STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOORE BUSINESS FORMS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5624BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida. Appearances were as follows:

APPEARANCES

For Petitioner: Robert W. Hollan

Account Executive Post Office Box 14287

Killearn Center Boulevard Suite B-1

Tallahassee, Florida 32317-4287

David R. Preising Project Manger 999 Woodcock Road

Suite 2115

Orlando, Florida 32802

For Respondent: Robert L. Powell, Sr., Esquire

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES

This cause concerns the issue of whether the response of Moore Business Forms, the Petitioner, to an invitation to bid for "self-mailer packages" issued by the Respondent agency was the lowest, best, most responsive bid response and whether the Item 30.700 in the Invitation To Bid actually called for a sample of the bider's proposed "self-mailer package."

PRELIMINARY STATEMENT

The Respondent Department of Health and Rehabilitative Services (HRS, Department) issued an invitation to bid for the award of a contract for forms production and mailing services for its office of overpayment, fraud and recoupment. After the Respondent announced its intent to award the contract to UARCO Business Forms, the Petitioner initiated the instant bid protest proceeding. The Petitioner maintains that its bid should not have been determined to be unresponsive and therefore scored the lowest of the bidders submitting responses because Item 30.700 of the Invitation To Bid in the Petitioner's view does not clearly require a submission of a product sample or examples of the proposed "self-mailer package."

The cause came on for hearing as noticed at which the Petitioner adduced the testimony of Robert W. Hollan. Additionally, Petitioner's Exhibit 1, the Invitation To Bid document, and Petitioner's Exhibit 2, the Petitioner's bid response were admitted into evidence.

Respondent adduced Paul Bartlett, the Program Administrator for collection of welfare aid to families with dependent children and food stamps overpayments. The Respondent also presented the testimony of Lynn Marie Myer, an Internal Auditor with the Department of Inspector General's Office, and Robert Pruitt, an account representative with UARCO Business Forms. Additionally, the Respondent introduced Exhibits 1-8 which were admitted into evidence.

At the conclusion of the proceeding, the Department elected to have the proceedings transcript and requested an extended briefing scheduling for submission of proposed recommended orders containing proposed findings of fact and conclusions of law. Those proposed findings of fact are treated in this recommended order and the appendix attached hereto and incorporated or referenced herein. The Petitioner did not present proposed findings of fact, but rather a written argument post hearing. The parties' concomitantly waived the requirement Rule 28-5.402, Florida Administrative Code.

FINDINGS OF FACT

1. The Department's Office of Overpayment, Fraud and Recoupment collects welfare overpayments which consist of Aid to Families with Dependent Children (AFDC), food stamps and Medicaid monies. Under pertinent Federal Regulations, the Department has the responsibility to collect these overpayments through a series of demand letters.

   
   

2. It has been the practice of the Department in the past, and continues to be as evidenced by the Invitation To Bid at issue, for the Department to obtain a commodity/service vendor who will use individual's names supplied by the Department to mail out on a regular basis demand letters or billing statements as well as delinquent notices. These letters, statements, and notices are accompanied with a return envelope for the client to remit his or her payment. The pertinent provision of the subject Invitation To Bid is section 30-700. The Invitation To Bid for 1989 and 1990, which is under protest in this proceeding, is essentially identical to the same bid specifications in the 1988-1989 Invitation To Bid procurement process, which was the first year that the Department procured these services.

3. That section of the Invitation To Bid at issue states:

   
   

   30.700 Proposed Self-Mailer Packages or Envelopes for Notices

   This section shall contain the bidder's proposed self- mailer packages or envelopes for the specified notices.

   * * *

   
   

4. Section 50 of the Invitation To Bid contains the various phases of the evaluation process by which the agency will evaluate the vendor's proposals and select a contractor. Section 50.300, Phase I contains a requirement that any proposal that is incomplete or non-responsive or in which there is significant inconsistencies or inaccuracies may be rejected by the Department.

   
   

5. Three bids were received for the 88-89 procurement and for the 89-90 procurement at issue herein. Moore bid the Petitioner bid in each of those years. Moore was the only bidder in each of the two years who did not submit an example or sample of its proposed self mailer. There was a bidder's conference provided by the Department prior to the submission to bids in the 1988 procurement. The bidders then were specifically instructed during that conference "the bid will be award to the bidder with the lowest bid price that provides a product sample and bid scores well in the evaluation process." Mr. Holland of Moore Business Forms, the petitioner was present at that 1988 bidders conference and later received the questions and answers resulting from that conference in written form from the agency.

   
   

6. The 1988 bidding effort and circumstances surrounding are not directly relevant to the questions of specification in the 1989 invitation to bid, the vendors responses thereto and the evaluation and interpretation of the specification and responses conducted by the agency as to the 1989 invitation to bid and result in responses since the specification at issue was the same as it was in the 1988 invitation to bid, and since Mr. Holland was present at the 1988 Bidders Conference at which that specification was interpreted as requiring the provisions of an actual product sample with in response to that specification it must be found that Mr. Holland and therefore the Petitioner was on notice that the agency policy was to interpret that specification as requiring submission of a product sample.

   
   

7. The other vendors uniformly submitted product samples in response to the 1989 invitation to bid at issue, and submitted them in response to the 1988 invitation to bid as well. Thus it has not been established by the Petitioner that the specification at issue cause any confusion or ambiguity which resulted in the Petitioner legitimately being misled in making its response to this specification in which occasion any undo competitive disadvantage to the Petitioner in formulating its response to this specification.

   
   

8. Although the Petitioner objects to the fact that no bidders conference was convene prior to submittal of bids in the 1989 procurement effort, that bidders conference was not mandatory but was scheduled in 1988 at the request of the proposed vendor. No vendor requested the bidders conference as to the 1989 procurement, and so none was held. No vendor including the Petitioner inquired of the agency before submission of the bids in 1989, as to whether a sample was required. The evidence reveal that all the other bidders understood that a sample was required and submitted one. The agency personnel Mr. Bartlett and Ms. Meyers, in charge of evaluating the responses to the invitation to bid established that it was consistent agency policy and there own interpretation of that specification that a product sample be submitted as part of the bid

   response. That interpretation of the specification and the resulting evaluation of the bid responses to the invitation to bid at issue was not shown to be unreasonable.

   
   

9. A fair reading of that specification dictates the finding that product sample submission was a requirement of the specification and failure to comply would vendor the bid submittal unresponsive in this regard. Further, it was demonstrated by the Respondents evidence that it is normal custom and usage in the business form production industry to produce samples for prospective customers to evaluate, and thus this also demonstrates the lack of ambiguity and the adequate clarity of the specification at issue.

   
   

10. In view of the opportunity it had to ascertain the clear meaning of this specification in both annual procurement efforts in which it was employed, the Petitioner did not demonstrate any basic for being confused as to what the specification meant or any legitimate basic for its failure to comply with it by submitting a product sample, that is the proposed "self mailer package" it propose to provide the Department.

    
    

11. Moreover, and most pointedly, to the extent that the Petitioner is seeking to attack this specification as being ambiguous or unclear or otherwise not revealing the type of response the agency wanted, the attack is untimely. The Petitioner should have challenged this specification, if it chose to do so, within 72 hours of receipt of the invitation to bid. If fact no challenge was raised until after the award when the instant Petitioner was filed.

    
    

12. In any event the agency personnel charged with evaluating the responces to the Invitation to BID assigned the various vendor response the three evaluators assigned the following points for the proposed self mailer package response to the specification at issue: the response by the Petitioner was given a scoring 0, -40, and 0 by the three members of the evaluation team. The UARCO proposal, which was initially announced winner, was sccorded a score of 100, 90, 100, and the response by Direct Mail Inc., was recorded a score of 100, 90, 70. The was because Moore merely submitted a sample list of specifications for it proposed self mailer, rather than complying with the specification and providing an actual sample of how the product would look. The scoring method used was that notice to all vendors by invitation to bid. The evaluation team followed the evaluation criteria in waiting, which the agency published in the invitation to bid. There was no showing that the scoring was arbitrarily, unreasonably, or illogically performed. If the specification indeed requires submission of a product sample, then the evaluation team members correctly scored the Petitioner's response, and correctly found it the least responsive to the three bids in this particular.

    
    

13. In fact the evidence of record establish that the specification clearly require the submission of the actual product sample of the "self mailer package" as a proper response to that specification to the invitation to bid. Since the Petitioner fail to submit one and the other vendors did so, then Moore should be rated the least responsive of the three. There was no showing that this scoring and ranking was unreasonable, inappropriate, or constitute a departure from a clear reading interpretation of the bids specification.

    
    

14. The Respondent agency has moved to tax costs against the Petitioner in accordance with Section 287.042.(2)(c), Florida Statutes (1989), with regard to the costs attributable to the time spent by agency staff members in preparing for and conducting their efforts in this proceeding, as well as document copy costs. Ms. Meyer spend two hours preparing for hearing as well as time spent in

    the hearing, which lasted approximately two and one-half hours. Jim Payne and Harry Greenwood, for the Department, also attended the Hearing; and the costs should be assessed corresponding to the two and one-half hours of hearing time. Since the agency has prevailed herein, the costs contained in Respondent's Exhibit 10, which totaled $516.05, should be assessed against the bond posted by the Petitioner.

    
    

    CONCLUSION OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

16. The Petitioner maintains that the Department low evaluation of its response concerning its description of its self mailer package is based upon an improper interpretation by the Department with specification number 30.700 resulting in department requiring the submission of a product sample in order for response to comply with that specification. The conference substantial evidence of record culminating in the above finding of facts, however leave no doubt that specification indeed required a product sample to be submitted. All bidders except the Petitioner submitted a product sample and there was no evidence that any of them were confused as to it being required. None of them felt the need to seek clarification of this provision before submitting there bid responses and indeed Moore did not either. The evidence of record establishes that the Department interpretation of this specification to this effect is a reasonable one. If the agency evaluates bids and determines which is the lowest, best, and most responsive in accordance with the specifications and evaluation criteria contain in the invitation to bid, as shown by conference substantial evidence and facts established in 120.57.1 proceeding, if one is triggered by a timely filed appropriate petition as is the case, then that decision will not be overturned as final agency action by the courts. Capeletti Brothers, Inc. vs. State Department of General Services, 432 So.2d 1359 (Fla 1st DCA 1983).

    
    

17. The Petitioner did not submit any evidence to show that the agencies consistent interpretation of this specification in the 1989 invitation to bid situation at issue, in the same manner at it had interpreted in the bidding effort the year before bore no relationship to custom and usage in the printing form industry to the interpretation notice to all vendors, the same vendors, with regard to the identical specification the year before, nor that it was an irrational interpretation given the object the agency was trying to address with this procurement effort. Moreover, Mr. Holland admittedly participated in the 1988 bidders' conference regarding the identical specification and learned at that conference that a product sample must be submitted. He also had this confirmed later in written form. Neither he nor any other vendor requested a similar conference with regard to this 1989 Invitation to Bid and in no other way indicated confusion or lack of understanding of this bid requirement prior to submission of the bids and publication of the results. If the Petitioner disputes the reasonable necessity or competence of the terms and conditions of the bit with regard to this particular specification he should have done so within 72 hours of receipt of this invitation to bid. (Cite Cases) In reality the bid protest, by stating that "Moore feels the first sentence in section 30.700 is very ambiguous and does specifically state a sample must be included" indicates that in reality the Petitioner is challenging the specification itself which is not timely.

18. In any event however since the departments interpretation of that specification and its evaluation of the responses to it was shown to be reasonable, and since the Petitioner fail to carry its burden to show that there was no legitimate rationale or reasonable interpretation of the specification and evaluation of the responses to it the petition of Moore must be determined to be without merit.

    
    

19. The Respondent has proven that costs expended in defending this bid protest proceeding are in the amount of $516.05. Since it is recommended that the agency prevail, those costs should be assessed against the Petitioner's bond and paid to the Respondent, pursuant to Section 287.042(2)(c), Florida Statutes (1989).

RECOMMENDATION

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 the petition filed by the Petitioner be denied, and that the subject contract be awarded to UARCO Business Forms, Inc. It is further recommended that costs be taxed and awaraded to the Respondent in the amount of

$516.05 and that the bond posted by the Petitioner be estreated in that amount.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of February 1990.

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 9th day of February 1990.

Copies furnished:

Robert W. Hollan

Account Executive Moore Business Form 1535 Killearn Center Boulevard

Suite B-1

Tallahassee, Florida 32317-4287

Robert L. Powell Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

UARCO Inc.

Attn: Robert Pruitt

401 North Office Plaza Post Office Box 989

Tallahassee, Florida 32302

Direct Mail Specialists Inc. Attn. Shirley H. Fleetwood 1801-B South Monroe Street Tallahassee, Florida 32301

Docket for Case No: 89-005624BID

Orders for Case No: 89-005624BID