STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAPITAL COPY, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 88-3376BID
)
UNIVERSITY OF FLORIDA, )
)
Respondent, )
)
RECOMMENDED ORDER
Following notice, a hearing was held in this case pursuant to Section 120.57(1), Florida Statutes. The hearing dates were August 25, 1988 and September 20, 1988. The location of the hearing was Gainesville, Florida. Charles C. Adams served as Hearing Officer.
Conduct of the hearing was as envisioned by the opinion of the District Court of Appeal First District, State of Florida, in Capital Copy, Inc., v. University of Florida, Case No. 87-1842 entered on June 1, 1988. This opinion reversed the decision of the University to deny the opportunity of Capital Copy, Inc., to challenge the bid results in the Invitation to Bid, Bid No. 88J- 112YC, in which Capital Copy, Inc. was a bidder. Under the circumstances, the right to protest encompasses the opportunity of Capital Copy, Inc. to contest ". . . the reasonableness and competitiveness of the terms of the bid", as well as the matter of its entitlement to the award of a contract under the terms of the Invitation to Bid.
On August 25, 1988, the first day of hearing, a written motion was advanced by the University of Florida calling for the dismissal of the Petitioner's case based on the assertion that in accordance with Preston-Carroll Company, Inc. v. Florida Keys Aqueduct Authority, 400 So2d 524 (3rd DCA 1981), Capital Copy, Inc. was without the standing to advance its claims in that its substantial interests were not affected. In particular, the argument was made that should the bidder who was selected as the choice of the owner, that is, Danka Industries, Inc., not be found the successful bidder, a bidder other than the Petitioner would be entitled to the contract award. This eventuality would inure to the benefit of University Copy Center, the second ranked bidder under the analysis made by the University in its bid selection process. The motion was denied following argument before the hearing commenced. The motion was made again at the conclusion of Petitioner's case and was denied. Essentially, the basis for denial concerned the belief that Preston-Carroll, supra did not inhibit the attempt on the part of this Petitioner to demonstrate that it was the appropriate bidder to receive the contract, even if that meant that it needed to establish that those bidders who placed higher in the hierarchy were not entitled to the bid award and to make that presentation beginning with the bidder that was next in ranking above it and continuing through that procedure to the point of disqualifying the bidder who had been selected by the University to receive the contract.
Danka Industries, Inc. had sought intervention into this case at the initial hearing session and was granted intervenor status. Subsequently, by correspondence of September 8, 1988, a request was made to withdraw as Intervenor. That request was considered on September 30, 1988 at the second hearing session and was granted.
This Recommended Order is being entered following the receipt and review of the transcript of proceedings and the exhibits admitted into evidence. In addition, the Proposed Recommended Order of the University was filed on November 14, 1988, has been considered. That date was the due date for Proposed Recommended Orders. Next in sequence, a letter was filed with the Division of Administrative Hearings on November 21, 1988 by counsel for Petitioner in which he outlines his trial commitments and other matters beginning with November 9, 1988 and ending with November 17, 1988. This is perceived as a request to extend the time for filing a Proposed Recommended Order. This was met by pone in opposition by the University which objected to the filing of the Proposed Recommended Order based upon grounds of untimeliness and the claim of some advantage to be gained by the Petitioner by this submission beyond the time that the University had filed its Proposed Recommended Order. On December 2, 1988, the Proposed Recommended Order of the Petitioner was filed with the Division of Administrative Hearings. Upon reflection, both Proposed Recommended Orders are accepted. An Appendix to this Recommended Order describes the instances in which the fact proposals suggested by those Recommended Orders have been utilized in the preparation of the Recommended Order: and those occasions where the factual rendition in the Proposed Recommended Orders have been rejected.
APPEARANCES
For Petitioner: Ainslee R. Ferdie, Esquire
717 Ponce de Leon Boulevard, Suite 215 Coral Gables, Florida 33134-2084
For Respondent: Joseph T. Barron, Jr., Esquire
Associate General Counsel University of Florida
207 Tigert Hall Gainesville, Florida 32611
ISSUES
The issues presented concern themselves with whether the University of Florida (University) in the preparation of its Invitation to Bid, Bid No. 88J- 112YC and examination of the responses to the invitation established a bid solicitation process which is reasonable and competitive. The other question for consideration is whether Capital Copy, Inc. (Capital) is entitled to the contract award under the terms of the Invitation to Bid.
FINDINGS OF FACT
The University is part of the State University system in Florida. In its purchasing activities, it must act in accordance with Chapter 287, Florida Statutes and Rule 6CI-3.020, Florida Administrative Code. One of the techniques that may be employed by the University in its purchases is the use of an Invitation to Bid. On this occasion, it determined to invite bids for the provision of coin and card operated photocopying machines at various libraries associated with the University. In addition to the provision of photocopying equipment, the bid invitation contemplated that the vendor would be responsible
for servicing that equipment and paying the University a commission from profits derived by the vendor through its copy sales. Arrangements for establishing the terms of the Invitation to Bid began in the Spring of 1987. The bid invitation was mailed on July 30, 1987. A copy of the Invitation to Bid with its changes may be found as University exhibit 13 admitted into evidence. The significant changes to the Invitation to Bid concerned the movement of the bid opening date from August 25, 1987 to September 4, 1987 and the replacement of pages 3-9 associated with contract terms and other instructions to the bidders.
The purchasing division of the University was responsible for ensuring that the Invitation to Bid by its terms conformed to acceptable bidding practices required by law. The individual who had responsibility for that task was Walter Winstead who was the Associate Director of Purchasing for the University at times relevant to this cause. He fulfilled that task in a satisfactory fashion. He left over the matter of the substance of what was requested and required to a committee of employees of the University who were affiliated with the library system. This arrangement was not unusual and is in keeping with the practices of the University and the requirements of law.
The members of the library committee who were responsible for deciding how the bid invitation should be designed in substance and how to evaluate responses to the bid invitation were Carol Turner, Rich Bennett, Barbara Oliver, Carrol Drum, and Edward Teague. Carol Turner chaired the committee. Each member of the committee was aware of the operation of the University library system, the need to preserve library materials and had a working knowledge of the use of copying equipment, especially as it contemplates the need for payment for copies.
Among other items considered in the drafting of the Invitation to Bid used in this case was information provided by the University of South Florida in bidding for similar photocopying equipment use. A copy of bid materials used by the University of South Florida in its copying contract may be found as University exhibit 15 admitted into evidence. Resort to this information was not an extraordinary arrangement. It is a common practice of the University to look to the experience of sister institutions in gaining ideas for purchases.
In any event, the University of South Florida's concept differed in significant ways from the University of Florida's Invitation to Bid in obtaining the use of photocopying equipment and the servicing of that equipment. Suggestion by Capital that undue influence was created by reference to the University of South Florida experience in obtaining photocopying equipment and associated service is not well founded. The benefit gained from the examination of the University of South Florida bid materials was not one which has fostered an environment which was anti- competitive and tended to favor the eventual contract awarded in the University of Florida contract, Danka Industries, Inc. (Danka). The relationship between Mr. Winstead and Keith Simmons, Director of Procurement for the University of South Florida, during the course of the preparation, examination and decision for contract award in the present case did not stymie competition in the University of Florida bid circumstance, nor did the remarks of Mr. Simmons made to Mr. Winstead at a time following the recommended decision of the library committee to contract with Danka impugn the fairness of this process. This last comment is in view of those remarks found in the University exhibit 12 which is a note from Mr. Simmons to Mr. Winstead in which he is somewhat critical of Capital while singing the praises of Danka. A copy of that item was admitted into evidence. Prior to the receipt of the Keith Simmons memorandum, which was given to Jack Winstead on September 30, 1987, Simmons had not provided any form of evaluation or made any comments to personnel with the University of Florida concerning Capital Copy or Danka, or any other bidder
participating in this Invitation to Bid. The only contact concerning remarks about the vendors was between Simmons and Winstead. Although this information was made known to Winstead before the notice of decision to award to Danka was made, it was not made known to the library committee members in their deliberations and it was not inappropriate for Mr. Winstead to accept the recommendations of the library committee in favor of Danka without a re-analysis similar to the library committee's analysis of bid responses. In effect, Mr.
Winstead did not participate in substance in the consideration of this bid process and was not required to. He fulfilled his role in the purchasing division by insuring that the procedural portion of the Invitation to Bid was conducted in a neutral fashion without favor to any vendor.
Carol Turner discovered the information from Keith Simmons subsequent to the time that the recommendation for an award to Danka had been sent to the purchasing division and this did not lead to any further statement on her part or a change in her position. Other committee members were never made aware of that information before the decision was reached to award the contract to Danka.
On various occasions, library committee members while at the University and off campus have had the opportunity to speak with vendors; among those vendors would be representatives of some of the companies who responded to the Invitation to Bid. These conversations had to do with attempts by some of the library committee members to make themselves aware of available photocopying equipment and for the vendors to try to educate library personnel about the availability and relative merits of their equipment. None of these contacts were improper or such that they prejudiced the library committee against any equipment or made the library committee members less than impartial in the evaluation of the equipment described in the responses to the Invitation to Bid.
Seven vendors responded to the Invitation to Bid. In addition to Capital and Danka, Kodak/McLean, Office Automation, University Copy Center, Xerox and CDT/OCE responded to the Invitation to Bid.
Of the vendors, Capital and Danka, who are the principal protagonists among the vendors involved in this dispute, both have notable experience in the photocopying business as vendors and suppliers of coin/card photocopying equipment.
The terms of the Invitation to Bid under general conditions at paragraph 6 point out that use of manufacturer's names, trade names, brand names, etc. did not limit the opportunity for the provision of equivalent material. Moreover, the specific terms of this solicitation do not use manufacturer's names. Instead, the features desired are described without reference to a manufacturer's name. In summary the bid was not established to gain the response of a particular manufacturer to the exclusion of other manufacturers of photocopying equipment.
Under general conditions, it also described that the vendor who examines the terms of the bid invitation and is concerned about the reasonableness and competitiveness of the terms and conditions should file a protest in the form of a petition to the University under Rule 6CI-3.20(19), Florida Administrative Code and failure to pursue this remedy under the time lines described in Section 120.53(5), Florida Statutes, would constitute a waiver of proceedings under Chapter 120, Florida Statutes. None of the vendors, to include Capital, offered any complaints about the terms of the Invitation to Bid at any place and time prior to the decision to award to Danka. Nonetheless, as described in the introductory portion of this Recommended Order, Capital
appealed the denial of its request for hearing and was granted a hearing opportunity to examine the substance of its claims concerning the specifications among other contentions.
The University, through its Invitation to Bid, specifically referenced the fact that it had 35,000 students, 4,200 faculty and 6,700 staff members who looked to the seven libraries to service the needs of those persons. The University wanted the vendors to provide fifty (50) photocopying machines, four
(4) of which would be dedicated for staff purposes. The bid invitation stated that:
Providing library users the opportunity to make legible copies conveniently and at reasonable cost is an essential component of preserving library materials and insuring that they are optimally available for use.
This was under the description of the Background of this Invitation to Bid found at page three, revision two. Under the category of Award found on that page, it was stated that:
the award will be based on the best overall proposal in terms of the following criteria:
equipment offered, quality of copies, vendor's ability to perform, extent and reliability of service, coin and card prices, and commissions paid to the Libraries.
Selection will be based on the best overall proposal; commission alone will not be the determinate [sic]. Bids will be evaluated and the final selection made by a committee of library staff members who are involved with photocopy operations.
The comment about commission is further described at page 8 of revision two under the category Commission in which it states that 500,000 staff copies per year, plus a reduction in cost on copies above that 500,000 count and cash commission on the gross receipts in the public use machines is required in the response to invitation. It allowed the vendors to state the commission as a flat percentage of gross, a per copy commission, or use a sliding scale of payments.
The requirements of the qualifications of the vendors were specifically described. The number of pages of copies contemplated on an annual basis was indicated as being 5,000,000 copies per annum. The equipment specifications were comprehensively detailed and all these matters were considered carefully by the library committee in its selection process.
On the bid opening date, a specific tabulation in which a bottom line dollar figure was arrived at and a ranking established of the bidders in terms of the best response down to the least desirable response was not made. Given the design of the bid invitation, it is not remarkable that a bid tabulation could not be made on the date of opening. The terms of this bid invitation contemplate the comparison of a number of items which do not lend themselves to a monetary calculation which shows the lowest money quote as a basis for establishing the hierarchy of bid responses. The inability to arrive at a
tabulation on the bid opening was not due to any mass confusion as suggested by Capital. The fact that the bids were available for examination by the vendors is not irregular either. The vendors are entitled to look at the bid responses upon the opening. The bid documents were protected and secured by the purchasing division and the comment by Capital that this process was one of disarray at the time of bid opening such as to thwart the fairness of this process is rejected.
Five different types of machines were bid, excluding reference to staff copying machines, which if included would bring the types of machines to eight in number.
Alternate bids by a vendor were indicated by the purchasing department as being undesirable and no decision was reached by the library committee which utilized an alternate bid as a basis for evaluation and contract award.
Although the purchasing department: through its personnel did not evaluate in detail the substance of the bid responses, it is not inappropriate to allow this to be done by the subunit within the University community who will be utilizing the equipment, in this instance, the libraries at the University. The purchasing division did fulfill the role of oversight in this process and was satisfied about the approach taken by the library committee. The bid materials were forwarded from the purchasing division to the library committee for its deliberations. Each committee member became generally familiar with the specific terms of each bid response. Subsequently, the committee members were assigned one or two vendor responses for a more thorough evaluation, to include checking references offered by the vendors to ascertain the experience other institutions had had with use of the vendor's photocopying equipment. In making these assessments, criteria were utilized as set forth in a worksheet which is found as part of University exhibit 2 admitted into evidence. That worksheet corresponded with the basic concept set forth in the specifications of the Invitation to Bid. Sources of information known as Data Pro research materials relating to photocopying equipment were also resorted to in trying to analyze the best response to the Invitation to Bid. See University exhibits 9, 10, and
11 admitted into evidence. The Chair, Carol Turner was responsible for establishing the evaluation criteria.
All vendors were found to basically meet the requirements of the specifications with exception of McLean which was ultimately rejected based upon its intention to use remanufactured copying equipment which was contrary to the bid specifications.
Among the-specifications was an indication that the photocopying machines could hold at least 500 sheets of 8 1/2 x 14" and 1,000 sheets of 8 1/2 x 11" paper. Any number of machines can meet these requirements. Capital had suggested in its testimony at hearing that only the Konica machine offered by Danka holds 500 sheets of 8 1/2 x 14" paper. That testimony is rejected in favor of other testimony which suggested that a number of manufacturers in addition to Konica, can comply with that requirement; namely, machines manufactured by Sharp, Mita, Ricoh, Savin, Xerox, Kodak, and A. B. Dick. None of the bids were rejected because of the inability to meet the requirement of
500 sheets of 8 1/2 x 14" paper. Capital had bid Sharp equipment in its response to the Invitation to Bid.
An item not contemplated by the Invitation to Bid was the ability to reduce copies and Capital's suggestion that this was a beneficial feature is rejected. Although the reduction capability of the Capital equipment is not
needed nor beneficial, it is also worthy of note that no mention of this deduction capability was made in the bid response.
As the library committee carried forward its specific evaluation of bids through the individual assignment process, it had no particular notion of where this would lead it in terms of arriving at the best bid or that it would narrow the field to two bidders or that the committee would seek additional information from the more select group before making its final recommendation.
Mr. Teague was involved with the examination of the Capital bid. He found that bid response, a copy of which may be seen as University exhibit 6 admitted into evidence, to be difficult to assess in that specific details about the proposal for complying with the bid specifications were lacking. He saw the response as being somewhat of a reiteration of the bid specifications wording. He evaluated the Sharp 80/100 copier in conjunction with literature Capital had provided with its bid response and use of the Data Pro documents. In doing so, he noticed that the Sharp equipment offered less volume capability than was seen in the Danka equipment bid. He found a lack of specific information about service to be provided, and the number of service technicians, and when they might come to the different locations within the library system. In essence, everything was seen to be generally stated and not sufficiently specific. He perceived the Sharp 80/100 control panel as being complicated in its appearance and was concerned that the user might have trouble with this complexity.
In referring the University to other accounts which might verify the quality of performance of Capital related to these other accounts, comparability of those accounts to the circumstance of the University as contemplated in this contract was not particularly apropos.
Some criticism is directed toward Mr. Teague by Capital in that he only made one call to Florida International University in trying to verify performance by Capital on an account related to that University; however, he did speak to two other references given by Capital and failure to make contact with Florida International University and the single call to that University does not lead to the conclusion that Capital was unfairly treated by Mr. Teague in his evaluation.
Capital's response did not identify where it would locate its office to service the University account which was contrary to the representations by other vendors who said that they would have an office across the street from the University or in space on the University campus. No indication was given by Capital as to the address for its parts and supply inventory. Limited reference was made to service technicians and no attempt made by Capital to deal with backup support for a service technician.
The strongest feature of Capital's bid response related to the amount of commission to be earned by the University. In this respect, it ranked first among vendors while Danka was fifth. On the other hand, the cost to users in making copies showed that Capital was third while Danka was second.
Rich Bennett prepared various documents which show these comparisons of commissions and user cost and other matters and his opinions correspond With the attitude of other library committee members. The exhibits in which these comparisons can be found are University exhibits 1, 3, and 4 admitted into evidence
Barbara Oliver who evaluated the Danka and University Copy bid responses used the evaluation sheet in reference to the Data Pro materials. These two vendors were both offering Konica copying equipment.
Following the individual assessment process through committee assignment, the full committee reconvened and discussed their individual findings. This did not include the submission of the written remarks of the committee members concerning their individual projects. There is no requirement for a written submission in order to ensure the fairness of this bid analysis. Through discussion it was determined to narrow the field to University Copy Center and Danka, as well as McLean who was eventually eliminated as described before. This choice to narrow the field was unanimous. On balance in making its choice to narrow the field, greater deference was given to the cost to users, ease of operation of the photocopying equipment and service at the expense of some commission that might be allowed the University if it dealt with Capital. It was not the express purpose of this contract to make a profit for the University of Florida. Generation of commission was one among a number of items that needed to be examined. It was not controlling. A less important feature, but one that impressed the University with the Danka proposal was that its staff copying equipment was of a higher quality than had been bid by other vendors. One final item that the University felt strongly about was the prevention of destruction of its library materials which were costly and, in some instances, irreplaceable. In this connection, affordable, higher quality copies are important to the preservation of those materials because students who are not satisfied about these issues have been known to damage library materials.
One additional feature of the Danka equipment was a Danyl Tower which allows a user to add value to their photocopying card at any given copying machine, as opposed to only at discreet locations. While the specifications do not indicate how many machines have to have this capability, the fact that the Danka had it at each machine is a valuable asset. The Danyl Tower was UL approved at the time of the bid response.
On the fourth page of revision two under the category Qualification of Vendor, it is stated "vendors may, at their own expense, be requested to present their proposals to assure that the bidder has a full understanding of the University Libraries' expectation regarding bidder performance and compliance with contract terms and conditions." In furtherance of this opportunity, Danka and University Copy Center were invited to answer questions and make presentations. This is not an unusual arrangement and was not one in which these vendors were allowed to modify their bid responses. The principal topic for discussion at these meetings, was how these vendors intended to honor the service requirements of the contract. Most specifically discussed were questions associated with the way the system would work when seen in actual operation, questions concerning the exact service arrangements that were being proposed, questions regarding particular situations that would come up when the equipment began to wear out, the provision of backup service in the event the primary technicians were not immediately available. Danka, in demonstrating the equipment showed how the photocopying purchase cards were encoded. Other questions concerned how the signs were going to appear that gave information on the operation of the machines, how the machines might be protected from vandalism and how the vendor would assure that the machines were not broken into. The same basic interrogation process was utilized with both Danka and the University Copy Center. Following these sessions with the two vendors, the committee on September 23, 1987 unanimously decided in favor of Danka. This was followed by a memorandum from Carol Turner to Jack Winstead recommending that
Danka be given the contract award. A copy of that memorandum may be found as University exhibit 2 admitted into evidence. The purchasing division accepted this recommendation and a contract was ultimately awarded to Danka and it remains in effect.
While no particular weights were afforded to the review criteria in terms of points to be assigned for various features, or related to commissions, or cost to users, or otherwise, the assessment made by the library committee members was fair and accurate and carried the requisite objectivity expected of a competitive bid process.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties pursuant to Subsection 120.53(5), Florida Statutes.
Capital has sufficient standing to bring this action in that its substantial interests are being determined. See also, Capital Copy, Inc. v. University of Florida, Case No. 87-1842, in the District Court of Appeal First District, State of Florida (June 1, 1988).
This opportunity is not prohibited by the holding in Preston-Carroll, supra. While that case establishes the necessity for a disappointed bidder to successfully attack all intervening bidders in the hierarchy between it and the successful bidder, in order to prosecute its claims of the lack of responsiveness on the part of the successful bidder, it may not be summarily denied that opportunity based upon an allegation of lack of standing.
Although Capital has the necessary standing to pursue its claims of a lack of reasonableness and competitiveness in the terms of the bid invitation, and its alternative argument that it is the most responsive bidder, it has failed in that proof. The process that the University employed was procedurally and substantively correct. It was a competitive bid process. It was a process in which the bid invitation was appropriately prepared, the responses fairly reviewed and the University's choice of vendor an acceptable arrangement. The process was one of an honest exercise of the discretion granted to the University in making its decision. Even should others disagree with the relative value to be placed upon the response offered by Danka, especially given that it did not derive the greatest amount of income or commission for the University, it may not be overturned. Moreover, from the observation of an independent trier of fact, the University's selection is defensible in that it has chosen the most appropriate bidder. Capital has failed to demonstrate that there was any form of arbitrariness, illegality, fraud, oppression or any misconduct and the bid solicitation process must be upheld. See Liberty City v. Baxter's Asphalt and Son Concrete, 421 So 2d 505 (Fla. 1982) and Department of Transportation v. Groves-Watkins Constructions, 13 F. L. W. 462 (Fla. 1988). Again, the dollar amounts of the bid responses are not always determinative. It was appropriate to look at other factors as well in deciding the outcome. See Culpepper v. Moore, 47 So 2d 356 (Fla. 1949). Finally, the process of the preparation of the Invitation to Bid and the analysis of the responses and decision to award the contract to Danka are in keeping with requirements of Chapter 287, Florida Statutes, and Rule 6CI-3.020, Florida Administrative Code.
Based upon a consideration of the facts found in the Conclusions of Law reached, it is,
That a Final Order be entered which dismisses the challenge by Capital to the contract award to Danka in Bid No. 88J-112YC. Further, it is recommended that Capital's request for attorney's fees and costs be denied.
DONE AND ENTERED this 27th day of December, 1988, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3376BID
The following discussion is given concerning the Proposed Findings of Facts of the parties in those instances where those proposals were not utilized in the preparation of the Recommended Order:
Petitioner's Facts:
Paragraphs 1, 2 and 3 are subordinate to facts found.
Paragraph 4 is not necessary to the resolution of the dispute.
Paragraph 5 is subordinate to facts found.
Paragraph 6 is irrelevant.
Paragraph 8 is subordinate to facts found.
Paragraph 9 is not necessary to the resolution of the dispute.
Paragraphs 8, 9, 10, 11, and 12 are subordinate to facts found.
Paragraph 13 is contrary to facts found.
9. Paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,
25, 26, 27, 28, and 29 are subordinate to facts found.
Paragraph 30 is rejected as not constituting references found in the response to bid and therefore irrelevant.
Paragraphs 31, 32, and 33 are subordinate to facts found.
Paragraph 34 is redundant or cumulative.
Paragraphs 35, 36, 37, and 38 are subordinate to facts found.
Paragraph 39 is contrary to fact finding as this case relates to service, a relevant factor in the bid evaluation process.
Paragraph 40 in the first sentence is subordinate to facts found. Paragraph 41, in the second sentence is contrary to facts found.
Paragraphs 41, 42 and 43 are subordinate to facts found.
Respondent's Facts:
1. Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27
are subordinate to facts found.
Paragraph 28 is subordinate to facts found with the exception of reference to McLean who was not a responsive bidder.
Paragraph 30 is subordinate to facts found.
Paragraph 31 is not necessary to the resolution of this dispute.
Paragraphs 33, 34, and 35 are subordinate to facts found.
Paragraph 36 is not necessary to the resolution of this dispute.
Paragraph 37 is subordinate to facts found.
8. Paragraphs 38, 29, 40, 41, 42, 43, 44, 45, 46, 47, and
48 are not necessary to the resolution of this dispute. 9. Paragraphs 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,
60, 61, 62, and 63, are subordinate to the facts found.
10. Paragraph 64 is not necessary to the resolution of this dispute.
11. Paragraphs 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, and
75, are subordinate to the facts found.
Paragraph 76 is not necessary to the resolution of this dispute.
Paragraphs 77, 78, 79, 80, 81, and 82 are subordinate to facts found.
Paragraph 83 is not necessary to the resolution of this dispute.
Paragraph 84 and the first sentence of paragraph 85 are subordinate to facts found. The remaining sentence in paragraph 85 is not necessary to the resolution of this dispute.
16. Paragraphs 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96,
97, 98, 99, and 100 are subordinate to facts found.
17. Paragraphs 101, 102, and 103 are not necessary to the resolution of this dispute.
18. Paragraphs 104, 105, 106, 107, 108, 109, 110, 111, 112,
113, 114, 115, 116, 117, 118, 119, 220, 121, and 122
are subordinate to facts found.
19. Paragraphs 123, 124, and 125 are not necessary to the resolution of this dispute.
20. Paragraphs 126, 127, 128, 129, 130, 131, 132, 133 ,
134, 135, 136, 137, 138, 139, 140, 141, and 142 are
subordinate facts found.
Paragraphs 143 and 144 are not necessary to the resolution of this dispute.
Paragraph 145 is contrary to facts found.
COPIES FURNISHED:
Ainslee R. Ferdie, Esquire Jeffrey Solomon, Esquire Suite 215
717 Ponce de Leon Boulevard Coral Gables, Florida 33134
Joseph T. Barron, Jr., Esquire Associate General Counsel University of Florida
207 Tigert Hall Gainesville, Florida 32611
Clerk of the University of Florida
207 Tigert Hall Gainesville, Florida 32611
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF EDUCATION DIVISION OF UNIVERSITIES
UNIVERSITY OF FLORIDA
CAPITAL COPY, INC. )
)
Petitioner, )
)
vs. ) CASE NO. 88-3376BID
)
UNIVERSITY OF FLORIDA, )
)
Respondent. )
)
FINAL ORDER
The University of Florida has received and considered the Recommended Order from Hearing Officer Charles C. Adams dated December 27, 1988. The undersigned, as President of the University of Florida, adopts as the Final Order the Recommended Order, which is attached to this Final Order and by reference made a part of it, including the Findings of Fact, Conclusions of Law, the Recommendation and the Appendix in that Order.
Capital Copy, Inc. has filed twelve exceptions to the Recommended Order. Each exception has been considered and they are all denied for the following reasons:
Exception 1 challenges the findings made in paragraph 2 of the Recommended Order concerning the duties of the purchasing officer based on Rule 6C1-3.020(b)(2) and Rule 6C1-3.020(3). Although Rule 6C1-3.020(b)(2) does not exist and Rule 6C1-3.020(3) does not refer to a purchasing officer, this exception is nevertheless premised on a legal argument rather than a factual finding. The hearing officer concluded as a matter of law that the process employed by the University was procedurally and substantively correct and in keeping with the requirements of Chapter 287, Fla. Stat., and Rule 6C1-3.020, Florida Administrative Code. The conclusion reached by the Hearing Officer is correct. This exception is therefore rejected.
Exception 2 apparently challenges a portion of the findings made in paragraph 4 of the Recommended Order. The Exception is based on Capital Copy's proposed Finding of Fact 41. The Hearing Officer rejected Finding of Fact 41 as subordinate to facts found and as such the exception is denied. Exception 2 also reargues the contention made in Exception 1 concerning Rule 6C1- 3.020(b)(2), which is addressed in paragraph 1 above.
Exception 3 challenges the findings made in paragraph 6 of the Recommended Order concerning the impartiality of the University in the bid process. Capital Copy reasserts its proposed Findings of Fact 8 and 9 as the basis for Exception 3. The Hearing Officer rejected those findings as subordinate to the facts found and as such the exception is denied. The Hearing Officer determined that the contacts the committee members had with the vendors were not improper, did not prejudice the committee members and did not affect their impartiality. These findings are based on the weight and credibility the Hearing Officer attached to the testimony of witnesses at the hearing and will not be disturbed.
Exception 4 challenges the findings made in paragraph 12 of the Recommended Order. The Exception is based on Capital Copy's proposed Findings of Fact 35 and 36 and its Conclusion of Law 1. The Hearing Officer rejected proposed Findings of Fact 35 and 36 as subordinate to the facts found and concluded as a matter of law that the Invitation to Bid was appropriately prepared, the response was fairly reviewed and the University's choice of vendor was proper. Capital Copy's factual findings are rejected as subordinate, immaterial or irrelevant. The Hearing Officer was correct in his legal conclusions.
Exception 5 challenges the finding made in paragraph 13 of the Recommended Order in which the Hearing Officer determined that the bid process was fair. Capital Copy reasserts its proposed Finding of Fact 34 which was rejected by the Hearing Officer as redundant or cumulative. The Hearing Officer was correct in determining that these findings are subordinate, irrelevant or immaterial. Capital Copy reargues proposed Conclusions of Law 1 and 2 contained on page 11 of its Recommended Order. The determination made by the Hearing Officer that the bid process was fair was within the purview of the Hearing Officer to make, is in accordance with the law and will not be disturbed.
Exception 6 is a reargument of some portions of Exceptions 2 and 5. Those exceptions were addressed in paragraphs 2 and 5 above.
Exception 7 challenges the finding made in paragraph 22 of the Recommended Order that Mr. Teague was not unfair in his evaluation of Capital Copy. This exception is based on a restatement of Capital Copy's Findings of Fact 26 and 29 and Conclusion of Law 1 under the Bid Awards portion of Capital Copy's Recommended Order. The Hearing Officer was correct in rejecting proposed
Findings of Fact 26 and 29 as subordinate to the facts found. Capital Copy also implicitly excepts the finding in paragraph 4 of the Recommended Order regarding contacts with the University of South Florida. The Hearing Officer was correct in determining that the contacts with the University of South Florida did not foster an anti-competitive environment and did not tend to favor the eventual contract award to Danka Industries, Inc. The findings of the Hearing Officer are in accordance with the law and will not be disturbed.
Exception 8 challenges the findings made in paragraph 23 of the Recommended Order on the basis that the committee improperly weighed service availability in its review. This assertion is not contradicted by paragraph 23 of the Recommended Order. Further, Capital Copy reasserts its proposed Finding of Fact 39 which was rejected as contrary to the factual finding made by the Hearing Officer that service was a relevant factor in the bid evaluation process. It is within the Hearing Officer's purview to make these determinations and those findings will not be disturbed.
Exception 9 challenges the findings made in paragraph 27 of the Recommended Order. Capital Copy reasserts its Exceptions 4 and 5. Capital Copy also argues that based on the provisions of Rule 6C1-3.020(6)(b)(4) the bid evaluation process was not fair. The Hearing Officer ruled as a matter of law that the preparation of the Invitation to Bid, the analysis of the responses and the decision to award the contract to Danka Industries were in keeping with the requirements of Rule 6C1-3.020, Florida Administrative Code. That decision follows the totality of findings of the Hearing Officer, is supported by the law and is correct.
Exception 10 challenges the finding made in paragraph 28 of the Recommended Order that Danka Industries' Danyl Tower was UL approved at the time of the bid response. The citation to the record made in Exception 10 supports the finding made by the Hearing Officer in paragraph 28. The exception is rejected.
Exception 11 challenges the finding made in paragraph 29 of the Recommended Order. Capital Copy reasserts its proposed Findings of Fact 31 and
33 and reargues that the evaluation and solicitation of bids was not in compliance with Rule 6C1-3.020(2)(c). The Hearing Officer rejected Capital Copy's paragraphs 31 and 33 as subordinate to the facts found. Those findings are rejected on such grounds. The statement concerning compliance with Rule 6C1-3.020(2)(c) is not an issue of fact. The Hearing Officer's application of Rule 6C1-3.020 to the facts of this case is correct.
Exception 12 challenges the findings made in paragraph 30 of the Recommended Order on the basis that the Invitation to Bid did not specify the weight and criteria for encoding and usage price to the student as a paramount factor. Capital Copy also asserts that the bid was misleading because it did not provide a stated price for "coin use by students." Capital Copy reargues that the Invitation to Bid was not in compliance with Sections 287.001 and 287.012, Fla. Stat. The Hearing Officer's conclusion that the assessment of the bids was fair and accurate and carried the requisite objectivity of a competitive bid process is supported by the totality of the findings in the Recommended Order, is in accordance with the law and is correct.
After having considered the Findings of Fact, Conclusions of Law and the recommendations made in the Recommended Order, and after having considered and ruled upon each of the exceptions filed by Capital Copy, the challenge by Capital Copy to the contract award to Danka Industries in Bid No. 88J-112YC is
dismissed. Further, Capital Copy's request for attorney's fees and cost is denied.
Section 120.68, Fla. Stat., allows for judicial review of this Order.
Review may be obtained by filing in accordance with the Florida Appellate Rules a Notice of Appeal in the District Court of Appeal for the First District of Florida within thirty (30) days of the date of this Order and by filing a copy of such Notice with the Clerk of the University of Florida.
DONE AND ORDERED this 21st day of March, 1989 in Gainesville, Florida.
Marshall M. Criser, President University of Florida
File with the Clerk of the University of Florida this 21st day of March, 1989.
Clerk of the University
cc: Charles C. Adams Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Joseph T. Barron, Jr. Associate General Counsel University of Florida
207 Tigert Hall Gainesville, Florida 32611
Ainslee R. Ferdie, Esquire Ferdie and Gouz
Suite 215
717 Ponce de Leon Blvd. Coral Gables, Florida 33134
| Issue Date | Proceedings |
|---|---|
| Dec. 27, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 21, 1989 | Agency Final Order | |
| Dec. 27, 1988 | Recommended Order | Bid dispute concerning purchase of copy machines. Price is not always the determining factor in ranking responses to RFP. |
