STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PARTY TIME SPECIALITIES, INC., )

)

Petitioner, )

vs. ) CASE NO. 89-2061BID

) DEPARTMENT OF THE LOTTERY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 3, 1989. The parties filed proposed recommended orders on May 15, 1989. The attached appendix addresses proposed findings of fact by number.

Although a representative of Red Enterprises testified at hearing and was present throughout, Red Enterprises did not enter an appearance. Petitioner appeared through its "Chairman/Manager" and sole stockholder, John S. Fuller, and respondent appeared through counsel:

Louisa E Hargrett Senior Attorney Department of Lottery Capitol Complex

Tallahassee, FL 32399-4011

After respondent Department of the Lottery (DOL), posted a notice of intent to award a contract to Red Enterprises for promotional T-shirts, Party Time Specialties, Inc. (Party Time), filed a formal protest "[p)ursuant to the Florida Statute 120.53 and the Administrative Codes 53ER 87-13 through 19 alleging policy violations because "[s]ample submission is vague and is not a requested requirement."

On April 19, 1989, DOL transmitted the protest to the Division of Administrative Hearings, for appropriate proceedings. At hearing, the parties stipulated to proceeding under Section 120.57(1), Florida Statutes (1987), despite any lack of dispute as to a material fact. DOL's motions for official recognition of Chapter 24 and 287 and of Sections 288.702 at seq., Florida Statutes, were granted at hearing.

STATEMENT OF THE ISSUES

Whether DOL should accept either the bid Red Enterprises submitted for T- shirts, in response to invitation to bid No. 89- 026-LOT/Ten/A, or the bid submitted by Party Time, or neither?

FINDINGS OF FACT

1. By invitation to bid No. 89-026-LOT/TEN/A (the ITB), petitioner's Exhibit No. 2, the DOL originally solicited bids from suppliers of beach towels, men's caps ("golf style, sewed back") and canvas sport bags. By an addendum dated March 24, 1989, the invitation was expanded to include 10,000 men's T- shirts. Petitioner's Exhibit No. 2.

   
   

2. Three bidders responded: Party Time, Red Enterprises and Bagley Advertising. Respondent's Exhibits Nos. 1, 2 and 3. Only Party Time and Red Enterprises bid on the T-Shirts, Respondent's Exhibit No. 3; Petitioner's Exhibit No. 1, and Party Time's bid was low. Petitioner's Exhibit No. 1; Respondent's Exhibit Nos. 1 and 2. Red Enterprises's bid was responsive to the ITB. With the required paperwork, Red Enterprises submitted a sample T-shirt, along with samples of the other items. Although Party Time submitted samples of caps and towels, it did not submit a sample T-shirt. DOL rejected Party Time's bid on T-shirts for this reason, and announced its intention to award the T- shirt contract to Red Enterprises. Petitioner's Exhibit No. 1.

   
   

   ITB Provisions

   
   

3. In paragraph 2.1, the ITB states, under the heading "Samples of Products to be submitted with Bid":

   
   

   SECTION 2: ITEMS REQUESTED

   
   

   2.1 Samples of Products to be Submitted with Bid.

   
   

   Each bidder shall submit with its bid a sample of the product for each item bid. The samples shall be made of the materials to be used in the final product, if the bidder is successful, and shall be product identified. The samples shall be inspected to determine whether they meet the minimum specifications required.

   
   

   Samples of items, when called for, must be furnished free of expense on or before bid opening time and date, and if not destroyed may, upon request, be returned at the bidder's expense. Each individual sample must be labeled with bidder's name, manufacturer's brand name and number, bid number and item reference. The Department reserves the sole right to determine whether the sample meets or exceeds the quality requirements of the specifications. All such determinations made by the Department are final. (emphasis

   supplied)

   Later on the ITB lists all items which comprise the bid, without mentioning samples:

   
   

   3.1.5 Bids should be presented in the following sequence:

   
   

   1. Identification of Respondent per Section 3.2 of ITB.

   2. Authorized representative of Respondent per Section 3.3 of ITB.

   3. Bidder's Affidavit (Attachment A) and Registration Form (Attachment B), if applicable, or notation that said Form is already on file with the Department.

   4. Price Sheet per Section 3.5 of ITB. (Attachment C).

   5. Florida-licensed per Section 3.6 of ITB.

   6. Minority Certification per Section 3.9 of ITB.

   
   

   But still later the ITB explicates the importance of complying with requirements which use "shall . . . except to indicate simple futurity":

   
   

   SECTION 4. MANDATORY REQUIREMENTS

   
   

   The Department has established certain mandatory requirements which must be included as part of any submitted bid. The use of "shall", "must" or "will" (except to indicate simple futurity) in this ITB indicates a mandatory requirement or condition.

   
   

   The words "should" or "may" in this ITB indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature will not by itself cause rejection of a bid....

   
   

   Finally, the ITB specifies DOL's intentions, in the event of a bidder's noncompliance with mandatory requirements:

   
   

   1. Proposal Submission

      
      

      Only bids submitted in the time frame stated herein and with the content required above will be reviewed and considered by the Department.

      
      

   2. Review Criteria

   
   

   If Respondent's bid does not meet all the mandatory requirements the bid may be rejected by the Department as nonresponsive.

   The Department seeks to contract for the

   items described herein with the responding firm who submits the lowest and best bid.

   Responsive bids will be evaluated and judged by the Department based on cost.

   
   

   In Section 5.3, the ITB refers to "the lowest and best responsive bid," and Attachment C states, "Bid [e]valuation and award of contract will be based solely on the unit price." The ITB put reasonable bidders on notice that DOL expected bidders to furnish samples of items on which they bid. Except for T- shirts, Party Time did submit samples of everything on which it bid.

   
   

   CONCLUSIONS OF LAW

   
   

4. An invitation to bid sets out specifications which bids filed in response must meet in substance, in order for the bidder to qualify as a competitor for the contract to be let. The invitation to bid is the standard against which bids are measured to determine whether they are eligible for consideration. Specification in invitations to bid, like "[w]ords in [almost] an[y] instrument should be given their natural or most commonly understood meaning." Tropabest Foods, Inc. v. State Department of General Services; 493 So.2d 50, 51-2 (Fla. 1st DCA 1986).

   
   

5. Party Time contends the language in the ITB describing the role price was to play in deciding the award obviated the necessity to submit samples. But the ITB makes clear that price was to be the determinative factor only among responsive bids. Prospective bidders who found ambiguous the requirement that "[e]ach bidder shall submit with its bid a sample of the product for each item bid," when read with other ITB provisions, were on notice to inquire; and could have initiated administrative proceedings before bidding occurred, if they desired to challenge the requirement for samples. Capeletti Brothers v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986) (reh. den. 1987).

   
   

6. Party Time's failure to furnish a sample did not comply with the ITB. "Although a bid containing a material variance is unacceptable . . . not every deviation from the invitation is material." Robinson Electrical Co. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982); Tropabest Foods, Inc. v. State Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986); Glatstein v. Miami, 399 So.2d 1005 (Fla. 3rd DCA) rev. den. 407 So. 2d 1102 (Fla. 1981). "It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropebest Foods, Inc. v. State Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986); Harry Pepper & Associates, Inc. v City of Cape Coral, 352 So. 2d 1190, 1193 (Fla. 2d DCA 1977). Without a sample accompanying the bid, Party Time would have the "substantial advantage" of not being bound to furnish any particular shirt, as long as it complied with the specifications set out in paragraph 2(D) of the addendum.

   
   

7. Even though Red Enterprises'S bid was the only responsive bid, DOL is authorized to award the contract to Red Enterprises. Harris/3M v. Office Systems Consultants, 533 So.2d 833 (Fla. 1st DCA 1988).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That DOL award the contract for 10,000 men's T-shirts to Red Enterprises.

DONE AND ENTERED this 2nd day of June, 1989, in Tallahassee, Leon County, Florida.

ROBERT T. BENTON, II, 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 2nd day of June, 1989.

APPENDIX

Petitioner's proposed findings of fact Nos. 1 through 15 have been adopted, in substance, insofar as material, and to the extent they are more than mere argument.

Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 7, and 8 have been adopted, in substance, insofar as material.

With respect to respondent's proposed finding of fact No. 3, the evidence did not establish that Party Time did not have a sample.

COPIES FURNISHED:

Rebecca Paul, Secretary Department of Lottery Capitol Complex Tallahassee, FL 32399-4002

Nan Mancha

Red Enterprises 1308 High Road

Tallahassee, FL 32304

Linda Bagley Wiggs Bagley Advertising

4406 South Florida Avenue Suite 17

Lakeland, FL 33813

Louisa E Hargrett, Esquire Department of Lottery Capitol Complex Tallahassee, FL 32399-4002

John E Fuller

Party Time Specialties, Inc.

12-14 East Bay Street, Suite 2101

Jacksonville, FL 32202

Docket for Case No: 89-002061BID

Orders for Case No: 89-002061BID