93-002822BID J. D. Pirrotta Company Of Orlando vs. Palm Beach County School Board Status: Closed Recommended Order on Wednesday, July 7, 1993.

Summary: Where ambiguity in bid documents did not give low bidder unfair advantage or taint outcome of bidding process rejection of all bids unwarranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

J.D. PIRROTTA COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2822BID

)

PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent, )

and )

)

MILNE & NICHOLLS, INC., )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on June 11,

1993, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated

Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John W. Foster, Sr., Esquire

Baker & Hostetler

2300 Sun Bank Center

200 South Orange Avenue

Post Office Box 112

Orlando, Florida 32802

For Respondent: Robert A. Rosillo, Esquire

School Board of Palm Beach County

3318 Forest Hill Boulevard, Suite C302

West Palm Beach, Florida 33406-5813

For Intervenor: Thomas F. Munroe, II, Esquire

Foley & Lardner

777 South Flagler Drive

Suite 200 East Tower, Philips Point

West Palm Beach, Florida 33401-6163

STATEMENT OF THE ISSUE

Whether the Palm Beach County School Board (hereinafter referred to as the

"School Board") should sustain Petitioner's challenge to the preliminary

determination made with respect to School Board Project No. 349661 to reject all

bids submitted and to readvertise.

PRELIMINARY STATEMENT

By letter dated May 19, 1993, Petitioner filed a formal written protest

contesting the preliminary determination made with respect to School Board

Project No. 349661 to reject all bids submitted and to readvertise. In its

letter, Petitioner claimed that it "was the lowest, responsive and responsible

bidder and must be awarded the subject contract." On May 24, 1993, the matter

was referred to the Division of Administrative Hearings for the assignment of a

hearing officer to conduct a formal hearing.

On June 1, 1993, Milne & Nicholls, Inc., (hereinafter referred to as

"Intervenor") filed a petition for leave to intervene in the matter. By order

issued by the Hearing Officer on June 4, 1993, the petition was granted.

At the final hearing held in this case, a total of eight witnesses

testified: Albert Paglia, a contract administrator with the School Board;

Joseph Pirrotta, Petitioner's chief operating officer; Francis Mojo, Jr., the

president of Intervenor; Ron Wengatz, a plan review specialist with the School

Board; Brian Idle, the project architect for the project which is the subject

of the instant bid protest; Lawrence Zabik, the School Board's assistant

superintendent for support services; Michael Reich, a licensed Palm Beach

County general contractor; and David Floyd, a certified professional estimator

and construction industry consultant. In addition to the testimony of these

eight witnesses, a total of 11 exhibits (Joint Exhibit 1, Petitioner's Exhibits

2-7 and Respondent's Exhibits 1-4) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on June, 11, 1993,

the Hearing Officer announced on the record that post-hearing submittals had to

be filed no later than ten days following the Hearing Officer's receipt of the

transcript of the hearing. The Hearing Officer received the hearing transcript

on June 18, 1993. Petitioner, Intervenor, and Respondent filed separate post-

hearing submittals on June 23, 1993, June 25, 1993, and June 28, 1993,

respectively.

The parties' post-hearing submittals contain what are labelled as proposed

"findings of fact." These proposed "findings of fact" have been carefully

considered and are specifically addressed in the Appendix to this Recommended

Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the

following Findings of Fact are made:

1. In March of 1993, the School Board issued an Advertisement for Bid

(hereinafter referred to as the "Advertisement") through which it solicited the

submission of bids on a construction project (School Board Project No. 349661,

which is hereinafter referred to as the "Project") involving HVAC replacement,

reroofing and other renovation work at Jupiter High School's Building No. 2.

The School Board indicated in the Advertisement, among other things, that it

"reserv[ed] the right to waive informalities in the Bids, or to reject all

Bids."

2. The Advertisement, along with the other bid documents issued in

conjunction with the Advertisement, including, but not limited to, the

Instructions to Bidders (hereinafter referred to as the "Instructions") and the

Proposal Form, were compiled in a Project Manual that was made available for

public inspection.

3. Section 00100 of the Project Manual contained the Instructions, which

provided, in pertinent part, as follows:

1. Definitions

1.02 Bidding Documents include the

Advertisement for Bid, Notice to Prospective

Bidders, Policies of the School Board,

Instructions to Bidders, Contract, General

Conditions, Supplementary General Conditions,

Special Conditions, Bid Bond, Performance and

Payment Bond, Proposal Form, and the proposed

Contract Documents including all drawings,

specifications and addenda issued prior to bid

opening.

1.03 Addenda are written or graphic

instruments issued prior to the execution of

the Contract which modify or interpret the

Bidding Documents, including Drawings and

Specifications, by additions, deletions,

clarifications or corrections. Addenda will

become part of the Contract Documents when

the Construction Contract is executed.

2. Bidding Procedures

3.01 All Bids must be prepared using the

forms contained in these specifications and

submitted in accordance with the Instructions

to Bidders.

3.02 A Bid is invalid if it has not been

deposited at the designated location prior to

the time and date for receipt of Bids

indicated in the Advertisement for Bid, or

prior to any extension thereof issued to the

Bidders.

3.03 Unless otherwise provided in any

supplement to these Instructions to Bidders,

no Bidder shall modify, withdraw or cancel his

Bid or any part thereof for sixty (60) days

after the time designated for receipt of Bids

in the "Advertisement for Bid."

3.05 Preparation and Submission of Bid

Proposal Form:

(a) Each Bidder shall use Proposal Form

contained in these specifications, indicate

his Bid prices thereon in proper spaces, for

the entire work and for the alternates, if

applicable. Any erasures or other corrections

in the proposal must be explained or noted

over the signature of the Bidder. Proposals

containing any conditions, omissions,

unexplained erasures, alternates, items not

called for or irregularities of any kind may

be rejected by the Owner.

(b) Each proposal shall specify a price

written in ink in both words and figures for

each of the separate items, as called for,

except when the Bid is called for on a lump

sum basis. Lump sum Bids shall be shown in

both words and figures; where there is a

variation between the written amount and

figures, the lower amount will be taken as

the Bid price.

3.06 Bid Modification: Bid Modification will

be accepted from Bidders if addressed to the

Owners, at the place where Bids are to be

received, and if received prior to the opening

of Bids. Modifications must be in writing and

must be signed. . . . Modifications will be

read by Owner or Architect prior to opening

formal Bids.

3.07 Withdrawal of Bids: Bids may be

withdrawn on written request received from

Bidders prior to the time fixed for opening.

. . . Negligence on the part of the Bidder in

preparing the Bid confers no right for

withdrawal of the Bid after it has been

opened.

4. Examination of Bidding Documents:

4.01 Each Bidder shall examine the Bidding

Documents carefully and, not later than eight

(8) days prior to the receipt of Bids, shall

make written request to the Architect for

interpretation or correction of any ambiguity,

inconsistency or error therein which he may

discover. Any interpretation or correction

will be issued as an Addendum by the

Architect. Only a written interpretation or

correction by Addendum shall be binding. No

Bidder shall rely upon any interpretation or

correction given by any other method. . . .

6. Rejection of Bids

6.01 The Bidder acknowledges the right of

the Owner to reject any or all Bids and to

waive any informality or irregularity in any

Bid received. In addition, the Bidder

recognizes the right of the Owner to reject a

Bid if the Bidder failed to furnish any

required Bid security, or to submit the data

required by the Bidding Documents, or if the

Bid is in any way incomplete or irregular;

to reject the Bid of a Bidder who is not in

a position to perform the Contract; and to

readvertise for other or further Bid

Proposals.

9. Award of Contract

9.01 The Contract, if awarded by the Owner,

will be awarded to the lowest bona fide

responsible Bidder; provided the Bid is

reasonable and it is in the interest of the

Owner to accept the Bid.

9.02 The method of determining the lowest

bona fide Bid from Bidders shall be the Base

Bid price plus or minus Alternate Prices

listed on the Bid Proposal Form which are

accepted by the Owner. Alternates will be

considered for acceptance by the Owner as set

forth in the Alternate section of the

Specifications, Division One-General

Requirements, Section 101030-Alternates.

4. Section 101030 of the Project Manual, which addressed the subject of

"Alternates," provided, in pertinent part, as follows:

1.3 Related Work Described Elsewhere:

A. Pertinent sections of these specifications

describe materials and methods required under

the various alternates. . . .

B. The method for stating the proposed

Contract Amount is described on the Proposal

Form, Section 00310.

2.1 Base Bid:

A. Shall include all HVAC replacement,

construction of the building roofing and all

items shown on drawings and included in these

specifications other than as specifically

listed alternates.

2.2 Alternate Number One:

Provide an Architect/Owner on-site

construction trailer of size and features

stipulated below in lieu of such being

provided by the Owner.

5. Section 00310 of the Project Manual contained the Proposal Form that

all bidders were required to use. It provided, in pertinent part, as follows:

DATE SUBMITTED: ______________________

TO: The School Board of Palm Beach County,

Florida

3326 Forest Hill Boulevard

West Palm Beach Florida 33406

PROPOSAL FOR:

JUPITER HIGH SCHOOL

BUILDING NO.2-

HVAC REPLACEMENT/REFOOF/RENOVATIONS

500 NORTH MILITARY TRAIL

JUPITER, FLORIDA 33458

PROJECT NO. 349661

Having become familiar with conditions at the

Project Site and having carefully examined the

Bidding Documents, including the

Advertisement, Instructions to Bidders, and

the Contract Documents, including but not

limited to the General Conditions,

Supplementary Conditions, Specifications,

Details, Schedules, Addenda and Drawings, the

Undersigned proposes to furnish all materials,

labor equipment and anything else required for

the entire Project in accordance with the

Documents for the following sum:

BASE BID: STATE PRICE IN WORDS AND FIGURES:

_____________________________________________

_________________________ ($_______________)

(PRICE IN WORDS) (FIGURES)

ALL ALTERNATES MUST BE BID FOR BID TO BE

RESPONSIVE. State price in words and figures.

ADDITIVE ALTERNATE NO. 1: (Owner/Architect

On-Site Construction Trailer)

_____________________________________________

_________________________ ($_______________)

(PRICE IN WORDS) (FIGURES)

* * *

If he is notified of the acceptance of this

Bid within sixty (60) days of the time set for

the opening of Bids, the Undersigned agrees to

execute a Contract for the above Work within

eight (8) Owner business days after notice

that his Bid has been accepted for the above

stated compensation minus or plus any accepted

Alternates in the form of a contract presented

by the Owner. . . .

6. On March 30, 1993, the School Board issued Addendum No. 1, which added

a fire protection system to the Project's scope of work and provided as follows:

RE: Jupiter Community High School

Building No. 2

HVAC Replacement, Reroof, Renovations

The School Board of Palm Beach County,

Florida

School Project No. 349661

OEF Project No. 50-005625

P&L Project No. 92-061

To all bidders on the above project:

Please note contents hereon and insert into

the bidding documents that were issued to you

on the above entitled project.

The following supersede and supplant

corresponding items in the specifications,

drawings and details.

It will be required that each Contractor-

Builder/Developer, upon submitting his

proposal for this project, indicate on the

proposal form in the space provided that all

addenda are included in his proposal.

Failure to do so may cause rejection of a

company's bid or proposal.

The School Board of Palm Beach County,

Peacock & Lewis Architects and Planners, Inc.

and their consultants assume no liability or

responsibility for the information on printed

materials for this project that were not

distributed from the office of Peacock & Lewis

Architects and Planners, Inc.

_____________________________________________

GENERAL:

AD1-1: FIRE PROTECTION SYSTEM

Contractor shall include within his bid and

itemize on the proposal form the cost for a

complete and functioning fire protection

system as described by the attached

specification Section 15500- Fire Protection

dated 3/30/93, Addendum No. 1.

7. Paragraph 1.2 A.6 of Section 15500, which was attached to Addendum No.

1, provided as follows:

Contractor shall identify the cost associated

with this scope of work on the proposal form

as an itemized price which shall be included

within the total bid price. Refer to proposal

form.

8. On April 5, 1993, the School Board issued Addendum No. 2, which revised

the Proposal Form to reflect the additional pricing requirements imposed by

Addendum No. 1.

9. Addendum No. 2 added to the Proposal Form, immediately under the space

provided for "Additive Alternative No. 1," the following:

UNIT PRICE NO. 1: (Fire Protection System)

Contractor shall include within his bid and

itemize on the proposal form the cost for a

complete and functioning fire protection

system as described by the attached

specification Section 15500- Fire Protection

dated 3/30/93, Addendum No. 1.

_____________________________________________

_________________________ ($_______________)

(PRICE IN WORDS) (FIGURES)

No other changes material to the instant case were made to the Proposal Form or

to any of the other bid documents.

10. It was the intention of those who were responsible for the preparation

and issuance of Addenda Nos. 1 and 2 to require bidders to include the price of

the fire protection system in their "Base Bid;" 1/ however, they failed to

clearly and unambiguously express their intention in these addenda or any of the

other bid documents.

11. No other bid document aside from the revised Proposal Form made any

reference to a "unit price."

12. Unit prices are typically used in the construction industry to price

work added to the initial scope of work, as was the fire protection system in

the instant case.

13. In interpreting the bid documents, Joseph Pirrotta, Petitioner's chief

executive officer, relied upon his many years of experience in the construction

industry. Based upon his reading of these documents, he reasonably believed

that the "Unit Price No. 1 (Fire Protection System)" was a separate and distinct

component of the "total bid price" and that, although it was to be included in

the "bid" he submitted, it was not to be a part of the "Base Bid." While the

bid documents were also susceptible to a contrary construction, Pirrotta's was

the more reasonable of the two interpretations.

14. Pirrotta completed the revised Proposal Form accordingly.

15. Petitioner was one of three bidders to submit bids in response to the

Advertisement. The other two bidders were Intervenor and Janus & Hill

Corporation (hereinafter referred to as "Janus").

16. Petitioner quoted the following prices on the completed revised

Proposal Form it submitted: "Base Bid"- $1,672,000.00; "Additive Alternate

No.1"- $3,400.00; and "Unit Price No. 1"- $80,000.00. As noted above,

Petitioner's "Base Bid" did not include the price of the fire protection system.

17. Intervenor quoted the following prices on the completed revised

Proposal Form it submitted: "Base Bid"- $1,947,000.00; "Additive Alternate

No.1"- $6,000.00; and "Unit Price No. 1"- $36,484.00. Unlike Petitioner,

Intervenor included in its "Base Bid" the price of the fire protection system;

however, even if it had not done so, its "total bid price" would still have been

substantially higher than Petitioner's.

18. Janus quoted the following prices on the completed revised Proposal

Form it submitted: "Base Bid"- $1,970,000.00; "Additive Alternate No.1"-

$2,020.00; and "Unit Price No. 1"- $90,000.00. 2/

19. After bid opening, the School Board's contract administrator for the

Project, Albert Paglia, correctly determined that Petitioner was the lowest

responsive bidder.

20. Thereafter, he telephoned Pirrotta to congratulate him on his

company's successful bid.

21. Before his telephone conversation with Pirrotta, Paglia assumed that

Petitioner's "Base Bid" included the price of the fire protection system. He

learned otherwise, however, after speaking with Pirrotta, who informed him that

Petitioner's "total bid price," excluding "Additive Alternate No. 1," was its

"Base Bid" of $1,672,000.00, plus the $80,000.00 for the fire protection system

reflected as "Unit Price No. 1" on its completed revised Proposal Form.

22. Paglia and others with whom he was working on the Project perceived

this as a problem. They therefore brought the matter to the attention of

Lawrence Zabik, the School Board's assistant superintendent for support

services.

23. Zabik's initial reaction was to award the contract for the Project,

including the fire protection system, to Petitioner for $1,672,00.00,

Petitioner's "Base Bid."

24. Pirrotta was unwilling to undertake the Project for that amount.

25. By letter to Zabik dated May 5, 1993, Intervenor gave notice to the

School Board of its intent to protest any award made to Petitioner. The letter

provided as follows:

Based on our review of the Bid Documents

submitted by J.D. Pirrotta on April 20, 1992,

we are notifying you of our intent to protest

the award of the above referenced project to

any firm other than Milne & Nicholls, Inc.

We will base our protest on the non-

responsiveness of J.D. Pirrotta's bid. As you

are aware, Mr. Pirrotta requested an

additional $80,000 to compensate him for his

misinterpretation of Unit Price #1 as an

additive alternate. It is now apparent that

his bid is incomplete and therefore non-

responsive.

Please advise us of the Owner's intention with

regard to the Award on this project.

26. Zabik referred the letter to the School Board's Office of the General

Counsel.

27. By letter dated May 13, 1993, authored by one of the School Board's

attorneys, the School Board announced that it intended to reject all bids and

readvertise, giving the following explanation:

In the instant case, since the bid is

susceptible to two interpretations, one of

which would be that the Fire Protection System

was included in the base bid, and the other

that it was not leads to an unfair economic

advantage by one bidder over others. The

example would be that the low bidder in the

instant case is permitted to add the Fire

Protection System on as an alternate when it

was not intended.

Given the ambiguity, the bid should be

rejected and the specifications rewritten and

readvertised. [Citations omitted.]

In the instant case, rejection of all bids is

the only reasonable solution so that all

parties are given a fair playing field. The

School Board has not acted arbitrarily or

capriciously in arriving at this decision to

readvertise, given the parties place a

different interpretation on the bid proposal

form.

28. The concerns expressed in the letter that Pirrotta obtained an "unfair

economic advantage" over the other bidders as a result of the "ambiguity" in the

bid documents are unwarranted.

CONCLUSIONS OF LAW

29. District school boards in this State, with certain limited exceptions

not applicable to the instant case, are required to purchase commodities and

services through the process of competitive bidding. Section 237.02(2), Fla.

Stat.; Rule 6A-1.012, Fla. Admin. Code.

30. It has been said on more than one occasion that competitive bidding

requirements, such as those imposed upon district school boards, have as their

purpose and object the following:

[T]o protect the public against collusive

contracts; to secure fair competition upon

equal terms to all bidders; to remove not

only collusion but temptation for collusion

and opportunity for gain at public expense;

to close all avenues to favoritism and fraud

in various forms; to secure the best values

for the [public] at the lowest possible

expense; and to afford an equal advantage

to all desiring to do business with the

[government], by affording an opportunity for

an exact comparison of bids.

Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (Fla. 1931); Harry Pepper &

Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2d DCA 1977).

31. In soliciting and accepting competitive bids, a district school board

has wide discretion. See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912,

913 (Fla. 1988); Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d

505, 507 (Fla. 1982). It has "the authority to reject any or all bids" and to

accept, what it deems to be, "the lowest and best bid." Rule 6A-1.012, Fla.

Admin. Code.

32. A school board's discretion with respect to these matters, while

broad, is not unbridled. Such discretion may not be exercised in a manner that

is illegal, dishonest, fraudulent, arbitrary, unreasonable, capricious or in any

other way that would subvert or undermine the purpose and object of competitive

bidding. See D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912, 913-14 (Fla.

1988); Caber Systems v. Department of General Services, 530 So.2d 325, 336

(Fla. 1st DCA 1988); Couch Construction Company, Inc. v. Department of

Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978); Wood-Hopkins

Contracting Company v. Roger J. Au & Son, Inc., 354 So.2d 446, 450 (Fla. 1st DCA

1978).

33. In the instant case, the School Board has announced its intention to

reject all bids, including Petitioner's, and to readvertise the Project because

the bid documents it issued did not clearly and unambiguously indicate to

prospective bidders whether the price of the fire protection system should be

included in the "Base Bid," resulting in one of the bidders, Intervenor,

determining that it should be included and another bidder, Petitioner,

concluding that it should be excluded. The existence of an ambiguity

constitutes a rational basis upon which a district school board may lawfully

reject all bids and readvertise, but only if such ambiguity has given one bidder

an unfair advantage over his competitors or has otherwise tainted the outcome of

the competitive bidding process. See Caber Systems v. Department of General

Services, 530 So.2d 325 (Fla. 1st DCA 1988); Tropabest Foods, Inc. v.

Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986); Robinson

Electrical Co., Inc. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982).

34. The lack of clarity that the School Board has found in the bid

documents in the instant case has had no such adverse impact on the competitive

bidding process. The evidence clearly and unmistakably demonstrates that even

if all three bidders had been under the same understanding regarding whether the

"Base Bid" should include the price of the fire protection system, Petitioner

would still have submitted the lowest and best bid. Moreover, Petitioner's

interpretation of the bid documents, more so than the contrary interpretation

urged by Intervenor, gives the words used by the School Board in these documents

their natural and most commonly understood meaning and therefore should prevail

over Intervenor's interpretation and be utilized by the School Board in

determining the amount of the contract award. See Tropabest Foods, Inc. v.

Department of General Services, 493 So.2d 50, 51-52 (Fla. 1st DCA 1986).

35. In light of the foregoing, the School Board, rather than rejecting all

bids and readvertising, should award the contract for the Project to Petitioner,

the lowest and best responsive bidder, for $1,752,000.00, plus the price for

"Additive Alternate No. 1" should the School Board choose to include this

alternate within the Project's scope of work.

RECOMMENDATION

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

hereby

RECOMMENDED that the Palm Beach County School Board enter a final order

sustaining the instant bid protest and awarding to Petitioner, as the lowest and

best responsive bidder, the contract for School Board Project No. 349661 for

$1,752,000.00, plus the price for "Additive Alternate No. 1" should the School

Board choose to include this alternate within the Project's scope of work.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of

July, 1993.

___________________________________

STUART M. LERNER

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 7th day of July, 1993.

ENDNOTES

1/ They intended to use the "unit prices" quoted on the Proposal Forms that the

bidders submitted for informational purposes only.

2/ The evidence does not reveal whether or not Janus included in its "Base Bid"

the price of the fire protection system.

APPENDIX TO RECOMMENDED ORDER

IN CASE NO. 93-2822BID

The following are the Hearing Officer's specific rulings on the "findings

of facts" proposed by the parties in their post-hearing submittals:

Petitioner's Proposed Findings

1-15. Accepted and incorporated in substance, although not necessarily

repeated verbatim, in this Recommended Order.

16. To the extent that this proposed finding asserts that there was

nothing at all in the bid documents that might lead one to believe that the

price of the fire protection system was to be included in the "Base Bid," it has

been rejected because it is not supported by persuasive competent substantial

evidence. Otherwise, it has been accepted and incorporated in substance.

17-19. Accepted and incorporated in substance.

20. To the extent that this proposed finding suggests that the bid

documents clearly and unambiguously indicated to prospective bidders that the

price of the fire protection system was to be excluded from the "Base Bid," it

has been rejected because it is not supported by persuasive competent

substantial evidence. Otherwise, it has been accepted and incorporated in

substance.

21-23. Accepted and incorporated in substance.

24-25. Not incorporated in this Recommended Order because it would add

only unnecessary detail to the factual findings made by the Hearing Officer.

26. First sentence: Accepted and incorporated in substance; Second

sentence: Not incorporated in this Recommended Order because it would add only

unnecessary detail to the factual findings made by the Hearing Officer.

27-29. Accepted and incorporated in substance.

30. First sentence: Not incorporated in this Recommended Order because it

would add only unnecessary detail to the factual findings made by the Hearing

Officer; Second sentence, before comma: Accepted and incorporated in

substance; Second sentence, after comma: Rejected as a finding of fact because

it constitutes legal argument.

31. Accepted and incorporated in substance.

32. Rejected because it is not supported by persuasive competent

substantial evidence.

33. Before comma: To the extent that this proposed finding states that

the School Board's basis for rejection of all bids was an ambiguity in the bid

documents, it has been accepted and incorporated in substance. To the extent

that it states that there existed no such ambiguity, it has been rejected

because it is not supported by persuasive competent substantial evidence; After

comma: Rejected as a finding of fact because it constitutes legal argument.

34-35. Accepted and incorporated in substance.

36. Rejected because, even if true, it would not change the result of the

instant case.

The School Board's Proposed Findings

1. Accepted and incorporated in substance.

2. First, second and third sentences: Accepted and incorporated in

substance; Fourth sentence: To the extent that this proposed finding states

that Pirrotta viewed the price of the fire protection system as an "additive

alternate," it has been rejected because it is not supported by persuasive

competent substantial evidence. Otherwise, it has been accepted and

incorporated in substance; Fifth sentence: To the extent that this proposed

finding states that Intervenor argued in its bid protest that Petitioner should

not be awarded the contract for the Project "because Pirrotta requested an

additional $80,000 to compensate it for a misinterpretation of unit price # 1 as

an additive alternate," it has been accepted and incorporated in substance. To

the extent that it suggests that Petitioner in fact misinterpreted the bid

document and thereafter sought to add $80,000.00 to its "total bid price" to

compensate for this misinterpretation, it has been rejected because it is

contrary to the greater weight of the evidence.

3. First and second sentences: Not incorporated in this Recommended Order

because it would add only unnecessary detail to the factual findings made by the

Hearing Officer; Third sentence: To the extent that this proposed finding

suggests that Petitioner would in fact "be given an unfair economic advantage

over all other bidders" if the School Board accepted Petitioner's interpretation

of the bid documents, it has been rejected because it is contrary to the greater

weight of the evidence. Otherwise, it has been accepted and incorporated in

substance.

4-6. Accepted and incorporated in substance.

Intervenor's Proposed Findings

Intervenor has adopted the School Board's proposed findings of fact 1

through 5, which are specifically addressed above, and has not submitted any

additional proposed findings of fact.

COPIES FURNISHED:

John W. Foster, Sr., Esquire

Baker & Hostetler

2300 Sun Bank Center

200 South Orange Avenue

Post Office Box 112

Orlando, Florida 32802

Robert A. Rosillo, Esquire

School Board of Palm Beach County

3318 Forest Hill Boulevard

Suite C302

West Palm Beach, Florida 33406-5813

Thomas F. Munroe, II, Esquire

Foley & Lardner

777 South Flagler Drive

Suite 200- East Tower, Philips Point

West Palm Beach, Florida 33401-6163

Lawrence Zabik, Assistant Superintendent for Support Services

School Board of Palm Beach County

3318 Forest Hill Boulevard

Suite C310

West Palm Beach, Florida 33406-5813

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period of time within which to

submit written exceptions. You should contact the agency that will issue the

final order in this case concerning agency rules on the deadline for filing

exceptions to this recommended order. Any exceptions to this recommended order

should be filed with the agency that will issue the final order in this case.