STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELECTROPHYSICS CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-841BID

) SCHOOL BOARD OF LEE COUNTY, ) FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 11, 1979 at Fort Myers, Florida.

APPEARANCES

For Petitioner: Franklin Johnson, Esquire

Post office Drawer DD

Fort Myers, Florida 33902

For Respondent: Harry Blair, Esquire

Post Office Box 1467

Fort Myers, Florida 33902

By letter dated March 30, 1979 Electrophysics Corporation, Petitioner, appealed the award of Bid No. 2620 to Standard Equipment Company and requested a hearing. As grounds for the appeal it is alleged that Petitioner's bid was low and that the decision to award the bid to Standard Equipment Company was based upon a memorandum dated March 2, 1979 containing statements of critical comparison which are false. One witness was called by Petitioner, three witnesses were called by Respondent, and ten exhibits were admitted into evidence.

FINDINGS OF FACT

1. The adult education department of the Lee County School Board received an appropriation to purchase night vision surveillance equipment in connection with their adult education program. Information was requested from various manufacturers of this type equipment and bids were solicited in December, 1978.

   
   

2. Only two bidders submitted bids. Standard Equipment Company's bid for their Ni-Tec equipment was $4,790 and Petitioner's bid for their Astrolite viewer was $3,775. Although there had been sufficient funds appropriated to purchase the Astrolite viewer, the price for Ni-Tec exceeded the sum appropriated so both bids were rejected.

3. The specifications were modified to be more specific and new bids solicited from five suppliers. Only three of these companies responded. Petitioner's bid at $3,775 with two years warranty on parts and labor was low bid; Standard Equipment Company offered the Ni-Tec for $4,100 with one year warranty on parts and labor; Javelin Electronics submitted a bid for $6,324; and the two other suppliers solicited did not bid.

   
   

4. Still not satisfied with accepting the low bid Respondent's Trade Extension Coordinator, C. W. Cawlfield, set up a test of the two units for which bids had been received. This test was conducted on the evening of March 1, 1979 by the Punta Gorda Chief of Police, the Fort Myers Airport Chief of Police, a fireman and one or two others. Some of those conducting the test had previously purchased the Ni-Tec equipment for their department's use and preferred this equipment.

   
   

5. None of those conducting the test knew the difference between the monocular eye viewer which is standard equipment on the Astrolite and the biocular eye viewer which is standard equipment on Ni-Tec. Those conducting the test thought both eye viewers were the same although the eye piece on Ni-Tec was slightly larger.

   
   

6. Following the test Chief Bennett of the Punta Gorda police force advised Cawlfield that the Ni-Tec equipment provided a clearer and larger image, that the equipment was more rugged, and that the Ni-Tec was the best equipment to buy for the school.

   
   

7. Based upon what he was told by Bennett, Cawlfield, on Match 2, 1979 wrote a memorandum (Exhibit 4) to the Director of Purchasing in which he listed seven categories in which the Ni-Tec viewer was superior to the Astrolite viewer.

   
   

8. Some of the seven items listed involved specification requirements and some involved non-specification Comparisons. With respect to those items which indicate the Astrolite did not meet specifications, all are wrong. As a matter of fact each and every numbered item in Exhibit 4 which indicates the Ni-Tec viewer to be superior to the Astrolite viewer was predicated on false and erroneous information, or was based on a characteristic not included in the specifications upon which the bids were submitted. An example of this latter comparison based upon a factor not included in the specifications was No. 7 which indicates Ni-Tec meets military specifications while the Astrolite does not. Military specifications was not a bid requirement.

   
   

9. After acknowledging that each and every comparison listed on Exhibit 4 was erroneous or predicated upon erroneous information, both the author of Exhibit 4 and the recipient thereof, Wayne McSpadden testified they would still recommend the purchase of the more expensive Ni-Tec viewer because those conducting the test reported having observed a clearer and larger image through the Ni-Tec viewer.

   
   

10. None of those conducting the test appears to have more than a very rudimentary knowledge of optics. None appeared to recognize that during the test the Ni-Tec viewer was equipped with a biocular eye piece while the Astrolite viewer was equipped with a monocular eye piece.

    
    

11. The biocular eye viewer is large enough to view with both eyes and the viewer sees a larger image than is seen with the monocular eye viewer. Exhibit

    2 states that the bid submitted on Astrolite included a biocular eye viewer.

    Exhibit 3 shows the biocular eye viewer as an accessory and Cawlfield testified he had not seen Exhibit 2, which was addressed to McSpadden, and thought the biocular viewer would cost extra.

    
    

12. The Ni-Tec viewer comes with a f/2.8 lens while the Astrolite lens is f/l.3. In any optical equipment a f/l.3 lens is approximately twice the diameter of an f/2.8 lens and will therefore admit approximately four times as much light because it has approximately four times the area. Accordingly, from a lens comparison alone the Astrolite viewer should be superior to the Ni-Tec viewer.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

    
    

14. Rule 6A-1.2 Florida Administrative Code establishes purchasing policies for district school boards and provides in pertinent part:

    
    

    The school board shall have the authority to reject any and all bids and request new bids. In acceptance of bids, the school board shall accept the lowest and best bid.

    
    

15. In awarding the contract under Bid No. 2620 to Standard Equipment Company for the Ni-Tec viewer Respondent's agent certainly failed to comply with the above-quoted rule insofar as acceptance of the lowest bid was concerned.

    
    

16. Both the statutes and the regulations promulgated pursuant thereto contemplate that the school boards will purchase supplies upon competitive bids and thereby obtain necessary equipment at the lowest competitive price from a qualified and competent bidder. The legal requirements enunciated in Couch Construction Co., Inc. v. Department of Transportation, 361 So.2d 172 (Fla. 1 DCA 1978), although addressed to the Department of Transportation, are fully applicable here. Therein the court stated at p. 175:

    
    

    We affirm that the Department has wide discretion to reject all bids and to

    call for new bids for public contracts... In making such a determination, the Department cannot act arbitrarily. The Administrative Procedure Act requires that the Department's decision be by final order that takes account of countervailing evidence and argument. When as here there are no rules which define the circumstances

    in which the Department will reject all bids and readvertise, the Department's order in Section 120.57 proceedings must provide visible proof that the Department is proceeding rationally within the bounds of its discretion and not arbitrarily.

    
    

17. Couch involved the efficacy of the rejection of all bids by the Department similar to the rejection here by the School Board of the initial bids. Those comments above quoted requiring an agency in rejecting bids to proceed rationally within the bounds of its discretion and not arbitrarily apply

    with greater force where the issue involves the rejection of the lowest bid. Here not a scintilla of evidence was presented that the low bidder is not qualified or the equipment fails to meet the bid specifications.

    
    

18. The School Board's agent had information, albeit erroneous information, that the low bidder's equipment was inferior to that of the second low bidder. When this basis for rejection of the low bid was disclosed the appeal was instituted and this hearing resulted. At this hearing Petitioner conclusively demonstrated that none of the reasons given for rejecting its bid were valid. Accordingly the rejection of this bid was arbitrary and without authority.

    
    

19. Despite this showing, which in all fairness to the witnesses, some of which may not have been known until the hearing, the two individuals primarily involved in the soliciting and accepting of bids for the Respondent reiterated under oath that they would still recommend Respondent reject the low bid and accept the next lowest bid. Absent some rational basis for rejecting the low bid, and no such basis was produced at this hearing, this would constitute an arbitrary and capricious decision well outside the bounds of the board's discretion and contrary to the regulations prescribed in the Florida Administrative Code.

    
    

20. From the foregoing it is concluded that rejection of the low bid of Electrophysics Corporation and acceptance of the next low bid by Standard Equipment Company was not predicated upon a rational basis and was not authorized. It is therefore

RECOMMENDED that the Lee County School Board accept the low bid on Bid No. 2620 submitted by Electrophysics Corporation for the Night Vision Surveillance Equipment.

ENTERED this 21st day of May, 1979,in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Franklin Johnson, Esquire Post Office Drawer DD

Fort Myers, Florida 33902

Harry Blair, Esquire Post Office Box 1467

Fort Myers, Florida 33902

Mr. L.M. Vallese President

Electrophysics Corporation

48 Spruce Street

Nutley, New Jersey 07110

Docket for Case No: 79-000841

Orders for Case No: 79-000841