STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SATELLITE TELEVISION ENGINEERING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 86-1880BID

)

DEPARTMENT OF EDUCATION, )

)

Respondent. )

and )

)

MICRODYNE CORPORATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held a formal hearing in this case on June 10, 1986, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mr. Richard A. Lotspeich

Post Office Box 271 Tallahassee, Florida 32302

For Respondent: Joseph L. Shields, Esquire

Knott Building

Tallahassee, Florida 32301

For Intervenor: Paul Watson Lambert, Esquire

J. Riley Davis, Esquire Post Office Box 11189 Tallahassee, Florida 32302

On May 5, 1986, the Department of Education (Department) posted notice of its intent to award Bid No. 86-54 to the Microdyne Corporation (Microdyne). In response to this notice, Satellite Television Engineering, Inc. (Satellite), filed a Notice of Protest on May 7, 1986, and a Formal Written Protest of Bid Award on May 16, 1986. Microdyne's Petition to Intervene was granted at the hearing.

Generally, the issue presented is whether the Department acted in accordance with the applicable statutes and rules in rejecting the bid of Satellite and in its intention to make the bid award to Microdyne.

FINDINGS OF FACT

1. In 1985, the Florida Legislature created a state satellite telecommunications network, and directed the Department to develop an implementing plan and coordinate this network, including purchasing the equipment and installing the system. This system would be for educational purposes and business teleconferencing, and would consist primarily of satellite receiving stations at 28 existing educational institutions throughout the state.

   
   

2. The Department drafted the technical specifications for the equipment to be utilized in the system in consultation with a generally recognized expert in the field of telecommunications. When these specifications were finalized, the Department issued an Invitation to Bid on February 14, 1986.

   
   

3. Subsequently, the Department modified the original bid specifications by relaxing some of the requirements, in order to increase the number of vendors capable of providing the equipment. An addendum was issued on March 5, 1986, and another was issued on March 17, 1986.

   
   

4. Satellite was on the bidder list and it received a copy of the initial Invitation to Bid, but it did not submit a bid in response to either the initial invitation or to the March 5 addendum. Satellite did, however, compile its bid and submitted it in response to the March 17, 1986, addendum.

   
   

5. In all, six companies submitted bids to the Department, including Microdyne whose bid was accepted. Satellite's bid and three others were rejected, and one bid was disqualified because it was not signed.

   
   

6. The amount of the Microdyne bid was $569,509. Although the amount of the Satellite bid was $372,550, the Department rejected it because it was not in compliance with the Invitation to Bid and the specifications as amended by the addenda.

   
   

7. Section 2.8 of the bid specifications requires that the award be given to the lowest bidder meeting specifications.

   
   

8. The Satellite bid was rejected for the following reasons:

   
   

   1. The survival wind speed of the 5.0 meter dish offered by Satellite was 105 miles per hour. Section 4.4.2 of the bid specifications requires survival at 125 miles per hour.

      
      

   2. No operational wind speeds were specified by the Satellite bid, as required by Section 4.4.2 of the bid specifications.

      
      

   3. The ku band feed cross-polarization rejection that was offered by the Satellite bid was 25 decibels. Section 4.4.4 of the bid specifications requires 30 decibels.

      
      

   4. The receiver specified by the Satellite bid did not include a one- half transponder mode. Sections 4.5.2 and 4.6.1 of the bid specifications require one-half transponder reception on the ku band.

      
      

9. The bid submitted by Satellite did not comply with the requirements of the bid specifications for the reasons described in the previous paragraph. The Microdyne bid was in substantial compliance with these specifications.

10. The requirements as specified by the Department which Satellite's bid did not comply with are substantial and material requirements for the system proposed by the Department.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case pursuant to Sections 120.53(5) and 120.57(1), Florida Statutes.

    
    

12. Section 287.062(1), Florida Statutes, requires competitive bidding whenever an agency makes purchases in excess of $2,500. The term agency is defined by Section 287.012(1), Florida Statutes, and includes the Department of Education. Section 287.062(3), Florida Statutes, requires the invitation to bid to be filed with the Division of Purchasing of the Department of General Services.

    
    

13. An invitation to bid is a written solicitation which specifically defines the services for which bids are sought. Section 287.012(7), Florida Statutes. The invitation to bid under this statute is used when the agency is capable of specifically defining the scope of the work or service required.

    
    

14. Rule 13A-1.01(13), Florida Administrative Code, defines a valid bid/proposal as a responsive offer in full compliance with the bid specifications and conditions. Subsection (a) of this rule defines a responsive bidder as one that submits a bid conforming in all material respects to the invitation to bid.

    
    

15. The bid submitted by Satellite did not conform in all material respects to the invitation to bid and the final specifications. There were four requirements not met by the Satellite bid, and these were substantial and material to the Department's proposed system. This failure of Satellite's bid to comply in all respects with the specifications disqualifies it as a responsive bidder. The departure of the Satellite bid from the specification requirements also makes the bid invalid as non- responsive.

    
    

16. The statute does not require the Department to accept the lowest bid, or one that does not meet its specified requirements. Agencies have a discretion in the awarding of contracts so long as this discretion is not exercised arbitrarily or capriciously. Mayes Printing Co. v. Flowers, 154 So.2d 859 (1st DCA 1963). The rejection of a lower bid that is unresponsive to the invitation and which does not comply with the bid specifications is not arbitrary or capricious.

    
    

17. Accordingly, the Department's rejection of the Satellite bid was in accordance with the statutes and rules, and the Microdyne bid being in substantial compliance with specifications, its acceptance by the Department was proper.

    
    

18. The contention of Satellite that it did not receive a complete set of the second addendum containing the final specifications is rejected as not supported by competent, substantial evidence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the protest of Satellite Television Engineering, Inc., to Bid No. 85-54 be DISMISSED.

This Recommended Order entered this 11th day of August, 1986 in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1986.

COPIES FURNISHED:

Mr. Richard A. Lotspeich Post Office Box 271 Tallahassee, Florida 32302

Joseph L. Shields, Esquire Knott Building Tallahassee, Florida 32301

Paul Watson Lambert, Esquire

J. Riley Davis, Esquire Post Office Box 11189 Tallahassee, Florida 32302

Honorable Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Judith Brechner, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32301

Docket for Case No: 86-001880BID

Orders for Case No: 86-001880BID