87-003338BID Lido Lines, Inc. vs. Lee County School Board Status: Closed Recommended Order on Friday, September 25, 1987.

Summary: Apparent low bidder non-responsive since its qualifying agent's contractor license was inactive for failure to complete licensure process at bid time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEDO LINES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 87-3338B1D

)

SCHOOL BOARD OF LEE COUNTY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer of the Division of Administrative Hearings, on August 25, 1987,

in Fort Myers, Florida.

Petitioner Ledo Lines, Inc., was represented by E. G. Couse, Esquire, Fort

Myers, Florida; and Respondent School Board of Lee County was represented by

Harry A. Blair, Esquire, Fort Myers, Florida.

Respondent invited bids on a project involving grading and drainage

improvements. After Respondent announced its intention to award the bid to the

other bidder, Petitioner timely filed this protest pursuant to Section

120.53(5), Florida Statutes. Accordingly, the issue for determination herein is

whether Petitioner is the lowest responsible bidder.

Petitioner presented the testimony of Herbert L. Martin and Warren Hunt.

Respondent presented the testimony of Herbert L. Martin, Steve Cook, and James

Paul Elliott. Additionally, Joint Exhibits numbered 1-9 were admitted in

evidence.

Although both parties requested leave to submit post hearing Proposed

findings of fact in the form of proposed recommended orders, only the Petitioner

did so. Petitioner's Proposed findings of fact numbered 1-3, 6-9, and 11 have

been adopted in this Recommended Order either verbatim or in substance.

Petitioner's proposed findings of fact numbered 4, 5, and 10 have been rejected

as not constituting findings of fact but rather as constituting conclusions of

law or argument of counsel.

FINDINGS OF FACT

1. In June 1987 The School Board of Lee County, Florida invited the

submission of sealed bids for grading and drainage improvements at the new

Multipurpose Building at Fort Myers High School. In addition to requiring

grading, the project involves the erection or placement of structures in the

nature of a drainage system consisting of culverts, pipes, and concrete inlets

with grates, to be tied into the existing drainage system off School Board

property across a county right-of-way into a culvert for discharge across the

street, and which on School Board property attaches to and becomes a part of an

existing building.

2. Sealed bids were submitted by Systems Technologies Co. of Ft. Myers,

Inc. (hereinafter "Systems Technologies") and by Ledo Lines, Inc. Respondent

determined Systems Technologies to be the lowest responsible bidder and advised

Ledo Lines, Inc., that it would be awarding the contract to Systems

Technologies.

3. Warren W. Hunt is the president and the qualifying agent of Systems

Technologies. Hunt has an underground utilities contractor's license which has

been inactive since it was obtained by him in March, 1986, being inactive

therefore both at the time that Hunt submitted the bid on behalf of Systems

Technologies and at the time of the final hearing in this cause. The inactive

status results from Hunt's failure to complete the license process with the

State of Florida. Since Hunt's license was inactive due to being incomplete at

the times material to this cause, neither Hunt nor Systems Technologies was a

licensed contractor and Systems Technologies was not a responsible bidder at the

time that the bid was submitted.

4. The contract specifications set forth the method by which the bids

would be evaluated. Paragraph numbered 2.9 on page PD-4 provides as follows:

Comparison of Proposals - Proposals will

be compared on the basis of total

computed price for each division of work.

Total computed price equals the sum of

the prices for the lump sum Contract

Item, plus the sum of the total prices

for the unit price Contract Items for

each Division of work. The total price

for each unit price Contract Item will be

obtained by multiplying the estimated

quantity of each item by the correspond-

ing unit price set forth in the Proposal

form[.]

That provision, accordingly, requires that the bids be evaluated based upon the

sum of all line items rather than based only upon their total or "bottom line"

figure. Respondent's Director of Facilities Planning admitted that he failed to

comply with this provision of the contract specifications in evaluating the two

bids submitted to him and in determining that the bid should be awarded to

Systems Technologies.

5. In Systems Technologies' bid, the sum of the prices for the lump sum

contract items plus the sum of the total prices for the unit price contract

items amounts to $30,109.60. However, in submitting its bid Systems

Technologies incorrectly added its column of figures and incorrectly computed

its Total Contract Price (Estimated) to be $29,768. Since the contract

specifications envision a unit price bid rather than a lump sum bid, the amount

of the bid of Systems Technologies is in fact the amount of $30,109.60. The bid

of Ledo Lines, Inc., is for $29,913.84. Ledo Lines, Inc., is, therefore, the

low bidder on this project.

6. The contract specifications when read in their entirety clearly require

that the low bid be determined by adding the unit price and lump sum components

rather than relying on the lump sum "bottom line" figure shown for Total

Contract Price (Estimated). Employees of the consultant who Prepared the

specifications testified that they expect to be able to hold the bidders to the

unit prices but not to the Total Contract Price (Estimated) because the

estimated quantities may change. Thus, the evidence is uncontroverted that the

determination of low bidder pursuant to the contract specifications is based

upon the total of the unit price provisions and not by the single figure at the

bottom of the page which adds those individual prices and which was added

erroneously in this case by Systems Technologies.

7. In their Prehearing Stipulation, the parties stipulated that the School

Board is subject to mandatory competitive bidding for this project. They

further stipulated that where there is mandatory competitive bidding, the

contract must be awarded to the lowest qualified, responsive bidder. Since

Systems Technologies is neither a qualified, responsive bidder nor the lowest

bidder, it is clear that Ledo Lines, Inc., is the lowest responsive bidder for

the project in question.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the

subject matter hereof and the parties hereto. Section 120.57(1), Florida

Statutes.

9. It is uncontroverted that the grading and drainage improvements

involved in the project under consideration herein require licensure as a

contractor by the State of Florida. Section 489.105(3), Florida Statutes. That

section further requires that the licensure requirements as a contractor apply

not just at the time that the work is performed but also requires that proper

licensure exist at the time that the contractor submits a bid. Since neither

the corporation nor its qualifying agent possessed appropriate licensure at the

time its bid was submitted, Systems Technologies is not a qualified responsive

bidder for this project. Although Respondent's Director of Facilities Planning

testified that he was willing to waive any licensure requirements so that the

bid could be awarded to Systems Technologies, it is doubtful that he has the

authority to naive state licensure requirements; even if he could, the contract

specifications cannot be amended after the opening of sealed bids.

10. Respondent argues that Systems Technologies will "use" the license of

another contractor. Even if such an arrangement were legal pursuant to Chapter

489, Florida Statutes, no provision was made in Systems Technologies' bid for

work on, or supervision of, the project by any entity other than Systems

Technologies, and its bid cannot be amended after the sealed bids have been

opened.

11. Respondent's argument that it is not required to follow the contract

provision which establishes how the bids will be evaluated and that the

determination of the winner of the bid is totally discretionary, i.e., that

Respondent can award the bid to any one it pleases, is without merit, and is

contrary to the applicable law stipulated to by the parties in their Prehearing

Stipulation, i.e., that where there is mandatory competitive bidding a contract

must be awarded to the lowest qualified, responsive bidder. In this case, not

only is Ledo Lines, Inc., the lowest bidder , it is also the only qualified,

responsive bidder on this project.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered determining Ledo Lines, Inc., to

be the lowest responsive bidder and awarding the contract for grading and

drainage improvements to the Multi- purpose Building at Fort Myers High School

to Ledo Lines, Inc.

DONE and RECOMMENDED this 25th day of September, 1987, at Tallahassee,

Florida.

_________________________________

LINDA M. RIGOT, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of September, 1987.

COPIES FURNISHED:

James E. Melvin, Superintendent

School Board of Lee County

2055 Central Avenue

Fort Myers, Florida 33901

E. G. Couse, Esquire

Post office Drawer 1647

Fort Myers, Florida 33902

Harry A. Blair, Esquire

Post Office Box 1467

Fort Myers, Florida 33902