STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMPLETE BUSINESS SYSTEMS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6314BID

)

SCHOOL BOARD OF PALM BEACH )

COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on December 7, 1989, at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Mr. Robert Papes

Secretary and Treasurer Complete Business Systems, Inc. Post Office Box 24627

West Palm Beach, Florida 33416-4627

For Respondent: Robert A. Rosillo, Esquire

School Board of Palm Beach County Post Office Box 24690

West Palm Beach, Florida 33416-4690 STATEMENT OF THE ISSUES

Whether the bid protest filed by Petitioner should be upheld.

PRELIMINARY STATEMENT

On September 1, 1989, Respondent issued an Invitation to Bid on a term contract for an electronic mailing machine to Petitioner and to other potential bidders. Following the bid opening on September 29, 1989, Respondent determined that the responsive low bidder was Pitney Bowes, Inc. Petitioner and American Business Products, Inc. also submitted bids, but their respective bids were deemed unresponsive by Respondent.

Following notification that Respondent intended to award the bid to Pitney Bowes, Inc., Petitioner filed an informal bid protest which did not resolve the dispute. The informal bid protest was followed by a timely filed formal bid protest. Petitioner protests the bid award on two separate grounds. First, it contends that the bid specification were drafted so as to constitute an illegal single source bid because only Pitney Bowes, Inc. could submit a responsive

bid. Second, Petitioner contends that the bid submitted by Pitney Bowe's, Inc. did not meet the specifications. Respondent disputes `Petitioner's contentions. Respondent contends that Petitioner's bid was not responsive and was properly rejected.

At the formal hearing Petitioner called as witnesses Robert Papes, Rick Chuma, Terri Lee Rhea, Betty J. Helser, and John Buscemi. Robert Papes is the Secretary and Treasurer of Petitioner. Rick Chuma, Terri Lee Rhea, and Betty J. Helser are employees of Respondent. John Buscemi is an employee of Pitney Bowes, Inc. Respondent called as its only witness Peter Panjwani, an employee of Pitney Bowes, Inc. The parties introduced three joint exhibits, the Petitioner introduced one additional exhibit, and the Respondent introduced three additional exhibits. All exhibits were accept1ed into evidence.

A transcript of the hearing has been filed. Specific rulings on the proposed findings of fact submitted on behalf of Respondent are in the appendix to this Recommended Order. Petitioner did not file proposed findings of fact within the time set for filing post-hearing submittals.

FINDINGS OF FACT

1. On September 1, 1989, Respondent issued to prospective bidders an Invitation to Bid on an electronic mailing machine pursuant to the specifications contained in the Invitation to Bid. The specifications provided that the equipment was to include a postage meter with a "postage by phone" feature. The postage by phone feature allows postage for the electronic mailing machine to be secured by a telephone call to the post office.

   
   

2. Bids from Pitney Bowes, Inc., Petitioner, and American Business Products, Inc. were received in response to the Invitation to Bid. The bid opening was held September 29, 1989. The bid from Pitney Bowes was selected by Respondent as being the responsive low bid. The bid from Petitioner and the bid from American Business Products, Inc. were rejected as being unresponsive. Acting on the recommendation from the Superintendent and his staff, Respondent voted at its regular meeting on November 1, 1989, to accept the bid from Pitney Bowes.

   
   

3. Thereafter, Petitioner filed a timely, formal bid protest that was based on two grounds. First, Petitioner contends that the bid was single sourced because the bid specifications were drafted so that only Pitney Bowes could file a responsive bid. Second, Petitioner contends that the bid of Pitney Bowes was not responsive.

   
   

4. The invitation for bid provides, in pertinent part, that the electronic mailing machine with power1 stacked and console:

   
   

   ... shall be capable of processing up to

   210 envelopes per minute; ... shall be equipped with conveyor stacker able to hold up to 900 envelopes; ...

5. The invitation for bid provides, in pertinent part, that the postage meter with postage by phone feature:

   
   

   ... shall have automatic accounting functions; ... shall be interchangeable with Pitney Bowes Model 5600, mailing machine.

   
   

6. After the Invitation to Bid was issued, Respondent learned that only a postage meter manufactured by Pitney Bowes could meet the specification that the postage meter with the postage by phone feature be interchangeable with a Pitney Bowes Model 5600. Petitioner contends that the inclusion of this requirement results in a single source bid because only Pitney Bowes, Inc. is capable of submitting a responsive bid.

   
   

7. The requirement that the postage meter with the postage by phone feature be interchangeable with the Pitney Bowes Model 5600 had no bearing on Petitioner's bid being rejected by Respondent. The evidence failed to establish that Petitioner, or any other bidder, was prejudiced by this requirement being included in the bid specifications or that Pitney Bowes was given an unfair advantage in the bidding process. Although Respondent had a valid purpose in including this requirement among the bid specifications, it took no steps to enforce this requirement to the prejudice of the bidders.

   
   

8. Petitioner also contends that the invitation to bid is a single source bid because the term "postage by phone" is a trademark of Pitney Bowes, Inc. There was no evidence that any bidder was prejudiced by the use of this term or that Pitney Bowes, Inc. was given an unfair advantage in the bidding process by the use of this term.

   
   

9. The machine Petitioner's company offered did not have a postage meter with a postage by phone feature as required by the bid specifications. For that reason, Petitioner's bid was found to be not responsive. The machine Petitioner's company offered is scheduled to add a postage by phone feature in early 1990, but it did not offer this feature at the time Petitioner's response to the Invitation to Bid was submitted. Postage by phone is a feature offered by Pitney Bowes and other companies.

   
   

10. Petitioner contends that the electronic mailing machine offered by Pitney Bowes, Inc. is not capable of processing 210 envelopes per minute and that it is not equipped with a conveyor stacker able to hold up to 900 envelopes. Petitioner further contends that the postage meter offered by Pitney Bowes, Inc. does not have automatic accounting functions. The evidence does not support these contentions.

    
    

11. The bid submitted by Pitney Bowes, Inc. meets all specifications of the Invitation to Bid.

    
    

    CONCLUSIONS OF LAW

    
    

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

13. As the party challenging the award of the contract, Petitioner must prove by a preponderance of the evidence that the Respondent's action was arbitrary and or that it acted in an otherwise improper manner. Capeletti , Inc. v. State, Department of General Services, 423 So.2d 1359' (Fla. 1st DCA 1983).

    
    

14. The evidence failed to establish that the bid in this case was intended to be, or that it was in fact,, a prohibited single source bid. Petitioner's bid was rejected only because the equipment it offered did not include the postage meter with the postage by mail feature. No bidder was prejudiced by the requirement that the postage meter be compatible with the Pitney Bowes Model 5600 or by the use of the term "postage by phone". Likewise, Pitney Bowes was not given an unfair advantage in the bidding process by the inclusion of this requirement or by the use of this term.

    
    

15. The bid of Pitney Bowes, Inc. was the low bid meeting specifications.

    
    

16. Petitioner failed to establish that Respondent acted in an arbitrary and capricious manner b rejecting Petitioner's bid because its postage meter did not have the postage by phone feature Respondent wanted.

    
    

17. Petitioner failed to establish that Respondent acted in an arbitrary and capricious manner by determining that the bid submitted by Pitney Bowes, Inc. was the low responsive bid.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order

which rejects the bid protest filed by Complete Business Systems and which accepts the bid of Pitney Bowes, Inc.

DONE AND ENTERED this day 12th day of January, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 12th day of January, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NUMBER 89-63I4BID

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 3 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 4 and 5 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected, in part, as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 10 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 6 of the Recommended Order.

6. The proposed findings of fact in paragraph 6 are rejected as being a conclusion of law.

7. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 9 of the Recommended Order.

COPIES FURNISHED:

Mr. Robert Papes Secretary and Treasurer

Complete Business Systems, Inc. Post Office Box 24627

West Palm Beach, Florida 33416-4627

Robert A. Rosillo, Esquire School of Palm Beach County Post Office Box 24690

West Palm Beach, Florida 33416-4690

Thomas J. Mills Superintendent of Schools

The School Board of Palm Beaten County, Florida

Post Office Box 24690

West Palm Beach, Florida 33416-4690

Docket for Case No: 89-006314BID

Orders for Case No: 89-006314BID