Okaloosa County BOCC — October 5, 2013 — County Administrator Bid Protest recommendation with exhibits — reading text

Sand Raker must be removed from the County bid list and “any and all” of its bids must be rejected. Sand Raker failed to furnish with its bid the satisfaction of proper licensing in Okaloosa County as the bid specifications required under 3.D. - Preparation and Submission of Proposal. This is a material omission. The nature of the work under the contract requires operations that may only be located in certain zoning districts, These operations require use, storing, maintenance, and repair of heavy industrial equipment and vehicles, trash and garbage sorting, storage, and transfer. No business location or licensing to operate from any business location was included in its bid. Sand Raker could not obtain a license from Okaloosa County without certifying its stated location for operations complies with state and local ordinances, including zoning. The cost of securing a suitable location would logically affect the price of the bid, and the omission of an Okaloosa County license constitutes unfair competition in the public bidding process. Sand Raker failed to attach a financial statement as required. This is a material omission and fatal to the adequacy and responsiveness of its bid. The Bidder Supplemental Information sheet states “the intent of this sheet is to provide additional specific information to the owner as to the ability of the Bidder to complete the project.” Bidder shall attach a financial statement to bid. (Page 7, Bidder Supplemental Information). Bidder attached a profit and loss statement for the period of January 1, 2013 through August 28, 2013 for eight months of operations that have no relevance to the contract up for bid. A financial statement shows the assets (such as operating capital, tools, machines, vehicles, and equipment), liabilities (such as debts owed, loan balances, or other monetary obligations) and net worth of the bidder (the balance after deducting the liabilities from the assets). Net worth can be negative (insolvent) or positive. Black’s Law Page 3 of 8 Dictionary, 9 Edition, 2009 defines “financial statement” as “a balance sheet, income statement, or annual report that summarize an individual’s or organization’s financial condition on a specific date or for a specified period by reporting assets_and liabilities.” (Emphasis added). It is a critical document in determining whether or not the bidder is financially qualified to carry out the obligations and complete the work required under the contract. It is not possible to compare bids and determine qualifications of bidders without a financial statement showing assets and liabilities. The profit and loss statement submitted by Sand Raker does not show anything that would support it has “adequate financial strength” or that it has the financial ability to complete the contract. a. The Code of Ordinances of Okaloosa County in Section 1-2 - Rules of construction & definitions states that the word “shall” is to be construed as being mandatory. Therefore, submission of a financial statement was a mandatory requirement of the bid specifications. In addition, “The County shall only conduct business with vendors who have adequate financial strength, high ethical standards, record of adhering to specifications . . . OCPM, E.(1.)G.). This policy “shall be adhered to.” OCPM, E.(1.) All bidders “shall compete on equal terms.” OCPM, E.(1.)(h). “Successful Bidder” is defined as the lowest, responsible and responsive bidder . . OCPM B. Definitions. b. The recommendation to award the contract to Sand Raker is erroneous, contrary to the mandate of Okaloosa County’s ordinances and procedures and would adversely impact the County due to the inability to determine if Sand Raker has adequate financial strength to perform the contract and allows a potentially, financially unqualified bidder to compete with financially qualified bidders on unequal terms by not being required to show its financial strength through submission with its bid of a proper financial statement. Sand Raker can not be the successful bidder because it is not the “lowest, responsible and responsive bidder.” Sand Raker failed to provide pictures of equipment older than three years as required under Bidder Supplemental Information - Equipment that will be dedicated to the service (REQUIRED INFORMATION). This failure is non- responsive and material. The Bidder Supplemental Information sheet also states “the intent of this sheet is to provide additional specific information to the owner as to the ability of the Bidder to complete the project.” Without pictures of the older proposed equipment, the County can not determine that the equipment is suitable, the condition of the equipment, or that Sand Raker even owns the older proposed equipment. This material omission adversely impacts the County in its Page 4 of 8 evaluation of the ability of the bidder to complete the contract. Sand Raker’s bid did not meet specifications and is non-responsive. Therefore, the contract must be awarded to Sandman as being the lowest responsive and responsible bidder as required, The above stated omissions and statements by Sand Raker are material and substantial and may not be cured after the bids have been opened. “[T]he entire scheme of bidding on public projects is to insure the sanctity of the competitive atmosphere prior to and after letting of the contract. In order to insure this desired competitiveness, a bidder cannot be permitted to change its bid after the bids have been opened, except to cure minor irregularities.” Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2d DCA 1978) (citations omitted). “If officials charged with letting of public contracts should be permitted in their discretion to permit bids to be changed after they have been received and opened, it would open the door to the abuses which it is the purpose of the requirements of competitive bidding to prevent and suppress.” Jd. at 1193 (quoting the Supreme Court of Minnesota). “After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interests of the County or fair competition shall be permitted.” OCPM K. (1.)(.) If Sand Raker is allowed to change its bid and supply the missing documents and correct its misrepresentation as to a local preference rule, this would be prejudicial to fair competition. Although the contract at issue is not for construction work, it is a public contract and is to be awarded through the competitive bidding process, therefore, the same legal principles and authorities under the Florida Statutes and Florida Case law apply as to the bidding process and selection of a successful bidder. Section 255.20(1)(d)(1) states that if the project: is to be awarded based on price, the contract must be awarded to the lowest qualified and responsive bidder in accordance with the applicable county or municipal ordinance or district resolution and in accordance with the applicable contract documents. The county, municipality, or special district may reserve the right to reject all bids and to rebid the project, or elect not to proceed with the project, This subsection is not intended to restrict the rights of any local government to reject the low bid of a nonqualified or nonresponsive bidder and to award the contract to any other qualified and responsive bidder in accordance with the standards and procedures of any applicable county or municipal ordinance or any resolution of a special district. Page 5 of 8 “A responsive bidder is one ‘that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.” American Engineering and Development Corp. v. Town of Highland Beach, 20 So.3d 1000 (4" DCA 2009)(citing §255.248(5), Fla. Stat. 2009). 10. ll. 12. 13. 14. Sandman’s bid met all specifications and conformed in all material respects to the solicitation. Sand Raker’s bid did not. Based solely on Sand Raker’s bid being materially non-responsive in four respects (1) erroneous local preference form, (2) no Okaloosa County License submitted, (3) no proper financial statement, and (4) no pictures of equipment older than three years, its bid must be rejected. Therefore, the contract should be awarded to Sandman as being the lowest, responsive bidder meeting the bid specifications. The issue of whether Sand Raker is aresponsible bidder need not be reached. However, in an abundance of caution, Sandman also challenges the recommendation on the grounds that Sand Raker is not a responsible bidder. Sand Raker is Not a Responsible Bidder The equipment list furnished with its bid is woefully inadequate to perform the work under the contract. The volume of garbage and trash that must be collected, processed, and transported to the approved, County designated transfer station requires more and larger equipment to satisfactorily perform the work. The lack of a proper financial statement makes it impossible to determine whether it owns or can even acquire the actual equipment proposed, even though the proposed equipment is inadequate. Sand Raker has NO experience in the removal, transfer, and disposal of garbage and trash. The amount of trash and garbage that must be removed, sorted, transferred, and disposed is in excess of 300 tons per year and requires adequate equipment and an in-depth understanding of the unique processes needed for beach related trash and garbage removal, sorting, transfer, and disposal. Its beach cleaning experience indicated in its bid consists of only light duty, small machiné work. The contract requires significantly larger equipment capable of running consistently every day. It requires almost double the amount of trucks. It requires larger trucks for the legal transport of the equipment needed to properly carry out the duties. Sand Raker states it is a minority and veteran owned company. Whether this statement is relevant or not, it should be determined that the company legally Page 6 of 8 15. 16. qualifies for such designation. If it does not, it would be a misrepresentation of fact in its bid. “ A responsible, or qualified bidder is one ‘who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.’” Jd. at 1001. Sandman is a responsible bidder. Sandman has performed the contract at issue for over ten years to the satisfaction of the County as evidenced by Exhibit A. Sandman has adequate financial strength as evidenced by its financial statement. Sandman has high ethical standards and a record of adhering to specifications, maintaining promises, and giving a full measure of service consistent with the Purchasing Policies in OCPM E.(1.)(). Acceptance of Sand Raker’s bid must be rejected and not be recommended on the basis that it is not responsive in all material aspects and that Sand Raker is not properly qualified to carry out the obligations of the contract and to complete the work contemplated therein. Sandman, LLC requests the Purchasing Department and the County Administrator to reconsider the evaluation of the bids and recommend to the Board of County Commissioners that it should award the contract to Sandman, LLC as being the lowest responsive and responsible bidder meeting specifications, and in the best interest of the County and the TDD as required in the County’s ordinances and procedures and under applicable Florida Law as cited above. Respectfully Submitted, WARD & KETCHERSID, P.A. 1241 Airport Road, Suite H Destin, Florida 32541 (850) 837-5507 Facsimile (850) 650-9659 Primary email address: kward@flaattorney.com Secondary email address: rfoote@flaattorney.com Attorneys for Challenger Sandman, LLC py Anuar hee — KAREN POWELL WARD, ESQ. Florida Bar Number 196320 WILLIAM L. KETCHERSID, ESQ. Florida Bar Number 24640 Page 7 of 8 CERTIFICATE OF SERVICE I] HEREBY CERTIFY that a copy of the above has been furnished to