This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its February 1991 decision in J. D. Pirrotta Company v. District Board of Trustees of Valencia Community College, the Florida Division of Administrative Hearings ruled that a bid was legally capable of acceptance notwithstanding the minor irregularities contained in that bid. The case involved a tendering process for a school renovation project. The second lowest bidder challenged the award to the low bidder, arguing that the low bidder’s failure to submit a public entity crime statement or submit requested alternate pricing constituted material irregularities. The District Board of Trustees of Valencia Community College disagreed, maintaining that the irregularities were minor and waivable and that the contract could be awarded to the $1,274,000 low bid rather than to the $1,297,000 second lowest bid.
The Court agreed with the Board, finding that the irregularities were minor and did not give the low bidder any unfair competitive advantage, and that therefore, the irregularities did not undermine the validity of the low bid:
No evidence was presented, nor was it suggested, that VCC has acted fraudulently or dishonestly. Nor has it acted arbitrarily or illegally. Contractors are required to file a sworn Public Entity Crimes Statement with the contracting officer, prior to entering into a contract in excess of a threshold amount. Section 287.133(3)(a), F.S. Seacoast Constructors has satisfied that requirement. VCC could waive its requirement for including the statement with the bid because Seacoast’s deviation was not sufficiently material to destroy the competitive character of its bid. It did not give the bidder an advantage or benefit not enjoyed by the other bidders. Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2nd DCA 1978). A bidder has either been convicted of a public entity crime, or it has not been convicted; a delay in the execution of its affidavit cannot change that outcome, and it is either eligible for the contract or not, accordingly.
The requirement that the statement be included with the bid only serves the interest of the agency which may spare itself the necessity of evaluating a bid if the bidder is ineligible for the contract. This case is distinguishable from a case cited by Petitioner, City of Opa- Locka v. Trustees of Plumbing Industry Promotion Fund, 193 So 2d. 29 (Fla. 3rdDCA 1966), in which the court upheld a protest by the second lowest bidder when the city attempted to award a contract to the lowest bidder who had not obtained a certificate of competency prior to bid, as required by a municipal ordinance. Seacoast was eligible to bid under the statute, prior to its bid, but did not provide its statement until afterwards. The lowest bidder in the City of Opa-Locka case did not qualify until after its bid and was ineligible to bid. Its competitors did qualify prior to bid and were not given the advantage of waiting.
The failure of all bidders to bid on one or more of the deduct alternatives is also immaterial. In Liberty County v. Baxter’s Asphalt and Concrete, Inc., supra, the lowest bidder neglected to comply with a specification that bidders submit bids on two alternative types of material. Liberty County’s award of the contract to that bidder was ultimately upheld based on the County’s right to waive irregularities. The irregularity was found to be minor, and produced no competitive advantage.
The Court therefore rejected the second-lowest bidder’s complaint and upheld the District Board’s award to the low bidder.
