91-000990BID Mims Gardens, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Monday, March 25, 1991.

Summary: Bid properly rejected where unit pricing on bid form not completed in accor- dance with instructions, preventing comparison with competing bids.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIMS GARDENS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-0990BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer from the Division of Administrative Hearings, on February 28,

1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Nancy Katherine Neidich, Esquire

2810 Oakland Park Boulevard, Suite 102

Fort Lauderdale, Florida 33310

For Respondent: Mark Hankins, Assistant General Counsel

Susan P. Stephens, Assistant General

Counsel

Florida Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Petitioner as the lowest responsive bidder should be

awarded Contract No. E4504, State Project Job No. 99004-3509.

PRELIMINARY STATEMENT

Petitioner, Mims Gardens, Inc., filed a formal protest challenging

Respondent's Notice of Intent to Award Contract No. E4504, State Project Job No.

99004-3509 to Vila and Son Landscaping Corp., alleging that Respondent

incorrectly declared Petitioner's bid to be irregular. This cause was

thereafter transferred to the Division of Administrative Hearings for the

conduct of a formal proceeding.

Petitioner presented the testimony of Kathleen L. Mims and Stephen H. Mims.

Respondent presented the testimony of Teresa L. Martin and Kathleen L. Mims.

Additionally, Joint Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A ruling on

each proposed finding of fact can be found in the Appendix to this Recommended

Order.

FINDINGS OF FACT

1. Respondent, Department of Transportation, advertised its Invitation to

Bid on Contract No. E4504, State Project Job No. 99004-3509 for work consisting

of providing trees and shrubs with on-site placement for State Road 858 in

Broward County, Florida. The Invitation to Bid advised that a mandatory pre-bid

conference would be conducted on January 10, 1991.

2. Although it was the responsibility of Kathleen L. Mims to submit bids

on behalf of Mims Gardens, Inc., and to attend pre-bid conferences, Stephen H.

Mims attended the mandatory pre-bid conference for this bid instead. At the

pre-bid conference, after all attendees were provided with bid packages, the

meeting was called to order by Teresa L. Martin, Respondent's Assistant District

Contracts Administrator. Martin and Carl Higgins, the Project Engineer,

explained unit pricing and how averaged prices were to be calculated. Higgins

explained that although some of the pay items consisted of aggregate quantities

of different plants, only a single average price was to be calculated for the

total number of plants required for that category and only one figure was to be

placed in the box for each pay item even if that pay item consisted of different

plants with different prices. When Martin and Higgins concluded their remarks,

they gave the attendees the opportunity to ask questions regarding the bid and

the proper completion of the bid form.

3. Stephen Mims heard the explanation for calculating the average price

for the total number of plants in a single pay item category. He did not pay

much attention to the explanation, however, because he was concentrating on

counting the number of pages in his bid package. Although he did take some

notes on some of the information given during the mandatory pre-bid conference,

he made no notes regarding calculating the prices to be submitted on the bid

form. He assumed that whatever information was needed would be included in the

bid package itself.

4. After the mandatory pre-bid. conference, he gave the bid package to

Kathleen L. Mims to complete and submit to Respondent. He did not show her the

notes that he had taken and did not give her the information given to him at the

mandatory pre-bid conference regarding the fact that only one number was to be

provided for each pay item even if that pay item consisted of plants with

different prices or regarding how to calculate a single average price for the

total number of plants in each pay item category.

5. Kathleen L. Mims completed and submitted a bid on behalf of Mims

Gardens, Inc. When she completed the bid price proposal sheet, she listed

individual unit prices for each of the plants in the pay item categories that

contained more than one plant. She did not calculate a single average price as

required by Respondent in order that all bids could be evaluated against each

other.

6. Although Kathleen Mims had never previously submitted a bid to the

Department of Transportation, and although the bid price proposal sheet was

different than those she routinely completed, she did not contact Teresa Martin

or Carl Higgins to inquire as to the proper method for completing the bid price

proposal sheet. Although the Bid Blank itself contained no directions regarding

the specific procedure to be used in filling out the bid price proposal sheet,

she did not ask her husband Stephen Mims what information had been given to him

during the mandatory pre-bid conference. Additionally, although the bid package

advised potential bidders as to requirements for filing a protest regarding the

bid solicitation itself, Mims Gardens did not protest the bid solicitation.

7. Stephen Mims did not assist in the preparation of the bid proposal of

Mims Gardens. When the bid proposal for Mims Gardens was completed, Kathleen

Mims did not show it to Stephen Mims to ascertain if it complied with the

instructions given to him at the mandatory pre-bid conference. She simply filed

her bid with the Department of Transportation on January 18, 1991, the deadline

for submittal of bids for the project in question.

8. Thirteen sealed bids were received and opened by the Department of

Transportation. Mims Gardens submitted the lowest bid based on the

contractor's total bid price from the bid form. Vila and Son Landscaping

submitted the second lowest bid.

9. On January 25, 1991, the Department posted its Notice of Intent to

award the project to Vila and Son Landscaping. That notice advised that the

Department had determined the bid of Mims Gardens to be an irregular bid

proposal and that the bid of Mims Gardens was therefore rejected. One other bid

also contained multiple quantities and prices in some of the pay item

categories, was also declared irregular, and was also rejected.

10. Kathleen Mims admitted at the final hearing in this cause that if she

had attended the mandatory pre-bid conference, she would have been able to fill

out the bid proposal sheet correctly.

11. Mims filed its notice of intent to protest on January 25, 1991, and

its formal protest filed on February 1, 1991, was timely.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes (1990).

13. The burden of proof in this bid protest proceeding is on Petitioner,

and Petitioner has failed to carry its burden. Petitioner argues that

Respondent's decision to declare Petitioner's bid to be irregular and to award

the bid to Vila and Son Landscaping as the lowest responsive bidder is arbitrary

due to both the manner in which the Department required the unit pricing to be

calculated and by the failure of the Department to include those instructions

within the bid package itself. Both of those arguments are challenges to the

bid solicitation itself, and Petitioner has waived its right to challenge the

bid solicitation by failing to file a notice of protest within 72 hours of the

receipt of the bid documents, followed by a formal written protest. Section

120.53(5)(b), Florida Statutes. Additionally, page 1 of the bid package

specifically advised that any person wishing to protest the bid solicitation

must do so within 72 hours of the receipt of the bid documents, as provided by

the Department's Rule 14-25.024(1), Florida Administrative Code.

14. Attendance at the pre-bid conference for this project was mandatory.

At that pre-bid conference, all bidders were advised as to how to calculate the

unit pricing and how to complete the bid proposal sheet. They were all given

the same information. The Department specifically advised the bidders how the

bids would be evaluated and gave the bidders an opportunity to ask questions.

The person who attended the mandatory pre-bid conference on behalf of Mims

Gardens received the information necessary to properly complete the bid proposal

but did not give that information to the person who completed the bid proposal

form. The person who completed the bid proposal form did not ask the person who

attended the conference what information had been given there and admits that if

she had personally attended the conference, she would have completed the form

properly.

15. In short, Petitioner simply failed to follow the directions given to

it for completing the form. There is no showing that the Department acted

arbitrarily, capriciously, dishonestly, or illegally in rejecting Petitioner's

bid which had not been calculated and completed in accordance with the

Department's instructions. Although Petitioner's bid was the lowest, it was not

a responsive bid. Since it was not a responsive bid, it was properly rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered:

1. Declaring Petitioner's bid to be non-responsive;

2. Rejecting Petitioner's bid; and

3. Awarding Contract No. E4504, State Project Job No. 99004-3509 to Vila

and Son Landscaping Corp.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of

March, 1991.

___________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-0990BID

1. Petitioner's proposed findings of fact numbered 1 except for the second

and third sentences, 3-7, and 10-14 have been adopted either verbatim or in

substance in this Recommended Order.

2. The second and third sentences of Petitioner's proposed finding of fact

numbered 1 have been rejected as being irrelevant to the issues under

consideration in this cause.

3. Petitioner's proposed findings of fact numbered 2, 8, and 9 have been

rejected as being unnecessary for determination of the issues herein.

4. Petitioner's proposed finding of fact numbered 15 has been rejected as

not being supported by the weight of the evidence in this cause.

5. Respondent's proposed findings of fact numbered 1, 2, the first

sentence of 3, 4, and 6-11 have been adopted either verbatim or in substance in

this Recommended Order.

6. Respondent's proposed finding of fact numbered 5 and the second sentence

of Petitioner's proposed finding of fact numbered 3 have been rejected as being

irrelevant to the issues under consideration in this cause.

COPIES FURNISHED:

Mark Hankins, Assistant General Counsel

Susan P. Stephens, Assistant General Counsel

Florida Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0450

Nancy Katherine Neidich, Esquire

2810 East Oakland Park Boulevard

Suite 102

Post Office Box 5121

Fort Lauderdale, Florida 33310

Ben G. Watts, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

ATTN.: Eleanor F. Turner, M.S. 58