Findings Of Fact The Department issued an invitation to bid (ITB) and solicited bids for district-wide miscellaneous property management maintenance services pursuant to ITB-DOT-94-95-4004. Kemp Services, Inc. (Kemp), submitted the lowest bid for the subject ITB. Petitioner, Urban Group, Inc., submitted the second lowest bid for the subject ITB. Section 1.1 of the ITB provided: Invitation The State of Florida Department of Transport- ation requests written bids from qualified firms to MAINTAIN RIGHT-OF-WAY STRUCTURES AND VACANT LOTS BY PROVIDING CLEAN-UP SERVICES, LAWN SERVICES, LANDSCAPE SERVICES, SECURING OF BUILDINGS, AND OTHER MISCELLANEOUS HANDYMAN AND SKILLED LABOR SERVICES. ALSO PROVIDE SERVICES FOR SIGN REMOVAL FOR STRUCTURES ILLEGALLY ON THE DEPARTMENT'S RIGHT-OF-WAY OR ILLEGALLY ON PRIVATE PROPERTY IN THE FOLLOWING FIVE COUNTY AREA: BROWARD, MARTIN, PALM BEACH, ST. LUCIE AND INDIAN RIVER COUNTIES. For the purpose of this document, the term "bidder" means the prime Consultant acting for itself and those individuals, partnerships, firms, or corporations comprising the bidder's team by joint venture or subcontract. The term "bid package" means the complete response of the bidder to the Invitation To Bid, including properly completed forms and supporting documentation. [Emphasis in text.] The services were to be provided on an as-needed basis for the term of the agreement, two years. Section 1.7.1 of the ITB provided: Qualifications 1.7.1 Bidders must meet the following minimum qualifications: BIDDERS MUST HAVE AT LEAST TWO YEARS EXPERIENCE PROVIDING AT LEAST TWO (2) OF THE SIX SERVICES OUTLINED IN THE SCOPE OF SERVICES IN EXHIBIT "A". BIDDERS MUST HAVE BEEN IN CONTINUOUS BUSINESS FOR THE PAST TWO (2) YEARS AND COMPLETE FORM "F" WITH THE INFORMATION REQUESTED REGARDING WORK EXPERIENCE AND REFERENCES. ALL REFERENCES WILL BE CHECKED. FAILURE TO PROVIDE FORM "F" AND THE WORK EXPERIENCE REQUESTED WILL CONSTITUTE A NON- RESPONSIVE BID. [Emphasis in text.] Section 1.7.4 of the ITB provided: Qualifications of Key Personnel Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise accepted by the Department's Contract Manager. Where State of Florida registration or certification is deemed appropriate, a copy of the registration or certificate should be included in the bid package. Section 1.7.5 of the ITB provided: Authorizations and Licenses The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the bid due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact: Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399 (904)487-6052 Other than the provisions above, no other licensure or authorization to do business was required by the ITB. Section 1.8.2 of the ITB provided: Responsiveness of Bids All bids must be in writing. A responsive bid is an offer to perform the scope of services called for in this Invitation to Bid. Bids found to be non-responsive shall not be considered. Bids may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A bid may be found to be irregular or non-responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional bids, incomplete bids, indefinite or ambiguous bids, improper undated or unsealed signatures (where applicable). Section 1.8.4 of the ITB provided: Other Conditions Other conditions which may cause rejection of bids include evidence of collusion among bidders, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership, or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects. Bids will be rejected if not delivered or received on or before the date and time specified as the due date for submission. Section 1.8.5 of the ITB provided: Waivers The Department may waive minor informalities or irregularities in bids received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other bidders. Minor irregular- ities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Bids by giving a bidder an advantage or benefit not enjoyed by other bidders. Section 1.18.1 of the ITB provided: Award of the Contract The Department intends to award a contract to the responsible and responsive bidder who bids the lowest cost as identified in Form "C", Bid Blank, attached hereto and made a part hereof. The ITB did not specify a minimum number of employees, vehicles or hours of service for a bidder to be deemed responsible or responsive. At all times material to this case, Kemp has been in continuous business for the past two (2) years, and completed form "F" with the information requested regarding work experience and references. The Department's agent, Mr. Gentile, checked with two of the references listed by Kemp to verify information relative to this bid requirement. At all times material to this case, Kemp had at least two years experience providing at least two (2) of the six services outlined in the scope of services. The Department's agent, Mr. Gentile, checked with two of the references listed by Kemp to verify information relative to this bid requirement. While Mr. Gentile was authorized to check with all references listed by Kemp, the failure to do so does not discount the information obtained from the sources that were checked. Kemp had an appropriate occupational license to perform work in the tricounty area, but did not have occupational licenses with the City of Hollywood or Broward County. At all times material to this case, Kemp maintained a warehouse to secure the equipment to be used such as lawnmowers, trimmers, and cleaning supplies/equipment. After the bid protest was filed, the Department verified that Kemp had used the warehouse as it claimed. No evidence to the contrary was presented. The mailing address Kemp listed on the first page of its bid response was 8637 S. Sutton Drive, Miramar, Florida. Mr. Faluade resides at that address. He listed that address for mail purposes. The business address for Kemp listed on the bid response was 6200 Johnson Street, Miramar, Florida. This address is a store-front facility with limited office equipment and furniture. Kemp maintains an office at this location but stores its equipment elsewhere as noted above. Kemp was the lowest responsive, responsible bid for ITB-DOT-94-95- 4004.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Transportation enter a final order dismissing Petitioner's challenge to the award of ITB-DOT-94-95-4004 to Kemp Services, Inc. DONE AND RECOMMENDED this 14th day of February, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5967 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 4, 6, and 8 are accepted. With regard to paragraphs 5, 7, and 16 noting that the additional emphasis is not in the text and that the citations are incomplete (and perhaps misleading), they are accepted. Paragraph 9 is rejected as contrary to the weight of credible evidence. Paragraph 10 is rejected as contrary to the weight of credible evidence. Paragraph 11 is rejected as incomplete, and therefore, misleading. Corporate documents may have been filed on that date, however, the weight of the credible evidence established that Kemp had been in business the requisite amount of time. Paragraph 12 is rejected as incomplete, and therefore, misleading. The business conducted by the Kemp personnel continued regardless of the business entity structure that was used. Paragraph 13 is rejected as contrary to the weight of credible evidence. Paragraph 14 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 15 is rejected as contrary to the weight of credible evidence. Paragraph 16 is rejected as contrary to the weight of credible evidence. Moreover, no credible evidence was presented to establish that Kemp did not provide services as described in the ITB or that it was not in business the requisite time. Paragraph 17 is rejected as incomplete, and therefore, misleading. The mailing address listed by Kemp was a residential address. Paragraph 18 is rejected as irrelevant. Paragraph 19 is rejected as contrary to the weight of credible evidence. Paragraph 20 is rejected as irrelevant. Kemp probably does not have a Leon County occupational license either. It did have an appropriate occupational license at all times material to this case. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 29 are accepted. COPIES FURNISHED: Thomas H. Duffy Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Mitchell B. Polay Mark H. Klein 750 S.E. Third Avenue Suite 205 Fort Lauderdale, Florida 33316 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Department of Health and Rehabilitative Services (HRS) acted in an arbitrary and capricious manner in determining to award the bid for its district office to Koger Properties, Inc. (Koger) and whether the petitioner submitted the lowest and best bid under the terms of the bid specifications.
Findings Of Fact GENERAL BACKGROUND - STIPULATED FACTS Petitioners received a formal Invitation to Bid on Lease No. 590:1784 from HRS, District V. The purpose of the ITB was to obtain competitive proposals for the leasing of office space by HRS within a specifically defined area. Petitioners timely submitted their bid in response to the ITB. All timely received bids were first evaluated to determine technical responsiveness. Petitioners' bid was determined to be responsive to the technical requirements of the ITB. Responsive bids were then presented to a bid evaluation committee for comparison and formulation of a recommendation for award. In comparing the various responsive bids and formulating a recommendation for award, the members of the bid evaluation committee were required to visit each proposed facility and to apply the evaluation criteria as contained in the ITB package. By memorandum dated July 30, 1986, the bid evaluation committee recommended that the bid be awarded to Koger although petitioners submitted the lowest rental price. On or about August 5, 1986, petitioners received notice from HRS of its intent to award Lease No. 590:1784 to Koger. By letter dated August 6, 1986, petitioners notified HRS of their intent to protest the intended award of Lease No. 590:1784 to Koger. The Notice of Intent to Protest was timely filed pursuant to the provisions of Section 120.53(5), Florida Statutes, and Rule 10- 13.11, Florida Administrative Code. Thereafter, the petitioners timely filed their formal written protest. Petitioners are substantially affected by the decision of HRS to award the lease to Koger. THE BIDDING PROCESS The Department of Health and Rehabilitative Services issued an Invitation to Bid and Bid Submittal Form (ITB) seeking approximately 39,968 net rental square feet of office space in Pinellas County, Florida, to be used as the district administrative offices. The ITB set forth the method in which the bids would be evaluated as follows: EVALUATION OF BIDS Bids received are first evaluated to determine technical responsive- ness. This includes submittal on bid submittal form, inclusion of required information and data, bid signed and notarized, etc. Non responsive bids will be withdrawn from further consideration. Responsive bids are presented to a bid evaluation committee for com- parison and formulation of a recom- mendation for award. This is accomplished by a visit to each proposed facility and application of the evaluation criteria. The committees recommendation will be presented to the department's official having award authority for final evaluation and determin- ation of successful bidder. EVALUATION CRITERIA The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated in the bid submittal form. The ITB also provided that "the department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interests of the department and the state." In accordance with the ITB a pre-bid conference was held on April 29, 1986; however, neither petitioners nor any representative of petitioners attended the pre-bid conference. Further, petitioners made no oral or written inquiries concerning the ITB or the evaluation criteria to be utilized. Bids received from the following providers were determined to be responsive and presented to the bid evaluation committee for comparison and formulation of the recommendation for award: James P. & Margaret R. Gills (1100 Building) Koger Properties, Inc. (Koger) LTBCLH Partnership (Justice Building) Procacci Real Estate Management Co., Inc. (ICOT Building) Elizabethan Development, Inc. (Handy City Building). BID EVALUATION COMMITTEE The bid evaluation committee was composed of the following people who, along with their staffs, would occupy the leased property: Robert Withrow, Chairman of the Committee and District Administrative Services Director; Samuel Kinsey, Financial and Accounting Director for District V; Patricia Bell, Program Manager for Aging and Adult Services; Fredrick M. O'Brien, General Services, Manager for District V; and Pegi Hollingsworth, Personnel Officer. Each member of the evaluation committee received a bid package consisting of the bid specifications and the bids submitted. Each member also received a bid evaluation sheet which was used to rate each bidder. They received no other instructions with regard to the evaluation criteria. Although each specific evaluation criterion was weighted, i.e., given a comparative value, the committee members were not specifically instructed as to how points should be assigned for each category. The evaluation committee went to each of the proposed buildings for the purpose of making a comparative evaluation based on the evaluation criteria provided. However, the primary focus was on the Koger Building and the petitioners' 1100 Building because they had submitted the lowest rental rates of the five bidders considered. After the viewing process, the members of the committee, except Mr. Withrow, discussed the factors that should be considered in applying each of the evaluation criterion. Although the committee members had not formulated the evaluation criteria to be used, they were uniquely qualified to apply the evaluation criteria provided to the specific needs and requirements of the HRS offices that would occupy the building. Though the committee members were in agreement as to the various factors to be included in each of the criterion listed, they did not discuss the points that would be awarded to each facility. Each member independently assigned points to each facility based on his or her own evaluation of the facility's comparative value in each of the listed categories. Koger received the best evaluation from all five committee members with point totals of 98, 98, 98, 98 and 99 out of a possible 100 points. Petitioners' building was ranked last of the five buildings evaluated by four of the members, with point totals of 75, 77, 71 and 75, and fourth by Mr. Withrow with a total of 81 points. Based on the comparative evaluation of the buildings, the committee recommended that the bid be awarded to Koger. By letter dated July 30, 1986, the District V office received authorization from the HRS Director of General Services to award the bid to Koger as being in the best interest of the department and state. THE EVALUATION CRITERIA The ITB included the evaluation criteria list used by the committee to ascertain the relative value of each building. At the top of the page it is stated: The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated... The evaluation criteria are divided into three general areas: (1) Associated Fiscal Costs, (2) Location, and (3) Facility. Each general area includes subcategories, with each subcategory being given a total maximum value. Each of the criteria disputed by petitioners is discussed below. 1(a) Rental rates for basic term of lease. (Weighting: 45) All of the bids received by HRS were within the rental limits established by the Department of General Services and also much lower than expected. Even the highest bid was lower than anticipated, and Koger's and petitioners' bids were considered especially desirable. The bids received, listed at present value for the ton year basic lease period, are as follows: BIDDER TOTAL COST AMOUNT MORE THAN LOW BID 1100 BUILDING $1,881,690.1 KOGER 1,993,131.4 $111,441.3 JUSTICE 2,473,559.8 591,869.7 ICOT 2,655,306.1 773,616.0 HANDY CITY 3,223,202.0 1,341,511.9 Rental rates for the basic term of the lease were given a weighted value of 45. All of the committee members gave petitioners 45 points, as the low bidder, and all gave Koger 44 points as the next low bidder. However, four of the members simply agreed that the low bid would receive the maximum amount of points with each subsequent low bidder receiving one less point than the one before it, which resulted in the high bidder receiving 41 points even though its bid was 1.7 times greater than the low bid. Only Mr. Withrow made an attempt to prorate the points based on the differences in the amount bid, thus resulting in the high bidder receiving only 20 points. However, even Mr. Withrow awarded Koger 44 points based on the minimal difference between the Koger bid and the petitioners' bid. Both Mr. Withrow and Mr. Kinsey explained the award of 44 points to Koger by comparing the difference in the amounts bid to the HRS District V budget or the budgets of the entities using the facilities. However, the purpose of the evaluation was to compare each facility to the other facilities. Thus, the award of points for rental rates should have been based on a comparison of the rates offered. Although it was reasonable to assign the maximum number of points to petitioners, as the low bidders, the amount of points assigned to the remaining bidders should have been based on a comparison of the amount of each bid to the low bid. This would have made a significant difference in the points awarded to Justice, ICOT, and Handy City; however, even using a strict mathematical computation would not significantly affect the points awarded Koger due to the minimal difference in Koger's bid and petitioners' bid. Koger would receive no less than 42 points, only 2 points less than awarded, regardless of the method of mathematical computation used. 1/ 2(a) Proximity of offered space in central or preferred area of mad boundaries (Weighting: 5) All the members of the committee agreed that Koger is in the most preferred area because its location is more accessible to the employees and the persons who visit the office than any of the other buildings. Koger is in northeast St. Petersburg, minutes from the interstate. The 1100 Building is located in a more congested area in downtown Clearwater on the extreme northern boundary of the designated area. In making a comparison Of the building locations, all of which were located within the map boundary, the committee jusifiably determined that the building that was the most strategically located, in terms of accessibility, would be considered to be in the most preferred area. Thus, Koger was awarded five points by all committee members. The 1100 Building received 2, 0, 1, 3 and 1 points. Although all committee members awarded Koger the highest points, only one committee member resided closer to the Koger Building than the other buildings. Mr. Withrow, who lives closer to the 1100 Building than Koger, gave the 1100 Building only 1 point because it was more inaccessible to the district clients and employees. Further, the District Administrator, who approved the lease to Koger, resides closer to the 1100 Building. 2(b) Frequency and availability of satisfactory public transportation within proximity of the offered space (Weighting: 5) Both Koger and the 1100 Building received the maximum of five points in this category except from Mr. Withrow who gave the 1100 Building four points. The committee members felt that the bus transportation as about the same for each building. Although the 1100 Building had more buses passing the facility due to its location in downtown Clearwater, the committee considered the destination of the buses and concluded that a person would wait the same length of time for a bus to take him to his destination from either the Koger Building or the 1100 Building. Mr. Withrow differed on the points awarded because he considered the Koger location to be better due to its proximity to the airport. The district office has a large number of people that visit from Tallahassee and other districts in the state. 2(c) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of departmental operations planned for the requested space. (Weighting: 3) Koger received the maximum of 3 points from every committee member in this category; the 1100 Building received 0 points from every member. Although this category is listed within the general area of "Location", the committee members followed the category requirement and considered all environmental factors, including the physical characteristics of the building. In the 1100 Building, committee members noted problems with the air conditioning system and the elevators. The building was not maintained well, and the bathrooms were small and poorly ventilated. The HRS parking at the 1100 Building was not conveniently located. To get to the parking lot from the building an employee would have to cross a parking lot adjacent to the building, cross an intersection and then walk up to a block to get to his or her car. Many of the office employees work late and would be walking to their cars after dark, and there was concern expressed for employee safety considering the parking arrangement offered by petitioners. Koger had none of the problems observed at the 1100 Building. Further, Koger was better suited for the handicapped because there was no need to use a ramp as there was at the 1100 Building. 3(a) Conformance of space offered to the specific requirements contained in the Invitation to Bid. (Weighing: 10) 3(b) Susceptibility of the design of the space offered to efficient layout and good utilization. (Weighting: 10) 3(c) Provisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations...within 100 yards of each other. (Weighting: 10) Koger's bid is for a two-story building containing approximately 39,000 square feet. The 1100 Building is a 15-story building. It would provide approximately 39,000 square feet on the second, fourth, fifth, part of the eighth, part of the ninth, and twelfth floors. The space allocation in the 1100 Building, spread over 6 floors, would provide a major problem in efficiently locating the staff. Certain offices could not be placed on certain floors because of space restrictions, and related offices could not be placed in close proximity to each other. Offices that needed to be on the same floor could not be located on the same floor. Because the space offered by petitioners is spread over 12 floors, accessibility to related offices would be much more difficult. Further, the limited space per floor makes it more difficult for HRS to properly utilize the space provided. None of the testimony provided by the committee witnesses related the "conformance of the space offered to the specific requirements contained in the Invitation to Bid" (e.s.) The ITB lists the offices and rooms required, giving sizes for each. Other than the total square footage, which petitioners met, there were no other specific requirements contained in the ITB. None of the committee members compared the conformance of the space offered to the specific room and office requirements. Indeed, the testimony of the committee members indicate that accessibility of the space was considered under criteria 3(a) rather than the conformance of the space to the ITB. Since the space offered by petitioners apparently complied with the requirements of the ITB, petitioners should have received 10 points for that category. The points awarded under 3(b) and 3(c), however, were proper. The space offered by the 1100 Building is not susceptible to an efficient layout or good utilization of the space offered. Further, the committee legitimately differentiated between the single buildings offered by each bidder, under 3(c), by considering where the space was located within the building. Obviously, factor 3(c) reflects a concern that the space offered not be too separated. It clearly provides that proposals for space in two separate buildings will get fewer points than single building proposals, and there is no indication that all single building proposals should receive the same maximum points. This factor clearly relates to the proximity of the spaces offered to one another, with contiguous space getting the most points. 3(d) Offers providing street-level space (Weighting: 2) Approximately half of the space offered by Koger is street-level space. Koger received two points. The 1100 Building provides no street-level space; it received no points in this category. Petitioners do not contend that they should have gotten any points, but assert Koger should only have gotten one point because not all its space was street-level space. THE COMPARATIVE EVALUATION The evaluation committee members were very conscientious in comparing the relative values of the buildings offered based on the criteria provided and their observations. Their evaluations were not made arbitrarily, but based upon the factors set forth in the evaluation criteria. Although errors were made in calculating the values awarded for categories 1(a) and 3(a), these errors were not due to arbitrary action by the committee members. Further, should the appropriate points under 3(a) be added to petitioners evaluations and three points be subtracted from Koger's evaluations (two points for 1(a) and one point for 3(d)), petitioners evaluations would be 79, 80, 76, 80 and 84, and Koger's would be 95, 95, 95, 95 and 96. The strategic plan for HRS, 1986-1991, Goal 12, is to enhance employee morale and job satisfaction in several ways, one of which is to replace or upgrade 90 percent of substandard physical work environments by December 31, 1990. The testimony and evaluations show, and the committee members found, that the Koger Center would provide a better work environment than the petitioners' 1100 Building. Based on the criteria set forth in the ITB, the Koger bid is the "lowest and best" bid.
The Issue Whether the Department’s action to reject all bids submitted in response to DOT-RFP-20-5003-DAA, relating to asbestos abatement, demolition, and removal services, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Stipulated Facts (verbatim) The Department is an agency of the State of Florida tasked with procuring the services for Districtwide Asbestos Abatement and Demolition and Removal Services for Right of Way property under the Department’s supervision by law. The Department published a bid solicitation for DOT-RFP-20-5003- DAA, seeking bids to provide District Five Asbestos Abatement and Demolition and Removal Services for FDOT. The RFP included specifications, qualification requirements, instructions on what would be required of responders, a bid price proposal sheet, and the award criteria. Cross Construction and Cross Environmental submitted bids in response to the RFP. Cross Construction’s and Cross Environmental’s bids were evaluated by the Department. There is no debate, challenge, or disagreement raised in the Petitions with regard to the Technical Scores submitted by the responding firms to the RFP, only disagreement on three pay items. On June 15, 2020, the Department’s Selection Committee reviewed and discussed the information presented as to the Technical and Pricing scores of the Responding firms, asked for an additional bid item analysis, and indicated that it would reconvene at a future date for a decision. On June 22, 2020, the Selection Committee reviewed, discussed, and confirmed the recommendation presented by the results of the Technical Review Committee scorings and the Project Manager’s Bid Price analysis and selected Cross Construction and Cross Environmental as Intended Awardees. The Selection committee also found that Johnson’s Excavation and Services Inc., [Johnson] and Simpson Environmental LLC [Simpson] were deemed non-responsive due to irregular, and unbalanced pay items prices. On August 24, 2020, the Department’s Selection Committee decided to cancel the Procurement with the intent to readvertise with adjustments to the Scope and Pricing Structure and decided to reject all proposals. Additional Findings of Fact The “three pay items” referenced in paragraph six of the stipulated facts are the items that ultimately caused the Department to reject all bids in the instant dispute. The three pay items are collectively referred to as mobilization pay items. The RFP directs that bids are to contain two parts. Part I is the technical proposal, and Part II is the price proposal. Section 30.3 of the RFP provides that proposers “shall complete the Bid Price Proposal Form No. 2 and submit [the form] as part of the Price Proposal Package … [and that] [t]he Procurement Office and/or the Project Manager/TRC will review and evaluate the price proposals and prepare a summary of its price evaluation.” Five bidders submitted proposals in response to the RFP. One bidder did not advance beyond the initial review phase because its technical proposal did not meet minimum bid standards. The remaining bidders were CCS, CES, Simpson, and Johnson. Price proposals submitted by each of the remaining bidders were evaluated by the Department. Section 3 of the RFP provides a general outline of the process associated with awarding the contract. The steps are: “Pre-Proposal Conference; Public Opening (Technical Proposals); Price Proposal Opening & Intended Award Meeting; and, Selection Committee Meeting Summarizing Evaluations and Determining Anticipated Award.” The agenda for the “Price Proposal Opening & Intended Award Meeting,” as established by the RFP, provides as follows: Opening remarks of approx. 2 minutes by Department Procurement Office personnel. Public input period – To allow a reasonable amount of time for public input related to the RFP solicitation. At conclusion of public period, the Technical evaluation scores will be summarized. Announce the firms that did not achieve the minimum technical score. Announce the firms that achieved the minimum technical score and their price(s) as price proposals are opened. Calculate price scores and add to technical scores to arrive at total scores. Announce Proposer with highest Total Score as Intended Award. Announce time and date the decision will be posted on the Vendor Bid System (VBS). Adjourn. Section 30.4 b. of the RFP provides that a proposer can be awarded a maximum of 30 points for its price proposal. This section also provides that “[p]rice evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider.” On June 15, 2020, the selection review committee met publicly for the purpose of opening price proposals and announcing an intended award. Price proposals were opened, and the eligible bidders received the following price scores: CCS - 11.09; CES - 13.22; Johnson - 19.76; and Simpson - 30. In terms of total score, which combined both the technical and price scores, Simpson received a score of 113.00, which was the highest score, followed by CES (107.55), CCS (103.76), and Johnson (101.76). After opening and considering the price proposals of the respective bidders, the selection committee did not announce an intended award at the meeting on June 15, 2020, but instead requested that the project manager “do further analysis on the pay items for any potential imbalance.” The project manager, through a staff member, performed the additional analysis and determined that Johnson and Simpson submitted “irregular, unbalanced pay items” which resulted in their respective bids being deemed non- responsive and thus not eligible for award. The “irregular, unbalanced pay items” are the three mobilization pay items at issue in the instant matter, and are identified on the bid price proposal sheet as items AB200, AB201, and AB202. Simpson bid $400 for item AB200, $100 for item AB201, and $50 for item AB202. Johnson bid $250 for item AB200, $250 for item AB201, and $100 for item AB202. CCS bid $1 for item AB200, $1 for item AB201, and $1 for item AB202. CES bid $1 for item AB200, 75 cents for item AB201, and 50 cents for item AB202. The Department, in evaluating the bidders’ mobilization pay items, considered costs associated with abatement two structures, a 1,500 and 2,250 square feet structure respectively. For the 1,500-square-foot structure, CCS’ AB200 mobilization costs totaled $1,500. For the 2,250-square-foot structure, CCS’ AB201 mobilization costs totaled $2,250. For the 1,500-square-foot structure, CES’ AB200 mobilization costs totaled $1,500. For the 2,250-square-foot structure, CES’ AB201 mobilization costs totaled $1,687.50. For the 1,500-square-foot structure, Johnson’s AB200 mobilization costs totaled $375,000. For the 2,250-square-foot structure, Johnson’s AB201 mobilization costs totaled $562,500. For the 1,500-square-foot structure, Simpson’s AB200 mobilization costs totaled $600,000. For the 2,250-square-foot structure, Simpson’s AB201 mobilization costs totaled $225,000. On June 22, 2020, the selection committee reconvened and announced CCS and CES as intended awardees of the contract. The Department also announced at this meeting that Johnson and Simpson were “deemed non- responsive due to irregular, unbalanced pay item prices.” On June 24, 2020, Simpson filed a Notice of Protest wherein the company informed the Department of its intent to formally protest the intended award of contracts to CCS and CES. On or about July 6, 2020, Simpson filed with the Department its “formal written petition of protest.” Although Simpson’s formal protest is dated July 6, 2020, CCS and CES contend that Simpson’s protest was actually filed on July 7, 2020, thereby making the protest untimely by a day. The Department did not refer Simpson’s formal protest to DOAH for final hearing, but instead considered the issues presented by Simpson in its protest and then attempted to negotiate a resolution with Simpson, CCS, and CES. Those efforts were unsuccessful. The question of the timeliness of the formal bid protest filed by Simpson is not before the undersigned. Nevertheless, the undisputed facts as to Simpson’s protest, as demonstrated by the record herein, are as follows. On June 24, 2020, Simpson filed notice of its intent to protest the RFP. On June 29, 2020, CCS received notice that a bid protest was filed with respect to the RFP. On July 1, 2020, CES filed a public records request “for public records related to the bid protest made to the” RFP. On or about July 6, 2020, Simpson filed its formal written protest with respect to the RFP, and although the evidence is not clear as to the date, it is undisputed that the Department received affidavits from Simpson explaining the factual circumstances surrounding the filing of the company’s formal written protest. On July 15, 2020, the Department notified CCS and CES that “in response to the Formal Written Protest filed by Simpson Environmental Services, the Department will hold a settlement conference” on Friday, July 17, 2020. On July 21, 2020, Simpson, CES, and CCS notified the Department that they “reached an agreed upon settlement proposal.” On August 11, 2020, the Department, after considering the settlement proposal for several weeks, notified Simpson, CES, and CCS that the Department would discuss the RFP at a public meeting to be held on August 24, 2020. As previously noted, it was during the meeting on August 24, 2020, when the Department announced that all proposals received in response to RFP were rejected. CES, on or about July 1, 2020, submitted to the Department a public records request wherein the company sought a copy of documents related to Simpson’s protest. In response to the request, the Department provided CES a copy of the formal written protest filed by Simpson. It is undisputed that the initial copy provided to CES by the Department did not show either the date or time of receipt of the document filed by Simpson. At some point after the settlement conference, the Department provided to CES a date and time stamped copy of Simpson’s formal written protest. There was no evidence presented explaining the circumstances or the process which resulted in the Department providing different copies of Simpson’s formal written protest to CES, and the remaining evidence does not provide a sufficient foundation to reasonably infer that the Department acted with nefarious motives when providing different versions of the documents to CES. Simpson’s formal protest contains the following statement with respect to the price proposal that the company submitted in response to the RFP: Petitioner’s individual bid price items were based in fact, were reasonable and were in conformity with standard industry rates for similar asbestos abatement and demolition and removal projects. Petitioner’s bid price items were also patently similar to bid price items that Petitioner has previously submitted in response to past FDOT proposal requests that ultimately resulted in the corresponding contracts having been awarded to Petitioner. Indeed, Petitioner has a longstanding relationship with the FDOT as Petitioner has previously contracted with FDOT as a vendor performing asbestos abatement services on numerous projects over the course of the past eight years. Petitioner’s price items for bid proposals have remained consistent for each of its past projects with FDOT. Petitioner’s price items for the instant bid proposal did not differ or vary in any material aspect from those proposed by Petitioner for previous projects that FDOT has deemed reasonable. Michelle Sloan works for the Department as a district procurement manager, and was assigned to manage the instant RFP. Ms. Sloan testified that because Simpson protested the Department’s intended decision to award the contracts to CCS and CES, and specifically referenced in its protest “that their bid for mobilization was in conformance with industry standards, as well as previous bids submitted to the agency that were deemed responsive,” she conducted additional review of the Simpson and Johnson bids. Ms. Sloan testified that after reviewing the RFP, the price sheets related thereto, Simpson’s protest, and the additional analysis of the pay items conducted following the June 15, 2020, selection committee meeting, she concluded that material ambiguities existed in the RFP’s mobilization pay items and recommended to the district secretary that the Department “reject all [bids] and re-advertise with a revised pricing sheet and instructions.” On August 24, 2020, the selection committee, following public notice, accepted Ms. Sloan’s recommendation, rejected all proposals, and canceled the procurement with the “intent to re-advertise with adjustments to the Scope and Pricing structure.” A review of the credible evidence demonstrates a rational basis for the conclusions reached by Ms. Sloan and members of the selection committee. Exhibit C of the RFP is titled “Price Proposal/Detailed and Contractual Price Sheet.” The first page of this document provides a general description of the asbestos removal and abatement pay items. The general pay items are as follows: AB100 Fees [as] determined from the Department of Environmental Protection based upon regulated material. AB200 One-time fee necessary to mobilize for full isolation, per parcel, when abatement with isolation is required. AB300 Fees to be charged by square feet for preparation [of] structure before abatement can commence. AB400 Fees to be charged by square feet, to abate asbestos from various surfacing material such as ceiling, walls, beams, plaster, sheetrock and fireproofing using conventional containment methods. AB500 Fees to be charged either by square foot, linear foot or fittings to abate asbestos from various mechanical systems such as boilers, stacks ducts, fittings, pipes, flutes and flanges. AB600 Fees to be charged either by square foot, linear foot or fittings to abate asbestos from various mechanical systems such as boilers, stacks, ducts, pipe, fittings and jackets which involve the use of a Glove bag. AB700 Fees to be charged by square foot, to abate asbestos from various roofing materials such as cement roof shingles, flashing, rolled roof, felts, wood shingles and mobile home coating. AB800 Fees to be charged by square foot or piece to abate asbestos from various materials such as floor tile, mastic adhesive, sheet vinyl, carpet, wood sub- floor, concrete sub-floor, vibrator dampers, wallboard, metal ductwork and sinks with insulation and heat shields (light fixture). AB900 Fees to be charge[d] by landfill for asbestos disposal. The bid price proposal sheet, which is form number 2 of the RFP, provides a listing of specific pay items related to the general “AB ---” items listed in Exhibit C to the RFP. Below is an example of some of the specific pay items listed on the bid price proposal sheet: [See table on next page] Item Number Description (A) Estimat ed Quantit y Unit (B) Unit Pric e Total Bid Amount (A x B) ASBESTOS REMOVAL ABATEMENT AB200 Mobilization for structures less than 2,000 Sq. FT. 1 SQ. FT. AB201 Mobilization for structures [from] 2001 – 5000 Sq. FT. 1 SQ. FT. AB202 Mobilization for structures over 5001 Sq. FT. 1 SQ. FT. AB300 Mask and Seal 1 SQ. FT. AB401 Remove ACM plaster/lathe including all surface materials 1 SQ. FT. AB501 Remove insulation from fittings 1 LF. AB603 Remove insulation from boilers, stacks or ducts piping 1 LF. AB703 Remove roofing cement 1 SQ. FT. AB810 Remove carpet and mastic adhesive 1 SQ. FT. AB820 Remove sinks with insulation 1 SQ. FT. AB901 Non-Friable 1 SQ. FT. General pay item category AB200, as described on Exhibit C, does not reference a “unit of measurement,” but instead notes that items within this category are to be determined on a “one-time – per parcel” basis. When the AB200 general pay item category is compared to the specific pay items for this category enumerated on the bid price proposal sheet (i.e., AB200, AB201, and AB202), it is evident that the unit of measurement “square feet” is listed as the basis for calculating the bid amount for this item when no such unit of measurement is stated for this item on Exhibit C. Comparatively, general pay item categories AB300 through AB800 each expressly references a specific unit of measurement (i.e., square foot, linear foot, or by the “piece”), and these units of measurement carry over to and are consistently reflected on the bid price proposal sheet for the specific pay items enumerated therein. By inserting a unit of measurement (i.e., square feet) in the mobilization pay items listed on the bid price proposal sheet, when the general description on Exhibit C instructs that they are “one-time, per parcel” pay items, the Department created a material ambiguity in the bidding process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby Recommended that the Department of Transportation issue a final order in Case Nos. 20-4214 and 20-4216 finding that the rejection of all proposals in response to Request for Proposal RFP-DOT-20-5003-DAA was not illegal, arbitrary, dishonest, or fraudulent, and dismissing the two petitions. DONE AND ENTERED this 14th day of December, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2020. COPIES FURNISHED: Douglas Dell Dolan, Esquire Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 (eServed) Richard E. Shine, Esquire Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 (eServed) Brian A. Leung, Esquire Holcomb & Leung, P.A. 3203 West Cypress Street Tampa, Florida 33607 (eServed) Diane E. H. Watson, Esquire Cross Environmental Services, Inc. Post Office Box 1299 Crystal Springs, Florida 33524-1299 (eServed) Kevin J. Tibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450 (eServed) Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 (eServed)
The Issue The issues presented here concern the propriety of the Respondent's action in its decision to reject all bids submitted for Project 72906-9109, Duval County, thereby excluding the bid of the Petitioner which was the apparent low bid in this process.
Findings Of Fact Alfair Development Company, Inc. (Alfair), is a company owned by Maggie Alford. This company is certified as a "Disadvantaged Business Enterprise" under the terms of Chapter 337, Florida Statutes. This recognition is for benefit of contractual work done for the State of Florida, Department of Transportation. Alfair, together with two other companies who are "Disadvantaged Business Enterprises," responded to a bid opportunity from the Department of Transportation identified as Project No. 72906-9109, Duval County. The other two bidders were ILA Construction Company, Inc., of Daytona Beach, Florida, and Highway Valets, Inc., of Norwalk, Ohio. This project was for the construction of concrete sidewalks and curb cut ramps, installation and repair. The contract was for competition solely among contractors who had been certified as "Disadvantaged Business Enterprises" by the Office of Minority Programs within the Department of Transportation. As such, it is referred to as a "set-aside" job. In a "set-aside" project, bids are accepted from these "Disadvantaged Business Enterprises" in furtherance of the requirements of Section 339.0805, Florida Statutes, which mandates that not less than 10% of the amounts expended from the State Transportation Trust Fund shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals. When the bids were opened related to Project No. 72906-9109, Duval County, Alfair was the apparent winner having offered the lowest bid among the three competitors. However, there was a problem with the bid submission by Alfair and the others, in that Alfair's bid was 70% above the pre-bid estimate of the Department of Transportation concerning the expected price that the agency would have to pay for this project. The other two bidders were even higher, but within the range of the 70% above the pre-bid estimate. The pre-bid estimate had been derived by resort to a manual at the Department of Transportation referred to as the Contract Maintenance Administration and Inspection Manual. Within that manual the pre-bid estimate is found, as it was here, by examining historical workload and/or work needs survey information and development of that information and retention of that information through a computation book. That book includes appropriate forms, square yards, per linear feet, etc., for each item of activity to be paid for in the contract. The form to be used in this process shows the project number, the county, the section number of the roadway to be worked, the method of calculating estimated quantities and specific project location, if known. In this arrangement prior contracts of a similar sort to that contemplated in this instance are reviewed in trying to anticipate the contract costs on this occasion. That approach was followed in making the pre-bid estimate in this project. When the comparison was made of those figures it was a comparison to the immediately preceding years' contract for similar work against the work called for in the subject project at hand. In addition, the Department of Transportation contacted concrete companies to make sure that the concrete cost had remained the same. It also verified that minimum wage requirements had not changed from the prior year to the year in question. At hearing, the only rebuttal which the Petitioner offered to this approach of pre-bid estimate was the attempt to present certain documents which were denied admission as evidence in that the representative of the Petitioner, James D. Alford, III, husband to Maggie Alford, was not shown to be sufficiently apprised of contracting matters to explain those exhibits and show how they would tend to rebut the method of pre-bid estimate by the Department of Transportation. The exhibits standing alone did not lend themselves to the interpretation that they were competent rebuttal. When the degree of difference between the pre-bid estimate and the quotes by the bidders was examined by employees within the Department of Transportation, the belief was expressed that the bids were so out of keeping with the pre-bid estimate as to put to question the advisability of contracting with the apparent low bidder, Alfair. The Department felt that it needed to make certain that its pre-bid estimate was not flawed in some fashion and a determination was made to undergo reevaluation of the initial perception held about the bids offered before making a decision. Nonetheless, the impression was created in the mind of Barry D. Bunn, District Contract Administrator for District II, Department of Transportation, that he was expected in his employment to notice that the bids had been rejected. As a consequence on October 25, 1988, the bidders were advised that all bids were rejected for the project. On that same date, an advertisement was placed in the local newspaper that the project was being resolicited for bid purposes and through the advertisement the "set-aside" was deleted. This meant that for purposes of the re-advertisement of October 25, 1988, a general class of bidders could respond, to include "Disadvantaged Business Enterprises." Having been made mindful of this error, Bunn contacted the newspaper where the advertisement had been placed and told them to take that advertisement out of circulation. This occurred on October 26,1988. On that same date further correspondence was directed to the bidders, to include Alfair, in which it was stated that the bids had not been rejected, identifying that the bids were undergoing a reevaluation process. That reevaluation process did not change the initial impression by the Department of Transportation concerning the quotations received as being too far in excess of the Department's pre-bid estimate. Consequently, on November 1, 1988, a further notice of bid rejection was dispatched. That notice did not describe the reason for the rejection, but upon inquiry Mr. Alford was informed that the basis of the rejection was that the bid quotations were too costly when compared to the pre-bid estimate. Under inquiry the Department of Transportation did not identify the details of that explanation in the sense of saying what items they resorted to for drawing that conclusion and the Alfair company did not seek to gain a further explanation of their reasoning through prehearing discovery. The Department of Transportation had refused to give any further information to the Petitioner about this in the course of the telephone conversation between Mr. Alford and an employee in the Lake City, Florida Office of the Department of Transportation based upon the Department's belief that Section 337.168, Florida Statutes exempts it from having to state the pre-bid cost estimate until a contract has been entered into concerning the project. Nonetheless, it was revealed in the course of the hearing what the difference between the bid quotation of Alfair and the pre-bid estimate had been, as well as identifying the methods for deriving that difference. When Alfair received the notice of rejection of its bid it filed a timely notice of protest followed by a timely petition in protest. In addition, the Petitioner posted the appropriate amount of bond under Section 337.11(3)(b), Florida Statutes, to allow it to pursue this case. The pleadings by the Petitioner are not particularly informative but the sum and substance off the allegations as demonstrated in those pleadings and as set forth by remarks of the representative at hearing, identify the belief held by the Petitioner that the Department of Transportation in rejecting the Alfair bid has been unjust, illegal, dishonest and arbitrary. Moreover, Alfair through its representative found fault with the refusal to reveal to him over the phone the methods of arriving at the pre-bid estimate and the general belief that the Department allows the participation in the bidding process and in the award of contract related to "Disadvantaged Business Enterprises" of persons who are not registered or licensed as contractors through the offices of the Department of professional Regulation within the State of Florida. None of these claims were shown to be meritorious through the proofs submitted at hearing. The Department of Transportation seeks the award of costs under the provisions of Section 337.11(3)(b), Florida statutes. The evidence in this hearing reveals that the salaries of the two witnesses who testified for the Department of Transportation, namely Russell O. Davis and Barry D. Bunn, were $125.80 and $130.00, respectively, per day. These employees were involved in the hearing process for one day. In addition to salary costs the State had to pay these employees $62.50 each for per diem allowance in that the witnesses were from out of town. The cost of attendance at hearing by the court reporter is $67.50.
Recommendation In consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that Final Order be entered which rejects all bids and allows the re-advertisement of Project No. 72906-9109, Duval County. DONE and ENTERED this 28th day of March, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 28th day of March, 1989. APPENDIX Petitioner has submitted a Memorandum in which an indication is given concerning the Project 72906-9109, Duval County, as to the scope of that project-and an explanation in the mind of the representative of Petitioner as to the reason for "set-aside" projects. An accusation is made that the Department of Transportation has tried to avoid bringing black businesses into the mainstream of Florida economy. This is not borne out by the proof. An accusation is made which was not proven at hearing and is not relevant to the resolution of this dispute concerning the contributions to the Florida tax base made by the black community and businesses. This contention together with the allegation that the Department of Transportation is using tactics to deny a small percent.age of tax dollars to recirculate into the black community for economic development and by such arrangement promotes institutional slavery was not proven. Reference to rejection of all bids on October 18, 1988 is at odds with the facts of this case. Further, there is no indication in the facts of this case that for the first time in history a black-owned company was going to cross economic a threshold within the district in terms of gaining business and that the agency rejected the bids to avoid this. Further reference to the procedural history of this case and the fact that corrections had to be made to the process of notification of rejection of all bids is not sufficient reason to overturn the decision to reject all bids. Reference within the Memorandum/Argument to the need to post a bond as being done because it would cause an economic hardship on a black-owned company is rejected as a grounds of argument in that the requirement of bond is a matter of law imposed upon all companies black or otherwise. The fact that office holders within the State Legislature were called upon by the Petitioner to ascertain the status of this project and that the Department of Transportation went through the process of correcting "the initial rejection of bids in favor of a reevaluation phase, has been explained in the fact finding elated to the sequence of events and the procedures involved in rejecting all bids. Reference to the failure to describe the reasons for rejection beyond the fact that the bids were too high has been described in the- fact finding. No evidence was shown that the refusal to indicate the reason in detail or to refer to the source of the data was in the interest of somehow favoring white prime contractors over black contractors. There is some other indication within this Memorandum concerning the meeting of goals for "Disadvantaged Business Enterprises" and the concern that the Department of Transportation is using minority individuals instead of minority businesses to meet those goals. There was no indication that the Department of Transportation acted inappropriately in its attempts to gain a contract in this case, or that it generally has participated in a process which the Petitioner refers to dualism in preferring minority persons who are not licensed by the Department of Professional Regulation to engage in the construction business over those who are. Moreover, Section 489.103(1), Florida Statutes, states that the license provisions of Florida law, do not pertain to contractors who are working on bridges, roads, streets and highways and services incidental to that work. Comments about training and apprenticeship found within the Memorandum were not proven in the course of the hearing and are not sufficiently relevant to the inquiry at hand; that they need be considered in resolving this dispute. The suggestion that the Department of Transportation intends to put the contract back out for award in some arrangement other than a "set-aside" is correct in the sense of the intentions expressed in the ad of October 25, 1988; however, that advertisement was not carried forward and the oral indication was made by an official of the Department of Transportation at hearing, that the contract would remain "set- aside" if the Department were allowed to readvertise at some point beyond the outcome of this hearing. Finally, the suggestion that if the second bidder in this case had been a non-black company or individual, the Department would have awarded the project to that entity was not borne out in the proof. Respondent's facts are subordinate to the facts found. COPIES FURNISHED: James D. Alford, III 1348 Davis Street Jacksonville, Florida 32209 Marilyn McFadden, Esquire Department of Transportation 605 Suwannee Street, M.S.-58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Pursuant to Section 287.042(2), Florida Statutes, the Department of Management Services (DMS), lets various Invitations to Bid (ITB) for the benefit of state agencies, cities, counties and other local government agencies so that these entities may purchase a variety of goods and services. On August 24, 1993, DMS issued Invitation To Bid #28-070-700-P. The bid was one of 225 Invitations to Bid issued by DMS in 1993. The bid was for the purchase of medium and heavy trucks. The bid which is the subject of this case involves truck #150. The truck #150 bid has thirteen pages with forty- seven options plus base truck bid blanks. General Condition 1 of the Invitation to Bid requires that "all corrections made by bidder to his price must be initialed." Other documents provided by the Department to interested bidders as part of the bid package reiterate the requirement that all price changes must be initialed. These documents include the "Checklist," a document entitled "Common Problems That Result in Bid Being Rejected" and the document entitled "Medium and Heavy Trucks Index." The requirement in General Condition I of the Invitation to Bid, that all price changes must be initialed, contains no printed exceptions with respect to "nonpreselected" options. The purpose of the requirements of General Condition 1 of the Invitation to Bid is to protect both the State of Florida as well as competing vendors. The reason for the requirement that all price changes or alterations be initialed by the vendor is to protect both the State of Florida against a successful bidder later inserting higher option prices and charging the state agencies those prices, and the vendor against the State later inserting lower prices and attempting to hold the vendor to those prices. General Condition 13 of the bid document states: LEGAL REQUIREMENTS: Applicable provisions of Federal, State and Local law and all ordinances, rules, and regulations shall govern development, submittal and evaluation of all bids received in response hereto and shall govern any and all claims and disputes which may arise between persons(s) submitting a bid response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or any other person, natural or otherwise; and lack of knowledge by any bidder shall not constitute a cognizable defense against the legal effect thereof. . . (Emphasis added.) General Condition 13 incorporates Rule 60A-1.001(3), Florida Administrative Code, which permits the State to waive minor irregularities in the conformance of a bid proposal to the formal bid requirements. The lowest bidder is determined by two factors. The first factor is the price for the base truck. The base truck is the minimum truck which can be ordered in this contract with no options. It is basically a chassis with an engine. The second factor involves additions to the truck called preselected options or predetermined options. All of the other options for the particular vehicle are deemed nonpreselected options. Preselected options are generally the most frequently ordered additions to the base truck along with some other less frequently ordered options. The preselected options can vary from bid to bid; however, DMS always determines the preselected options before opening the bids. The price of any option cannot exceed retail price. There is, therefore, a ceiling for the prices of preselected and nonpreselected options. The preselected options are not announced until after the bid is posted to prevent dishonestly low prices on preselected options and to promote competitive prices throughout the contract document. The bidders therefore do not know which options are preselected when they are composing their bids. There is nothing to be gained by a bidder loading a particular option with a high markup, because the bidder cannot guarantee that the option will not be preselected. The bid evaluation price is the base truck price plus the price of the combined chosen preselected options. DMS received numerous bids on the ITB, including a bid from Petitioner and Intervenor. Atlantic Ford bid a combined price of $38,737.00, and was the apparent low bidder; Duval Ford bid a combined price of $39,944.00 and was the apparent second low bidder. Upon receipt of the bids from the bidders, the bids were held in a locked room until the bid opening. After the bid opening, the purchasing specialist assigned to this bid reviewed each bid for conformity to the general non-technical specifications. Only the Bureau of Procurement is responsible for the nontechnical review although other Bureaus or Divisions may review and have input into the review process. However, these other Divisions' input is not binding. In the nontechnical review the purchasing specialist reviewed each bid's signatures, whether or not the bid was signed in ink, and numerous other requirements. The purchasing specialist also reviewed the bids to determine if all base bid blanks and price blanks for preselected options were filled in and that no corrections were made to those prices without a bidder's initials acknowledging the change. The bids which failed to meet the general conditions of the bid for base bid items and preselected options were rejected as nonresponsive bids. After the initial nontechnical review, the bids were sent to the Division of Motor Vehicles and Watercraft for a technical evaluation. However, since each bid document contains bids for several trucks, there may be a mixture of responsive and nonresponsive bids for various trucks in the same document and the Division of Motor Vehicles and Watercraft may receive responsive and nonresponsive bids for technical review. John Bevins of the Division of Motor Vehicles and Watercraft reviewed the technical parts of the bid. This information included manufacturer's codes for options and base truck features as well as the manufacturer's retail price which no bidder can exceed. After John Bevins completed his review, he filled out a bid rejection recommendation form. John Bevins chose to include nontechnical items in his recommendation, although this was beyond the scope of his review. Mr. Bevins indicated on his bid evaluation form that Atlantic Ford failed to initial a typewritten correction on option 8206 of truck 150. Mr. Bevins returned the reviewed bids to the purchasing specialist along with his recommendation that Atlantic Ford's bid was not responsive since it failed to initial the typewritten correction on option 8206. The purchasing specialist discussed the failure of Atlantic Ford to initial the typewritten correction on option 8206 with H. P. Barker, Jr., the Bureau Chief of Procurement. H. P. Barker, Jr. has the final authority within the Bureau of Procurement to decide if a bid is responsive. He is the customary agency decision-maker on these matters. After careful consideration and discussion, H. P. Barker, Jr., determined that the failure of Atlantic Ford to initial the typewritten correction on a credit is a minor irregularity according to the Department's purchasing rules, since option 8206 was a nonpreselected option and did not effect the total bid price for determining the lowest bidder. Barker's decision was based on the State's interest in obtaining trucks at the lowest price, thereby obtaining the most goods per contracting dollar. Duval Ford conceded that the typewritten correction was faint and does not appear on photocopies of the bid. Barker testified that DMS accepts photocopies of bids. If Atlantic Ford had submitted a photocopy of its bid, as it could have legally done, then the typewritten correction would probably not have been noted by the Department or the other bidders. Barker also testified that bids are not rejected if nonpreselected option blanks are not filled in. Dealers can choose not to offer all nonpreselected options. Finally, in this case option 8206 was a credit. Even if a purchaser under the contract orders option 8206, it will pay six dollars ($6.00) less for the overall truck from Atlantic Ford than if the truck was ordered from Duval Ford. Duval Ford offered evidence from 1991, that DMS had rejected a bid of another dealer for failure to initial a price change on a nonpreselected option. However, Nelson Easom, Duval Ford's manager had not been able to discover any similar rejections in the subsequent two years. Barker testified that the policy regarding noninitialed nonpreselected options changed three years ago. DMS then decided to treat them as minor irregularities. The policy change was based on the public policy to award the lowest bid whenever possible and to prevent minor deviations in bids from causing the state to pay higher prices for goods and services. Moreover, the evidence did not show any abuse of the bid process which would occur should price changes not be initialed. The alleged "protection" afforded to bidders by requiring every change to be initialed is at best tenuous since any fraudulent price changes could easily be recognized by the party against whom the change was made. Given these facts, this case over initials appears to be much ado about nothing, and the failure of Atlantic Ford to initial its price change on a nonpreselected option is a minor irregularity and waiveable by DMS. DMS therefore did not act in an arbitrary and capricious manner by waiving the irregularity and awarding the bid to Atlantic Ford.
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 Atlantic Ford. DONE AND ENTERED this 15th day of March, 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 15th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6790BID The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, and 19, of Respondent's Proposed Findings of Fact are adopted in substance insofar as material. Paragraphs 15 of Respondent's Proposed Findings of Fact was legal argument. The facts contained in paragraphs 1, 2, 3, 4, 10, 13, 17, 18, 21 and 24 of the Petitioner's Proposed Findings of Fact are adopted in substance insofar as material. The facts contained in paragraphs 11 of Petitioner's Proposed Findings of Fact were immaterial. The facts contained in paragraphs 5, 6, 7, 8, 9, 12, 14, 15, 16, 19 and 20 of Petitioner's Proposed Findings of Fact are subordinate. 9. The facts contained in paragraphs 22 and 23 of Petitioner's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: Charles Cook Howell, III Howell, O'Neal & Johnson Suite 1100 Jacksonville, Florida 32202 Cindy Horne Office of the General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, Florida 32399-0950 Kerri L. Barsh Attorney at Law Greenberg Traurig et al. 1221 Brickell Avenue Miami, FL 33131 Paul A. Rowell, Esquire General Counsel Department of Management Services 312 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 William H. Lindner Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
Findings Of Fact The Department of Corrections (Corrections) initially published an Invitation to Bid (ITB) 90-Region-001 for the provision of a recyclable baling machine which had an opening date and time of 1:00 p.m., August 22, 1989. Upon opening and evaluation of the bids filed in response to ITB 90- Region-001, Corrections' purchasing and technical staff determined that the specifications for this initial ITB had been drafted too narrowly for them to validly and reasonably compare the bids submitted. This was Corrections' first attempt to meet certain recycling mandates and the agency personnel were initially unfamiliar with all of the machinery available in the marketplace. Lack of technical literature from some bidders was also a problem. In comparing the five bid responses received, it became apparent to Barbara Stephens, Corrections' Purchasing Director, that the specifications she had initially drafted worked against agency interests in that they were so narrow that different models could not be compared. In Ms. Stephens' words, one could not even compare "apples and apples," let alone "apples and oranges." The line item on Page 6 defied comparison and other line items presented significant comparison problems. After a review by Corrections' General Services Specialist Bob Sandall, it was determined that it was to the agency's advantage, as well as advantageous to the competitive bidding process, to rebid on more general specifications instead of specifications solely geared to one single model of one type of baler already owned by the agency, a McDonald single phase baler. For the foregoing reasons, Corrections elected to reject all bids received in response to ITB 90-Region-001 and rebid the item so as to broaden the eligibility base through new specifications, thereby ensuring that more than a single manufacturer could compete while making line item comparisons by the agency possible. Line item comparisons were considered advantageous to all potential bidders and to the agency and essential to a fair competitive bidding process. Considering purely bottom-line cost, Petitioner Solid Waste was the low bidder on initial ITB No. 90-Region-001 if its mathematical error were ignored and its bid were recorded as $23,960.00 instead of as $35,970.00. There were apparently some other problems with Solid Waste's bid response. These were not clearly addressed by any witness' testimony, but it is apparent that the requested manufacturer's specification sheet was included with Solid Waste's response to ITB 90-Region-001. Corrections did not reach any of the potential bid defects of Solid Waste because the agency elected to discard all the bids almost immediately. Rule 13A-1.002(9) F.A.C. provides that an agency shall reserve the right to reject any and all bids and shall so indicate in its invitation to bid. Corrections followed this requirement in General Condition 10 of ITB No. 90- Region-001, which provides in pertinent part, as follows: As the best interest of the State may require, the right is reserved to reject any and all bids . . Bob Sandall and Barbara Stephens redrafted the bid specifications for the recyclable baling machine more broadly, primarily to encourage greater competition of bidders. Corrections properly published these new specifications in ITB No. 90-Region-001 on or about September 18, 1989. Bids were to be opened on October 3, 1989. On October 3, 1989, the bids submitted in response to ITB No. 90- Region-001 were opened and checked for completeness. Upon opening the bid packet submitted by Petitioner Solid Waste, Corrections personnel discovered that the manufacturer's specification sheet which had been required in both initial ITB No. 90-Region-001 and in rebid ITB No. 90- Region-001R was missing. Based on the missing specification sheet, Petitioner's bid on ITB No. 90-Region- 001R was rejected as unresponsive. General Condition 7 in ITB 90-Region-001R provided in pertinent part: Bidder shall submit with his bid, cuts, sketches, and descriptive literature and/or complete specifications. Reference to literature submitted with a pervious bid will not satisfy this provision. The State of Florida reserves the right to determine acceptance of item(s) as an approved equivalent. Bids which do not comply with these requirements are subiect to reiection. (Emphasis supplied) Special Condition VI of ITB 90-Region-001R, "Submission of Mandatory Forms/Literature," further provided that: 5. Complete Technical Data on items other than as specified shall be provided with bid by the vendor, for evaluation purposes, otherwise bid will not be considered. Nowhere in ITB 90-Region-001R is there any suggestion that responses thereto are supplemental to those filed for ITB 90-Region-001 or that "carryovers" or "reactivations" of earlier ITB 90-Region-001 responses would be considered. Corrections rejected other bidders' responses for other acts of non- responsiveness, and it was not necessary to waive any condition in order to award the bid to any of the bidders who were in full compliance with ITB 90- Region-001R. Petitioner timely filed a formal written protest to Corrections' bid tabulation of ITB 90-Region-001R on October 23, 1989. In this protest, Petitioner also included its only and untimely challenge to the agency's rejection of all bids for ITB 90-Region-001.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Corrections enter a Final Order dismissing Petitioner's protest and ratifying its rejection of all bids for ITB 90-Region- O01R and its tabulation of bids for ITB 90-Region-001R. DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5854BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1. is accepted except for the ultimate conclusion of law. See Conclusions of Law. 2-3, 5-7 are rejected as mere legal argument or proposed conclusions of law. See Conclusions of Law. 4 is rejected as characterization of testimony. Respondent' s PFOF: 1-7 are accepted. COPIES FURNISHED: W. K. Lally, P.A. 6160 Arlington Expressway Jacksonville, Florida 32211 Perri M. King Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Courtesy copy to: Richard L. Dugger, Secretary Thomas W. Riggs, President Department of Corrections Municipal Sales and Leasing 1311 Winewood Boulevard Inc. Post Office Box 90306 Tallahassee, Florida 32399-2500 Lakeland, Florida, 33804 Louis A. Vargas, General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
Findings Of Fact During March 1988, the Respondent issued an Invitation to Bid by which it sought to lease 17,973 net usable square feet of office space to be located within a specified geographic area in Tampa, Florida, under a nine year lease with two additional three year option periods. This Invitation to Bid is referred to as Lease Number 590:1927. Three bids were received in response to the Invitation to Bid, and they were opened on May 13, 1988. Bids were received from the Petitioner, 8900 Centre, Ltd., and the Allen Morris Management Company. All bidders were determined to be responsive to the Invitation to Bid. Despite the fact that petitioner submitted the lowest bid, Respondent notified Petitioner by letter dated June 10, 1988, of its intent to award Lease Number 590:1927 to 8900 Centre, Ltd., as the lowest and best bidder. Petitioner has timely filed its protest seeking review of that decision. It is undisputed that Petitioner submitted the lowest bid. For the first year of the lease, Petitioner bid $7.85 per square foot, while 8900 Centre bid $7.95 per square foot. Thereafter, Petitioner proposed a yearly increase of 50 cents per square foot, reaching $11.85 per square foot in the ninth year of the lease, while 8900 Centre proposed annual increases of approximately 75 cents, reaching $14.00 per square foot in the ninth year. This equates to an actual dollar difference over the nine year term of approximately 185,000. However, using a present value methodology and a present value discount rate of 8.81 percent referred to on page 17 of the bid submittal form, the present value difference in these two bids is approximately $1,000 per month, which would result in a present value difference between Petitioner and 8900 Centre of approximately $108,000 over the nine year period. Neither the Invitation to Bid, bid specifications, nor the actual bids were offered into evidence. One page of the bid submittal form, designated as page 17 of 18, was offered and received in evidence. This portion of the bid submittal form states that the "successful bid will be that one determined to be the lowest and best." It also sets forth evaluation criteria, and assigns weights to each criteria. The evaluation criteria include associated fiscal costs (35 points), location (40 points) and facility factors (25 points) . A synopsis of bids was also offered and received in evidence showing the points awarded to each bidder by the Respondent's bid evaluation committed. Out of a possible 100 points, 8900 Centre received 95.17 points, while Petitioner received 82.25 points and the Allen Morris Management Company received 70.67 points. Petitioner asserts that the members of the evaluation committee were not qualified or knowledgeable in basic construction, design and engineering principles, and therefore could not competently evaluate the bids submitted. However, Petitioner did not offer competent substantial evidence to support this contention. Only the chairperson of the committee, Susan Jennings, was called to testify, and she appeared thoroughly knowledgeable in the bid process, the needs of the agency, the bid requirements and the representations made to the committee members by each bidder, including Petitioner, when the committee made its site visit to each location. Since the actual Invitation to Bid, bid specifications, and evidence about the other committee members were not introduced, it is not possible to know what the specific duties of the committee were, how they were to carry out their duties their qualifications and training, and whether they failed to competently carry out these duties, as alleged by Petitioner. Despite Petitioner's lower bid, Respondent awarded this lease to 8900 Centre, Ltd., based upon the evaluation committee's determination assigning 8900 Centre the highest number of evaluation points. Out of a possible 35 points for fiscal costs, Petitioner received 34 and 8900 Centre received 31.5. Thus, Petitioner's status as low bidder is reflected in the points awarded by the committee. Since neither the bid invitation or specifications were introduced, no finding can be made as to whether the difference between these two bidders comports with any instructions or directions provided by the agency to potential bidders, or whether this difference of 2.5 points on this criteria reasonably reflects and accounts for the dollar difference in these two bids. Petitioner received 34.75 points out of a possible 40 points on the general evaluation criteria "location," while 8900 Centre received the full 40 points. Within this criteria, there were three subcategories, and on the first two subcategories (central area and public transportation) there was an insignificant difference of less than one-half point between Petitioner and 8900 Centre. The major difference between these two bidders which accounts for their significant difference on the location criteria, was in the subcategory of environmental factors, in which Petitioner received 15.17 points and 8900 Centre received the full 20 points. Petitioner did not present competent substantial evidence to discredit or refute the committee's evaluation in the subcategory of environmental factors. To the contrary, the only testimony from a committee member was that of Susan Jennings, and according to her, Petitioner failed to explain the availability of individual air conditioning and heating controls, or the possibility of separate program entrances, which could be made available under its bid. Although Petitioner sought to explain at hearing that these desires of the agency could be accommodated in its bid, there is no evidence that such an explanation was provided in its bid or during the bid process when the evaluation committee visited the Petitioner's site. The committee was aware, however, that 8900 Centre would provide individual heating and air conditioning controls, as well as separate outside entrances for the three programs which would occupy the leased space. Additionally, the committee was concerned, according to Jennings, that parking areas at Petitioner's facility were more remote and removed from the building entrance than at 8900 Centre, and were somewhat obscured by trees and shrubbery, thereby presenting a potential safety concern for employees working after dark. Finally, every employee would either have a window or window access at 8900 Centre, while it was not explained that Petitioner's site would offer a similar feature. Thus, Petitioner failed to establish that the evaluation committee erred in assigning a significantly greater number of points for environmental factors to 8900 Centre than to Petitioner. The evidence reflects a reasonable basis for this difference. The other significant difference between these two bidders was in the subcategory for layout and utilization under the evaluation criteria "facility." Petitioner received 13.67 points while 8900 Centre received a full 20 points. Jennings explained that the separate outside entrances leading directly into the three programs that would occupy this space was preferred to a single reception area for all three programs. Petitioner offered the single reception area in its bid and site visit presentation, while 8900 Centre made it clear that each program would have its own entrance. Since these programs do not have a receptionist position, and none wanted to give up a secretarial position to serve as receptionist for all three programs, the committee did not consider the single reception area entrance to be desirable. Additionally, Petitioner's facility was a two-story building, while 8900 Centre is a single story facility. Jennings explained that the committee considered a ground level facility to be preferable to a two story building, particularly since the Medicaid program was to occupy the major portion of this space. The Medicaid program would have to be split up at Petitioner's facility, either in two separate buildings or on two levels of the same building, while at 8900 Centre, Medicaid could be accommodated in one, single story building, with the other two programs in a second, single story building. Finally, parking at 8900 Centre was directly next to, and outside the entrance of the building, while Petitioner offered to make assigned spaces available in a general parking area which serves its entire 100,000 square foot complex. The parking offered by Petitioner is more remote than that offered by 8900 Centre, and would be less secure at night due to a greater distance from the building entrances and the parking lot. Thus, Petitioner failed to establish that the committee erred in assigning a significantly greater number of points for layout and utilization to 8900 Centre than to Petitioner. There is a reasonable basis for this difference, according to the evidence in the record.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's protest to Lease Number 590:1927. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of December 1988. DONALD D. CONN 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 9th day of December 1988. APPENDIX (DOAH Case Number 88-3765 BID) Rulings on Petitioner's Proposed Findings of Fact: Adopted, in part, in Finding of Fact 1, but Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Adopted in Finding of Fact 5. 3-5. Adopted in Finding of Fact 4, but Rejected in 7. 6-7. Rejected in Finding of Fact 8. Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Rejected in Findings of Fact 9 and 10, and otherwise as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact: Adopted in part in Finding of Fact 1, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 4. 3-4. Adopted in part in Findings of Fact 5 and 6, but otherwise rejected as not based on competent substantial evidence in the record of this case. Adopted In Findings of Fact 5, 7-10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary since the point difference in this subcategory is insignificant. Adopted in Finding of Fact 9. 11-12. Adopted in Finding of fact 10. COPIES FURNISHED: Michael V. Giordano, Esquire 7821 North Dale Mabry Suite 100 Tampa, Florida 33614 Jack Farley, Esquire W. T. Edwards Facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 10, 1991, respondent, School Board of Collier County (Board), issued a written invitation to various contractors inviting them to submit proposals for certain construction work to be performed on Naples Park Elementary School in Collier County, Florida. The invitation in question is more specifically identified as Bid No. 120-5/91 Site Development/Naples Park Elementary School. The bidders were advised that their bids must be submitted no later than 2:00 p.m. on June 4, 1991. Bids were timely filed by five contracting firms, including petitioner, A2M2R Construction, Inc. (AMR), and Haas Construction, Inc. (Haas). On June 4, 1991, various school personnel, including Dallas Disney, Board architect, Vicki McKinney, Board assistant director of purchasing, and Pat Humphrey, a Board secretary, and the Board's engineering consultant, Glen Bridges, met for the purpose of opening the sealed bids. They agreed that the five bids would be opened in alphabetical order. This meant that AMR's bid was opened first while Haas' bid was opened fourth. Bridges was assigned the task of opening the bids and reading the dollar amount of each bid. In the case of AMR, it proposed a base bid in the amount of $174,815. When Bridges opened Haas' bid, he said words to the effect that he could not clearly make out the amount of the base bid. This was because the original number had been changed by Haas prior to the submission of its bid, and it could not be clearly read. Accordingly, Bridges handed the proposal to McKinney, who read the number as $146,500. She then handed the bid document to Disney who also concluded the bid was in that amount. At that point, the president of Haas, who was present at the bid opening, was asked if the amount was indeed $146,500. When he confirmed that it was, he was asked to place his initials next to the base bid number. He did so even though paragraph (6)(a) of the Bid Instructions provides that "(a)ny erasures or other corrections in the proposal must be explained or noted over the signature of bidders". According to AMR, this provision required that Haas initial the amount before it sealed and filed its bid. This interpretation of the Bid Instructions was confirmed by Board personnel. Thus, AMR contends that by Haas initialing its bid amount after the bids were opened, Haas violated the Bid Instructions and should have its bid proposal rejected. As it turned out, the bid amount submitted by Haas was the lowest dollar bid on the project, and the Board has proposed to award the contract to Haas. According to the Board's assistant superintendent for business affairs, Robert Wilson, who has supervised hundreds of bid lettings over the last several years, the circumstances in this case were "unusual" in that Haas initialed the bid amount after the bid documents were opened. However, Wilson considered this to be a minor irregularity which, by the terms of the Bid Instructions, could be waived by the Board. Further, he did not find such action to give Haas an undue advantage in the bidding process or place AMR and other bidders at a disadvantage. This was not contradicted. On the bid form used by the bidders, there is a line left blank before the space where the numerical amount of the bid is inserted. AMR contends that the purpose of this space was to be used by a bidder to spell out in words the amount of its bid, and because Haas did not spell out in words the dollar amount of its bid, the proposal should be rejected. However, there is no requirement in the Bid Instructions that the dollar amount be spelled out in words nor was there a school policy imposing such a requirement. Therefore, as to this contention, no irregularity in the bidding process occurred.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent awarding the contract in question to Haas Construction, Inc. DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of July, 1991. APPENDIX TO RECOMMENDED ORDER Respondent: 1-2. Adopted in finding of fact 3. Adopted in finding of fact 2. Adopted in finding of fact 4. 5-7. Adopted in finding of fact 3. Rejected as being unnecessary. Adopted in finding of fact 3. Adopted in finding of fact 4. Adopted in finding of fact 3. COPIES FURNISHED: Mr. James R. Powell, Jr. P. O. Box 150340 Cape Coral, FL 33915 Thomas W. Franchino, Esquire 700 Eleventh Street, South Suite 203 Naples, FL 33940-6777 Dr. Thomas L. Richey, Superintendent Collier County School Board 3710 Estey Avenue Naples, FL 33942
The Issue The issues to be considered in the course of this Recommended Order concern the question of whether Baxter's Asphalt & Concrete, Inc. or White Construction Company, Inc. should be accepted as a successful bidder on State Project No. 53050-3514, Jackson County, Florida, as advertised by the State of Florida, Department of Transportation.
Findings Of Fact The State of Florida, Department of Transportation, (DOT), advertised for bids on State Project No. 53050-3514, Jackson County, Florida. This was a project in which DOT had determined that 10 percent of the funding within the State Department of Transportation Trust Fund, as allotted for the project, would be devoted to economically disadvantaged individuals, also referred to as Disadvantaged Business Enterprises (DBE). This decision was in keeping with Section 339.081, Florida Statutes. Consequently, interested bidders were called upon to submit bids reflecting a DBE participation of a minimum of 10 percent of the bid submitted. Baxter's Asphalt & Concrete, Inc. (Baxter) and White Construction Company, Inc. (White) responded to the bid opportunity. The bids were opened on July 25, 1984, and Baxter's bid was the apparent low bid. The bid amount was $882,641.25. White was the second low bidder offering a bid of $928,353. Both bids were within the DOT estimate of construction costs. When the bids were reviewed, Baxter's bid was rejected by DOT based upon the belief that the bid failed to meet the DBE 10 percent requirement or to offer explanation of good faith attempts by Baxter to comply with the DBE contract requirement amount. See Section 14-78.03(2)(b)4., Florida Administrative Code. No other claim of error was made by DOT on the subject of the acceptability of the Baxter bid. The White bid is conforming. In preparing the bid, bidders are required to use DBE Utilization Form No. 1 to reflect the amount of DBE participation as a percentage of the overall bid estimate. In submitting its form as part of its bid blank, Baxter indicated that the total project cost was $884,000, and indicated that Ozark Striping, a DBE subcontractor, would be given $20,000 of that work or 3 percent, and that Glenn Powell, DBE subcontractor, would be afforded 7 percent of the total contract in the amount of $55,000. The total percentage according to Baxter is 10 percent, thus meeting the required DBE participation. This form is found as part of the joint Exhibit No. 1 offered by the parties. In fact, the Ozark Striping participation was 2.26 percent, and the Glenn Powell participation was 6.22 percent, for a total of 8.48 percent of the estimate reflected in the Form No. 1. Contrasted against the actual estimate of $882,641.25, these projections constitute 8.49 percent of that estimate. Thus, they are less than the 10 percent required. Given the fact that this DBE projection is less than the 10 percent, and in the absence of any attempt to offer a good faith explanation why Baxter failed to comply with the requirement, the bid was rejected for this irregularity. The Contract Awards Committee of DOT, when confronted with the irregularity of the Baxter bid, then determined to recommend the rejection of all bids. This was in keeping with the fact that the difference between the unsuccessful apparent low bid, with irregularities, and the second low bid exceeded 1 percent of the contract amount. At the time of this decision to reject all bids, DOT felt that the difference would justify re-advertising the bids. That policy position had been abandoned at the point of final hearing in this cause, wherein DOT expressed the opinion that it would be better served to accept the bid of White, and not re-advertise, again for cost reasons. In the face of the initial action to reject all bids and in accordance with Section 120.53, Florida Statutes, Baxter and White appealed that decision and by that appeal requested recognition as a successful bidder. This led to the present Section 120.57(1), Florida Statutes hearing. Baxter has never attempted to offer a good faith explanation of its non-compliance. It chooses to proceed on the theory that the mistake in computation can be rectified by allowing Baxter to submit a supplemental Form No. 1, bringing its total above the DBE requirement. In its contention, Baxter indicates that Glenn Powell could have provided $126,000 of the DBE goal, which is in excess of the 10 percent requirement. Baxter also alludes to the fact that it had contacted other DBE enterprises, such as Oglesby and Hogg, Michael Grassing, and J.E. Hill. All told, Baxter indicates that if given the opportunity, it would allow $146,000 of DBE participation to include $126,000 by Glenn Powell, and $20,000 by Ozark. This comment is suspect, given the lack of compliance in the initial bid response, and the realization that within that bid response on the item related to Glenn Powell, the original amount of work attributed to Glenn Powell was $100,000, and was struck through in favor of the $55,000, leaving a fair inference that Baxter was attempting to meet the DBE goal with a projection as close to the 10 percent as could be achieved. They fell short because in adding the $20,000 for Ozark, and the $55,000 for Glenn Powell, the addition in the Form No. 1 showed $85,000, which is more than 10 percent of the $884,000 shown on the form, when in fact the two amounts were $75,000, and less than the 10 percent required. Baxter characterizes its mistake in computation as a technical error, which can be remedied without harm to the bid process. The Baxter position must be examined in the context of action by DOT relating to compliance with DBE requirements. Prior to June 1984, a time before the subject July 25, 1984 bid opening, bidders had been allowed to amend the Form No. 1 to show compliance with the DBE requirements or demonstrate good faith efforts of compliance. That amendment as to compliance through listing of the DBE subcontractors or submission of good faith effort documentation had to be offered within 10 days per former Section 14-78.03, Florida Administrative Code. Beginning with the June 1984 bid-lettings, all documentation had to be submitted with the bid, reflecting compliance or describing good faith efforts at compliance per Section 14-78.03(2)(b), Florida Administrative Code, effective May 1984. This change was brought about to prevent the apparent low bidder, as indicated at the point of bid-letting, from shopping the quotations by the DBE's found in its original quote against other quotes from DBE's not listed in the bid documents initially submitted, and by amendment to the DBE statement prejudicing the former DBE group. The change was also made to avoid the possibility that the apparent low bidder could evade his bid by rendering it non-conforming, in the sense of refusing to submit the required documentation of compliance with DBE requirements or to the offer of a good faith explanation of non-compliance after the bid-letting. The change of May 1984, removed the possibility of bid shopping and bid avoidance. Both versions of Section 14-78.03, Florida Administrative Code, pre and post May 1984, indicate that failure to satisfy the DBE requirements or offer a showing of a good faith attempt at compliance, would result in the contractor's bid being deemed non-responsive, and cause its rejection. Baxter has been able to comply with the DBE goals of DOT in its bidding prior to the present controversy.
The Issue At issue in this proceeding is whether the decision of the Department of Management Services (Department) to reject the bid of National Data Products, Inc. (NDP), as non-responsive departed from the essential requirements of law.
Findings Of Fact Background On December 4, 1992, the Department of Management Services (Department) issued Invitation to Bid number 79-250-040-B REBID (hereinafter "the ITB") to establish a contract whereby eligible users could purchase microcomputers and optional components during the period of January 15, 1993, through October 31, 1993. The deadline for submitting sealed bids in response to the ITB was established as 2:00 p.m., December 16, 1992. At the time of the deadline, the Department received a number of bids, including those of petitioner, National Data Products, Inc. (NDP), and intervenor, Mon-Wal, Inc., d/b/a the Waldec Group (Waldec). On December 21, 1992, following its evaluation of the bids, the Department posted its bid tabulation. The bid tabulation indicated, inter alia, that, although NDP was the apparent low bidder, its bid had been rejected as non-responsive, and that Waldec was declared the low responsive bidder. Pertinent to this case, the predicate for the Department's rejection of NDP's bid was its conclusion that NDP had failed to include, as required by the ITB, the manufacturer's suggested retail price lists with its bid. NDP filed a timely notice of protest and formal written protest to contest the Department's decision. Such protest contended that the manufacturer's suggested retail price lists were included with its bid or, alternatively, that had they not been submitted, such oversight was a minor irregularity that should be waived. The Invitation to Bid The stated purpose of the ITB was to establish pricing for the purchase of microcomputers and optional components to be added to an existing contract for use by all State of Florida agencies and other eligible users. Specifically, the ITB invited bids for three separate product lines, Hewlett Packard, NCR and Zenith, and a bidder could respond with regard to one or more of the product lines. This bid protest relates only to that portion of the ITB regarding the Hewlett Packard (HP) product line. The ITB, apart from specifying the HP product line, did not identify any particular HP product or volume. Rather, the ITB sought to establish pricing by requiring each bidder to specify a percentage discount off the manufacturer's suggested retail price of all HP microcomputer systems and peripheral products. Pertinent to this case, the general conditions of the ITB provided: 9. AWARDS: As the best interest of the State may require, the right is reserved . . . to reject any and all bids or waive any minor irregularity or technicality in bids received. * * * 15. PRICE ADJUSTMENTS: Any price decrease effectuated during the contract period by reason of market change shall be passed on to the State of Florida . . . Price increases are not acceptable. * * * 24. THE SUCCESSFUL BIDDER(S) MUST PROVIDE: A copy of any product literature and price list, in excellent quality black image or white paper, or on 4 x reduction microfiche, suitable for duplication (120 lines resolution or better). * * * NOTE: ANY AND ALL SPECIAL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE. . . . And, the ITB contained the following special conditions: LITERATURE DISTRIBUTION Successful bidder shall be required to furnish State agencies and political subdivisions with price lists, (printed) descriptive literature and technical data service information for items awarded. Bidders are urged to reserve approximately 1,500 price lists for this purpose. * * * PRICE DISCOUNT SCHEDULE Bidders of brand name microcomputer systems and optional components, shall complete the price discount schedule in the format provided. The following information will be included: a copy of the Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the "date mailed" as shown on the ITB and the Bid opening date), number and date, bid discount for microcomputer configured systems, bid discount for optional components not purchased as part of a microcomputer system. Separate bid discounts for government and education are requested, however education bid discounts must be greater than government bid discounts, for a separate award to be made. (See EVALUATION and AWARD paragraph, page 16, for evaluation and award criteria.) PRICING The discount offered and awarded shall remain firm for any product placed on the contract resulting from this bid, or for products added to the contract at a later date through revision to the contract. * * * MANUFACTURER'S SUGGESTED RETAIL PRICE CHANGES When the list prices for products on the contract are reduced, the contractor shall submit new prices which reflect the same percentage off list price as was originally bid. When the contractor cannot continue to offer products at the contracted discount due to a general change in the manufacturer's pricing policy or other valid reasons, the State shall determine whether to allow the product line to remain on contract. The contractor shall provide to the Division of Purchasing, documentation to justify why the product line can no longer be offered at the contracted discount. The determination to allow the product line to remain on contract and under what conditions shall be at the discretion of the Division of Purchasing in the best interest of the State. In no instance may the new pricing result in an increase in net prices. Reductions in price shall be effective upon receipt of written notification to the Division of Purchasing and shall remain in effect for the balance of the contract term, unless further reduced by the contractor. In the event that the contractor announces a price reduction on any equipment listed on the contract prior to the purchaser's acceptance of said equipment, such price reduction shall be made available to the purchaser. * * * FORMAT FOR SUBMISSION OF BID PRICE SHEETS Referenced Price Lists, Ordering Instructions, Dealer Lists and Locations or Service Locations, required in this bid, must be submitted in hard copy with the bid package. Also provide with the bid package or within ten (10) working days after notification the identical information, in WordPerfect 5.1 format, portrait orientation with minimum 0.5 inch margins, Courier 10 pitch font, in hard copy and on 3.5 or 5.25 diskette media. Failure to comply will result in your contract being withheld from distribution. EVALUATION AND AWARD Bids will be evaluated as follows: Government and Education bids will be evaluated and awarded separately. The percentage (%) discount bid for each brand name, for each category (configured microcomputer systems and optional components), will be multiplied by an applicable usage factor, (the projected percentage purchases from each category) to be stated at the time of the bid opening, which will yield a weighted discount. The weighted discounts of the two categories will be added to yield the total weighted discount on which an award will be made. Awards will be made separately for Government, and Education (if applicable), to the responsive bidder offering the greatest total weighted discount. EVALUATION FORMULA (Micro (%) discount (x) usage factor) (+) plus (option components (%) discount (x) usage factor) = total evaluation (%) discount. * * * MICROCOMPUTERS AND OPTIONAL COMPONENTS PRICE DISCOUNT SCHEDULE GOVERNMENT EDUCATION Manufacturers MICROS OPTIONS MICROS OPTIONS Brand Name Catalog Date %DISCOUNT %DISCOUNT %DISCOUNT %DISCOUNT HEWLETT PACKARD 1(A) (B) (C) -NA- (D) -NA- NCR 2(A) (B) (C) (D) ZENITH 3(A) (B) (C) (D) MSPR: Manufacturer's Suggested Retail Price from which discounts will be taken. Micros: Percentage discount for microcomputer systems. Options: Percentage discount for optional components when purchased Separately, not as a part of a microcomputer system. Responses to the ITB The price discount schedules submitted on behalf on NDP and Waldec were virtually identical except for the discounts offered. Each specified the HP catalog of October 1992 as containing the manufacturer's suggested retail price for personal computer products and the HP catalog of November 1992 for peripheral products from which percentage discounts would be taken for microcomputer systems and optional components. As to discounts, NDP bid 32.02% for microcomputer systems and 38.05% for optional components, and Waldec bid 25.90% for microcomputer systems and 39.92% for optional components. Following the bid opening, at which the bids were announced and tabulated, the bid documents were transported to the office of a Department purchasing specialist charged with the responsibility of evaluating the bids. Applying the evaluation criteria established by the ITB, NDP was calculated to be the apparent low bidder; however, because NDP's bid failed to include the MSRP lists, when examined by the specialist, it was declared non-responsive. The bid of Waldec, which scored second under the evaluation criteria, was found to include copies of the MSRP list referenced in its price discount schedule and was declared the low responsive bidder. The Manufacturer's Suggested Retail Price (MSRP) List With regard to Hewlett Packard, and ostensibly all manufacturers, there is only one manufacturer's suggested retail price (MSRP) at any given time. That price may be established by reference to the MSRP list published by the company, as well as any addenda that may be pertinent. Hewlett Packard publishes separate MSRP lists for personal computer products and peripheral products at 90 day intervals and updates those lists on a monthly basis, as needed, through addenda, its "In Touch" publication, and "The Hewlett-Packard News Network." Each method used by HP to update its quarterly MSRP list is expected to provide identical information, and each is considered an addendum to its quarterly MSRP list from which the current MSRP can be derived. 2/ Here, the proof demonstrates that the "Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the `date mailed' as shown on the ITB and the Bid opening date)" which the ITB directed should be included with the bid, was the HP quarterly MSRP list of October 1992 for personal computer products, the HP quarterly MSRP list of November 1992 for peripheral products, and an addendum effective December 1, 1992 (whether by addenda, "In Touch" or "The Hewlett-Packard News Network"), for personal computer products. NDP contends that included with its bid were copies of the October 1992 and November 1992 MSRP lists for personal computer products and peripheral products, respectively, and a copy of the December 1, 1992, "In Touch" newsletter. The parties have stipulated that if NDP's bid included such documents it was responsive to the ITB. Compared with NDP's averred response, Waldec's bid included a copy of the October 1992 MSRP list for personal computer products and the November 1992 MSRP list for peripheral products, but no addenda to reflect price changes affecting personal computer products through the bid opening date. Notwithstanding, the Department has found Waldec's bid responsive. Such finding, discussed more fully infra, mitigates against the Department's contention that any failure to include MSRP lists with the bid constitutes a material deviation. The missing price lists To support its position that its bid included the HP MSRP lists, NDP offered, inter alia, the testimony of Carol Hutchins, Kyle Peterson, and Jacqueline Smith. Ms. Hutchins is the government sales manager for NDP at its offices in Clearwater, Florida, and prepared NDP's bid. Mr. Peterson is the general manager of the Tallahassee branch office of NDP, and was responsible for delivering NDP's bid to the Department. Ms. Smith is employed in the Tallahassee branch office, and is engaged in government sales on behalf of NDP. The bid prepared on behalf of NDP by Ms. Hutchins ostensibly included a copy of HP's MSRP list of October 1992 for personal computer products, HP's MSRP list of November 1992 for peripheral products, and HP's "In Touch" newsletter for December 1992. This bid package, along with two blank copies of the price discount schedule (page 23 of the ITB) in case NDP decided to alter the discount it initially established in its bid before submittal, was shipped via Federal Express to Mr. Peterson at NDP's Tallahassee branch office. According to Mr. Peterson, the package was delivered to his office at or about 11:00 a.m., December 16, 1992, and placed on his desk. When he opened it, Mr. Peterson observed NDP's response to the ITB, as well as the MSRP lists heretofore discussed. Notwithstanding that the role of the Tallahassee branch was "very minor . . ., to act as courier for the bid and ensure that it was delivered in a timely manner," the bid package was disassembled at least twice within that office. First, Ms. Smith thought it would be a good idea to make a copy of the bid for their files, so she made a copy of NDP's bid, but not the MSRP lists. According to Ms. Smith, after making the copy she replaced the original bid on top of the MSRP lists on Mr. Peterson's desk. Second, NDP elected to change the discount rate it initially proposed so a new price discount schedule was typed by Mr. Peterson's staff, and he exchanged the new page for the old page in the bid document. Thereafter, according to Mr. Peterson, he inserted the bid package, including the price lists, into an envelope which he sealed and delivered to the Department shortly before the bid opening, to-wit: at 1:49 p.m., December 16, 1992. Both Mr. Peterson and Ms. Smith attended the bid opening and, at hearing, related what they recalled of the scene and procedures utilized. Regarding significant matters, their recitation of what occurred bore little resemblance to what actually transpired. For example, Mr. Peterson described the tenor of what occurred during the bid opening as one of confusion, when the more compelling proof demonstrates the contrary. Indeed, the two purchasing agents and the purchasing specialist who conducted the opening did so with precision and in accord with Department policy. Mr. Peterson, likewise, described the table upon which the bids were opened as being upon a raised platform when in fact it was not, and recalled that the purchasing agent who opened the bids separated the envelopes from the bid packages before passing the bid package to the purchasing specialist to announce the bid, which she did not. Finally, notwithstanding the limited nature of their involvement with the bid, as well as the fact that each was taking notes as each bid was announced, Mr. Peterson and Ms. Smith aver that they saw the price lists attached to NDP's bid when it was announced. As for Mr. Peterson, he averred that he noticed "stapled" booklets included with NDP's bid which could only have been the price lists. Ms. Smith recalls that the thickness of the bid package she observed at opening compels the conclusion that the price lists were attached. Given the circumstances, the testimony of Mr. Peterson and Ms. Smith regarding their observations at bid opening, and having specific recall regarding the presence of "stapled" booklets or the thickness of the package, is less than compelling. Regarding the bid opening procedure, the proof demonstrates that it was carefully and precisely run, consistent with Department policy. The first purchasing agent was seated on the left of the bid opening table, the purchasing specialist was seated in the center, and the second purchasing agent was seated to the right. The first agent had the sealed bids stacked alphabetically in front of her, opened one at a time, removed the contents from the envelope, placed the contents on top of the envelope and secured them with a rubber band, and passed the bid package to the specialist. The specialist opened the bid to the price discount schedule (page 23 of the ITB), read off the discount bid, and laid the bid package upside down to his right. Continuing through the responses, each bid or no bid was announced and placed on the appropriate stack to his right. The second agent recorded the bids on the bid tabulation sheet, as announced, and never touched the bid packages. Following the bid opening, the first agent retrieved the bids and, as to each bid, cut the date stamp off the envelope and stapled it to the first page of the bid form and, if the bid contained a form requesting notice of the bid result and a check for such service, removed the form and check and stapled them together for delivery to another employee to process. 3/ The bids, each separately secured by a rubber band, were then stacked and secured by another rubber band and taken to the office of another purchasing specialist for evaluation. When the agent took the bids from the bid room, no papers were left behind. The specialist who evaluated the bids found them in his office, as bound by the agent, between 3:15 p.m. and 3:30 p.m. that day, or approximately 45 minutes to one hour after the bid opening concluded. The specialist went through each bid separately to ascertain its responsiveness to the conditions of the ITB, and calculated the apparent low bidder by application of the evaluation formula contained in the ITB. Upon evaluation of NDP's bid, the specialist discovered that it did not include the price lists required by the ITB, and concluded that NDP's bid was, therefore, non-responsive. Considering the proof, it is most unlikely that the price lists that were to be included in NDP's bid were misplaced by the Department. Rather, it is more likely that such price lists were not included with NDP's bid, when it was delivered to the Department, because of an oversight at NDP's Tallahassee branch office. While the proof fails to support the conclusion that NDP's bid included the HP price lists when delivered to the Department, such failure is not dispositive of NDP's protest where, as here, such failing was a minor irregularity. Minor irregularity Rule 60A-1.001(31), Florida Administrative Code, defines the term "minor irregularity" as" A variation from the invitation to bid . . . terms and conditions 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. Here, the Department rejected NDP's bid based on a uniform policy which it has established that the omission of a price list from any bid can never constitute a minor irregularity and always renders a bid non-responsive. The justification for such policy was stated as follows: . . . The purpose of requiring price lists is to insure that the vendor is bidding on the material that he has offered, that he has been certified by the manufacturer to act in their behalf. It also gives [the Department] the information by which [the Department] can provide price lists to agencies so the using agencies know the price lists from which they expect the discounts. Tr. 247. . . . A bidder can obtain a competitive advantage over competitors by failing to submit price lists with its bid because the bidder would then have the ability to disqualify its own bid in the event their quotation was out of line with the other bidders. Tr. 246. Also, by failing to submit a price list, a vendor may attempt to rely on price lists reflecting higher prices for the ultimate contract with the state. Tr. 268. [Department proposed findings of fact 21 and 22.] While the Department's concerns or rationale may be legitimate, depending on the facts of the case, they do not rationally support a uniform policy that a failure to include price lists with any bid can never be a minor irregularity. Stated differently, to explicate application of its policy in this case requires that the Department demonstrate that the concerns underlying its policy are existent in the instant bid. Here, at least with regard to NDP's bid, the proof fails to support the Department's policy. Of import to the resolution of the issue in this case are the provisions of the ITB regarding the price discount schedule, as follows: Bidders of brand name microcomputer systems and optional components, shall complete the price discount schedule in the format provided. The following information will be included: a copy of the Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the "date mailed" as shown on the ITB and the Bid opening date), number and date, bid discount for microcomputer configured systems, bid discount for optional components not purchased as part of a microcomputer system. NDP's bid, consistent with Waldec's bid, specified the Hewlett Packard price lists of October 1992 and November 1992 as being the "current Price list" upon which it based its bid. Such lists are readily identifiable, and permitting NDP to provide such price lists after bid opening would not affect the price of its bid, give it any advantage or benefit not enjoyed by other bidders or adversely affect the interests of the agency. Also of import to the resolution of the issue in this case is the proof which demonstrates that during the course of its evaluation the Department did not know what the current price lists were, relied upon the bidders to comply with the requirement to attach current price lists, accepted Waldec's bid as responsive although it failed to include the December 1992 addendum, and proposed to rely on the manufacturer to resolve any disputes regarding discrepancies between lists. Such proof demonstrates that the price lists were a mere technicality, and that the provisions of the ITB, which specified the basis on which the bids were predicated as the manufacturers "current" price list, defined as "the latest price list in effect between the `date mailed' as shown on the ITB and the Bid opening date," were sufficiently precise to allow the parties to confidently contract. Here, none of the announced concerns of the Department, as set forth in paragraph 24 supra, have any applicability to NDP's bid. NDP's response to the price discount schedule was sufficiently precise to identify the price lists on which it was bidding (the material being offered), it submitted the required manufacturer's certificate demonstrating NDP was authorized to represent Hewlett-Packard (page 21 of the ITB), the provisions of the ITB required the successful bidder to furnish the state agencies and political subdivisions with price lists (page 10 of the ITB) after award, and NDP's identification of the price lists in the price discount schedule would preclude it from altering its bid after bid opening. In sum, NDP's failure to include the price lists with its bid was a minor irregularity that did not affect the price of the bid, give NDP an advantage or benefit not enjoyed by other bidders, or adversely affect the interests of the agency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding NDP's bid responsive, and awarding the subject bid to NDP as the lowest responsive bidder. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March 1993.
