10-000376BID Sun Art Painting Corporation, A Corporation Organized Under The Laws Of Florida vs. Palm Beach County School Board Status: Closed Recommended Order on Thursday, May 27, 2010.

Summary: Rejection of all bids based on ambiguity in ITB found to be arbitrary where ambiguity did not taint the competitive bidding process.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUN ART PAINTING CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 10-0376BID

)

PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings (DOAH), on

March 9, 2010, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert W. Erikson, Co-owner and Chairman

Sun Art Painting Corporation

1966 West 9th Street, Suite A

Riviera Beach, Florida 33404

For Respondent: Kathelyn Jacques-Adams, Esquire

School Board of Palm Beach County

Office of the Chief Counsel

Post Office Box 19239

West Palm Beach, Florida 33416-9239

STATEMENT OF THE ISSUE

Whether Respondent's intended rejection of all bids

submitted in response to Respondent's solicitation of bids for

two separate painting projects (the painting of the exterior of

Greenacres Elementary School and the painting of the exterior of

South Olive Elementary School) is "arbitrary," as alleged by

Petitioner, and if so, what alternative action should Respondent

take with respect to these two projects.

PRELIMINARY STATEMENT

On January 25, 2010, Respondent referred to DOAH, a formal

written protest of Respondent's announced intention to reject

all bids on two separate painting projects advertised in the

same Invitation to Bid (ITB): the Greenacres Elementary School

exterior painting project (referred to as "Item 1" in the ITB)

and the South Olive Elementary School exterior painting project

(referred to as "Item 2" in the ITB). In its formal written

protest, Petitioner argued that the protested rejection of all

bids was "both 'arbitrary' (unsupported by facts or logic) and

'dishonest' (not in a corruption or malfeasance sense, but

rather in the failure of duty by not being faithful to law,

agency published rules and policies, and explicit solicitation

specifications)." According to Petitioner, it had "submitted

the lowest responsive bid for both Item 1 and Item 2 under the

ITB" and, consequently, it should be awarded the contracts for

both projects.

As noted above, the hearing was held on March 9, 2010. Two

witnesses testified at the hearing: Sharon Swan, Respondent's

Director of Purchasing; and Robert Erickson, the Co-owner and

Chairman of Petitioner. In addition to the testimony of these

two witnesses, Petitioner's Exhibits 1 through 7, 9, and 11, and

Respondent's Exhibits 1 through 12 and 14, were offered and

received into evidence.

Following the conclusion of the final hearing, on March 12,

2010, the School Board, on behalf of both parties, filed an

motion requesting that the parties be given 45 days from the

date of the filing of the hearing transcript with DOAH to file

their proposed recommended orders in this case. The

representation was made in the motion that the parties had

stipulated to waive the requirement contained in Section

120.57(3)(e), Florida Statutes, that the recommended order in

this case be issued within 30 days following DOAH's receipt of

the hearing transcript. That same day (March 12, 2010), the

undersigned issued an Order granting the parties' request and

directing that proposed recommended orders be filed no later

than 45 days from the date of the filing of the hearing

transcript with DOAH.

Petitioner timely filed its Proposed Recommended Order on

May 13, 2010.

On May 14, 2010, Respondent filed a motion "request[ing] a

ten (10) day enlargement of time to file its Proposed

Recommended Order." In its motion, Respondent stated the

following regarding Petitioner's position on the matter:

4. The counsel for the School Board spoke

to Robert Erickson, Co-Owner and

representative of the Petitioner and he does

not object to the above requested ten (10)

day enlargement of time provided that the

counsel for the School Board agrees not to

read the Petitioner's Proposed Recommended

Order prior to filing its own Proposed

Recommended Order.

5. Counsel for the School Board agrees not

to read the Petitioner's Proposed

Recommended Order.

On May 17, 2010, the undersigned issued an Order granting

Respondent's Motion for Enlargement of Time, with the caveat

that, pursuant to the agreement of the parties, counsel for

Respondent was not to "read the Petitioner's Proposed

Recommended Order prior to filing its own Proposed Recommended

Order."

On May 21, 2010, Petitioner filed a motion requesting that

it be allowed to amend its previously filed Proposed Recommended

Order to correct certain typographical errors identified in the

motion. On May 24, 2010, the undersigned issued an Order

granting the motion and announcing that "Petitioner's Proposed

Recommended Order w[ould] be considered by the undersigned, as

amended."

On May 24, 2010, Respondent filed its Proposed Recommended

Order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Respondent is a district school board responsible for

the operation, control and supervision of all public schools

(grades K through 12) in Palm Beach County, Florida (including,

among others, Greenacres Elementary School, South Olive

Elementary School, and Belvedere Elementary School) and for

otherwise providing public instruction to school-aged children

in the county.

2. In or around August 2009, Respondent, through its

Construction Purchasing Department (Purchasing Department),

issued a single Invitation to Bid (ITB) soliciting separate bids

for three different painting projects: the painting of the

exterior of Greenacres Elementary School; the painting of the

exterior of South Olive Elementary School; and the painting of

the exterior of Belvedere Elementary School.

3. The bid package contained the following: an Invitation

to Bid Bidder Acknowledgement form (PBSD 1186, Rev 2/2001);

Special Conditions; Specifications; and Addenda, including a Bid

Summary Sheet, a Drug-Free Workplace Certification (PBSD 0580,

New 3/91), a Statement of No Bid, Inspection forms, and a

Beneficial Interest and Disclosure of Ownership Affidavit.

4. The Invitation to Bid Bidder Acknowledgement form

contained the following provision entitled, "Awards":

AWARDS: In the best interest of the

District, the Purchasing Department reserves

the right to reject any and all bids and to

waive any irregularity or minor

technicalities in bids received; to accept

any item or group of items unless qualified

by bidder; to acquire additional quantities

at prices quoted on this invitation unless

additional quantities are not acceptable, in

which case the bid sheets must be noted "BID

IS FOR SPECIFIED QUANTITY ONLY." All awards

made as result of this bid shall conform to

applicable Florida Statutes.

5. The Invitation to Bid Bidder Acknowledgement form also

included "General Conditions, Instructions and Information for

Bidders" (General Conditions), among which were the following:

SEALED BIDS: One copy of this executed

Invitation to Bid page and Bid Summary

page(s) must be returned with the bid in

order to be considered for award. All bids

are subject to all the conditions specified

herein; all General Conditions, Special

Conditions on the attached bid documents;

and any addenda issued thereto. Any failure

on the part of the bidder to comply with the

specifications, terms and conditions of this

Invitation to Bid shall be reason for

termination of contract.

1. EXECUTION OF BID: Bid must contain a

manual signature of an authorized

representative in the space provided above.

Failure to properly sign proposal shall

invalidate same, and it shall not be

considered for award. All bids must be

completed in ink or typewritten.

Corrections must be initialed by the person

signing the bid. Any corrections not

initialed will not be tabulated. The

original bid conditions and specifications

cannot be changed or altered in any way.

Altered bids may not be considered.

Clarification of bids submitted shall be in

letter form, signed by the bidders and

attached to the bid.

* * *

20. SIGNED BID CONSIDERED AN OFFER: This

signed bid shall be considered an offer on

the part of the bidder, which offer shall be

deemed accepted upon approval by the Board.

In case of a default on the part of the

bidder after such acceptance, the District

may take such action as it deems appropriate

including legal action for damages or

specific performance.

* * *

25. SPECIAL CONDITIONS: Any and all

Special Conditions that may vary from these

General Conditions shall have precedence.

6. Among the "Special Conditions" were the following:

A. SCOPE : The purpose and intent of this

invitation to bid is to secure firm pricing

for Exterior Painting of Greenacres, South

Olive, and Belvedere Elementary Schools.

The rate shall include all materials and

labor for preparation, sealing and painting.

B. AWARD : Time of completion is of the

essence. Contract will be awarded to the

lowest responsive and responsible bidder(s)

for each item as listed on the Bid Summary

Sheet.

The District reserves the right to use the

next lowest bidder(s) in the event the

original awardee of the bid cannot fulfill

their contract. The next lowest bidder's

price must remain the same as originally bid

and must remain firm for the duration of the

contract. The anticipated award will be

approved by the superintendent designee.

B. MANDATORY SITE INSPECTION : ALL BIDDERS

MUST ATTEND PRE-BID WORKSITE WALK-THROUGH.

THE WORK DETAILS ARE OUTLINED IN THIS BID

AND ANY QUESTIONS WILL BE ANSWERED AT EACH

WORKSITE INSPECTION. BIDS WILL NOT BE

ACCEPTED FROM ANY BIDDERS THAT HAVE NOT

ATTENDED THE SITE INSPECTION FOR THAT

PARTICULAR WORKSITE. THIS MANDATORY SITE

INSPECTION EXCLUDES ANY AND ALL PAINT

MANUFACTURERS AND/OR PAINT DISTRIBUTORS.

* * *

D. BIDDERS RESPONSIBILITY : Before

submitting their bid, each bidder is

required to carefully examine the invitation

to bid specifications and to completely

familiarize themselves with all of the terms

and conditions that are contained within

this bid. Ignorance on the part of the

bidder will in no way relieve them of any of

the obligations and responsibilities that

are part of this bid.

E. SEALED BID REQUIREMENTS : The

" INVITATION TO BID " bidder's acknowledgment

sheet must be completed, signed, and

returned. In addition, the Bid Summary

Sheet page(s) on which the bidder actually

submits a bid, needs to be executed and

submitted with this bid. Bids received that

fail to comply with these requirements shall

not be considered for award.[ 2 ]

F. CONTRACT : The submission of your bid

constitutes an offer by the bidder. . . .

* * *

Q. USE OF OTHER CONTRACTS : The District

reserves the right . . . to directly

negotiate/purchase per School Board policy

and/or State Board Rule 6A-1.012(6) in lieu

of any offer received or award made as a

result of this bid, if it is in its best

interest to do so. The District also

reserves the right to separately bid any

single order or to purchase any item on this

bid if it is in its best interest to do so.

* * *

HH. POSTING OF BID AND SPECIFICATIONS :

Invitation to bid with specifications will

be posted for review by interested parties

in the Construction Purchasing Department on

the date of bid electronic mailing and will

remain posted for a period of 72 hours.

Failure to file a specification protest

within the time prescribed in § 120.57 (3),

Florida Statutes, will constitute a waiver

of proceedings under Chapter 120 , Florida

Statutes, and applicable Board rules,

regulations and policies.

II. POSTING OF BID RECOMMENDATION/

TABULATIONS : Bid recommendations and

tabulations will be posted in the

Construction Purchasing Department, within

10 days of the opening date, and will remain

posted for a period of 72 hours. If the bid

tabulation with recommended awards is not

posted by said date and time, [a] "Notice of

Delay of Posting" will be posted to inform

all proposers of the new posting date and

time.

Any person adversely affected by the

decision or intended decision must file a

notice of protest, in writing, within 72

hours after the posting. The formal written

protest shall state with particularity the

facts and law upon which the protest is

based. Failure to file a specification

protest within the time prescribed in §

120.57 (3), Florida Statutes, will constitute

a waiver of proceedings under Chapter 120 ,

Florida Statutes, and applicable Board

rules, regulations and policies.

OO. BID PROTEST : If a bidder wishes to

protest a bid, they must do so in strict

accordance with the procedures outlined in

F.S. 120.57 (3), and Section FF., Lobbying

Paragraph 3, of this proposal and School

Board Policy 6.14 .

Any person who files an action protesting

bid specifications, a decision or intended

decision pertaining to this bid pursuant to

F.S. 120.57 (3)(b), shall post with the

Purchasing Department, at the time of filing

the formal written protest, a bond secured

by an acceptable surety company in Florida

payable to the School District of Palm Beach

County in an amount equal to 1 percent (1%)

of the total estimated contract value, but

not less than $500 nor more than $5,000.

Bond shall be conditioned upon the payment

of all costs that may adjudged against the

protester in the administrative hearing in

which the action is brought and in any

subsequent appellate court proceeding. In

lieu of a bond, a cashier's check, certified

bank check, bank certified company check or

money order will be acceptable form of

security. If, after completion of the

administrative hearing process and any

appellate court proceedings, the District

prevails, it shall recover all costs and

charges included in the final order of

judgment, including charges by the Division

of Administrative Hearings. Upon payment of

such costs and charges by the protester, the

protest security shall be returned. If the

protest prevails, he or she shall recover

from the District all costs and charges,

which shall be included in the final order

of judgment.

Failure to file a specification protest

within the time prescribed in § 120.57 (3),

Florida Statutes, will constitute a waiver

of proceedings under Chapter 120 , Florida

Statutes, and applicable Board rules,

regulations and policies.

* * *

PP. INFORMATION : Any questions by the

prospective bidders concerning this

invitation to bid should be addressed to

Helen R. Stokes, Purchasing Agent,

Construction Purchasing . . . , who is

authorized only to direct the attention of

prospective bidders to various portions of

the bid so they may read and interpret such

for themselves. Neither Mrs. Stokes nor any

employee of the District is authorized to

interpret any portion of the bid or give

information as the requirements of the bid

in addition to that contained in the written

bid document. Interpretations of the bid or

additional information as to its

requirements, where necessary, will be

communicated to bidders by written addendum.

7. Site visits to the three schools to be painted were

made by prospective bidders on August 13, 2009, following which

a First and Final Addendum, dated August 25, 2009, was issued by

the School Board. This First and Final Addendum included the

following Revised Bid Summary Sheet:

REVISED BID SUMMARY SHEET

THE SCHOOL DISTRICT OF PALM BEACH COUNTY

Construction Purchasing Department

3661 Interstate Park Road North Building 200

Riviera Beach, FL 33404

Ph: 561-882-1952 Fax: [phone]

EXTERIOR PAINTING OF GREENACRES, SOUTH

OLIVE, AND BELVEDERE ELEMENTARY SCHOOLS

SEALED BIDS ARE TO BE SUBMITTED ON

AUGUST 27, 2009 NO LATER THAN 2:00 P.M.

TO:

Helen Stokes, Construction Purchasing

Construction Purchasing Department

3661 Interstate Park Road North Building 200

Riviera Beach, FL 33404

Bids will only be accepted from those

contractors in attendance at the Mandatory

Site Visit and who are registered with the

School District of Palm Beach County as a

Small Business Enterprise. The rate shall

include paint, preparation, sealing and

painting per the attached specifications and

detailed scope of work.

EXTERIOR PAINTING AT GREENACRES, SOUTH

OLIVE, AND BELVEDERE ELEMENTARY SCHOOLS

ITEM 1: GREENACRES ELEMENTARY SCHOOL

______________________TOTAL $_______________

(PRICE IN WORDS)

ITEM 2: SOUTH OLIVE ELEMENTARY SCHOOL

______________________TOTAL $_______________

(PRICE IN WORDS)

ITEM 3: BELVEDERE ELEMENTARY SCHOOL

______________________TOTAL $_______________

(PRICE IN WORDS)

RE-TEXTURING TEXCOAT $______________(Per Sq.

Ft.)

ADDENDUM ACKNOWLEDGEMENT: I HEREBY

ACKNOWLEDGE RECEIPT OF ___ ADDENDUMS

CONTRACTOR:______________ _________________

Name Date

______________ _________________

Address Current License #

______________ _________________

City, State, Email Address

Zip

______________ ________________

Phone Fax

8. There were no instructions on the Revised Bid Summary

Sheet itself directing that an authorized representative sign

the document, nor was there any signature line for such purpose.

9. Bids were submitted by Austro Construction, Inc.

(Austro); Dynamic Painting, Inc. (Dynamic); Fleischer's, Inc.

(Fleischer's); JIJ Construction Corporation (JIJ); and

Petitioner.

10. Austro bid $83,900.00 on Item 1 (Greenacres Elementary

School); $87,500.00 on Item 2 (South Olive Elementary School);

and $105,500.00 and $3.50 per square foot for re-texturing on

Item 3 (Belvedere Elementary School).

11. Dynamic bid $55,955.00 on Item 1 (Greenacres

Elementary School); $74,800.00 on Item 2 (South Olive Elementary

School); and $82,900.00 and $3.00 per square foot for re-

texturing on Item 3 (Belvedere Elementary School).

12. Fleischer's bid only on Item 3 (Belvedere Elementary

School). 3 Its bid was $73,000.00 and $1.25 for re-texturing.

13. JIJ bid $80,000.00 on Item 1 (Greenacres Elementary

School); $95,000.00 on Item 2 (South Olive Elementary School);

and $95,000.00 and $1.15 per square foot for re-texturing on

Item 3 (Belvedere Elementary School).

14. Petitioner bid $89,349.00 (or $33,394.00 more than did

Dynamic, the lowest bidder) on Item 1 (Greenacres Elementary

School); $93,885.00 (or $19,085.00 more than did Dynamic, the

lowest bidder) on Item 2 (South Olive Elementary School); and

$94,306.00 and $3.95 per square foot for re-texturing on Item 3

(Belvedere Elementary School).

15. Of the five Revised Bid Summary Sheets that were

submitted in response to the ITB (one each by Austro, Dynamic,

Fleischer's, JIJ, and Petitioner), only two, those submitted by

Fleischer's and Petitioner, contained the signature of an

authorized representative of the bidder. The other three had no

signatures on them.

16. All of the "blanks" on each of the five Revised Bid

Summary Sheets submitted, including the three sheets without

signatures, were filled in and completed, however. 4

17. Furthermore, each Revised Bid Summary Sheet was

accompanied by an appropriately signed Invitation to Bid Bidder

Acknowledgement form.

18. Bids were opened on August 27, 2009.

19. As announced on the Bid Tabulation Form that was

posted on August 28, 2009, the Purchasing Department recommended

that Items 1 and 2 be awarded to Dynamic and Item 3 be awarded

to Fleischer's.

20. Petitioner, on or about September 8, 2009, protested

the award of Items 1 and 2 to Dynamic on the ground that

Dynamic's bids on these items were non-responsive because its

Revised Bid Summary Sheet had not been signed by an authorized

representative of the company. The award of Item 3 to

Fleischer's was not protested by Petitioner or any other bidder.

21. By letter dated September 15, 2009, Sharon Swan,

Respondent's Director of Purchasing (and head of the Purchasing

Department), advised Petitioner of the following:

We have completed the review of your protest

of Bid for "Exterior Painting of Greenacres,

South Olive, and Belvedere Elementary

Schools," specifically your protest of the

recommendation for award for Greenacres and

South Olive Elementary Schools, Items 1 & 2

of this bid.

A revised recommendation will be posted

later today reflecting a change in our

recommendation for Items 1 & 2. The revised

recommendation will be to reject all bids on

these two items[ 5 ] and re-bid with revised

bid documents which will clarify the

ambiguity relating to the requirement to

execute the Bid Summary Sheet when no

signature line was indicated.

Therefore, I am returning your bank check

and closing the file on this protest.

You are invited and welcome to compete on

the re-bid of these projects.

22. As promised, a second, revised bid tabulation form was

posted that same day (September 15, 2009) containing the

following "revised recommendation":

Item[s] 1 & 2: Reject bid Item[] 1 (one)

and Item 2 (two) due to an ambiguity in the

bid language, SPECIAL CONDITIONS, paragraph

E, Sealed Bid Requirements.

Item 3: Fleischer's, Inc.

23. The belatedly perceived "ambiguity" referred to in the

Purchasing Department's revised bid tabulation form concerned

the intended meaning of the term "executed" in Special Condition

E. of the ITB.

24. It had been the Purchasing Department's intent, in

using this term in Special Condition E., to require that the

Revised Bid Summary Sheet be signed by an authorized

representative of the bidder; however, the Purchasing Department

had not included a signature line on the Revised Bid Summary

Sheet (such as the one appearing on the Invitation to Bid Bidder

Acknowledgement form), nor had it specified anywhere in the ITB

that the Revised Bid Summary Sheet had to be "signed" (in

contrast to the instructions, given in the first sentence of

Special Condition E., regarding the Invitation to Bid Bidder

Acknowledgement form).

25. Upon its consideration of Petitioner's protest, the

Purchasing Department had come to the realization that it had

not clearly communicated to prospective bidders its intent

concerning the need for a bidder's "executed" Revised Bid

Summary Sheet to bear an authorized representative's signature.

Believing that its failure to have done so effected the outcome

of the competitive bidding process in the case of both Item 1

and Item 2 (in that, with respect to each of these items, the

lowest bidder, as well as all other bidders bidding on these two

items with the exception of Petitioner, submitted an unsigned

Revised Bid Summary Sheet, making these bidders, in the School

Board's view, ineligible for an award), the Purchasing

Department decided "to reject all bids [with respect to these

two items] and rebid so [the Purchasing Department] could

correct this ambiguity" concerning the need for a bidder's

"executed" Revised Bid Summary Sheet to be signed. 6

26. It is this intended action which is the subject of

Petitioner's instant protest.

CONCLUSIONS OF LAW

27. "Purchases . . . by school districts . . . [must]

comply with the requirements of law and rules of the State Board

of Education." § 1010.04(1)(a), Fla. Stat.

28. The "rules of the State Board of Education" include

Florida Administrative Code Rule 6A-1.012, which requires each

district school board to "establish purchasing rules" 7 consistent

with, among other things, the following:

* * *

(7) Except as authorized by law or rule,

competitive solicitations shall be requested

from three (3) or more sources for any

authorized commodities or contractual

services exceeding $50,000. . . .

(8) The district school board shall have

the authority to reject any or all proposals

submitted in response to any competitive

solicitation and request new proposals or

purchase the required commodities or

contractual services in any other manner

authorized by this section.

(9) In acceptance of responses to

invitations to bid, the district school

board may accept the proposal of the lowest

responsive, responsible proposer. In the

alternative, the district school board may

also choose to award contracts to the lowest

responsive, responsible bidder as the

primary awardee of a contract and to the

next lowest responsive, responsible

bidder(s) as alternate awardees from whom

commodities or contractual services would be

purchased should the primary awardee become

unable to provide all of the commodities or

contractual services required by the

district school board during the term of the

contract. Nothing herein is meant to

prevent multiple awards to the lowest

responsive and responsible bidders when such

multiple awards are clearly stated in the

bid solicitation documents.[ 8 ]

* * *

(12) Additional exemptions authorized under

certain conditions.

(a) The requirements for requesting

competitive solicitations and making

purchases for commodities and contractual

services as set forth in this section are

hereby waived as authorized by Section

1010.04(4)(a), F.S., when the following

conditions have been met by the district

school board:

1. Competitive solicitations have been

requested in the manner prescribed by this

rule, and

2. The district school board has made a

finding that no valid or acceptable firm

proposal has been received within the

prescribed time.

(b) When such a finding has been officially

made, the district school board may enter

into negotiations with suppliers of such

commodities and contractual services and

shall have the authority to execute

contracts with such vendors under whatever

terms and conditions as the district school

board determines to be in its best

interests;

(c) If less than two responsive proposals

for commodity or contractual services are

received, the district school board may

negotiate on the best terms and conditions

or decide to reject all proposals. The

district school board shall document the

reasons that negotiating terms and

conditions with the sole proposer is in the

best interest of the school district in lieu

of resoliciting proposals;

* * *

29. In accordance with Florida Administrative Code Rule

6A-1.012, Respondent has adopted "purchasing rules."

30. These "purchasing rules" include the following

provisions, among others, found in Palm Beach County School

Board Rule 6Gx50-6.14:

1. Delegation of Authority.-- As set forth

below, the School Board has delegated

authority to the Superintendent or his/her

designee to be responsible for the purchase

of the commodities and contractual services

for the District in compliance with Florida

Statutes, State Board of Education Rules,

and Board Policy. . . .

* * *

c. Superintendent/Designee

* * *

ii. Apart from the consultant agreements

mentioned in paragraph (1)(c)(i), above,

(for which the threshold is $10,000),

authority is also vested in the

Superintendent or his/her designee to:

* * *

B. approve or reject purchase requisitions

and authorize purchase of commodities and

contractual services, without regard to

dollar amount, when the method used is an

Invitation to Bid or competitive quotes and

the award is based upon lowest bid or quote

from a responsive and responsible bidder

meeting specifications (provided that, for

purchases in this subparagraph B, prior

approval of the Superintendent or Chief

Operating Officer is required, and a

quarterly report of such purchases over

$15,000 must be provided to the Board);

* * *

2. Maximum Value.-- Pursuant to Fla. Stat.

§ 1001.51(11)(i), the Superintendent of

Schools or his/her designee shall, insofar

as possible, propose standards and

specifications. He or she shall see that

the purchase or contract conforms to those

standards and specifications, and shall take

such other steps as are necessary to see

that the maximum value is being received for

any money expended. Insofar as practicable,

all purchases shall be based on

requisitions, and the

Superintendent/designee shall certify that

funds to cover the expenditures under the

requisitions are authorized by the budget

and have not been encumbered . . ..

* * *

b. Bids/Proposals.-- Bids/proposals shall

be requested from three (3) or more sources

for commodities and contractual services

when requisitioning any item or group of

similar items exceeding twenty-five thousand

dollars ($25,000) or as otherwise set by the

threshold amount in Fla. Stat. § 287.017 for

Category Two, except as exempt by State

Board of Education Rule 6A-1.012 or other

applicable laws. . . .

i. In acceptance of bids, the School Board

(or the Superintendent/designee, for

purchases delegated to him or her) shall

accept the lowest bid from a responsive and

responsible bidder.

ii. However, the School Board (and the

Superintendent/designee, for purchases

delegated to him or her) shall have the

authority to reject any or all bids and

request new bids.

31. Section 4 of Palm Beach County School Board Rule

6Gx50-6.14, which is entitled, "Protests Arising from the

Contract Solicitation or Award Process," provides that the

provisions of Section 120.57(3), Florida Statutes, govern the

filing and resolution of such protests.

32. Section 120.57(3), Florida Statutes, sets forth the

"procedures applicable to protests to contract solicitation[s] or

award[s]" by an "agency," as that term ("agency") is defined in

Section 287.012(1), Florida Statutes, which provides that

"'agency' means any of the various state officers, departments,

boards, commissions, divisions, bureaus, and councils and any

other unit of organization, however designated, of the executive

branch of state government." 9 See § 120.57(3)(g), Fla. Stat.

("For purposes of this subsection, the definitions in s. 287.012

apply.").

33. Section 120.57(3), Florida Statutes, provides as

follows:

Agencies subject to this chapter shall use

the uniform rules of procedure,[ 10 ] which

provide procedures for the resolution of

protests arising from the contract

solicitation or award process. Such rules

shall at least provide that:

(a) The agency shall provide notice of a

decision or intended decision concerning a

solicitation, contract award, or exceptional

purchase by electronic posting. This notice

shall contain the following statement:

"Failure to file a protest within the time

prescribed in section 120.57(3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bond shall

constitute a waiver of proceedings under

chapter 120, Florida Statutes."

(b) Any person who is adversely affected by

the agency decision or intended decision[ 11 ]

shall file with the agency a notice of

protest in writing within 72 hours after the

posting of the notice of decision or

intended decision. With respect to a

protest of the terms, conditions, and

specifications contained in a solicitation,

including any provisions governing the

methods for ranking bids, proposals, or

replies, awarding contracts, reserving

rights of further negotiation, or modifying

or amending any contract, the notice of

protest shall be filed in writing within 72

hours after the posting of the solicitation.

The formal written protest shall be filed

within 10 days after the date the notice of

protest is filed. Failure to file a notice

of protest or failure to file a formal

written protest shall constitute a waiver of

proceedings under this chapter. The formal

written protest shall state with

particularity the facts and law upon which

the protest is based. Saturdays, Sundays,

and state holidays shall be excluded in the

computation of the 72-hour time periods

provided by this paragraph.

(c) Upon receipt of the formal written

protest that has been timely filed, the

agency shall stop the solicitation or

contract award process until the subject of

the protest is resolved by final agency

action, unless the agency head sets forth in

writing particular facts and circumstances

which require the continuance of the

solicitation or contract award process

without delay in order to avoid an immediate

and serious danger to the public health,

safety, or welfare.

(d)1. The agency shall provide an

opportunity to resolve the protest by mutual

agreement between the parties within 7 days,

excluding Saturdays, Sundays, and state

holidays, after receipt of a formal written

protest.

2. If the subject of a protest is not

resolved by mutual agreement within 7 days,

excluding Saturdays, Sundays, and state

holidays, after receipt of the formal

written protest, and if there is no disputed

issue of material fact, an informal

proceeding shall be conducted pursuant to

subsection (2) and applicable agency rules

before a person whose qualifications have

been prescribed by rules of the agency.

3. If the subject of a protest is not

resolved by mutual agreement within 7 days,

excluding Saturdays, Sundays, and state

holidays, after receipt of the formal

written protest, and if there is a disputed

issue of material fact, the agency shall

refer the protest to the division for

proceedings under subsection (1).

(e) Upon receipt of a formal written

protest referred pursuant to this

subsection, the director of the division

shall expedite the hearing and assign an

administrative law judge who shall commence

a hearing within 30 days after the receipt

of the formal written protest by the

division and enter a recommended order

within 30 days after the hearing or within

30 days after receipt of the hearing

transcript by the administrative law judge,

whichever is later. Each party shall be

allowed 10 days in which to submit written

exceptions to the recommended order. A

final order shall be entered by the agency

within 30 days of the entry of a recommended

order. The provisions of this paragraph may

be waived upon stipulation by all parties.

(f) In a protest to an invitation to bid or

request for proposals procurement, no

submissions made after the bid or proposal

opening which amend or supplement the bid or

proposal shall be considered. In a protest

to an invitation to negotiate procurement,

no submissions made after the agency

announces its intent to award a contract,

reject all replies, or withdraw the

solicitation which amend or supplement the

reply shall be considered. Unless otherwise

provided by statute, the burden of proof

shall rest with the party protesting the

proposed agency action. In a competitive-

procurement protest, other than a rejection

of all bids, proposals, or replies, the

administrative law judge shall conduct a de

novo proceeding[ 12 ] to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the agency's

rules or policies, or the solicitation

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious. In any bid-

protest proceeding contesting an intended

agency action to reject all bids, proposals,

or replies, the standard of review by an

administrative law judge shall be whether

the agency's intended action is illegal,

arbitrary, dishonest, or fraudulent.[ 13 ]

(g) For purposes of this subsection, the

definitions in s. 287.012 apply.

34. The instant bid protest is one "contesting an intended

agency action to reject all bids" with respect to two of the

three projects advertised by the ITB (specifically, Items 1 and

2). Petitioner is challenging this intended action on the

ground that it would be "arbitrary" 14 for the following reasons

(as articulated in paragraph 19. of its Proposed Recommended

Order):

First, the School Board itself confused the

difference between (a) belatedly inferred

and speculated "confusion" on the part of

some bidders with respect to any

imperfection in the design of the provided

Bid Summary Sheet form, and (b) the

unequivocally clear and explicit mandates of

ITB SPECIAL CONDITIONS paragraphs E. and D.

regarding such form's required signature for

compliant submission. Second, the School

Board concedes that the rejection of all

bids for Items 1 and 2 would not be as the

result of any need to abandon or modify

these projects, but rather the School Board

Purchasing Director testified she simply

plans to repair such now perceived ITB

deficiency and recompete the two projects.

35. To prevail on its protest, Petitioner was required, at

the final hearing in this case, to support its claim of

"arbitrar[iness]" by a preponderance of the evidence. See

Florida Department of Health and Rehabilitative Services v.

Career Service Commission , 289 So. 2d 412, 415 (Fla. 4th DCA

1974)("'As a general rule the comparative degree of proof by

which a case must be established is the same before an

administrative tribunal as in a judicial proceeding--that is, a

preponderance of the evidence . It is satisfied by proof

creating an equipoise, but it does not require proof beyond a

reasonable doubt.'"); Spinella Enterprises v. Department of

Environmental Protection, Inc. , No. 08-3380BID, 2008 Fla. ENV

LEXIS 129 **14-15 (Fla. DOAH October 2, 2008)(Recommended

Order)("As the protesting party, Spinella must sustain its

burden of proof by a preponderance of the evidence."); School

Food Service Systems, Inc. v. Broward County School Board , No.

01-0612BID, 2001 Fla. Div. Adm. Hear. LEXIS 2647 *41 (Fla. DOAH

March 31, 2001)(Recommended Order)("Pursuant to Section

120.57(3)(f), Florida Statutes, the burden of proof rests with

the party opposing the proposed agency action. School Food must

sustain its burden of proof by a preponderance of the

("Findings of fact shall be based on a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute. . . .").

36. An intended rejection of all bids is not "arbitrary"

merely because it "may appear erroneous" or because "reasonable

persons may disagree" with the taking of such action. Groves-

Watkins Constructors , 530 So. 2d at 913, quoting, with approval,

from Liberty County v. Baxter's Asphalt & Concrete, Inc. , 421

So. 2d 505, 507 (Fla. 1982). Only if "'it is not supported by

logic or the necessary facts,' [or] if it is adopted without

thought or reason or is irrational'" will it be deemed

"arbitrary." Hadi v. Liberty Behavioral Health Corp. , 927 So.

2d 34, 38-39 (Fla. 1st DCA 2006); see also Board of Clinical

Laboratory Personnel v. Florida Association of Blood Banks , 721

So. 2d 317, 318 (Fla. 1st DCA 1998)("An 'arbitrary' decision is

one not supported by facts or logic."); and Dravo Basic

Materials Company, Inc. v. Department of Transportation , 602 So.

2d 632, 634 n.3 (Fla. 2d DCA 1992)("If an administrative

decision is justifiable under any analysis that a reasonable

person would use to reach a decision of similar importance, it

would seem that the decision is [not] arbitrary.").

37. "The existence of an ambiguity [in an ITB] constitutes

a rational [and therefore non-arbitrary] basis upon which a

district school board may lawfully reject all bids and

readvertise, but only if such ambiguity has . . . tainted the

outcome of the competitive bidding process." J. D. Pirrotta

Company v. Palm Beach County School Board , No. 93-2822BID, 1993

Fla. Div. Adm. Hear. LEXIS 5753 *20 (Fla. DOAH July 7,

1993)(Recommended Order), citing Caber Systems v. Department of

General Services , 530 So. 2d 325 (Fla. 1st DCA 1988) 15 ; Tropabest

Foods, Inc. v. Department of General Services , 493 So. 2d 50, 52

(Fla. 1st DCA 1986); and Robinson Electrical Co., Inc. v. Dade

County , 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982).

38. Such a "taint" would exist if there was a reasonable

possibility that the ambiguity had caused the lowest,

responsible bidder to submit a bid that was (but would not have

been but for the ambiguity) non-responsive. The rejection of

all bids under such circumstances would not be "arbitrary."

39. There would be no "taint" (and, consequently, no

rational or logical reason to reject all bids), however, if the

ambiguity concerned merely a minor or trivial requirement of the

ITB, deviation from which would not render a bid non-responsive.

40. "[A]lthough a bid containing a material variance is

unacceptable, not every deviation from [an ITB] is material. It

is only material [and renders the bid non-responsive] if it

gives the bidder a substantial advantage over the other bidders

and thereby restricts or stifles competition." Tropabest Foods ,

493 So. 2d at 52. If it does not provide the bidder with such a

palpable competitive advantage, it constitutes a minor

irregularity that should be waived. See Robinson Electrical

Co. , 417 So. 2d at 1034 ("[T]he purpose of competitive bidding

is to secure the lowest responsible offer and . . . the County

may waive minor irregularities in effectuating that purpose.").

"There is a very strong public interest in favor of saving tax

dollars in awarding public contracts. There is no public

interest, much less a substantial public interest, in

disqualifying low bidders for technical deficiencies in form,

where the low bidder did not derive any unfair competitive

advantage by reason of the technical omission."

Intercontinental Properties, Inc. v. Department of Health and

Rehabilitative Services , 606 So. 2d 380, 386 (Fla. 3d DCA 1992);

see also Overstreet Paving Co. v. Department of Transportation ,

608 So. 2d 851, 853 (Fla. 2d DCA 1992)(same).

41. In the instant case, as a justification for its

proposed decision to reject all bids with respect to Items 1 and

2, Respondent is relying on an alleged ambiguity in the ITB

concerning the meaning of the phrase "needs to be executed," as

used in the second sentence of Special Condition E. of the ITB

(in reference to the Revised Bid Summary Sheet). According to

Respondent, this language, although intended (by it) to require

that the Revised Bid Summary Sheet be signed, did not clearly

convey this intent to bidders. Petitioner, for its part,

disputes the existence of any alleged ambiguity, arguing that

"no reasonable person could misinterpret" Special Condition E.'s

"unequivocally clear and explicit" requirement that the Revised

Bid Summary Sheet be signed "for compliant submission."

Petitioner attributes the lack of signatures on the Revised Bid

Summary Sheets submitted by the other three bidders who bid on

Items 1 and 2 (Dynamic, Austro, and JIJ), not to any

misunderstanding on their part as to the intended meaning of the

"needs to be executed" language in Special Condition E., but

rather to these bidders' failure to have complied with the

requirement imposed by Special Condition D. that bidders,

"[b]efore submitting their bid[s], . . . carefully examine the

invitation to bid specifications and . . . completely

familiarize themselves with all of the terms and conditions"

therein.

42. The undersigned agrees with Respondent that it did not

clearly express in the second sentence of Special Condition E.

(or elsewhere in the ITB) its intent to require bidders to sign

their Revised Bid Summary Sheets, and that the ITB was ambiguous

on this point.

43. Instead of using the word "signed" (as it had in the

immediately preceding sentence dealing with the Invitation to

Bid Bidder Acknowledgement form: "The ' INVITATION TO BID '

bidder's acknowledgment sheet must be completed, signed , and

returned") and leaving no doubt that a signature on the Revised

Bid Summary Sheet was needed, Respondent, in the second sentence

of Special Condition E., merely directed that the Revised Bid

Summary Sheet be "executed" before its submission. "Executed"

is an "elusive" term whose meaning "depends on context."

Sentinel Products Corp. v. Scriptoria, N.V. , 124 F. Supp. 2d

115, 119 (D. Mass. 2000); see also In re Estate of Tosh , 920

P.2d 1230, 1232 (Wash. App. 1996)("Taking this word out of

context, the definitions of 'executed' may differ."). "One of

the well-known meanings[ 16 ] of the verb 'to execute' . . . is 'to

complete.'" Perko v. Rock Springs Commercial Co. , 259 P. 520,

522 (Wyo. 1927); see also Brown v. State , 674 So. 2d 738, 740

(Fla. 2d DCA 1995) ("The word 'executed' means completion of

service on the defendant."); Travelers Insurance Co. v. Chicago

Bridge & Iron Co. , 442 S.W.2d 888, 895 (Tex. App. 1969) ("The

term 'execute' means 'to finish' or 'make complete.'"); and

Olson v. Penkert , 252 Minn. 334, 347 n.6 (Minn. 1958)("The words

'execute' and 'executed' when used in their proper sense convey

the meaning of carrying out some act or course of conduct to its

completion, and, when applied to a written instrument, include

the performance of all acts necessary to render it complete as

an instrument importing the intended obligation and of every act

required to give the instrument validity or to carry it into

effect or give it the form required to render it valid."). For

a document to be "complete[d]" or "executed," it may or may not,

depending on the circumstances, need to be signed. E.g. ,

McPherson v. Acco USA , No. 95 C 5888, 1997 U.S. Dist. LEXIS

14520 *6 n.3 (N.D. Ill. September 12, 1997)("While a contract

need not be signed to be valid, it is clear that, where the

signatures of the parties is a condition precedent to its

completion, no contract will exist until the signatures are

obtained. 'Whether the signing of the contract is a condition

precedent to its becoming a binding contract usually depends on

the intention of the parties.' Although not argued at any

length by either side, the Court notes that the provision of

signature lines for both parties, in addition to the language of

the agreement, indicates that the parties intended that both

signatures be present in order to create a binding agreement.

Since the agreement was never signed by the Defendant, it was

not binding.")(citations omitted).

44. Given the absence of any signature line on the Revised

Bid Summary Sheet, it would not have been at all unreasonable

for a bidder, upon carefully reviewing the ITB, to have

concluded that all it had to do to "execute" the Revised Bid

Summary Sheet was to fill in and complete the blanks on that

document and that there was no need for the document to be

signed. Cf. Lemons v. Dragmister , No. 3:08-CV-423 JVB, 2010

U.S. Dist. LEXIS 11965 *6 (N.D. Ind. February 9,

2010)("Requiring a signature without providing a signature line

on the form (and barring a federal lawsuit where the inmate

fails to sign) would effectively sand-bag unsuspecting inmates,

depriving them of their right to seek redress in federal court

for violations of their constitutional rights."); and Marks v.

Williams , 278 S.E.2d 806, 808 (Va. 1981)("The agreement,

moreover, contained no space set aside for Williams' wife's

signature. The absence of such a space indicates that the

wife's agreement was not a precondition of the

contract, . . . ."). The reasonableness of this "no signature

required" conclusion (that Dynamic, Austro, and JIJ apparently

reached upon their review of the ITB) is even more evident when

one considers that the term "signed" was used in the first

sentence of Special Condition E. (which gave instructions

regarding the Invitation to Bid Bidder Acknowledgement form),

but not in the very next sentence of the same Special Condition

(which dealt with the Revised Bid Summary Sheet). Cf. Leisure

Resorts v. Frank J. Rooney , 654 So. 2d 911, 914 (Fla.

1995)("When the legislature has used a term, as it has here, in

one section of the statute but omits it in another section of

the same statute, we will not imply it where it has been

excluded."); Campbell v. Campbell , 489 So. 2d 774, 777 (Fla. 3d

DCA 1986)("Just as it is recognized that the same words used in

two parts of an instrument are deemed to mean the same thing in

both places, so, as in this case, the use of different language

strongly implies that a different meaning was

intended.")(citation omitted); and Department of Professional

Regulation, Board of Medical Examiners v. Durrani , 455 So. 2d

515, 518 (Fla. 1st DCA 1984)("The legislative use of different

terms in different portions of the same statute is strong

evidence that different meanings were intended.").

45. The foregoing notwithstanding, the "needs to be

executed" language in the second sentence of Special Condition

E. is also reasonably susceptible to the interpretation that a

signature on the Revised Bid Summary Sheet was required. E.g. ,

State v. Fields , 502 So. 2d 5, 6 (Fla. 4th DCA 1986)("'[T]o

execute' can also mean 'to sign.'"); and Missouri-Indiana

Investment Group v. Shaw , 699 F.2d 952, 954 (8th Cir.

1983)("[I]n popular speech, 'execute' is often used to refer

merely to the act of signing a written contract."). Respondent

therefore is free to find (as it has preliminarily done, at

Petitioner's urging) that the bidders who did not sign their

Revised Bid Summary Sheets (that is, all bidders who bid on

Items 1 and 2, except for Petitioner) deviated from the ITB.

46. The question remains whether these deviations were

material. If they were not, the ambiguity in the ITB relied

upon by Respondent to justify its proposed rejection of all bids

on Items 1 and 2 (which ambiguity, no doubt, was responsible, at

least in part, for these deviations) would not be (unlike the

ambiguity in Caber ) a "fatal[]" one reasonably warranting

Respondent's taking such action. If, on the other hand, these

deviations were material (and therefore non-waivable),

Respondent's rejection of all bids on Items 1 and 2 would not be

without justifiable reason. 17

47. Respondent's preliminary determination to reject all

bids on Items 1 and 2 was necessarily premised on the view that

these deviations were material (thus making all bids on these

items other than Petitioner's, including the lowest bid on each

item, non-responsive). 18 Petitioner (although disagreeing,

incorrectly in the undersigned's opinion, that there was an

ambiguity in the ITB concerning whether the Revised Bid Summary

Sheet had to be signed) shares Respondent's view that the

deviations were material (and that therefore the deviant bids

were non-responsive).

48. The undersigned cannot agree that the failure to have

placed a signature on the Revised Bid Summary Sheet was a

material deviation from the ITB. Rather, the undersigned finds

it was an immaterial variance since it did not give the

offending bidders (each of whom submitted, as part of their bid,

a signed Invitation to Bid Bidder Acknowledgement form and a

Revised Bid Summary Sheet with all of the "blanks" filled in and

completed) a competitive advantage over Petitioner, the lone

bidder bidding on Items 1 and 2 whose bid did not suffer from

this defect. Pursuant to General Condition 20. and Special

Condition F. of the ITB, by having submitted bids which included

signed Invitation to Bid Bidder Acknowledgement forms, these

bidders have made binding offers as to Items 1 and 2 from which

they are, by virtue of their not having signed their Revised Bid

Summary Sheets, no more able than Petitioner to back out of.

49. Because the mere absence of a signature from the

Revised Bid Summary Sheet was an immaterial deviation, it should

be waived by Respondent and not result in a finding of non-

responsiveness. See Menefee , 163 Cal. App. 3d at 1179

(" Williams involved a 'bid' that was lacking more than a

signature; it had neither a total price nor the bidder's name.

So Williams can be read narrowly as holding only that a 'bid'

cannot be cured if it is not a bid at all. The bid in the

present case is distinguishable because the executing signature

is the only part that is missing. Even if incorporation of the

bid bond signature into the bid is precluded by California law,

the absence of only one signature in an otherwise complete bid

should be waivable by the public entity."); Kokosing

Construction Co. v. Dixon , 594 N.E.2d 675, 681 (Ohio App.

1991)("Dayton requires that all bids for public contracts

contain an affirmative action statement. The record indicates

that Shook completed and submitted a five page affirmative

action statement but failed to sign it. The city concluded that

this omission rendered the bid non-responsive. The trial court

concluded to the contrary. We agree with the trial court's

finding that the absence of a signature on the affirmative

action statement does not constitute a material deviation. This

is not the case of a bidder failing to supply the statement.

Rather, in this case the bidder, Shook, complied with all

material parts of the specification. . . . The absence of the

signature simply was not so material as to render the bid non-

responsive. The deviation from the published requirement gave

Shook no competitive advantage. To hold Shook's bid non-

responsive because of this minor deviation from the bid

specifications was an abuse of discretion by the city, and the

trial court correctly so found.")(citations omitted); Spawglass

Construction Corp. v. City of Houston , 974 S.W.2d 876, 885 (Tex.

App. 1998)("Under the facts in this case, we find that the

failure of CAI to submit a signed signature page with its bid

proposal was a waivable defect because: (1) CAI signed the

proposal in three other places with the intent to give validity

to its bid, and (2) because the bid and the bid bond are so

connected by internal reference to each other, they could be

treated as one signed instrument. Appellant's contention that

CAI's bid was invalid for lack of a signature on the signature

page is overruled."); and Farmer Construction, Ltd. v. State of

Washington , 656 P.2d 1086, 1089 (Wash. 1983) ("The bid proposal

and the bid bond are each in writing; the two writings are

connected with each other by internal reference. Thus, there is

a binding offer made by Farmer which it would be bound to honor

upon acceptance by the contracting authority. Since Farmer

would be bound to its bid, the absence of the written signature

of the president of Farmer is not material. As the irregularity

of a lack of written signature is immaterial, it may be

considered an informality, and under paragraph L of the bid form

requirements may be waived by the Department of General

Administration.")(citation omitted).

50. It would be without reason or logic (or, in other

words, it would be "arbitrary"), as well as contrary to the best

interests of the taxpayers (the intended ultimate beneficiaries

of the competitive bidding requirements governing the instant

procurements 19 ), for Respondent to reject all bids on Items 1 and

2 and readvertise these projects based on an ambiguity in the

ITB concerning a waivable requirement, non-compliance with which

does not warrant a bidder's disqualification from consideration

for award. As was stated in School Food Service Systems , 2001

Fla. Div. Adm. Hear. LEXIS 2647 *47, "[l]etting authorities must

be mindful that rejecting all bids discourages competitive

bidding and hence should be the exception in public procurement

rather than the rule." The invocation of this "exception"

simply cannot be reasonably justified under the facts of this

case.

51. In view of the foregoing, Respondent should not reject

all bids on Items 1 and 2, but instead should, with respect to

each of these items, award a contract to the "lowest responsive

and responsible bidder." In determining the "lowest responsive

and responsible bidder," Respondent should find that a bidder's

failure to have signed its Revised Bid Summary Sheet constituted

a minor irregularity not vitiating the bidder's responsiveness.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Palm Beach County School Board take

the action described in numbered paragraph 51 above.

DONE AND ENTERED this 27th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 May, 2010.

ENDNOTES

1 All references to Florida Statutes in this Recommended Order

are to Florida Statutes (2009).

2 This last sentence of Special Condition E. did not

specifically address a situation where a bid complied, but not

in every respect, with the "requirements" of this Special

Condition, nor did it limit Respondent's ability to waive any

immaterial non-compliance with "these requirements." Cf.

Menefee v. County of Fresno , 163 Cal. App. 3d 1175, 1180 (Cal.

App. 1985)("[T]he bid form itself contains mandatory language

requiring the missing signature. After a blank line over

'signature of Bidder,' the proposal states: 'Note: If bidder

is a corporation, the legal name of the corporation shall be set

forth together with the signature of the officer or officers

authorized to sign contracts on behalf of the corporation; if

bidder is a co-partnership, the true name of the firm shall be

set forth above together with the signature of the partner or

partners authorized to sign contracts in behalf of the

partnership; and if the bidder is an individual, his signature

shall be placed above. If the signature is by an agent, other

than an officer of a corporation or a member of a partnership, a

Power of Attorney must be on file with the Owner prior to

opening bids or submitted with the bid; otherwise, the bid will

be disregarded as irregular and unauthorized.' It is clear from

this language that if an unauthorized person had signed, the bid

would be rejected. Here, no one signed the proposal form.

Although it may be argued that this should constitute a greater

failure to comply with the signature requirements, there is no

express statement that an unsigned bid will be rejected.

Further, this mandatory language controls the bidder, not the

board of supervisors. It requires a bidder to sign his bid, but

does not control the board's discretion to waive the

requirement.").

3 Pursuant to Special Condition C. of the ITB, Fleischer's was

ineligible to bid on Item 1 (Greenacres Elementary School) and

Item 2 (South Olive Elementary School) because it did not attend

the "mandatory site inspections" at those schools.

4 As noted above, there was no signature line on the Revised Bid

Summary Sheet.

5 Ms. Swan has been "delegated authority from the superintendent

to reject all bids" in School Board bid procurements.

6 Similar action was not taken with respect to Item 3 because

the "ambiguity" did not affect the outcome of competitive

bidding process with respect to that item.

7 See also § 1010.04(2), Fla. Stat. ("Each district school

board . . . shall adopt rules to be followed in making

purchases.").

8 The bid solicitation documents in the instant case clearly

indicated that there would be "multiple awards": one for each

of the three projects advertised. See Special Condition B.

("Contract will be awarded to the lowest responsive and

responsible bidder(s) for each item on the Bid Summary Sheet.").

9 A district school board is an "agency," as that term is used

elsewhere in Chapter 120, Florida Statutes (other than in

Section 120.57(3), Florida Statutes). See School Board of Palm

Beach County v. Survivors Charter Schools, Inc. , 3 So. 3d 1220,

1231 (Fla. 2009)("No one disputes that a school board is an

'agency' as that term is defined in the APA."); Volusia County

School Board v. Volusia Homes Builders Association , 946 So. 2d

1084, 1089 (Fla. 5th DCA 2006)("[T]he School Board is an agency

subject to the Administrative Procedure Act."); Sublett v.

District School Board of Sumter County , 617 So. 2d 374, 377

(Fla. 5th DCA 1993)("A county school board is a state agency

falling within Chapter 120 for purposes of quasi-judicial

administrative orders."); and Witgenstein v. School Board of

Leon County , 347 So. 2d 1069, 1071 (Fla. 1st DCA 1977)("It was

obviously the legislative intent to include local school

districts within the operation of Chapter 120."). It is not ,

however, an "agency," as that term is used in Section 120.57(3),

Florida Statutes, since, as a constitutionally-created entity,

it does not meet Section 287.012(1)'s definition of "agency."

See Dunbar Electric Supply v. School Board of Dade County , 690

So. 2d 1339, 1340 (Fla. 3d DCA 1997)("School boards are

constitutional entities created by Article IX, Section 4 of the

Florida Constitution. School boards do not fall within the

executive branch of the state government."); see also Dealer Tag

Agency, Inc. v. First Hillsborough County Auto Tag Agency, Inc. ,

14 So. 3d 1238, 1240 (Fla. 2d DCA 2009)("We find, however, that

the Tax Collector is a constitutional entity created by article

VIII, section 1(d) of the Florida Constitution and is not a

'state agency' that is part of the executive branch of the state

government. The fact that the Tax Collector is described as an

'authorized agent' of the DHSMV for the provisions of section

320.03 does not make it a state agency for the provisions of

chapters 287 and 120."); and First Quality Home Care, Inc. v.

Alliance for Aging, Inc. , 14 So. 3d 1149, 1152 (Fla. 3d DCA

2009)("Furthermore, Alliance is not a state 'agency' under

Florida's procurement statute. Section 120.57(3), Florida

Statutes (2008), provides for additional procedures applicable

to protests to contract solicitations or awards. Subsection

120.57(3)(g) states that '[f]or the purposes of this subsection,

the definitions in s. 287.012 apply.' Part I of chapter 287

governs public procurement of contractual services. Section

287.012(1) provides that 'agency' 'means any of the various

state officers, departments, boards, commissions, divisions,

bureaus, and councils and any other unit of organization,

however designated, of the executive branch of state

government.' Alliance does not fall within this definition as

it is not a listed entity. In addition, Alliance is not 'any

other unit of organization' because the express language of the

statute limits that designation to units of 'the executive

branch of the state government.' Clearly, Alliance -- a private

corporation -- is not a 'unit of organization' of the State's

executive branch. Accordingly, we hold that Alliance is not a

state agency pursuant to the definitions of 'agency' as provided

in the APA or in the procurement statute."). Accordingly, but

for its incorporation in School Board Rule 6Gx50-6.14, Section

120.57(3) would not be applicable in the instant case.

10 These "uniform rules of procedure" are found in Florida

Administrative Code Rule Chapter 28-110.

11 "To establish that one is adversely affected [within the

meaning of Section 120.57(3), Florida Statutes, and therefore

entitled to file a protest pursuant thereto], it must be shown

that the proposed action [under challenge] will cause immediate

injury in fact; and that the injury is of the type that the

pertinent statute was designed to protect." Advocacy Center for

Persons With Disabilities, Inc. v. Department of Children and

Family Services , 721 So. 2d 753, 755 (Fla. 1st DCA 1998). A

protester's lack of standing to file a protest is an affirmative

defense that, if not timely raised, is waived. See Krivanek v.

Take Back Tampa Political Committee , 625 So. 2d 840, 842 (Fla.

1993). Petitioner's lack of standing to file the instant

protest has not been raised as an affirmative defense in the

this case.

12 The "de novo proceeding" that an administrative law judge

must conduct pursuant to Section 120.57(3)(f), Florida Statutes,

when an "adversely affected" person's protest is referred to

DOAH is "a form of intra-agency review. The [j]udge may receive

evidence, as with any formal hearing under section 120.57(1),

but the object of the proceeding is to evaluate the action taken

by the agency" based upon the information that was available to

the agency at the time it took such action. State Contracting

and Engineering Corporation v. Department of Transportation , 709

So. 2d 607, 609 (Fla. 1st DCA 1998).

13 This last sentence of Section 120.57(3)(f), Florida Statutes,

represents a codification of the holding in Department of

Transportation v. Groves-Watkins Constructors , 530 So. 2d 912,

913 (Fla. 1988) that, where a state agency's decision to reject

all bids/proposals is challenged, "the hearing officer's sole

responsibility is to ascertain whether the agency acted

fraudulently, arbitrarily, illegally, or dishonestly" in making

its decision. (Pursuant to Chapter 96-159, Laws of Florida,

effective October 1, 1996, the title of DOAH's Hearing Officers

was changed to Administrative Law Judge.)

14 In paragraph 17. of its Proposed Recommended Order,

Petitioner withdrew its previously pled claim that this intended

action would be "dishonest," leaving only its claim of

"arbitrar[iness]" to be resolved. (Petitioner has not at any

time in this proceeding accused Respondent of acting in an

"illegal" or "fraudulent" manner.)

15 In Caber , as in the instant case, the agency had initially

announced proposed contract awards, but changed its mind and

decided to reject all bids after the proposed awards were

protested. Finding that the agency did not exceed its authority

"by rejecting all bids after Caber had filed its protests"

notwithstanding the mandate of the predecessor of Section

120.57(3), Florida Statutes, that "the agency shall stop the bid

solicitation process or the contract award process until the

subject of the protest is resolved by final agency action," the

Caber court (at 530 So. 2d 325, 337) stated the following:

The pertinent language in section

120.53(5)(c) provides that "the agency shall

stop the bid solicitation process or the

contract award process until the subject of

the protest is resolved by final agency

action." We construe this language, as does

the Department, to mean that the Department

could not continue the bidding process

leading toward the award of any contract to

other bidders until a bidder's protest had

been resolved, but not that the Department

was also precluded from immediately

rejecting all bids and initiating a new ITB

upon discovery of valid grounds for doing

so. Therefore, when Caber's first protest

revealed serious flaws in the ITB which

ultimately required the Department to reject

all bids (for reasons we hold were neither

arbitrary nor capricious), the pendency of

that protest did not deprive the Department

of authority to act upon this deficiency in

rejecting the bids. There is no limitation

in the statutory language restricting the

Department's power to immediately reject all

bids and start the bid process anew with a

valid ITB, rather than locking up the entire

process pending hearing on the protest so

that nothing could proceed. Once DGS had

decided to reject all bids for the reason

specified, to first await the outcome of a

hearing on Caber's first protest before

taking action would be a complete waste of

time and taxpayers' money. Of course, once

the decision to reject all bids was

announced, Caber was entitled to protest it,

as it did, and have the validity of the

Department's decision submitted to a hearing

under section 120.57. See Couch

Construction Co. v. Department of

Transportation , 361 So. 2d 172 (Fla. 1st DCA

1978). After the Department's decision to

reject had been heard by a hearing officer

pursuant to Caber's second protest and

determined to be valid under the applicable

law, the Department's final order rejecting

all bids became fully effective, thus

freeing the bidding process to immediately

begin anew, absent a stay of that final

order.

16 "Words in an instrument should be given their natural or most

commonly understood meaning." Tropabest Foods , 493 So. 2d at

51-52.

17 This would be true even if these material deviations were not

the product of any ambiguity in the ITB, but rather (as

Petitioner posits) were the direct result of the non-compliant

bidders' carelessness. There would be only one responsive bid

each for Items 1 and 2 if these deviations were indeed material,

and Florida Administrative Code Rule 6A-1.012(12)(c) authorizes

district school boards to reject all bids "[i]f less than two"

responsive bids are received in response to a bid solicitation.

See also M.H.M.S. Corporation v. Department of Management

Services , No. 98-4952BID, 1999 Fla. Div. Adm. Hear. LEXIS 5317

*11 (Fla. DOAH February 12, 1999)(Recommended Order)("It is not

arbitrary for Respondent to reject all bids if there is only one

responsive bidder.").

18 It therefore cannot be said, as Respondent has asserted in

numbered paragraph 98 of its Proposed Recommended Order, that

"[a]n analysis of whether [non-compliance with the] requirement

of a signature was a minor irregularity and therefore should

[be] waived is not appropriate as this matter is a rejection of

all bids case." Were the lack of a signature on the Revised Bid

Summary Sheet determined to be merely a "minor irregularity" and

not a material one, Respondent would have no apparent reasonable

justification not to waive this "irregularity" and award

contracts for Items 1 and 2 to the "lowest responsive and

responsible bidder" (as opposed to rejecting all bids and

rebidding).

19 See , e.g. , Miami-Dade County School Board v. J. Ruiz School

Bus Service, Inc. , 874 So. 2d 59, 62 (Fla. 3d DCA

2004)("[C]ompetitive bidding statutes were enacted for the

benefit of taxpayers . . . .").

COPIES FURNISHED:

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

Deborah K. Kearney,

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Robert W. Erikson, Co-owner and Chairman

Sun Art Painting Corporation

1966 West 9th Street, Suite A

Riviera Beach, Florida 33404

Kathelyn Jacques-Adams, Esquire

School Board of Palm Beach County

Office of the Chief Counsel

Post Office Box 19239

West Palm Beach, Florida 33416-9239

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.