STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORACLE COMPLEX SYSTEMS CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4468B1D

) FLORIDA DEPARTMENT OF LAW ENFORCEMENT, )

)

Respondent, )

and )

) DIGITAL EQUIPMENT CORPORATION, and ) LEROUX PITTS & ASSOCIATES, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on September 4, 5, 6, 9 and 12, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner: W. Robert Vezina, Esquire

Mary M. Piccard, Esquire CUMMINGS, LAWRENCE & VEZINA, P.A.

P.O. Box 589

Tallahassee, Florida 32302

For Respondent: Paul J. Martin, Esquire

Department of Legal Affairs The Capitol-Suite 1501

Tallahassee, Florida 32399-1050

Rodney E. Gaddy, Esquire Judith D. Landis, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Intervenor: Terrell C. Madigan, Esquire (Digital) PAPY, WEISSENBORN & PAPY

Post Office Box 1761 Tallahassee, Florida 32302

For Intervenor: Robert S. Cohen, Esquire (LeRoux Pitts) HABEN, CULPEPPER, ET AL.

Post Office Box 10095 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Did the Respondent, Florida Department of Law Enforcement ("FDLE"), properly follow the criteria for operational assessment?

Did FDLE's operational assessment test all the stated criteria in the Request for Proposal ("RFP")?

If FDLE's assessment did not test all the stated criteria, must the RFP be reissued?

If FDLE should reissue the RFP, must the issue of whether FDLE properly followed the criteria for operational assessment be determined?

PRELIMINARY STATEMENT

These proceedings arose as a result of the issuance of RFP No. 89-73C issued by the Respondent, FDLE, for the procurement of a computer system for the Florida Crime Information Center. After evaluation of the proposals received and through technical scoring and cost component scoring, the Respondent selected two finalists for further consideration through the performance of an operational assessment. An operational assessment of each vendor was performed, and based upon review of the results obtained from these assessments, the Respondent issued a Notice of Intent to Award a contract to the Intervenor, Digital Equipment Corporation (hereinafter "DEC") on April 1, 1991. The Petitioner, Oracle Complex Systems Corporation ("OCSC") filed a protest and several meetings were held between the Respondent and each finalist vendor, after which the Respondent rescinded the Notice of Intent to Award and procured the services of KPMG Peat Marwick to review the operational assessment specifications and performance results achieved by the Petitioner and DEC.

While KPMG Peat Marwick performed its task, the Respondent continued to evaluate each vendor's performance of the operational assessment and the results achieved thereby. Upon receiving the final report from KPMG Peat Marwick and after completing further analysis of the test results, the Respondent determined to again issue a Notice of Intent to Award to DEC. This result was posted on June 26, 1991. The Petitioner again formally protested the Notice of Intent to Award the contract to DEC. DEC intervened in support of the decision of the Respondent; and Intervenor, LeRoux Pitts & Associates ("LP"), intervened in opposition to the decision.

The Petitioner presented the testimony of four witnesses in its case-in- chief, two witnesses in rebuttal, three witnesses through deposition; and its Exhibits 1-33 were received into evidence. The witnesses called by the Petitioner in its case in chief were Irv Paskowitz, Stephen Russell, Dr. Herman Lam and Gene Trindell. The witnesses called by the Petitioner in rebuttal were Mr. Trindell and Bob Burton. The depositions of Dr. Lam, Mark Scharein and John Crawford were received into evidence.

The Respondent, FDLE, presented the testimony of four witnesses, and its exhibits 1-19 were received into evidence. Testifying for the Respondent were William Kneece, John Crawford, Gene Hackett and Mark Scharein.

DEC specifically adopted the testimony and exhibits put forth by the Respondent and presented no additional testimony or exhibits of its own.

LP called no witnesses nor introduced any exhibits.

All of the parties filed Proposed Recommended Orders, which were read and considered. The Appendix attached hereto and incorporated by reference herein states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. This case involves a challenge to the award of a bid in an RFP by the Respondent's upgrade of the Florida Criminal Information Center (hereinafter "FCIC"). This upgrades the system used to link Florida to the National Criminal Information Center and allows law enforcement personnel and agencies to obtain information concerning individuals who have criminal records. (TR. 14, Prehearing Stip. 10)

   
   

   The following Findings of Fact are stipulated to by the parties:

   
   

2. On May 1, 1990, the Respondent issued RFP No. 89- 73C entitled "Request for Proposal-Florida Crime Information Center System." Addendum 1 to the RFP was issued on June 22, 1990. Addendum 2 to the RFP was issued on November 8, 1990. Addendum 3 to the RFP was issued on February 20, 1991. In addition, certain questions and answers to those questions were published on June 5, 1990 and June 28, 1990. (Prehearing Stip. 10)

   
   

3. The deadline for submitting sealed proposals was ultimately set for July 16, 1990. At the time of the deadline, four proposals had been filed in response to the RFP by the Petitioner, DEC, IBM and LP. (Prehearing Stip. 11)

   
   

4. By notice dated September 10, 1990, the Respondent issued a Notice of Selection of two finalists pursuant to the terms of the RFP, which firms would be invited to perform in an operational assessment. The two finalist firms were the Petitioner and DEC. (Prehearing Stip. 11)

   
   

5. After the performance of the operational assessment in March of 1991, the Respondent scored the test results and on April 1, 1991, posted a Notice of Intent to Award the contract to DEC. After many meetings with both finalists, the Respondent rescinded its notice on April 30, 1991 and announced that it would retain the services of an independent consultant to review the operational assessment and the test results achieved. (Prehearing Stip. 11)

   
   

6. After receiving the final report from its consultant, the Respondent posted a Notice of Intent to Award the contract to DEC on June 26, 1991. (Prehearing Stip. 11)

   
   

7. The Petitioner filed its formal bid protest and Petition for Administrative Hearing on July 11, 1991. (Prehearing Stip. 11)

   
   

8. DEC filed its Petition to Intervene on July 31, 1991. (Prehearing Stip. 11)

   
   

9. LP filed its Petition to Intervene on August 28, 1991. (Prehearing Stip. 11)

   
   

   The following Findings of Fact are based upon the best evidence:

   
   

10. The RFP was comprised of three stages. The first stage concerned technical proposals. The second stage concerned cost proposals. The third

    stage concerned the operational assessment or the live demonstration of the system bid. The three stages comprised of a 10 0-point system with the technical proposal receiving 60 possible points, the cost proposal 20 points, and the operational assessment 20 points. (TR. 15) (Tab 5 in RFP)

    
    

11. Following stages one and two, OCSC led DEC in points, but DEC was awarded the bid after receiving more points than the Petitioner in the operational assessment. (TR. 16, Prehearing Stip.)

    
    

12. The purpose of the operational assessment was to evaluate the two proposed solutions of DEC and the Petitioner under the same conditions to measure and compare the raw performance of each proposed machine. A pure speed run of similar programs is termed a benchmark test. (TR. 241, 325)

    
    

13. At a meeting on September 13, 1990, the Respondent discussed with the Petitioner and DEC the framework for the performance of the operational assessment. Initial matters which were discussed involved the scoring matrix which was to be modified and finalized for use in the assessment, as well as the numbers and types of tests to be conducted. After that initial meeting, the parties continued to have meetings, telephone conferences, and written correspondence among themselves through which they continued to formulate the parameters and specifications for the operational assessment. This process continued for months and was finally completed in February of 1991. (TR. 966- 967)

    
    

14. Through a give-and-take process, the outstanding issues were resolved by the parties at the time of the performance of the operational assessment in February through March of 1991. The specifications for the operational assessment consisted of the materials issued by the Respondent, responses to questions which were sought by the Petitioner and DEC, as well as correspondence by the Respondent, in which it established rating instructions and other terms and specifications for the performance of the operational assessment. (Respondent's Exhibit 2) The rating instructions of November 1990 required that transactions be processed correctly. (FDLE's Exhibit 6; TR. 153, 1048-49)

    
    

15. For the operational assessment, the Respondent provided the vendors with tapes containing identical information to be loaded into their databases. (TR. 228) The Respondent also provided transaction tapes which were loaded into a second computer which was programmed to simulate requests to the primary system in which the database was maintained. When requests were received by the primary computer, it would search its database and respond. The secondary computer also was programmed to time the response time of the primary computer to the inquiry. (TR. 187-189)

    
    

16. When the Petitioner loaded the Respondent's tapes into its database, a programming error was made in establishing the links between certain relational tables. Those tables contained sentencing and disposition information or fields. (TR. 159-161) FDLE advised OCSC in January 1991 of possible errors in cardinal relationships in the OCSC database which was being monitored by FDLE.

    
    

17. As a result of the programming error during the loading process, the Petitioner's inquiry program accessed the database, but bypassed the search for sentencing and disposition information. (TR. 442) The Petitioner failed to return dispositions and sentences in numerous instances during the operational assessment. This error was the result of a correctable programming error stating the relationship of certain data at the time of inputting. (TR. 120)

18. When the vendors originally loaded the database, it was discovered that the code relating to the originating police department was invalid in some instances. This was a problem, a so-called "glitch", with the data tapes provided by the Respondent. (TR. 229)

    
    

19. When brought to FDLE's attention, FDLE instructed the vendors to enter "St. Petersburg Police Department" as the legal entity when a corrupted or defective code was identified. (TR. 229-232)

    
    

20. DEC modified its operational software to respond with "St. Petersburg Police Department" when these cases were accessed, thereby bypassing an actual search of the database for information. (TR. 233) This process was referred to as "hard coding". (TR. 119)

    
    

21. Because DEC hard coded the information and did not actually search its database, DEC was able to complete its searches more quickly than it would have been able to if it had had to search the database and respond. (TR. 132)

    
    

22. Thirty (30) percent of the tests ran in the operational assessment phase were heavy data tests. In 16% of these heavy tests, DEC failed to report additional data that was included in the database. (TR. 254-55)

    
    

23. DEC's hard coding was done intentionally. (TR. 770) Hard coding makes the system run faster and resulted in inaccurate information on DEC's actual speed because the system did not actually access the database.

    
    

24. Hard coding is not an industry standard and is not considered an accepted practice in the design of applications systems. (TR. 138-39, 441)

    
    

25. In response to FDLE's instructions, OCSC adjusted its programming to input "St. Petersburg Police Department" into the database instead of the corrupted data, and input all the other data on these cases.

    
    

26. As the operational assessment was initially being scored, it was determined that OCSC was just slightly ahead of DEC. However, FDLE realized just prior to award of the contract that the OCSC had not accessed the sentencing and disposition files, and awarded zero points for each test affected by the Petitioner's error.

    
    

27. The Petitioner ultimately received 3.416 points for the operational assessment and DEC received 12.243 points. This led directly to the Petitioner's failure to pass the operational assessment and the award of the contract to DEC on April 1, 1991. (Petitioner's Exs. 18 and 19)

    
    

28. OCSC filed a timely Notice of Intent to Protest followed by a formal written protest. In the meantime, OCSC audited its performance and the performance of DEC on the operational assessment. OCSC discovered the hard coding by DEC on its inquiry program and several other actions taken by DEC reflecting on the validity of the outcome of the operational assessment.

    
    

29. On April 23, 1991, OCSC made an informal presentation to the Respondent at which time it raised DEC's hard coding, as well as other issues which called into question the relative performance of DEC and OCSC on the operational assessment. OCSC also argued against the FDLE decision to deny it any points when it failed to assess sentencing and disposition data. (Deposition of Mark Scharein, pgs. 137, 146)

30. On April 30, 1991, FDLE met with DEC for the sole purpose of obtaining an explanation of the hard coding from DEC. (TR. 1051) At the end of that meeting, FDLE announced that it would withdraw the intent to award to DEC. (Deposition of Mark Scharein, pg. 148)

    
    

31. Between the time FDLE withdrew the original intent to award to DEC and the time it reissued the intent to award the bid, FDLE received no information showing or tending to show that DEC's hard coding was excusable. (TR. 1051)

    
    

32. Although the FDLE retained KPMG Peat Marwick as an outside consultant to assist it in substantiating its decision (Petitioner's Exhibit 25), neither FDLE nor KPMG actually reassessed which bidder should be awarded the contract. KPMG limited its inquiry to the correctness of the Respondent's initial decision. After receiving the consultant's report, the Respondent FDLE again announced its intent to award to DEC.

    
    

33. The original decision to award the contract to DEC based upon the OCSC's failure to access disposition and sentencing information was supported by the consultant. (TR. 286-287) The FDLE and its consultant buttressed their decision to award the bid to DEC despite DEC's own failure to access the database in all cases on two reasons:

    
    

    1. It was not unreasonable for DEC to have hard coded the program and it was not prohibited, and

       
       

    2. The hard coded answer given by DEC gas "right", while the effect of OCSC's not reading the sentencing and disposition data provided "inaccurate" information.

1. Mark Scharein testified that no one at FDLE had told DEC that hard coding on the inquiry side was permitted. (Deposition of Mark Scharein, pg. 144) Knowledgeable witnesses testified repeatedly that there was no reasonable basis for DEC's actions, and this process was wrong. (TR. 116-119, 186-187, 214, 230, 441)

   
   

2. The Respondent's second rationalization that DEC's answers were "correct," and OCSC's answers were incorrect is equally unsupportable. Both vendors failed to access all portions of the databases as required by the operational tests. Both vendors failed to qualify under the "zero" standard adopted by FDLE.

   
   

3. The Respondent asserted the additional grounds for awarding the bid to

   DEC:

   
   

   1. The Respondent asserted that the Petitioner improperly failed to

      perform domain edits in its inquiry program.

      
      

   2. The Respondent contended that the Petitioner failed to properly search all tables on the ad hoc tests.

      
      

4. Page 4-A-28 of the RFP sets forth the provisions for integrity checking. It provides that the management system provided by the bidder should have the ability to perform referential integrity checking for add, delete and modify data maintenance operations. No specific reference was given for the requirement for the vendors to perform domain edits on the inquiry program. (Testimony of Bob Burton, TR. 1125-1128)

5. The OCSC management system prevented acceptance of obviously improper data; i.e., alpha character in social security field. It also would reject numbers falling outside established parameters. The RFP provided that certain information would be deleted from the database upon designated time limits. Deletions of such data are best accomplished during "maintenance" routines.

   
   

6. No evidence was received concerning how additions to the database were achieved; however, one may conclude the ability existed because the tests were run using the database and updates to the database.

   
   

7. FDLE did not explain specifically how OCSC failed to meet the criteria for editing data. The criteria for editing in the RFP are general in nature. (TR. 1125-1132; deposition of Mark Scharein, pgs. 130-134; Petitioner's Exhibit B)

   
   

8. Editing on inquiry would permit changes in the data when a question is asked of the system. It does not appear logically appropriate to permit "users" of the database to edit (add or delete) information. Credible evidence was received that, as a matter of industry standards, domain edits are not performed on inquiry programs. (Deposition of Dr. Lam, pgs. 14- 15)

   
   

9. The "Rules for All Database Operations" states that domain edits are to be performed on maintenance operations (add, change, delete). (Petitioner's Exhibit 8)

   
   

10. The RFP provided that the program possess an "ad hoc" capability, or the ability to formulate and ask nonstandard questions. FDLE asserted that OCSC's ad hoc program did not work properly based upon the propounding of three questions which it provided the vendors in advance.

    
    

11. FDLE asserts that OCSC "fudged" when it took the classifications of habitual nonviolent felony offenders, habitual violent felony offenders, and non-habitual felony offenders and created an additional field in which it

    assigned a numerical designator to each class of felon by race. For example, an habitual nonviolent black felon would be assigned a code of "1", an habitual nonviolent white felon would be assigned a code of "2", an habitual violent black felon would be assigned a code of "3", etc.

    
    

12. Rather than checking fields for race, felon/nonfelon, habitual/nonhabitual, etc., when ad hoc inquiries were made, the system checked the specially created field and counted the coded types. This process could not be followed in a true ad hoc test because the question has to be known for the coding to be programed. (TR. 845-849)

    
    

13. In the second ad hoc test, OCSC failed to provide all the data accurately. This failure could have been caused by the manner in which the question was programmed, the manner in which the ad hoc program was written, the linkages in the database (the question related to dispositions and sentencing which were not being accessed in non-ad hoc: inquiries), or the manner in which the programer understood the question.

    
    

14. FDLE took the view that it made no difference if the answer was wrong; however, FDLE did not determine which of the possible causes actually created the problem, and the system's capabilities were ignored. (TR. 851, et seq.)

15. In the third ad hoc both DEC and OCSC failed. OCSC skipped the disposition table, and DEC failed to properly compare the incident with type of incident. (TR. 867) The DEC problem was a programming error in the ad hoc program. FDLE did not know what caused the problem. It is noted again that the ad hoc inquiry involved dispositions, a portion of the OCSC database which was not functioning properly due to an inputting linkage error.

    
    

16. FDLE determined that adding an additional field to facilitate the search was improper despite the fact that the Respondent could not produce a specification which limited the numbers of fields that could be established. (TR. 922)

    
    

17. FDLE determined that the hard coding of the correct response of "St. Petersburg Police Department" was acceptable. DEC's failure to check the files due to hard coding was exactly the same type of failing as OCSC's failure to check disposition and sentencing files. Both failed to check all required files. (TR. 918-920; Petitioner's Exhibits 26 and 27)

    
    

18. The specifications provided for processing transactions at the rate of

    10 TPS and required the vendors to maintain 95% compliance with that rate.

    
    

19. The Respondent contended at hearing that another failure by the Petitioner to meet the specifications was that OCSC's driver system did not process sequentially and did not initiate a transaction every 1/10 of a second.

    
    

20. The Respondent acknowledged that there was no clear specification requiring transactions to be initiated every 1/10 of a second or in the sequence that the transactions existed in the file. (TR. 933, 939, 943, 1086, 1096; Petitioner's Exhibit 28) (Petitioner's Exhibit 9) (Source: Respondent's notebook provided to KPMG)

    
    

21. OCSC queued the inquiries and transmitted them to the main system when a processor became available. Using this method, OCSC processed the data at a rate of not less than 10 TPS. Both vendors substantially complied with this requirement. (TR. 935, 1052, 1078-1081, 1094)

    
    

22. On November 2, 1990, the Respondent issued a modification which became part of the specifications which required the vendors to edit information already loaded in the database because an error had been found in the "person- supplemental-birth-date" field. The modification/edit stated: "Reject 10A records with a bad person-supplemental-birth-date".

    
    

23. OCSC modified its program to reject the bad field but accept and record in the database all the other data in the transaction. DEC modified its program to reject the entire transaction. (TR. 253 and 265) FDLE acknowledged that the modification was intended only to correct inquiries related to the corrupt field. (TR. 900)

    
    

24. As a result of its approach, DEC's system returned a "not found" code whenever a transaction required information relating to individuals who had an invalid birth date. (TR. 255, 257) DEC's system did not search the database for information relating to those individuals because the individuals were not present in the database. This occurred, on the average, in 16% of the heavy transactions. (TR. 255)

25. In contrast, the Petitioner's system searched for information relating to those individuals with invalid birth dates and returned all the information minus the invalid birth dates. (TR. 447) 1/

    
    

26. DEC's interpretation permitted it to perform faster because the Petitioner's system was required to perform more work. (TR. 246, 274) This affected 25 of the 29 tests. However, FDLE accepted DEC's deletion of the entire record.

    
    

27. DEC received technical points for "referential integrity" from FDLE which it asserted that its program possessed; however, in operational assessment, the "referential integrity" subprogram, which causes much slower response times, was "turned off" to make the system run faster.

    
    

28. The Respondent's acceptance of DEC's treatment of these items created different operating conditions in the work

    load and performance speed. This circumvented the goal of having both vendors perform the same work so that the speed and capabilities of the two systems could be fairly judged.

    
    

29. At best, the FDLE's instructions for the modification was ambiguous. There were no basis for rejecting or penalizing the Petitioner's performance based upon the specifications.

    
    

30. At DEC's operational assessment of mirror imaging, DEC configured its system differently from what it had proposed by substituting SA 600 disk drives for SA 800 disk drives because the 5A 800s were not available. FDLE did not determine if SA 800s were being manufactured and were available. Availability was a mandatory requirement.

    
    

31. The diagram and configuration of the system submitted by DEC in its proposal was different from the one it submitted for the operational assessment. (TR. 648)

    
    

32. DEC had proposed a solid state disk drive run through normal disk controllers back to the processor. During the operational assessment, the solid state disk drive was connected directly into the central processing units which permitted the units to work faster.

    
    

33. FDLE determined that the substitution of equipment and the resulting changes in the manner in which the system were connected was consistent with the RFP and were not material changes in configuration.

    
    

34. OCSC also requested permission from FDLE to alter its configuration at the operational assessment by moving two processing units from one cabinet and installing them in a second cabinet splitting the number of processors six and two, rather than four and four. (TR. 618-620) The Petitioner's request was denied by FDLE because FDLE was of the opinion that this would make OCSC's system run faster. (TR. 619)

    
    

35. The Respondent's explanation for permitting DEC to utilize a reconfigured system, while denying the Petitioner the same opportunity, was that DEC had informed the Respondent that the changed configuration would be provided as part of the final product, and the Respondent did not believe that the Petitioner intended to provide a system with the altered configuration. (TR. 679)

36. There is no evidence that the Petitioner would not have provided the system it requested to use during the operational assessment.

    
    

37. At the request of DEC, an artificial limit of 2,000 characters was placed on the responses. (TR. 275) The Petitioner objected to the limit contending that the vendors should be required to provide complete responses. (TR. 278) The Respondent overruled the Petitioner's objection because it concluded that, as long as both vendors performed the same tasks, the operational assessment purposes would be fulfilled. (Petitioner's Exhibit 16)

    
    

38. The Respondent failed to specify the length of keys to be used for inquiry transactions. DEC designed its inquiry keys so that they were very long. (Petitioner's Exhibit 13; TR. 279-281) These inquiry codes were included in the 2,000 character limit. Neither the length of the codes nor their inclusion in the limit were deemed to violate any specification of the RFP or assessment. However, it resulted in DEC's system producing shorter answers because its questions were longer. Therefore, the test of the speed at which DEC performed the inquiries was, in fact, enhanced by the 2,000 character limit.

    
    

39. The FDLE claimed that the Petitioner improperly utilized a computer language ("C-Code") which had not been proposed by OCSC. The Petitioner's use of C-Code was not contrary to the operational assessment rules. (TR. 1066-1067)

    
    

40. However, when FDLE was advised of DEC's failure to access the database during the operational assessment due to the "correction" in which it hard coded the correct answer in the inquiry program, FDLE decided to give DEC full credit for the tests affected by the hard coding because DEC's answer was "correct", and OCSC's answer was incomplete or incorrect.

    
    

41. The RFP provided that failure of a bid to meet a mandatory requirement was cause for eliminating the proposal. There were four separate tests scheduled in the operational assessment related to availability and reliability. DEC did not perform one of those tests. (TR. 1,059-1,068)

    
    

42. Based upon the KPMG Peat Marwick assessment of the FDLE scoring of OCSC and DEC, OCSC complied with only 70.6% of the benchmark specifications and DEC complied with only 72% of the specifications.

    
    

43. Had DEC been awarded zero points in those areas it did not access, DEC would have received 1.88 points out of a possible 20. OCSC received 3.4 points out of a possible 20 when FDLE awarded it zero points in those areas it did not access. Neither of the vendors would have passed the operational assessment using the same criteria. (TR. 345; Petitioner's Exhibit 18)

    
    

44. As scored by FDLE, DEC received 12.5 points out of a possible 20 which is not a passing score. (TR. 345, Petitioner's Exhibit 19)

    
    

45. The RFP required that the system mirror all information in the database in case there was a failure of the primary storage. Mirroring contemplates data input being recorded in two places at the same time. DEC did cot mirror its entire disk configuration. Its solid state disks were not mirrored and contained information which would have, if lost, greatly reduced the performance of their configuration. (TR. 350)

    
    

46. Mirroring was tested by having a failure test; however, FDLE did not conduct a random test of the backup capability. The Respondent specifically chose a disk set of DEC's which was mirrored in performing the failure test,

    rather than the solid state disk. (TR. 352-53) The only true test of the capability of a system in terms of reliability is through a random failure test. (TR. 355-56)

    
    

47. If any of DEC's non-mirrored disks had failed, DEC's system would operate much slower until the disk could be restored. (TR. 357-59) Depending upon the size of the file lost, the time necessary for recovery could be anywhere from several minutes to 24 hours. (TR. 359)

    
    

48. FDLE hired KPMG Peat Marwick to do an analysis of the operational assessment performed to determine whether the results of the benchmark would support a selection decision which FDLE might make. (TR. 651)

    
    

49. KPMG Peat Marwick had access to the scores assigned by the Respondent prior to conducting its analysis. (TR. 767) The consultant also had prior knowledge of how each of the vendors who performed the operational assessment ran the benchmark. (TR. 768)

    
    

50. Using a qualitative analysis, FDLE's consultant awarded DEC 75 points and awarded the Petitioner 35 points. (TR. 662-63)

    
    

51. The RFP required DEC and the Petitioner to perform the operational assessment on the same platform as proposed in their technical proposal. Neither vendor complied with this requirement (TR. 776)

    
    

52. At the time of the RFP and at hearing, the Respondent had no money allocated in its budget to purchase the FCIC upgrade. (TR. 1,011-1,012) No evidence was produced to demonstrate that the money had been appropriated by the Florida Legislature.

    
    

53. The Respondent had no idea what the system was going to cost until it saw the proposals. (TR. 1,012)

    
    

54. No assessment of the cost per qualitative improvement(s) in the proposal was required or performed by FDLE.

    
    

55. After receiving the proposals, the Respondent requested a figure of

    $14.6 million from the Legislature over three years for acquisition. (TR. 1,012) No contingent plans for prioritizing the purchase were made in the event the Legislature appropriated less than all of the money requested by the Respondent for the system. (TR. 1,013-1,014)

    
    

56. The RFP contained language which conditioned the bid and contract upon availability of funding.

    
    

57. The Respondent also had announced a policy that when there was room for doubt as to whether a vendor had complied with a specification, the benefit of the doubt would be given to the vendor and the vendor would be given credit for the affected tests. (Petitioner's Exhibit 29; TR. 1053). The Respondent failed to apply this policy equally when it determined to penalize the Petitioner for processing transactions out of sequence and at an overall 10 TPS rate instead of a rate of one transaction every 1/10 of a second.

    
    

58. Both DEC and OSCS failed to pass mandatory requirements of the RFP.

    CONCLUSIONS OF LAW

    
    

59. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding by the authority of Sections 120.53(5) and 120.57, Florida Statutes.

    
    

60. The award of this contract is governed by the public bidding law whose purpose is to protect the public against collusive contracts and prevent favoritism to contractors by public officials, and to secure fair competition upon equal terms to all bidders. The courts have construed these provisions to be remedial and have construed them to fully effectuate and advance their true intent. See Westin v. Belote, 138 So.2d 721, 724 (Fla. 1931)

    
    

61. A public agency may not waive any specification which, if waived, would create an unfair and anti-competitive situation. See Westin v. Belote, cited above. Agencies have broad discretion in soliciting and accepting bids if the process leaves no room for favoritism or unequal treatment. The courts have held that the courts should not interfere, as long as there is no

    showing that the agency's action could avoid competition, unless there was a showing of fraud, illegality, bad faith or other wrongdoing. Improperly applying bid criteria shows the agency attempted to avoid competition. See Florida Department of Transportation v. Groves Watkins Constructors, 530 So.2d 912 (Fla. 1988), Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d

    505 (Fla. 1982), and Courtenay v. HRS, 581 So.2d 621 (Fla. 5th DCA 1991).

    
    

62. In this de novo proceeding, the function is to make findings of fact, apply the law to the facts, and formulate a recommendation for agency action based upon the facts and law. Although the FDLE acknowledged its obligation to treat all bidders fairly, it did not do so in the assessment and award of this bid. While the agency's action was probably unintentional, the agency was nevertheless unfair to those bidders initially eliminated and, subsequently, it was unfair to OCSC.

    
    

63. In the first phase of assessing the RFP, the point system called for

    60 points to be awarded upon technical merit and 20 points to be awarded for costs. These two criteria constituted a "first hurdle" which would eliminate all but two finalists according to the provisions of the RFP. The intervenor, LeRoux Pitts and Associates, was one of the bidders eliminated at this stage by the agency's assessment of its scores.

    
    

64. The agency's method of assigning points for scoring "costs" was by a formula which was amended in the November 1990 changes to the RFP. This formula did not link the award of points to mandatory requirements of the RFP and any added capabilities possessed by a vendors system. By not creating such a linkage, it must be assumed that the each bid met minimum technical requirements, i.e., all the proposals met the mandatory provisions. OCSC and DEC had the two highest point totals after technical and costs assessment, and they moved to the second phase of the process, the operational assessment. The details of this operational assessment process were not stated in the RFP.

    
    

65. At this point, LP had the opportunity to challenge the agency's determination. Although this would have been awkward, this is the procedure identified by the courts as the method to be used. Failure to timely challenge the agency's decision at this point waived later challenges by LP. Department of Transportation v. Watkins-Grove, 423 So.2d 433 (Fla. 1st DCA 1982).

66. In the second phase, the two successful bidders were to work with the agency to develop an appropriate operational assessment. The evidence is very clear that there was give and take between the two "semifinal" bidders and the agency over the format and content of the second phase. The evidence is equally clear that the operational assessment of OCSC and DEC did not test all of the mandatory requirements of the RFP. By failing to test all the mandatory requirements in the second phase, the agency let the two lowest bidders "promise anything" for the lowest price. Without some check, such as testing the mandatory requirements, the actual price bid is meaningless.

    
    

67. To the extent that the mandatory requirements were not tested as part of the operational assessment, the second phase avoided competition because, having won the right to proceed based upon price and technical comparison, neither winner was required to demonstrate it could perform the basic mandatory requirements. The mandatory requirements were illusory because they were not tested, and the prices quotes were illusory because the bidders did not have to demonstrate their systems could perform the mandatory tasks at the quoted price. Therefore, the elimination of the other biders, to include LP, was anti- competitive and a violation of Chapter 287, Florida Statutes as a result of the decision made at phase two not to test all the mandatory requirements in the second phase.

    
    

68. The decision not to test the mandatory requirements was made in the second phase by DEC, OCSC, and FDLE. This precluded knowledge and the opportunity by the initial bidders, to include LP, to protest the terms of the operational assessment. The initial bidders would not have been aware that mandatory requirements were not tested had not one of the "semifinalist" challenged the ultimate decision. The fact that this anti-competitive process was proposed and occurred after phase one would not re-animate LP's standing to challenge the decision under the principles of Watkins-Grove, supra.

    
    

69. Fortunately, the conflict between these two legal issues does not need to be addressed because based upon the violation of Chapter 287, Florida Statutes, the required remediation would be to re-test the semifinalists on all the mandatory requirements, and go back to phase one if either OCSC or DEC failed any of the mandatory requirements. However, this is unnecessary because the record reveals that both DEC and OCSC failed mandatory requirements which were tested in the second phase. Their failure to pass any of the mandatory requirements which were tested would return the process to phase one. Upon return to reletting the RFP, both LP and IBM are re-animated.

    
    

70. FDLE awarded zero points to OCSC for its failure to check all relevant data fields during phase two testing. Checking all relevant data fields was considered by FDLE a mandatory requirement. Although FDLE did not penalize DEC for "hard coding" the correct answer rather than actually searching the database, DEC clearly did not access all of the relevant data fields, and its failure is equally inexcusable. Both DEC and OCSC failed to check all the relevant data fields on test inquiries which was a mandatory requirement.

    
    

71. Both vendors did not run the operational assessment on the platforms which they were proposing. This was a mandatory requirement relating to availability. An agency cannot waive a mandatory availability requirement.

    
    

72. In addition to failing to test all mandatory requirements, FDLE's refusal to penalize DEC's failure to search the entire database constituted unequal treatment of OCSC.

73. Both of the conditions discussed in Robinson Electrical Co. v. Dade County, 417 So.2d at 1034, were violated by the waiver by FDLE of the mandatory requirements, and by the waiver by FDLE of DEC's failure to access all the relevant fields due to hard coding the correct answers. In the case of waiving the testing of both OCSC and DEC on all mandatory requirements, FDLE's action deprived the state of the assurance it would get what it had bid, and gave DEC and OCSC an advantage over the other bidders to include LP. In the case of waiving DEC's failure to access all fields because of hard coding the answers, FDLE's waiver gave DEC a competitive advantage over OCSC. Both the waiver of testing of all mandatory requirements and the waiver of DEC's failure to access all fields due to hard coding were material nonwaivable irregularities by FDLE. The record reflects that FDLE improperly awarded the bid to DEC.

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 award of DEC be rejected and the process return to phase one to relet the bids.

DONE AND ENTERED this 1st day of November, 1991, in Tallahassee, Leon County, Florida.

STEVEN F. DEAN

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 1st day of November, 1991.

ENDNOTE

1/ These transactions were also affected by the Petitioner's programming error concerning linkages and did not access sentencing and disposition data.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-4468BID

FDLE & DEC PROPOSED FINDINGS OF FACT

1. (a-f) Adopted.

2. Contrary to best and most credible evidence. 3-4. Irrelevant.

5. Adopted but rewritten (see paragraphs 12, 13, 14) 6-8. Adopted.

1. Rewritten (see paragraph 16)

2. Adopted.

3. Rejected as argument.

4. Adopted.

5. Rejected as contrary to best and most credible evidence. 14-16. Adopted (see paragraphs 26 and 27)

1. Adopted (see paragraph 28)

2. Adopted (see paragraph 29 and 30)

3. Adopted (see paragraph 32)

4. Irrelevant.

5. Adopted (see paragraph 37) 22-27. Adopted.

28-51. Rejected contrary to best and most credible evidence.

1. Adopted but rewritten.

2. Rejected as contrary to best and most credible evidence.

OSCS PROPOSED FINDINGS OF FACT

1-10. Adopted.

1. Rejected as contrary to best and most credible evidence.

2. Irrelevant.

13-25. Adopted.

26-27. Irrelevant.

28-39. Adopted.

1. Rejected as contrary to best and most credible evidence.

2. Adopted.

3. Rejected as argument.

4. Adopted.

44-45. Irrelevant.

46-56. Adopted.

57-58. Rejected as contrary to best and most credible evidence. 59-73. Adopted.

1. Rejected as argument.

2. Adopted.

3. OCSC had been advised of a potential problem. It did have some reason to check but did not.

4. Adopted.

5. Rejected as contrary to beat and most credible evidence and as argument.

6. Irrelevant.

7. Adopted.

81-83. Irrelevant.

1. Adopted.

2. True but irrelevant.

3. Adopted.

LP PROPOSED FINDINGS OF FACT

1-12. Adopted.

1. Rejected as contrary to best and most credible evidence.

2. Adopted.

3. Rejected as contrary to best and most credible evidence relating to "Benchmarks".

4. Adopted.

5. True but irrelevant. 18-21. Adopted.

22-25. Irrelevant.

26-28. Adopted.

29. Irrelevant.

30-33. Adopted.

34-39. Irrelevant.

1. Adopted.

2. Irrelevant.

42-44. Adopted.

1. Irrelevant.

2. Adopted.

47-48. Irrelevant.

49-61. Adopted.

COPIES FURNISHED:

James T. Moore, Commissioner Department of Law Enforcement

P.O. Box 1489 Tallahassee, FL 32302

Rodney E. Gaddy, Esq. Judith D. Landis, Esq.

Department of Law Enforcement

P.O. Box 1489 Tallahassee, FL 32302

W. Robert Vezina, Esq. Mary M. Piccard, Esq.

CUMMINGS, LAWRENCE & VEZINA, P.A.

P.O. Box 589 Tallahassee, FL 32302

Paul J. Martin, Esq. Department of Legal Affairs The Capitol-Suite 1501

Tallahassee, FL 32399-1050

Terrell C. Madigan, Esq. PAPY, WEISSENBORN & PAPY

P.O. Box 1761 Tallahassee, FL 32302

Robert S. Cohen, Esq. HABEN, CULPEPPER, ET AL.

1. Box 10095 Tallahassee, FL 32302

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

   ================================================================= AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT

   
   

   ORACLE COMPLEX SYSTEMS CORPORATION,

   
   

   Petitioner,

   
   

   vs. CASE NO. 91-4468BID

   
   

   FLORIDA DEPARTMENT OF LAW ENFORCEMENT,

   
   

   Respondent,

   and

   
   

   DIGITAL EQUIPMENT CORPORATION, and LEROUX PITTS & ASSOCIATES, INC.,

   
   

   Intervenors.

   /

   
   

   FINAL ORDER

   
   

   This matter came before the Governor and Cabinet of the State of Florida, sitting as the head of the Department of Law Enforcement, pursuant to s. 120.59, F.S., on January 22, 1992, in Tallahassee, Florida, for consideration of a Recommended Order from the Division of Administrative Hearings entered on November 1, 1991 (Attached as Exhibit A), and exceptions filed thereto by Digital Equipment Corporation (Attached as Exhibit B), and State of Florida, Department of Law Enforcement (Attached as Exhibit C). Based upon the Departments review of the case, it is hereby ordered that:

   
   

   1. The Department adopts and incorporates in this Order the preliminary statement in the Recommended Order dated November 1, 1991, by the Division of Administrative Hearings.

      
      

   2. The Department adopts and incorporates in this Order the Findings of Fact set out in paragraphs 1 through 9, 11, 13 through 18, 20 through 21, 23 through 30, 32 through 41, 43, 45 through 47, 49 through 51, 53, 56, 58 through 60, 62, 65 through 69, 71 through 74, 76 through 79, and 81 through 85 since they are supported by competent, substantial evidence. In so doing, the Department notes, however, that various citations throughout the Recommended Order to the record by the hearing officer do not appear to support findings made with respect thereto, although other uncited record evidence may support such findings. Lack of attentiveness to record citations impedes and/or makes our review extremely difficult given the statutorily imposed standard for rejecting findings of fact. If the Departments final decision in this matter were other than as stated herein for the reasons set forth below, it would be

      inclined to remand this case to the hearing officer with directions to support all findings of fact with correct record citations.

      
      

   3. The Department rejects the following Findings of Fact to the extent stated below:

      
      

      1. Finding of Fact number 10 to the extent that it refers to the operational assessment as "the live demonstration of the system bid." Such a finding is not supported by competent, substantial evidence. The request for proposal specifically states that only a subset of the Enterprise Model would be tested.

         
         

      2. Finding of Fact number 12 to the extent that it implies that the operational assessment was a pure speed run of the proposed solutions, rather than a comparative measurement of the performance of the two systems. Neither the record evidence nor the cited evidence support that implication.

         
         

      3. Finding of Fact number 19 to the extent that it states that FDLE instructed the vendors to "enter" St. Petersburg Police Department as the legal entity. The cited testimony does not state the specific directions given, but merely the vendors implementation of the instruction. The only testimony which states the specific instruction as given by FDLE to the vendors is set forth on page 838 of the transcript. That instruction was to "default to" the St. Petersburg number.

         
         

      4. Finding of Fact number 22 to the extent that it states that "[i]n 16 percent of these heavy tests, DEC failed to report additional data that was included in the database." The record evidence and cited testimony does not support that finding. Rather, the cited testimony if read in its entirety supports a finding that the information not reported was not believed to be included in DECs database although it was in OSCS database, and further record testimony stated on pages 901- 904, 1000 and 1002 support that belief.

         
         

      5. Finding of Fact number 31 to the extent that it implies that FDLE had no information showing or tending to show that DECs hard coding was excusable. Such implication is not supported by competent, substantial evidence. Testimony elicited by Department witnesses Mark Scharein and John Crawford on pages 671- 672, 687, 731 and 1018 evidence the Departments belief otherwise, although the hearing officer may not have agreed that such "excuses" were justified.

         
         

      6. Finding of Fact number 48 to the extent that it implies that it was incumbent upon FDLE to determine the possible causes of the problem. To that extent, the finding is not supported by competent, substantial evidence.

         
         

      7. Finding of Fact number 57 to the extent that it states that "FDLE acknowledged that the modification was intended only to correct inquiries related to the corrupt field." Neither the record testimony nor the cited testimony support such an acknowledgement on the part of FDLE. In point of fact, the record testimony supports a finding that the Department believed DEC properly implemented the Departments instructions regarding records with a bad person-supplemental-birth-date

         
         

      8. Finding of Fact number 61 to the extent that it infers that referential integrity features were to be tested during the operational assessment. No competent, substantial evidence supports such an inference.

      9. Finding of Fact number 63 to the extent that it is believed to refer to rejection or penalization of OCSCs performance of the operational assessment based upon the modified specification dealing with the editing requirement for records with a bad person-supplemental-birth-date. There exists no competent, substantial evidence to support a finding that the Department penalized OCSC for failure to reject 10A records with bad dates of birth in the manner in which that requirement was interpreted by the Department.

         
         

      10. Finding of Fact number 64 to the extent that there is no competent, substantial evidence in the record which equates the term "availability" as defined in the request for proposal with whether a particular product was available from a manufacturing standpoint.

          
          

      11. Finding of Fact number 70 as there exists competent, substantial evidence in the record, namely petitioners response to the request for proposal, as to the system petitioner intended to deliver to the Department. To the extent the above stated Findings of Fact are not rejected herein, they are hereby adopted and incorporated in this Order.

          
          

   4. The Department adopts and incorporates in this Order the Findings of Fact set out in paragraphs 42 and 80 of the Recommended Order as there exists record evidence to support such findings. However, the Department feels compelled to caution the Hearing Officer against couching findings of fact in terms of his opinion on the matter.

      
      

   5. The Department adopts and incorporates in this Order the Findings of Fact set out in paragraphs 52, 54 and 55 of the Recommended Order as there exists record evidence to support such findings. However, the Department notes that the Findings, as stated by the Hearing Officer, do not give an accurate account of the parties positions. With regard to Findings of Fact in paragraph 55, the cited record testimony makes it clear that the TPS rate was achieved by OSCS through "averaging." The stated Finding of Fact does not reference that factor. The Findings of Fact in paragraphs 52 and 54 do not reference the Departments reliance upon the term "fixed" as used in the specifications in support of its position that transactions were to be initiated every 1/10 of a second.

      
      

   6. The Department adopts and incorporates in this Order the Findings of Fact set out in paragraphs 86 through 90 of the Recommended Order as there exists record evidence to support such findings. However, it is hereby noted that none of the parties raised any issue concerning funding and that the Department believes such findings to be irrelevant.

      
      

   7. The Department specifically rejects those Conclusions of Law regarding the necessity to test all mandatory requirements of the Request for Proposal issued by the Department for the reason set forth below.

      
      

      Nothing in Florida Law requires an agency to conduct an operational assessment for selection purposes. The decision to do so is discretionary with the agency. In applying its discretion, nothing precludes the agency from performing a standard computer industry test, such as TPC, for purposes of comparing two systems, whatever the mandatory technical requirements of the bid may be. Choosing to conduct an operational assessment and choosing to custom create such an assessment rather than use a standard industry test does not impose upon the agency the burden to test each and every mandatory requirement of the request for proposal. In this case, all bidders were advised at the outset that only a subset of the Enterprise Model and only certain aspects of

      that Model would be tested for operational assessment purposes. No bidder, including intervenor LeRoux Pitts & Associates, Inc., timely protested such a decision when given the opportunity to do so.

      
      

      That all mandatory requirements of the RFP were not tested during an operational assessment for selection purposes does not amount, as found by the hearing officer, to an illegal waiver by the agency of such requirements to the detriment of the public. As noted above, no such testing was required under Florida law. Furthermore, the bid and associated contract demonstrate the Departments intent to require the successful bidder to pass an acceptance test prior to any expenditure of public funds. Such acceptance test includes, where deemed appropriate by the Agency, the testing of mandatory requirements. The bidders were advised in the request for proposal itself as to which mandatory and/or non-mandatory requirements would be tested for acceptance purposes, and no challenge was made to this. Additionally, the record reflects that failure of the successful bidder to deliver and perform as required could subject such bidder to loss of its performance bond. These requirements assure protection of the public funds.

      
      

      With regard to the operational assessment itself, the specific penalty for failure of a finalist to success fully perform any given test was the assignment of zero points for such test. All bidders were notified prior to submission of their bids that the measure used to rate the finalists performance during the operational assessment would be assignment of points, not invalidation of their bids.

      
      

      Based upon the foregoing, all conclusions of law relating to any supposed requirement that the agency test all mandatory requirements of the request for proposal and/or a subset of the Enterprise Model, and that the finalists successfully perform mandatory requirements for operational assessment purposes or suffer rejection of their bid are erroneous and accordingly rejected. Any findings of fact made by the hearing officer with respect to such conclusions of law are considered irrelevant, even though adopted by the Department to the extent that they are supported by competent, substantial evidence.

      
      

   8. The Department rejects the remaining Conclusions of Law in the Recommended Order and substitutes them with the following:

The purposes of the public bidding requirements are, in part, to:

...serve the object of protecting the public against collusive contracts and prevent favoritism toward contractors by public officials and ... secure fair competition upon equal terms to all bidders...

Webster v. Belote, 138 So. 721, 724 (Fla. 1931). Specifications governing public procurement should be sufficiently specific and should not reserve any power to the public officers which will afford opportunities for favoritism, whether any favoritism is actually practiced or not. Id at 724.

The specifications related to the operational assessment were timely challenged in this proceeding. As this protest demonstrates, certain specifications were not specific and/or defined sufficiently to assure fair competition between the finalists. Room was left, albeit unintentionally, for interpretation by all concerned as to certain requirements related to the operational assessment. This situation created the potential for favoritism and

unfair treatment in the conduct of that assessment and resulted in unfair competition between the finalists. Furthermore, the manner in which the operational assessment was formulated also created, in our opinion, the potential for favoritism. Under the circumstances of this case, the potential for favoritism and unfair treatment can not be cured by retesting the finalists.

In view of the foregoing and pursuant to the broad discretion given the Department under Department of Transportation v. Groves-Watkins Constructors,

530 So.2d 912 (Fla. 1988), the Department hereby withdraws the award to Digital Equipment Corporation, withdraws RFP #89-73C from further consideration and rejects all bids with respect thereto. Further Department action will proceed after review and evaluation of all available alternatives.

RULING ON EXCEPTIONS TO RECOMMENDED ORDER BY DIGITAL EQUIPMENT CORPORATION

1. Digital Equipment Corporations first exception is adopted to the extent set forth in paragraphs 3.a. and. 7 above.

   
   

2. Digital Equipment Corporations second exception is adopted to the extent set forth in paragraph 3.b. above.

   
   

3. Digital Equipment Corporations third exception is denied.

   
   

   The Hearing Officers findings of fact are supported by competent, substantial evidence in the record.

   
   

4. Digital Equipment Corporations fourth exception with respect to paragraphs 18, 20, 21, 23, 24, 33, 34, 35, 51 and 74 of the Recommended Order is denied. The Hearing Officers findings of fact are supported by competent, substantial evidence in the record. Furthermore, it is the prerogative of the hearing officer to determine witness credibility, and industry standards may be consulted to clarify ambiguities or ascertain intent when such is unclear. Digital Equipment Corporations fourth exception with respect to paragraphs 19 and 31 of the Recommended Order is adopted to the extent set forth in paragraphs

   3.c. and 3. e. above.

   
   

5. Digital Equipment Corporations fifth exception with respect to paragraphs 58, 59 and 60 is denied. The Hearing Officers findings of fact are supported by competent, substantial evidence in the record. Digital Equipment Corporations fifth exception with respect to paragraphs 22 and 57 of the Recommended Order is adopted to the extent set forth in paragraphs 3.d. and 3.g. above.

   
   

6. Digital Equipment Corporations sixth exception is denied. The findings of fact are supported by competent, substantial evidence in the record.

   
   

7. Digital Equipment Corporations seventh exception is denied. The findings of fact are supported by competent, substantial evidence in the record. Furthermore, it is the Hearing Officers prerogative to determine witness credibility, and industry standards may be consulted to clarify ambiguities or ascertain intent when such is unclear.

   
   

8. Digital Equipment Corporations eighth exception is denied with respect to paragraphs 45, 46, 47 49 and 50 of the Recommended Order. The findings of fact are supported by competent, substantial evidence in the record. Digital Equipment Corporations eighth exception with respect to paragraph 48 is adopted to the extent set forth in paragraph 3. f. above.

9. Digital Equipment Corporations ninth exception is denied. The findings of fact are supported by competent, substantial evidence in the record.

   
   

10. Digital Equipment Corporations tenth exception is denied. The findings of fact are supported by competent, substantial evidence in the record; however, the Hearing Officers failure to accurately state the parties positions is noted in paragraph 5 above.

    
    

11. Digital Equipment Corporations eleventh exception is adopted to the extent set forth in paragraph 3. h. above.

    
    

12. Digital Equipment Corporations twelfth exception with respect to paragraphs 65-69 of the Recommended Order is denied. The findings of fact are supported by competent, substantial evidence in the record. Digital Equipment Corporations twelfth exception with respect to paragraph 64 of the Recommended Order is adopted to the extent set forth in paragraph 3.j. above. For the reason set forth in paragraph 3.k. above, paragraph 70 of the Recommended Order is rejected.

    
    

13. Digital Equipment Corporations thirteenth exception is denied. The findings of fact are supported by competent, substantial evidence in the record. Furthermore, it is the Hearing Officers prerogative to determine witness credibility.

    
    

14. Digital Equipment Corporations fourteenth exception is denied except to the extent noted in paragraph 3.k. above. Otherwise, the findings of fact are supported by competent, substantial evidence in the record.

    
    

15. Digital Equipment Corporation s fifteenth exception is denied. The findings of fact are supported by competent, substantial evidence in the record.

    
    

16. Digital Equipment Corporations sixteenth exception is denied. The findings of fact are supported by competent, substantial evidence in the record.

    
    

17. Digital Equipment Corporations seventeenth exception is denied. The findings of fact are supported by competent, substantial evidence in the record; however, lack of relevance is noted in paragraph 7 above.

    
    

18. Digital Equipment Corporations eighteenth exception is denied. The findings of fact are supported by competent, substantial evidence in the record.

    
    

19. Digital Equipment Corporations nineteenth exception is denied. The findings of fact are supported by competent, substantial evidence in the record; however, the lack of relevance of such findings as relates to the testing of mandatories is noted in paragraph 7 above, and the hearing officers expression of his own opinion is noted in paragraph 4 above.

    
    

20. Digital Equipment Corporations twentieth exception is denied. The findings of fact are supported by competent, substantial evidence in the record.

    
    

21. Digital Equipment Corporation s twenty-first exception is denied. The findings of fact are supported by competent, substantial evidence in the record; however, lack of relevance is noted in paragraph 6 above.

    
    

22. Digital Equipment Corporation s twenty-second exception is denied; however, lack of relevance of such finding of fact is addressed in paragraph 7 above.

23. Digital Equipment Corporation s twenty-third exception is denied. The Hearing Officers conclusions of law are rejected and other conclusions reached as stated above.

It is hereby noted that many of the exceptions raised by Digital Equipment Corporation to the Hearing Officers Recommended Order merely reiterate the position asserted before the Hearing Officer in support of the Department s decision to award to Digital Equipment Corporation. Oracle Complex Systems Corporation, however, presented competent, substantial evidence otherwise. We are statutorily precluded from rejecting findings of fact which are supported by competent, substantial evidence. Section 120.57(10), Florida Statutes.

Furthermore, the Hearing Officer often times resolved conflicting testimony in terms of witness credibility. Credibility of witnesses is a matter determined by the trier of fact, and it would be improper for this body to substitute its judgment with respect thereto.

DONE AND ORDERED at Tallahassee, Leon County, Florida, this 30th day of January, 1992.

James T. Moore Exective Director

Department of Law Enforcement

P.O. Box 1489 Tallahassee, Florida

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF FDLE, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES.

Filed with the Clerk of the Department of Law Enforcement this 30th day of January, 1992.

COPIES FURNISHED:

W. Robert Vezina, Esquire Mary M. Piccard, Esquire

CUMMINGS, LAWRENCE & VEZINA, P.A.

P.O. Box 589

Tallahassee, Florida 32302

Paul J. Martin, Esquire Department of Legal Affairs The Capitol-Suite 1501

Tallahassee, Florida 32399-1050

Rodney E. Gaddy, Esquire Judith D. Landis, Esquire Department of Law Enforcement

P.O. Box 1489

Tallahassee, Florida 32302

Terrell C. Madigan, Esquire PAPY, WEISSENBORN & PAPY

P.O. Box 1761

Tallahassee, Florida 32302

Robert S. Cohen, Esquire HABEN, CULPEPPER, ET AT.

P.O. Box 10095

Tallahassee, Florida 32302

Docket for Case No: 91-004468BID

Orders for Case No: 91-004468BID