STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SOUTHERN COMMUNICATIONS GROUP, )
a Division of TABCO Enterprises, Inc., )
)
Petitioner, )
)
vs. ) CASE NO. 88-6294CVL
)
STATE OF FLORIDA, DEPARTMENT OF )
GENERAL SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer in Tallahassee, Florida on April 4, 1989. The appearances were as follows:
APPEARANCES
For Petitioner: John D. Carlson, Esquire
Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive
Tallahassee, Florida 32308
For Respondents: Stephen S. Mathues
Assistant General Counsel Department of General Services Office of General Counsel
Room 452, Larson Building Tallahassee, Florida 32399-0955
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether Petitioner materially failed to comply with certain state contract conditions and whether, pursuant to pertinent rules, the Petitioner should be removed from the approved "vendor's list" and thereby precluded from bidding on proposed procurements of the Respondent agency.
PRELIMINARY STATEMENT
This cause arose upon notification to the Petitioner, Southern Communications Group (Southern) by the Respondent, Department of General Services, Division of Purchasing (DGS) that Southern was to be removed from the State's approved bidder's list. The dispute is based upon DGS' allegation that Southern failed to comply with certain State contract conditions, specifically, that Southern supplied other than new telephones under contract with the Respondent in an alleged violation of a specification in the underlying invitation to bid document which specified "new" telephones. Southern timely
availed itself of its right to a Section 120.57(1) formal proceeding and the matter was ultimately transferred to the undersigned Hearing Officer for conducting that proceeding pursuant to Section 120.57(1), Florida Statutes (1987).
After the parties concluded discovery, the cause came on for hearing as noticed, at which time the Respondent presented the testimony of Herman P. Barker, Jr., John Fain, Cherrie McClellan, Florian L. "Sam" Houston, and Don Daniels. The Respondent also offered the testimony of William A. Walker by deposition, as well as exhibits 1-18. The Respondent's Exhibits 14 and 18 were not admitted evidence. The Petitioner presented the testimony of Norris Daus and Timothy Barfield. The Petitioner also presented the testimony of Michael D. Johnson by deposition, which was admitted, as well as 12 exhibits.
Specifically, Petitioner's Exhibits A, B, C, E, G, H, J, K, L, M, N, O and P were admitted into evidence. After the conclusion of the hearing, and after receipt of the transcript of the proceeding, the parties timely filed proposed findings of fact and conclusions of law in the form of proposed recommended orders, concomitantly waiving the requirements of Rule 28-5.402, Florida Administrative Code. Those findings of facts are addressed in this Recommended Order and again in the Appendix attached hereto to and incorporated by reference herein.
FINDINGS OF FACT
Southern Communications Group was a partnership consisting of Mr. Daus, Timothy Barfield and another individual as general partners at the time Southern's bid for the telephone procurement in question was submitted.
Southern is on the approved vendor's list maintained by DGS and is a qualified State contractor. Some time in early January 1988, after the subject contract was awarded to Southern, Tabco Enterprises, Inc. acquired Southern Communications Group, at which approximate time Mr. Barfield assumed management of the operation of Southern Communications.
The Division of Purchasing of the Department of General Services is the state agency responsible for preparation and administration of state contracts for various commodities. State agencies are obligated to use these contracts. The Division of Purchasing of DGS is responsible for maintaining a list of approved vendors and has authority under Rule Chapter 13A-I, Florida Administrative Code to remove vendors who failed to perform as obligated under State contracts.
One of the State wide commodities contracts prepared and administered by the Division of Purchasing is for "telephone instruments - not installed". Ms. Cherrie McClellan is a Purchasing Specialist with the Division who is responsible for the administration of this contract. She prepared the bid packets for the telephone instrument contract underlying the dispute in this case, contract No. 482-730-030-W (the contract). She prepared the bidding documents involved based upon general conditions promulgated by the Division, certain special conditions she prepared herself and technical specifications supplied by DGS's Division of Communications. She then issued the bid package to vendors who were on the previously existing mailing list, including the Petitioner. General condition Four E of the Invitation to Bid (ITB) states in pertinent part:
It is understood and agreed that any item offered or shipped as a result of this bid
shall be new (current model at the time of this bid)
Prior to the bid award DGS had already interpreted and expressed the policy to the effect that the term "new" meant unused, never before installed, telephone equipment which is an acceptable current production model.
The agency received a number of bids including one from Southern. During the bid evaluation Ms. McClellan noted that one bidder's price seemed unusually low based upon her experience with new telephone prices. She examined that bid and learned that the low prices were for re-manufactured as opposed to new telephone equipment. This bidder was notified of this fact and was thereafter disqualified from the bid award process for its failure to offer new equipment. Thereafter Ms. McClellan also noticed that prices in the bid submitted by Southern were unusually low and similar to those of the disqualified bid. Consequently, she attempted to contact Mr. Norris Daus who had submitted the Southern bid. After a number of unsuccessful efforts, she reached Mr. Daus by telephone on October 3, 1987 and inquired whether his quoted prices were for new as opposed to re- manufactured or refurbished instruments. Mr. Daus verbally confirmed that the prices were for new equipment. Mrs. McClellan's supervisor, Mr. John Fain, was also aware of the unusually low prices submitted by Southern in response to the ITB and he too conversed with Mr. Daus by phone. According to Mr. Fain, Mr. Daus confirmed that he understood that the bid called for new equipment. Mr. Daus, however, at hearing, testified initially that he had not spoken with Mrs. McClellan and then later said that he had no recollection of speaking with her. He contended that she had called him in January of 1988, after the contract was entered into. His testimony is somewhat equivocal and is not deemed as accurate as that of Mrs. McClellan and Mr. Fain and therefore, based upon the totality of the corroborating circumstances in evidence, including Mrs. McClellan's handwritten memo recording her efforts to contact Mr. Daus, is rejected in favor of her testimony and that of Mr. Fain.
In any event, in December of 1987, Southern was awarded the contract based in part on the verbal representations of Mr. Daus to the effect that the telephones to be supplied were to be new instruments and not re-manufactured or re-furbished ones. The contract term commenced on January 20, 1988 and should have run through January 19, 1989.
Early in the contract period, Mrs. McClellan received a complaint from a State agency reporting that Southern had supplied telephones under the contract which were not new instruments. She telephoned Mr. Barfield with Southern to inquire about this matter and requested that he come to her office to discuss the agency's complaint. Mr. Barfield testified, however, that the visit to her office was at his own instigation in order to learn more about his obligations under the contract and that only general issues about his obligations under the contract were discussed. Mrs. McClellan, however, discussed specifically her prior conversation with Mr. Daus, her concerns that the contract called for new equipment only and that they had reports that re- manufactured equipment was being supplied in some instances. She further testified that Mr. Barfield agreed to stop shipping re-manufactured instruments and to supply only new equipment thereafter. In view of the fact, established in evidence, that DGS had already expressed concerns to Mr. Daus about the provision of re-manufactured equipment instead of new before the conversation with Mr. Barfield, Mrs. McClellan's testimony is accepted concerning the subject matter of and the communications made during the meeting in question over that of Mr. Barfield.
Later, in early 1988, Mrs. McClellan received other agency complaints concerning Southern's performance under the contract to the same effect, that is, that re-manufactured telephones instead of new ones were being supplied. After reviewing a number of these complaints, she again telephoned Mr. Barfield and confronted him with the complaints, directing him in March, 1988, to ship only newly manufactured equipment. Neither Mr. Daus nor Mr. Barfield had outwardly disagreed with Mrs. McClellan's interpretation of the word "new" and neither requested any written interpretation of that term. Mr. Barfield admitted that Mrs. McClellan directed him, in March 1988, to ship only newly manufactured equipment.
Mrs. McClellan forwarded the complaints from the agencies which had received non-compliant instruments from Southern to Mr. Barfield. At least one non-compliant telephone instrument had been delivered to the University of North Florida. Non-compliant ten button telephones were delivered to the Palm Beach Detention Center, two non-compliant six button DTMF telephones were delivered in Crestview, Florida on behalf of the Apalachee Correctional Institution and two non-compliant telephones were supplied through the Apalachee Correctional Institution for delivery to DeFuniak Springs. Additionally, a non-compliant telephone instrument was delivered to District 11 of the Department of Health and Rehabilitative Services. DGS' Exhibits 6-10 relate to these complaints.
Mr. Barfield received all of these complaint letters from Mrs. McClellan but only replaced telephone instruments at the University of North Florida with new, unused ones.
Mrs. McClellan received certain telephones from the agencies which were allegedly non-compliant, re-manufactured ones which had been supplied these agencies by Southern. She forwarded these to Florian "Sam" Houston, the Supervisor of the Access Systems Section, Division of Communications. She requested that he examine the telephones in question to determine if they were in compliance with the contract requirements, that is, new and unused telephones, or alternatively, whether they were re-manufactured telephones. Mr. Houston is a telecommunications expert with over 17 years experience in the communications and aerospace telecommunications industry. His section is responsible for all telephone systems supplied to the State agencies. His staff prepared the technical specifications for the contract in question and he himself reviewed those specifications. He and his staff examined the three telephones submitted for inspection and determined that they contained used parts and were therefore not new telephones as required by the contract.
Mr. Houston sent Don Daniels of his staff to perform field inspections of certain telephones supplied by Southern. Mr. Daniels thus found four non- compliant telephones in West Palm Beach, two in Crestview and two more in DeFuniak Springs, referenced above.
DGS Exhibit 6 is the notification from the agency to Southern that a sample telephone instrument had been found to be non-complaint with the contract specifications and DGS thereby gave Southern Communications ten days to correct that situation or to be found in default on the contract. DGS Exhibits 7-10 are similar letters informing Southern of similar failures to perform with reference to the other non-compliant telephones referenced above. Each letter gives Southern ten days to comply or be found in default.
A re-manufactured telephone involves a previously used instrument which is taken out of service, disassembled, thoroughly cleaned with any broken or unserviceable parts being replaced. It is then re-assembled to certain
standards. When a re-manufactured phone is resold for further use, it must meet Federal Communications Commission standards. Those standards refer, however, to the transmitting and receiving capability and do not relate to the durability of the instrument itself. "Refurbishing" generally involves a less detailed re- juvenation process involving cleaning and placing in serviceable working order. Both terms describe the process of creating a finished product which contains used original parts. Mr. Michael Johnson, whose company supplied the re- manufactured instruments to Southern Communications which are in dispute here established that those terms are in reality interchangeable.
In any event, DGS uses a ten year life expectancy for telephones on State contracts assuming those are new telephones. Ten years is the normal life expectancy accepted in the industry for new telephones. The life expectancy for re- manufactured instruments is significantly less and in some cases only five years. A decreased life expectancy of such instruments is due to the re-use of used components, some of which may already surpass the original life expectancy in the original condition instruments. In fact, according to Mr. Johnson, his company might even use twenty year old parts in some re-manufactured phones. While it is true that re-manufactured phones carry identical one year warranties as do new phones, the re-manufactured phones are not the service equals of new phones because re-manufactured instruments will not last as long and any telephone is used much longer than the warranty period itself. Re-manufactured phones appear to the casual observer and to the layman to be new phones. Casual inspection of such a telephone will not reveal any differences from a new telephone. The difference between new and re-manufactured instruments only becomes obvious when their covers are removed and they are disassembled and inspected.
When State agency telephones are no longer needed for whatever purpose, they are declared surplus and sold or traded in. When they are traded in, re-manufactured phones have a significantly lower value than new phones, largely due to their used life expectancy versus that of new telephones. It is also true that re-manufactured telephones cost both the supplier and the purchaser significantly less than new instruments.
Southern does not dispute that it supplied re- manufactured telephone instruments to users of the State contract in question. It maintains, however, that re-manufactured phones are the equivalent of new phones and that the specifications in the ITB documents regarding new phones was not specific enough to show any indication that re-manufactured phones were non- compliant and that since re-manufactured phones meet "FCC" specifications and carry the same warranty as a new telephone that they are no different than new telephones. In view of the above findings, however, re-manufactured phones are not the functional equivalent of new telephones because of their shortened useful life. In any event, Southern is belatedly disputing the nature of the specification regarding new telephones in the ITB and in the contract. It accepted without protest the provision in the Invitation to Bid documents and in the contract concerning "new" telephones, quoted above. Moreover, through communication by Mrs. McClellan to Mr. Daus before the contract was actually awarded, Southern was verbally informed of the Department's policy concerning what it deemed new phones to mean and that policy was proven by the testimony of Mrs. McClellan concerning her conversation by phone with Mr. Daus, as well as the fact that she had previously stricken the bid proposal of another vendor because that vendor was proposing to supply re-manufactured telephones.
Southern should have known at the time that it was awarded the contract that re-manufactured equipment was not acceptable. Mr. Fain and Mrs.
McClellan had provided adequate notice of this by their verbal contact with Mr. Daus. Clearly Southern knew that re-manufactured equipment would not be acceptable well before it cancelled the contract at any rate. Mr. Barfield admitted that Mrs. McClellan directed him to ship only newly manufactured equipment in March, 1988. Neither he nor Mr. Daus, before or after award of the contract, ever disagreed openly with the agency's interpretation of the word "new" in the specifications. Neither of them, nor any person on behalf of Southern, requested any written interpretation or clarification of that word in the specifications prior to bidding or at any time thereafter.
The exact number of telephones supplied as re- manufactured by Southern is unknown. Southern supplied a total of 1723 telephones. The only way to determine the exact number of re-manufactured instruments would be through field examination of each phone sold by Southern or possibly through records that Southern may maintain concerning orders from its suppliers, and its inventory, if such exist. They are not in evidence however.
In any event, Southern continued to ship re- manufactured instruments even after the March 9, 1988 conversation between Mr. Barfield and Mrs. McClellan wherein she instructed him to cease that practice. Mr. Barfield's testimony is indefinite on the question of when Southern ceased shipping re- manufactured instruments under the contract, if at all. Mr. Barfield testified at one point that only originally manufactured equipment was shipped after his March, 1988 conversation with Mrs. McClellan, but he later testified that he continued to ship re-manufactured equipment after that conversation, but stopped at some point thereafter. He did not establish when that was.
Although directed by the Department to replace those re-manufactured instruments with new telephones, Southern replaced no re-manufactured instruments other than those supplied to the University of North Florida. Mr. Barfield stated in his testimony that he did not intend to replace any more re- manufactured telephones.
DGS has not followed a policy or practice of accepting re-manufactured equipment pursuant to such a contract. Mr. Herman P. Barker is an expert in State procurement. He has been employed in that field since 1967. He was unaware of any instance where refurbished or re-manufactured telephones have been accepted when a contract calls for new equipment.
Agencies using the State contract for such purchases typically deal directly with the approved contractor. The agencies receive the items which are the subject of such a contract and determine themselves whether the proper models have been delivered. The agencies, however, do not have the necessary expertise to perform technical evaluations of each instrument received and are not required under the terms of such contracts, including this one, to disassemble goods in order to make inspections and evaluations before acceptance upon the delivery of the instruments. If an agency cannot resolve a problem with a vendor, the agency then refers the matter to DGS and the DGS Purchasing Agent for the commodity in question gathers information about the dispute and contacts the contractor. Two contract users contacted Southern directly, Mr. McMullen of the University of North Florida and William A. Walker. Mr. Walker asked Southern to supply new instruments and agreed to return the re- manufactured ones upon receipt of the new instruments. Southern did not respond to Mr. Walker's request for new telephones nor did it replace other telephones as directed by DGS.
Southern has taken the position that the agencies are precluded from challenging any purported nonconformance with the contract after they have accepted delivery of the instruments. Southern maintains that the agencies had an opportunity to inspect the instruments upon receipt, and if no complaint was registered with the contractor upon that initial inspection and acceptance, then title to the instrument passed and no complaint of non-performance of the contract with regard to those instruments may be thereafter asserted. The Petitioner contends that the place and method of inspection was fixed by the contract between the parties here as being the place of destination.1/
The fact remains, however, that the purchasers or recipients of the goods under the contract here, the agencies, did act within a reasonable time after delivery to complain of the nonconformance of the instruments. That is, the defects in the instruments were latent defects, not readily discernible upon delivery of the instruments to the purchasers and users because the instruments did operate as specified. The fact that they contained used parts and were re- manufactured instruments was not readily discernible without disassembling each unit. Thus, under the circumstances of this case, involving the latent nonconformance of the instruments, the rejection of the instruments by the agencies who happened to learn, at some time after delivery, that they were previously used instruments, must be deemed to have come within a reasonable time after delivery or tender. Notification of that fact by the agency to Southern was therefore seasonable./2
The defects involved in these instruments are not such that the personnel of the agencies should have discovered the nonconformance upon delivery because the nonconformance with the contract specification was not readily discernible to anyone who had no expertise in the manufacture and assembly of telephone instruments. The seller, Southern, was informed within a reasonable time after personnel of DGS, who did have expertise in such matters, discovered the nonconformance (when Mr. Houston's employee performed the inspections and evaluations of the instruments about which the agencies had raised questions.) Thus it is found that the "buyers", the agencies, did notify Southern within a reasonable time after they should have discovered the "breach".3/
Southern did not replace any other telephones as directed to by DGS except for those supplied to the University of North Florida. In response to some of DGS' letters, Southern did issue United Parcel Service "call tags" or "pick up orders" to some of the agencies. Southern provided no explanation of the purpose of these call tags to the agencies. It was not shown that all these agencies had knowledge that they had been supplied re-manufactured, as opposed to new telephones, upon the point of the receipt of these call tags. Southern received one telephone to exchange in response to these call tags. The agencies needed to have phones available to them and could not relinquish the nonconforming telephones and then be forced to wait on supply of new ones without phone service during the interim. Ultimately, DGS determined that Southern Communications should be held in default for failure to supply compliant equipment under the contract and noticed Southern of its intent to remove it from the approved bidders' list.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Section 287.042, Florida Statutes (1988 Supp.) provides in part:
The Division [of Purchasing] shall have the following powers, duties, and functions:
(1)(a) To canvass all sources of supply, establish and maintain a vendor list, and contract for the purchase . . . of all commodities required by any agency under competitive bidding . . .
(b) The Division may remove from its vendor list any source of supply which fails more than once to fulfill any of its duties specified in a contract with the State. It may reinstate any such source of supply when it is satisfied that further instances of default will not occur.
* * *
(7) To govern the purchase by an agency of
any commodity [A and D] to establish standards and specifications for any commodity. . .
* * *
(13) Except as otherwise provided herein, to adopt rules necessary to carry out purposes of this section.
* * *
(2) Rule 13A-1.006(4), Florida Statutes states:
(4) Default - suppliers who fail to perform to contract terms and conditions shall be notified, in writing, stating the nature of the failure to perform and providing time certain for correcting the failure (reasonable time should not generally be less than ten days after receipt of such notice). The notification will also provide that, should it fail to perform within the time provided, the firm will be found in default and removed from the agencies' approved vendors list. Unless the supplier corrects its failure to perform within the time provided, or unless the agency determines on it own investigation that the supplier's failure is legally excusable, the supplier shall be found in default and issued a second notice stating the reasons the vendor is considered in default and stating that the agency has reprocured the commodities and the amount of the reprocurement.
The clear and convincing evidence of record establishes that Southern Communications materially ". . . failed to perform to contract terms and conditions" by repeatedly supplying re- manufactured telephone instruments after it was on notice that those would not be acceptable. Mr. Daus had been given
adequate notice that re-manufactured equipment was not acceptable even before the award of the contract. He was thus given the opportunity to recede from his bid before award of the contract if he was indeed proposing re-manufactured instruments. He led the Respondent to believe that he was supplying new instruments. Mr. Barfield, as well, was told early in the contracting process that only new equipment would be allowed. In spite of this, they continued to supply re-manufactured equipment. Mr. Barfield admits that he knew from the March 19, 1988 telephone call forward that re-manufactured phones would not be acceptable. Since it continued to ship non-compliant instruments even after that conversation, Southern disregarded the contract terms. DGS has the statutory authority to set specifications pursuant to subsection 287.042(7), Florida Statutes. The Petitioner never, timely or otherwise, protested or sought clarification of those specifications. It was aware of the Department's interpretation of "new" before the contract award.
As the Department received multiple agencies' complaints concerning the Southern contract, it acted in accordance with Rule 13A-1.006(4), Florida Administrative Code, by providing written notice of the nature of Southern's failure to perform, giving Southern a time certain for correcting those failures. It further gave notice that failure to perform within that time would result in default and its removal from the vendor list. Southern did not respond to those written notices nor, with one exception, did it cure the failure to perform by replacing the re-manufactured instruments with new instruments. Southern never advised DGS that it had replaced the instruments at the University of North Florida and, even though it did, its mere issuance of call tags without replacing the other nonconforming instruments at the other agencies involved did not constitute a cure of its nonperformance in those other instances. It was not reasonable for the agencies to be expected to return the re-manufactured phones upon issuance of the call tags and then have to wait for shipments of new replacement instruments from Southern or from Southern's supplier. In view of Southern's silence and failure to perform under the contract, the Department correctly issued its second notice finding Southern in default and removing it from the bidder's list. Even as of the time of the hearing, Mr. Barfield still refused to replace the re-manufactured instruments and Southern's inability or refusal to identify the number and location of other re-manufactured instruments it supplied leaves DGS with the expensive option of performing an inspection of all 1,723 instruments supplied under the contract.
The Petitioner has argued that the re-manufactured equipment is the same as new equipment or as good as new and that therefore no breach has occurred. That argument does not take into account the fact, established in the evidence, that the life expectancy of re-manufactured instruments in significantly less than that of new ones. Southern's own witness, Mr. Johnson, established that the life expectancy of re-manufactured instruments is significantly less than new ones and that his own company's re-manufactured phones may contain twenty year-old parts. The trade-in value of re-manufactured instruments is much less than that of new instruments. Even though there are identical one year warranties for the two types of instruments, the re- manufactured ones are not the equal of new ones because the instruments will be used long after the warranty has expired and the re-manufactured instruments are much less durable. These factors distinguishing re-manufactured instruments from new ones is the reason new ones were specified in the Invitation to Bid documents and the contract. The evidence also establishes a consistent policy and interpretation by the agency of requiring newly manufactured instruments.
Southern has knowingly shipped non-compliant equipment to unsuspecting agencies. This equipment appears to be new to the casual observer and the
agency recipients of the equipment did not have the expertise to perform a technical evaluation which would involve disassembly of the telephones. The Petitioner relies on the various provisions discussed of Chapter 672, Florida Statutes, including Section 672.513(4), 672.606(1)(a) and (c) and 672.607(3)(a)(4), in support of its argument that inspection and acceptance must be made at the point and time of delivery. If no complaint concerning the condition of the goods is made at that point then, in effect, it is waived and the goods become the property, for all purposes, of the recipient. That argument is inapposite, however, because the defects in these instruments were latent defects not readily discernible to the casual, non-trained observer. The provisions of Chapter 672 cited in the above findings of fact concerning the Petitioner's argument are of the overall tenor that in such a situation the recipients of the instruments were obligated to inform the supplier or the seller when they knew or reasonably should have known of the defects. It is not reasonable to expect that they should have known of the defects when the instruments arrived and were installed and began working as required. There is no dispute that the instruments worked as required and that the exterior looked like new instruments. Thus there is no reasonable basis for holding the recipient agency to the standard of inspection and reporting of these defects to the supplier or seller on an immediate basis. Thus the Petitioner's argument, pursuant to these provisions of the Uniform Commercial Code, as adopted in Florida in Chapter 672, Florida Statutes, is inappropriate and not accepted.
Rule 13A-1.006(4), Florida Administrative Code provides in part:
The defaulting supplier will also be advised that his firm has been removed from the approved vendor list pursuant to Rule 13A- 1.006(2) and not be eligible for award of a contract by the State agency until such time as the State is reimbursed for all reprocurement costs . . . Until such time as it reimburses the agency for all procurement and cover costs, the defaulting supplier shall not be reinstated on the agency's approved vendor list and not be eligible for award of a contract by the State agency.
Since Southern has not yet disclosed the number or location of all the re-manufactured instruments it supplied, the Department does not have the means to easily undertake physical examination of all the telephones sold by Southern. Southern's withholding of this information puts the Respondent to the burden of examining all 1,723 instruments supplied under the contract. The withholding of this information prevents the Department from determining either the reprocurement cost or the cost of cover. Thus, under the quoted portion of the above rules, Southern should not be reinstated to the approved vendor list until such time as it identifies and replaces all re-manufactured instruments with new phones or until it provides the Department the information necessary to do so itself, and then reimburses the Department the re-procurement costs and costs of covering in full.
Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a Final Order be entered by the Department of General Services removing Southern Communications Group, a division of Tabco Enterprises, Inc. from the State approved vendor list, until such time as that entity identifies and replaces all re-manufactured instruments which it sold under the subject contract or reimburses the Respondent for the costs of cover and re-procurement.
DONE and ENTERED this 23rd day of October, 1989, at Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1989.
ENDNOTES
1/ (See the various provisions of Chapter 672, the Uniform Commercial Code: Sales, submitted into evidence by the Petitioner by way of official recognition).
2/ See Section 672.602(1), Florida Statutes (1987).
3/ See Section 672.607(3)(a), Florida Statutes (1987).
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-6294
Petitioner's Proposed Findings of Fact:
Accepted
Accepted
Rejected, except for the first two sentences, as not in accordance with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Accepted, except to the extent that this proposed finding might indicate bias on the part of witness McClellan. I find witness McClellan's testimony at the hearing credible. I do not find any remarks witness McClellan may have made in anger in the March, 1988 telephone conversation to have sufficiently colored or biased her testimony as to justify its rejection.
Accepted in part, but not as to the sentence concerning "good faith".
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not materially dispositive of the essential issues in dispute.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter and not accepted as to its purported material import.
Rejected as to its purported material import and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as to its purported
material import.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not, in its entirety, in accordance with the greater weight of the evidence.
Accepted.
Accepted, but not in itself dispositive of the material issues presented.
Accepted, but not in itself dispositive of the material issues presented.
Respondent's Proposed Findings of Fact:
Accepted.
Accepted.
Accepted.
Accepted.
5.-8. Accepted.
9. Paragraph number 9 is rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not material to resolution of the essential issues in dispute
10.-31. Accepted.
Accepted generally, but subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted to the extent that it demonstrates why agencies could not immediately return re-manufactured phones before receiving new ones in replacement.
Accepted.
Accepted.
Accepted.
Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter and to some extent immaterial.
Rejected as not in accordance with the greater weight of the evidence and as unnecessary.
COPIES FURNISHED:
John D. Carlson, Esquire
GATLIN, WOODS, CARLSON & COWDERY
1709-D Mahan Drive Tallahassee, Florida 32308
Stephen S. Mathues Assistant General Counsel
Department of General Services Office of General Counsel
Room 452, Larson Building Tallahassee, Florida 32399-0955
Ronald W. Thomas Executive Director Knight Building
Department of General Services 2737 Centerview Drive
Tallahassee, Florida 32399-0950
| Issue Date | Proceedings |
|---|---|
| Oct. 23, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 05, 1989 | Agency Final Order | |
| Oct. 23, 1989 | Recommended Order | Petitioner failed to perform procurement contract which called for new phones by supplying remanufact ones and refusing to replace/should be removed from vendor list |
