STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANSWERPHONE OF FLORIDA, INC., )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 88-6073BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 20, 1988, at Merritt Island, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Don Molitor, President

Answerphone of Florida, Inc.

15 Poinsett Drive Cocoa, Florida 32922

For Respondent: James Sawyer, Esquire

District VII Legal Counsel Department of Health and

Rehabilitative Services Orlando, Florida 32801

The Petitioner, Answerphone of Florida, Inc., (hereinafter referred to as Answerphone), timely filed a written notice of protest when the Respondent, Department of Health and Rehabilitative Services (hereinafter referred to as the Department), made its decision to award Bid No. 88-8-1 to Elite Answering Service, Ltd., as the lowest responsive bidder. The purpose of the Department's invitation to bid was to secure and award a bid for an after-hours telephone answering service which would serve the Department in its location in the Monroe Center in Cocoa Beach, Florida.

When the bids were opened September 6, 1988, the Department awarded the contract to Elite Answering Service, Ltd., as the lowest responsive bidder. Answerphone contends that its company should receive the bid award as it is the only company in this particular geographical area that can technologically provide the services requested by the Department in its bid specifications. A bid protest was timely filed by Answerphone, and the case was sent by the Department to the Division of Administrative Hearings for a hearing, pursuant to Section 120.53, Florida Statutes.

Pursuant to rule, the Department notified the other bidder of the scheduled hearing and its opportunity to intervene. Elite Answering Service, Ltd., filed a request to intervene with the Division of Administrative Hearings two days after the hearing was held. As the motion was untimely, the request to intervene was denied.

During the hearing, the Petitioner called two witnesses. A composite exhibit, consisting of five pages, was submitted by the Petitioner after hearing by consent of the parties. The Respondent presented one witness and submitted five exhibits. All of the exhibits were admitted into evidence. A written closing argument and proposed findings of fact and conclusions of law were submitted by the Petitioner. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

ISSUES

Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.

FINDINGS OF FACT

1. The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida.

   
   

2. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder.

   
   

3. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur.

   
   

4. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection.

   
   

5. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2.

   
   

6. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing.

   
   

7. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid

   conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid.

   
   

8. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents.

   
   

9. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close.

   
   

10. No requests were made to the Department to place its explanation in writing and no written interpretation was provided.

    
    

11. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1.

    
    

12. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1.

    
    

13. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone.

    
    

14. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so.

    
    

15. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not..

16. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid.

    
    

17. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications.

    
    

18. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner.

    
    

19. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to this proceeding and the subject matter which involves the bid protest in Bid No. 88-8-1, Sections 120.53 and 120.57(1), Florida Statutes.

    
    

21. The Division does not have jurisdiction over the events which occurred prior to the bid opening in Bid No. 88-8-1. When the Petitioner decided not to file a notice of protest when all bids were rejected in Bid No. 88-4-2, all objections to that decision were waived. Section 120.53(5), Florida Statutes; Rule 10-13.012, Florida Administrative Code.

    
    

22. Rule 10-13.008 and Rule 13A-1.006(3), Florida Administrative Code, set forth the procedures a prospective bidder is required to use if it intends to contest the bid specifications in an invitation to bid. The rules require that a protester file the notice of protest or intent to protest within seventy-two hours after receipt of the bid solicitation. As stated by the court in Capeletti Bros., Inc. v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986):

    
    

    The purpose of the bid solicitation protest provision is to allow an agency, in order to save expense to the bidders and to assure fair competition among them, to correct or clarify plans and specifications prior to accepting bids. A failure to file a timely protest constitutes a waiver of chapter 120 proceedings. 499 So.2d at 857.

    
    

23. Florida law provides prospective bidders with the opportunity to challenge specifications in an invitation to bid after the invitations are received, but well before the time deadline on which the bidders are required to submit their bids. When the Petitioner did not avail itself of this opportunity within seventy-two hours after its receipt of the invitation, the opportunity to object to the specifications was waived, along with the right to a formal administrative hearing on the subject.

24. Pursuant to Section 287.057(2), Florida Statutes, the Department is required to utilize the competitive bidding process in its purchase of contractual services such as those described in Bid No. 88-8-1. The purpose is to promote fair and open competition in the public procurement of services. Section 387.001, Florida Statutes.

    
    

25. In order to comply with the purpose behind the competitive bidding process, an invitation to bid must be liberal enough in its specifications to allow competitive responsive bidding on comparable services from various vendors for the services sought by the governmental agency.

    
    

26. When the Petitioner misinterpreted the specifications to limit competition instead of promoting it, the mistake was made at its own risk, and at its own peril. The Department was never made aware of this interpretation of its specifications, although various opportunities were given to the Petitioner to have the specifications explained prior to its bid submission.

    
    

27. The law is clear that an agency cannot place limitations in a bid which would cause the bid to be restrictive and afford opportunities for favoritism. Webster v. Belote, 136 So. 721 (Fla. 1931).

    
    

28. The Petitioner's bid offered additional enhancements beyond the requirements of the bid specifications, as written. All of these additions were responsive to the invitation to bid. However, Elite Answering Service, Ltd. also submitted a bid which was responsive to the minimum requirements of the specifications and lower in price. According to the bid tabulations, Elite Answering Service, Ltd. submitted the low bid and should receive the bid award.

Based upon the foregoing, it is RECOMMENDED:

That the Petitioner's bid protest in Bid No. 88-8-1 be denied and that the bid be awarded to Elite Answering Service, Ltd., the apparent responsive low bidder.

DONE AND ENTERED this 12th day of January, 1989, at Tallahassee, Florida.

VERONICA E. 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 12th day of January, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6073BID

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

1. Rejected. Irrelevant. See Conclusions of Law regarding waiver.

2. Rejected. Not placed into evidence. Irrelevant.

3. Accepted.

4. Rejected. Irrelevant.

5. Accepted.

6. Rejected. Contrary to law and evidence.

7. Rejected. See HO #2.

8. Rejected. Contrary to contents of the letter.

9. Rejected. Not in evidence. Irrelevant.

10. Rejected. Irrelevant.

11. Rejected. Irrelevant.

12. (Second 12 included in proposed findings) Rejected. Irrelevant.

13. Accepted. See HO #3.

14. Rejected. Irrelevant.

15. Accepted. See HO #4.

16. Rejected. Irrelevant.

17. Rejected. Irrelevant.

18. Accepted. See HO #7.

19. Accepted.

20. Accepted. See HO #8 and #9.

21. Rejected. See HO #9.

22. Accepted. See HO #14.

23. Accepted. See preliminary matters in Recommended Order and HO #13.

24. Accepted. See preliminary matters.

25. Accepted.

26. Accepted.

27. Rejected. Contrary to fact. The bid was not awarded. Accept that the emergency contract with Answerphone was not renewed.

28. Rejected. Conclusion not supported by facts.

29. Accepted.

30. Rejected. Irrelevant.

31. Rejected. Irrelevant.

32. Accepted.

33. Accepted.

34. Accepted.

35. Accepted.

36. Accepted.

37. Accepted.

38. Accepted.

39. Accepted.

40. Rejected. Irrelevant to the bid protest as this involves an emergency contract.

41. Rejected. Irrelevant to these proceedings.

COPIES FURNISHED:

Don Molitor, President Answerphone of Florida, Inc.

15 Poinsett Drive Cocoa, Florida 32922

James Sawyer, Esquire District Legal Counsel District VII

Department of Health and Rehabilitative Services

Orlando, Florida 32801

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-006073BID

Orders for Case No: 88-006073BID