STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONTINENTAL WATER SYSTEMS, INC., )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

) CASE NO. 89-6372BID

Respondent, )

)

and )

)

GLOBAL MARKETING, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing officer, Diane Cleavinger, on December 12, 1989.

APPEARANCES

The parties are represented as follows:

For petitioner: M. Christopher Bryant

Oertel, Hoffman, Fernandez, and Cole, P.A.

2700 Blairstone load Post office Box 6507

Tallahassee, Florida 32314-6507

For Respondent: Clinton Coulter

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

For Intervenor: James Barth, Esquire

Callahan, Barth & Robbins

5374 Highway 98 East, Suite C-1

Destin, Florida 32541 STATEMENT OF THE ISSUES

The issue at the hearing was whether Petitioner or Intervenor submitted the lowest and best bid.

PRELIMINARY STATEMENT

This case concerns the Department of attempt to secure a contractor to service and install water filters on private drinking water wells in eight counties within the State of Florida. The Department issued an Invitation to Bid, Number DOF-ADM-48, on March 15, 1988. Petitioner and Intervenor submitted their bids. On September 28, 1989, the Department opened the bids. The contract was awarded to Intervenor. Petitioner filed its Notice of Protest on November 2, 1989. On November 13, 1989, Petitioner Filed a Formal Written Protest, Petition for Formal Administrative Proceeding, and Request for Resolution by Mutual Agreement. Failing to reach a mutual agreement, the petition for hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner presented three witnesses and offered into evidence seven exhibits. Petitioner also presented the deposition testimony of two witnesses Respondent presented no witnesses and offered one exhibit into evidence. Intervenor presented the deposition testimony of one, witness and offered one exhibit into evidence.

The Department did not file a Proposed Recommended order containing findings of fact. Instead the Department filed a Motion for a Recommended order of Dismissal. The legal arguments contained in that Motion have been considered in the preparation of this Recommended order.

Petitioner and Intervenor filed their Proposed Recommended orders on January 19, 1990. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On March 15, 1988, the Department of Agriculture and Consumer Services issued an Invitation to Bid (ITB) number DOF-ADM-48. The Invitation to Bid's purpose was to secure a contractor to service and install water filters on private drinking water wells located in eight counties within the State of Florida. The filters were required to be installed by the Department for the removal of ethylene dibromide (EDB) from contaminated drinking water obtained from private wells. EDB is a constituent of pesticides and is a suspected carcinogen.

   
   

2. The filter systems operate by running the water through a tank containing a pleated paper filter similar to a coffee filter. The pleated paper filter contains granular activated carbon (GAC). The GAC absorbs impurities such as EDB. The water is also passed through a sterilizer unit. The sterilizer unit disinfects the water by bombarding it with ultraviolet light. For instances of heavy pollution the water may be filtered through a double tank system or require pretreatment with another media filter in order to remove more concentrated impurities from the water.

   
   

3. The Department sent its ITB to a number of vendors. The ITB invited the submittal of bids and set a bid ending date of April 27, 1989. The bid included the standard State of Florida Invitation to Bid Bidder Acknowledgment form, number PUR 7028, also referred to as a "yellow sheet." The acknowledgment form provides spaces for the vendor to list identify information and to sign the bid. It also sets forth, general conditions applicable to the bidding process.

4. Among the General Conditions contained on the yellow sheet is General Condition 4(d) which states:,,

   
   

   It is understood and agreed that any item offered or shipped as a result of this bid shall be a new, current standard production model available at she time of the bid. ...

   
   

   Further, General Condition 7 provides:

   
   

   Any Manufacturers' names, trade names brand names, information and or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative which meets or exceeds the specifications for any items(s).

   If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. ...

   
   

5. The ITB also contained a number of terms, specifications and special conditions geared towards the specific purpose of the contract. These included the following Additional Bid Conditions:

   
   

   PROOF OF EQUIVALENCY: Vendor shall provide written, documented proof of equivalency for their equipment where it differs from the named brands and equipment specified in the bid specifications.

   
   

   EQUIPMENT, COMPONENTS, SPECIFICA- TIONS AND DOCUMENTATION:

   Vendor shall provide full documentation and specifications on all equipment and components to be used in providing the GAC filter systems and maintenance as specified in the bid.

   
   

   In this case, proof of equivalency of equipment is important to maintain the integrity of the water filter systems, and to insure cost-effectiveness in servicing the system.

   
   

6. The bid specification also contained civic requirements for the GAC. The GAC specifications governed such items as moisture content, particle size and distribution absorptive capacity. Absorptive capacity was measured by an iodine number. An "iodine number" reflects the milligrams of iodine absorbed per gram of carbon. The higher thin iodine number, the more absorptive the carbon.

7. In this case, the GAC requirements ware as follows:

   
   

   Granular activated carbon, with thee exception of the standards below, shall comply with the "American Water Works Association Standard for Granular Activated Carbon" (AWWAC B604-54). The GAC standards are as follows:

   1. Impurities - No soluble compounds should be present that are capable

      of causing adverse effects on the health of the consumer.

   2. Moisture - Shall not exceed two (2) percent by weight of listed

      container contents.

   3. Apparent Density - Shall be 28.5 -

      31.0 pounds/cubic foot.

   4. Particle size distribution - should range between U.S. standard sieve

      size NO. 8 and NO. 30. A maximum of 15% of the particles can exceed

      8 in size and a maximum of 4% can, be less than NO. 30 in size.

   5. Abrasion Resistance - Retention of average particle size shall not be

      less than 75 percent as determined by either the stirring abrasion

      or the RO-Tap abrasion test.

   6. Adsorptive Capacity - The "iodine number shall not be less than 950 or equivalent adsorptive capacity.

   7. The GAC must be packed and rinsed at the successful vendor's facilities

      not at the well site.

   8. Virgin GAC must be stored in facilities that will protect it from weather and vandalism.

      
      

8. The Department had used a GAC manufactured by Ceca Division of Atochem, Inc. The carbon was known as Cecacarbon GAC 30WE. GAC 30WE had consistently met the Department's requirements.

   
   

9. Atochem labelled or named the carbon, "GAC 30WE," because it met certain product quality standards and in order to differentiate the carbon from other types of GACs it manufactures, such as GAC 830WE. GAC 830WE is the same size carbon particle as GAC 30WE, but it has a lower adsorptive capacity, i.e., iodine, than 30WE. About two years prior to this bid, Atochem quit intentionally manufacturing she carbon it labelled Cecacarbon GAC 30WE. At that time the current contractor, Continental, unilaterally, and without informing the Department, substituted another GAC for Cecacarbon GAC 30WE. The Department therefore has been using a GAC of unknown manufacture for the past two years without complaint.

   
   

10. Section II of the ITB indicated that the UVL disinfectant light source "must be an Aquafine Model NO. DW-400 or its equivalent." It further stated that the water flow meter required as apart of the filter system must be "a badger Model 15 The ITB required that specifications for the individual

    equipment components "MUST BE PROVIDED WITH YOUR BID OR THE BID WILL BE DECLARED INCOMPLETE AND INELIGIBLE FOR CONSIDERATION."

    
    

11. Section III of the ITB, concerning the "Type II" systems (those consisting of two filter tanks), contained the same provisions as to UVL sterilizer units, water meters and component specifications as Section II.

    
    

12. The Aquafine DW-400 was the UVL system currently being used by the Department's contractor.

    
    

13. The ITB also contained a pricing sheen for vendors to list unit prices on 20 different components of the filter system. By multiplying the unit price by the Department's estimate of the respective numbers needed of each limited component, a total bid price was arrived at by the bidder.

    
    

14. On April 17, 1989, the Department issued the first addendum to the ITB. Addendum number 1 changed the estimated number of pleated paper filters on the pricing sheet from 6500 to 10,200. A new bid opening date of May 23, 1989 was bet.

    
    

15. On May 23 1989, the Department issued the second addendum to the ITB. In addition to establishing a new bid opening date of June 21, 1989, the second addendum made several substantive changes. It required bidders to submit with their bid an EDB isotherm for the GAC medium being bid by each bidder. An isotherm is a graph showing the adsorptive capability of the GAC. Since the Department would have no knowledge of the performance capabilities of a previously unused carbon, the EDB isotherm was "critical" where the carbon proposed for use had not been used on a Department contract before. For a known GAC, i.e. one the Department had used before, the isotherm was not material.

    
    

16. The second addendum also changed the "designated model number for the water meter from the Badger Model 15 or equivalent to the Badger Model 25L or equivalent. The water meter model number was changed because the Badger model

    15 was no longer being produced. Additionally, the model number of the freeze housing was changed from the "AMTEK big blue filter" to the "AMTEK NO. 20 or equivalent." The freeze housing was made an optional component of the bid.

    
    

17. The third addendum, dated June 13, 1989, reinstated the freeze housing as a required component of the budget but provided that the housing could be of either fiberglass or aluminum construction. It also clarified the testing required to justify installation of a media filter on a system, and clarified that upgrades of systems from Type I to Type II. A new bid opening date of June 28, 1989 was set.

    
    

18. Due to the entry of a temporary restraining order by a circuit court judge, the June 28, 1989, bid opening did not transpire. When the restraining order was later lifted, the Department issued Addendum IV, which set a bid opening date of September 28, 1989, and which gave bidders who had submitted bid prior to the June entry of the restraining order the opportunity to submit a new bid.

    
    

19. Petitioner, Continental Water Systems, Inc., (Continental) a Florida corporation, timely submitted a bid of $895,877.50 to the Department in response to the Department's Invitation to Bid.

20. Intervenor, Global Marketing, Inc., a North Carolina corporation, doing business in the State of Florida, timely submitted a bid of $784,431.50 to the Department in response to the Department's Invitation to Bid Number DOF-ADN- 48.

    
    

21. Petitioner and Intervenor were the only two bids submitted. The Department made a preliminary determination that both bids were responsive, and posted its bid tabulation on October 30, 1989. Global was the apparent low bidder and was awarded the contract by the Department.

    
    

22. In its bid, Global indicated that it would use the Aquafine DW-400 UVL sterilizer unit and the Badger Model 15 water meter. It also indicated that it would use Cecarbon GAC 30WE. Global did not include an EDB isotherm with its bid.

    
    

23. Continental's bid included specifications for both the Aquafine DW-400 and a UVL system manufactured by "Ultra Dynamics Corporation known as Model Number DW-15. For the GAC, Continental bid Alamo ABG-CWF a GAC medium manufactured by Calgon as Filtrasorb 300 GAC. The bid contained an EDB isotherm for the GAC product. It also included specification sheets showing its intent to use a Badger Model 25L water meter.

    
    

24. Unknown to the Department, the Aquafine Corporation no longer produces the DW-400 UVL sterilizer unit as a standard production model. It ceased production of this model in June or July of 1989. It has enough materials on hand to produce another 45 to 50 units. Aquafine is under contract to sell those units to Continental. If requested to produce more DW-400's, Aquafine might again manufacture the DW-400. However, Aquafine would not begin such production unless ban order for at least 1000 units was made. At present, Aquafine manufactures only one model for drinking water systems. The model is the DW-8. No specifications were included in Global's bid for the DW-8 or any other potentially equivalent sterilizer unit from another manufacturer.

    
    

25. In this case, the bid specifications clearly list the DW-400 as an acceptable submission. The evidence did not show that the DW-400 was no longer available, even though the model was no longer being produced. There is no newer prototype of the DW-400. A contract, which an ITB constitutes the offer portion of, must be interpreted to give effect to all of its language and clauses. Therefore, the specific reference to the DW-400 as an acceptable submission must be given effect as an exception to the general requirement that "any item offered or shipped . . . be a new, current, standard production model

    . . . Since Continental did not challenge the bid specifications in regard to the UVL system, the complaint of non-responsiveness. . . cannot be heard now. Global therefore was responsive to the Department's ITB on the UVL component of its bid.

    
    

26. When the Department learned that the Badger Model 15 water meter was no longer being manufactured it decided to change its specifications due to the change in production. The specifications were changed from the "Badger Model 15 or equivalent" to the "Badger Model 25 or equivalent." Global's bid did not list the Badger Model 25, but listed she Badger Model 15. However, Continental did not preserve the issue regarding the responsiveness of Global's bid on the water meter in its Formal Written Protest. Therefore, no findings are made regarding the responsiveness of Global's bid on the water meter component.

    
    

27. The heart of the whole filter system is the GAC. The carbon proposed to be used by Global, Cecarbon GAC 30 WE, is no longer produced by the

    manufacturer. It has not been in production since 1987. Global and the Department did Introduce into evidence a faxed copy of a letter from an Atochem sales representative indicating that an amount of GAC 830 carbon would be available "until the end of 1989" to meet the Department's bid specifications. However, GAC 830 is not the same product as that bid by Global and does not have the same manufacturing standards as the GAC 30WE bid by Global.

    
    

28. Neither does Atochem now intentionally produce a carbon that meets the specifications for DOF-ADM-48. Specifically, Atochem does not produce a carbon with an 8 x 30 mesh size that has a minimum iodine number of 950. The 8 x 30 mesh size carbon that Atochem produces, GAC 30, has an iodine number of 900 to 920. Due to variation in the capabilities of different lots of GAC 830, some lots may have a 950 iodine number. The evidence did not show whether the company tests its GAC 830 beyond its manufacturing standards. Nor did the evidence show whether a higher adsorpting GAC 830 lot is available. A letter from a sales representative that such a lot is available does not rise to the level of competent evidence which would support the conclusion that Global had materially meet the Department's ITB on the GAC element. At a minimum the Department or Intervenor would have had to bring the Company's documentation, including an isotherm, for that particular GAC lot to demonstrate responsiveness for a product labelled with a name which carries a lower adsorptive standard. The only carbon manufactured by Atochem which has a minimum iodine number exceeding 950 is a different size carbon. This carbon has a mesh size of 12 x 40, and thus does not meet the DOF-ADN-48 specifications.

    
    

29. Both the Aquafine sterilizer unit and the Ultra Dynamics units, bid by Continental, meet the specifications for this ITB. The GAC bid by Continental meets the specifications for this ITB. This particular carbon has also been accepted by the Department for use by continental on a previous Department contract in January 1988, where the specifications for the carbon were identical to those applicable here. Continental did submit an EDB isotherm.

    
    

30. Global's bid was not responsive to the ITB. It offered a carbon element which is no longer in production. It will have to substitute another GAC not identified in its bid in order to perform under the contract. Global provided no technical literature with its bid to establish the equivalency of any other GAC. Additionally Global did not provide an EDB isotherm for the carbon it planned on using from Atochem. These omissions were material. Global's bid therefore cannot be said to be responsive to the Department's ITB.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

32. In Hotel China and Glassware Co. v. Board of Public Instruction of Alachua County, 130 So.2d 78 (Fla. 1st DCA 1961) the First District Court of Appeal explained the benefits and obligations in the use of the competitive bidding system in Florida as follows:

    
    

    ... The system confers upon both the contractor and the public authority reciprocal benefits, and exacts from each of them reciprocal obligations.

    The bidder is assured fair consideration of his offer and is guaranteed the

    contract if his is the lowest and best bid received. The principal benefit flowing to the public authority is the opportunity of purchasing the goods and services required by it at the, best price obtainable. Under this system, the public authority may not arbitrarily or capriciously discriminate between bidders, or make the award on the basis of personal preference.

    
    

33. See, also Department of Transportation v. Grove-Watkins Constructors,

    13 FLW 462 (Fla. August 19, 1988) and Liberty County v. Baxter's Asphalt & Concrete, Inc. 1421 So.2d 505 (Fla. 1981).

    
    

34. Part of the reciprocity achieved under the competitive bidding process is achieved in the bid specifications and bid evaluation criteria. Potential bidders are advised in advance of the requirements to be met in order to receive the contract award. In essence this advance notice enables a potential bidder to gauge the agencies' notions of the type bid best suited to its purpose. A potential bidder can then determine whether he can meet the bid specifications and, thereby, determine whether he wishes to go to the time, expense and trouble of preparing and submitting a fairly lengthy and detailed bid proposal. Therefore, central to the integrity and reciprocity of the competitive bidding process is the requirement that an agency's action on a bid be within the bid specifications and evaluation criteria which it created. In other words, should an agency reject a bid for reasons not given weight in the bid evaluation criteria, that action would go to the integrity of the competitive bidding process arid would be arbitrary and capricious. Grove Watkins, supra. The contrary is also true, i.e., an agency may not award a bid to a bidder who is not both technically and factually responsive to the bid specifications and evaluation criteria.

    
    

35. As with all forms of intended agency action, a proposed contract award is preliminary only. A Section 120.57 hearing in a competitive bidding case, as in a case involving any form of proposed agency action, is "designed to give affected parties an opportunity to change the agency's mind." Groves-Watkins Constructors v. State of Florida Department of Transportation, 511 So.2d 323,

    329 (Fla. 1st DCA 198)) , reversed on other grounds. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (1988), and quoting with approval Capeletti Brothers, Inc. v. State of Florida Department of General Services, 432 So.2d 1359, 1363 (Fla. 1st DCA, 1983). The question to be resolved in a Section 120.57 a competitive bid is not whether the agency "reasonably believed Global's bid to be compliant at the time of review" "but rather, as the facts are now known, whether the bid offer conforms to the ITB." Tel Plus Florida, Inc. v. Department of General Services, Case Nos. 86-4701 BID and 86-4702 BID (unreported), DIGS Final Order entered May 6, 1987. If facts come to light after bid opening and in the context of a Section 120.57(1) and 120.53(5) bid protest to show that a facially responsive low bidder was in fact not responsive, then rejection of the nonresponsive low bid is the proper result. Harris/3M v. Office Systems Consultants, 553 So.2d 833, 835 (Fla. 1st DCA 1988). See also Data Specialties Mart v. Department of General Services, FALR 987-A (DGS Final Order entered April 6, 1982), where facts discovered after bid opening warranted rejection of low bidder on grounds of nonresponsiveness).

    
    

36. To allow the substitution or addition of components after bid opening is anticompetitive and is contrary to the legislative intent of the competitive

    bidding statute. Such substitution is tantamount to bid shopping and affords one bidder a material advantage over another bidder. 54e E.M. Watkins Co. v. Board of Regents, 414 So.2d 583 (Fla. 1st DCA 1982).

    
    

37. Further, to allow the substitution of other products after bid opening renders meaningless the ITB's requirement that bidders must provide proof of equivalency of substitutes with their bids. General Condition 7 expressly provided that a bidder "shall submit with his bid, cuts, sketches and descriptive literature and/or complete specifications" (emphasis added). Bid specification IX of the specific conditions was even more forceful and unequivocal on this point. To allow such substitution of proof of equivalency gives Global a great advantage over other bidders, and is exactly the situation which the rule prohibiting post-opening bid modification seeks to prevent. See Rule 13A-1.002, Florida Administrative Code, and Palm Beach Group, supra.

    
    

38. Global's bid is not factually responsive to the Department's ITB. It cannot provide the GAC contained in its bid and the evidence did not demonstrate that a legitimate substitute product was available to Global. A contract award cannot be made to a nonresponsive bidder. To do so would be an arbitrary act on the part of the Department and would render the competitive bidding system meaningless. Therefore, the Department should award the contract to Continental, the one remaining responsive bidder.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order awarding the bid to

Petitioner as the lowest and best bid.

DONE and ENTERED this 17th day of April, 1990, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 17th day of April, 1990.

APPENDIX TO CASE NUMBER 89-6372BID

The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,

15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraph 27 of Petitioner's proposed Findings of Fact are adopted except for the parts pertaining to the UVL systems unresponsiveness. The facts contained in paragraphs 28 and 29 to Petitioner's Proposed Findings of Fact are irrelevant. The facts contained in paragraphs 1, 2, 3 and 5 of Intervenor's

Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 8 and 9 of Intervenor's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 6 and 7 of Intervenor's Proposed Findings of Fact were not shown by the evidence.

COPIES FURNISHED:

M. Christopher Bryant, Esquire

Oertel, Hoffman, Fernandez, and Cole, P.A. 2700 Blair Stone Road

Post Office Box 6507 Tallahassee, Florida 32314-6507

Clinton Coulter, Esquire Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

James C. Barth, Esquire Callahan, Barth & Dobbins

5374 Highway 98 East, Suite C-1

Destin, Florida 32541

Honorable Doyle Conner Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399-0810

Mallory Horne General Counsel

515 Mayo Building

Tallahassee, Florida 32399-0800

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

CONTINENTAL WATER SYSTEMS INC.,

Petitioner,

vs.

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES, DOAH CASE NO. 89-6372BID

Respondent,

and

GLOBAL MARKETING, INC.,

Intervenor.

/

FINAL ORDER

This case is here for final agency action upon receipt of a hearing officer's recommended order of April 18, 1990, and written exceptions thereto submitted by both bidders, following a Section 120.57(1) hearing arising under provisions of Section 120.53(5), Florida Statutes.

The recommendation of the hearing officer that the contract be awarded to Continental is rejected.

1. Recommended Award To Continental Barred As A Matter Of Law

   
   

   1. The hearing officer concluded that "Global's [$784,431.50] bid is not factually responsive to the Department's ITB [since i]t cannot provide the GAC contained in its bid." See Recommended Order, Conclusion of Law No. 8. "Therefore," the hearing officer recommended, "the Department should award the contract to Continental [for $895,877.50], the one remaining responsive bidder." Ibid., and Recommendation.

      
      

   2. By its enactment of Chapter 88-384, Laws of Florida, which became effective July 6, 1988, the Legislature created Subsection (15) as an addition the definitions of Section 287.012, Florida Statutes. It provides:

      
      

      287.012 Definitions.--The following definitions shall apply in this part:

      (15) "Competitive bids".. .mean[s] the receipt of two or more bids.. submitted by responsive and qualified bidders...

   3. Of course Section 287.062(1) "in this part" regarding competitive bids, explicitly provides:

      
      

      No purchase of commodities may be made when the purchase price thereof is in excess of... [$3,000] unless made upon competitive bids received. ...

      
      

   4. As a result of Section 287.012(15), if an agency does not receive two or more responsive bids, then as a matter of law under 287.062(1) it cannot contract, absent one of the six exceptions set forth in Paragraphs (a)-(f) therein. Compare, the two pre-Section 287.012(15) cases of Harris/3M v. Office System Consultants, 533 So.2d 833 (Fla. 1st DCA 1988), citing to and relying on Satellite Television Engineering Department of General Services, 522 So.2d 440 (Fla. 1st DCA 1988).

      
      

   5. In this instant case, none of those exceptions is germane.

      
      

   6. Here, there were only two bids.

      
      

   7. The hearing officer has found and concluded that Global's bid was nonresponsive.

      
      

   8. And the recommended order found Continental's bid to be responsive.

      
      

   9. But, Section 287.062(1) does not permit an agency to contract "unless made upon competitive bids received," and Section 287.012(15) defines "competitive bids" as two or more bids submitted by responsive bidders, which are not present here since the hearing officer has found Global's bid to be nonresponsive.

      
      

   10. Thus, even if Continental's bid is responsive, the hearing officer's recommendation that Continental be awarded the contract must be rejected here as a matter of law because, in fact, there were not at least two "responsive" bids submitted.

       
       

2. Hearing Officer's Findings Of Fact And Conclusions Of Law

   
   

   1. Being cognizant of the provisions of Section 120.57(1)(b)10 the recommended order's findings of fact and conclusions of law as to Global's unresponsiveness are adopted. As to the remaining portions, regarding Continental's responsiveness and entitlement to award of the contract, the recommended order has been rendered moot by the legal effect of the controlling competitive bid statutory provisions cited, to and relied upon in Part I, hereinabove.

      
      

3. Written Exceptions

1. Being further cognizant of the provisions of Section 120.59(2) (and Rule 28-5.405(3), Florida Administrative Code), the parties' exceptions are disposed of as follows:

   1. Continental's Exceptions

      
      

2. Since Continental prevailed in having Global's bid found and declared nonresponsive, two of its four exceptions (nos. 3 and 4), even if well taken, would be "harmless error" at best and are disposed of accordingly with one exception.

   
   

3. Continental's challenge of the hearing officer's failure to award costs (nos. 1 and 2) may appear at first blush to have merit. However, Chapter

   120 preempts other provisions of the Florida Statutes in conflict therewith concerning Section 120.57(1) administrative proceedings. Thus, though a provision of Chapter 287 may appear ,to entitle a "successful" bid protester to recover costs, if a provision of Chapter 120 makes such an award discretionary with the hearing officer, then the latter prevails. See, Smith, infra, and compare Section 287.042(2)(c) with Section 120.59(6) (b).

   
   

   1. Global's Exceptions

   
   

4. All of Global's exceptions go to the hearing officer's determination that because the carbon component which Global bid is out of production, such is unavailable and, therefore, Global would have to substitute, which would render its bid unresponsive. (Finding No. 30 and Conclusion No. 8)

   
   

5. In light of the evidence presented at, the hearing, the finding that GAC 3OWE is no longer produced is dispositive of whether 3OWE is available.

   
   

6. Clearly the hearing officer--as the finder of fact--functions to consider all the evidence presented, resolves conflicts, judges credibility of witnesses, draws permissible inferences from the evidence, and reaches ultimate findings of fact based on competent substantial evidence. Smith v. Dept. of Health & Rehab. Serv., 555 So.2d 1254, 1255 (Fla. 3d DCA 1990).

   
   

7. And equally clear, an agency may not reject the hearing officer's finding unless there is no complete substantial evidence from which the finding could reasonably be inferred. Ibid.

   
   

8. Here there is competent substantial evidence not only chat GAC 30WE had not been produced in over two years but that the producer did not have anymore (Sorrento Deposition; pg. 5, 1. 11-14.)

   
   

9. At that point in the evidence, Continental created a reasonable inference that 3OWE was not available and, therefore, that Global would have to substitute. In Harris/3M v. Office Systems Consultants, 533 So.2d 833 (Fla. 1st DCA 1988), Judge Zehmer opined for an affirming unanimous court on similar facts:

   
   

   This evidence supports an inference that the equipment as bid was not readily available, and was sufficient to place the burden on [Appellant] to go forward with evidence showing that the equipment was in fact available, which it did not do. Thus, the record contains competent substantial evidence to support the hearing officer's finding of fact on this disputed issue. (Emphasis the court's) At page 835.

10. Here, the only counteracting evidence was the terse testimony of a Global officer: "I intend to use GAC 3OWE." (Emphasis added; Tr. 77, L. 24) There was no evidence of where the 3OWE was to come from.

    
    

11. Accordingly, contrary to Global's contention, the hearing officer's finding of Global's nonresponsiveness is supported by competent substantial evidence, which this Agency "may not reject Smith supra: the burden became Global's to overcome the reasonable inference created by Continental that nonproduction equated with unavailable and unavailable equated with cannot- perform-as-bid-without-substituting. Global did not overcome such reasonable inference.

    
    

12. Global's exceptions--all to the same effect--are, accordingly, disposed of.

It is, therefore, ORDERED AND ADJUDGED that:

1. Global's bid is not responsive;

   
   

2. Competitive bids as defined by Section 287.012(15) were not received in this case; and,

   
   

3. A contract will not be awarded in this case.

NOTICE OF APPEAL RIGHTS

Pursuant to provisions of Section 120.68, Florida Statutes, any adversely affected party may seek judicial review.

DONE AND ORDERED this 17th day of July 1990.

DOYLE CONNER

Comissioner of Agriculture FILED this 17th day of July 1990.

Agency Clerk

Copies furnished to all parties and hearing officer

Docket for Case No: 89-006372BID

Orders for Case No: 89-006372BID