12-002288BID Traveler Elevator vs. Florida School For The Deaf And The Blind Status: Closed Recommended Order on Friday, September 14, 2012.

Summary: Petitioner failed to prove that agency's rejection of all bids is illegal, arbitrary, dishonest, or fraudulent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRAVELER ELEVATOR , )

)

Petitioner, )

)

vs. )

)

FLORIDA SCHOOL FOR THE ) Case No. 1 2 - 2288 BID

DEAF AND THE BLIND , )

)

R espondent. )

)

R ECOMMENDED ORDER

On July 26 , 201 2 , a duly - noticed video conference hearing

was held with sites in Jacksonville and Tallahassee , F lorida,

before F. Scott Boyd, an Administrative Law Judge assigned by

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William David Talbert II, Esquire

1930 San Marco Boulevard , Suite 202

Jacksonville, Florida 3 2207

For Respond ent: Frank Damon Kitchen , Esquire

Constangy, Brooks and Smith, LLC

200 West Forsyth Street , Suite 1700

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent ' s reject ion of all bids submitted in

response to IT B - 05 - 23 - 12 , relating to a contract for annual

elevator maintenance and repair services, is illegal , arbitrary,

dishonest, or fraudulent.

PRELIMINARY STATEMENT

On May 23, 2012 , Respondent , Florida School for the Deaf

and the Blind (the School) , solicit ed competitive bids for the

award of its annual elevator maintenance, inspection, and repair

services contract. On J une 18 , 2012, the School posted the bid

tabulation and its notice of award recommendation to the lowest

bidder, Otis Elevator (Otis) . T he ne x t - lowest bidder, Traveler

Elevator (Traveler) , s erved the School with an e - mail notice of

its intent to protest the decision on June 18, 2012 , and hand -

delivered its written formal p rotest in letter form later that

same day . On June 21 , 2012, the School advised Traveler and the

other bidders that it was exercising its right to reject all

bids. It further advised that a date for the rebidding of the

contract had not been determined. On June 22, 2012, Traveler e -

mailed the School, object ing to the rejecti on of all bids and

request ing a formal hearing. On June 29 , 2012, the matter was

referred to the Division of Administrative Hearings (Division)

for assignment of an administrative law judge.

Hearing was set for July 26 , 2012 . Stipulated facts

contained in the Joint Prehearing St atement were accepted and

Petitioner ' s Exhibits P - 1 through P - 4 and Respondent ' s Exhibits

R - 1 through R - 9 were admitted, all without objection.

Petitioner offered the testimony of one w itness, Mr. Mark

DeWitt , Traveler ' s party r epresentative . Respondent offered the

testimony of six witnesses , all School employees : Mr. Jerry

Chandlee, Police Chief; Ms. Victoria Cannon, Security Officer;

Mr. Jerry Ars e nault, Facilities Superintendent; Mr. Dennis

Baker, Project Manager; Ms. Donna Thompson, Administrative

Assistant; and Ms. Laura Bowden, Contract Ad ministrator.

The T ranscript was filed with the Division on A ugust 13,

2012. Respondent timely submitted a Proposed Recommended Order .

Petitioner submi t t ed a Proposed Recommended Ord er seven days

after the deadline . On September 4, 2012, Respondent filed a

Motion to Strike Petitioner ' s Late - Filed Proposed Recommended

Order. Respondent asserted t hat it would be prejudiced because ,

unlike Petitioner, Respondent did not have the opport unity to

review PetitionerÓs Proposed Recommended Order before filing.

On September 11, 2012, PetitionerÓs Response in Opposition to

RespondentÓs Motion to Strike was filed, setting forth reasons

for the delay and averring that Petitioner had not read

Res pondentÓs Proposed Recommended Order before filing. Although

filed seven days late, under all of the circumstances the

undersigned finds no prejudice would result from consideration

of PetitionerÓs Proposed Recommended Order. The Motion to

Strike is deni ed. Both Proposed Recommended Order s were

considered in the preparation of this R ecommended O rder.

FINDIN GS OF FACT

1 . Respondent Florida School for the Deaf and the Blind is

a state - supported residential public school for hearing - impaired

and visual ly - impaired students in preschool through 12 th grade.

2 . Access to the School is restricted for the protection

of the students that are enrolled there . V isitors to the S chool

campus must obtain credentials through a visitor identification

badging system maintained by the Campus Police Department before

they are permitted to enter. There are only two locations from

which access badges may be obtained. The first is the Campus

Police Department Communications Center and the second is the

Campus Police Dep artment Guardhouse at the Genoply Street gate.

There are no off - campus locations from which badges may be

obtained.

3 . Petitioner Traveler is a corporation registered with

the Department of Business and Professional Regulation under the

provisions of c hapter 399, Florida Statutes, to construct,

install, inspect, maintain, and repair elevators. Mr. Mark

DeWitt is an owner of Traveler.

4 . Otis was the incumbent contractor providing service to

the School ' s elevators, a position it ha d held for the last

three years.

5 . On May 23, 2012 , in Invitation to Bid 05 - 23 - 12 ( the

ITB) , t he School solicited competitive bids for the award of a

contract to provide elevator maintenance, inspection, and repair

services for elevators at various locations on the Schoo l campus

(contract) .

6 . The I TB was a one page document which s t ated :

The Florida School for the Deaf and the

Blind, 207 N. San Marco Avenue, St.

Augustine, FL 32084 will receive bids in the

P urchasing Department June 14, 2012 , until

2:00 p.m. for the p urpose of selecting an

Elevator contractor for supplying all labor,

material, and ancillary services required

for the scope listed below.

Scope of Project : The purpose and intent

of this invitation to bid is to select

( 1 ) Elevator contractor who i s OEM certified

and OEM trained to provide preventative

maintenance (PM) services to elevators on a

monthly schedule at various campus locations

and who will deliver and install parts and

provide emergency repair service for a

period of ( 1 ) year with the o ption to renew

(2) additional years contingent upon

availability of funding and satisfactory

performance by the contractor.

Licensing Requirements : All contractors

must possess any applicable licenses

required for this type of work per the State

of Flo rida Department of Business and

Professional Regulation.

Mandatory Pre Bid Conference : A mandatory

pre bid conference will be held at The

Florida School for the Deaf and the Blind,

207 N. San Marco Avenue, St. Augustine, FL

32084, Hogel Building #27, Co nference Room

on June 7, 2012 at 10:00 a.m. All attendees

will be checked through Campus Security, so

allow ample time. Attendance at this pre

bid conference is mandatory in order for all

potential bidders to receive the benefit of

answers to theirs and other ' s technical

questions first hand. It is imperative that

all the i nformation be disseminated in a

public forum with all potential bidders

p resent to minimize confusion or

misunderstandings. Additions or changes to

the original bid documents resultin g from

this conference of a material nature will be

documented in the form of written addenda

and distributed to all attende e s. Please

note that if you are late to this mandatory

pre bid conference you will not be eligible

to sign the attendance roster an d therefore

may not submit a bid.

Any person with a qualified disability

requiring special accommodations at the pre

bid conference and / or bid opening shall

contact the Purchasing Office at 904 - 827 -

2356 at least (5) working days prior to this

event. If you are hearing or speech

impaired, please contact this office by

using the Florida Relay Services which can

be r e ached at 1 - 800 - 955 - 8772.

The Florida School for the Deaf and the

Blind reserves the right to reject any and

all bids and accept minor irre gularities in

the best interest of the State of Florida.

7 . Neither Traveler nor any other bidder filed a notice of

protest to the terms, conditions, or specifications contained in

the solicitation within 72 hours of the posting of th is

solicitation.

8 . As provided in the I TB , a pre - bid conference was held

regarding the contract at 10:00 a . m . on Ju n e 7, 2012 , in the

Hogel Maintenance Building Conference Room .

9. Mr. DeWitt and Mr. Jim Halstead, another owner of

Traveler, arrived at the conference roo m about 9:40 a.m. They

had taken about two minutes to pass through the security gate at

the front of the campus, and about ten minutes more to then

navigate the speed bumps, stop signs, and crosswalks to arrive

at the Hogel Maintenance Building area and m ake their way to the

conference room.

10 . Prior to 10 : 00 a.m. two cars , containing Mr. Joe Ramos

and Mr. Max Stanley of Kone Elevators and Mr. David Baskin of

Otis, were at the Campus Police Department Communications Center

attempting to get access badges . Security Officer Victoria

Cannon attempted to scan their identification cards to process

them through the electronic visitor identification manager

software, but the program was " frozen " on her computer screen

and she was unable to do so. She attempted to " tinker " with the

computer to get it to work, but was unsuccessful. She instead

checked the visitors ' identification and prepared the old

handwritten badges that had been used prior to the electronic

scan system. These were self - adhesive badges with a red

background that the occupants of the vehicles put on their

clothes. The old badges had not been used for about seven

years , because the School had put in the electronic system to

enhance security . A stock of the old badges had been maintained

to us e as a temporary backup if the electronic system went down.

Officer Cannon testified that the men were " delayed a little "

but provided no more specific estimate as to the length of time.

11 . When the three men left the Campus Police Department

Communica tions Center , Officer Cannon then communicated with

Security Officer Bruce Hardy in the guardhouse to let him know

that the visitors had been approved for entry onto the campus ,

so they would not have to be run through the system at the

guardhouse .

12 . Campus Police Chief Jerry Chandlee was at the police

guardhouse on Genoply Avenue with Officer Hardy when the call to

Officer Hardy from Officer Cannon came in. When the first

vehicle arrived, Chief Chandlee saw the red temporary visitor ID

badge. It was about 9:55 a.m. He de cided that he wanted to

issue the standard electronic visitor ID badge so that

identification information would be collected electronically , as

the system had been set up to do. The electronic information

allows a check with the Florida Crime Information System and the

National Crime Information System. Chief Chandlee then called

Officer Cannon to find out why the men had been given the old

red manual badges and learned that her computer had not been

working correctly. The secon d vehicle arrived at the gate about

9:58 a.m. Chief Chandlee directed Officer Hardy to request

driver ' s licenses again from all three men and to process them

through the electronic system. Chief Chandlee said it only took

about a minute to process each e lectronic identification card .

13 . Chief Chandlee learned when talking with the occupants

of the second vehicle that the men were seeking entry to the

campus to attend the pre - bid conference. Chief Chandlee was

requested to make a courtesy call to the l ocation of the bid

meeting informing them that the men had been detained by

security and might be late. Chief Chandlee apologized for the

delay and asked Officer Hardy to make the call. When Officer

Hardy called Administrative Assistant Donna Thompson to explain

that bidders had been held up by the Campus Police Department,

she replied, " Well, it ' s ten o ' clock. So they need to hustle. "

Ms. Thompson was sitting inside her office . She did not

immediately inform Ms. Laura Bowden, who was in charge of the

pre - bid conference and was already inside the conference room

with the door closed. Ms. T hompson decided to go to the

building entrance to make sure that the men found the building

without a problem.

14 . At about 10:00 a.m., the pre - bid conference was

convened by Ms. Laura Bowden. She began by reading the

contract. Also present at this time , in addition to Ms. Bowd e n,

Mr. DeWitt, and Mr. Halstead, were several others : Mr. Harper

Smith, representing ThyssenKrupp Elevators; Mr. Cliff Vaughn,

Representi ng First Coast Elevators ; Mr. Noel Fossette,

representing Schindler Elevator ; Mr. Jerry Arsenault, Facilities

Superintendent for the School; and Mr. Dennis Baker, a Project

Manager for the School. At the conference, bidders were

provided a copy of a " pre - bid packet " containing additional

information about the elevator contract.

15 . When the three men arrived at the Hogel Maintenance

Building, Ms. Thompson was waiting for them. She opened up the

building entrance door and waved, because they were about t o

pass by it, brought them inside the building, and escorted them

over to the conference room door. Ms. Thompson then returned to

her office.

16 . Ms. Bowden had read a couple of pages of the contract,

when Mr. Ramos , Mr. Stanley, and Mr. Baskin came in to the

meeting. Ms. Bowden said, " You ' re late. " As soon as she did

so, Mr. Arsenault instinctively looked at the clock on the wall.

He testified that it read 10:07 a.m. Mr. Baker also testified

that it was seven or eight minutes past 10:00 when the men

arrived. One of the men responded to Ms. Bowden ' s comment with

the statement that police security had already called the

secretary.

17 . Ms. Bowden left the conference room and went to

Ms. Thompson ' s office. Ms. Bowden asked Ms. Thompson if she

knew wh y the bidders had been late. Ms. Thompson explained that

she had received a call from Officer Hardy, stating that the

Campus Police had held them up there. Ms. Bowden thanked her

and returned to the conference room.

18 . Once back in the conference room , Ms. Bowden restarted

the meeting. She began reading the contract again from the

beginning. No questions had been asked before the late

arrivals, and t here was no information that had been given

earlier that was not repeated when the meeting was rest art ed.

The late - bidders were allowed to sign the attendance rost er. No

one protested that late - bidders were allowed to attend the

meeting, that the meeting was restarted, or that the late -

bidders were allowed to sign the attendance roster.

1 9. Ms. Bowden was aware that the I TB stated that any

bidder late to the pre - bid conference would not be eligible to

sign the attendance roster and could not submit a bid. However,

based on the information she had from Ms. Thompson, Ms. Bowden

decided that it had been t he S chool ' s fault, and not their own,

that the late bidders had not arrived at the conference room on

time. She allowed the late - bidders from Kone and Otis to attend

the pre - bid conference because under the circumstances she

thought their late arrival was a minor irregularity. As

indicated i n the I TB , attendance at the pre - bid conference was

mandatory to allow all potential bidders to receive the benefit

of answers to their own and others ' technical questions

firsthand. Ms. Bowden had received no questio ns prior to the

entry of the Kone and Otis representatives, and she started the

meeting over to ensure that all bidders received the same

information .

20 . On June 14, there was a public bid opening, which was

attended by Mr. DeWitt of Traveler a s well as Mr. Baskin and

another representative of Otis, among othersaveler could

hear who the bidders were , and was aware that Otis had been

allowed to submit a bid. At that time, Traveler made no

objection that Otis had been permitted to bid.

21 . The Scho ol applied the same criterion to all bids when

evaluating them. Rankings in various categories were combined

pursuant to a weighted formula to arrive at a total weight for

each bidder. In the overall ranking of the bids, Otis ranked

first, while Traveler came in second.

22 . On June 18, 2012, at 9:30 a.m. , the Bid Tabulation and

Notice of Award Recommendation was posted. T he School prepared

and disseminated it to each o f the bidders . It indicated that

the S chool was recommending that the contract be aw arded to Otis

as the lowest responsive bidder. Traveler was listed as the

second lowest bidder.

23 . Traveler e - mailed a Notice of Protest in response to

the School ' s recommendation about 10:49 a.m. on June 18, 2012,

followed the same day by a formal prot est. A s grounds for its

protest, Traveler contend ed that Otis had been late to the pre -

bid conference, and pursuant to the procedures set forth in the

I TB should not have been allowed to sign the a ttendance roster

or submit a bid .

24 . Ms. Bowden still b elieved the late arrival of Otis was

a minor irregularity, but she could not know if an

administrative law judge would necessarily agree aveler was

contesting that conclusion , claiming that the failure of Otis

was a material deviation from the explicit bid specifications

and that the School was required to reject the Otis bid and

award the contract to Traveler. She testified that if she had

determined that the late arrival to the pre - bid conference by

Otis had been a material deviation, and awarded the contract to

Traveler, that she believed that Otis would surely have

protested. After careful consideration and discussions with

counsel, Ms. Bowden decided to reject all bids.

25 . On June 21, 2012, the School notified Traveler and the

other bidders th at it was exercising its right to reject all

bids and re - bid the contract, a t a yet undetermined date in the

future.

26 . On June 22, 2012, Traveler e - mailed the School ,

object ing to FSDB ' s rejection of all bids and request ing that

the matter be referred t o the Division of Administrative

Hearings.

27 . On July 10, 2012, Respondent filed a Notice of

Compliance with Paragraphs 2 and 3 of the Order of Pre - Hearing

Instructions, indicating that it had notified all bidders that

if they wished to intervene they m ust file a Petition to

Intervene at the earliest practicable date. No Petition to

Intervene was received from any person prior to hearing .

28 . At hearing on July 26, 2012 , Mr. Cliff Vaughn appeared

and asked that he be allowed to participate, or in the

a lternative that a continuance be granted. Mr. Vaughn was a

corporate officer of First Coast Elevator , the third - place

bidder . Mr. Vaughn stated he support ed the School ' s action in

rejecting all bids. Mr. Vaughn admitted that he had received

the notice r equiring him to file a Petition if he wished to

Intervene.

2 9. No Petition had been filed by Mr. Vaughn and his

appearance at hearing was the first time either party was aware

of his interest. He was n ot eligible to represent his

corporation in a " pro se " capacity. Given the statutory policy

in favor of expedited hearings in bid protests , the granting of

a continuance after the hearing had begun would not serve the

public interest and would be unfair to the parties. His

requests were denied.

30 . T he School ' s rejection of all b ids d oes not have the

purpose or effect of defeating the object and integrity of the

competitive bidding process and d oes not give an unfair

competitive advantage to any bidder.

31 . The School ' s rejection of all bids is not illegal,

arbitrary, dishonest, or fraudulent.

C ONCLUSIONS OF LAW

32 . The Division of Administrative Hearings has

jurisdiction over the subject matter and parties in this case

under sections 120.569 and 120.57(1), Florida Statutes .

33 . Petitioner bears t he burden of proof, which rests with

the party protesting proposed agency action. § 120.57(3)(f);

State Contracting and Eng. Corp. v. Dep ' t of Transp. , 709 So. 2d

607, 609 (Fla. 1st DCA 1998).

34 . As a preliminary matter, Respondent argues that

Petition er has waived its right to protest because the challenge

is actually an untimely protest of the specifications of the

ITB.

35 . Respondent cites s ection 120.57(3) (b) , which

establishes the applicable point of entry for a challenge to bid

specifications . It provid es in part: " 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 furthe r 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 solicitation was posted on May 23, 2012. The protest was

not filed until June 18, 2012.

36 . Contrary to Respondent ' s a ssertion, no protest to the

specifications of the ITB is involved here. Petitioner is not

objecting to the terms, conditions, or specifications of the

ITB , to which it would indeed have been required to raise

objection within 72 hours after posting. Specification protests

are intended to allow an agency to correct or clarify

specifications prior to accepting bids in order to save expense

to the bidders and to assure fair competition. Consultech of

Jacksonville v. Dep ' t of Healt h , 876 So. 2d 731, 734 (Fla. 1st

DCA 2004).

37 . In fact, the actual grounds of protest in this case --

that Otis was admitted to the pre - bid conference , was permitted

to sign the attendance roster , and was allowed to submit a bid -

- did not a rise , at th e earliest, until June 7, 2012, well

after the 72 - hour window of opportunity h ad passed. The

A dministrative Procedure Act does not require bidders to

accurately prophesy the future to avoid waiv ing claims that have

yet to arise. Claims that an agency ' s subsequent bid

solicitation processes are flawed are considered in a protest of

the intended decision. Cf . Fort Howard v. Dep ' t of Mgmt .

Servs. , 624 So. 2d 783, 784 (Fla. 1 st DCA 1993) .

38 . Respondent next argues that even if this was not a

protest of t he bid specifications, Petitioner nevertheless had

an obligation to object as soon as it became aware of what it

perceived to be a ny procedural defect s in the conduct of the

solicitation . Respondent notes that it was apparent to

Petitioner at the pre - bid conference -- or at various point s

after that, but prior to the announcement of intended award --

that Respondent was going to accept, or had accepted , a bid from

Otis , and yet Petitioner raised no protest or objection at any

of those points , but instead w aited until the intended award was

announced.

3 9. A protest to procedures followed by Respondent on

June 7, 2012, during the pre - hearing conference and , especially,

in subsequently failing to reject the bid from Otis , did not

need to be raised until the intended award wa s announced . GTECH

Corp. v. Dep ' t of the Lottery , 737 So. 2d 615 (Fla. 1st DCA

1999)(remedy for violation of contract procurement procedures is

cognizable in chapter 120 hearing) . The point of entry for such

procedural protests is set b y statute . T he time for filing a

protest begins to run upon the posting of the intended decision ,

which occurred on June 18, 2012 . Petitioner needed to post a

notice of protest within 72 hours, and a formal written protest

within ten days. Petitioner di d this , and cannot be said to

have waived its protest b ecause it failed to complain earlier .

40 . Petitioner ' s challenge s to the intention to award the

contract to Otis and to the subsequent determination to reject

all bids were therefore timely filed.

41 . At hearing, Mr. Vaughn appeared, requesting that he be

allowed to represent First Coast Elevator or that a continuance

be granted. These requests were denied. Mr. Vaughn was

ineligible to represent his corporate entity in a " pro se "

capacity, but h aving not filed a Petition to Intervene, had not

been informed of this. Given the expedited nature of bid

protests, and the preparation of the parties and witnesses, a

last - minute continuance was found to be unfair to the parties.

42 . In a bid protest pr oceeding brought following the

rejection of all competitive proposals, the applicable standard

of review is that developed in Dep ' t of Transp. v. Groves -

Watkins Constructors , 530 So. 2d 912, 914 (Fla. 1988), a case in

which the Florida Supreme Court held t hat the administrative law

judge ' s " responsibility is to ascertain whether the agency acted

fraudulently, arbitrarily, illegally or dishonestly. " The

Administrative Procedure Act was subsequently amended to provide

that this was the applicable standard wh en an agency rejects all

bids. § 120.57(3)(f).

43 . This is a stringent burden. As the First District has

stated, " an agency ' s rejection of all bids must stand, absent a

showing that the ' purpose or effect of the rejection is to

defeat the object and integrity of competitive bidding. ' " Gulf

Real Props., Inc. v. Dep ' t of H RS , 687 So. 2d 1336, 1338 (Fla.

1st DCA 1997).

44 . Petitioner did not allege that the Department ' s action

in rejecting all bids was fraudulent, illegal, or dishonest, and

there was no evidence presented suggesting that it was .

Petitioner contends that Respondent ' s decision to reject all

bids is arbitrary.

45 . Testimony at hearing indicated that Respondent based

its original decision to award the contract to Otis on its

belief that Respondent itself had been responsible for the

failure of Otis to show up at the pre - hearing conference on

time. Cf . Asphalt Pavers, Inc. v. Dep ' t of Transp. , 602 So. 2d

558 (Fla. 1 st DCA 1992)( rejection of b id for failure to include

a form that the agenc y itself lost was clearly arbitrary).

Respondent also noted that the purpose of making the conference

mandatory was for all bidders to receive the same answers to

questions at the same time, and that this purpose was in no way

impaired because there had been no questions asked before the

meeting was restarted.

46 . On the other hand, Petitioner ' s witness at hearing

testified that it took ten minutes after leaving the police

guard house to get to the conference room, suggesting that even

without the few minutes of delay occasioned by police security

procedures there , the Otis representative would have been late

anyway. Further, Petitioner emphasized the mandatory language

in the I TB , and noted that it expressly warned potential bidders

to allow ample tim e for security .

47 . In this proceeding challenging the decision to reject

all bids, however, it is neither necessary n or appropriate to

determine whether the fact that Otis was late to the pre - bid

conference constitute s a minor irregularity, as Responde nt

initially determined, or a material deviation, as Petitioner

later contended. In Moore v. Dep artment of Health and

Rehabilitative Services , 596 So. 2d 759, 761 (Fla. 1 st DCA

1992) , it was noted that when the only responsibility of the ALJ

is to determi ne whether an agency has acted arbitrarily , there

is no authority to make a de novo evaluation of bids. While the

1996 amendments to section 120.57(3)(f) have largely superseded

Moore , its statement on the limited role of the ALJ s till has

applicability t o cases involving agency action to reject all

bids.

48 . Therefore, the only issue here is whether or not it

was arbitrary for Respondent to reject all bids after it had

weigh ed the arguments that it was a minor irregularity against

those that it was a material deviation.

4 9. Section 120.57(3)(c) provides that upon the receipt of

a timely formal written protest, the agency shall stop the

solicitation process until the protest is resolved by final

agency action. Notwithstanding this language, t he awk ward

process of reject ing all bids after a notice of award has

already been announced and bids have been made public has been

upheld unless the public agency acts in an arbitrary fashion.

Caber Systems v. Dep ' t of Gen. Servs. , 530 So. 2d 325 (Fla. 1st

DCA 1988).

50 . An arbitrary decision is one that is not supported by

facts or logic, or is despotic. Agrico Chem. Co. v. Dep ' t of

Envtl. Reg . , 365 So. 2d 759, 763 (Fla. 1st DCA 1978).

51 . Where an agency, in deciding to reject all replies,

has engage d in an honest, lawful, and rational exercise of its

" wide discretion in soliciting and accepting bids for public

improvements " its decision will not be overturned, even if it

may appear erroneous and even if reasonable persons may

disagree. Dep ' t of Tran sp. v. Groves - Watkins Constructors , 530

So. 2d 912, 913 (Fla. 1988)(quoting Liberty Co. v. Baxter ' s

Asphalt and Concrete, Inc. , 421 So. 2d 505, 507 (Fla. 1982)).

52 . At the time it was considering what action to take in

response to Petitioner ' s initial protest against the intention

to award the contract to Otis, Respondent faced a dilemma.

Action rejecting the Otis bid would likely be considered

arbitrary if it was later determined that Otis ' late appearance

at the pre - bid conference was only a minor ir regularity . Cf.

Overstreet Paving Co. v. Dep ' t of Transp. , 608 So. 2d 851 (Fla.

2d DCA 1992)(no public benefit derives from rejecting low bidder

for technical deficiency in the absence of unfair competitive

advantage ) ; Intercontinental Props. v. Dep ' t of HRS , 606 So. 2d

380, 386 (Fla. 3 rd DCA 1992)( " 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 rea son of the

technical omission . " ). On the other hand, action awarding the

contract to Otis would likely be overturned if being late to the

conference was instead later determined to be a material

deviation . Respondent ' s proposed action would then be found to

be contrary to the governing bid specifications. GTECH Corp. v.

Dep ' t of the Lottery , 737 So. 2d 615, 619 (Fla. 1 st DCA 1999).

In that case , Petitioner , as the second lowest bidder, would be

entitled to the contract.

53 . While Respondent believed that arriving late to the

pre - bid conference was only a minor irregularity , it could not

be certain . Even appellate courts sometimes struggle when

determining what constitutes a minor irregularity as opposed to

a major deviation . Baxter ' s Asphalt & Conc rete v. Liberty Cnty ,

406 So. 2d 461 , 463 (Fla. 1 st DCA 1981 )( bid for only one of two

alternatives was major deviation) , rev ' d , Liberty Cnty v.

Baxter ' s Asphalt & Concrete , 421 So. 2d 505 , 507 (Fla. 1982)(bid

for only one of two alternatives was minor irre gularity).

Ms. Bowden testified that she could not be sure how this issue

would ultimately be resolved. Respondent had expressly reserved

the right to reject all bids, and after careful consideration

and discussions with counsel, it did so.

54 . Under th ese circumstances, it cannot be said that it

is arbitrary for Respondent to simply reject all bids and start

over. Petitioner offered no evidence to suggest that the

rejection of all bids favor s another bidder over Petitioner or

that the effect of the rej ection would in any way undermine the

process of competitive bidding .

55 . A n agency ' s rejection of all bids must stand, absent

a showing that the " purpose or effect of the rejection is to

defeat the object and integrity of competitive bidding. "

Dep ' t of Transp. v. Groves - Watkins Const . , 530 So. 2d 912, 913

(Fla. 1988) ; Gulf Real Props. v. Dep ' t of H RS , 687 So. 2d 1336,

1338 (Fla. 1st DCA 1997) .

56 . Petitioner did not meet its difficult burden of

proving that Respondent ' s rejecti on of all bids is il legal,

arbitrary, dishonest, or fraudulent .

R ECOMMENDATION

Upon consideration of the above findings of fact and

conclusions of law, it is

RECOMMENDED:

That the Florida School for the Deaf and the Blind enter a

final order finding that the rejection of a ll bids submitted in

response to I nvitation to Bid 05 - 23 - 12 is not illegal,

arbitrary, dishonest, or fraudulent , and dismissing Petitioner ' s

protest.

DONE AND ENTERED this 14th day of September, 2012, in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk o f the

Division of Administrative Hearings

this 14th day of September, 2012.

COPIES FURNISHED:

Frank Damon Kitchen, Esquire

Constangy, Brooks and Smith, LLC

Suite 1700

200 West Forsyth Street

Jacksonville, Florida 32202

[e-mail]

William Da vid Talbert, Esquire

Talbert Law Firm, P.A.

Suite 202

1930 San Marco Boulevard

Jacksonville, Florida 32207

[e-mail]

Dr. Jeanne G. Prickett

President of Florida School

F or the Deaf and Blind

207 San Marco Avenue

St. Augustine, Florida 32084

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit written exceptions

within 10 days from the date of this recommended order. Any

exceptions to this recommended orde r should be filed with the

agency that will issue the final order in this case.