04-002298BID Hill York Service Corporation vs. Sarasota County School Board Status: Closed Recommended Order on Friday, August 27, 2004.

Summary: Recommend rejection of Petitioner`s bid as unresponsive, as it lacked a signed addendum, a material requirement of the Invitation to Bid, which should be awarded to two bidders as primary and secondary providers for HVAC, refrigeration, and maintenance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILL YORK SERVICE CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 04-2298BID

)

SARASOTA COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this proceeding on behalf of the

Division of Administrative Hearings (DOAH) on August 4, 2004, in

Sarasota, Florida.

APPEARANCES

For Petitioner: John R. Smith

Hill York Service Corporation

2427 Porter Lake Drive, Suite 101

Sarasota, Florida 34240

For Respondent: Arthur S. Hardy, Esquire

Matthews, Eastmoore, Hardy,

Crauwels & Garcia, P.A.

Post Office Box 49377

Sarasota, Florida 34230-6377

STATEMENT OF THE ISSUES

The issues are whether Respondent should reject Petitioner's

bid as nonresponsive and award the bid to two other bidders.

PRELIMINARY STATEMENT

Petitioner protested Respondent's proposed rejection of

Petitioner's bid and award to other bidders. Respondent referred

the protest to DOAH to conduct an administrative hearing.

At the administrative hearing, Petitioner presented the

testimony of three witnesses, one rebuttal witness, and one

composite exhibit for admission into evidence. Respondent

presented the testimony of five witnesses and submitted eight

exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the one-volume Transcript of the

hearing filed with DOAH on August 12, 2004. Neither party filed

a written proposed recommended order on or before August 23,

2004.

FINDINGS OF FACT

1. Petitioner is a closely held Florida corporation

licensed in the state as a mechanical contractor. Mr. John Smith

is vice president and the sole shareholder of Petitioner.

2. Respondent is a local school district in the state.

Respondent regularly solicits bids for goods and services

Respondent needs to construct, renovate, manage, and operate the

public schools in Sarasota County, Florida (the District).

3. On April 13, 2004, Respondent issued an invitation to

bid identified in the record as No. 4134 (the ITB). The ITB

solicited bids to provide HVAC and refrigeration maintenance and

installation services to the District.

4. On April 27, 2004, Respondent conducted a mandatory pre-

bid meeting with vendors interested in bidding. Two of

Petitioner's employees attended the meeting.

5. Based upon discussions with attendees at the pre-bid

meeting, Respondent issued an addendum to the ITB on April 29,

2004 (the Addendum), and required a signed copy of the Addendum

to be included with each bid. Petitioner and others at the

meeting subsequently submitted separate bids.

6. Petitioner, along with six other prospective vendors,

submitted a bid in response to the ITB. Petitioner did not

include a signed Addendum in its bid.

7. On May 25, 2004, Respondent posted its intent to award

the bid to a primary vendor and to a secondary vendor, neither of

which was Petitioner. Prior to the posting of the intent to

award the bid, Respondent provided actual notice to Petitioner

that Respondent deemed Petitioner's bid to be non-responsive for

failure to include a signed Addendum.

8. Petitioner filed a timely protest pursuant to

Subsection 120.57(3)(b), Florida Statutes (2003). Respondent

halted the contract award process until this protest is resolved

as required in Subsection 120.57(3)(c), Florida Statutes (2003).

9. Petitioner's position is that it in fact included a

signed Addendum in its response to the ITB, or, alternatively,

that the signed Addendum was not required to be included with the

bid because either Respondent did not make Petitioner aware of

the requirement; or the requirement for an signed Addendum was

not material.

10. Petitioner did not include a signed Addendum with its

bid. Petitioner did not submit a copy of a signed Addendum for

admission into evidence.

11. Petitioner's vice-president personally compiled

Petitioner's bid the night before Petitioner submitted the bid,

sealed the bid, and left the sealed bid for a designated employee

to deliver the bid to Respondent the following day. No one

assisted the vice-president in sealing the bid. The designated

employee delivered Petitioner's sealed bid to Respondent the next

day. The bid remained sealed until Respondent opened the bid,

along with all the other bids, at the bid opening.

12. Respondent opened the sealed bids in accordance with

Respondent's customary procedure for bid openings. All of the

bidders attended the bid opening in the same room. One of

Respondent's employees opened each sealed bid in front of the

bidders and verbally relayed pertinent information from each bid

to a second employee a few feet away who entered the information

into an Excel spreadsheet on a computer. The information

included the name, address, and contact information for each

bidder; bid price information; and whether the bid included a

signed Addendum.

13. Respondent's two employees at the bid opening

specifically recalled the announcement that Petitioner's bid did

not include a signed Addendum. Members of the audience at the

bid opening corroborated the testimony of Respondent's two

employees. Their testimony was credible and persuasive.

14. After Respondent opened the bids, the employee who had

recorded the information in the spreadsheet reviewed each bid to

verify the accuracy of the information in the spreadsheet. The

employee maintained continuous possession of the bids in the room

where she entered the information into the spreadsheet. A third

employee for Respondent, not present at the bid opening,

subsequently reviewed Petitioner's response and did not find a

signed Addendum. The information in the copies of the

spreadsheet in evidence shows that Petitioner's bid did not

include a signed Addendum.

15. Both the ITB and the Addendum state the requirement for

each bidder to include a signed Addendum with the bid. The ITB

states, in relevant part:

. . . prior to submitting the bid, it shall

be the sole responsibility of each bidder to

contact the Purchasing Office at (941) 486-

2183 to determine if addenda were issued and,

if so, to obtain such addenda for attachment

to the bid. (emphasis in original).

Similarly, the Addendum, states in relevant part: " PLEASE EXECUTE

THIS FORM AND ENCLOSE IN THE SEALED ENVELOPE WITH YOUR BID

RESPONSE. " (emphasis in original).

16. The requirement for a signed Addendum is a material

requirement for a bid to be responsive. The information in the

Addendum has a direct affect on the prices to be charged to

Respondent by a vendor in terms of the hourly rates for services

and the permissible costs that a bidder may pass through to

Respondent. The information ensured the fairness of the ITB and

assured the bids Respondent received were based on similar

assumptions and methods of computation. The requirement for a

signed Addendum assured that each bidder had read the Addendum.

17. Respondent's proposed award of the bid to the two

successful bidders is reasonable. The two bids are the two

lowest priced bids.

CONCLUSIONS OF LAW

18. DOAH has jurisdiction over the parties and subject

(2003). DOAH provided the parties with adequate notice of the

administrative hearing.

19. Petitioner has the burden of proving a valid ground for

invalidating the proposed agency action. State Contracting and

Engineering Corporation v. Department of Transportation , 709 So.

2d 607, 609 (Fla. 1st DCA 1998). Petitioner must show that the

proposed agency action is clearly erroneous, contrary to

competition, arbitrary, or capricious. Id. ; see also

§ 120.57(3)(f), Fla. Stat. (2003)

20. For reasons stated in the Findings of Fact, Petitioner

did not satisfy its burden of proof. Petitioner omitted a signed

Addendum from its bid, Respondent required each bid to include a

signed Addendum, and the requirement for a signed Addendum was

material. The proposed award of the bid to two other bidders is

reasonable.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that Respondent issue a final order dismissing

the protest.

DONE AND ENTERED this 27th day of August, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee 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 27th day of August, 2004.

COPIES FURNISHED :

John R. Smith

Hill York Service Corporation

2427 Porter Lake Drive, Suite 101

Sarasota, Florida 34240

Arthur S. Hardy, Esquire

Matthews, Eastmoore, Hardy,

Crauwels & Garcia, P.A.

Post Office Box 49377

Sarasota, Florida 34230-6377

Dr. Gary W. Norris, Superintendent

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231-3304

Honorable Jim Horne

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399-0400

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.