To the Editor:
Consider this GLF's formal protest with respect to the decision made by Gasparilla Island Bridge Authority Nov. 2 to reject all bids in connection with the replacement of the Swing Bridge.
GIBA issued a request for bids with clearly defined criteria seeking bids from
Florida department of Transportation pre-qualified bidders.
GLF bid of $17,874,503 was nearly $900,000 less than the next-lowest bid. GLF's bid was responsive in all aspects and, as the lowest responsive bidder, GLF is entitled to an award of the contract.
GLF relied upon the bid criteria when preparing its bid. The integrity of the competitive bid system dictates that after bids have been opened, the award must be made to the bidder who submitted the lowest responsive bid. Any modification of the criteria, policies, procedures and/or rules after the bids were opened would clearly taint the process.
(In) dealing with bids, GIBA must not exercise its discretion in a manner that avoids competition nor act fraudulently, arbitrarily, illegally, or dishonestly. GIBA must cancel only for compelling reasons.
Protection of the competitive bidding system demands that public agencies not regard the bidding process as merely a running "auction" or to test its budget estimates. Bids are to be fairly considered and not be subjected to unwarranted rebidding once prices are disclosed.
The failure of GIBA to express its reasons for canceling the invitation may by itself cause the cancellation to be deemed arbitrary. That is, the lack of stated reasons may by implication create suspicion of backroom dealings or favoritism.
Here there is no expressed reason to start over; just an expressed intent to re-bid the project at a later date when the contract documents are at 100 percent. Presumably, the non-expressed intent is to see if prices will get better as the drawings are more complete.
Having followed (GIBA) instructions to the letter, GLF is entitled to the award. Moreover, given the rapidly deteriorating condition of the bridge, public policy and safety concerns support the immediate award of the project to GLF.
Furthermore, and most troubling, there is evidence GIBA was discussing ways to save money, not on more complete drawings, but with a three-bridge bid package with Orion Marine as early as December 2011, when GIBA was awarding the fixed bridges contract. At that time, Orion even offered to do a "peer review" of the costs of the swing bridge with no commitment!
That is a material fact that should have been made known to all bidders and perhaps should have precluded Orion from even bidding this RFB. The minutes of that December meeting also show that Orion indicated its mobilization costs would be less for the swing bridge if it did all the work. To the extent that is true, its other prices were obviously higher as Orion's bid was $900,000 higher than the bid of GLF.
GIBA did more than just inconvenience these bidders; it unnecessarily caused them to incur thousands of dollars to prepare the bid.
Additionally, GLF has recently heard that the Swing Bridge bid was an "exercise by GIBA to verify their budget" adding support to an argument that the bids were rejected for an improper purpose. This information leads to the question of what happened between Oct. 24 when GIBA last directed bidders to proceed on the 75 percent documents and Nov. 2 when the bids were rejected. The material change in position is particularly suspect after GIBA discussed the potential for construction labor and material prices increasing after hurricane
Even on FDOT projects where, by law, the FDOT must either award or reject all bids, the Supreme Court of Florida has said that a decision to reject all bids would be overturned if the agency acted fraudulently, arbitrarily, illegally, or dishonestly or if the rejection was to avoid competition.
The award of this contract to GLF should proceed forthwith in accordance with GLF's lowest, responsible and responsive bid. Should GIBA not reverse its decision, GLF would be left with no other option other than to consider all of its available legal remedies including a suit for damages, bid preparation costs and attorney fees under Florida statute 255.20 due to GIBA' s attempt to circumvent competitive bid statutes.
Ferencik Libanoff Brandt Bustamante and Williams
150 S. Pine Island Road, Suite 400
Fort Lauderdale, FL 33324
Editor's note: The 1,600-plus word letter from GLF construction to GIBA officials was edited for length and style. The letter cited specific Florida case law in making its claims.