11-000236BID L. Cobb Construction vs. Hardee County School Board Status: Closed Recommended Order on Wednesday, March 30, 2011.

Summary: Petitioner's bid was properly rejected by Respondent in favor of competing bid. The Board's decision was not arbitrary or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

L. COBB CONSTRUCTION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0236BID

)

HARDEE COUNTY SCHOOL BOARD , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant t o notice, a final hearing was conducted in this

case on February 18, 2011, in Wauchula, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Lavon Cobb, pro se

Greig Drury , Representative

L. Cobb Construction

401 South 6th Avenue

Wauchula, Florida 33873

For Respondent: Gavin W. O'Brien, Esquire

5704 Holmes Boulevard

Holmes Beach, Florida 34217

STA TEMENT OF THE ISSUES

This case is a bid protest filed by Petitioner, L. Cobb

Construction ("Cobb"), to contest the award of a contract by

Respondent, Hardee County School Board ("School Board"), to

another bidder to the exclusion of Cobb. The issue is w he ther

Cobb' s bid was responsive to the bid criteria ; and whether the

School Board 's award of the bid to another party should be

deemed clearly erroneous, contrary to competition, arbitrary or

capricious.

PRELIMINARY STATEMENT

On or about October 21, 2010, the School Board issued a Bid

Proposal for Roof Removal and Replacement. Seven bids were

received in response to the b id p roposal, and a decision to

award the contract to Latite Roofing Company ("Latite") was

published on November 16, 2010. Cobb timely f iled a protest

with the School Board, and a formal administrative hearing was

conducted , as set forth above.

At the final hearing, Cobb called three witnesses: Bill

Jernigan, Mike Cobb, and Timothy Rink. Cobb did not introduce

any exhibits into evidenc e. The School Board's Exhibits 2, 3

(parts 1 and 5), 4, and 9 through 11 were admitted into

evidence. The School Board called one witness: Scott Bonk.

The parties advised that a transcript of the proceeding

would be filed at the Division of Administrati ve Hearings

("DOAH") and were given ten days from the date of filing the

transcript to file proposed recommended orders. The Transcript

was filed on March 4, 2011. The School Board timely filed

Proposed Findings of Fact and Conclusions of Law, and the

su bmission was duly considered in the rendering of this

Recommended Order. As of the date of this Recommended Order,

Cobb ha s not filed a post - hearing submission.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of the proceeding,

including the Amended Joint Pre - Hearing Stipulation of the

parties, the following Findings of Fact are made:

1. Cobb is a construction company with decades of

experience and has been involved with projects for the School

Board in the past.

2. The School Board is responsible for bidding out all

construction projects and must determine the best qualified

bidder at the lowest price.

3. The parties agreed to the following facts as set forth

in their Amended Joint P re - Hearing Stipulation:

Ʊ A "Bid Proposal for Roof Removal and Replacement"

advertisement was placed in the Herald - Advocate

newspaper on October 21, 2010. ( The roof

replacement will be referred to herein as the

"Project." )

Ʊ A mandatory pre - bid meeting a t Wauchula

Elementary was held for potential roofing

contractors on October 29, 2010. The meeting was

led by roofing consultant Scott Bonk and

Associates ("Bonk").

Ʊ The School Board received Cobb's bid on the

Project at 12:34 p.m. , on November 15, 2010.

Ʊ School Board officials began opening all bids for

the Project at 1:00 p.m. , on November 15, 2010.

Ʊ Project bids were received from Cobb, Advanced

Roofing, Crowther Roofing, Hamilton Roofing,

Latite Roofing & Sheet Metal, Southern Roofing,

and THL Roof ing.

Ʊ Bonk was present at the time the bids were

opened.

Ʊ Bonk sent an email to Rob Krahl on November 16,

2010, concerning Cobb and Latite's bids. Bonk

advised Krahl that the Cobb bid did not meet the

specified components , but that the Latite bid met

all components and timeframes for the Project.

Ʊ Bonk recommended Latite as contractor for the

Project.

Ʊ The School Board approved the recommendation of

Latite, whose bid was $152,065 for the

replacement of the roofs on building No s . 5 (the

e xceptional s tudent e ducation or "ESE" building)

and 6 (the media center).

Ʊ On November 17, 2010, Deputy Superintendent Woody

Caligan faxed School Board Policy 6.07(5),

entitled Bid Disputes and Procedures, to Cobb.

Ʊ A Notice to Proceed letter was faxed to Bonk on

the same date, authorizing Latite to commence the

Project. A denial letter was also faxed to each

of the other bidders.

Ʊ On November 18, 2010, Cobb hand - delivered a

Notice of Protest to Rob Krahl at the School

Board.

Ʊ On November 26, 2010, Cobb mai led a cover letter

and three original Letters of Protest, along with

a cashier's check for the protest bond, to Rob

Krahl.

Ʊ On November 29, 2010, Cobb faxed a copy of proof

of postage, School Board Rule 6.07(5), its Letter

of Protest, and a copy of its p reviously - issued

cashier's check to Wood Caligan after Caligan

indicated that he had not received the mailed

version.

Ʊ The School Board is the governing entity of the

school district of Hardee County, Florida.

Ʊ David Durastanti is the superintendent of schools

for Hardee County; Woody Caligan is the deputy

superintendent. Rob Krahl is an employee of the

School Board and is responsible for facilities

and construction projects for the school system.

Barbara Spears is a School Board employee serving

unde r Krahl. Joann McCray serves as secretary to

the superintendent. Greg Harrelson is the chief

financial officer for the school district.

H arrelson's duties include the receipt, review

and award of bids for the school district.

4. A document entitled , " Project Manual , " was issued by

Bonk relative to the request for bids on the Project. The

Project Manual contained the specifications for the Project,

including a section entitled , "Bid Form" (comprised of pages 20

through 22). The Bid Form is the critica l portion of the

Project Manual for purposes of the instant proceeding.

5. The Bid Form had several blanks to be filled in by the

bidding party. The bidder was to fill in the contractor's name,

a projected cost for the replacement of both roofs (the ESE

building and the media center), a total cost line, a line for

the amount of the payment, and a line for the performance bond

amount. Following those blanks, there was a section that forms

the crux of the dispute in this case. That section provided a

spa ce for identification of materials proposed by each bidder.

It appeared as follows:

6. The base bid price is based on the following:

A. Manufacturer's Name ________________________

B. Base Sheet ________________________

C. Intermediate Ply _____ ___________________

D. Granulated Ply ________________________

E. Insulation Manufacturer ________________________

7. The responses by Cobb to this section of the Bid Form

were deemed inappropriate by Bonk. Latite's responses to this

section were dee med appropriate and compliant with the bid

requirements.

8. Cobb's responses were as follows:

A. Manufacturer's Name: GAF

B. Base Sheet: GAF - Ruberoid Modified Base

C. Intermediate Ply: GAF - Ruberoid

D. Granulated Ply: GAF - Ruberoid Mop Plus

E. Insulation Manufacturer: GAF

9. Latite's responses were as follows:

A. Manufacturer's Name : Soprema

B. Base Sheet : Sopra 6

C. Intermediate Ply : Elastophene 180 Sanded

D. Granulated Ply : Elastophene FR 6R

E. Insulation Manufa cturer : GAF (Made by Atlas)

10. These responses indicate the primary differences

between Cobb and Latite's bids. Another important factor (and

distinction between Cobb and Latite's bids) was the roof

insulation material proposed by each. Cobb proposed u sing

Perlite; Latite proposed Sopra Board. These will be discussed

more fully herein.

11. GAF, referenced by both Cobb and Latite in their

responses, is the largest roofing manufacturer in the United

States. The company is 125 years old and is based in W ayne,

New Jersey. A representative of GAF testified at final hearing.

12. At about the time bids were submitted for the Project,

a representative from Bonk's office called GAF to discuss

specifications about various GAF products. There were at least

two conversations, one of which was generic in nature and one

which somewhat addressed the Project specifically.

13. Bonk determined from the discussions with GAF that

neither the Ruberoid Mop Plus proposed by Cobb for its

granulated ply , nor the Ruberoid Mo dified Base Sheet portion of

the bid was available in Florida. Further, Bonk learned that

the Perlite product proposed for the roof insulation by Cobb was

inferior to the Sopra Board proposed by Latite. A letter

setting forth his findings was sent to the School Board on

November 16, 2010.

14. The Project Manual set forth certain specifications to

be used by bidders concerning materials to be used for the

Project. The roofing system specifications contained a

direction that " [s] hould Soprema products be u sed, the following

membrane sheets are required , " and then went on to list the

various products that could be used. Latite proposed the use of

Soprema products and most of its materials were Soprema brand

(except for its insulation, where a GAF brand prod uct was

proposed). Cobb, on the other hand, bid GAF products for each

of the major Project components.

15. By using Soprema products, Latite e nsured compliance

with the basic specifications set forth in the Project Manual.

Generally a project bid sheet w ill contain an ASTM product code

number which allows contractors to look at comparable materials

from different manufacturers. The Project Manual in this case

did not include ASTM codes. Any bidder proposing to use

materials made by a company other than Soprema, therefore, would

be required to independently determine comparability with the

Soprema brand product.

16. Cobb's proposed materials list included non - Soprema

manufactured products. The GAF products proposed by Cobb may

generally have been compara ble to the Soprema products, but the

evidence is not persuasive as to that fact. Although the GAF

representative testified that its products were of high quality

and would likely satisfy the requirements for the Project, there

was some question as to whet her the items set forth by Cobb in

its bid were sufficiently described. Bonk made some inquiry

into the matter by contacting GAF, but the hearsay and nebulous

nature of those discussions do es not provide sufficient detail

for formulation of a finding of f act as to whether the products

were of comparable quality.

17. Cobb proposed a product for the top membrane ply that

was constructed using polyester material. The Project Manual

called for ply with fiberglass construction. Both are quality

products, bu t the polyester material has a tendency to shrink,

especially if it is installed incorrectly.

18. Of the s ix other entities submit ting a bid for the

Project, all of them proposed use of Soprema products or

materials that were deemed equal in quality. Cobb 's bid was the

only bidder whose proposed products were deemed insufficient.

One other bidder was also rejected due to time frame issues.

None of the other bidders filed a protest or challenged the

final decision of the School Board.

19. The School Board 's stated rationale for rejection of

Cobb's bid was that the generic description of Cobb's proposed

building materials made it difficult, if not impossible, to

ascertain whether they met the standards set forth in the

Project Manual. This rationale is nei ther arbitrary nor

capricious and is based on sound reasoning.

20. Cobb's bid, although more generic than the School

Board would have liked, was nonetheless a viable bid. Cobb

would have been able to explain and make his bid more specific

had he been give n the opportunity. However, the School Board

did not owe Cobb the right to alter, amend , or explain its bid

more fully after the bid process was complete. To do so would

give Cobb an inequitable advantage , vis - à - vis , the competing

bidders.

21. It is very likely that Cobb could effectively and

professionally complete wo rk on the Project. However, it s bid

was not exactly in accordance with the requirements of the

Project Manual and w as justifiably rejected in favor of Latite's

bid.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (20 10 ). 1/

23. Subsection 120.57(3)(f) provides in pertinent part:

In a prote st 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. . . Unless

otherwise provided by statute, the burden of

proof shall r est 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 to determine

whether the agency's pr oposed 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 com petition,

arbitrary or capricious.

24. "A capricious action is one taken without thought or

reason or irrationally. An arbitrary decision is one not

supported by facts or logic." Agrico Chemical Co. v. Dep't of

Envt l ' Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 1978). In order

to prove that an action is arbitrary, capricious, contrary to

competition or clearly erroneous, the challenging party is held

to a preponderance of the evidence standard. Dep't of Transp.

v. Groves - Watkins Constructors , 530 So. 2d 91 2, 913 - 914 (Fla.

1988).

25. While section 120.57(3)(f) describes the standard of

review as de novo, for the purposes of a protest to a

competitive procurement , the courts have viewed the hearing as a

"form of inter - agency review." State Contracting & Eng ' g Corp.

v. Dep't of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998)

(citing Intercontinental Prop. Inc. v. State Dep't of HRS , 606

So. 2d 380 (Fla. 3d DCA 1992)). The object of a bid dispute is

to evaluate the action taken by the agency based upon the

in formation that was available to the agency at the time it took

such action. § 120.57(1).

26. Both Cobb and Latite submitted generally responsive

bids for the Project , which were reviewed by the School Board.

The review was done logically, with forethough t and reason. The

review was neither arbitrary , nor capricious as carried out by

the School Board. Cobb was within its rights to use other than

Soprema products , but , in doing so , was bound to submit a

proposal for comparable materials.

27. Within the co ntext of its review of proposals, the

owner of the project is generally given the discretion to view

projects as a whole and to waive or ignore minor irregularities.

A minor irregularity is a variation from the bid invitation or

proposal terms and conditi ons, which does not affect the price

of the bid or give the bidder an advantage or benefit not

enjoyed by other bidders, or does not adversely affect the

interests of the governmental entity letting the bid. Liberty

Cnty . v. Baxter's Asphalt & Concrete, I nc. , 421 So. 2d 505 (Fla.

1982).

28. Cobb's failure to provide a list of products or

materials that could be deemed equal to those set forth in the

Project Manual's specifications was not a minor irregularity.

If the products were inferior or less expensi ve and there is

insufficient evidence in the record to determine one way or the

other , then Cobb may have had an improper advantage over its

competitors.

29. Agencies enjoy wide discretion when it comes to

soliciting and accepting proposals ; and an agency' s decision,

when based upon an honest exercise of such discretion, will not

be set aside , even where it may appear erroneous or if

reasonable people might disagree. Baxter's Asphalt & Concrete,

Inc. v. Dep't of Transp . , 475 So. 2d 1284, 1287 (Fla. 1st DCA

1985). Capelletti Bros . , Inc. v . State, Dep't of Gen . Servs . ,

432 So. 2d 1359, 1363 (Fla. 1st DCA 1983). DOAH has a history

of upholding an agency's decision if such action was within the

realm of reasonableness. See , e.g. , M/A Corn, Inc. v . Dep't of

M gmt . Servs . , State Tech . Of c . , Case No. 04 - 1091BID (DOAH

May 25, 2004); Hemophilia Health Servs . , Inc. v. A g. f or Hea l th

Care Admin. , Case No. 04 - 0017BID (DOAH Apr . 29, 2004); Paul

Sierra Constr . , Inc. v. S.W. Fla. Water Mgmt. Dist. , Case

No. 02 - 3790BID (D OAH Dec . 4, 2002); Just for Kids, Inc. v. Palm

C nt y . Sch . Bd . , Case No. 03 - 2168BID (DOAH Nov . 7, 2003).

30. There is no evidence in the present case to suggest

that the School Board acted in any fashion other than honestly

and fairly. The review of compe ting bids was carried out

uniformly as it related to each bidder. The award of the

contract to Latite was based upon sound reasoning and rationale.

31. Latite submitted a responsive bid. Cobb's bid

contained components which appeared to be less than wha t was

desired. Either entity could perform the terms of the contract,

but the School Board's decision to award Latite, rather than

Cobb, is a matter of discretion and was supported by the facts.

It was neither arbitrary, nor capricious, to select Latite as

the prevailing bidder.

32. A decision is considered to be clearly erroneous when

although there is evidence to support it, after review of the

entire record , the tribunal is left with the definite and firm

conviction that a mistake has been committed. U.S. v. U.S.

Gypsum Co. , 333 U.S. 3 6 4, 395 (1948). The record in the present

case does not support the contention that any mistake was made.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Hardee County School Board , upholding its award of the contract

to Latite Roofing Company and denying the protest by Petitioner,

L. Cobb Construction.

DONE AND ENT ERED this 30th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filin g (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of March , 2011 .

ENDNOTE

1/ All statutory references are to Florida Statutes (20 10 ),

unless otherwise noted.

COPIES FURNISHED :

Dr. Er ic J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gain es Street

Tallahassee, Florida 32399 - 0400

David Durastanti, Superintendent

Hardee County School Board

1009 North 6th Avenue

Post Office Box 1678

Wauchula, Florida 33873 - 1678

Lavon Cobb

Greig Drury, Representative

L. Cobb Construction

401 South 6th Ave nue

Wauchula, Florida 33873

Rob Krahl

Hardee County School Board

1015 State Road 66

Wauchula, Florida 33890 - 3800

Gavin W. O'Brien, Esquire

5704 Holmes Boulevard

Holmes Beach, Florida 34217

NOTICE OF R IGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 0 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this cas e.