STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERNATIONAL TOURS OF JUNO ) BEACH, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6775BID

)

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 20, 1989, at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Donald R. Fountain, Jr., Esquire

Lytal & Reiter

515 North Flagler Drive Post Office Box 024466

West Palm Beach, Florida 33402-4466

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 August 8, 1989, Respondent issued a Request for Proposals (RFP) to Petitioner and to other potential vendors seeking proposals relating to the furnishing of travel agency services to the School District of Palm Beach County, Florida. Following the evaluation of the proposals, Respondent voted to accept the proposal submitted by ETA Travel Agency, Inc. (ETA), subject to the resolution of any timely filed bid protests.

The deciding factor in selecting ETA over Petitioner was the manner in which the two vendors proposed to deliver airline tickets, itineraries and other travel documents to the specific office or school requesting same. Following the selection of the ETA proposal, Petitioner filed a timely formal bid protest, contending that its proposal was not properly evaluated. Petitioner asserts

that Respondent misconstrued its proposal as it relates to the delivery of travel documents to the specific office or school requesting the same.

Petitioner also maintains that it should now be allowed to clarify any ambiguities as to its proposal even though the evaluation process has been completed.

At the formal hearing, Mr. Bobby Brooks of Getaway Travel was permitted to state his company's position on the record. Getaway Travel did not formally petition for leave to intervene in the proceedings and did not establish that its substantial interests would be impacted by the hearing. The position of Getaway Travel was that the Respondent did not give sufficient consideration to minority business enterprises in awarding its travel services contract.

At the formal hearing Petitioner called as witnesses James Bertino and Henry Boekhoff. Mr. Bertino is the owner of Petitioner. Dr. Boekhoff is Respondent's Associate Superintendent for Administration. The two joint exhibits introduced by the parties, the response to proposal submitted by Petitioner and the response to proposal submitted by ETA, were accepted into evidence. No other exhibits were offered.

A transcript of the hearing has been filed. Specific rulings on the proposed findings of fact submitted on behalf of the parties are in the appendix to this Recommended Order.

FINDINGS OF FACT

1. On August 8, 1989, Respondent issued to prospective vendors a clear and unambiguous request for proposals (RFP) relating to the delivery to travel agency services for the School District of Palm Beach County, Florida. All proposals were due no later than August 28, 1989. Review of proposals, to include any interviews Respondent deemed necessary, was to take place between August 29 and September 18, 1989.

   
   

2. The following appears in Paragraph 1.1 of the RFP, in the introductory section:

   
   

   1.1 This is a Request for Proposal (RFP) to provide travel agency services to the School District of Palm Beach County, Florida; The School District operates 112 schools and 55 administrative departments in an area encompassing 2,332 square miles. The

   services include but are not limited to, purchases and delivery of air and other modes of travel tickets and related travel services. ...

   
   

3. The introductory section of the RFP also provides the names, titles and telephone numbers of two persons to whom questions could be directed.

4. The following appears in Paragraph 5.5 of the RFP, in the terms and conditions section:

   
   

   5.5 The District reserves the right to reject any or all proposals, to further negotiate any proposal, to request clarification of information submitted in any proposal, and to request additional information from any Proposer.

   
   

5. Proposals relating to the provision of the following services are solicited in Paragraph 6.1 of the RFP, the scope of services section:

   
   

   6.1 The following are to be included in the specific tasks to be performed by the Travel Agency; however, it is not considered as a complete list of tasks:

   A. Deliver tickets, itineraries and other travel documents to the

   specific office or school requesting same.

   
   

6. Proposals from several vendors were received, including proposals from Petitioner and ETA Travel Agency.

   
   

7. Petitioner's response to Paragraph 6.1(A) was as follows:

   
   

   1. Ticket Delivery: will be made as follows:

      1. An On-Site reservation and ticketing facility at a mutually acceptable location on School Board administration property.

      2. Deliveries will be made to other offices as follows:

         1. Scheduled.

         2. Emergency.

         3. Delivery receipts.

         4. Via agency and outside courier service.

         
         

8. ETA's response to Paragraph 6.1(A) was as follows:

   
   

   E.T.A. provides immediate free delivery of airline tickets and documents to school board travelers as detailed below:

   1. E.T.A.'s radio dispatched

      couriers provide unlimited deliveries of tickets and travel documents to schools and school board offices from Jupiter to Boca Raton as often as required throughout the business day.

      • At E.T.A. Travel we never limit deliveries to once of twice a day. Tickets are delivered according to the school board's schedule - not ours.

      • In addition to office delivery, E.T.A.'s couriers will deliver tickets and documents to the traveler's home or to other designated place whenever required.

   2. Deliveries to west area schools and school board offices are provided through the school board's "pony

      express" mail system, time permitting, or through federal express overnight delivery services.

   3. Deliveries to out-of-county travelers, or to west area travelers requiring expedited delivery, are provided through federal express overnight delivery service.

   E.T.A. Travel Agency utilizes a delivery and pickup receipt system to insure tracking of all airline tickets. To insure accountability all tickets delivered and picked up must be signed for and receipted at the time of exchange.

   
   

9. While in the process of evaluating the respective proposals, Dr. Henry Boekhaff, Respondent's Associate Superintendent for Administration, contacted Mr. James Bertino, the owner of Petitioner to seek clarification as to the operation of Petitioner's proposed on-site ticketing and reservation facility. Mr. Bertino explained that there would be located on school board property a satellite ticket printer that could print airline tickets at the school board site. However, Mr. Bertino did not make it clear to Dr. Boekhoff that the travel documents printed on the satellite ticket printer would be delivered by Petitioner to each office requesting the travel document. Mr. Bertino's verbal description of the manner in which the satellite ticket printer would operate, along with Petitioner's written response to Paragraph 6.1(A), caused Dr. Boekhoff to conclude that Petitioner was not proposing to deliver travel documents to each requesting office.

   
   

10. Respondent, following its review of Petitioner's proposal and following Dr. Boekhoff's conversation with Mr. Bertino, construed Petitioner's proposal as making a distinction between deliveries to offices in the administrative building in which the satellite ticket printer was to be located and deliveries to other offices. Respondent construed the proposal to require that persons whose offices were in the same building as the satellite ticket printer to pick up from the printer the tickets, itineraries, and other travel documents they had requested, while deliveries to offices in other administrative buildings and schools would be made by Petitioner. Respondent's construction of Petitioner's proposal was a reasonable construction of the written proposal presented by Petitioner and of the comments Mr. Bertino made to Dr. Boekhoff. Petitioner did not make it clear in either its response to Paragraph 6.1(A) or during the conversation between Mr. Bertino and Dr. Boekhoff

    that the Petitioner was proposing to deliver tickets to each office in the administrative building where the satellite facility would be located, a service that is of primary importance to Respondent.

    
    

11. Following the evaluation of awards the proposal of ETA was selected, subject to the resolution of any timely protest. The services to be afforded by the vendor and the cost of those services were the items of primary importance to Respondent in evaluating and selecting a vendor.

    
    

12. Petitioner's protest of the intended award of the contract to ETA was filed on a timely basis. During the informal hearing held in an attempt to resolve this dispute and in the formal hearing held in this proceeding, Petitioner, through Mr. Bertino, maintained that it intended by its response to Paragraph 6.1(A) to state that it would deliver tickets, itineraries, and travel related documents to every School Board office. Petitioner contends that it should be permitted to clarify its intentions at this time.

    
    

13. Although Petitioner's response to Paragraph 6.1(A) did not cause its proposal to be rejected by Respondent, the Petitioner's failure to clearly state that it would deliver tickets, itineraries, and other travel documents to each requesting office was the primary reason the proposal of Petitioner was not selected. The services that ETA proposed in its response was the deciding factor in its favor.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. 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 capricious or that it acted in an otherwise improper manner. Capeletti Bros., Inc. V. State, Department of General Services, 423 So.2d 1359 (Fla. 1st DCA 1983). Petitioner has failed to meet this burden.

    
    

16. Respondent's construction of Petitioner's response to Paragraph 6.1(A) of the Request for Proposals was neither arbitrary nor capricious. Respondent placed great emphasis on services in its clear and unambiguous Request for Proposals. It was Petitioner's responsibility to clearly express the services it intended to provide. Petitioner failed to clearly state in its proposal or during the conversation between Mr. Bertino and Dr. Boekhoff that Petitioner intended to deliver tickets, itineraries and other travel documents to each office or school requesting same.

    
    

17. Although Petitioner clarified its intentions regarding the delivery of tickets at both the informal hearing held in an attempt to resolve its protest and at the formal hearing held in this proceeding, it did not do so prior to the close of the evaluation process. To allow Petitioner to amend its proposal after the close of the evaluation process by clarifying a significant term of the proposal would give Petitioner an unfair advantage and would subvert the competitive bidding process.

    
    

18. Petitioner failed to establish that Respondent acted in an arbitrary and capricious manner by determining that the proposal submitted by ETA Travel Agency should be accepted. An agency's discretion in evaluating responses to a

Request for Proposal is very broad. System Development Corporation v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982).

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 International Tours of Juno Beach and

which accepts the proposal submitted by ETA Travel Agency.

DONE AND ENTERED this 7th day of February, 1990, 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 7th day of February, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6775BID

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

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 11 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are rejected, in part, as being contrary to the weight of the evidence. The evidence failed to establish that the proposal submitted by Petitioner was superior to the proposal submitted by ETA. What action the School Board may have taken had Petitioner clearly stated its proposal is speculative.

4. The proposed findings of fact in paragraph 4 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. While Mr. Boekhoff did contact ETA during the evaluation period regarding its organizational structure, there is no contention that such contact was improper.

5. The proposed findings of fact in paragraph 5 are rejected as being conclusions of law instead of findings of fact.

6. The proposed findings of fact in paragraph 6 are rejected as being subordinate to the findings made in paragraph 10 of the Recommended Order.

7. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made in Paragraph 13 or as being conclusions of law and not findings of fact.

8-10. The proposed findings of fact in paragraphs 8-10 are rejected as being conclusions of law and not findings of fact.

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 part by paragraph 1 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.

2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 11 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 5 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 7 of the Recommended Order.

6. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 10 of the Recommended Order.

COPIES FURNISHED:

Donald R. Fountain, Jr., Esquire Lytal & Reiter

515 North Flagler Drive Post Office Box 024466

West Palm Beach, Florida 33402-4466

Robert A. Rosillo, Esquire School of Palm Beach County 3970 RCA Boulevard

Suite 7010

Palm Beach Gardens, Florida 33410

Thomas J. Mills Superintendent of Schools

The School Board of Palm Beach County, Florida

Post Office Box 24690

West Palm Beach, Florida 33416-4690

Docket for Case No: 89-006775BID

Orders for Case No: 89-006775BID