09-006060BID Rhc And Associates, Inc. vs. Hillsborough County School Board Status: Closed Recommended Order on Wednesday, January 20, 2010.

Summary: Petitioner failed to file the appropriate bond; thus, the Protest should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHC AND ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) Case No. 09-6060BID

)

HILLSBOROUGH COUNTY SCHOOL )

BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause came before the undersigned on Respondent's

Motion to Dismiss Formal Protest for the 2010 HVAC Projects

Engineers Final Ranking Decision Dated October 7, 2009 Pursuant

to [Florida Statutes] 120.57(3) ("Motion to Dismiss"), filed

November 18, 2009; and Petitioner's response in opposition to

Respondent's motion to dismiss ("Response in Opposition to

Motion to Dismiss"), filed November 30, 2009. A hearing on the

Motion to Dismiss was held in Tampa, Florida, on December 3,

2009. 1

APPEARANCES

For Petitioner: Joseph W. J. Robinson, President/CEO

RHC and Associates, Inc.

Post Office Box 4505

Tampa, Florida 33677

Wilhelmina B. Curtis, Esquire

Post Office Box 756

Riverview, Florida 33569

For Respondent: Thomas M. Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 33601

PRELIMINARY MATTERS

Respondent electronically posted its final ranking of

applicants seeking to provide project engineering services for

six 2010 School Board heating ventilation and air-conditioning

("HVAC") projects. Petitioner timely filed a Notice of Intent

to File Protest, and on October 22, 2009, filed a Formal Written

Protest for the 2010 HVAC Projects Engineers Final Ranking

Decision Dated October 7, 2009 Pursuant to [Florida Statutes]

120.57 ("Protest").

Petitioner did not file a protest bond, and in its Protest,

asserts that it was relieved of that obligation because

Respondent's electronic posting of the final ranking did not

include the notice prescribed in Subsection 120.57(3)(a),

Florida Statutes. 2 That provision states, "[f]ailure to file a

protest within the time prescribed in section 120.57(3), Florida

Statutes, or failure to post the bond or other security required

by law within the time allowed for filing a bond shall

constitute a waiver of proceedings under chapter 120."

The parties were unable to resolve the Protest by informal

means. The case was filed with the Division of Administrative

Hearings on November 5, 2009.

On November 6, 2009, Petitioner supplemented its Protest by

filing Petitioner's Notice of Filing Letters to Respondent

Transmitting Cashier's Check (Bond) on November 3, 2009, for

Case No. 09-6060BID[;] and July 17, 2008[,] for Previous Case

No. 09-3584BID[,] Including the Respondent's DOAH Transmittal

Letter Dated July 25, 2008 ("Notice of Filing"). Attached to

the Notice of Filing were copies of correspondence between

Petitioner and Respondent regarding posting of the bond,

including correspondence showing that on November 3, 2009,

Petitioner submitted to Respondent a cashier's check in the

amount of $3,143.70 "as required by [Florida Statutes]

287.042(2)(c) based on [one percent] of the largest proposed

contract award amount of $314,370.00 for the Protest."

Pursuant to notice issued November 17, 2009, the Protest

was scheduled for final hearing on December 3, 2009.

Respondent filed its Motion to Dismiss on November 18,

2009, and Petitioner filed its Response in Opposition to Motion

to Dismiss on November 30, 2009. In the Motion to Dismiss,

Respondent urges several grounds for dismissal, which included

that Petitioner had waived its right to protest the ranking

because it had failed to file the bond or other security

required by law. In the Response in Opposition to Motion to

Dismiss, Petitioner contends that: (1) The subject procurement

is governed by Section 287.055, Florida Statutes 3 ; (2) Based on

the foregoing assertion, Respondent is a "local public agency or

public body corporate," subject to procurement requirements in

Part I, Chapter 287, Florida Statutes, and Florida

Administrative Code Rule 28-110.005; and (3) In the past,

Respondent has accepted bonds pursuant to the requirements in

Subsection 287.042(2)(c), Florida Statutes.

FINDINGS OF FACT

The findings below are based on the undisputed facts set

forth in Petitioner's Protest and supplements thereto,

Respondent's Motion to Dismiss, Petitioner's Response in

Opposition to Motion to Dismiss, and representations by the

parties during the motion hearing.

1. On October 7, 2009, Respondent electronically posted

its final ranking of firms which had submitted proposals to

provide mechanical engineering services for six HVAC projects

for Respondent in 2010.

2. Respondent's electronic posting of the final ranking of

firms included the following language: "Failure to file a

protest within the time prescribed in Section 120.57(3), shall

constitute a waiver of proceeding under Chapter 120, Florida

Statutes."

3. On October 12, 2009, Petitioner filed a Notice of

Intent to Protest the final rankings. On October 22, 2009,

Petitioner filed its Protest.

4. Although Petitioner's Protest was timely filed,

Petitioner initially did not file a bond or other security. The

Protest alleges that Petitioner was not required to file a bond,

because Respondent did not include in its final ranking notice

that a failure to post a bond would constitute a waiver of

proceedings under Subsection 120.57(3)(a), Florida Statutes.

Additionally, the Protest alleges that Respondent: (1) failed

to provide Petitioner with notice of the estimated contract

amounts within 72 hours, exclusive of Saturdays and Sundays and

state holidays, of the filing of a notice of protest as required

by Subsection 287.042(2)(c), Florida Statutes; and (2) because

Respondent had not provided that notice, Petitioner was unable

to calculate the amount of the bond required and was, therefore,

relieved of the obligation to file a bond.

5. On October 30, 2009, Respondent, through counsel, wrote

to Petitioner. In this correspondence, Respondent informed

Petitioner that Section 287.042, Florida Statutes, did not apply

to Respondent because it was not an "agency" for purposes of

that law. Respondent further informed Petitioner that Section

255.0516, Florida Statutes, allowed Respondent to require a bond

in the amount of two percent of the lowest accepted bid or

$25,000. Respondent also notified Petitioner that because it

was protesting all six project awards, all awards must be

included in the calculation of the bond amount required.

Finally, Petitioner was allowed ten days within which to post a

bond.

6. On November 3, 2009, Petitioner submitted to Respondent

a cashier's check in the amount of $3,143.70 and noted that the

check was intended to serve as security for the Protest "as

required by F.S. 287.042(2)(c)." In the letter which

accompanied the check, Petitioner also noted that: (1) the

amount of the check was determined by calculating one percent of

the largest proposed contract award amount of $314,370.00; and

(2) Petitioner was providing that amount "under duress," because

Respondent had "just published the contract award amounts."

7. The relief requested by Petitioner in the Protest is

that: (1) it be awarded one of the six HVAC projects comprising

the final ranking; and/or (2) alternatively, all six awards be

rescinded and "start the entire process over."

8. The final ranking which Petitioner protests included

six separate projects, each of which had a separate construction

budget. Those projects and their respective construction

budgets are as follows: Northwest--$1,144,000; Tampa

Palms--$2,649,081; Yates--$2,770,828; Ferrell--$2,550,758;

Stewart--$2,805,437; and Erwin--$4,191,603.

9. The proposed fees for each project were as follows:

$97,240 (Northwest); $211,926 (Tampa Palms); $221,666 (Yates);

$204,061 (Ferrell); $224,435 (Stewart); and $314,370 (Erwin).

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. See § 120.57, Fla. Stat.

11. The subject Protest is governed by Subsection

120.57(3), Florida Statutes, which provides that an agency shall

provide notice of a decision or intended decision concerning a

solicitation or contract award by electronic notice. With

regard to the notice, that provision states:

The notice shall contain the following

statement:

"Failure to file a protest within the time

prescribed in section 120.57(3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bond shall

constitute a waiver of proceedings under

chapter 120, Florida Statutes."

12. It is undisputed that Respondent's notice of its

intended decision of the final ranking did not include language

required by Subsection 120.57(3), Florida Statutes, concerning

the requirement to post a bond. Pursuant to that provision, if

a party wishing to protest fails to timely file a protest or

fails to post the bond required by law, that party waives its

right to a proceeding under Chapter 120, Florida Statutes. The

language in Subsection 120.57(3), Florida Statutes, is

mandatory, not discretionary.

13. About a week after Petitioner filed its Protest,

Respondent cured its omission of the language regarding the bond

requirement and notified Petitioner that a bond was required and

in what amount. Respondent's correspondence cited Section

255.0516, Florida Statutes, as the bond amount that it was

requiring and as its authority for doing so.

14. Subsection 255.0516(1), Florida Statutes, provides in

relevant part:

With respect to state contracts and bids

pursuant to competitive bidding, whether

under chapter 1013, relating to educational

facilities, or under this chapter, related

to public buildings, if a school board . . .

uses procedures pursuant to chapter 120 for

bid protests, the board may require the

protestor to:

(1) Twenty-five thousand dollars or

2 percent of the lowest accepted bid,

whichever is greater, for projects valued

over $500,000;

15. Petitioner failed to post a bond in the amount

required by Section 255.0516, Florida Statutes.

16. In the Protest, Petitioner cites Subsection

287.042(2)(c), Florida Statutes, as governing the bond

requirement for the bid that is the subject of this proceeding

That section provides in pertinent part:

Any person who files an action protesting a

decision or intended decision pertaining to

contracts administered by . . . an agency

pursuant to s. 120.57(3)(b) shall post with

the . . . agency at the time of filing the

formal written protest a bond payable to the

. . . agency in amount equal to 1 percent of

the estimated contract amount.

17. Section 287.012, Florida Statutes, provides

definitions of various terms "as used in this part." Among the

terms for which definitions are provided is the term "agency."

Subsection 287.012(1), Florida Statutes, defines that term as

follows:

(1) Agency" means any of the various state

officers, departments, boards, commissions,

divisions, bureaus and councils and any

other unit of organization, however

designated, of the executive branch of state

government.

18. Respondent is not a unit of the executive branch of

state government, and, thus, the provisions of Section 287.042,

Florida Statutes, do not apply to it. Dealer Tag Agency v.

First Hillsborough County Tag Agency, Inc. , 14 So. 3d 1238 (Fla.

2d DCA 2009); and Dunbar Electric Supply, Inc. v. School Board

of Dade County , 690 So. 2d 1339 (Fla. 1st DCA 1997).

19. If it is assumed that Subsection 287.042(2)(c),

Florida Statutes, applied to Petitioner's Protest, by the terms

of that provision, Petitioner would be required to post a bond

in an amount equal to one percent of the contract price. In

this case, Petitioner protests the rankings of applicants for

professional services for six projects. The total combined

contract amount of those projects is $1,273.698. Therefore, if

Subsection 287.042(2)(c), Florida Statutes, applied to the

subject Protest, Petitioner would be required to post a bond of

$12,736.98.

20. Petitioner tendered a check in the amount of

$3,143.70, an amount representing one percent of the contract

price for one project, the Erwin project with a cost of

$314,370. The amount tendered by Petitioner is insufficient for

the Protest under Subsection 287.042(2)(c), Florida Statutes,

the provision which Petitioner contends applies.

21. Respondent's omission of the bond requirement language

in Subsection 120.57(3), Florida Statutes, was cured by the

notice that it provided. The notice gave Petitioner ten days

from the date of that notice to post the bond.

22. Petitioner did not post a bond that complied with the

terms of Section 255.0516, Florida Statutes, and does not claim

to have done so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Hillsborough County School

Board, issue a final order dismissing the Protest filed by

Petitioner, RHC and Associates, Inc.

DONE AND ENTERED this 20th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of January, 2010.

ENDNOTES

1/ Pursuant to Notice, the final hearing was scheduled on this

date. However, the pending Motion to Dismiss and response

thereto were argued when the hearing convened. At the close of

argument, the undersigned indicated the Motion to Dismiss would

be granted. The parties were given the opportunity to file

proposed orders. The undersigned advised the parties that any

additional legal authority would be considered prior to issuing

the ruling on the Motion to Dismiss.

2/ All statutory references are to Florida Statutes (2009),

unless otherwise noted.

3/ The Response in Opposition to Motion to Dismiss states that

the subject procurement was for professional engineering

services and not a construction bid pursuant to Chapter 255 or

Chapter 1013, Florida Statutes.

COPIES FURNISHED :

MaryEllen Elia, Superintendent

Hillsborough County School Board

901 East Kennedy Boulevard

Tampa, Florida 33602-3408

Dr. Eric Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Thomas M. Gonzalez, Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 33601

Joseph W. J. Robinson, President

RHC and Associates, Inc.

Post Office Box 4505

Tampa, Florida 33677

Wilhelmina B. Curtis, Esquire

Post Office Box 756

Riverview, Florida 33569

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.