07-004774BID Superior Landscaping And Lawn Service, Inc. vs. Walnut Creek Community Development District Status: Closed DOAH Final Order on Thursday, January 24, 2008.

Summary: Petitioner proved that the community development district failed to exercise reasonable judgment, as required by its rule, in rejecting the protestor`s bid in favor of a higher bid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAINGUY ENVIRONMENTAL CARE, INC., )

d/b/a MAINGUY LANDSCAPE SERVICES, )

)

Petitioner, )

)

vs. )

)

WALNUT CREEK COMMUNITY )

DEVELOPMENT DISTRICT, )

) Case No. 07-4753BID

Respondent, )

)

and )

)

SQUIRES ENTERPRISES, INC., )

d/b/a TURF MANAGEMENT, )

)

Intervenor. )

__________________________________)

)

SUPERIOR LANDSCAPING AND LAWN )

SERVICE, INC., )

)

Petitioner, )

)

vs. ) Case No. 07-4753BID

)

WALNUT CREEK COMMUNITY )

DEVELOPMENT DISTRICT, )

)

)

Respondent, )

)

and )

)

SQUIRES ENTERPRISES, INC., )

d/b/a TURF MANAGEMENT, )

)

Intervenor. )

)

__________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Fort

Lauderdale, Florida, on November 8, 2007.

APPEARANCES

For Mainguy Landscape Services:

Mark Dearman

Dearman & Gerson, P.A.

8551 West Sunrise Boulevard, Suite 300

Plantation, Florida 33322

For Superior Landscaping and Lawn Service, Inc.:

Eddie Cora

Qualified Representative

Superior Landscaping

and Lawn Service, Inc.

Post Office Box 35-0095

Miami, Florida 33135

For Walnut Creek Community Development District:

Michael J. Pawelczyk

Billing, Cochran, Heath, Lyles,

Mauro & Anderson, P.A.

888 Southeast Third Avenue, Suite 301

Fort Lauderdale, Florida 33316

For Turf Management:

David Waddell

Qualified Representative

Turf Management

12600 Southwest 125th Avenue

Miami, Florida 33186

STATEMENT OF THE ISSUE

The issue is whether Walnut Creek's decision to award a

landscaping contract to Turf Management is arbitrary or

capricious.

PRELIMINARY STATEMENT

By Petition for Formal Administrative Hearing and Formal

Written Protest dated August 27, 2007, Mainguy Landscape

Services formally protested the decision of Walnut Creek

Community Development District to award a landscape maintenance

contract to Turf Management as contrary to governing statutes,

the bid specifications, arbitrary, capricious, and an abuse of

discretion. In its petition, Mainguy requests an order

recommending the award of the contract to it.

By letter dated August 17, 2007, Superior Landscaping and

Lawn Service, Inc., formally protested the same decision of the

Walnut Creek Community Development District.

The proposed winning bidder, Turf Management, later

intervened in these cases, which were consolidated prior to

final hearing.

At the hearing, Mainguy Landscape Services called one

witness, and Walnut Creek Community Development District called

one witness. The parties offered Joint Exhibits 1-10, and

Walnut Creek Community Development District offered Walnut Creek

Exhibit 1. The Administrative Law Judge admitted all of these

exhibits. After the hearing, for the reason set forth below,

the Administrative Law Judge added ALJ Exhibit 1, which was a

demonstrative exhibit, to which no party had objected at the

hearing, depicting all of the lots of the Walnut Creek Community

Development District.

The court reporter filed the transcript on December 3,

2007. All of the parties except Superior Landscaping and Lawn

Service, Inc., filed proposed recommended orders.

FINDINGS OF FACT

1. Effective June 7, 2007, by Ordinance No. 1339, The City

of Pembroke Pines, Florida established the Walnut Creek

Community Development District (Walnut Creek).

2. By an invitation to bid, entitled Bid Specifications

for Landscape Maintenance of Rights-of-Way, Water Management

Areas and Similar Planting Areas within the District," dated

June 2007 (ITB), Walnut Creek announced that it would accept

bids for the work described in the ITB. ITB Section 5 describes

the work, which is to furnish all labor and materials "to

perform complete maintenance of landscape area . . .."

3. ITB Section 5 details maintenance requirements, such as

a mowing height of three inches, the use of rotary mowers with

sharp blades, 40 mowings of Floratam grass, all mowing to take

place on Thursdays, and specified fertilization schedules based

on the type of grass being fertilized.

4. Two ITB provisions were of particular interest at the

hearing. ITB Section 10.b.5 addresses annuals and provides:

"Annuals shall be replaced three times during the year in the

months of October, February and June . . . ." ITB Section 12

provides: "Contractor shall respond to District Resident

Project Representative within twenty-four (24) hours to remove

storm damage debris."

5. The ITB bid form, on which bidders were to write their

prices, contradicts the statement in ITB Section 10.b.5 because

it contains a line for "4[-inch] annuals 4 x a year." At a

mandatory prebid conference conducted prior to the deadline for

submitting bids, a consultant retained by Walnut Creek to assist

in the bid process clarified that the contract requires four

plantings of 2000 annuals annually, for a total of 8000 annuals

per year. Although Walnut Creek did not memorialize this

clarification that was announced at the prebid conference, any

resulting confusion among prospective bidders has proved to be

immaterial.

6. A third ITB provision is also of especial importance.

ITB Section 1.08 requires that bidders enclose with their bids a

description of the educational background and professional

experience of owners, supervisors, and key employees; a list of

"similar contracts for landscape maintenance now held by your

firm" (with a definition of "similar contracts" as "residential

communities, similar or greater in size, the nature, extent and

variety of landscaping installed and maintained within the

community, to that of Walnut Creek, with annual contract amounts

at or in excess of $200,000") and customer contacts for these

contracts; an undertaking to assign only "fully trained

personnel" to the contract; and other "satisfactory evidence" of

"experience in like work" and "the necessary organization,

capital, equipment and machinery to complete the work to the

satisfaction of the Owner . . . ."

7. By written Addendum, Walnut Creek clarified the

requirement of "similar contracts" by limiting the comparable

landscape maintenance service to "residential or mixed-use

developments of similar size to the District or greater and

which require a similar level of maintenance and maintenance of

plant and landscaping material similar to [that] found on

District property . . . ."

8. ITB Section 1.10 provides that Walnut Creek reserves

the right to reject any and all bids, "with or without cause,"

and to waive technical errors and informalities." ITB Section

1.11 provides that Walnut Creek will award the contract, if it

is awarded, to the:

lowest responsive and responsible high

quality Bidder whose qualifications indicate

the award will be in the best interest of

the Owner and whose proposal shall comply

with the requirements of these

specifications. In no case will the award

be made until all necessary investigations

have been made into the responsibility of

the Bidder to do the work and to have the

necessary organization, capital and

equipment to carry out the provisions of the

contract to the satisfaction of the Owner

. . . .

9. ITB Section 2.07(3) states: "In the event that there

is a discrepancy on the Proposal Form due to the unit price

extensions or additions, the corrected extensions and additions

shall be used to determine the project bid amount."

10. ITB Section 2.14.3 provides:

The Contract will be awarded to the lowest

responsive and responsible high quality

Bidder that best serves the interest of the

Owner. The following elements, in addition

to those noted in the Contract Documents,

will be considered:

a. Whether each Bidder:

1. Maintains a permanent place of

business; and

2. Has adequate plant, machinery[,]

manpower and equipment, and [sic] to do the

Work properly, expeditiously and in a high

quality manner; and

3. Has suitable financial backing

status to allow him to meet the obligations

as outlined in and incident to the Work; and

4. Has successful contractual and

technical experience in Work in Similar

Contracts, size, and scope in Broward County

and/or surrounding areas; and

5. Holds all valid necessary state,

county, and local licenses or certificates

of competency covering all operations of the

Bidder and the Work required under the

Contract Documents[; and]

6. Has evidence that all the

Subcontractors he proposes to use hold all

valid necessary state, county and local

licenses or certificates of competency

covering all operations of said

Subcontractors.

a. The amount of Work each Bidder

intends to perform with his own organization

and the amount of Work he intends to

Subcontract.

b. The qualifications of the

Subcontractors that the Bidder proposes to

use.

c. The Owner also reserves the

right to reject the Proposal of a Bidder who

has previously failed to perform properly or

to complete contracts of a similar nature on

and in a competent and high quality manner.

11. ITB Section 2.18 states that the term of the contract

will be three years. ITB Section 2.19 provides:

The Contractor shall at all times enforce

strict discipline and good order among his

employees and the employees of any

subcontractors, and shall not employ on the

Work an unfit person or anyone not skilled

in the Work assigned to him. . . .

12. At present, Turf Management has the contract with

Walnut Creek to maintain the landscaping under its jurisdiction

and has the contract with the Walnut Creek homeowners'

association, which is a separate entity, to maintain the

landscaping under its jurisdiction. These two areas often exist

side-by-side throughout the development. For about four years,

Turf Management has had the contract with Walnut Creek, which

was unaware, until the subject procurement, of the legal

requirement that it obtain these services by competitive

bidding.

13. There is no dispute that all bidders timely submitted

their bids. The four apparent lowest bids received by Walnut

Creek were, in order from lowest to highest, Landscape Service

Professionals, Mainguy, Superior Landscaping, and Turf

Management. Landscape Service Professionals did not include

with its bid any similar contracts, so its bid was found to be

nonresponsive. Landscape Service Professionals has not

protested the proposed award or intervened in these cases, so

its bid is not further considered in this recommended order.

14. On its face, the bid of Superior failed to include

references to similar contracts. The references in Superior's

bid are an impressive array of governmental agencies and public

entities, as well as a single Marriott hotel, but not one is a

residential development of any kind. This was a material

variance from the ITB that rendered Superior's bid unresponsive.

15. The bid of Turf Management includes one similar

contract--that of Walnut Creek. However, of the remaining four

references, two are clearly commercial or industrial (Best

Equipment and Hugh[es?] Supply), one is unclear as to its nature

but does not appear to be residential ("Lesco"), and one is

residential, but with no indication as to size ("Pembroke Isles

HOA [Homeowners Association]").

16. The issue of the size of Walnut Creek emerges when

considering Mainguy's bid, as Superior's bid contained no

residential references and the only potentially similar contract

in Turf Management's bid was its existing Walnut Creek contract.

Nothing in the ITB supplies the size of Walnut Creek, by

population or area to be landscaped. There is an incidental

statement by a Board member, as noted below, of 985 homeowners

in Walnut Creek. This fact is generally reinforced by the map

of Walnut Creek that is ALJ Exhibit 1, which depicts

approximately 893 lots.

17. The bid of Mainguy includes one similar contract--that

of Inverrary Association, which represents over 8000 units and

17,000 residents. However, of the remaining 12 references,

three are commercial (Broward Mall, Lakeside Office Center, and

Town Center at Boca Raton) and nine are residential, but either

smaller than Walnut Creek (Versailles at Wellington with 450

single family homes and Victoria Grove with 617 single-family

homes) or of an unspecified size.

18. Except for some mention of Superior's failure to

identify similar contracts in its bid, neither the Board during

its deliberations nor the parties and witnesses during the

hearing addressed these variances from the ITB, which clearly

requires "similar contracts," implying more than one. However,

there is a considerable difference between Superior's bid,

which, on its face, cites no similar contracts, and the bids of

Turf Management and Mainguy, which, on their face, cite one such

contract each. Further, the consultant checked Mainguy's

references prior to the Board meetings and found similar

"contracts." Under the circumstances, the failure of these two

bids to cite more than one similar contract were minor

irregularities or technical errors that Walnut Creek could, and

did, waive. The errors themselves and their correction

conferred no competitive advantage on Mainguy and Turf

Management.

19. The bid forms submitted by Mainguy, Superior, and Turf

Management were also flawed in their treatment of annuals.

Mainguy's bid form showed a unit price of $1.75 for the first

two years, but multiplied this unit price by 6000 plants each

year; for the third year, the total suggested that Mainguy

raised the unit price to about $1.79 per plant, which, again, it

multiplied by only 6000 plants. Superior's bid form showed a

unit price of $2.25 the first year, $2.35 the second year, and

$2.45 the third year, but multiplied each unit price by only

2000 plants for each year. Turf Management's bid showed a unit

price of $1.25 for the first year, $1.31 for the second year,

and $1.38 for the third year, but never multiplied these unit

prices by anything.

20. Pursuant to ITB Section 2.07(3), the consultant

tabulated the bids by extending the unit prices proposed by each

bidder (and correcting a mistake in arithmetic by Superior). As

a result, Mainguy's bid was $1,246,494, Superior's bid was

$1,249,318, and Turf Management's bid was $1,283,789

21. Ignoring its own flaw in extending the annual unit

prices, Superior cited Mainguy's failure to extend unit prices

of annuals as the reason why Superior, as the second lowest

bidder, should be awarded the contract rather than Mainguy.

Under the circumstances of these cases, however, the errors or

omissions of each bidder in failing to extend the unit prices of

the annuals correctly were minor irregularities or technical

errors that Walnut Creek could, and did, waive. The errors

themselves and their correction conferred no competitive

advantage on any of the bidders.

22. After the bids had been tabulated, the Board of

Supervisors of Walnut Creek (Board) met on July 24, 2007, to

conduct its business, which included consideration of the

subject bids. At the start of the meeting, the Board recognized

their consultant, who recommended that, based on the bids, the

Board select Mainguy. The consultant stated that he had

contacted two references involving similar contracts, and both

customers were satisfied with their landscape maintenance

service. At the time, the consultant had not checked the

contracts of Superior because Mainguy was the lowest bid. (The

consultant testified that, after both Board meetings, he

contacted the references of Superior and found that the

contracts were not similar; as noted above, it was clear from

the face of the Superior bid that the cited contracts could not

be similar because none of them was residential in nature.)

23. The minutes of the ensuing discussion at the July 24

Board meeting are Joint Exhibit 9. The discussion covers a wide

range of issues. A brief discussion concerned how certain

bidders had combined items, but this did not seem to cause any

Board member a serious problem, at least until just prior to the

award decision, as noted below. The first serious concern was

raised by Board member Gross, who said he had a "problem" with

bringing another company in to do the landscape maintenance when

Turf Management would continue to do the same work for the

adjacent homeowners' association property. When the District

Manager, who is employed by the same company that employs the

consultant, stated that the law required Walnut Creek to go to

bid for this work and then to take the lowest bid from a

qualified bidder, Board member Gross replied that the cost

difference between the Mainguy and Turf Management was $13,000

between "who we prefer to keep and the people who you are

recommending." In fact, the annual difference is a little less

than $13,000, and the difference over the three-year term of the

contract is $37,272.

24. Board member Ross then asked, "the final decision is

ours to make?" Walnut Creek counsel replied, "it is but since

this is a bidding process, you need to have a rationale for

selecting for instance Turf Management over the three other

bidders . . .." Board member Gross responded, "Turf Management

has been here for six years, we're extremely pleased with their

service, we know what we're getting, we know the people who are

here, so for $13,000 a year, that's why I'm trying to understand

what we have, what can we do, like I said, I don't want to have

to bring another company, crew and cross over."

25. After some more discussion, Walnut Creek counsel

summarized by noting that they had heard some explanations as to

why the bids of Landscape Service Professionals and Superior

were not responsive, and, if the Board preferred, they could

defer consideration of the matter until the next meeting, at

which Mainguy and Turf Management could make presentations.

Board member DeFalco then stated that they had just experienced

a year of poor landscaping due to the poor performance of a

former management company unrelated to these cases, and they did

not want to subject the 985 homeowners to another situation like

that. The consultant assured the Board member that that was why

the ITB and contract were so detailed and agreed with the

attorney's suggestion that the Board ask Mainguy and Turf

Management to make presentations. After a brief discussion, in

which Board member DeFalco expressed concern about having

strangers in their property, Board member Gross moved to invite

representatives from Mainguy and Turf Management come to the

next Board meeting and submit to interviews. The motion passed.

26. The minutes of the next meeting of the Board, on

August 7, 2007, are Joint Exhibit 10. The Mainguy

representative, who is president and owner of the company, spoke

first and gave a short history of his company. In response to a

question from Board member Gross about the reasonableness of a

bid item regarding tree trimming, the Mainguy representative

explained that they do substantial work in tree-trimming, but

try not to overbid this item because it is an expensive workers-

compensation classification. He later added that palm trimming

was under a different category in the bid form.

27. The next question, also from Board member Gross,

concerned hurricane response and the presence of two landscape

maintenance companies in the development. Halving the

difference in cost to $20,000 on a $1.2 million contract, Board

member Gross asked what Mainguy's response time would be to

check out the development after a hurricane and why should

residents have two companies present after the hurricane,

especially when Turf Management had been out within four hours

after the storm to clear streets so residents could operate

their vehicles. The Mainguy representative replied somewhat

unresponsively, stressing the quality of the general work that

they do.

28. Given a second chance to answer the hurricane-response

question (or perhaps because he had been interrupted before

finishing his response), the Mainguy representative said that,

in advance of each storm season, they ask each customer to

instruct them as to whether it wants Mainguy to respond

automatically to storms and to provide some financial parameters

for the cost of the debris-clearing work that it wants Mainguy

to perform. The Mainguy representative stated: "As soon as the

wind ceases, you're obviously extraordinarily top priority to us

and our shop is about 20 minutes from here."

29. Board member Gross followed up by asking the Mainguy

representative how they would gear up, in terms of personnel, to

service the Walnut Creek contract. The Mainguy representative

said that they would not have to hire significantly, but

existing ground crews would handle grounds maintenance, and

established trimming crews would handle the tree trimming.

Clearly trying to show that the employees to be assigned to

Walnut Creek would be trained and experienced because he would

draw them from his existing staff, the Mainguy representative

assured the Board that Mainguy would "not be placing any new

crews on your property, that is not our intention, nor do we

have a need to do so."

30. In response to a question from Board member Ross about

hurricane response time, the Mainguy representative stated that

they would rank customers based on the size of the contract, and

Walnut Creek's contract would be of such a magnitude that it

would justify an "immediate response." Board member Ross asked

whether Mainguy would need to hire additional employees to

respond timely to all of its customers, and the Mainguy

representative replied that they had sufficient personnel and

resources to handle the Walnut Creek property, although it was

possible that they would add a small trim crew.

31. Board member DeFalco restated the concern about having

two companies onsite and asked what would happen if a tree fell

half in Walnut Creek property and half in a resident's property.

She added that, in the past, one company had both accounts and

just removed the tree without issues. The Mainguy

representative responded by observing there was a billing

question, perhaps implying that such a distinction would exist

whether one or two companies serviced the development. But

Board member Gross replied that there was still a question, if

there are two companies, about who should be called. Board

member DeFalco agreed with Board member Gross, adding that she

did not want two lawn companies arguing over whose

responsibility it is to remove fallen trees.

32. After the consultant suggested that there was a

logical way to allocate these responsibilities, the Mainguy

representative added that it would be their intent to try to win

the homeowners' association business and they would be highly

motivated.

33. Board member Gross then stated that Mainguy did not

have its own mulching company, although he conceded that none of

the bidders did, but asked whether Mainguy's bid for mulching

was just an "estimated bid, a guesstimate for the property?"

The Mainguy representative replied that it was a firm bid from a

mulching firm.

34. A representative of the property management company

then asked the Mainguy representative if they had any contracts

where there were two landscape maintenance companies onsite.

The Mainguy representative said they did and it was not

uncommon. The consultant asked if Mainguy was familiar with

FEMA reimbursement procedures, and the representative said they

were, although he admitted that they had not participated in a

FEMA reimbursement. In response to an irrigation question from

Board member Gross, the Mainguy representative said that they

were familiar with the requirements and had been at the first

site inspection. This concluded the Mainguy presentation.

35. The Turf Management representative, who was the

president and owner of the company, gave a brief history of his

company, its longstanding employees, and factors that set it

apart from other companies--that is, the presence of a certified

arborist and landscape designer, experience in fertilizer

applications and storm debris cleanup, and an outside supervisor

with whom Walnut Creek has worked for most, if not all, of the

four years that Turf Management had had the contract.

36. After the Turf Management representative had answered

a few questions, counsel to the Board stated that the Board

could find that Turf Management was the lowest responsible

bidder, as long as they had "rational reasons." Counsel

suggested that, if that was what the Board wanted to do, someone

should make a motion and "state for the record what you think

some of those reasons are that you like to go forward with Turf

Management as opposed to Mainguy . . . ."

37. Board member Munju, newly appointed to the Board at

that meeting, spoke first and said that he has seen the job done

by Turf Management, especially after Hurricane Wilma, when they

responded very quickly while the rest of the city struggled with

storm debris. Because the price difference was small, he

preferred Turf Management.

38. Board member Gross spoke next and agreed with Board

member Munju. He said that he found Mainguy's treatment of palm

maintenance confusing, although it does not appear that he was

actually confused as to this part of the Mainguy bid, nor was

there anything confusing about it. Mainguy's bid clearly

included a reasonable cost for trimming and maintaining the palm

trees.

39. Next, the consultant spoke, again naming Mainguy as

the most qualified responsible bidder and suggesting that the

level of comfort that Board members had with Turf Management is

not what Walnut Creek would be paying for. The District Manager

spoke next, reminding the Board that the difference between the

two bids was about $40,000 over three years. Counsel then

confirmed with them that they had made no substantive changes

when tabulating the bids.

40. At this point, Board member Ross moved to table the

question until they could visit some of Mainguy's properties.

Board member Gross said that he was not going to Palm Beach

County to see their work. After a comment by the District

Manager, Board member Gross said, "There's a motion on the floor

right now. You made a motion to approve who?" Board member

Munju replied, "Yes, I made a motion to approve Turf

Management." Board member Gross answered, "Ok." Without

further discussion, the motion carried unanimously to accept the

bid and proposal of Turf Management.

41. The minutes reveal that, in response to the advice of

its counsel to identify "some" of the reasons for selecting Turf

Management over Mainguy, the Board identified two reasons:

1) Turf Management's demonstrated good record in responding to

storm damage and 2) a perceived defect in the Mainguy bid as to

palm maintenance.

42. Walnut Creek's proposed recommended order identifies

the Board's grounds for rejecting the Mainguy bid as:

1) Mainguy could not meet its contractual obligations because it

did not intend to hire additional employees; 2) Mainguy did not

have sufficient experience in responding to storms and

processing claims through FEMA; and 3) two landscape maintenance

contractors within the development presented the potential for

conflicts and an adverse impact on the residents.

43. The grounds identified in Walnut Creek's proposed

recommended order reflect objections raised at various points

during the Board deliberations over the bids, although, except

for experience in responding to storms, these objections were

not voiced during the brief time that the Board actually

discussed the two bids after the presentations and before

accepting the Turf Management bid. This Recommended Order

addresses all of the objections raised at various times to the

Mainguy bid, even though the Board did not raise several of them

brief discussion preceding its vote to accept the Turf

Management bid. Therefore, the grounds for implicitly rejecting

the Mainguy bid are: 1) perceived confusion as to the treatment

of palm tree maintenance costs; 2) inadequate staffing due to

Mainguy's stated intention not to hire new employees (except

possibly a small trim crew); 3) insufficient experience

responding to storms and processing FEMA reimbursement claims;

and 4) the appearance of a second landscape maintenance

contractor on the Walnut Creek property with the potential for

conflicts and adverse impacts on the residents.

44. As noted above, the Board's ground for rejecting the

Superior bid was that it was unresponsive for its failure to

include similar contracts. The consultant testified that he

later checked the Superior references and confirmed that the

contracts were not similar. Notwithstanding the concession by

Turf Management in its proposed recommended order that all three

bidders were qualified to perform the work, the Board properly

concluded that Superior's bid, on its face, was nonresponsive

and implicitly rejected it for this reason.

45. The Mainguy bid properly accounted for the expenses

associated with maintaining palm trees, and the Mainguy

representative clearly explained this fact to the Board. To

attempt to justify rejecting the Mainguy bid on this ground is

irrational and completely unsupported by the record.

46. It is also irrational and unsupported by the record to

reject the Mainguy bid due to the failure of the bid, or the

Mainguy representative at the Board meeting, to undertake to

hire new employees. The ITB does not require that a bidder hire

new employees for this contract. The requirement, in ITB

Section 1.08, of trained staff somewhat militates against such a

requirement. A bidder may have overstaffed in anticipation of

new work or decided to terminate a less profitable contract, if

it won the Walnut Creek contract.

47. It is not irrational to prefer a contractor that has

substantial experience in responding to storm damage and

experience in filing FEMA reimbursement claims. However, the

ITB requires neither, although it addresses this subject by

requiring only that the contractor respond to Walnut Creek

within 24 hours after a storm. Mainguy has accepted this

contractual requirement. When asked about it, the Mainguy

representative explained, logically enough, that Mainguy could

respond quickly because it was located only 20 minutes from

Walnut Creek and would respond quickly because the Walnut Creek

contract would be a very large one for his company, which would

be sufficient motivation to serve Walnut Creek first after a

storm has cleared the area.

48. It is not necessary to consider the rationality of

preferring that a single contractor serve Walnut Creek and the

homeowners' association. The ITB does not contain this

requirement, which would limit the potential bidders to one,

Turf Management. As noted in the Conclusions of Law, under the

present circumstances at least, a requirement of this type by

Walnut Creek would essentially permit it to circumvent the

statutory requirement to obtain these services by competitive

bid.

49. Mainguy and Superior timely protested Walnut Creek's

decision to award the contract to Turf Management. Walnut Creek

then contracted with the Division of Administrative Hearings to

conduct the hearing and issue a recommended order.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2007). Walnut Creek has entered into a contract for

the Division of Administrative Hearings to conduct this hearing

and issue a recommended order.

51. The represented parties both opine that these cases

are governed by Section 120.57(3), Florida Statutes. However,

Walnut Creek does not meet the definition of "agency," as set

forth in Sections 120.52(1) and 120.57(3), Florida Statutes.

Under the circumstances, of these cases, though, the results

would be the same under Section 120.57(3), Florida Statutes, and

the authority discussed immediately below.

52. Section 190.033(3), Florida Statutes, requires

community development districts to procure by competitive

solicitation contracts in excess of $150,000 for "maintenance

services for any district facility or project." This statute

requires each district to adopt rules, policies, or procedures

"establishing competitive solicitation procedures for

maintenance services."

53. By Rule of Procedure (Rule) 1.12, Walnut Creek adopted

a rule of procedure, pursuant to the mandate set forth in

Section 190.033(3), Florida Statutes. Rule 1.12 provides that

Walnut Creek "may, in its sole discretion, award the contract

[for maintenance services] according to the Rules in this

subsection in lieu of separately bidding for maintenance, goods,

supplies or materials, and contractual services."

54. Rule 1.12(2) identifies the procedure that Walnut

Creek will use in putting contracts out to bid. Rule 1.12(2)(c)

details specific requirements imposed upon prospective bidders,

such as holding the required licensure and meeting "any

prequalification requirements set forth in the Invitation to Bid

or Request for Proposal." Rule 1.12(2)(c) concludes: "Evidence

of compliance with this provision of the Rules shall be

submitted pursuant to the requirements of the Invitation to Bid

or Request for Proposal."

55. Rule 1.12(2)(d) states: "Bids and proposals shall be

evaluated in accordance with the invitation or request and these

Rules." Rule 1.12(2)(e) adds: "To assist in the determination

of whether a prospective bidder will be qualified, the District

Representative may invite public presentation by firms (prior to

the date for submitting bids) regarding their qualifications,

approach to the project, and ability to perform the contract in

all respects."

56. Rule 1.12(2)(f) provides:

In determining whether a bidder is

qualified, the District may consider all

relevant information, including but not

limited to the following:

1. The ability and adequacy of the

bidder's personnel.

2. Past or current performance for the

District and with respect to other contracts

of the bidder.

3. Ability to meet time and budget

requirements.

4. Geographic location of the bidder's

headquarters or office in relation to the

project.

5. Current and projected workloads of

the bidder.

6. Whether the firm is a certified

minority business enterprise.

7. Volume of work previously awarded to

the bidder.

8. Additional factors described in the

Invitation to Bid or Request for Proposal.

57. Rule 1.12(2)(g) states: "In evaluating the bids or

proposals, the Board shall have the right to accept that bid

which the Board determines, in the exercise of its reasonable

judgement, is in the best interest of the District, or the Board

may reject all bids because they are too high or because the

Board determines it is in the best interests of the District to

reject all bids."

58. The rules clearly apply, in conjunction with the ITB,

to the present procurement. The key provision among the rules

is the last cited: the Board must exercise "reasonable

judgement" in selecting the winning bid. Similarly, under

Section 120.57(3), Florida Statutes, the issue is whether the

proposed award is clearly erroneous, contrary to competition,

arbitrary, or capricious. Regardless of other provisions

vesting discretion in the Board to act in the best interest of

Walnut Creek, the Board must exercise its judgement reasonably,

as its counsel advised, and in recognition of the legal

requirement, as noted by its counsel, consultant, and District

Manager, that the Board obtain these landscape maintenance

services by competitive bidding.

59. Pursuant to Section 120.57(3), Florida Statutes,

Mainguy and Superior have the burden of proof in this de novo

proceeding.

60. As noted above, factually, two grounds for the

rejection of the Mainguy bid were clearly erroneous, contrary to

competition, arbitrary, capricious, and not an exercise of

reasonable judgement. These grounds are Mainguy's treatment of

palm tree expenses and failure to specify that it will hire new

employees to service the Walnut Creek contract.

61. Factually and legally, two grounds for the rejection

of the Mainguy bid were clearly erroneous, contrary to

competition, arbitrary, capricious, and not an exercise of

reasonable judgement. These grounds are Mainguy's experience

responding to storm damage and filing FEMA reimbursement claims.

Rule 1.12(2)(f) authorizes Walnut Creek to consider certain

factors besides those set forth in the ITB in awarding the

contract. Pertinent to these two grounds are consideration of

the ability and adequacy of Mainguy's personnel and its current

and projected workloads. However, the ITB actually addresses

these items by requiring that bidders be able to respond within

24 hours of the storm. By adding to the procurement these two

criteria, when the ITB specified only a 24-hour response, the

Board effectively changed the ITB after bids were submitted.

This act is contrary to competition and an unreasonable exercise

of discretion because, under the circumstances of these cases,

it permits Walnut Creek essentially to pick someone other than

the low bidder.

62. The last ground is the avoidance of having two

contractors perform landscape maintenance within the

development. A requirement of a single contractor is contrary

to competition and unlawful due to: 1) the presence of Turf

Management as the sole contractor for both properties and 2) the

statutory requirement that Walnut Creek solicit bids for the

work. Under the facts of these cases, requiring one contractor

to perform the landscape maintenance at both properties would

defeat the statutory mandate that Walnut Creek obtain these

services by competitive bid.

63. It is clear from the minutes of the two meetings that

the Board members do not want to change contractors, and all of

the cited grounds and objections to Mainguy reflect a simple

discomfort with changing contractors, especially because Turf

Management has performed well. Although bid law permits an

entity procuring services to place reasonable weight on the

experience of an existing contractor, the emphasis cannot be so

great as to frustrate the statutory mandate to procure services

competitively, and the specific experience criteria must be

stated in advance in the rules or ITB, so that prospective

bidders may make informed decisions whether to protest the

specifications or participate in the procurement. The

understandable desires of the Board members to avoid change

conflict with both of these principles. Mainguy has proved

that, in rejecting its bid, the Board was clearly erroneous,

acted contrary to competition, arbitrarily and capriciously, and

did not exercise reasonable judgement.

64. The sole relief that the Administrative Law Judge can

provide is a recommendation that Board enter a final order

dismissing the bid protest of Superior and sustaining the bid

protest of Mainguy. As the courts have noted, it is left to the

sound discretion of the procuring entity to determine whether to

proceed with the current procurement or reject all bids and

perhaps start over. Procacci v. Department of Health and

Rehabilitative Services , 603 So. 2d 1299 (Fla. 1st DCA 1992);

Moore v. Department of Health and Rehabilitative Services , 596

So. 2nd 759 (Fla. 1st DCA 1992); and Courtenay v. Department of

Health and Rehabilitative Services , 581 So. 2d 621 (Fla. 5th DCA

1991).

RECOMMENDATION

It is

RECOMMENDED that the Walnut Creek Community Development

District enter a final order dismissing the protest of Superior

Landscaping and Lawn Service, Inc., granting the protest of

Mainguy Landscape Services, and taking such further action as is

permitted by law.

DONE AND ENTERED this 21st day of December, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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 21st day of December, 2007.

COPIES FURNISHED:

Gerald L. Knight

Billing, Cochran, Heath, Lyles

Mauro & Anderson, P.A.

Post Office Box 21627

Fort Lauderdale, Florida 33335-1627

Michael J. Pawelczyk

Billing, Cochran, Heath, Lyles,

Mauro & Anderson, P.A.

888 Southeast Third Avenue, Suite 301

Fort Lauderdale, Florida 33316

Jeffrey S. Siniawsky

Jeffrey S. Siniawsky, P.A.

8551 West Sunrise Boulevard, Suite 300

Plantation, Florida 33322

David Waddell

Turf Management

12600 Southwest 125th Avenue

Miami, Florida 33186

Mark Dearman

Dearman & Gerson, P.A.

8551 West Sunrise Boulevard, Suite 300

Plantation, Florida 33322

Eddie Cora

Qualified Representative

Superior Landscaping

and Lawn Service, Inc.

Post Office Box 35-0095

Miami, Florida 33135

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 must be filed with the agency that

will issue the final order in this case.