, Florida Administrative Code. 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. Mercedes did not protest the bid specifications or conditions within 72 hours after receipt of the ITB, nor did it seek any interpretation of the conditions specifications. Notably, the only protest filed by Mercedes was after the bid opening. The bid protest At hearing, Mercedes contended that its bid complied with the ITB because it included a list of Mercedes' in-state service representative(s) or, alternatively, that its failure to include a list of its in-state representative(s) was a minor irregularity that the Department should waive. 1/ Mercedes contends that its bid included a list of in-state service representatives, and therefore was responsive to the ITB, because of its response to page 11 of the bid package entitled "Ordering Instructions", and because there appeared on the back of the manufacturer's catalogs and price list, submitted with its bid, a Florida sales office for the manufacturer at which sales and technical information could be obtained. Mercedes' contention and the proof offered to support it are not credible. The form included at page 11 of the ITB provided, and was responded to by Mercedes, as follows: ORDERING INSTRUCTIONS NOTE: ALL ORDERS SHOULD BE DIRECTED TO: FEDERAL EMPLOYER IDENTIFICATION NUMBER (FEID) : 59-1891811 VENDOR: Mercedes Lighting and Electrical Supply, Inc. STREET ADDRESS OR P.O. BOX: 7354 SW 48th St. CITY, STATE, ZIP: Miami, Florida 33155 TELEPHONE: (305) 665-5550 TOLL FREE NO: DELIVERY: DELIVERY WILL BE MADE WITHIN SEE PAGE 4 DAYS AFTER RECEIPT OF PURCHASE ORDER. DELIVERIES IN EXCESS OF SEE PAGE 4 DAYS WILL NOT BE CONSIDERED. TEAMS FOR PROMPT PAYMENT; NET percent 30 DAYS PRODUCT INFORMATION; DIRECT INQUIRY TO: (NAME, ADDRESS, AND TELEPHONE NUMBER OR INDIVIDUAL IN YOUR ORGANIZATION WHO MAY BE CONTACTED REGARDING CONTRACT WHICH MAY RESULT FROM THIS BID.) NAME AND TITLE: Victor J. LaPorta, Vice President ADDRESS: 7354 SW 48th St. CITY, STATE, ZIP: Miami, FL. 33155 TELEPHONE: (305) 665-5550 TOLL FREE NO.: Mercedes did not indicate in its response to the "Ordering Instructions" form that Mr. LaPorta was its in-state service representative, and its response could not reasonably be so construed. The individual a bidder designated on this form was, pursuant to the special condition of the ITB regarding "Service", the coordinator between a purchaser and the in-state service representative. Mercedes' contention that its bid included a list of its in-state service representatives, because the manufacturer's technical catalogs and price list submitted with its bid contained the location and phone number of the manufacturer's sales office in Florida, in addition to 23 other states, is incredible. The manufacture's technical literature and price list was, pursuant to the special conditions of the ITB, a required part of the bid. While the manufacturer may have listed its sales offices on the back of its literature, there is nothing in Mercedes' bid that remotely suggests it intended that listing to be considered its list of in-state service representatives, nor could its response reasonably be so construed. In rejecting Mercedes' contention that its bid was responsive to the ITB, and rejecting its proof as inherently improbable and unworthy of belief, I note that the Department has issued similar ITB's for a number of years. But for the language in this ITB advising bidders that failure to include a list of in-state service representatives would result in disqualification of the bid, the service provision has remained essentially the same, as has the "Ordering Instructions" form and the requirement that the manufacturer's technical literature and price list be included in the bid. When this same contract was let two years ago, Mercedes was a bidder. Included within its response to that ITB was a list of its in-state service representatives. A minor irregularity? While Mercedes did not protest the terms and conditions of the bid within 72 hours of receipt of the ITB, it offered proof at hearing which tended to demonstrate that the demand for technical assistance under the state contract was not frequent. Based on this premise, Mercedes contended that its failure to include a list of in-state service representatives with its bid was a minor irregularity that should be waived by the Department. Again, Mercedes' contentions are not persuasive. Whether the demand for technical assistance is frequent or infrequent may be germane to a timely challenge to the propriety of the ITB requirement that a list of in-state service representative included in the bid. However, where, as here, the bidder did not protest such condition in a timely manner, it has waived its right to a Chapter 120 proceeding to contest its propriety. Under such circumstances, the protest is limited to whether the failure to include such a list was a minor irregularity, and the frequency of demand for technical assistance is not relevant. 2/ Minor irregularity is defined by Rule 13A-1.002(10), Florida Administrative Code, as: ...a variation from the invitation to bid... which does not affect the price of the bid..., or give the bidder... an advantage or benefit not enjoyed by other bidders..., or does not adversely impact the interests of the agency. Variations which are not minor can not be waived. The ITB mandated that failure to include a list of in-state service representatives with the bid would result in the bid's disqualification. Under such circumstances, Mercedes cannot be permitted to correct the deficiency after bid opening, and the deficiency cannot be deemed minor, because it would accord Mercedes an advantage not enjoyed by other bidders. Succinctly, Mercedes could revisit its bid on bid opening, refuse to supply the required list, and thereby effectively disqualify itself and withdraw its bid. The other bidders who timely submitted their lists would not have an opportunity to revisit their bids or withdraw their bids, but would be held to the provision of the ITB that prohibited such withdrawal for 90 days after bid opening. A frivolous protest Mercedes' protest was frivolous. It presented no justifiable question for resolution, and was without basis In fact or in law. Mercedes knew when it submitted its bid that a list of in-state service representatives was required. It simply forgot to include that list. When this oversight was disclosed at bid opening, it tried to supplement its bid. This effort, for the reasons set forth in the conclusions of law, was ineffective. Now, Mercedes would have the hearing officer believe that it intended its response to the "Ordering Instructions" form, as well as the manufacturer's technical literature and price list included in the bid, as its list of in-state service representatives. Such proof is not credible, such was not Mercedes' intent, and its response cannot reasonably be so construed. Mercedes' contention that its failure to include such list should be waived as a minor irregularity is likewise factually and legally without merit. See Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982), wherein this issue was previously resolved adverse to the position advocated by Mercedes. The impact of the protest The current term contract for lamps expires June 9, 1988. Upon expiration of that contract, state agencies will not be accorded the savings generated by a term contract and will be required to competitively bid any lamp purchase over $3,000. Had Mercedes not protested the Marpan award, state agencies would have enjoyed continued savings under a term contract that would have provided them prices 50 percent lower than could be obtained through individual agency bids.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by Mercedes Lighting and Electrical Supply, Inc. DONE AND ENTERED In Tallahassee, Leon County, Florida, this 3rd day of June, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1988.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The South Florida Water Management District (hereinafter "District") advertised for bids on Contract No. M-0137, Bid No. B-85-91, for the construction of a structure maintenance facility. The Specifications and Contract Documents for the project required that bidders submit a "Base Bid," which related to the essential components of the project, and three "add alternates," which related to additional items that the District might contract for over and above the Base Bid. The Notice To Contractors regarding this project included the following language: The right is reserved, as the interest of the District may require, to reject any or all proposals, to waive any informality in the proposal, or to readvertise for other or future proposals. Paragraph 2 of the Instructions To Bidders includes the following language: "The intent of the Proposal Form is to secure a price, based on unit prices, for the work described in the Contract. . . ." (emphasis added) Paragraph 4 of the Instructions To Bidders reads as follows: The District reserves the right to reject any and all proposals (i) when such rejection is in the interest of the District; (ii) if such proposal is void per se; or (iii) if the proposal contains any irregularities, PROVIDED, however, that the District reserves the right to waive any irregularities and to accept the lowest responsible bidder's proposal determined by the Engineer on the basis of the gross sum for which the work will be performed, arrived at by a correct computation of the base bid plus the alternate bid item or items selected by the District. Bid items will be considered by the District on the has is of budgetary capability. (First emphasis in original; second emphasis added.) Paragraph 5 of the Instructions To Bidders reads as follows: Proposals will be considered irregular if they show omissions, unauthorized alterations of form, additions not called for, conditional or unauthorized alternate bids, or other irre- gularities of any kind; also if the unit prices are unbalanced either in excess of or below the reasonable cost analysis values, or incomplete in any manner, including failure to bid on all items on the bid form. Paragraph 8 of the Instructions To Bidders reads as follows: No proposal can be withdrawn after it is filed unless the Bidder makes his request in writing to the District prior to the time set for the opening of bids, or unless the District fails to accept it within sixty (60) days after the date fixed for opening bids. Paragraph 10 of the Instructions To Bidders reads as follows: No interpretation of the meaning of the Plans, Specifications or other Contract Documents will be made to any Bidder orally. Every request for such interpretation should be in writing addressed to the Engineering & Construction Division, South Florida Water Management District, 3301 Gun Club Road, Post Office Box V, West Palm Beach, Florida, zip code 33402, and to be given consideration must be received at least Ten (10) calendar days prior to the date fixed for the opening of bids. Any and all such interpretations and any supplemental instructions will be in the form of written Addenda to the Specifications which, if issued, will be mailed by registered mail to all prospective bidders (at the respective addresses furnished for such purposes) not later than Five (5) calendar days prior to the date fixed for the opening of bids. Failure of any bidder to receive any such Addendum of interpretation shall not relieve any bidder from any obligation under his bid as submitted. All addenda so issued shall become part of the Contract Documents. The bid items are described in Section 01021 of the Specifications and Contract Documents. Subsection 1.01 of that Section describes what is included in the Base Bid as follows: The Base Bid includes all work shown on the plans and called for in the specifications for: Structure Maintenance Facility, complete. Building utilities including all rough-in required for alternate bid items whether or not alternate bids are accepted. Site work including utilities. All other costs of the project not attributable to Items 1 thru 3 above or Alternate Bid Nos. 1 thru 3 below. Subsection 1.02 of Section 01021 describes what is included in Alternate Bid No. 1 as follows: In the Base Bid all structural supports to receive the monorail trolley beams and hoists are included. Alternate No. 1 includes all work shown on the plans and called for in the specifications for two 15 ton capacity monorail hoists and trolley beams complete and operational. Work includes all final utility connections to points indicated on drawings, shipping, unloading at site, installation and final check-out and instruction to owner on operation of equipment as well as all other costs not attributable to items previously mentioned. Subsection 1.03 of Section 01021 describes what is included in Alternate Bid No. 2 as follows: In the Base Bid all mechanical and electrical rough-in is to be provided for the two offices and the toilet and locker rooms above. Alternate No. 2 includes all costs over the Base Bid for completing the offices, toilets and locker rooms including all plumbing and lighting fixtures, partitions, lockers finishes, structure and metal stair as indicated and specified in the applicable sections of these specifications. Subsection 1.04 of Section 01021 describes what is included in Alternate Bid No. 3 as follows: The Base Bid includes all site grading to finish elevations indicated. Alternate No. 3 includes all costs over the Base bid for providing subsurface preparation and asphaltic concrete paving to finish elevations indicated as described in Section 02513 for all areas where asphaltic concrete paving is shown. In September of 1984 the District had received bids for a similar project. Similar contract documents and bid forms were used for the project. Cox & Palmer Construction Company, Overland Construction Company, Inc., and Booth Construction, Inc., all submitted bids on the September 1984 project. All of the bids submitted on the September 1984 project, including the Booth bid, were submitted on an add alternates" basis. All of the September 1984 bids were rejected. A total of seven bidders submitted bids on the instant project. With the exception of Booth Construction, Inc., all of the bidders on the instant project calculated their bids on an "add alternates" basis. It was the clear intent of the architecture firm that prepared the Specifications and Contract Documents that the bids should be submitted on an add alternates" basis. There were no irregularities in the bidding process regarding the instant project prior to the opening of the first bid. At the duly appointed time a representative of the District began the process of opening and announcing the amounts of the bids. The first bid to be opened was the bid submitted by Overland Construction Company, Inc. The amounts bid by Overland were as follows: Base Bid $ 378,800 Alternate No. 1 64,000 Alternate No. 2 18,000 Alternate No. 3 11,200 Immediately after the announcement of the amounts bid by Overland, Mr. York, the Director of the District's Engineering and Construction Division, asked, "Is that an add-on or deduct?" Someone in the audience answered that it was an "add-on" bid. Mr. Gerachi, on behalf of Booth, promptly stated that the alternates should have been bid as "deducts". A general discussion ensued among members of the audience regarding whether the alternates should have been bid as "add-on" or "deducts." In order to continue with the bid opening process and to restore order in the room, a representative of the District announced that the matter would be resolved when the bids were tabulated and another representative of the District began the process of opening the rest of the bids. The bid submitted by Booth Construction, Inc., was the fourth bid to be opened. The amounts written on the Booth bid were as follows: Base Bid $ 396,586 Alternate No. 1 54,072 Alternate No. 2 14,597 Alternate No. 3 9,185 Immediately after the amounts of the Booth bid were announced, Mr. Alvin Booth, president of Booth Construction, Inc. stood up and stated that the Booth bid had been calculated on the basis of "deduct" alternates. The essence of his statement was that in calculating the amount of his company's Base Bid he had added to the base bid the sum of the three alternate bids with the understanding that the amounts shown for any of the three alternates would be deducted from his Base Bid if the District decided not to award a contract for one or more of the alternates. This statement following the opening of the Booth bid was the first time that anyone on behalf of Booth had made a specific unambiguous statement to representatives of the District responsible for this bidding process regarding the manner in which the Booth bid was calculated. 1/ The bid submitted by Cox & Palmer Construction Company was opened after the Booth bid. The amounts bid by Cox & Palmer were as follows: Base Bid $ 392,225 Alternate No. 1 38,770 Alternate No. 2 19,200 Alternate No. 3 11,456 The bid submitted by Booth Construction, Inc., was prepared by both Vincent Gerachi, an estimator and project manager employed by Booth Construction, Inc., and by Alvin Booth, president of Booth Construction, Inc. Mr. Gerachi has been an estimator on construction projects for approximately 12 years. Mr. Booth has been in the construction business for approximately 30 years and has had his own construction company for about 18 years. Both Mr. Gerachi and Mr. Booth were uncertain whether the alternate bids were supposed to be bid as "add-ons" or as "deducts." Neither of them attempted to do anything to resolve their uncertainty until the morning of the very day on which bids were to be submitted. On that morning Mr. Gerachi called a representative of the District to ask whether the bid should be prepared with the alternate bids calculated as "add-ons" or as "deducts." Mr. Gerachi spoke to Mr. Brown at the District, who suggested that Mr. Gerachi call the architecture firm that had prepared the Specifications and Contract Documents. Notwithstanding the provisions of Paragraph 10 of the Instructions To Bidders (see paragraph 6 of these findings of fact, above), it is a customary practice of the trade for bidders to communicate directly with project architects to resolve any uncertainties in the Specifications and Contract Documents. Indeed, it is generally understood in the trade that it is the duty of the bidder to communicate with the project architect to seek resolution of any ambiguities. Mr. Gerachi tried to reach the project architect by telephone, but was unable to reach him because the architect had already left his office to drive to the bid opening. Mr. Gerachi did not have an opportunity to talk to the architect prior to filing the Booth Construction bid because the architect did not come into the bid opening room until about one minute after 2:00 p.m. Mr. Gerachi talked to Mr. and Mrs. Booth before turning in the Booth bid. Mr. Gerachi prepared the Booth bid with the alternate bids calculated as "deducts" from the Base Bid. In other words, the amount of the Base Bid on the Booth bid included the sum of the three alternate bids, which alternate bids were also separately stated on the Booth bid. Alvin Booth participated in the preparation of the bid and was aware of the manner in which the Booth bid was calculated before the bid was submitted to the District. Even though the Base Bid on the Booth bid is in the amount of $396,586, it was the intention of Booth Construction, Inc., to bid $318,732 for the work described as being within the scope of the Base Bid. The reason for the higher amount being entered for the booth Base Bid is that Vincent Gerachi and Alvin Booth misinterpreted the Specifications and Contract Documents and added to the Booth Base Bid the sum of the Booth bids on each of the three Alternate Bids. 2/ This misinterpretation of the Specifications and Contract Documents was caused by the culpable negligence or willful inattention of Vincent Gerachi and Alvin Booth. After all of the bids were opened a representative of the District announced that the District would consider the matter and notify all bidders of its decision at a later date. Thereafter the District, having concluded that Booth Construction, Inc., had acted in good faith and that the irregularities in the form of its bid were "minor irregularities," decided to treat the oral statements by Mr. Gerachi and Mr. Booth as amendments to the Booth bid, to treat the Booth Base Bid as being $318,732, and to award a contract to Booth Construction, Inc., for the Base Bid and Alternate No. 1 in the amount of $372,804, calculated as follows: $318,732 (Amended Booth Base Bid) 54,072 (Booth Alternate No. 1 Bid) $372,804 (Total Contract) Booth Construction, Inc., has the ability to perform the contract and can perform the contract for the proposed contract amount of $372,804. Booth Construction, Inc., is a responsible bidder. The District estimate of the cost of the work covered by the Base Bid and Alternate No. 1 was $329,000. There are no irregularities in the bid submitted by Cox & Palmer Construction Company. Cox and Palmer Construction Company is a responsible and responsive bidder. The bid submitted by Cox & Palmer is the lowest responsive bid for the combination of the Base Bid and Alternate No. 1. 3/ The foregoing findings of fact include the substance of the majority of the findings proposed by the parties, although I have rejected a number of unnecessary details and editorial comments in the parties' proposals. Any proposed findings which are not incorporated in the foregoing findings are rejected on the grounds of not being supported by competent substantial evidence or as being contrary to the weight of the persuasive evidence.
Recommendation Based on all of the foregoing, I recommend that the South Florida Water Management District enter a Final Order to the following effect: Concluding that the irregularities in the Booth Construction, Inc., bid may not be waived and that the bid will be considered, as submitted, to be a Base Bid in the amount of $396,586; Concluding that in view of the foregoing treatment of the Booth bid, the bid of Palmer & Cox Construction Company is found to be the lowest responsive bid for the Base Bid plus Alternate No. 1; Concluding that the District will accept the bid of Palmer & Cox Construction Company and enter into a contract with Palmer & Cox Construction Company consistent with the amounts bid by Palmer & Cox Construction Com- pany for the Base Bid and Alternate No. 1; and Concluding that the petition of Overland Construction Company, Inc., is dismissed for lack of standing. DONE AND ORDERED this 9th day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1985.
Findings Of Fact On February 25, 1994, DACS issued an Invitation to Bid ITB/DF-93/94-49 to obtain competitive bids for contractual services involving a biological assessment of approximately 44,334 acres of the Goethe State Forest in Levy County, Florida. The Invitation to Bid provided that the bids received would be opened at 2:30 p.m. on March 21, 1994. The Special Terms, Conditions and Specifications of the Invitation to Bid provided that references submitted by the bidder must be those of the bidder. The General Conditions of the Invitation to Bid provided that the Department may waive any minor irregularity or technicality in the bids received. Bids must be evaluated upon the information furnished with the bid. No other information is used. At the bid opening, Conway was the apparent low bidder at $0.71 per acre for a total of $31,477.14, and Environmental Services was the apparent second low bidder at $1.0438 per acre for a total of $46,275.66. ESP's bid was approximately 47 percent higher than Conway's bid. ESP's bid was responsive to the ITB and ESP is qualified to perform the work required under the ITB. Conway submitted three references with its bid. However, Conway's three references were for work previously performed by Ms. Duever as an individual or as an employee of another company. The references were not those of the bidder, Conway. Linda Duever, the sole officer and director of Conway Conservation, Inc., read the invitation to bid and was aware of the specific requirement for references of the bidder. Ms. Duever thought the Department and the Invitation to Bid emphasized the importance of similar work to that sought by the Department. She did not seek information about the reference requirements, even though she had some doubt about the references she was submitting, thinking she could supplement the bid later if necessary. Nor did she protest the specifications within the timeframes established by Chapter 120, Florida Statutes. Conway is a closely January 26, 1993. However, Conway Conservation, Inc., and Linda Duever are two separate and distinct entities. The evidence demonstrated that the references of the bidders were an important part of the information to consider in the award of this bid since the references indicated that the bidder had the expertise to perform the work required in the bid but also had the financial wherewithal to complete such work and hire the necessary personnel or subcontractors to successfully complete the work required in the Invitation to Bid. In this case, Petitioner's references demonstrated expertise in the areas of knowledge required to complete a biological survey. However, what the references did not show and could not show because they did not reflect business done by Conway, was the financial ability of Conway to adequately complete a biological survey. Such information was very important to the Department and was not a minor irregularity nor technicality which could, or should, have been waived by DACS. Given these facts Petitioner's bid was not responsive to the Invitation to Bid and the Department was correct in rejecting Petitioner's bid and awarding the project to ESP. Finally, Conway is not certified by the Department of Management Services as a minority business enterprise pursuant to Section 288.703(4), Florida Statutes, although the evidence demonstrated that Petitioner could easily be so certified. However, bidder's minority status, either certified or not certified, does not change the result in this case. Status as a Minority Business Enterprise was not a consideration in this bid award. Therefore, Minority Business Enterprise status, or lack thereof, did not and could not have had any impact on the outcome. Moreover, the Department has no authority to change the terms and conditions under which a bid is to be awarded after the bids are opened in order to grant more favorable treatment to a potential minority business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order in this case dismissing Petitioner's formal protest and awarding the contract for the Project to Environmental Services and Permitting, Inc. DONE AND ENTERED this 7th day of July, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 7th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2121BID The facts contained in paragraphs A, B, D, E, F, G, H, I, K, L, M, O, Q, R and S, of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs C, J, N and P of Petitioner's Proposed Findings of Fact were subordinate. The facts contained in paragraphs 1, 2, 4, 5, 8, 9, 10, 12, 13 and 14 of Petitioner's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 6, 7, 11, 15, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 17 and 18 of Petitioner's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: Isadore Rommes Senior Attorney Legal Office 515 Mayo Building Tallahassee, FL 32399-0800 Kent A. Zaiser P. O. Box 6045 Tallahassee, FL 32314-6045 Richard Tritschler General Counsel The Capitol, PL-10 Tallahassee, FL 32399-0810 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, FL 32399 John T. Lavia, Esquire Landers & Parsons, P.A. Post Office 271 Tallahassee, Florida 32302
The Issue This is a bid protest proceeding to determine whether the Respondent, State of Florida, Department of Education acted arbitrarily, dishonestly, fraudulently, or illegally in proposing to award Intervenor, Tab Products of Central Florida, the contract called for in the Department's Invitation to Bid No. 94-28 for "High Density Mechanical & Electrical Compact Shelving" for the Division of Blind Services Library, Daytona Beach, Florida.
Findings Of Fact Background On January 21, 1994, the Department of Education (DOE) released its Invitation to Bid (ITB) on Bid Number 94-28 for "High Density Mechanical & Electrical Compact Shelving for Division of Blind Services Library, Daytona Beach, Florida." The ITB solicited bids for the manufacture, delivery, and installation of several high density mobile storage systems. These systems consist of a series of wheeled carriages which move along a set of rails installed in the concrete floor. The equipment specifications address the need to have the rails leveled over an uneven floor. For the purposes of this ITB, shelving units for the storage of library materials are to be mounted on top of the mobile carriages. The ITB requires vendors to bid on a "mechanically assisted" carriage system in which selected carriages are moved by a manual crank to create an aisle within one area of the system and electrically powered carriage systems in which electric motors move the carriages necessary to create aisles in another part of the library. DOE received timely bids in response to its ITB from Spacesaver/United Business Systems, Tab and Advanced Manufacturing/Gaylord (Advanced Manufacturing). The bids submitted by each bidder were as follows: Advanced Manufacturing $411,558.72 Tab $463,439.00 Spacesaver $515,802.00 Advanced Manufacturing was the low bidder on the project. However, in accordance with the terms of the ITB, DOE rejected Advanced Manufacturing's bid as nonresponsive because Advanced Manufacturing submitted an unacceptable alternate warranty, failed to submit an Underwriters Laboratories certification, and failed to submit a proposed rail plan for each system. System Capacity The ITB calls for carriages of 1000 pounds per foot capacity. The longest electrically powered carriage called for in the ITB is approximately 75 feet 5 inches. Combining these separate specifications, the ITB can therefore be read as requiring electrically powered systems with a total weight capacity of approximately 76,000 pounds, although no 76,000 pound weight requirement is expressly set forth in the ITB. An undated brochure advertising Tab's products was introduced at the hearing by Petitioner. The brochure states that Tab offers electrically powered systems with a capacity of "1,000 pounds per carriage linear foot." The brochure also states: "Choose (five-inch) high profile carriages with maximum lengths of 80 feet for weights up to 60,000 pounds. Longer carriages are available upon request, pending load limit and application." (Petitioner's Exhibit 5) The advertising brochure was not submitted to DOE as part of Tab's bid. Tab's systems include carriages rated at 1000 pounds per carriage foot, as required by the ITB. The specifications that Tab submitted with its bid regarding its electrical mobile shelving system expressly state that: "Motors shall be of sufficient horsepower so amperage rating on motor is not exceeded when motor is at operating speed driving a fully loaded carriage." (Joint Exhibit 2, p. 10 TAB-TRAC Electrical System Specification 4.0) Tab's bid did not otherwise address the capacity of the system and in no way indicated an intent to provide an electrically powered system with less than the required capacity. Tab's electrical mobile shelving system bid in response to the ITB has a capacity of at least 1000 pounds per foot and a total weight capacity of at least 150,000 pounds -- nearly twice the capacity called for in the ITB. At the time that Tab submitted its bid, Tab had submitted its electrically powered system for testing by the Underwriters Laboratories (U.L.) loaded at 60,000 pounds. U.L. does not test for weight capacity of a mobile storage system. After Spacesaver filed its petition alleging that Tab's system could not meet the capacity requirements of the ITB, Tab requested that U.L. retest its electrical mobile storage system. For the retesting, Tab loaded its system with 90,000 pounds of weight. U.L. successfully tested Tab's electrical system using carriages 90 feet long loaded with 90,000 pounds. These tests were performed using the identical system specified in Tab's bid. U.L. Listing Requirement A U.L. listing is a service of the Underwriters Laboratories to evaluate products to determine if those products are thermally and electrically safe. U.L. "listing" indicates that a system has been evaluated as a whole, as opposed to U.L. "recognition" of individual components. The ITB requires that the systems bid be listed by the Underwriters Laboratories. The ITB also required a certification that the systems were U.L. listed. Tab bid its mechanical storage system model "MEBSSAR" and its electrical storage system model "E-3A." Both are U.L. listed. Tab's bid included the required U.L. listing certification card from U.L., certifying that its mechanical storage model MEBSSAR and its electrically powered system E-3A were listed as required by the ITB. The designation of storage model "MEBSRAR" on page CB5 of Tab's bid response is a plain and obvious typographical error. Prior to submission of Tab's bid, the tests that U.L. had performed of the electrical systems on Tab's E-3A model were performed using carriages loaded at 60,000 pounds of weight. U.L. tests mobile storage systems at any length and with any weight load desired by the manufacturer, and does not test weight capacity of mobile storage systems. There was no evidence to demonstrate that Tab violated any rule or standard of the U.L. by bidding for a contract that called for more weight than Tab put on its system when U.L. had previously tested the system. The Underwriters Laboratories tests systems even after they are installed. The system which U.L. retested at Tab's request for 90,000 pounds of weight after the bid is precisely the same system that was included in Tab's bid to DOE. Discrepancy Between Rail Plan and Drawings The ITB required submission of a proposed rail plan stating the number of rails proposed and the length of rails for each area covered by the contract. The ITB also required submission of proposed rail plan drawings. Tab submitted both the plan and proposed drawings. However, the number of rails stated in Tab's rail plan conflicts with the number of rails shown on two of Tab's drawings (the drawings for areas 2A and 4) due to scrivener's errors in the preparation of the rail plan and drawings. After the protest, Tab notified DOE that it intended to use seven rails in area 4, as shown on the rail drawing for area 4 submitted with Tab's bid, and as indicated for area 2B (which has the same length carriage as area 4). For area 2A, Tab's rail plan proposes using 13 rails while Tab's drawing shows 14 rails. The DOE review panel did not count the number of rails in each bidder's plan as part of its review. DOE's purpose in requesting proposed rail plans was to give the review panel a general idea as to the proposed lay-out so that DOE could confirm that the bidder understood the basic lay-out that DOE desired -- not to require final plans or drawings. There was no requirement in the ITB for submission of final drawings and there was no evidence that any bidder submitted final drawings. The ITB does not require that final installation conform precisely to the proposed drawings. The ITB did not specify the number of rails required. The number of rails ultimately installed will affect the ultimate cost of installation to Tab. However, Tab bid a firm price to DOE for the manufacture, delivery and installation of each system according to the bid specifications. The number of rails that will ultimately be installed in any of the areas of the project cannot be determined until the time of installation, when existing shelving is removed and the uneven level of the concrete floor is evaluated. ADA Compliance The ITB required that the system installed comply with the Americans With Disabilities Act (ADA). The ADA requires ramps with a slope not greater than one inch of rise to each twelve inches of run. The ADA also requires unobstructed perimeter aisles of 60 inches. To prevent obstruction of aisles, the ITB prohibits ramps extending beyond the face of the system. Petitioner asserts that Tab's system will not comply with the ADA. This assertion is based on the assumption that Tab will build its system so that rails are spaced according to the distance between rails (rail centerline or rail spacing measurements) indicated in two of the drawings submitted with Tab's bid. Tab will not build its system based on the rail centerline measurements indicated in its proposed drawings. Those measurements are inaccurate. Rail centerline measurements were not required by the ITB. Spacesaver included no rail centerline measurements in its bid. The rails necessary for mobile storage systems are mounted on top of the existing floor. The space between the rails is raised so that the floor inside the system (the system floor) is level with the tops of the rails. The ramps necessary for mobile storage traverse the space from the floor outside the system (the existing floor) to the raised system floor. The edge of the system floor is the outer-most rail. Thus, the end (or top) of the ramp is the outer- most rail. Because the ITB forbids ramps extending into the perimeter aisles, the end of the carriages is the beginning (or bottom) of the ramp. All rails must be level with all other rails. Low spots in the floor must be filled to raise all rails to the same level. The fill necessary to make the rails level increases the total height of the system floor and, consequently increases the total rise (or height) that must be traversed by the ramp. Because the fill increases the total height, it also increases the length of the ramp necessary to comply with the requirements of the ADA. Thus, the height of fill, rails, and system floor, the length of the ramp and the necessary distance of the outermost rail from the outside of the carriage all vary depending upon the uneven level of the existing floor. Moving rails is the only option to increase ramp length because the ITB forbids ramps extending beyond the end of the carriages to prevent obstruction of exterior aisles. Tab employees made several visits to the site where the storage systems were to be installed. They were unable to determine the ultimate system height because existing fixed shelving prevented determination of the levelness of the existing concrete floor. Consequently, just as the number of rails needed cannot be finally determined until the existing situation is assessed, neither can the rail spacing dimensions be determined. DOE's purpose in requesting proposed rail plans was to give the review panel a general overview of the proposed lay-out -- not to require final drawings or to show compliance with the ADA. The ITB did not require drawings to demonstrate compliance with the ADA and TAB did not submit its drawings for that purpose. Except for the superfluous rail centerline measurements, Tab's drawings do indicate compliance with the ADA as to those items shown on the drawings. The drawings submitted with Tab's bid show aisle widths that comply with the ADA. Tab's drawings do not portray rails extending beyond the faces of the carriages. The ITB did not require that ramps or ramp slopes be shown on any drawings and Tab's drawings do not show ramps or ramp slopes. Tab is bound by its bid to comply with the standards of the ADA and intends to install its system to meet all ADA requirements. Tab has previously installed at lease 12 systems where ADA compliance was required.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Education award the contract to Tab Products Co. and Tab Products of Central Florida, as the lowest responsive joint bidder. DONE AND RECOMMENDED this 17th day of June, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1475BID The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings The following are adopted in substance: paragraphs 1-6, 10, 13, 16-19, 22- 23, 26, 28, 42. The following are rejected as unnecessary: paragraphs 7-9, 11-12, 20-21, 24-25, 27, 29-34, 36, 42-43, 46-51. The following are rejected as contrary to the weight of evidence: paragraphs 15, 35, 37-41, 44-45. Respondent's Proposed Findings are Adopted in Substance. Those that are not specifically adopted are deemed surplusage or argument. COPIES FURNISHED: Dean Andrews, Esquire Assistant General Counsel State Board of Education The Capitol, Suite PL-08 Tallahassee, Florida 32399 Martha Harrell Chumbler, Esquire Post Office Drawer 190 Tallahassee, Florida 32302 C. Alan Lawson, Esquire Jonathan Sjostrom, Esquire 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 Douglas L. Jamerson, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400 Barbara J. Staros, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact In November, 1990, the Respondent, the Department of State, sought proposals for the lease of office space for its Division of Licensing. On or prior to December 7, 1990, the proposal opening date, at least six proposals were received by the Respondent. Those proposals were designated by the Respondent as "Tallahassee Associates" (the Petitioner's proposal), "Crossland Agency" (the Intervenor's proposal), "Woodcrest A", "Woodcrest B", "T.C.S." and "DeVoe". On January 2, 1991, the Respondent posted a standard form Bid Tabulation indicating that the following scores had been awarded to the following proposals: Proposal Score Woodcrest A 82 Woodcrest B 82 Tallahassee Associates 73 Crossland Agency 85 DeVoe 54 The proposal of T.C.S. was not evaluated by the Respondent because it was determined to be non-responsive. The Respondent also posted a copy of a memorandum dated January 2, 1991, with the January 2, 1991, Bid Tabulation. The memorandum was from John M. Russi, Director of the Division of Licensing, to Ira Chester, Chief of the Bureau of General Services. Mr. Russi indicated in the memorandum that the Intervenor would be awarded the lease. Attached to Mr. Russi's January 2, 1991, memorandum was a Lease Evaluation Worksheet which indicated the scores which had been awarded by the evaluation committee to the responsive bidders for each of the criteria to be considered in determining the winning bidder. Printed at the top-center of the January 2, 1991, Bid Tabulation was the following notice: 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 January 2, 1991, Bid Tabulation was posted at 1:00 p.m., January 2, 1991. Therefore, pursuant to Section 120.53(5), Florida Statutes, any bidder desiring to contest the Respondent's proposed award of the lease was required to file a notice of protest with the Respondent no later than 1:00 p.m., January 5, 1991, and a formal written protest on or before January 15, 1991. T.C.S. filed a notice of protest and a formal written protest to the January 2, 1991, Bid Tabulation within the time periods prescribed by Section 120.53(5), Florida Statutes. T.C.S. contested the Respondent's determination that it was not responsive. The Petitioner did not file a notice of protest or a formal written protest to the January 2, 1991, Bid Tabulation within the time periods prescribed by Section 120.53(5), Florida Statutes. Pursuant to Section 120.53(5), Florida Statutes, the Respondent reviewed the formal written protest filed by T.C.S. and agreed that T.C.S. was responsive. After agreeing that T.C.S. was responsive, the Respondent evaluated T.C.S.'s proposal and awarded points for each of the criteria to be considered. Toward the end of January, 1991, after deciding that T.C.S.'s proposal was to be evaluated, the Respondent notified all other bidders of its decision in a document titled Posting of Notice of Agency Decision. The Posting of Notice of Agency Decision was signed by the Respondent's General Counsel and was addressed to "All Responsive Bidders". The Posting of Notice of Agency Decision provided, in pertinent part: Notice is hereby given that the Florida Department of State, Division of Licensing, is reviewing the bid tabulation which was posted at 1:00 P.M., January 2, 1991 for Lease No. 450:0070. The revised bid tabulation will be posted at 8:00 A.M. on February 4, 1991 at the Purchasing Office of the Department of State . . . . Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceeding under Chapter 120, Florida Statutes. Any person interested in the new tabulation should contact . . . after the posting time listed above. The Petitioner filed a notice of protest and a formal written protest challenging the Posting of Notice of Agency Decision within the times prescribed by Section 120.53(5), Florida Statutes. The Respondent dismissed this formal written protest by final order dated February 22, 1991. On or about January 31, 1991, more than four weeks after the posting of the January 2, 1991, Bid Tabulation, Ocie Allen spoke by telephone with Phyllis Slater, the Respondent's General Counsel. Ms. Slater told Mr. Allen that all proposals would be reevaluated as a result of T.C.S.'s protest. Mr. Allen was a lobbyist for the Petitioner in January, 1991. On February 4, 1991, the Respondent posted another standard form Bid Tabulation indicating that the following scores had been awarded to the following proposals: Proposal Score Crossland Agency 83 Woodcrest A 80 Woodcrest B 80 Tallahassee Associates 71 T.C.S. 71 DeVoe 51 The differences in the scores of the proposals which had been listed on the January 2, 1991, Bid Tabulation, which are reflected in the February 4, 1991, Bid Tabulation were caused by automatic changes in the scores resulting from the addition of T.C.S. and the fact that T.C.S. had the lowest priced bid. The points awarded for the "rental" criterion, which was worth up to 25 points, were determined by a mathematical formula by which the scores of each bidder are calculated based upon the proposed rental charges of all bidders. The award of points for this criterion was determined objectively based upon the mathematical formula. By adding another bidder, T.C.S., the points awarded to all the proposals automatically changed. The scores of the proposals which had been listed on the January 2, 1991, Bid Tabulation, were not otherwise changed. Nor were the proposals of any bidder reevaluated. The Respondent also posted a copy of a memorandum dated January 24, 1991, with the February 4, 1991, Bid Tabulation. The memorandum was from John M. Russi, Director of the Division of Licensing, to Ira Chester, Chief of the Bureau of General Services. Mr. Russi indicated the following in the memorandum: Pursuant to the settlement stipulation signed by Counsel for T.C.S. Associates on January 23, 1991, in reference to the Bid Protest filed January 11, 1991, the attached "Lease Evaluation Work Sheet" is provided for you to re-post. After reevaluating six bid proposals, the evaluating committee concludes that Crossland Agency should be awarded this bid. Each bidder needs to be notified by certified mail of this action. . . . . Attached to Mr. Russi's January 24, 1991, memorandum was a Lease Evaluation Worksheet which indicated the scores of the responsive bidders which had been awarded by the evaluation committee for each of the criteria to be considered in determining the winning bidder. On February 6, 1991, the Petitioner filed a notice of protest to the February 4, 1991, Bid Tabulation. The Petitioner filed a Formal Written Protest, Request for Formal Hearing and Motion for Stay with the Respondent on February 18, 1991. These documents were filed within the time periods specified in Section 120.53(5), Florida Statutes. The Petitioner's Formal Written Protest was filed with the Division of Administrative Hearings by the Respondent on February 28, 1991. Crossland Agency, Inc., was allowed to intervene in the proceeding. On March 1, 1991, the Respondent and Intervenor filed a Motion to Dismiss. A motion hearing was conducted on March 6, 1991, to consider the Motion to Dismiss.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Respondent granting the Motion to Dismiss and dismissing this case, with prejudice. DONE and ENTERED this 22nd day of March, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 22nd day of March, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3, 5 and 9. 2 12-13. 3 15-16 and 18-21. See 14. 15. The weight of the evidence failed to prove that the scores of the bidders for the "option period" criterion reflected on the January 2, 1991, Bid Tabulation were modified or reconsidered on the February 4, 1991, Bid Tabulation. The suggestion that "the department had discretion to change scores in any of the remaining eight categories" is a conclusion of law and is rejected. These proposed facts are not relevant to the issue raised in the Motion to Dismiss. Nor was any evidence presented to support these proposed findings. 12. The last sentence is a conclusion of law and is rejected. Proposed Findings of Fact of the Respondent and Intervenor Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 3 and 7. 5-6 and hereby accepted. 4 8-12. 5 See 14. 6 15 and 17. 18. The last sentence involves an issue not raised in the Motion to Dismiss or at the motion hearing. Nor was any evidence presented to support these proposed findings. See the Preliminary Statement. COPIES FURNISHED: Linda G. Miklowitz, Esquire 1589 Metropolitan Boulevard Tallahassee, Florida 32308 Benjamin E. Poitevent Assistant General Counsel Department of State The Capitol, MS #4 Tallahassee, Florida 32399-0250 M. Christopher Bryant, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact The College realized that it needed a new telecommunication system about three years ago, when it began to renovate some of its buildings. On June 8, 1992, the College issued an Invitation To Bid, No. 3656, to eight vendors to replace its fifteen-year-old AT&T Dimension Private Branch Exchange (PBX) System and install a voice and data communications network among the College's four campuses. The bids were to be opened at 2:30 p.m. on July 29, 1992. The College believed replacement of the existing PBX system would result in lower operating costs, permit the system to serve more functions and permit the system to expand as the College's needs grew. Two vendors, NEC and AT & T, submitted bids. The College already has gone through two prior bids for the new PBX system, which did not result in contracts with any of the bidders. AT&T had submitted a bid in response to each of those attempts to let a contract for replacement of the College's communications system. The process of developing the bid specifications was initiated by the College's Vice President for Business Affairs, Dr. Clinton Hamilton, who asked those who would be using the communications system (the Registrar, the Learning Resources Department, the Provost, and others) to explain their needs so they could be incorporated in the new system. He also asked College employees familiar with information systems and telecommunication systems to help draft the bid documents to incorporate the functions the users desired. The College received assistance from a committee made up of representatives of the State's Department of General Services, Division of Communications; the State Department of Education; Miami Dade Community College; Nova University; and the School Board of Broward County. These groups reviewed the proposed bid specifications before each of the College's three attempts to let a contract and advised the College on them. The College made a careful effort to craft its specifications to ensure it would purchase the most appropriate communications system for its needs. The College currently has separate and independent voice and data communications systems. For data, each of the College's locations (South campus, Central campus, North campus and the College's administrative center in Fort Lauderdale) use more than one data circuit (AT&T Exhibit 5; Bid page D-1). For example, the eight controllers at the South campus are connected to the Fort Lauderdale Center by a pair of data circuits. The 15 controllers at the Central campus are linked to the Fort Lauderdale Center by four data circuits. If the controllers associated with one data circuit should go down for some reason, those connected to the other data circuits at campus will continue to operate, and the campus will only suffer "partial paralysis." The bid at issue seeks a single "voice and data T-1 network" to link each of the campuses to Fort Lauderdale Center in a unified system, which eliminates the need for separate voice and data systems. The new system is designed so that controllers at each campus will communicate with the mainframe computer at Fort Lauderdale Center through T-1 trunk lines, the same lines connecting the voice telephone system at each campus. Each campus will have its own PBX system, and the T-1 lines will allow users at each campus to place telephone calls to extensions at all campuses internally, i.e., without leaving the College's own network. They can also use the local Southern Bell network to place calls if all internal lines are in use, just as the Southern Bell network is used to place calls to numbers outside the College's campuses. Connection of the voice system (the PBX equipment) and data terminals at each of the College's three campuses to the Fort Lauderdale Center requires the use of multiplexors, devices which improve efficiency in networks by concentrating and combining signals and switching them over connecting links (i.e., the T-1 circuits) to other locations or devices. The bid solicitation document requires a multiplexor known as a "40- Series" multiplexor at each campus to perform the concentrating and combining role. The bid solicitation document also specifies a single multiplexor of a more complex type, a "45-Series" multiplexor, at the Fort Lauderdale Center. This multiplexor performs the switching function to redirect signals from one location to another. The bid solicitation document instructs bidders to supply a Comsphere 6800 Network Management System, which is a type of software to operate the hardware components. Comsphere is manufactured by a wholly owned subsidiary of AT & T, known as "AT&T Paradyne." This software manages the entire network, and allows remote troubleshooting of any problems on the network, Comsphere's system can automatically dial out to the AT&T Paradyne Center in Largo, Florida, so that a technician can investigate and often solve problems without the need to send anyone to a campus to perform maintenance. On July 7, 1992, the College held a bidders conference to explain the bid documents and their requirements, in order to insure that the bids the College received would be accurate and complete. During that conference, the vendors were told: (1) any price corrections must be initialed or the bid would be disqualified; (2) all pages of the bid documents which contain signature lines had to be signed; (3) bidders could not modify the general conditions or special conditions of the bid documents; and (4) any questions about the specifications would be answered only by written addendum. The same instructions can be found in text of the bid solicitation document (AT&T Exhibit 4). The College issued Addendum One to its bid documents on July 9, 1992, Addendum Two on July 14, 1992, and Addendum Three July 22, 1992. Addendum Two is the source of the dispute here. As is the College's practice, all bids were opened publicly after the hour for the receipt of bids had passed on July 29, 1992. Each bid submission had two parts. The first was a bid summary sheet containing a required format for the vendor's price. The second part of the submissions were bound volumes explaining how the vendor would satisfy each of the specific requirements in the bid specifications. During the bid opening, a College employee opened the sealed envelopes containing the vendor's bid summary sheet, and read aloud the prices found on each bidder's summary sheet. Page 13, paragraph 19.6 of the Bid Specifications told bidders that the bid summary sheets must recite the total bid price for the entire system, which had to include any upgrades to the standard features of the vendor's equipment so that the equipment provided would meet the College's specifications. When the bids were opened, representatives of AT & T, AT&T Paradyne, and NEC were present. As the bid summary sheets were opened and the prices announced, no one from AT&T objected to the prices read out or contended there was an error in AT&T'S pricing. The College's Director of Purchasing, Janet Rickenbacker, and the senior buyer handling the acquisition, Susan Kuzenka, then reviewed the extensive responses to the specifications submitted by the two bidders. They determined that NEC was the low responsive bidder. The amount AT&T bid based on the bid summary sheet found in its sealed bid was $1,558,836.57, NEC's bid was $1,549,895.15. 1/ After the bid opening, Mr. Zinn of AT&T had two conversations with Ms. Kuzenka about the AT&T bid. These conversations focused on the conflict in the entry for system maintenance on the bid summary sheet for AT&T which had been opened and read aloud on July 22, 1992, and the backup data for the system maintenance figure found in a section of AT&T'S bid response documents. On the bid summary page, AT&T had listed its "four-year maintenance totals M[onday] through F[riday] 8 a.m. through 5 p.m." as $755,536.16. But on page 53 of its bound bid response, AT&T listed the "total maintenance" cost as $530,204.00. This lesser figure is consistent with other maintenance price information found on page 61 of the AT&T bound bid documents, which set out total monthly maintenance costs for Monday through Friday maintenance from 8:00 a.m. to 5:00 p.m. for all four college locations as $11,045.92 per month. If this monthly figure is multiplied by the maintenance term (48 months) the sum is the $530,204.00 shown on page 53. During his first conversation, however, Mr. Zinn told Ms. Kuzenka that the higher figure of $755,536.16 was correct, because AT&T had neglected to add in the maintenance for the AT&T Paradyne multiplexor in the entries in the bound bid documents at pages 53 and 61. During a second conversation, Mr. Zinn reversed his position and indicated that he had added the maintenance for the multiplexor twice, which resulted in an erroneously high figure of $755,536.16 on the bid summary sheet, and that the $530,204 figure on page 53 was correct. One week after the bid opening, on August 5, 1992, AT&T sent a fax letter to Ms. Kuzenka, which confirmed Mr. Zinn's second conversation, and stated that the correct maintenance price was the $530,204.00 found on page 53 of the AT&T bid, rather than the $755,536.16 figure found on its bid summary sheet. Ms. Kuzenka had not asked anyone from AT&T to submit this price change to its bid, and it was not accepted by the College, under its standard policy that price changes will not be accepted once a sealed bid has been received and opened. The College has consistently adhered to this practice through the entire term of Ms. Kuzenka's employment. While a lower maintenance price can be found in one portion of the voluminous response of AT&T to the Bid Specifications, the figure on the bid summary sheet controls. See the "Special Instructions" found at page 5 of the bid solicitation documents (AT&T Exhibit 4). A bidder should not be permitted to look for ambiguities in the supporting documentation to contradict clear entries of price components found on its bid summary sheet. Use of the bid summary sheet permits the College to rely on a specific portion of the bid submission, which will be comparable from bidder to bidder, and to avoid wading through voluminous and perhaps internally inconsistent submissions to try to determine exactly what the bidder's price is. The "Special Instructions" state: "Bidder must use bid pages provided by the College and submit bid in the order issued; failure to do so will result in rejection of your bid" (AT&T'S Exhibit 4). Over and above the maintenance price differential, the College staff found the submission by AT&T to be materially non-responsive to the Invitation to Bid. Ms. Kuzenka found five problems with the AT&T submission, which led her to conclude that the response submitted by AT&T failed to meet the bid specifications: (1) AT&T qualified or modified the terms and conditions of the specifications; (2) price corrections were not initialed by AT & T; (3) the maintenance contract was partially assigned to another vendor; (4) the bid was not signed by AT&T on all pages which have required signature lines; and (5) AT&T failed to provide a qualification statement. Modification of terms and conditions The College's bid document stated in paragraph 54.1 that the terms and conditions of the bid and purchase order constitute the contract and "no other terms and conditions apply" (Tr. 157). The maintenance agreement, titled "Product Agreement," which is appended to the AT&T Service Offerings and Support Plan is a standard AT&T form (College Exhibit 6). It contains a provision in paragraph 20G., which states "THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LOCAL LAWS OF THE STATE OF NEW JERSEY" (emphasis in original). The general conditions of the bid required that the contract be governed by Florida law (Tr. 152). AT&T argues that the standard product agreement it attached to its bid response had not been signed by a representative of AT & T, and that the College had the right to accept or reject the terms of the Service Offerings and Support Plans and the attachments to it. This is true, but the inclusion in its bid response of the New Jersey choice of law provision certainly creates an ambiguity over the applicable law, if AT&T'S bid were accepted. This ambiguity would be completely avoided had it not been proposed by AT & T, in contravention of the bid's general conditions. Paragraph 2 of the Product Agreement states "Terms and conditions on any non-AT&T order form shall not apply." Fairly read, AT&T was attempting to have its duties under its standard Product Agreement governed by the laws of New Jersey, not the laws of Florida. As a matter of sovereignty, Florida agencies do not subject themselves to foreign law. The College acted within its legitimate range of discretion when it rejected the choice of law provision as inconsistent with its bid documents. The same problem is caused by similar language in paragraph 12F of the AT&T Service Agreement (College Exhibit 5). The AT&T Product Agreement also has an integration clause, Paragraph 20H, stating that it constitutes the entire agreement of the parties, and supersedes any other oral or written agreements. This provision also attempts to modify the terms and conditions of the bid specifications to give the terms of AT &T's Service Offerings and Support Plan priority over the specifications. The College was entitled to reject this as inconsistent with the bid specifications. The same problem is presented by similar language in paragraph 12G of the AT&T Service Agreement (College Exhibit 5). The Service Offerings and Support Plan also contained a provision allowing AT&T to assign the agreement, which violates the anti-assignment provisions of paragraph 56.1 of the bid specifications. AT&T'S bid response stated that the College would be required to pay the cost for installing any additional cable. The bid specifications required vendors to inspect existing facilities at the College during a pre-bid walk- through, so that bidders could determine whatever cabling would be needed, and incorporate all necessary cable in their bid price. AT&T'S attempt to make the College liable for any cabling over and above that estimated by AT&T when submitting its bid is inconsistent with the bid specifications. The AT&T submission includeds a statement that the College was obligated to pay for the cost of a site survey to be performed by the project manager before the execution of the contract. Yet a site survey had already been performed, and the bidder's price was to have been inclusive of a total system, with no additional cost to the College for items such as surveys. Finally, the AT&T Service Offerings and Support Plan required the College to provide, at the College's expense, a secured and protected area for storage of tools and equipment near the equipment room, which was not part of the bid specifications. At the walk-through, AT&T should have determined whatever its security needs were and included those costs in its bid price. In essence, AT&T submitted preprinted forms without tailoring them to the carefully crafted requirements of the College's bid specifications. It cannot now disavow the contents of its forms which violate or fail to conform to these specifications. The time to review the company's standard forms was before they were submitted in its bid response, not afterward. Price correction There is a price correction on page 48 of the AT&T bid which is not initialed. The bid specifications require that "all corrections, manual or written or white-out must be initialed by the person signing the bid" (Bid Specifications, page 63, paragraph C). This was not done. The specifications stated "Failure to initial price corrections will result in the rejection of your bid" (AT&T Exhibit 4, page 5, numbered paragraph 2). Assignment provisions There was also confusion in the AT&T bid arising from the attachment of two proposed maintenance agreements, one from AT&T itself, another from AT&T Paradyne. The two maintenance contracts are not identical. 2/ College personnel believed that one contract was for part of the equipment, while the other contract was for another block of equipment. The College had been concerned about the difficulty in having to deal with different companies; it had drawn its specifications so that the bidder would be the single entity responsible to the College for maintenance. The submission of a proposed maintenance contract from an entity other than the bidder was inconsistent with the bid specifications. Signature Not all pages with signature lines had been signed by AT&T'S representative. These included page D1, which had a bearing on the equipment allowance being provided for the existing system traded in by the College. While AT&T regards these failures as trivial, the College went to pains to require bidders to sign pages with signature lines. Page 5 of the Bid Specifications stated: "Failure to sign all pages with a signature line will result in the rejection of your bid" (AT&T Exhibit 4, page 5, numbered paragraph 3). It is not arbitrary for the College to insist that these requirements be followed or to enforce the penalty stated in the specifications. Qualifications statement The special conditions for the bid required that vendors submit a qualifications statement listing similar work done for others (Tr. 168; Bid Specifications Section 25.1 at page 25). The College intended to consult those listed to determine whether they were satisfied with the equipment the vendor installed and the service it provided. AT&T did not provide that list, but rather provided an annual report which contains no customer references. This was not responsive to the bid. The College had experience with AT&T'S fifteen- year-old Dimension system, but not with the new equipment AT&T bid. The failure to submit the qualifications statement deprived the College of the opportunity to check with entities which had purchased the equipment AT&T had bid, something it had been careful to require of bidders. Deciding how to treat these inadequacies is a matter of discretion. Staff recommended rejection of the AT&T bid for genuine instances of noncompliance with specific requirements of the bid specifications the College had carefully crafted. This action cannot be characterized as arbitrary. The College's decision The College's purchasing department recommended to Dr. Hamilton that the bid be awarded to NEC as the low responsive bidder. A bid tabulation was posted on August 7, 1992, awarding the contract to NEC and rejecting AT&T'S bid. The protest AT&T filed a Notice of Protest, and later a Formal Written Protest on August 18, 1992, which dealt with a number of technical aspects, but did not claim that NEC's rival submission failed to conform to the bid specifications. Dr. Hamilton advised the College's president that, to be fair to both bidders, an outside consultant should be retained to evaluate the issues raised by AT&T in its Formal Written Protest. This was done, and the College retained Technology Associates for $8,600 to report to the College on the issues raised by AT & T. Technology Associates found that AT&T did not meet the emergency 911 requirements outlined in the College's bid documents. Southern Bell requires that when 911 calls are made from the College, the telephone system be capable of identifying to the police dispatcher which campus, which room and which extension number originated the emergency 911 call. The consultant also found that NEC's system met this requirement. AT&T did not attempt to refute this determination at the final hearing. The consultant found that AT&T'S proposed system was "over designed," in that it included elements not required by the bid documents. AT&T argues that Addendum Two, issued on July 14, 1992, 14 days before the bid opening, was so ambiguous with respect to necessary redundancy that the two bidders were bidding on fundamentally different systems, so that the matter should be bid for a fourth time. The portion of the addendum at issue states: The College requires two additional T-1 lines; not one as previously stated, to be added to diagram D-2 to ensure redundancy. A T-1 line is to connect North Campus with Central Campus and an additional T-1 line is to connect Central Campus with South Campus. (Tr. 85) Addendum Two explains that these lines are required to "ensure the ability to redirect calls if required, enabling the system to be fully redundant" (Tr. 86- 87, emphasis added). The addendum directed only the addition of two T-1 lines. This can be done, as NEC proposed, by connecting additional T-1 lines, one from the PBX at the North Campus to the PBX at the Central Campus and the other from the PBX at the Central Campus to the PBX at the South Campus. AT&T chose to feed each of the PBX installations at the North Campus, Central Campus and South Campus first into its own additional 45-Series multiplexor (the complex multiplexor, see Finding 10 above) so that a 45-Series multiplexor will handle T-1 connections from North Campus to a 45-Series multiplexor at Fort Lauderdale center, and to a 45-Series multiplexor at Central Campus. The PBX at Central Campus, because it has its own 45-Series multiplexor, then can be connected by T-1 lines to the 45- Series multiplexors at North Campus, South Campus and Fort Lauderdale Center. The PBX at South Campus, through its 45-Series multiplexor, then can connect to the 45-Series multiplexors at Central Campus and Fort Lauderdale Center (this configuration is shown on the final page of AT&T Exhibit 5). This is a more complex way to provide the T-1 connections between North and Central Campus and Central and South Campus than the addendum required, and uses four 45-Series multiplexors rather then one. AT&T argues its more complex solution was necessary so that both voice and data systems would be redundant, thus meeting the requirement in the addendum that the system be "fully redundant." The problem with the approach taken by AT&T is that it fails to follow the language of Addendum Two. There is no reference to alternative routing or redundancy for data, the redundancy is required to redirect calls, i.e., PBX or voice components. See the final quotation in Finding 40, above. Redundancy for data transmissions, something the AT&T solution provides, was not required. AT&T'S solution is overdesigned. This is not a pivotal issue, however, because for the reasons stated in the foregoing findings, the submission by AT&T was properly rejected by College staff as non-responsive to the terms of the Invitation to Bid. NEC is the low responsive bidder. Software certification AT&T argues in pages 16 through 20 of its proposed recommended order that the bid of NEC fails to conform to the requirements of the Invitation to Bid. AT&T had not raised the issue of whether the bid of NEC was responsive in its Formal Written Protest, and the attempt to do so at the beginning of the final hearing was rejected. As a result, this is not an issue which should have been addressed in the proposed recommended order. Nonetheless, it may be easily disposed of. The bid documents require that each bidder provide the College with a certification that the bidder: [O]wns, leases or controls the software it offers in response to this bid. If the bidder does not own the software, their certificate must include the source from which the software shall be obtained, and that the bidder has a right to sell or lease this software (Bid Specifications at 26, AT&T Exhibit 4.) The bidder also must certify that it is "eligible to maintain and support the software." (Id.) In its certification, NEC stated: NEC is the manufacturer of the NEAX2400 IMS that has been proposed to Broward Community College. As the manufacturer, we developed all software utilized on the NEAX2400. NEC owns all the rights to the software and has over 600 software engineers in Dallas dedicated to maintain and support the software. (AT&T Exhibit 4, final page) AT&T objects that this certification goes only to NEC's hardware, and does not constitute a certification that NEC has the rights to convey to the College the software necessary to operate the Comsphere 6800 Network Management System, which is a product of AT&T Paradyne. When reviewing the submissions of both bidders, the College staff found that their software certifications were equivalent. Both companies certified that they had the right to sell the software to operate the system each offered to the College. The College is entitled to rely on the certification given to it by NEC. If NEC is wrong, and does not have the right to provide the necessary software because AT&T or AT&T Paradyne will refuse to permit it to use that software, NEC may be liable in damages for failure to meet its contractual obligations to the College. NEC did not offer at the hearing evidence on why it believes it is entitled to use the software for the Comsphere 6800 Network Management System, because AT&T's attempt to raise this issue had been rejected when AT&T's motion to amend its Formal Written Protest of August 18, 1992 was denied.
Recommendation It is RECOMMENDED that a final order be entered by the Board of Trustees of Broward Community College awarding Bid No. 3656, the rebid of the College-wide PBX system, to NEC for a bid price of $1,549,895.15. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of March 1993. WILLIAM R. DORSEY, JR. 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 9th day of March 1993.
The Issue Whether the Department of Transportation’s decision to reject all bids for Financial Project No. 209278-1-52-01 (J. Turner Butler Blvd.) a major interchange in Duval County, Florida, was exercised illegally, arbitrarily, dishonestly or fraudulently.
Findings Of Fact On April 1, 2004, the Department of Transportation advertised its Bid Solicitation Notice (BSN), for the JTB Project. H. W. Lochner, Inc. (Lochner) designed the JTB Project. Petitioner, Superior Construction, and Archer Western Contractors, LTD, submitted bids on May 26, 2004. Petitioner had the apparent low bid, and Superior had the second apparent low bid. On or about May 27, 2004, Robert Burleson, President of the Florida Transportation Builders Association (“FTBA”), contacted the State Construction Engineer, Ananth Prasad, P.E., and alerted him to potential issues regarding MOT phasing. (T. p. 876, lines 18-24; p. 880, lines 14, 15). Richard Ayers, of Superior Construction, called the Jacksonville Urban Office of the Department of Transportation, District 2, alerting the District to the concerns regarding the maintenance of traffic issues. Ayers had reviewed the bid and plans generally to assess its bid in light of the Petitioner's bid, and had discovered in the process MOT issues that he believed would add substantially to the costs and time required to construct the project. As a result of these calls, Robert Hansgen, P.E., District 2 Resident Engineer, was directed by someone within the Department to review the MOT plans. On June 1, 2004, Mr. Hansgen forwarded to Henry Haggerty and Al Moyle a memorandum outlining seven areas of MOT concern relating to the "constructability" and safety of the JTB project. On June 1, 2004, Hansgen's memorandum was forwarded to Mohammed Majboor, P.E., Design Consultant Engineer for the Department, who forwarded the memo to Lochner. Lochner reviewed its plans in light of the Hansgen memorandum and forwarded its response on June 3, 2004, to Hansgen, who reviewed the responses and added his comments. He e-mailed Henry Haggarty seven concerns he had with the MOT plans. On June 2, 2004, Allen Moyle, Jacksonville Construction Engineer, received Hansgen's and Lochner's responses regarding the MOT plans and determined that the project plans needed revisions because of safety issues. Moyle concluded that all the bids needed to be rejected in light of the MOT revisions. He transmitted a request to Cathy Thomas at the Department's headquarters to arrange a meeting with Lochner to commence revision of the plans at the earliest possible date. On June 8, 2004, Hansgen briefed the District 2 Secretary, Schroeder, and other District 2 staff members on the issues regarding maintenance of traffic issues based on his memo, a marked-up copy of the MOT sheets, and pictures. Rejection of all bids was discussed at this meeting. Mr. Hansgen testified at the formal hearing concerning his findings and his actions with the aid of the original memorandum and Respondent's Exhibits 1 and 2. Mr. Hansgen's concerns were about safety issues and included the reduction of traffic lane widths in areas to 11 feet where barrier walls would be erected on both the inside and outside medians where traffic would be traveling at 55 miles per hour. Another concern was the length of these lanes that would be restricted by concrete barriers. These barriers prevented easy access of emergency vehicles in these areas, which presented a significant hazard at this interchange, which accesses a major hospital complex. Mr. Hansgen’s also identified an inconsistency regarding where the contractor could work in an area close to the barrier wall; a portion of the roadway where a cross slope or tilting of the traveling lane created dangerous vehicle control issues; and plans to widen a portion of the roadway while vehicles traveled on the same portion of roadway which would require further narrowing of lanes. Because the State of Florida has one of the highest fatality records in the nation in work zones, the Department is very concerned about this issue. After the meeting on June 2, 2004, the Jacksonville Urban Office for District 2 recommended rejection to DOT in Tallahassee of all bids based on the need to “clarify uncertainties within the phasing of the maintenance of traffic (MOT) plans.” The recommendation of District 2 was reviewed by the Technical Review Committee, which is comprised of six voting members. On June 9, 2004, the Technical Review Committee recommended rejection of all bids on the JTB Project to the Contract Awards Committee based upon MOT safety issues. The Contracts Award Committee, composed of three voting members, met on June 15, 2004, to consider the recommendations regarding the JTB Project of the Technical Review Committee and District 2. The Contracts Award Committee concurred with the recommendations of the Technical Review Committee and District 2 and rejected all bids based upon MOT safety issues. The Department posted its notice of intent to reject all bids on June 17, 2004. The Petitioner filed a Notice of Intent to Protest the Department’s rejection of all bids with a Formal Written Protest, filed on July 1, 2004, including an appropriate protest bond. The Department’s engineers met with engineers from H.W. Lochner, Inc., to discuss the issues of concern raised in the Hansgen memorandum. The Department commissioned Lochner to revise the plans to enhance the safety features for MOT, and certain other enhancements. Lochner and the Department entered into Supplement Agreement #13 that included both the requested enhancements and the changes to accommodate the concerns referenced in the Hansgen Memorandum. Richard Kelly testified regarding “animus,” and “dislike” displayed by employees of the Department. He pointed to past decisions and actions of Department employees as proof of “dislike” and “animus." These included a Letter of Concern to the Petitioner, on April 16, 2004, from the Department outlining five areas the Department had identified as important in making a determination on the pre-qualification of the Petitioner for bidding on Department contracts for the 2004-2005 fiscal year. Also mentioned were disputed issues between the Department and the Petitioner arising during construction of the I-95/I295 Interchange Project, including Jacksonville ordinances on noise ordinance, and trees and deficiency letters from the Department to AMEC Civil. In addition, the disqualification of Morse Diesel, LLC, as the Petitioner was formerly named, from bidding on construction contracts with the State of Florida, and in 2002, the revocation of the pre-qualification of the Petitioner to bid on DOT projects were described. Ananth Prasad, P.E., who was identified by the Petitioner's witnesses as a primary source to opposition to the Petitioner, testified that he did not hold the position of State Construction Engineer in 2000, and was not involved in the decision to deny pre-qualification of Morse Diesel. Mr. Prasad also was not involved with the initial decision to revoke the pre-qualification of AMEC in 2002. Mr. Prasad does not personally hold a position on the Technical Review Committee. Mr. Prasad did not vote on the decision to recommend rejection of all bids on the JTB project. The decision to reject all bids for the JTB Project was made by the Contracts Award Committee based on recommendations from the Technical Review Committee, and District 2. The Department’s Contracts Award Committee exercised its statutory authority to reject all bids based on concerns regarding the MOT phasing.
Recommendation Based on the foregoing findings of fact and Conclusions of Law, it is Recommended that the Department of Transportation enter a final order dismissing Petitioner’s Formal Written Protest concerning the bid rejection for the project in this litigation. DONE AND ENTERED this 28th day of December, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 28th day of December, 2004. COPIES FURNISHED: F. Alan Cummings, Esquire S. Elysha Luken, Esquire Smith, Currie & Hancock, LLP 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32302-0589 Mike Piscitelli, Esquire Vezina, Lawrence & Piscitelli, P.A. 305 East Las Olas Boulevard, Suite 1130 Fort Lauderdale, Florida 33301 Calvin C. Johnson, Esquire C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 James C. Myers, Agency Clerk Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Department’s intended award of contract E2K97 for Asset Maintenance of the Duval County Roadways is contrary to the agency’s governing statutes, the agency rules or policies or the bid or proposal specifications.
Findings Of Fact The following facts were agreed between the parties in their Joint Pre-Hearing statement: On June 18, 2007, FDOT posted the solicitation for asset maintenance of the Duval County Roadways through procurement E-2K97. The RFP requested technical proposals and bids for a five-year contract for maintenance of identified roads in Duval County. The RFP provides that the scoring of the technical proposals is to be weighted as follows: Administration Plan (20%), Management and Technical Plan (30%), Operation Plan (30%), and Plan for Compliance with Standards (20%). ESI did not file a protest of the RFP's terms, conditions, specifications, or provisions governing the method of ranking proposals within 72 hours of the posting of the solicitation. A mandatory pre-bid meeting was held on July 10, 2007. The technical and price proposals for this project were due by August 9, 2007. Four firms submitted timely proposals in response to the RFP. They were ESI, DBI, Infrastructure Corporation of America (ICA) and VMS. The proposals were evaluated by three registered civil engineers who are employed by FDOT: Jerry Ausher, Julius Rinosa, and Mark Kuhn. All four firms were determined to be responsive and received scores on their technical proposal and price proposal. DBI's average score on its technical proposal was 88, the highest of the four firms. ESI's average score on its technical proposal was 75.33, the lowest of the four firms. ESI's price proposal bid was $44,759,500.00, the lowest of the four firms. DBI's price proposal bid was $48,748,886.00, the second lowest of the four firms. After combining the technical scores and price proposal scores, the total proposal scores for the four firms were as follows: DBI = 89.14, VMS = 85.19, ESI = 82.73, and ICA = 82.68. On September 4, 2007, FDOT posted its notice of intended award to DBI as the winning bidder. ESI filed a notice of intent to protest on September 7, 2007, followed by a formal written protest on September 17, 2007. DBI filed a Petition to Intervene which was granted on November 7, 2007. As the intended awardee, DBI has a substantial interest in the outcome of this proceeding and thus, has standing to intervene.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner’s Amended Formal Written Bid Protest be dismissed. DONE AND ENTERED this 31st day of March, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 31st day of March, 2008. COPIES FURNISHED: Cynthia S. Tunnicliff, Esquire Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar 215 South Monroe Street, Second Floor Tallahassee, Florida 32301 Denise Johnson, Esquire Assistant General Counsel Florida Department of Transportation Office of the General Counsel Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire 2104 Delta Way, Suite 9 Tallahassee, Florida 32303 J. Reuben Hamlin, Esquire Post Office Box 1620 Newberry, Florida 32669 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 57 Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street Building, Mail Stop 58 Tallahassee, Florida 32399-0450
