STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A. B. DICK PRODUCTS OF )

TALLAHASSEE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3418BID

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on July 28, 1988, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Thomas F. Woods, Esquire

Gatlin, Woods, Carlson and Cowdery 1709-D Mahan Drive

Tallahassee, Florida 32308

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

The Petitioner, A. B. Dick Products of Tallahassee (hereinafter referred to as A. B. Dick), timely filed a written notice of protest when the Respondent, Department of Professional Regulation (hereinafter referred to as the Department), made its decision to award Bid No. 88-030 to Standard Graphics, Inc., as the lowest responsive bidder. The purpose of the Department's invitation to bid was to secure and award bids on two different pieces of equipment: a) one offset duplicator with "swing away" second color printing unit, and b) one camera/platemaker capable of processing silver masters.

When the bids were opened on June 24, 1988, A.B. Dick's bids on both pieces of equipment were disqualified because it was determined by John Cowart of the Department of General Services that the equipment offered by A.B. Dick did not meet the specifications set forth in the bid documents. A.B. Dick contends that its bids substantially complied with the specifications, and as the low bidder, it should receive the contract award. Upon receipt of the protest, the Department sent the case to the Division of Administrative Hearings for a hearing, pursuant to Section 120.53, Florida Statutes.

Pursuant to rule, the Department notified other bidders, in Bid No. 88-030 of the scheduled hearing and their opportunity to intervene. None of the other bidders petitioned to intervene or participated in the July 28, 1988, hearing.

The parties filed a prehearing stipulation and jointly admitted seven exhibits into evidence. The Petitioner filed five additional exhibits which were admitted into evidence. The Petitioner called three witnesses at hearing. The parties agreed to allow questioning of witnesses beyond the scope of direct or cross examination in order to prevent the unnecessary recalling of witnesses. As a result, the Respondent did not recall any of the witnesses to present its response to the Petitioner's bid protest. No additional evidence was submitted by the parties.

A transcript of the proceeding was not ordered. The parties submitted proposed findings of fact. Specific rulings on the proposed findings are found in the attached appendix.

ISSUE

Whether the Petitioner was the lowest responsive bidder in Bid No. 88-030, and therefore entitled to the contract award.

FINDINGS OF FACT

1. The invitation to bid in Bid No. 88-030 contains specifications for two separate pieces of equipment which are to be used in the Respondent's print shop. These two items are: a) an offset duplicator with a "swing away," second color printing unit, and b) a camera/platemaker capable of processing silver masters.

   
   

2. The Petitioner timely submitted bids on both items. On June 14, 1988, when the bids were opened, the Petitioner was the low bidder upon the equipment.

   
   

3. The Petitioner's bids were disqualified by the Respondent, because the equipment offered did not meet the minimum specifications set forth in the bidding documents.

   
   

4. A comparison of the minimum specifications for the duplicator and the manufacturer's specifications for the A.B. Dick #9850 duplicator that was bid by the Petitioner reveals the following differences:

   
   

   1. The specifications require the bidder to provide the Respondent with a duplicator that contains a 1 horsepower, D.C., drive motor. The A. B. Dick #9850 duplicator contains a 3/4 horsepower, A.C., drive motor.

      
      

   2. A 1/2 horsepower pump motor is required by the specifications. The literature attached to the Petitioner's bid does not reveal whether the A.B. Dick #9850 duplicator contains a pump motor. During the administrative hearing, Charles K. Hill testified that the A. B. Dick #9850 duplicator does have a pump motor. However, the size of the pump motor was not given.

      
      

   3. The specifications require a conveyor board with a jogging registration system. The A.B. Dick #9850 duplicator does not contain that type of paper feed system. Instead, the Petitioner's duplicator has a direct feed with a registration board. The paper travels only one-half of an inch in the duplicator so a conveyor board and joggers are not needed. Grippers accurately control the paper during the short travel distance.

5. The Respondent specifically chose to require a conveyor board with a jogging registration system on a duplicator because the Respondent wants to have all of the controlling mechanisms it is possible to obtain on a duplicator within a certain price range. The conveyor board with a jogging registration system is a feature that is provided on duplicators in addition to a gripper margin adjustment and feeder bar system. The failure to provide this additional system is an omission as opposed to an alternate provision of a comparable system.

   
   

6. The Petitioner submitted a bid upon a duplicator that did not conform in all material respects to the minimum bid specifications. The Petitioner' substituted a less expensive product with fewer features that ran on a different electrical current than the product sought in the invitation to bid.

   
   

7. The comparison of the minimum specifications for the camera/platemaker and the A.B. Dick #148 camera manufacturer's specifications reveals the following differences:

   
   

   1. The specifications state that a reduction range of 60 percent and a magnification range of 125 percent are required. The A. B. Dick #148 camera has a reduction range of 64 percent and a magnification range of 105 percent.

      
      

   2. The specifications require a copy size of 20 1/2" x 33". The A. B. Dick #148 camera has a copy size of 23 1/2" x 26".

      
      

8. The Petitioner submitted a bid upon a camera that did not conform in all material respects to the minimum bid specifications. The Respondent seeks a camera with a greater, and consequently more expensive, resizing range than the one bid upon by the Petitioner.

1. The invitation to bid was liberal enough in its minimum bid specifications to allow competitive responsive bidding on comparable products from various vendors for the equipment and features sought by the Respondent.

   
   

2. The bid posted by the Respondent from Standard Graphics, Inc., the apparent responsive low bidder, conforms in all material respects to the invitation to bid.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.53 and Section 120.57(1), Florida Statutes.

   
   

4. The procurement of printing and duplicating equipment is specifically governed by Section 287.043, Florida Statutes, which states:

   
   

   If any of the funds appropriated to any agency are to be expended for equipping, operating, or maintaining printing, duplicating, or reproduction services or facilities, then each agency shall furnish such cost records to the division as may be prescribed by the division. Nothing herein shall authorize the purchase of any printing, duplicating, or reproduction equipment except

   under such rules and regulations as are adopted by the division. All such equipment shall be used for efficient and economical production of printed material directly related to business of the state.

   
   

5. Section 287.012(5), Florida Statutes, defines the "division" as the Division of Purchasing of the Department of General Services.

   
   

6. The Division of Purchasing's rules, as they relate to the acquisition of duplicating or reproduction equipment are located in Chapter 13A, Florida Administrative Code. Rule 13A- 1.004(2), Florida Administrative Code, provides:

   
   

   Printing, duplicating and reproduction equipment . . . may not be acquired by an agency except following application to and written approval by the Division. The

   agency shall furnish to the Division . . .

   full information relative to the proposed purchase. This shall include the quantity, make, year, model or type of equipment; also, whether or not it is a new installation, a replacement, or an addition to an existing installation. The agency must have an existing need for the proposed

   equipment by analysis of the following factors:

   1. actual and anticipated monthly printing, duplicating, or reproduction volumes;

   2. proximity and availability of other similar equipment;

   3. actual and anticipated costs utilizing commercial printers compared to actual cost utilizing existing equipment together with anticipated cost of the proposed equipment.

      The Division shall review the agency's information and shall respond in writing stating whether it concurs in the agency's analysis of the above factors and, if not, explain with particularity the reasons it does not concur. The Division shall furnish a copy of its response to any interested person upon request.

      
      

7. In this case, after the required analysis, the Division of Purchasing approved the decision to purchase a duplicator and a camera/platemaker for the Respondent's print shop. Pursuant to Rule 13A-1.007(1), Florida Administrative Code, the Division of Purchasing modified and expanded the specifications requested by the Respondent in order to broaden the base of prospective bidders, yet censure that the Respondent's requirements would be met. The minimum specifications in Bid No. 88-030 were designed to accomplish both purposes and were agreed upon by both agencies.

   
   

8. The bid tabulation reveals that the agencies were successful in the creation of the minimum specifications. This is evidenced by the number of

   bidders and the fact that two bidders submitted alternate bids on duplicators from their product lines.

   
   

9. The duplicator and the camera/platemaker bids submitted by the Petitioner do not meet these minimum specifications. When bids do not meet the minimum specifications, they must be rejected. The agency must accept the bids of the apparent responsive low bidders whose products comply with the specifications. To attempt to do otherwise violates the legislative intent for fair and open competition in public procurement as set forth in Section 287.001, Florida Statutes.

   
   

10. The Supreme Court of Florida has emphasized the importance of adhering to specifications as a basis on which bids may be received. In Wester v. Belote, 136 So. 721 (Fla. 1931), the Court ruled:

    
    

    [It] is the duty of public officers charged with the responsibility of letting contracts under the statute to adopt, in advance of calling for bids, reasonably definite plans or specifications, as a basis on which bids may be received. Such officers, in view of such requirement, are without power to reserve in the plans or specifications so prepared in advance of the letting the power to make exceptions, releases, and modifications in the contract after it is let, which will afford opportunities for favoritism, whether any favoritism is actually practiced or not. Neither can they include other reservations which by their necessary effect will render it impossible to make an exact comparison of the bids. [emphasis supplied]

    
    

    This ruling was the Court's basis for its subsequent holding:

    
    

    That a contract made by public officers in violation of the statutes requiring them to be let pursuant to competitive bids, to the best responsible bidder, is absolutely void, and no rights can be acquired thereunder by the contracting party, is beyond question in this jurisdiction.

    
    

11. A bid award containing a material variance from the bid specifications is unacceptable and therefore void. This holding has been recently reaffirmed in the case of Glatstein v. City of Miami, 399 So.2d (3rd DCA 1981), rev. denied, 407 So.2d 1102 (Fla. 1981)

    
    

12. The rationale for the courts' decisions in this regard is very basic. If bids submitted do not comply with the specifications, the bidders who submit them could have a substantial advantage over other bidders, thereby restricting competition. Tropabest Foods, Inc. v. State Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986). In this case, the Petitioner bid upon two pieces of equipment that did not possess the features the Respondent had decided it wanted. By not complying with the specifications, the Petitioner gave itself an

    unfair pricing advantage over the other vendors whose equipment contained the additional, more expensive features set forth in the invitation to bid.

    
    

13. In this case, the acceptance of the Petitioner's noncomplying bids by the Respondent would be contrary to the public policy of competitive bidding, it would derogate the invitation to bid in Bid No. 88-030, and it would be a void contract. All of the evidence and the law compel the rejection of the Petitioner's bid. The Petitioner's bids were not responsive to the specifications in the invitation to bid. The contract should not be awarded to the Petitioner in this bid letting.

Based upon the foregoing, it is RECOMMENDED:

That the Petitioner's bid protest in Bid No. 88-030 be DENIED and that the bid be awarded to Standard Graphics, Inc., the apparent responsive low bidder.

DONE AND ENTERED this 17th of August, 1988, at Tallahassee, Florida.

VERONICA D. DONNELLY,

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 17th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER IN CASE NO.88-3418BID

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted as a summary of Mr. Warton's testimony.

2. The first sentence is rejected as conclusionary. Whether Mr. Hill refuted Mr. Warton's testimony is also conclusionary and is rejected. The rest of paragraph 2 is accepted as a summary of Mr. Hill's testimony. However, Mr. Hill's testimony that the Standard Graphic equipment did not meet specifications is rejected as being contrary to fact. As for the relevant portions of Mr. Hill's testimony, see H.O. #4(b) and (c). For the findings as to the Standard Graphic equipment, see H.O. #11.

3. Rejected. See H.O. #5.

4. The first sentence in the further findings of fact is rejected. See

1. #3, #4, #6, #7, and #8. The summary as to the performance standards of the direct feed system with a registration board is accepted. See H.O. #4(c). The last sentence is rejected as conclusionary.

   
   

   Respondent's proposed findings of fact are addressed as follows:

   
   

   1. Accepted. See H.O. #3, #6, and #8.

   2. Accepted. See H.O. #4(a) and (c)

   3. Rejected. Irrelevant.

   4. Rejected.

   5. Accepted. See H.O. #7.

   6. Rejected. Irrelevant.

   7. Accepted. See H.O. #3.

   8. Accepted. See H.O. #6 and #8.

COPIES FURNISHED:

Thomas F. Woods, Esquire Gatlin, Woods, Carlson and

Cowdery

1709-D Mahan Drive Tallahassee, Florida 32308

H. Reynolds Sampson Deputy General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-003418BID

Orders for Case No: 88-003418BID