STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LANIER BUSINESS PRODUCTS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 85-0121BID
) STATE OF FLORIDA, DEPARTMENT ) OF LAW ENFORCEMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Following the provision of notice, a formal 120.57(1), Florida Statutes, hearing was held on July 23-25, 1985, in Tallahassee, Florida. Charles C. Adams presided as the hearing officer. This Recommended Order is being entered following the receipt and review of the transcript of hearing, exhibits as offered by the parties, the Respondent's brief and the Petitioner's proposed recommended order. Those materials submitted by counsel for the parties were filed with the Division of Administrative Hearings on November 14, 1985. That date coincides with a second extension of time afforded the parties to offer argument and proposed recommended orders. In this regard, Respondent's counsel suggested the possibility of a further extension of time to file additional argument and an associated proposed recommended order. This suggestion was opposed by Petitioner's counsel given the fact that Petitioner's submissions had already been offered, thereby arguably affording the Respondent's counsel undue advantage in being able to file further materials beyond the date of Petitioner's submission.
Given the opposition stated by Petitioner's counsel, the delay that has occurred in the preparation of the transcript of hearing and the two extensions that had already been allowed counsel for offering argument and proposed recommended orders, Respondent's counsel's suggestion or request to have additional time to offer further argument and a proposed recommended order was
denied. An Appendix which discusses the proposed findings of fact submitted by Petitioner's counsel, in the sense of indicating whether those facts were used or discarded, is attached to and incorporated into this Recommended Order.
APPEARANCES
For Petitioner: Bruce P. Anderson, Esquire, P.A.
1017 Thomasville Road Suite B, The Yates House
Tallahassee, Florida 32303
Jim L. Dye, Esquire
928 North Monroe Street Tallahassee, Florida 32303
For Respondent: John P. Booth, Esquire
Assistant General Counsel
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302 ISSUES
The issues considered in the course of this hearing concern the petition of Lanier Business Products, Inc. which challenged the validity of Respondent's award of a contract to Eastman Kodak Company through a bid process related to Bid No. 83-50, in lieu of the Petitioner's right to entitlement to that contract in that bid process.
Petitioner claims that it is entitled to the award of the contract given the fact that it was the lowest responsive bidder for the project. By contrast, Respondent believes that the bid of Petitioner was unresponsive in two particulars, and as a consequence Respondent argues that it was appropriate to award the contract to Eastman Kodak, the only responsive bidder in this circumstance. On the subject of the two items within the bid specifications which Respondent claims that the Petitioner did not offer an adequate response, they are : 1. The alleged failure of the Petitioner's proposed equipment to comply with requirements for film transport speed of a minimum of twelve feet per second, and 2. The alleged interruption of the microfilm reader-printer operation when changing lenses in the equipment which Petitioner offered in response to the bid solicitation. By stipulation of counsel the inquiry was limited to a consideration of those two points of contention. 1/
WITNESSES AND EVIDENCE
Petitioner, in furtherance of the presentation at hearing, offered the testimony of Gary Fisher, Charles Vuillemot, Jr., Brian Bergin, Paul James, John Hittinger, Allen Knudson and Patricia Melton. Respondent's presentation included the testimony of the witnesses Edward
E. Ricord, Marvin Mayo, Edward Stafford, Gary Durrett, Carl
Durian, Howard Glen Hardy, Dermot Nee, Wayland Harkey, Jack D. Hauck and Steven E. Bechtold. Petitioner and Respondent stipulated to the entry of sixty-one exhibits as offered by the Petitioner. Exhibit 53 was withdrawn. Respondent presented four exhibits which were admitted into evidence.
FINDINGS OF FACT
In early 1984, the Florida Department of Law Enforcement in its Fingerprint Identification Section decided to replace some equipment used for purposes of analyzing finger prints. That equipment was three Kodak PR-1's, known as readers. The reason for the replacement concerned the fact that these machines had been in operation since 1969 and Kodak was no longer willing to undertake the service of the machines through a service agreement.
Initially, the staff favored the idea of replacing the Kodak equipment with other Kodak equipment, having in mind the idea that Kodak was the only manufacturer that could meet the needs of this function within the Florida Department of Law Enforcement. If this suggestion had been accepted, then it would have been on the basis of a request to the Department of General Services to be given permission to enter into a contract with a sole source, namely Eastman Kodak. Indeed, preliminary steps were taken to purchase the Kodak IMT-50 reader-printer to substitute for the three PR-1's, as a noncompetitive purchase from the single source, Kodak. There had also been some discussion about the purchase of Kodak IMT-100's, a reader-printer which allowed multilevel blipping. That type of feature, i.e., multilevel blipping, was determined not to be necessary.
Ultimately, the Florida Department of Law Enforcement determined to meet their needs for replacement of the PR-1 machines through a' competitive bidding, Bid No. 83-50. A copy of the invitation to bid may be found as Petitioner's Exhibit 14. This particular item is a
response on the part of Lanier Business Products to the invitation to bid. Among the instructions in the invitation to bid was general condition Number 7 which reminded the prospective vendors to direct questions concerning the conditions and specifications set forth in the bid invitation to the Florida Department of Law Enforcement no later than ten days prior to the bid opening. Bid opening was scheduled for May 31, 1984.
None of the vendors who offered bid responses questioned the meaning of any of the general conditions or specifications set forth in the invitation to bid related to the purchase of microfilm reader-printers as contemplated in the bid invitation. Eastman Kodak Company also submitted a bid. The bid response by Lanier Business Products was for the provision of a reader-printer known as the 900 Page Search manufactured by 3M. The Kodak product which was bid was the IMT-50 reader-printer. Another prospective bidder, Office Systems Consultants, submitted a "no bid," signifying the inability to meet the specifications of the invitation to bid.
On May 31, 1984, the bid opening was held and a tabulation was made as to the bid responses offered by Lanier and Kodak. The unit price for each of the three microfilm reader-printers was $8,650 by Lanier and $9,040 by Kodak. Therefore, Lanier was the apparent low bidder on the project.
Within the bid specifications are requirements which set forth specific needs for this project. One of those items pertains to film retrieval capability, and that provision states:
Unit will retrieve, by automated means, 100 feet 16mm rolls of 5.4 mil film or 215 feet 16mm rolls of 2.5 mil film (such as Recordak AHU microfilm). Retrieval unit must be able to read, randomly, and ANSI standard document reference (Blip), and must have an advance-- return transport speed of 12 feet per second minimum.
Related to lens requirements, the bid specifications indicated:
Lens magnification must be 24:1 to be compat-
operation.
ible with present standards and be designed so that additional lens can be interchanged without interrupting the reader-printer
Under the heading of general requirements the invitation to bid stated:
By nature of the work requirements and pro- duction schedule, the equipment may be gener- ally described as a 16mm reader-printer capable of retrieving microfilm images by means of ANSI Standard Blips, and will be compatible with existing system. Prior to bid consideration, potential bidders will review, on site, typical production required as part of the overall routine of the finger- print section. Appointment for this inspec- tion will be made by calling (904) 488-9953. The Department will not alter the current production system. After bid opening and prior to award, vendors will conduct tests and provide demonstrations to personnel of the Department to assure a quality product compatible with the existing system. Where applicable, the film retrieval unit will conform to Florida Administrative Code, Chapter 1A-26.
At the time the decision was made to replace the three PR-1 microfilm readers, the Identification Section within the Florida Department of Law Enforcement had four other machines which had reading capability. Those machines were also Kodak and are referred to as Starvue. As can be seen, neither the PR-1 nor the Starvue referred to had the capability to print. A review of Petitioner's Exhibit 3 reveals that the ability to print identification
cards was accomplished through another Starvue type machine in operation prior to the bid invitation.
When processing fingerprint cards within the Identification Section of the Respondent agency, the task of fingerprint identification and verification is addressed. Over and above this reading function, prints are sometimes made of fingerprint identification cards or documents related to a given subject. These prints either are made from the positive film being reviewed, the copy
appearing as a negative image of that film, or in the alternative, the positive film is replaced with negative film and a positive print is made through the copying process. Copies were reproduced on the separate printer which the agency had available to it, prior to bidding for the purchase of three reader-printers contemplated by the invitation to bid under discussion. This required removing the film from the reader or substituting the film before printing. In addition, some lens changes within the readers would be necessary, on average a couple of times a day. The PR-1 machine had a telescoping lens which would allow magnification without lens replacement. The Starvue reader requires the replacement of the lens to gain greater magnification. This Kodak machine, following the lens substitution, would not lose contact with the image which had been on the screen prior to the substitution.
The fingerprint analysis operators or technicians, at the time that the bid was prepared, used a 30:1 lens in performing their function of reading the fingerprint microfilm image. A 24:1 lens was needed for printing. Under these circumstances the Respondent indicates that in the bid specifications reference should have been made to a 30:1 lens as opposed to a 24:1 lens in describing lens requirements.
The PR-1 machines that were being replaced did not have the capability to read blips on the given frames or images within the microfilm cartridges, thus automatic access of the roughly ten per cent of microfilm cartridges that contained the blips was not possible. Both the 3M 900 Series and the IMT-50 microfilm reader-printers allow for automatic retrieval of the image within the microfilm cartridge, as stated before, a required feature set forth in the invitation to bid.
The operation of the Fingerprint Identification Section at the time of the bid invitation dealt with approximately forty-eight hundred reels of microfilm, 90 per cent of which could only be accessed manually. Most of the microfilm cartridges contained one hundred feet of microfilm.
When reference is made in the bid document to the fact that the proposed equipment should allow for the changing of lenses without interrupting the operation of the reader-printer, this is a literal impossibility. While
the first lens is being removed and the second lens is being placed, no reading or printing may occur. As a consequence, when officials with Lanier read this requirement, they perceived it as being some form of inconsequential mistake and did not seek clarification as contemplated by clause Number 7 of the general conditions to the invitation to bid. While it is not apparent from the reading of this requirement, the Florida Department of Law Enforcement intended this provision pertaining to lenses to mean that once the second lens had been placed in the machine, the image that had been being examined prior to the lens replacement would be immediately available for reading or printing. The IMT-50 Kodak equipment allows for that, the Starvue equipment by Kodak allows for that, and the PR-1 did not require lens replacement. By contrast, either in the manual mode or in the automated mode, the 3M 900 Series equipment might require a slight adjustment to recapture the image once the lens had been changed. This adjustment would take approximately two seconds to achieve. The reason for the differences between the 3M equipment and Kodak equipment concerns the fact that the power source in the 3M equipment is turned off when the lens is out of the machinery and the power source within the Kodak equipment remains constant even when the lens is removed.
When the lens requirement is considered in the context of the idea expressed in the general requirements, that the Department did not intend by the replacement of its equipment to alter its current production system, use of the 3M equipment at times of lens interchange is not found to be out of compliance with that general requirement or condition. That determination is made realizing that the lens requirement was ambiguous, at best, and the more important fact that the amount of delay caused in using the 3M equipment in a lens change posture amounts to three operators x two occasions per day x two seconds per occasion or 12 seconds per day. This delay is inconsequential. On this topic, in its position in justifying its choice to reject Lanier's equipment as not complying with the lens requirement, suggestion has been made by the Florida Department of Law Enforcement that eight to ten lens changes per hour might be necessary in the "hard" identification of prints. This comment as offered as a justification for rejecting the Lanier bid as nonresponsive to the lens requirement is not borne out in the record of the hearing by competent proof. This information was imparted in Petitioner's Exhibit 45 which
is information that the Florida Department of Law Enforcement submitted to the Department of General Services, having determined that the Lanier bid was not responsive because of a failure to comply with the lens requirement and the requirement for film retrieval capability, which will be discussed subsequently. That information in the exhibit was hearsay and was contradicted by the comments by two of the operators who utilized the reader-printers in the Fingerprint Identification Section. They are the source of the idea that lens changes occur once or twice a day, and their position has been accepted as factually correct. In summary, Lanier is found to have complied with the specific requirements for lens compatibility with existing needs of the Fingerprint Identification Section and future needs of that section.
An official within the Florida Department of Law Enforcement had been informed by Kodak that the Starvue equipment in use by the Fingerprint Identification Section at the time that the bid invitation was prepared had a capability of performing the retrieval function at a pace of twelve feet per second. This pertained to both the forward and the return phase of that operation. Having this in mind, the previously described requirement for film retrieval capability was included within the bid specifications. Again, it was the intention of the Department, as expressed in that provision and the general requirements, that the replacement equipment maintain the same efficiency of production as existed. The manufacturers of the equipment which was offered in response to the bid have described their equipment in this fashion: The Kodak IMT-50 is described as having a speed advance of up to fourteen feet per second. The 3M 900 Series which was offered by Lanier carried a "rating" of twelve feet per second.
The author of the bid specifications pertaining to film retrieval speed included within that section the phrase ". . . advance--return transport speed "
This phrase is not used in the microfilm industry to describe film retrieval capability. Officials at Lanier perceived this as a manufacturer's speed "rating." Officials with Kodak who offered testimony at the hearing had various ideas about what advance and return transport speed meant, which opinions were not constant. Likewise, the author of this provision within the bid specifications offered variety in his explanation of the meaning of that
phrase, that variety ranging from the idea of maximum speed when the machine was operating at full capacity in terms of the advancement or return of the microfilm within the machine, to the idea of maximum speed as ascertained shortly after the machine had started to advance or return the microfilm. In any event, he states that it did not mean transport speed as an average of time for a given length of film to move through the machine. Nothing about the specifications suggests that return transport speed equates to the idea of average speed, meaning the amount of time necessary to transport a given length of film through the machine either in the forward or reverse mode.
When this requirement of transport speed is seen as a function of protecting against the acquisition of equipment that would not be as efficient as existing equipment, a further dilemma is presented. Edward E. Ricord, author of the specification related to film retrieval speed testified that testing had been done, unrelated to the present hearing, with the intention of describing the transport capabilities of preexisting equipment within the Florida Department of Law Enforcement. The recount of that testing was not offered as evidence by way of documentation. Nonetheless, the equipment that was existing is depicted as having the capability of transporting a ninety-six foot length of microfilm through the older machine, Starvue, in a shorter length of time than could be achieved by the 3M 900 Series. The Starvue was four seconds faster in the forward mode and ten seconds faster in the reverse or rewind phase than the 3M 900 Series, according to Ricord. The old machine was also described as being slower at one end and a little bit faster at the other end in transporting the ninety-six foot length of microfilm when contrasted with the IMT-50 Kodak. (The transport of ninety-six feet of film becomes significant in a later paragraph describing the basis for rejecting the Lanier bid offering as being unresponsive.) On the other hand, Carl Durian, one of the operators or technicians who has used the PR-1, the Starvue, the 3M 900 Series and the IMT-50 machines had these observations, in terms of a subjective analysis of speed. He felt that the Kodak IMT-50 was a subjectively faster operating machine when performing the retrieval function related to the movement of the microfilm through the machine when compared to the 3M 900 Series; however, the 3M 900 Series was found to be subjectively faster than either the Starvue or the
PR-1. Finally, Durian felt that the Starvue was faster
than the PR-1 when considering the retrieval capabilities of the various machines. Again, this firsthand information, though subjective, is of a better quality than the information offered by Ricord who recounted test results not produced at hearing. Looking at this problem in the most favorable light, there is conflict within the agency as to the issue of whether the 3M 900 Series equipment is as capable in the retrieval of microfilm, as a function of speed, as existing equipment within the Fingerprint Identification Section at the time that the bid invitation went out. This is significant, because, having no industry standards related to return transport speed and having no clear indication of what that term meant at the point of the preparation of the bid specification which is separate and apart from the capabilities of existing machines, it is taken to mean the capabilities of those existing machines, and the uncertainty about those capabilities must be resolved in favor of Lanier.
Moreover, on this occasion the Florida Department of Law Enforcement cannot point to Lanier's obligation to ask the question about the meaning of return transport speed as a reason to reject the bid response, in that such a theoretical inquiry would not have elicited a satisfactory answer to the question and alerted Lanier that it was potentially incapable of satisfying the bid specifications related to microfilm retrieval.
In accordance with the bid document, the vendors Lanier and Kodak were required to present one of their machines to the Department following the bid opening for purposes of evaluation. Once the machines were in place, some concerns were expressed about the difference in operating capabilities in the retrieval function of the two machines. To gain some understanding of those differences, a test was devised to measure the responsiveness of the two machines. The test, by its terms, measured the average time necessary to move ninety-six feet of microfilm through the machines in a forward and reverse mode. The tests were conducted, forward and reverse on each machine, by using a person holding a wrist watch and gaining an average of the time necessary to accomplish the functions, after an operator switched the machine into the fast forward and reverse positions to commence the test. The tests forward and reverse were executed three times. It was revealed that in the forward mode, the best performance by the 3M 900 Series was a speed of 5.99 feet per second and in the reserve mode 8.30 feet per second. By contrast, the speed
of the Kodak IMT-50 was, at best, 12.80 feet per second in the forward mode and 16.16 feet per second in the reverse mode. No comparison was made at the time of that testing between the two proposed machines and the existing Starvue or PR-1 equipment. For that reason it is not graphically depicted whether the 3M 900 Series machine would slow down the operation of the Fingerprint Identification Section because of its inability to comply with the requirement for film retrieval. A description of the testing that was done between the 3M 900 Series and the IMT-50 cannot be found as a requirement within the bid specifications, nor does it comport with any expressed statement of what transport speed meant as described in the bid specification document. While it does point out a remarkable difference between the film retrieval capabilities of the Kodak IMT-50 and the 3M 900 Series, it does not establish that Lanier failed to comply with the bid specification related to film retrieval when offering the 3M 900 Series machine in response to the bid invitation. Lanier has met the requirement for film retrieval. In support of this finding, the scope of this inquiry as stipulated to between the parties does not allow for the discussion of the implications of the greater film retrieval capability of the Kodak IMT-50 when compared to the 3M 900 Series as it might pertain to work efficiency within the Fingerprint Identification Section. More significantly, even should it be demonstrated that this difference in film retrieval speed has a profound influence on work efficiency, it could not be said that the Lanier bid failed to meet specifications. The only consequence of this revelation might be that the agency would rebid the project, when examined in the abstract.
Given what the agency considered to be a lack of responsiveness on the part of Lanier related to the lens requirement and film retrieval requirement, it was determined to seek permission from the State of Florida, Department of General Services to obtain the IMT-50 equipment from Kodak as a sole source. This is under the theory that in a competitive bid setting where only one responsive bidder has responded, a sole source purchase opportunity must be sought from the Department of General Services. Following some explanation, that authority was granted. When the authority was granted, the Department of General Services did not realize that Lanier had not been given a point of entry to question the rejection of its bid. When this circumstance was discovered, the Department of General Services recanted its stated permission pending
the opportunity for Lanier to have due process concerning its claim of compliance with bid specifications.
The decision by Department of General Services to change its position on permission for sole sourcing occurred on October 2, 1984. In the face of that statement and the advice by the Department of General Services that the Florida Department of Law Enforcement should give a point of entry to Lanier to contest the question of a determination that Lanier's bid was unresponsive, the Florida Department of Law Enforcement on December 17, 1984, officially noticed Lanier of the choice to award the contract to Eastman Kodak. Given this notification, a letter of protest was filed by counsel for Lanier on December 21, 1984.
Kodak had been awarded the contract through the issuance of a purchase order from the Florida Department of Law Enforcement at a time when the Department of General Services had initially indicated the acceptability of a sole source arrangement, but before the October 2, 1984, decision by Department of General Services to rescind its permission to go sole source. As a part of the arrangement with Eastman Kodak, $262 per machine was allowed in the way of trade-in of the three PR-1 machines which were being replaced. The IMT-50 equipment is presently in place in the Fingerprint Identification Section of the Florida Department of Law Enforcement.
Had Lanier placed the 3M 900 Series machines with the Florida Department of Law Enforcement, it would have made a profit of $5,700. This is offset by the cost of
$4,080 which would have been necessary to convert the existing microfilm reels to fit the 3M equipment. With that deletion, the total profit from the sale becomes
$1,620. The effective life of the 3M 900 Series of equipment is five years, and service revenues from those three reader-printers averages $2,940 per year x five years
= $14,700 as total service revenues. The loss of revenues over the five-year span for the three reader-printers related to paper supplies is $24,300 based upon three reader-printers $4,860 per year. The figures given relate to gross charges for paper supplies. That paper has not been supplied, and no indication has been given on the difference between the vendor's cost for producing the paper and the retail price of the paper, giving a net figure as to profit. In view of the fact that the paper
has not actually been delivered and in the absence of some indication as to the amount of net profit, this item of damages is not allowed. Finally, no indication was made as to the amount of labor cost and net profit related to the overall service charge, and, as with the paper supplies, this claim is disallowed. These items of damages are disallowed because the Petitioner would only be entitled to claim net profits, having never actually offered the services or supplies. An additional $810 is lost in interest income at a rate of ten per cent per year over the five-year effective life of the equipment, pertaining to use of the profits realized in selling the machines. The proven total damages to Lanier is $2,430. Claims by Lanier for loss of future earnings related to the sale of unrelated machines are not found to be convincing, in that they are too speculative in nature.
The related claim for past damages if the 3M machines are installed is rejected in that the effective life of the machines starts from the time of their installation. Therefore, profits for sale, supplies and service would commence at that moment.
Lanier is the lowest responsive bidder on Bid No. 83-50.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Section 120.57(1), Florida Statutes.
Notice was given by Florida Department of Law Enforcement that it considered the Lanier bid to be unresponsive. Although this notification was tardy, it comports with the intent of Section 120.53, Florida Statutes. In the face of the notification, Petitioner made a timely request for hearing on the rejection of this bid response, as contemplated by Section 120.53, Florida Statutes.
The issues in this case concern the question of whether the Petitioner, Lanier Business Products, had satisfactorily complied with the bid specifications related to the replacement of the Florida Department of Law Enforcement's existing PR-1 microfilm readers with reader- printers. In particular, the issues are limited to a consideration of the satisfactory compliance with the lens requirement and film retrieval speed requirement. For reasons set forth in the findings of fact, Lanier has met the bid requirements for lens changing and film retrieval. The Lanier bid is the lowest price quote and, on the facts presented, is the best price quote. Petitioner's bid response was as contemplated by the invitation to bid and the requirements of Chapter 287, Florida Statutes.
Having found the Lanier offering to be responsive to the specifications set forth in the bid invitation, there are effectively two responsive bidders. Thus this is a competitive bid circumstance and it is unnecessary to seek approval of the State of Florida, Department of General Services for the right to purchase the equipment by sole source acquisition. See Chapter 13A, Florida Administrative Code. This conclusion recognizes the fact that the Florida Department of Law Enforcement contracted with Kodak to provide the IMT-50 reader-printers without affording the Petitioner the opportunity to contest the denial of Petitioner's bid response. The effect of such an arrangement caused the initial permission of the Department of General Services to obtain sole source acquisition to be void from its inception. This circumstance was procedurally rectified by later action by the Department of
General Services which rescinded that permission and advised the Florida Department of Law Enforcement to resolve the dispute with Lanier. In the end, the impact of the action of the Florida Department of Law Enforcement was to have entered into a contract with the second lowest responsive bidder without ever affording the lowest responsive bidder a chance to contest the agency's characterization of that bidder's offering as being unresponsive to the invitation to bid.
By way of relief it would seem appropriate in this case to remove the Kodak equipment and substitute the 3M equipment. However, this disposition might not be appropriate given the long standing use of the Kodak equipment in the intervening period and the resulting cost implications to the citizens of Florida if this choice was selected, that is to say potential dual payment for equipment. On balance, sufficient latitude should be given to either remove the Kodak equipment and place the 3M equipment or award damages to Lanier without placing its equipment in the facility. To that end, it is
That a final order be entered which finds the Lanier bid offering to be responsive to the invitation to bid and which removes the Kodak IMT-50 machines and replaces them with 3M 900 Series machines, or in the alternative, awards damages to the Petitioner in the amount of $2,430.
DONE AND ENTERED this 23rd day of December, 1985, at Tallahassee, Florida.
Officer Hearings
CHARLES C. ADAMS, Hearing
Division of Administrative The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the
Hearings
Division of Administrative
this 23rd day of December, 1985.
ENDNOTE
1/ Eastman Kodak was, specifically advised of the opportunity to intervene in this action but chose to forego that opportunity.
APPENDIX
The following rulings are made as to proposed findings of fact offered by the Petitioner:
Proposed facts found in substance
the next to last sentence to paragraph 3; the last sentence of paragraph 4; sentences seven and eight to numbered
paragraph 5;
paragraph 9;
paragraph 11, except as to the last three sentences;
paragraph 12, except as to the third sentence;
paragraph 13, first sentence; paragraph 14;
last sentence of paragraph 15; paragraph 16;
paragraph 19;
the last two sentences of paragraph 22; the first three sentences of paragraph 29; paragraph 31;
the portion of paragraph 32 dealing with tests to measure the retrieval speed of the 3M 900 Series and the IMT-50 equipment;
the last sentence of paragraph 34; paragraphs 35, 37, 39;
the second sentence of paragraph 40; paragraph 41 beginning with the quotation; sentences one and three to paragraph 42; paragraphs 43, 44 as to loss of revenues and
profits on the sale of equipment and interest;
Proposed facts found to be true but unnecessary to the fact finding
paragraphs numbers 1, 2; the balance of paragraph 3; the balance of paragraph 4; the balance of paragraph 5; paragraphs 6, 7, 8, 10;
the balance of paragraph 11, the balance of paragraph 12;
the balance of paragraph 13; the balance of paragraph 15; paragraphs 17, 18, 20, 21; the balance of paragraph 22; paragraphs 23, 24, 25, 26;
all of paragraph 27 except the sentences dealing with the opinions of the operators as to the acceptability of the 3M 900 Series machines, which opinions are found to be irrelevant;
paragraph 28;
the balance of paragraph 29; the balance of paragraph 30; the balance of paragraph 32;
paragraph 33 excluding the first three sentences which are deemed to be conclusions of law;
paragraphs 36, 38;
the balance of paragraph 40; the balance of paragraph 41;
paragraph 46 to the words ". . . and this" which are rejected as facts
The first two sentences of paragraph 34 are rejected as being irrelevant.
The middle sentence of paragraph 42 is a conclusion of law and is rejected.
The balance of the facts set forth in paragraphs
43 and 44 are rejected as incorrect theories for damages based upon inadequate proof as to damage claims.
Paragraphs 45 and 47 are rejected in their entirety for the same reason.
COPIES FURNISHED:
BRUCE P. ANDERSON, ESQUIRE 1017 THOMASVILLE ROAD SUITE B, THE YATES HOUSE
TALLAHASSEE, FLORIDA 32303
JIM L. DYE, ESQUIRE
928 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303
JOHN P. BOOTH, ESQUIRE ASSISTANT GENERAL COUNSEL
FLORIDA DEPARTMENT OF LAW ENFORCEMENT POST OFFICE BOX 1489
TALLAHASSEE, FLORIDA 32302
ROBERT R. DEMPSEY, EXECUTIVE DIRECTOR FLORIDA DEPARTMENT OF LAW ENFORCEMENT POST OFFICE BOX 1489
TALLAHASSEE, FLORIDA 32302
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AGENCY FINAL ORDER
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STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT
LANIER BUSINESS PRODUCTS, INC.,
Petitioner,
CASE NO. 85-0121
STATE OF FLORIDA, DEPARTMENT OF LAW ENFORCEMENT,
Respondent.
/
FINAL ORDER
This matter came before the Governor and Cabinet of the State of Florida, setting as the head of the Department of Law Enforcement, pursuant to s. 120.59, F.S., on February 18, 1986, in Tallahassee, Florida, for consideration of a Recommended Order from the Division of Administrative Hearings entered on December 23, 1985 (Attached as Exhibit A), and exceptions filed thereto by Lanier Business Products, Inc. (Attached as Exhibit B), and State of Florida, Department of Law Enforcement (Attached as Exhibit C). Based upon the Department's review of the case, it is hereby ordered that:
The Department adopts and incorporates in this Order the preliminary statement in the Recommended Order dated December 23, 1985, by the Division of Administrative Hearings.
The Department adopts and incorporates in this Order the Findings of Fact set out in paragraphs 1 through
25 of the Recommended Order. The Department notes, however, that the Findings of Fact set out in paragraphs 23
and 24 of the Recommended Order are not relevant to the appropriate theory of measuring damages as more fully set forth in paragraph 4 below.
The Department adopts and incorporates in this Order the Conclusions of Law set out in paragraphs 1 through 4 in the Recommended Order.
The Department adopts and incorporates in this Order the first sentence of paragraph 5 of the Conclusions of Law set out in the Recommended Order but specifically rejects the remainder of said paragraph and the Hearing Officer's recommendation for the reasons more fully set forth below.
In this case the facts indicate that the Department entered into a contract with Eastman Kodak for the purchase of three IMT-50 reader-printers and that those machines have been installed. While this contract was entered into before the Petitioner exercised its right under the Administrative Procedures Act and relevant rules to protest its proposed bid rejection, there is no indication that the Department proceeded with anything other than the best of intentions. Neither is there any indication that Kodak is anything but an innocent third party vendor. Furthermore, as one party to the contract, the Department has no authority to unilaterally void it. Consequently, as it must be presumed that that contract is valid and binding on the Department, the removal of the Kodak equipment would not eliminate the Department's obligation to perform under the terms of that contract. To suggest that the Department remove the Kodak equipment and substitute the Petitioner's equipment would seem to lead to a result--potential double liability--that is directly contrary to the purpose of the competitive bidding law. For these reasons, which the Hearing Officer himself recognized, we must reject this suggestion.
Having rejected the Hearing Officer's recommendation that we enter into a contract with Petitioner, it is now necessary to discuss the remainder of the Hearing Officer's recommendation--that is, that we pay damages as an alternative to awarding a contract to Petitioner. While we feel that, given the facts of this case, the equities are certainly in Petitioner's favor, we are not convinced that we have the power to award damages. In this regard, see State Road Department v. Cone Brothers Contracting Co., 207
So.2d 489 (Fla. 1st DCA 1968); Vincent J. Fasano, Inc. v. School Board of Palm Beach County, Florida, 436 So.2d 201 (Fla. 4th DCA 1983); and see 1 Fla.Jur. 2d, ss. 204-207, Administrative Law, pp. 854-859. Based on these authorities, it seems that the power to award damages, generally speaking, is a power which resides with the judiciary. Consequently, even though it might seem that an award of damages could be an equitable way of resolving this matter, we must conclude that we lack the power to order such an award.
Even if the Department has the power to award damages in a case such as this, we agree with Respondent that the proper measure of those damages does not lie in the realm of contract theory. The solicitation of bids and the resulting submission of a bid, even when it is the lowest responsive bid as is the case here, does not constitute an enforceable contract. See William A. Berbusse, Jr., Inc.
North Broward Hospital District, 117 So.2d 550 (Fla. 2d DCA 1960). If damages are to be awarded, we are of the view that they should be measured in accordance with the opinion rendered in the case of Baxter's Asphalt & Concrete, Inc., v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981), quashed on other grounds, 421 So.2d 505 (Fla. 1982). There the Court found that, where there existed no contract, the theory of promissory estoppel could be used as a basis for damages and, in that event, damages would be limited to the damaged party's "consequential and reliance damages."
RULING ON EXCEPTIONS TO RECOMMENDED ORDER BY LANIER BUSINESS PRODUCTS, INC.
Petitioner's first exception is denied. The Hearing Officer properly declined to rule on the issue whether the award of a contract to Kodak was lawful. Kodak was not a party to this proceeding and the Department has no authority to declare an executed contract with a third party to be unlawful.
Petitioner's second exception on the Findings of Fact is denied. The Hearing Officer's Findings of Fact are supported by competent, substantial evidence in the record.
Petitioner's third exception to the Conclusions of Law is denied. The Hearing Officer properly concluded that the Department comported with the intent of the
Administrative Procedures Act. The issue of the validity of the contract with Kodak was not before the Hearing Officer. For the reasons stated above, we do not agree with Petitioner that the appropriate resolution of this case is to award the contract to Petitioner. Furthermore, as stated above, we do not have the power to award damages.
RULING ON EXCEPTIONS TO RECOMMENDED ORDER BY FLORIDA DEPARTMENT OF LAW ENFORCEMENT
Respondent's first exception is denied. It was appropriate for the Department to carry the burden of proof of demonstrating why it proposed to reject Petitioner's bid.
Respondent's second exception is denied. We do not believe that the Hearing Officer went outside the permissible boundaries of the stipulated agreement entered into between the parties at the outset of the hearing. In fact, the Hearing Officer specifically addresses this issue at the end of paragraph 19 of his Recommended Order on the bottom of page 12 and the top of page 13
Respondent's remaining exceptions have been substantially adopted as more fully set out in paragraph 4 above.
DONE AND ORDERED at Tallahassee, Leon County, Florida, this 24th day of February, 1986.
Enforcement
the Enforcement 1986.
Robert R. Dempsey Executive Director Department of Law
P.O. Box 1489 Tallahassee, Florida
Filed with the Clerk of Department of Law
this 24th day of February,
COPIES FURNISHED:
BRUCE P. ANDERSON
CO-COUNSEL FOR PETITIONER SUITE B, THE YATES HOUSE 1017 THOMASVILLE ROAD
TALLAHASSEE, FLORIDA 32303
JIM L. DYE
CO-COUNSEL FOR PETITIONER POST OFFICE BOX 927 TALLAHASSEE, FLORIDA 32302
CHARLES C. ADAMS, HEARING OFFICER DIVISION OF ADMINISTRATIVE HEARINGS THE OAKLAND BUILDING
2009 APALACHEE PARKWAY
TALLAHASSEE, FLORIDA 32301
JOHN P. BOOTH
COUNSEL FOR RESPONDENT
FLORIDA DEPARTMENT OF LAW ENFORCEMENT POST OFFICE BOX 1489
TALLAHASSEE, FLORIDA 32302
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF FDLE, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES.
| Issue Date | Proceedings |
|---|---|
| Dec. 23, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 24, 1986 | Agency Final Order | |
| Dec. 23, 1985 | Recommended Order | Florida Department of Law Enforcement (FDLE) finding bid unresponsive was in error. Lowest responsive bidder was unfairly removed from bid process. FDLE should award contract or pay damages. |
