00-004420BID Qualtech Cleaning, Inc., D/B/A Action Cleaning vs. Florida State University Status: Closed Recommended Order on Thursday, February 1, 2001.

Summary: University`s interpretation of bid specification was arbitrary and contrary to competition. Low bidder by cost quote was not responsive to the bid. Reject bid award.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUALTECH CLEANING, INC., )

d/b/a ACTION CLEANING, )

)

Petitioner, )

)

vs. ) Case No. 00-4420BID

)

FLORIDA STATE UNIVERSITY, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A formal hearing was held pursuant to no tice, on December

4, 2000, in Tallahassee, Florida, before Barbara J. Staros,

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Daniel W. Hartman, Esquire

Samual J. Ard, Esquire

Ard, Shirley & Hartman, P.A.

Post Office Box 1874

Tallahassee, Florida 32302-1874

For Respondent: Leslei G. Street, Esquire

Florida State University

424 Westcott Building

Tallahassee, Florida 32306

STATEMENT OF THE ISSUE

Whether Florida State University's decision to award the

contract in its Invitation to Bid, Bid No. K4111-8, to

Professional Building Maintenance is contrary to the agency's

governing statutes, the agency's rules or policies, or the bid

or proposal specifications.

PRELIMINARY STATEMENT

On September 28, 2000, the purchasing office of Florida

State University posted its Notice of Intent to award a

contract for carpet cleaning resulting from Bid No. K4111-8

("the bid") to Professional Building Maintenance. Petitioner,

Qualtech Cleaning, Inc., d/b/a/ Action Cleaning, timely filed

a Formal Written Protest and Petition for Administrative

Hearing. The case was forwarded to the Division of

Administrative Hearings on or about October 27, 2000. The

parties waived the time frame set forth in Section

120.57(3)(e), Florida Statutes, and a formal hearing was

scheduled for December 4 and 5, 2000.

The parties filed a Prehearing Stipulation. At hearing,

Petitioner presented the testimony of Barbara Peterson,

Cecil Williams, Joyce Cordell, Walter Parramore and James

Rush. Petitioner's E xhibits 5, 18, 19, 22, 24-27, 31, and 39

were admitted into evidence. Official recognition was taken

of Chapter 6C-18 and portions of Chapter 6C-2, Florida

Administrative Code. Respondent presented the testimony of

Joyce Cordell and Walter Parramore. Joint Exhibits A, B, and

C were admitted into evidence.

A transcript, consisting of two volumes, was filed on

January 2, 2001. On January 12, 2001, the parties timely

filed Proposed Recommended Orders which have been considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

Stipulated Facts

1. Petitioner has standing as the second lowest bidder.

2. Petitioner's Notice of Protest and Formal Written

Protest were timely and complete.

3. Petitioner was under contract to the University to

provide carpet-cleaning services through June 30, 2000.

Findings of fact based on the evidence of record

4. Florida State University ("the University") issued an

Invitation to Bid No. K4111-8 (ITB) for carpet cleaning

services. Four carpet cleaning companies submitted bids

including Petitioner and Professional Building Maintenance

(PBM).

5. The Invitation to Bid included two pages entitled

"General Conditions" and three pages entitled "Specifications

for on site, contract carpet cleaning." The first section

listed in the "specifications for on site, contract carpet

cleaning" is entitled "Scope" which reads as follows:

Provide for carpet cleaning services to

provide all labor, supplies, equipment &

cleaning chemicals needed to provide on

site, quality contract carpet cleaning

service within designated buildings on the

campus of Florida State University.

Note: We anticipate expending $100,000.00

per year during the term of this contract,

however, this is only an estimate and no

amount is guaranteed.

Period of the contract will begin on

October 1, 2000 through June 30, 2001 with

an option to extend the contract at the

same rate annually for two additional

years; July 1, 2001-June 30, 2002, July

2002-June 30, 2003. Bidders should allow

for any price increases they anticipate

during this period and include this in

their pricing of this bid. The extension

will be valid only upon written notice to

and written acceptance from the vendor.

6. Another section in the "Specifications for on site,

contract carpet cleaning" is entitled, "Contractor

Qualifications and Experience" which reads as follows:

Contractor Qualifications and Experience

1. Bidder shall provide evidence of having

a minimum of 2 years experience performing

commercial carpet cleaning, including a

listing of all commercial contractors held

for the part two year period. In addition,

bidder must provide verification of past

experience cleaning carpet in high rise

facilities (over 6 stories) using

truckmount equipment.

Note: Award will be based on low bid

meeting all specification & past

performance evaluation. All contracts are

subject to being checked for reference on

past performance. Names, title, and phone

numbers of individuals with direct

involvement in supervision of existing

contracts shall be supplied for reference

checking. Approximately (5) references

from the submitted list will be randomly

selected to be checked for performance

evaluation. A past performance evaluation

of 20% unsatisfactory shall be grounds for

bid rejection.

2. Bidder shall provide evidence that all

carpet technicians have received formal

training in [sic] certification in carpet

cleaning disciplines. Technicians/

supervisors assigned to work at FSU must be

able to provide proof of certification

within 30 days after the award of the

contract. A certified technician and or

supervisor must be on site at all times

while work is in progress. Technician

certification by IICRC or through

comparable franchise or independent

training and testing organizations is

required.

3. Bidder must have a minimum of two fully

operational truckmounts in their equipment

inventory to qualify for this bid.

4. Bidder shall provide a listing of all

cleaning equipment, vehicles, truckmount,

and other tools that are currently in the

vendors inventory and available for use for

this contract.

5. Bidder shall provide a listing of all

cleaning chemicals that will be used in the

performance of this contract along with

technical data sheets and MSDS for each

chemical.

6. Bidder shall insure that all employees

are bonded and that no one under the age of

18 years old will be employed to work under

the contract for FSU and no one other than

their authorized employees are allowed on

site during the performance of contract

cleaning.

7. There is no dispute between the parties that these

six paragraphs are mandatory requirements of the ITB and that

bidders must respond to the requirements in all six

paragraphs. The parties do dispute whether PBM was responsive

to all of these requirements.

8. Specifically, Petitioner contends that PBM was not

responsive to certain bid requirements: the requirement that

the bidder provide a minimum of 2 years' experience performing

commercial carpet cleaning; the requirement that a bidder have

experience cleaning carpet in high rise facilities (over 6

stories) using truckmount equipment; and the requirement that

the bidder's employees be trained and certified, or provide

evidence of the same within 30 days. Petitioner also contends

that PBM failed to meet what it considers a bid requirement

under the portion of the bid entitled, "cleaning

specifications" which will be discussed below. Finally,

Petitioner challenges the competitiveness of the bidding

process.

Two-year minimum commercial Carpet Cleaning Experience

9. In response to the requirement of having 2 years'

experience performing commercial carpet cleaning, PBM

submitted a certification that stated, "This hereby certifies

that Professional Building Maintenance has actively been in

business in the state of Florida for over three years." The

University accepted this certification on its face. In

addition, PBM submitted a list of 12 references entitled, "2

year commercial contract references." Finally, certification

documents which PBM submitted to another bid requirement dated

back to 1997, more than two years before the bid opening. PBM

was not incorporated until January 1, 1999. However,

incorporation was not a requirement of the ITB.

10. Based upon the above factors, the University

determined that PBM was responsive to the two-year commercial

carpet cleaning experience requirement. This determination

was reasonable and is supported by competent, substantial

evidence.

Experience in High Rise Facilities

11. In response to the requirement that a bidder must

provide verification of past experience cleaning carpet in

high rise facilities (over 6 stories) using truckmount

equipment, PBM submitted a statement which read, "On

6/22/2000 Professional Building Maintenance successfully

cleaned the Florida University Center 6th story using truck

mount equipment." PBM's response does not state that it

cleaned carpet over the sixth story of any building.

12. The University interprets the six-story requirement

to mean that a bidder must show that it cleaned carpet, using

truckmount equipment, in a building that is over six stories

in height, but a bidder does not necessarily have to have

cleaned any floor over the sixth story of that building. Ms.

Cordell, Purchasing Coordinator of the University's Purchasing

Department, explained that the University found PBM's answer

to be responsive because this response showed that PBM had

cleaned carpet in a building that was over six stories in

height. When asked if a bidder which had cleaned the second

floor of the same high rise building would have met this

specification, Ms. Cordell replied that it would.

13. The University's interpretation of the ITB

requirement is unreasonable and ignores the plain meaning of

the language in the ITB drafted by the University. The ITB

clearly defines a high rise facility to be over six stories.

The undersigned's reading of this requirement is that it

contemplates that a responsive bidder must have cleaned carpet

above the sixth story. Interpreting that provision to mean

that a bidder could clean carpet on any floor of a building,

so long as the building itself was over six stories, is

contrary to any reasonable interpretation of that ITB

requirement, and renders meaningless the inclusion of the

definition of "high rise facility" contained in the ITB.

14. The University's determination that PBM was

responsive to the ITB requirement that a bidder provide

verification of past experience cleaning carpet in high rise

facilities over six stories is not a reasonable one and is

contrary to the bid specifications.

15. The carpet cleaning referenced above took place

under circumstances that Petitioner argues are contrary to

competition. The owner of PBM contacted Barbara Peterson, an

Assistant Director of the Physical Plant at the University,

about performing a demonstration of its truckmount equipment.

This demonstration was done without charge to the University.

The demonstration was done in close time proximity to an

earlier bid-opening regarding carpet cleaning but more than

two months before the ITB in the instant proceeding. The

University has a practice of accepting free demonstrations of

products and services from vendors.

16. Petitioner argues that PBM was given an opportunity

not given to other bidders in that this free demonstration was

what PBM relied upon in its response to this requirement of

the ITB. Petitioner also asserts that this demonstration was

done during the time period when it had a carpet-cleaning

contract with the University.

17. There was no competent, substantial evidence

presented to establish that any actions of the University

regarding this carpet-cleaning demonstration were designed to

manipulate the bidding process. Petitioner argues that this

free demonstration violates the University's policy of

employees not soliciting or accepting gratuities. Policy 4A-

10.2, Purchasing Department Policies and Procedures. However,

this policy applies to the individual employee, not to the

University. Moreover, whether or not the free demonstration

by PBM violated the contract between Petitioner and the

University goes beyond the scope of this proceeding.

Training and Certification Requirement

18. In response to the training and certification

requirement, PBM submitted a document entitled, "Technician

Certification" which stated:

This hereby states that Randal R. Martin is

the acting certified carpet technician

acknowledged by the IICRC. All other

carpet technician employees have received

formal training and are currently in the

progress of receiving certification.

Technicians without certification will not

work for Florida State University until

certification is completed.

19. Additionally, PBM included certain certification

documents including a certification document from the

Institute of Inspection, Cleaning, and Restoration C (IICRC)

dated 1/19/00 entitled, "Certified Firm 2000" which stated

that PBM is firm in good standing with the IICRC and that PBM

has implemented an advanced training program and a course of

study leading to the certification of all on-location

operators actively engaged in providing services to the

consumer. PBM also included similar "Certified Firm"

documents for years 1997 and 1998.

20. PBM also included another document from the IICRC

stating, "be it known that Randal R. Martin is a registrant in

good standing with the Institute of Inspection, Cleaning and

Restoration Certification, and has qualified by service and

examination for certification" in the areas of carpet cleaning

and color repair. This document has an expiration date of

02/99, and, thus, had expired at the time of the bid response.

However, as quoted previously, the ITB gave a 30-day grace

period following the award of the contract to provide proof of

certification.

21. The University's determination that PBM met the bid

requirement for training and certification was a reasonable

one and is supported by competent, substantial evidence.

Cleaning Specifications

22. Another section of the ITB is entitled, "Cleaning

Specifications" which reads as follows:

1. Work Schedule

Cleaning will be performed after 4:30 PM

Monday through Friday and on weekends as

needed to meet the needs of the University.

(During breaks and holidays, day time

cleaning may be required to meet the needs

of the University.)

The vendor must have a representative

contact the customer within one business

day after receiving a work order to

schedule work and or to arrange an on site

walk through of the facility.

2. Equipment

auckmount hot water extractor with

capability to provide 600' single wand

operation at constant temperatures above

150 degrees F. And 14" Hg. Vacuum.

b. Pile lifter

cuckmount, rotary extractor

d. Turbo dryers

3. Chemicals

a. Pre-spray utilizing a blend of

chemicals including surfactants,

emulsifiers and solvents specifically

formulated to clean a broad range of soils

and stains.

b. Spotters with capability to remove most

water soluble and solvent stains.

c. Soil/stain protectors-3M Scotchgard or

equivalent.

d. Antimicrobials-EPA registered Quat,

Phenol

4. Preparation, Security

Prior to cleaning, non fixed and light

furnishings shall be tabbed and blocked to

prevent stains.

Bidder will make every effort to maintain

security of the building and the property

within the areas in which cleaning is being

performed.

Cleaning Process, Method

Carpet cleaning shall be performed in

accordance with IICRC Specifications S001

(November 1, 1991), Section 7.0-Steam

Cleaning Method, with the exception that

all pre-spray, spotters and other cleaning

chemicals shall be removed from the carpet

during the soil extraction process (Step

7.9). In addition, a dry/extraction pass

will be required following the injection,

soil extraction pass to aid drying time of

the carpet.

23. The parties disputed the characterization of the

item in paragraph(3)(d) under "cleaning specifications"

referencing antimicrobials-EPA registered Quat, Phenol.

Petitioner asserts that this section was a bid specification

requiring antimicrobials used by a bidder to be EPA-

registered. The University asserts that the reference to

antimicrobials is merely a guideline and not a mandatory bid

specification.

24. Some of the items listed under "Cleaning

Specifications" clearly do not require a response by a bidder

(i.e., the sections entitled "work schedule" and "preparation,

security"). However, other items under "Cleaning

Specifications" appear to have a nexus to the six bid

requirements discussed above listed under "Contractor

Qualifications and Experience." In particular, paragraphs 2

and 5 under "Contractor Qualifications and Experience" require

bidders to provide a listing of all cleaning equipment and

chemicals that will be used in the performance of this

contract along with technical data sheets and MSDS for each

chemical. A reasonable reading of the ITB is that the

equipment and chemicals specified under "Cleaning

Specifications" are to be included in the listing of equipment

and chemicals provided in response to paragraphs 2 and 5 under

"Contractor Qualifications and Experience."

25. However, most items listed under "Cleaning

Specifications" do not contain the same mandatory directory

language as found in the six paragraphs under "Contractor

Qualifications and Experience" (e.g., "bidder shall provide,"

"bidder shall insure," "bidder must have," etc.) In

particular, the language at issue regarding antimicrobials

does not contain any directory words, either mandatory or

permissive.

26. PBM did not list any antimicrobials in its response

to the ITB.

27. Finally, the ITB requires the bidder to fill in a

blank as to the quote cost (cleaning cost per square foot).

Once a bidder was determined to meet the minimum bid

requirements, cost per square foot was the sole factor used by

the University to determine the low bidder.

28. Ms. Cordell reviewed PBM's bid to determine if it

was responsive. PBM's bid was determined to be responsive to

the ITB. PBM submitted a bid of $.0749 per square foot.

Petitioner submitted a bid of $.08 per square foot. Because

PBM's cost quote was the lowest, she looked to see if it met

the minimum requirements of the bid. While she flipped

through Petitioner's response, she did not review it

thoroughly because she determined that PBM was the lowest

responsive bidder and that there was no need to go further.

29. At hearing, Ms. Cordell testified that Petitioner's

response to the ITB met the bid specification requirements

regarding cleaning experience of high rise buildings, two

years' commercial cleaning experience, required certification

and training, and the listing of chemicals. Additionally,

although it was Ms. Cordell's position that the listing of

chemicals under "Cleaning Specifications" was merely a

guideline and not a bid specification, she acknowledged that

Petitioner did provide that information in its response to the

ITB. 1

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Sections 120.569, 120.57(1), and 120.57(3),

Florida Statutes.

31. Petitioner has challenged the University's proposed

agency action of awarding the contract for carpet-cleaning

services to PBM.

32. No statutory provision relieves Petitioner of the

burden of proving its challenge to the University's proposed

award. Therefore, the burden of proof resides with

Petitioner. See Section 120.57(3)(f), Florida Statutes. In

accordance with that provision, a de novo proceeding has been

conducted to examine the University's proposed action in an

attempt to determine whether that action is "contrary to the

agency's governing statutes, the agency's rules or policies,

or the bid or proposal specifications."

33. Section 120.57(3)(f), Florida Statutes, establishes

the standard of proof in this proceeding to be "whether the

agency action was clearly erroneous, contrary to competition,

arbitrary or capricious."

34. The de novo hearing in this case was for the purpose

of evaluating the action taken by the University. State

Contracting and Engineering Corporation v. Department of

Transportation , 709 So. 2d 607 (Fla. 1st DCA 1998).

35. The underlying findings of fact in this case are

based on a preponderance of the evidence. Section

120.57(1)(j), Florida Statutes.

36. Chapter 6C-18, Florida Administrative Code, sets

forth rules pertaining to the Administration of the purchasing

program for the State University System. Rule 6C-18.040,

Florida Administrative Code, delegates authority to each

university president to establish a system of coordinated,

uniform procurement policies, procedures, and practices to be

used in acquiring commodities and contractual services.

37. Rule 6C-18.035(21), Florida Administrative Code,

defines "Responsive and Qualified Bidder or Offeror" as "A

contractor/vendor who has submitted a bid or proposal that

conforms in all material respects to a competitive

solicitation."

38. The University adopted Rule 6C2-2.015, Florida

Administrative Code, to implement the University's delegated

authority. Rule 6C2-2.015(3), Florida Administrative Code,

provides definitions in the context of the University's

purchasing and procurement:

C2-2.015 Purchasing and Procurement

(3)(k) Shall. Denotes the imperative.

(l) Any description of the physical,

performance or functional characteristics

of a commodity or contractual service. It

may include plans, drawings, samples or a

description of any requirement for

inspection, testing or preparing a

commodity or contractual service for

delivery.

* * *

(6)(f) . . . A minor irregularity is a

variation from the competitive solicitation

terms and conditions, which does not affect

the price offered, or give the responder an

advantage or benefit not enjoyed by other

responders or does not adversely impact the

business or educational interests of the

University. . . .

39. There is no dispute that the requirements enumerated

in the six paragraphs of the section entitled, "Contractor

Qualifications and Experience" are bid specifications. The

plain and clear meaning of the requirement that a bidder

verify experience of having past experience cleaning carpet in

high rise facilities, over six stories, is that a bidder must

verify it cleaned above the sixth floor of a high rise

facility. Courts favor an interpretation of bid contract

provisions using the plain meaning of the words. Tropabest

Foods, Inc. v. State, Department of General Services , 493 So.

2d 50 (Fla. 1st DCA 1986).

40. The University's interpretation that the six-story

provision means that a bidder only need verify it cleaned any

floor of a high rise building is arbitrary and capricious. "A

capricious action is one taken without thought or reason or

irrationality. An arbitrary decision is one not supported by

facts or logic." Agrico Chemical Co. v. Department of

Environmental Regulation , 365 So. 2d 759, (Fla. 1st DCA 1978).

41. "Contrary to competition" is best understood by its

plain and obvious meaning, i.e. , against or in opposition to

competition. "The purpose of the competitive bidding process

is to secure fair competition on equal terms to all bidders by

affording an opportunity for an exact comparison of bids."

Harry Pepper & Associates, Inc. v. City of Cape Coral , 352 So.

2d 1190, 1193 (Fla. 2d DCA 1977) (emphasis supplied).

42. While PBM demonstrated that it had truck mount

equipment that would enable it to clean up to and including

the sixth floor of a building, it did not demonstrate that it

had experience, or equipment, that would clean high rise

buildings over six stories. This resulted in a competitive

advantage to PBM over the other bidders in that it altered the

plain meaning of the ITB requirements after the opening of the

bids and may well also be adverse to the interests of the

University. Indeed, if bidders had been aware of the

University's interpretation that a company need only verify it

had cleaned any floor of a high rise building, more companies

may have responded to the ITB.

43. A variance is material only when it gives the bidder

a substantial advantage over other bidders and restricts or

stifles competition. See Tropabest Foods, Inc. v, State of

Florida , supra . Whether an irregularity in a bid is material

or immaterial turns on "whether the variation affects the

amount of the bid by giving the bidder an unfair advantage or

benefit not enjoyed by the other bidders." Harry Pepper &

Associates, Inc. v. City of Cape Coral , 352 So. 2d 1190, 1193

(Fla. 2d DCA 1977).

44. The ITB required bidders to provide verification of

past experience cleaning carpet in high rise facilities over

six stories using truckmount equipment. The University's

determination that PBM was responsive to this bid requirement

is arbitrary, capricious, and contrary to competition by

ignoring PBM's material non-compliance with a bid

specification.

45. The ITB required bidders to provide a listing of all

cleaning chemicals that will be used in the performance of the

contract. The ITB later enumerated those chemicals, including

antimicrobials. However, in enumerating those chemicals, the

ITB did not use mandatory language as was used in requiring

that chemicals be listed. PBM did not include antimicrobials

in its response to the ITB.

46. Taking into consideration the lack of mandatory

language in the section of the ITB regarding the types of

chemicals to be included and applying the above standard,

PBM's failure to list antimicrobials among those chemicals

listed in their bid is found to be an immaterial deviation

from the requirements of the ITB.

47. Petitioner has met its burden of proving by a

preponderance of the evidence that the University's proposed

action is contrary to the Agency's bid specifications and was

arbitrary, capricious, and contrary to competition.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the University enter a final order finding that the

proposed award of Bid No. K4111-8 to PBM be rejected as

arbitrary and contrary to the bid specifications, and award

the contract in a manner wholly consistent with the above

Findings of Fact and Conclusions of Law.

DONE AND ENTERED this 1st day of February, 2001, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February, 2001.

ENDNOTE

1/ The University belatedly raised the issue of whether

Petitioner met a requirement in the ITB entitled, "Contractors

Insurance" which was located at the end of the ITB, following

the cost quote. The University did not disqualify

Petitioner's bid because of this and, thus, Petitioner was not

on notice that it needed to defend this allegation. Moreover,

the language in the ITB stated that the contractor could not

commence work until it had obtained certain insurance and was

required to submit proof of such insurance five days prior to

the purchase order. Similar to the ITB requirement regarding

certification and training, such information was only required

at a later date than bid submission. Additionally, the

University's argument that Petitioner did not meet the

insurance requirement of the ITB is inconsistent with its own

position that only the six items in the section entitled

"Contractor Qualifications and Experience."

COPIES FURNISHED:

Daniel W. Hartman, Esquire

Samual J. Ard, Esquire

Ard, Shirley & Hartman, P.A.

Post Office Box 1874

Tallahassee, Florida 32302-1874

Leslei G. Street, Esquire

Florida State University

424 Westcott Building

Tallahassee, Florida 32306

Richard C. McFarlain, General Counsel

Florida State University

424 Westcott Building

Tallahassee, Florida 32306-1612

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.