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


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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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8MAINGUY ENVIRONMENTAL CARE, INC., )

13d/b/a MAINGUY LANDSCAPE SERVICES, )

18)

19Petitioner, )

21)

22vs. )

24)

25WALNUT CREEK COMMUNITY )

29DEVELOPMENT DISTRICT, )

32) Case No. 07-4753BID

36Respondent, )

38)

39and )

41)

42SQUIRES ENTERPRISES, INC., )

46d/b/a TURF MANAGEMENT, )

50)

51Intervenor. )

53__________________________________)

54)

55SUPERIOR LANDSCAPING AND LAWN )

60SERVICE, INC., )

63)

64Petitioner, )

66)

67vs. ) Case No. 07-4753BID

72)

73WALNUT CREEK COMMUNITY )

77DEVELOPMENT DISTRICT, )

80)

81)

82Respondent, )

84)

85and )

87)

88SQUIRES ENTERPRISES, INC., )

92d/b/a TURF MANAGEMENT, )

96)

97Intervenor. )

99)

100__________________________________)

101RECOMMENDED ORDER

103Robert E. Meale, Administrative Law Judge of the Division

112of Administrative Hearings, conducted the final hearing in Fort

121Lauderdale, Florida, on November 8, 2007.

127APPEARANCES

128For Mainguy Landscape Services:

132Mark Dearman

134Dearman & Gerson, P.A.

1388551 West Sunrise Boulevard, Suite 300

144Plantation, Florida 33322

147For Superior Landscaping and Lawn Service, Inc.:

154Eddie Cora

156Qualified Representative

158Superior Landscaping

160and Lawn Service, Inc.

164Post Office Box 35-0095

168Miami, Florida 33135

171For Walnut Creek Community Development District:

177Michael J. Pawelczyk

180Billing, Cochran, Heath, Lyles,

184Mauro & Anderson, P.A.

188888 Southeast Third Avenue, Suite 301

194Fort Lauderdale, Florida 33316

198For Turf Management:

201David Waddell

203Qualified Representative

205Turf Management

20712600 Southwest 125th Avenue

211Miami, Florida 33186

214STATEMENT OF THE ISSUE

218The issue is whether Walnut Creek's decision to award a

228landscaping contract to Turf Management is arbitrary or

236capricious.

237PRELIMINARY STATEMENT

239By Petition for Formal Administrative Hearing and Formal

247Written Protest dated August 27, 2007, Mainguy Landscape

255Services formally protested the decision of Walnut Creek

263Community Development District to award a landscape maintenance

271contract to Turf Management as contrary to governing statutes,

280the bid specifications, arbitrary, capricious, and an abuse of

289discretion. In its petition, Mainguy requests an order

297recommending the award of the contract to it.

305By letter dated August 17, 2007, Superior Landscaping and

314Lawn Service, Inc., formally protested the same decision of the

324Walnut Creek Community Development District.

329The proposed winning bidder, Turf Management, later

336intervened in these cases, which were consolidated prior to

345final hearing.

347At the hearing, Mainguy Landscape Services called one

355witness, and Walnut Creek Community Development District called

363one witness. The parties offered Joint Exhibits 1-10, and

372Walnut Creek Community Development District offered Walnut Creek

380Exhibit 1. The Administrative Law Judge admitted all of these

390exhibits. After the hearing, for the reason set forth below,

400the Administrative Law Judge added ALJ Exhibit 1, which was a

411demonstrative exhibit, to which no party had objected at the

421hearing, depicting all of the lots of the Walnut Creek Community

432Development District.

434The court reporter filed the transcript on December 3,

4432007. All of the parties except Superior Landscaping and Lawn

453Service, Inc., filed proposed recommended orders.

459FINDINGS OF FACT

4621. Effective June 7, 2007, by Ordinance No. 1339, The City

473of Pembroke Pines, Florida established the Walnut Creek

481Community Development District (Walnut Creek).

4862. By an invitation to bid, entitled Bid Specifications

495for Landscape Maintenance of Rights-of-Way, Water Management

502Areas and Similar Planting Areas within the District," dated

511June 2007 (ITB), Walnut Creek announced that it would accept

521bids for the work described in the ITB. ITB Section 5 describes

533the work, which is to furnish all labor and materials "to

544perform complete maintenance of landscape area . . .."

5533. ITB Section 5 details maintenance requirements, such as

562a mowing height of three inches, the use of rotary mowers with

574sharp blades, 40 mowings of Floratam grass, all mowing to take

585place on Thursdays, and specified fertilization schedules based

593on the type of grass being fertilized.

6004. Two ITB provisions were of particular interest at the

610hearing. ITB Section 10.b.5 addresses annuals and provides:

"618Annuals shall be replaced three times during the year in the

629months of October, February and June . . . ." ITB Section 12

642provides: "Contractor shall respond to District Resident

649Project Representative within twenty-four (24) hours to remove

657storm damage debris."

6605. The ITB bid form, on which bidders were to write their

672prices, contradicts the statement in ITB Section 10.b.5 because

681it contains a line for "4[-inch] annuals 4 x a year." At a

694mandatory prebid conference conducted prior to the deadline for

703submitting bids, a consultant retained by Walnut Creek to assist

713in the bid process clarified that the contract requires four

723plantings of 2000 annuals annually, for a total of 8000 annuals

734per year. Although Walnut Creek did not memorialize this

743clarification that was announced at the prebid conference, any

752resulting confusion among prospective bidders has proved to be

761immaterial.

7626. A third ITB provision is also of especial importance.

772ITB Section 1.08 requires that bidders enclose with their bids a

783description of the educational background and professional

790experience of owners, supervisors, and key employees; a list of

"800similar contracts for landscape maintenance now held by your

809firm" (with a definition of "similar contracts" as "residential

818communities, similar or greater in size, the nature, extent and

828variety of landscaping installed and maintained within the

836community, to that of Walnut Creek, with annual contract amounts

846at or in excess of $200,000") and customer contacts for these

859contracts; an undertaking to assign only "fully trained

867personnel" to the contract; and other "satisfactory evidence" of

"876experience in like work" and "the necessary organization,

884capital, equipment and machinery to complete the work to the

894satisfaction of the Owner . . . ."

9027. By written Addendum, Walnut Creek clarified the

910requirement of "similar contracts" by limiting the comparable

918landscape maintenance service to "residential or mixed-use

925developments of similar size to the District or greater and

935which require a similar level of maintenance and maintenance of

945plant and landscaping material similar to [that] found on

954District property . . . ."

9608. ITB Section 1.10 provides that Walnut Creek reserves

969the right to reject any and all bids, "with or without cause,"

981and to waive technical errors and informalities." ITB Section

9901.11 provides that Walnut Creek will award the contract, if it

1001is awarded, to the:

1005lowest responsive and responsible high

1010quality Bidder whose qualifications indicate

1015the award will be in the best interest of

1024the Owner and whose proposal shall comply

1031with the requirements of these

1036specifications. In no case will the award

1043be made until all necessary investigations

1049have been made into the responsibility of

1056the Bidder to do the work and to have the

1066necessary organization, capital and

1070equipment to carry out the provisions of the

1078contract to the satisfaction of the Owner

1085. . . .

10899. ITB Section 2.07(3) states: "In the event that there

1099is a discrepancy on the Proposal Form due to the unit price

1111extensions or additions, the corrected extensions and additions

1119shall be used to determine the project bid amount."

112810. ITB Section 2.14.3 provides:

1133The Contract will be awarded to the lowest

1141responsive and responsible high quality

1146Bidder that best serves the interest of the

1154Owner. The following elements, in addition

1160to those noted in the Contract Documents,

1167will be considered:

1170a. Whether each Bidder:

11741. Maintains a permanent place of

1180business; and

11822. Has adequate plant, machinery[,]

1188manpower and equipment, and [sic] to do the

1196Work properly, expeditiously and in a high

1203quality manner; and

12063. Has suitable financial backing

1211status to allow him to meet the obligations

1219as outlined in and incident to the Work; and

12284. Has successful contractual and

1233technical experience in Work in Similar

1239Contracts, size, and scope in Broward County

1246and/or surrounding areas; and

12505. Holds all valid necessary state,

1256county, and local licenses or certificates

1262of competency covering all operations of the

1269Bidder and the Work required under the

1276Contract Documents[; and]

12796. Has evidence that all the

1285Subcontractors he proposes to use hold all

1292valid necessary state, county and local

1298licenses or certificates of competency

1303covering all operations of said

1308Subcontractors.

1309a. The amount of Work each Bidder

1316intends to perform with his own organization

1323and the amount of Work he intends to

1331Subcontract.

1332b. The qualifications of the

1337Subcontractors that the Bidder proposes to

1343use.

1344c. The Owner also reserves the

1350right to reject the Proposal of a Bidder who

1359has previously failed to perform properly or

1366to complete contracts of a similar nature on

1374and in a competent and high quality manner.

138211. ITB Section 2.18 states that the term of the contract

1393will be three years. ITB Section 2.19 provides:

1401The Contractor shall at all times enforce

1408strict discipline and good order among his

1415employees and the employees of any

1421subcontractors, and shall not employ on the

1428Work an unfit person or anyone not skilled

1436in the Work assigned to him. . . .

144512. At present, Turf Management has the contract with

1454Walnut Creek to maintain the landscaping under its jurisdiction

1463and has the contract with the Walnut Creek homeowners'

1472association, which is a separate entity, to maintain the

1481landscaping under its jurisdiction. These two areas often exist

1490side-by-side throughout the development. For about four years,

1498Turf Management has had the contract with Walnut Creek, which

1508was unaware, until the subject procurement, of the legal

1517requirement that it obtain these services by competitive

1525bidding.

152613. There is no dispute that all bidders timely submitted

1536their bids. The four apparent lowest bids received by Walnut

1546Creek were, in order from lowest to highest, Landscape Service

1556Professionals, Mainguy, Superior Landscaping, and Turf

1562Management. Landscape Service Professionals did not include

1569with its bid any similar contracts, so its bid was found to be

1582nonresponsive. Landscape Service Professionals has not

1588protested the proposed award or intervened in these cases, so

1598its bid is not further considered in this recommended order.

160814. On its face, the bid of Superior failed to include

1619references to similar contracts. The references in Superior's

1627bid are an impressive array of governmental agencies and public

1637entities, as well as a single Marriott hotel, but not one is a

1650residential development of any kind. This was a material

1659variance from the ITB that rendered Superior's bid unresponsive.

166815. The bid of Turf Management includes one similar

1677contract--that of Walnut Creek. However, of the remaining four

1686references, two are clearly commercial or industrial (Best

1694Equipment and Hugh[es?] Supply), one is unclear as to its nature

1706but does not appear to be residential ("Lesco"), and one is

1719residential, but with no indication as to size ("Pembroke Isles

1730HOA [Homeowners Association]").

173416. The issue of the size of Walnut Creek emerges when

1745considering Mainguy's bid, as Superior's bid contained no

1753residential references and the only potentially similar contract

1761in Turf Management's bid was its existing Walnut Creek contract.

1771Nothing in the ITB supplies the size of Walnut Creek, by

1782population or area to be landscaped. There is an incidental

1792statement by a Board member, as noted below, of 985 homeowners

1803in Walnut Creek. This fact is generally reinforced by the map

1814of Walnut Creek that is ALJ Exhibit 1, which depicts

1824approximately 893 lots.

182717. The bid of Mainguy includes one similar contract--that

1836of Inverrary Association, which represents over 8000 units and

184517,000 residents. However, of the remaining 12 references,

1854three are commercial (Broward Mall, Lakeside Office Center, and

1863Town Center at Boca Raton) and nine are residential, but either

1874smaller than Walnut Creek (Versailles at Wellington with 450

1883single family homes and Victoria Grove with 617 single-family

1892homes) or of an unspecified size.

189818. Except for some mention of Superior's failure to

1907identify similar contracts in its bid, neither the Board during

1917its deliberations nor the parties and witnesses during the

1926hearing addressed these variances from the ITB, which clearly

1935requires "similar contracts," implying more than one. However,

1943there is a considerable difference between Superior's bid,

1951which, on its face, cites no similar contracts, and the bids of

1963Turf Management and Mainguy, which, on their face, cite one such

1974contract each. Further, the consultant checked Mainguy's

1981references prior to the Board meetings and found similar

"1990contracts." Under the circumstances, the failure of these two

1999bids to cite more than one similar contract were minor

2009irregularities or technical errors that Walnut Creek could, and

2018did, waive. The errors themselves and their correction

2026conferred no competitive advantage on Mainguy and Turf

2034Management.

203519. The bid forms submitted by Mainguy, Superior, and Turf

2045Management were also flawed in their treatment of annuals.

2054Mainguy's bid form showed a unit price of $1.75 for the first

2066two years, but multiplied this unit price by 6000 plants each

2077year; for the third year, the total suggested that Mainguy

2087raised the unit price to about $1.79 per plant, which, again, it

2099multiplied by only 6000 plants. Superior's bid form showed a

2109unit price of $2.25 the first year, $2.35 the second year, and

2121$2.45 the third year, but multiplied each unit price by only

21322000 plants for each year. Turf Management's bid showed a unit

2143price of $1.25 for the first year, $1.31 for the second year,

2155and $1.38 for the third year, but never multiplied these unit

2166prices by anything.

216920. Pursuant to ITB Section 2.07(3), the consultant

2177tabulated the bids by extending the unit prices proposed by each

2188bidder (and correcting a mistake in arithmetic by Superior). As

2198a result, Mainguy's bid was $1,246,494, Superior's bid was

2209$1,249,318, and Turf Management's bid was $1,283,789

222021. Ignoring its own flaw in extending the annual unit

2230prices, Superior cited Mainguy's failure to extend unit prices

2239of annuals as the reason why Superior, as the second lowest

2250bidder, should be awarded the contract rather than Mainguy.

2259Under the circumstances of these cases, however, the errors or

2269omissions of each bidder in failing to extend the unit prices of

2281the annuals correctly were minor irregularities or technical

2289errors that Walnut Creek could, and did, waive. The errors

2299themselves and their correction conferred no competitive

2306advantage on any of the bidders.

231222. After the bids had been tabulated, the Board of

2322Supervisors of Walnut Creek (Board) met on July 24, 2007, to

2333conduct its business, which included consideration of the

2341subject bids. At the start of the meeting, the Board recognized

2352their consultant, who recommended that, based on the bids, the

2362Board select Mainguy. The consultant stated that he had

2371contacted two references involving similar contracts, and both

2379customers were satisfied with their landscape maintenance

2386service. At the time, the consultant had not checked the

2396contracts of Superior because Mainguy was the lowest bid. (The

2406consultant testified that, after both Board meetings, he

2414contacted the references of Superior and found that the

2423contracts were not similar; as noted above, it was clear from

2434the face of the Superior bid that the cited contracts could not

2446be similar because none of them was residential in nature.)

245623. The minutes of the ensuing discussion at the July 24

2467Board meeting are Joint Exhibit 9. The discussion covers a wide

2478range of issues. A brief discussion concerned how certain

2487bidders had combined items, but this did not seem to cause any

2499Board member a serious problem, at least until just prior to the

2511award decision, as noted below. The first serious concern was

2521raised by Board member Gross, who said he had a "problem" with

2533bringing another company in to do the landscape maintenance when

2543Turf Management would continue to do the same work for the

2554adjacent homeowners' association property. When the District

2561Manager, who is employed by the same company that employs the

2572consultant, stated that the law required Walnut Creek to go to

2583bid for this work and then to take the lowest bid from a

2596qualified bidder, Board member Gross replied that the cost

2605difference between the Mainguy and Turf Management was $13,000

2615between "who we prefer to keep and the people who you are

2627recommending." In fact, the annual difference is a little less

2637than $13,000, and the difference over the three-year term of the

2649contract is $37,272.

265324. Board member Ross then asked, "the final decision is

2663ours to make?" Walnut Creek counsel replied, "it is but since

2674this is a bidding process, you need to have a rationale for

2686selecting for instance Turf Management over the three other

2695bidders . . .." Board member Gross responded, "Turf Management

2705has been here for six years, we're extremely pleased with their

2716service, we know what we're getting, we know the people who are

2728here, so for $13,000 a year, that's why I'm trying to understand

2741what we have, what can we do, like I said, I don't want to have

2756to bring another company, crew and cross over."

276425. After some more discussion, Walnut Creek counsel

2772summarized by noting that they had heard some explanations as to

2783why the bids of Landscape Service Professionals and Superior

2792were not responsive, and, if the Board preferred, they could

2802defer consideration of the matter until the next meeting, at

2812which Mainguy and Turf Management could make presentations.

2820Board member DeFalco then stated that they had just experienced

2830a year of poor landscaping due to the poor performance of a

2842former management company unrelated to these cases, and they did

2852not want to subject the 985 homeowners to another situation like

2863that. The consultant assured the Board member that that was why

2874the ITB and contract were so detailed and agreed with the

2885attorney's suggestion that the Board ask Mainguy and Turf

2894Management to make presentations. After a brief discussion, in

2903which Board member DeFalco expressed concern about having

2911strangers in their property, Board member Gross moved to invite

2921representatives from Mainguy and Turf Management come to the

2930next Board meeting and submit to interviews. The motion passed.

294026. The minutes of the next meeting of the Board, on

2951August 7, 2007, are Joint Exhibit 10. The Mainguy

2960representative, who is president and owner of the company, spoke

2970first and gave a short history of his company. In response to a

2983question from Board member Gross about the reasonableness of a

2993bid item regarding tree trimming, the Mainguy representative

3001explained that they do substantial work in tree-trimming, but

3010try not to overbid this item because it is an expensive workers-

3022compensation classification. He later added that palm trimming

3030was under a different category in the bid form.

303927. The next question, also from Board member Gross,

3048concerned hurricane response and the presence of two landscape

3057maintenance companies in the development. Halving the

3064difference in cost to $20,000 on a $1.2 million contract, Board

3076member Gross asked what Mainguy's response time would be to

3086check out the development after a hurricane and why should

3096residents have two companies present after the hurricane,

3104especially when Turf Management had been out within four hours

3114after the storm to clear streets so residents could operate

3124their vehicles. The Mainguy representative replied somewhat

3131unresponsively, stressing the quality of the general work that

3140they do.

314228. Given a second chance to answer the hurricane-response

3151question (or perhaps because he had been interrupted before

3160finishing his response), the Mainguy representative said that,

3168in advance of each storm season, they ask each customer to

3179instruct them as to whether it wants Mainguy to respond

3189automatically to storms and to provide some financial parameters

3198for the cost of the debris-clearing work that it wants Mainguy

3209to perform. The Mainguy representative stated: "As soon as the

3219wind ceases, you're obviously extraordinarily top priority to us

3228and our shop is about 20 minutes from here."

323729. Board member Gross followed up by asking the Mainguy

3247representative how they would gear up, in terms of personnel, to

3258service the Walnut Creek contract. The Mainguy representative

3266said that they would not have to hire significantly, but

3276existing ground crews would handle grounds maintenance, and

3284established trimming crews would handle the tree trimming.

3292Clearly trying to show that the employees to be assigned to

3303Walnut Creek would be trained and experienced because he would

3313draw them from his existing staff, the Mainguy representative

3322assured the Board that Mainguy would "not be placing any new

3333crews on your property, that is not our intention, nor do we

3345have a need to do so."

335130. In response to a question from Board member Ross about

3362hurricane response time, the Mainguy representative stated that

3370they would rank customers based on the size of the contract, and

3382Walnut Creek's contract would be of such a magnitude that it

3393would justify an "immediate response." Board member Ross asked

3402whether Mainguy would need to hire additional employees to

3411respond timely to all of its customers, and the Mainguy

3421representative replied that they had sufficient personnel and

3429resources to handle the Walnut Creek property, although it was

3439possible that they would add a small trim crew.

344831. Board member DeFalco restated the concern about having

3457two companies onsite and asked what would happen if a tree fell

3469half in Walnut Creek property and half in a resident's property.

3480She added that, in the past, one company had both accounts and

3492just removed the tree without issues. The Mainguy

3500representative responded by observing there was a billing

3508question, perhaps implying that such a distinction would exist

3517whether one or two companies serviced the development. But

3526Board member Gross replied that there was still a question, if

3537there are two companies, about who should be called. Board

3547member DeFalco agreed with Board member Gross, adding that she

3557did not want two lawn companies arguing over whose

3566responsibility it is to remove fallen trees.

357332. After the consultant suggested that there was a

3582logical way to allocate these responsibilities, the Mainguy

3590representative added that it would be their intent to try to win

3602the homeowners' association business and they would be highly

3611motivated.

361233. Board member Gross then stated that Mainguy did not

3622have its own mulching company, although he conceded that none of

3633the bidders did, but asked whether Mainguy's bid for mulching

3643was just an "estimated bid, a guesstimate for the property?"

3653The Mainguy representative replied that it was a firm bid from a

3665mulching firm.

366734. A representative of the property management company

3675then asked the Mainguy representative if they had any contracts

3685where there were two landscape maintenance companies onsite.

3693The Mainguy representative said they did and it was not

3703uncommon. The consultant asked if Mainguy was familiar with

3712FEMA reimbursement procedures, and the representative said they

3720were, although he admitted that they had not participated in a

3731FEMA reimbursement. In response to an irrigation question from

3740Board member Gross, the Mainguy representative said that they

3749were familiar with the requirements and had been at the first

3760site inspection. This concluded the Mainguy presentation.

376735. The Turf Management representative, who was the

3775president and owner of the company, gave a brief history of his

3787company, its longstanding employees, and factors that set it

3796apart from other companies--that is, the presence of a certified

3806arborist and landscape designer, experience in fertilizer

3813applications and storm debris cleanup, and an outside supervisor

3822with whom Walnut Creek has worked for most, if not all, of the

3835four years that Turf Management had had the contract.

384436. After the Turf Management representative had answered

3852a few questions, counsel to the Board stated that the Board

3863could find that Turf Management was the lowest responsible

3872bidder, as long as they had "rational reasons." Counsel

3881suggested that, if that was what the Board wanted to do, someone

3893should make a motion and "state for the record what you think

3905some of those reasons are that you like to go forward with Turf

3918Management as opposed to Mainguy . . . ."

392737. Board member Munju, newly appointed to the Board at

3937that meeting, spoke first and said that he has seen the job done

3950by Turf Management, especially after Hurricane Wilma, when they

3959responded very quickly while the rest of the city struggled with

3970storm debris. Because the price difference was small, he

3979preferred Turf Management.

398238. Board member Gross spoke next and agreed with Board

3992member Munju. He said that he found Mainguy's treatment of palm

4003maintenance confusing, although it does not appear that he was

4013actually confused as to this part of the Mainguy bid, nor was

4025there anything confusing about it. Mainguy's bid clearly

4033included a reasonable cost for trimming and maintaining the palm

4043trees.

404439. Next, the consultant spoke, again naming Mainguy as

4053the most qualified responsible bidder and suggesting that the

4062level of comfort that Board members had with Turf Management is

4073not what Walnut Creek would be paying for. The District Manager

4084spoke next, reminding the Board that the difference between the

4094two bids was about $40,000 over three years. Counsel then

4105confirmed with them that they had made no substantive changes

4115when tabulating the bids.

411940. At this point, Board member Ross moved to table the

4130question until they could visit some of Mainguy's properties.

4139Board member Gross said that he was not going to Palm Beach

4151County to see their work. After a comment by the District

4162Manager, Board member Gross said, "There's a motion on the floor

4173right now. You made a motion to approve who?" Board member

4184Munju replied, "Yes, I made a motion to approve Turf

4194Management." Board member Gross answered, "Ok." Without

4201further discussion, the motion carried unanimously to accept the

4210bid and proposal of Turf Management.

421641. The minutes reveal that, in response to the advice of

4227its counsel to identify "some" of the reasons for selecting Turf

4238Management over Mainguy, the Board identified two reasons:

42461) Turf Management's demonstrated good record in responding to

4255storm damage and 2) a perceived defect in the Mainguy bid as to

4268palm maintenance.

427042. Walnut Creek's proposed recommended order identifies

4277the Board's grounds for rejecting the Mainguy bid as:

42861) Mainguy could not meet its contractual obligations because it

4296did not intend to hire additional employees; 2) Mainguy did not

4307have sufficient experience in responding to storms and

4315processing claims through FEMA; and 3) two landscape maintenance

4324contractors within the development presented the potential for

4332conflicts and an adverse impact on the residents.

434043. The grounds identified in Walnut Creek's proposed

4348recommended order reflect objections raised at various points

4356during the Board deliberations over the bids, although, except

4365for experience in responding to storms, these objections were

4374not voiced during the brief time that the Board actually

4384discussed the two bids after the presentations and before

4393accepting the Turf Management bid. This Recommended Order

4401addresses all of the objections raised at various times to the

4412Mainguy bid, even though the Board did not raise several of them

4424brief discussion preceding its vote to accept the Turf

4433Management bid. Therefore, the grounds for implicitly rejecting

4441the Mainguy bid are: 1) perceived confusion as to the treatment

4452of palm tree maintenance costs; 2) inadequate staffing due to

4462Mainguy's stated intention not to hire new employees (except

4471possibly a small trim crew); 3) insufficient experience

4479responding to storms and processing FEMA reimbursement claims;

4487and 4) the appearance of a second landscape maintenance

4496contractor on the Walnut Creek property with the potential for

4506conflicts and adverse impacts on the residents.

451344. As noted above, the Board's ground for rejecting the

4523Superior bid was that it was unresponsive for its failure to

4534include similar contracts. The consultant testified that he

4542later checked the Superior references and confirmed that the

4551contracts were not similar. Notwithstanding the concession by

4559Turf Management in its proposed recommended order that all three

4569bidders were qualified to perform the work, the Board properly

4579concluded that Superior's bid, on its face, was nonresponsive

4588and implicitly rejected it for this reason.

459545. The Mainguy bid properly accounted for the expenses

4604associated with maintaining palm trees, and the Mainguy

4612representative clearly explained this fact to the Board. To

4621attempt to justify rejecting the Mainguy bid on this ground is

4632irrational and completely unsupported by the record.

463946. It is also irrational and unsupported by the record to

4650reject the Mainguy bid due to the failure of the bid, or the

4663Mainguy representative at the Board meeting, to undertake to

4672hire new employees. The ITB does not require that a bidder hire

4684new employees for this contract. The requirement, in ITB

4693Section 1.08, of trained staff somewhat militates against such a

4703requirement. A bidder may have overstaffed in anticipation of

4712new work or decided to terminate a less profitable contract, if

4723it won the Walnut Creek contract.

472947. It is not irrational to prefer a contractor that has

4740substantial experience in responding to storm damage and

4748experience in filing FEMA reimbursement claims. However, the

4756ITB requires neither, although it addresses this subject by

4765requiring only that the contractor respond to Walnut Creek

4774within 24 hours after a storm. Mainguy has accepted this

4784contractual requirement. When asked about it, the Mainguy

4792representative explained, logically enough, that Mainguy could

4799respond quickly because it was located only 20 minutes from

4809Walnut Creek and would respond quickly because the Walnut Creek

4819contract would be a very large one for his company, which would

4831be sufficient motivation to serve Walnut Creek first after a

4841storm has cleared the area.

484648. It is not necessary to consider the rationality of

4856preferring that a single contractor serve Walnut Creek and the

4866homeowners' association. The ITB does not contain this

4874requirement, which would limit the potential bidders to one,

4883Turf Management. As noted in the Conclusions of Law, under the

4894present circumstances at least, a requirement of this type by

4904Walnut Creek would essentially permit it to circumvent the

4913statutory requirement to obtain these services by competitive

4921bid.

492249. Mainguy and Superior timely protested Walnut Creek's

4930decision to award the contract to Turf Management. Walnut Creek

4940then contracted with the Division of Administrative Hearings to

4949conduct the hearing and issue a recommended order.

4957CONCLUSIONS OF LAW

496050. The Division of Administrative Hearings has

4967jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

4976Fla. Stat. (2007). Walnut Creek has entered into a contract for

4987the Division of Administrative Hearings to conduct this hearing

4996and issue a recommended order.

500151. The represented parties both opine that these cases

5010are governed by Section 120.57(3), Florida Statutes. However,

5018Walnut Creek does not meet the definition of "agency," as set

5029forth in Sections 120.52(1) and 120.57(3), Florida Statutes.

5037Under the circumstances, of these cases, though, the results

5046would be the same under Section 120.57(3), Florida Statutes, and

5056the authority discussed immediately below.

506152. Section 190.033(3), Florida Statutes, requires

5067community development districts to procure by competitive

5074solicitation contracts in excess of $150,000 for "maintenance

5083services for any district facility or project." This statute

5092requires each district to adopt rules, policies, or procedures

"5101establishing competitive solicitation procedures for

5106maintenance services."

510853. By Rule of Procedure (Rule) 1.12, Walnut Creek adopted

5118a rule of procedure, pursuant to the mandate set forth in

5129Section 190.033(3), Florida Statutes. Rule 1.12 provides that

5137Walnut Creek "may, in its sole discretion, award the contract

5147[for maintenance services] according to the Rules in this

5156subsection in lieu of separately bidding for maintenance, goods,

5165supplies or materials, and contractual services."

517154. Rule 1.12(2) identifies the procedure that Walnut

5179Creek will use in putting contracts out to bid. Rule 1.12(2)(c)

5190details specific requirements imposed upon prospective bidders,

5197such as holding the required licensure and meeting "any

5206prequalification requirements set forth in the Invitation to Bid

5215or Request for Proposal." Rule 1.12(2)(c) concludes: "Evidence

5223of compliance with this provision of the Rules shall be

5233submitted pursuant to the requirements of the Invitation to Bid

5243or Request for Proposal."

524755. Rule 1.12(2)(d) states: "Bids and proposals shall be

5256evaluated in accordance with the invitation or request and these

5266Rules." Rule 1.12(2)(e) adds: "To assist in the determination

5275of whether a prospective bidder will be qualified, the District

5285Representative may invite public presentation by firms (prior to

5294the date for submitting bids) regarding their qualifications,

5302approach to the project, and ability to perform the contract in

5313all respects."

531556. Rule 1.12(2)(f) provides:

5319In determining whether a bidder is

5325qualified, the District may consider all

5331relevant information, including but not

5336limited to the following:

53401. The ability and adequacy of the

5347bidder's personnel.

53492. Past or current performance for the

5356District and with respect to other contracts

5363of the bidder.

53663. Ability to meet time and budget

5373requirements.

53744. Geographic location of the bidder's

5380headquarters or office in relation to the

5387project.

53885. Current and projected workloads of

5394the bidder.

53966. Whether the firm is a certified

5403minority business enterprise.

54067. Volume of work previously awarded to

5413the bidder.

54158. Additional factors described in the

5421Invitation to Bid or Request for Proposal.

542857. Rule 1.12(2)(g) states: "In evaluating the bids or

5437proposals, the Board shall have the right to accept that bid

5448which the Board determines, in the exercise of its reasonable

5458judgement, is in the best interest of the District, or the Board

5470may reject all bids because they are too high or because the

5482Board determines it is in the best interests of the District to

5494reject all bids."

549758. The rules clearly apply, in conjunction with the ITB,

5507to the present procurement. The key provision among the rules

5517is the last cited: the Board must exercise "reasonable

5526judgement" in selecting the winning bid. Similarly, under

5534Section 120.57(3), Florida Statutes, the issue is whether the

5543proposed award is clearly erroneous, contrary to competition,

5551arbitrary, or capricious. Regardless of other provisions

5558vesting discretion in the Board to act in the best interest of

5570Walnut Creek, the Board must exercise its judgement reasonably,

5579as its counsel advised, and in recognition of the legal

5589requirement, as noted by its counsel, consultant, and District

5598Manager, that the Board obtain these landscape maintenance

5606services by competitive bidding.

561059. Pursuant to Section 120.57(3), Florida Statutes,

5617Mainguy and Superior have the burden of proof in this de novo

5629proceeding.

563060. As noted above, factually, two grounds for the

5639rejection of the Mainguy bid were clearly erroneous, contrary to

5649competition, arbitrary, capricious, and not an exercise of

5657reasonable judgement. These grounds are Mainguy's treatment of

5665palm tree expenses and failure to specify that it will hire new

5677employees to service the Walnut Creek contract.

568461. Factually and legally, two grounds for the rejection

5693of the Mainguy bid were clearly erroneous, contrary to

5702competition, arbitrary, capricious, and not an exercise of

5710reasonable judgement. These grounds are Mainguy's experience

5717responding to storm damage and filing FEMA reimbursement claims.

5726Rule 1.12(2)(f) authorizes Walnut Creek to consider certain

5734factors besides those set forth in the ITB in awarding the

5745contract. Pertinent to these two grounds are consideration of

5754the ability and adequacy of Mainguy's personnel and its current

5764and projected workloads. However, the ITB actually addresses

5772these items by requiring that bidders be able to respond within

578324 hours of the storm. By adding to the procurement these two

5795criteria, when the ITB specified only a 24-hour response, the

5805Board effectively changed the ITB after bids were submitted.

5814This act is contrary to competition and an unreasonable exercise

5824of discretion because, under the circumstances of these cases,

5833it permits Walnut Creek essentially to pick someone other than

5843the low bidder.

584662. The last ground is the avoidance of having two

5856contractors perform landscape maintenance within the

5862development. A requirement of a single contractor is contrary

5871to competition and unlawful due to: 1) the presence of Turf

5882Management as the sole contractor for both properties and 2) the

5893statutory requirement that Walnut Creek solicit bids for the

5902work. Under the facts of these cases, requiring one contractor

5912to perform the landscape maintenance at both properties would

5921defeat the statutory mandate that Walnut Creek obtain these

5930services by competitive bid.

593463. It is clear from the minutes of the two meetings that

5946the Board members do not want to change contractors, and all of

5958the cited grounds and objections to Mainguy reflect a simple

5968discomfort with changing contractors, especially because Turf

5975Management has performed well. Although bid law permits an

5984entity procuring services to place reasonable weight on the

5993experience of an existing contractor, the emphasis cannot be so

6003great as to frustrate the statutory mandate to procure services

6013competitively, and the specific experience criteria must be

6021stated in advance in the rules or ITB, so that prospective

6032bidders may make informed decisions whether to protest the

6041specifications or participate in the procurement. The

6048understandable desires of the Board members to avoid change

6057conflict with both of these principles. Mainguy has proved

6066that, in rejecting its bid, the Board was clearly erroneous,

6076acted contrary to competition, arbitrarily and capriciously, and

6084did not exercise reasonable judgement.

608964. The sole relief that the Administrative Law Judge can

6099provide is a recommendation that Board enter a final order

6109dismissing the bid protest of Superior and sustaining the bid

6119protest of Mainguy. As the courts have noted, it is left to the

6132sound discretion of the procuring entity to determine whether to

6142proceed with the current procurement or reject all bids and

6152perhaps start over. Procacci v. Department of Health and

6161Rehabilitative Services , 603 So. 2d 1299 (Fla. 1st DCA 1992);

6171Moore v. Department of Health and Rehabilitative Services , 596

6180So. 2nd 759 (Fla. 1st DCA 1992); and Courtenay v. Department of

6192Health and Rehabilitative Services , 581 So. 2d 621 (Fla. 5th DCA

62031991).

6204RECOMMENDATION

6205It is

6207RECOMMENDED that the Walnut Creek Community Development

6214District enter a final order dismissing the protest of Superior

6224Landscaping and Lawn Service, Inc., granting the protest of

6233Mainguy Landscape Services, and taking such further action as is

6243permitted by law.

6246DONE AND ENTERED this 21st day of December, 2007, in

6256Tallahassee, Leon County, Florida.

6260S

6261___________________________________

6262ROBERT E. MEALE

6265Administrative Law Judge

6268Division of Administrative Hearings

6272The DeSoto Building

62751230 Apalachee Parkway

6278Tallahassee, Florida 32399-3060

6281(850) 488-9675 SUNCOM 278-9675

6285Fax Filing (850) 921-6847

6289www.doah.state.fl.us

6290Filed with the Clerk of the

6296Division of Administrative Hearings

6300this 21st day of December, 2007.

6306COPIES FURNISHED:

6308Gerald L. Knight

6311Billing, Cochran, Heath, Lyles

6315Mauro & Anderson, P.A.

6319Post Office Box 21627

6323Fort Lauderdale, Florida 33335-1627

6327Michael J. Pawelczyk

6330Billing, Cochran, Heath, Lyles,

6334Mauro & Anderson, P.A.

6338888 Southeast Third Avenue, Suite 301

6344Fort Lauderdale, Florida 33316

6348Jeffrey S. Siniawsky

6351Jeffrey S. Siniawsky, P.A.

63558551 West Sunrise Boulevard, Suite 300

6361Plantation, Florida 33322

6364David Waddell

6366Turf Management

636812600 Southwest 125th Avenue

6372Miami, Florida 33186

6375Mark Dearman

6377Dearman & Gerson, P.A.

63818551 West Sunrise Boulevard, Suite 300

6387Plantation, Florida 33322

6390Eddie Cora

6392Qualified Representative

6394Superior Landscaping

6396and Lawn Service, Inc.

6400Post Office Box 35-0095

6404Miami, Florida 33135

6407NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6413All parties have the right to submit written exceptions within

642310 days from the date of this recommended order. Any exceptions

6434to this recommended order must be filed with the agency that

6445will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/24/2008
Proceedings: Final Order (hearing held January 10, 2008). CASE CLOSED.
PDF:
Date: 01/24/2008
Proceedings: Notice of Filing .
PDF:
Date: 01/24/2008
Proceedings: Agency Final Order filed.
PDF:
Date: 01/17/2008
Proceedings: Agency Final Order
PDF:
Date: 01/02/2008
Proceedings: Exception to Recommended Order filed.
PDF:
Date: 12/21/2007
Proceedings: Recommended Order
PDF:
Date: 12/21/2007
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/21/2007
Proceedings: Recommended Order (hearing held November 8, 2007). CASE CLOSED.
PDF:
Date: 12/03/2007
Proceedings: Notice of Filing filed.
Date: 12/03/2007
Proceedings: Transcript filed.
PDF:
Date: 11/27/2007
Proceedings: Notice of Filing filed.
PDF:
Date: 11/27/2007
Proceedings: Findings of Fact and Conclusions of Law Affirming Mainguy`s Protest filed.
PDF:
Date: 11/27/2007
Proceedings: (Respondent`s Proposed) Recommended Order filed.
PDF:
Date: 11/13/2007
Proceedings: Intervenor`s Response to Memorandum of Law filed.
Date: 11/08/2007
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/07/2007
Proceedings: Respondent`s Memorandum of Law filed.
PDF:
Date: 11/07/2007
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 11/06/2007
Proceedings: Intervenor`s Pre-hearing Statement filed.
PDF:
Date: 11/05/2007
Proceedings: Petition to Intervene (filed in Case No. 07-4774; Squires Enterprises, Inc., d/b/a Turf Management)filed.
PDF:
Date: 11/02/2007
Proceedings: Order Granting Petition to Intervene (Squires Enterprises, Inc. d/b/a Turf Management, Inc.).
PDF:
Date: 11/02/2007
Proceedings: Petition to Intervene (filed by Squires Enterprises, Inc. d/b/a Turf Management.)
PDF:
Date: 11/02/2007
Proceedings: Order of Consolidation (DOAH Case Nos. 07-4753 and 07-4774).
PDF:
Date: 11/02/2007
Proceedings: Order Granting Petition to Intervene (Squires Enterprises, Inc., d/b/a Turf Management).
PDF:
Date: 11/01/2007
Proceedings: Petition to Intervene (Squires Enterprises, Inc., d/b/a Turf Management) filed.
PDF:
Date: 10/23/2007
Proceedings: Notice of Hearing (hearing set for November 8, 2007; 8:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 10/18/2007
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/16/2007
Proceedings: Notice of Protest filed.
PDF:
Date: 10/16/2007
Proceedings: Referral Letter filed.
PDF:
Date: 10/16/2007
Proceedings: Notice of Bid filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
10/16/2007
Date Assignment:
11/01/2007
Last Docket Entry:
01/24/2008
Location:
Fort Lauderdale, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (4):