STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARRIS CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4410BID

)

HILLSBOROUGH AREA REGIONAL )

TRANSIT AUTHORITY, )

)

Respondent, )

and )

)

MOTOROLA CORPORATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Donald D. Conn, Hearing Officer, Division of Administrative Hearings, on September 22, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: John W. Wilcox, Esquire

Jesse L. Skipper, Esquire

100 South Ashley Drive Suite 1650

Tampa, Florida 33602-5348

For Respondent: Stephen D. Marlowe, Esquire

One Harbour Place Post Office Box 3239 Tampa, Florida 33601

For Intervenor: Michael S. Hooker, Esquire

1300 Ashley Tower

100 South Ashley Drive Tampa, Florida 33601

STATEMENT OF THE ISSUE

The issue in this case is whether the Hillsborough Area Regional Transit Authority (Authority) acted in an arbitrary or capricious manner in proposing to award Bid Number 89-03-02, for a transit communication/data system, to Motorola Corporation (Motorola) instead of to Harris Corporation (Harris) since, according to Harris, Motorola's bid materially deviates from the requirements of the Invitation for Bid (IFB) issued by the Authority.

PRELIMINARY STATEMENT

At the hearing, Harris called four witnesses, the Authority called one witness, and Motorola called two witnesses. Harris introduced four exhibits, and Motorola introduced ten exhibits. The parties also stipulated to the filing of two joint posthearing exhibits, which were filed on October 3, 1989.

The transcript of the hearing was filed on October 19, 1989, and thereafter, the parties filed proposed recommended orders, including proposed findings of fact, which have been considered and utilized in the preparation of this Recommended Order. Specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Authority is a public corporation created pursuant to Section 163.567, Florida Statutes, and operates a mass transit system, using buses, within Hillsborough County, Florida. It is funded by the State of Florida, through the Department of Transportation, and also receives federal funds.

   
   

2. On April 10, 1989, the Authority issued IFB 89-03-02 for a transit communication/data system, with automatic vehicle locating capability. The Authority sought, through this IFB, to obtain a radio communication system that would be able to provide two-way communication between its central base station, and buses operated by the Authority. It also sought automatic vehicle location and schedule monitoring through this system.

   
   

3. In responding to the Authority's IFB, vendors were allowed to bid either a "sign post system" or a "Loran-C system". However, if a sign post system was bid, Section 3.5.1 of the IFB specified that it must be a system that could be converted to a Global Positioning Satellite System (GPSS), when that technology becomes available, with no more than a change out of the vehicular location equipment. A GPSS system locates objects by use of a constant transmission of signals carried on various earth orbiting satellites which are received by equipment placed on vehicles utilizing this technology. Geographic location is determined by measuring the strength of the signals received from multiple satellites. GPSS technology is not presently available for a land- based vehicle locator system, such as proposed by the Authority, since an insufficient number of satellites are in orbit to provide 24-hour coverage for Hillsborough County.

   
   

4. A sign post system utilizes small radio transmitters which are placed at regular intervals along a bus route, and as a bus passes each sign post, it receives a transmitted signal from the sign post, and then retransmits that information back to the central dispatcher. Since the dispatcher knows the location of each sign post, the location of the bus can be determined as it passes each sign post and retransmits the signal it receives to the dispatcher.

   
   

5. Under a Loran-C system, transmissions from existing Loran transmitter sites located in Jupiter, Florida, and Houston, Texas, are received by equipment located on each vehicle. Those signals are used to determine the geographic coordinates of a bus, and those coordinates are relayed to the central dispatch station by transmitting equipment on each bus.

6. Harris responded to the Authority's IFB by proposing a Loran-C system, and Motorola responded by proposing a sign post system. These bids were timely received prior to June 15, 1989, and upon the opening of the bids, Motorola was determined to be the apparent low bidder.

   
   

7. Prior to proposing an award on the IFB, the Authority conducted a technical review of the bids received, and in that process met with representatives of Harris, who expressed concerns about the Motorola bid. As a result of Harris' concerns, the Authority requested clarification from Motorola about two aspects of its bid, but this was done as an accommodation to Harris, and not from any concerns or questions which the Authority had about the Motorola bid. On June 20, 1989, the technical staff review of the Motorola bid concluded that it complied with the IFB, and on June 22, 1989, the Florida Department of Transportation authorized the Authority to award this contract to Motorola. The Authority's Board of Directors formally adopted Resolution 89-25 on July 27, 1989, awarding Bid No. 89-03-02 to Motorola. On August 7, 1989, Harris protested this award by letter which sets forth the specific grounds upon which Harris relies in this case, which are that:

   
   

   1. Motorola failed to propose a "GPSS-Capable" system as expressly required by the IFB;

   2. Motorola failed to submit a complete site

      block diagram as expressly required by the IFB; and

   3. Motorola failed to provide programming necessary to interface the proposed AVL (automatic vehicle locator) system with other (Authority) systems as expressly required by the IFB.

      
      

8. The Motorola response the IFB, at Section 3.5(G) states:

   
   

   The Motorola signpost-type location system can be changed out (replaced) in the future by a Global Positioning Satellite System, (GPSS). The vehicular location equipment (i.e. signpost receiver and associated antenna) must be changed out (replaced) by a GPSS receiver and associated antenna that are compatible with the existing Metrocom bus mobile data unit's AVL interface.

   The existing signposts would be replaced

   by the GPSS satellites. Since there currently is no guaranty as to when GPSS satellite coverage will be available for Hillsborough County, a GPSS type AVL system cannot be proposed at this time.

   
   

9. Contrary to the contention of Harris, the evidence received at hearing indicates that the above-quoted portion of the Motorola bid is responsive, and does not indicate that Motorola cannot bid a GPSS upgrade, as required by the Authority. The Motorola system can be GPSS capable with only a change out of the vehicular location equipment, which will necessarily also include both the signal receiver and associated antenna. Motorola has not conditioned or qualified its response to the IFB requirement that any system must be GPSS capable with only a simple change out or replacement of the vehicular location equipment, and therefore, its bid in this regard is responsive.

10. Section 6.1 of the IFB also requires bidders to submit a site block diagram with their bids which shows gains and losses in decibels, cables, antennas, any necessary control logic, audio panels, as well as transmitters, receivers, combiners, and duplexers. This was intended to provide the Authority with a simplified system architecture diagram, enabling it to confirm that each bidder's proposal complied with the IFB requirements relating to system output. The site block diagram is a visual aid, and does not affect or represent any part of the cost of the system.

    
    

11. Motorola's bid omitted that portion of the site block diagram which should have identified system gains and losses from transmitter to antenna. However, this information was included in, and determinable from, other portions of the Motorola bid, such as the technical data sheets, and equipment list with catalog numbers. The Authority's technical review committee concluded that the information which Motorola did provide was sufficient for system gains and losses to be calculated, and for performance capacity to be evaluated, particularly in light of Motorola's performance coverage contour maps. Staff of the Authority was able to calculate the output power in system gains and losses using the information supplied in the Motorola bid, and therefore, while there was a technical oversight in not including certain information on the site block diagram in the Motorola bid, that information was readily ascertainable from a review of the bid in its entirety.

    
    

12. The Authority utilizes an existing computer system containing bus routing and scheduling information, as well as personnel information. Section 11.3.5(F) of the IFB provided that bidders must assume responsibility for the interface equipment necessary to allow transfer of data from the existing computer system to the new data transit communication system to be provided pursuant to this IFB. Harris contends that Motorola's bid was nonresponsive because it proposed that the Authority bear the cost of transferring data from the existing computer system to the new system. However, as acknowledged by Harris at hearing, the Motorola bid expressly states that the interface will be provided by Motorola. The Authority reasonably interpreted the Motorola bid as responsive on this point. Motorola was not required to, and did not, commit to pay for the cost of any reprogramming of the Authority's existing computer system, but it has agreed to supply the equipment necessary for an interface between its new system and the Authority's existing system, or to program that interface.

    
    

13. There is no evidence in the record which would indicate that the Authority acted fraudulently, in an arbitrary or capricious manner, or out of bad faith in its evaluation of, and proposed award of, this IFB to Motorola. Additionally, there is no evidence that Motorola received any competitive advantage over Harris due to any aspect of the manner in which it submitted its bid, including specifically those three aspects challenged by Harris, or the manner by which it was evaluated by the Authority.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Sections 120.53(5) and 120.57(1), Florida Statutes.

    
    

15. An agency has wide discretion in awarding contracts to responsible bidders, and its exercise of that discretion will not be overturned unless it is arbitrary or capricious, or evidences the agency's bad faith. Department of Transportation v. Groves-Watkins Contractors, 530 So.2d 912, 914 (Fla. 1988);

    Baxter's Asphalt and Concrete, Inc. v. Department of Transportation, 475 So.2d 1284 (Fla. 1st DCA 1985); Capelletti Brothers v. Department of General Services,

    432 So.2d 1359 (Fla. 1st DCA 1983); Wood-Hopkins Contracting Co. v. Roger J. Au and Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). Agencies do not have unbridled discretion, however, and must act in a reasonable manner in the award of contracts.

    
    

16. In reviewing an agency's rejection of all bids, the Florida Supreme Court stated in Groves-Watkins, supra at 914:

    
    

    . . . although the APA provides the procedural mechanism for challenging an agency's decision to award or reject all bids, the scope of the inquiry is limited to whether the purpose of

    competitive bidding has been subverted. In short, the hearing officer's sole responsibility is

    to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

    
    

17. In Groves-Watkins the Supreme Court noted there was not the slightest evidence of fraud or collusion in the rejection of the bids under review, and, further, found that the rejection of all bids was not a means of avoiding competition. Therefore, the Court found that the agency had not abused its discretion in rejecting all bids.

    
    

18. Under the judicially established standard by which an agency's decision regarding an award under an IFB must be reviewed, it is concluded that the Authority acted within its discretion in proposing to award IFB No. 89-03-02 to the lowest responsive bidder, Motorola. There is absolutely no evidence of fraud, dishonesty, collusion, bad faith, or undue competitive advantage in the record of this proceeding. Rather, a reasonable explanation of the Authority's evaluation of the Motorola bid was provided at hearing, particularly with regard to the concerns raised by Harris.

    
    

19. The Authority's decision to award this bid to Motorola was based solely upon the bid materials timely submitted by Motorola, and its evaluation thereof, including its calculations and technical review of the contents of the Motorola bid. There is nothing to indicate that the Authority treated Motorola any differently than any other bidder, or that Motorola gained any particular advantage over other bidders due to the manner in which it submitted its proposal. No requirements of the IFB were waived or altered, and Motorola complied with the IFB in all material respects. Harry Pepper and Associates v. City of Cape Coral, 353 So.2d 1190, 1193 (Fla. 2nd DCA 1977).

    
    

20. Harris has failed in this case to meet its burden of proving that the Authority acted in an arbitrary or capricious manner, or out of fraud, collusion or bad faith when it proposed to award IFB No. 89-03-02 to Motorola. There is no evidence that Motorola received any undue competitive advantage over other bidders based upon the manner in which it submitted its bid, or the manner by which it was evaluated by the Authority.

RECOMMENDATION

Based on the foregoing, it is recommended that the Authority enter a Final Order dismissing Harris' protest of the award of IFB No. 89-03-02 to Motorola.

DONE AND ENTERED this 13th day of November, 1989, in Tallahassee, Leon County, Florida.

DONALD D. CONN

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 13th day of November, 1989.

APPENDIX

DOAH CASE NO. 89-4410 BID

Rulings on Harris' Proposed Findings of Fact:

1. Adopted in Finding of Fact 2.

2. Adopted in Findings of Fact 4, 6. 3-4. Adopted in Finding of Fact 3.

1. Adopted in Finding of Fact 6, but Rejected in Finding of Fact 9.

2. Adopted in Finding of Fact 10.

3. Rejected in Finding of Fact 11.

8-9. Adopted and Rejected in Finding of Fact 12.

Rulings on Motorola's Proposed Findings of Fact, which have been joined in by the Authority:

1. Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant.

2. Adopted in Finding of Fact 1.

3. Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant.

4-5. Adopted in Finding of Fact 2.

1. Rejected as immaterial and unnecessary.

2. Adopted in Finding of Fact 3.

3. Adopted in Finding of Fact 4.

4. Adopted in Finding of Fact 5. 10-11. Adopted in Finding of Fact 6.

12-19. Adopted in Finding of Fact 7, but otherwise Rejected as unnecessary and immaterial.

20-26. Rejected as unnecessary and irrelevant. 27-30. Adopted in Finding of Fact 3.

31. Adopted in Finding of Fact 8.

32-34. Adopted in Finding of Fact 9, but otherwise Rejected as unnecessary and immaterial.

35-37. Adopted in Finding of Fact 10.

38. Rejected as unnecessary.

39-43. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary and immaterial.

44-56. Adopted in Finding of Fact 12, but otherwise Rejected as unnecessary and immaterial.

COPIES FURNISHED:

John W. Wilcox, Esquire Jesse L. Skipper, Esquire

100 South Ashley Drive Suite 1650

Tampa, FL 33602-5348

Stephen D. Marlowe, Esquire One Harbour Place

P. O. Box 3239 Tampa, FL 33601

Michael S. Hooker, Esquire 1300 Ashley Tower

100 South Ashley Drive Tampa, FL 33601

Cliff Hayden, Jr. Executive Director Hillsborough Area Regional

Transit Authority 4305 East 21st Avenue Tampa, FL 33605

Docket for Case No: 89-004410BID

Orders for Case No: 89-004410BID