03-003954BID All Power Generators, Corp. vs. Department Of Corrections Status: Closed Recommended Order on Tuesday, January 13, 2004.

Summary: The Petitioner failed to prove that the Respondent acted arbitrarily or capriciously or failed to follow its own rules, policies, and the invitation to bid by rejecting a corporation that did not have 3 years` business or corporate experience.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALL POWER GENERATORS )

CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3954BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

)

and )

)

PANTROPIC POWER PRODUCTS, )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on November 21, 2003, by video teleconference, with the

Petitioner and the Intervenor appearing in Miami, Florida, and

the Respondent appearing in Tallahassee, Florida, before

Patricia Hart Malono, a duly - designated Administrative Law Judge

of the Division of Administrati ve Hearings, who presided in

Tallahassee, Florida.

APPEARANCES

For Petitioner: LaShawn Strachan, Esquire

Law Office of LaShawn Strachan, P.A.

150 Northwest 168th Street, Suite 210

Nort h Miami Beach, Florida 33169

For Respondent: Susan P. Stephens, Esquire

Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399 - 2500

For Intervenor: David M. McDonald, Esquire

McLuskey & McDonald, P.A.

Two Datran Center, Suite 1901

9130 South Dadeland Boulevard

Miami, Florida 33156

STATEMENT OF THE ISSUE

Whether the Re spondent's decision to reject the bid

submitted by the Petitioner in response to Invitation to Bid

# 03 - DC - 7514, Maintenance and Repair of Emergency Generators,

was contrary to the Respondent's governing statutes, the

Respondent's rules or policies, or the specifications in the

Invitation to Bid.

PRELIMINARY STATEMENT

In a Petition filed with the Department of Corrections

("Department") on October 10, 2003, All Power Generators

Corporation ("All Power Generators") asserted that the

Department's decision to reject its bid, which was submitted in

response to Invitation to Bid # 03 - DC - 7514 ("the ITB"), for

maintenance and repairs of emergency generators in Region IV was

clearly erroneous, arbitrary or capricious, and contrary to its

own rules. All Power Genera tors alleged that it met the

experience requirement set forth in the ITB and that it should

have been awarded the contract as the lowest responsive bidder.

The Department transmitted the petition to the Division of

Administrative Hearings for the assignme nt of an administrative

law judge. On November 12, 2003, Pantropic Power Products

("Pantropic") filed a petition to intervene in the proceeding,

and Pantropic was granted intervenor status in an order entered

November 18, 2003. Pursuant to notice, the fi nal hearing was

held on November 21, 2003.

At the hearing, the parties offered Joint Exhibits 1

through 4, which were received into evidence. All Power

Generators presented the testimony of Juan Ricardo Garcia, its

President, and Petitioner's Exhibit 1 wa s received into

evidence. The Department presented the testimony of Diana

Trahan, a purchasing analyst employed by the Department, and

Robert Richard Rogers, a maintenance and construction officer

employed by the Department; Respondent's Exhibit 1 was rec eived

into evidence. Pantropic presented the testimony of Richard

Gaska.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on December 9, 2003, and

the parties timely filed proposed findings of fact and

co nclusions of law, which have been considered in the

preparation of the Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fa ct are made:

1. On June 23, 2003, the Invitation to Bid ("ITB") for Bid

No. 03 - DC - 7514 was advertised and also mailed to prospective

bidders on the bidding list maintained by the Department. The

ITB solicited bids for the maintenance and repair of emerge ncy

generators in correctional facilities, and separate bids were to

be submitted for Regions I through IV.

2. All Power Generators submitted its bid by the deadline

of 2:00 p.m. September 15, 2003, together with four other

bidders, including Pantropic. Both All Power Generators and

Pantropic bid only on the part of the ITB relating to work in

Region IV.

3. When the bids were opened, the annual costs stated by

the bidders for each region covered by the ITB were read and

recorded. All Power Generators' c ost total was lower than that

of Pantropic, and All Power Generators was the apparent lowest

responsive bidder.

4. After the bids were opened, Department personnel

reviewed the cost tabulations to confirm their accuracy and

reviewed the other documentatio n required by the ITB, including

the Certification/Attestation for Mandatory Statements, the

Certification/Attestation of Executive Summary Statements, and

the Bidder's Background Summary, to ensure the bidders'

responsiveness to the requirements of the IT B.

5. As a result of this review, the Department's

Procurement Manager determined that All Power Generators did not

meet the three years' business/corporate experience requirement

of the ITB. The Procurement Manager recommended that the

contract be award ed to Pantropic, the next lowest bidder. This

recommendation was accepted, and the Department noted on the Bid

Tabulation form its intent to award the contract for Region IV

to Pantropic and its determination that All Power Generators did

"not meet requir ed experience criteria."

6. In Section 1.3 of the ITB, "mandatory responsiveness

requirements" are defined in pertinent part as follows: "Terms,

conditions or requirements that must be met by the bidder to be

responsive to this ITB. These responsiveness requirements are

mandatory . Failure to meet these responsiveness requirements

will cause rejection of a bid. . . ." (Emphasis in original.)

7. Section 4.3.6 of the ITB provides in pertinent part:

The Department shall reject any and all bids

not meeting mandatory responsiveness

requirements. In addition, the Department

shall also reject any or all bids containing

material deviations. The following

definitions are to be utilized in making

these determinations:

4.3.6.1 Mandatory Responsiveness

Requirem ents : Terms, conditions or

requirements that must be met by the bidder

to be responsive to this ITB. These

responsiveness requirements are mandatory .

Failure to meet these responsiveness

requirements will cause rejection of a bid.

4.3.6.2 Material Dev iations : The

Department has established certain

requirements with respect to bids to be

submitted by bidders. The use of shall,

must or will (except to indicate simple

futurity) in this ITB indicates a

requirement or condition which may not be

waived by the Department. A deviation is

material if, in the Department's sole

discretion, the deficient response is not in

substantial accord with this ITB's

requirements, provides an advantage to one

bidder over other bidders, has a potentially

significant effect on the quantity or

quality of items or services bid, or on the

cost to the Department. Material deviations

cannot be waived and shall be the basis for

rejection of a bid.

(Emphasis in original.)

8. The Mandatory Responsiveness Requirements are set for th

in Section 5.1 of the ITB, which provides in pertinent part:

The following terms, conditions, or

requirements must be met by the bidder to be

judged responsive to this ITB. These

responsiveness requirements are mandatory.

Failure to meet these respons iveness

requirements shall cause rejection of a bid .

Any bid rejected for failure to meet

responsiveness requirements will not be

reviewed.

* * *

5.1.4 It is mandatory that the bidder sign,

have certified by a notary public and

return, under Tab 1, the

"Certification/Attestation for Mandatory

Statements" (ATTACHMENT 1) , which includes

the following statements:

5.1.4.1 Business/Corporate Experience:

A statement certifying that the

bidder/contractor has business/corporate

experience of at least three ( 3) years

relevant to the provision of generator

maintenance and repair, within the last five

(5) years.

5.1.4.2 Authority to Legally Bind the

Bidder: A statement certifying that the

person signing form PUR 7031 [the Bidder

Acknowledgment] and all other forms is the

person in the bidder/contractor's

organization responsible for, or authorized

to make, binding decisions as to the prices

bid.

9. Juan R. Garcia signed the form PUR 7031 and the

Certification/Attestation for Mandatory Statements as Presiden t

and owner of All Power Generators, and these documents were duly

notarized.

10. The Certification/Attestation for Mandatory Statements

form signed by Mr. Garcia contains the following statement:

"This is to certify that the bidder/contractor has

busine ss/corporate experience of at least three (3) years

relevant to the provision of generator maintenance and repair,

within the last five (5) years."

11. Mr. Garcia also signed the Certification/Attestation

of Executive Summary Statements, wherein he certif ied that "the

bidder is a corporation" that is "registered to do business in

Florida."

12. Finally, Mr. Garcia completed the Bidder's Background

Summary for All Power Generators in which he stated that All

Power Generators was established in 2001 as a cor poration whose

primary business was to service and repair generators. All

Power Generators has been doing business for approximately two

and one - half years.

13. Mr. Garcia has worked for 21 years repairing and

maintaining generators. Prior to organizing All Power

Generators, Mr. Garcia was the service manager for a company

called Power Depot. His primary job at Power Depot was

repairing and maintaining generators, and, among other technical

qualifications, he is certified by Kohler to work on the

genera tors it manufacturers.

14. All Power Generators has five employees, including

Mr. Garcia, who have between 8 and 22 years' experience

maintaining and repairing generators.

15. It is of critical importance that the Department's

emergency generators be pro perly maintained and promptly

repaired. When there is a power outage in one of the

Department's correctional facilities, emergency generators

automatically start and provide emergency power to operate

security systems, food service operations, water wells ,

wastewater plants, and emergency lighting. Under the ITB,

response time is 24 hours for non - emergency repairs and four

hours for emergency repairs. The bidder/contractor who is

awarded the contract to maintain and repair emergency generators

used in th e correctional facilities must have employees who are

technically proficient in maintaining and repairing generators,

but, because of the short response time for repairs and the

numerous correctional facilities covered by the contract,

especially in Region IV, 1 the Department requires that the

bidder/contractor also have business/corporate experience in

managing contracts and coordinating the necessary maintenance,

routine repairs, and emergency repairs of the generator systems.

16. The evidence presented by All Power Generators is not

sufficient to establish that its bid satisfied the mandatory

requirement that the bidder/contractor have a minimum of

three years' business/corporate experience. All Power

Generators was organized in 2001 and has been in bus iness only

two and one - half years. Even though Mr. Garcia has many years

of technical experience in the repair and maintenance of

generators, All Power Generators does not have the

business/corporate experience required by the ITB.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1)

and (3), Florida Statutes (2003). 2

18. In its Petition, All Power Generators has al leged that

the Department's decision to reject its proposal is erroneous,

arbitrary or capricious, and contrary to its own rule. All

Power Generators' bid protest was filed pursuant to

Section 120.57(3), Florida Statutes, which provides in pertinent

part:

(f) . . . In a competitive - procurement

protest, other than a rejection of all bids,

the administrative law judge shall conduct a

de novo proceeding to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the ag ency's

rules or policies, or the bid or proposal

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious. . . .

19. The court in Stat e Contracting and Engineering Corp.

v. Department of Transportation , 709 So. 2d 607, 609 (Fla. 1st

DCA 1998), defined the de novo hearing required by

Section 120.57(3)(f) as

a form of intra - agency review. The

judge may receive evidence, as with

any formal hearing under Section 120.57(1),

but the object of the proceeding

is to evaluate the action taken by the

agency. See Intercontinental Properties,

Inc. v. Department of Health and

Rehabilitative Services , 606 So. 2d 380

(Fla. 3d DCA 1992).

20. Section 1 20.57(3)(f) also provides that "[u]nless

otherwise provided by statute, the burden of proof shall rest

with the party protesting the proposed agency action." There is

no statute placing the burden of proof in a bid protest

proceeding on anyone other than the party prosecuting the bid

protest. Section 120.57(1)(j), Florida Statutes, provides in

pertinent part that "[f]indings of fact shall be based upon a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as othe rwise provided by

statute, . . . ." There is no statute providing for a lesser or

a greater quantum of proof in a bid protest proceeding than a

preponderance of the evidence. Accordingly, pursuant to

Section 120.57(3)(f), and in accordance with the alleg ations in

its petition, All Power Generators has the burden of proving by

a preponderance of the evidence that the Department's decision

that All Power Generators failed to satisfy the mandatory

requirement that the bidder/contractor have at least three

ye ars' business/corporate experience was clearly erroneous,

arbitrary, capricious, or contrary to the ITB at issue herein.

21. Based on the findings of fact herein, All Power

Generators has failed to carry its burden in this case. All

Power Generators was on notice that it must meet the mandatory

requirements set forth in the ITB. Among those mandatory

requirements was the requirement that the bidder/contractor have

three years' business/corporate experience, which is in addition

to the technical expertise of the bidder/contractor's staff. 3

This requirement is not arbitrary or capricious; the

Department's decision to reject All Power Generators' bid was

not clearly erroneous or contrary to its rules or policies; and,

pursuant to the terms of the ITB, the D epartment must reject All

Power Generators' bid.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Corrections enter

a final order denying the bid protest of All Power Generators

Corpor ation and dismissing the Petition filed by All Power

Generators Corporation.

DONE AND ENTERED this 13th day of January, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Fi led with the Clerk of the

Division of Administrative Hearings

this 13th day of January, 2004.

ENDNOTES

1 / The contract for Region IV covers 13 major correctional

facilities and 52 emergency generators and related equipment

located in Broward, Dade, Charlotte, Desoto, Everglades, Hardee,

Hendry, Indian River, Lee, Martin, Ok echobee, and Palm Beach

counties.

2 / All statutory references are to the 2003 edition of the

Florida Statutes unless otherwise stated.

3 / Section 3.4.4 of the ITB addresses staffing requirements for

the contract and specifies that "[a]ll technicians pr ovided to

perform services shall have at least 40 hours factory training

on generators similar to those identified herein, or related

equipment."

COPIES FURNISHED:

David M. McDonald, Esquire

McLuskey & McDonald, P.A.

Two Datran Center, Suite 1901

9130 South Dadeland Boulevard

Miami, Florida 33156

Susan P. Stephens, Esquire

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

Lashawn Strachan, Esquire

150 Northwest 168th Street, Suite 210

North Miami Beach, Florida 33169

Louis A. Vargas, General Counsel

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 6563

James Crosby, Jr., Secretary

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2500

NOTICE OF R IGHT 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 cas e.