STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STORAGE TECHNOLOGY CORPORATION, )
)
Petitioner, )
)
)
) DEPARTMENT OF HEALTH AND REHABILITATIVE )
SERVICES, ) CASE NO. 92-0977BID
)
Respondent, )
)
and )
)
UNISYS CORPORATION, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on March 3, 1992, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: F. Perry Odom
Melissa Fletcher Allaman Attorneys at Law
ERVIN, VARN, JACOBS, ODOM & ERVIN
Post Office Drawer 1100 Tallahassee, Florida 32302
For Respondent: Peter A. Lewis
HRS Assistant General Counsel 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
For Intervenor: W. Robert Vezina, III
Mary M. Piccard Attorneys at Law
CUMMINGS, LAWRENCE & VEZINA PA
Post Office Box 589
Tallahassee, Florida 32302-0589 STATEMENT OF ISSUES
The ultimate issue is whether Unisys Corporation's bid on Invitation to Bid (ITB) 92-18BC is the lowest responsive bid and is therefore entitled to the award.
PRELIMINARY STATEMENT
Petitioner, Storage Technology Corporation (StorageTek), presented the testimony of Lawrence P. Smith, Edward F. O'Brien, and Thomas Johnson and had Petitioner's Exhibits 0-3 and 5-8 admitted in evidence.
Respondent, Department of Health and Rehabilitative Services (HRS), presented the testimony of Karin L. Morris and Ernie Joe Duggar. Intervenor, Unisys Corporation (Unisys) presented the testimony of Fred J. Taylor, Ernie Joe Duggar, and John Thompson and submitted the testimony of Marilyn VanDusseldorp by deposition introduced as Unisys Exhibit 1. Joint Exhibits 1-8 were also admitted in evidence.
The transcript of the proceedings was filed on March 6, 1992. The parties timely filed their proposed findings of fact and conclusions of law on March 16, 1992. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
On, or about, November 20, 1991, HRS released ITB 92-18BC. ITB 92-18BC was an invitation to bid on HRS' procurement of a data processing cartridge tape subsystem for Unisys computers.
Prior to the issuance of the ITB, HRS conducted a bidder's conference. The bidders' conference was attended by representatives of HRS, Unisys and StorageTek.
Vendor representatives at the bidders' conference were informed that HRS would "attempt to answer the questions in the best" possible manner. Vendors were also instructed that the answers received at the bidders'
conference were "not binding, are not official, and must be submitted in writing to receive an official answer."
Additionally, the ITB contains language stating that any questions concerning specifications or conditions were to be submitted in writing to HRS and that no interpretation shall be binding on HRS unless it is in writing.
StorageTek and Unisys submitted written questions pursuant to the above mentioned instructions.
The only relevant inquiry submitted by Unisys had to do with the requirement of "one (1) dual path controller with redundant paths for each string." Pursuant to Unisys' request, HRS modified that requirement to read "At least one (1) dual path controller with redundant paths for each string."
The only relevant written inquiry submitted by StorageTek is found on page 14 of the written inquiries of the ITB. The written inquiry by StorageTek asked whether HRS would consider the total automation through an RFP rather than only a small piece of total automation through an ITB. HRS responded negatively stating that the success of this ITB will be based on using current allocations to fund the change to cartridge tape.
Following the issuance of ITB 92-18BC, StorageTek filed a notice of intent to protest the specifications of the ITB. StorageTek never filed a
formal notice of protest and subsequently withdrew the notice of intent to protest the bid specifications.
The ITB as finally issued states its "Purpose" as "The purpose of this Invitation is to obtain competitive bid prices for a data processing cartridge tape subsystem, with installation components and maintenance, to be attached to Unisys A17-L and A15-I computers located at the HRS Technology Centre, 1940 North Monroe Street, Tallahassee, Florida."
The ITB also contains the following hardware "Quantities and Technical Specifications":
The following minimum specifications shall govern any equipment offered:
Twenty-eight (28) cartridge tape drives configured as follows:
One (1) string of sixteen (16) tape drives One (1) string of eight (8) tape drives One (1) string of four (4) tape drives
At least one (1) dual path controller with redundant paths for each string
In the General Conditions, the ITB states
Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision.
In bold print at the bottom of the "General Conditions" is found: "NOTE: ANY AND ALL SPECIAL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE."
The ITB also contains the following "Special Conditions":
The Office of Management Systems intends to acquire robotic tape units within 24 months to manage approximately 20,000 tapes. The future value of the cartridge tape drives toward this goal will be a consideration in this bid. If the purchased tape drives will directly attach to the robotic units then 100% of the value is maintained. However, if the tape drive unit must be replaced then a trade-in value must
be bid (see Cost Table). Auto load trays are considered part of the tape drive unit.
The Office of Management System also must be able to connect these tape drives to an IBM computer in the future. This capability is mandatory and must be stated with supporting documentation. The hardware/software to accomplish this goal is not part of this bid, but associated cost should be identified in the documentation provided.
The ITB also specified that "[t]he award will be made to the responsive bidder with the lowest bid price for 'Net Future Cost'."
Finally, the ITB contains the following pricing sheet formula for calculating cost, the blanks of which were to be completed by the bidder:
CARTRIDGE TAPE SUBSYSTEM COST $ Includes all costs for specified 28 cartridge tape drives . . . .
LESS TRADE-IN ALLOWANCE ( ) (see specified Bid Condition #5 and 13)
SUPPLIES
MAINTENANCE
NET COST
. . . .
. . . .
FUTURE VALUE OF TAPE EQUIPMENT
(See Notes A and B below) * ( )
NET FUTURE COST $ Note to Bidders: (A) If the tape drives directly attach to the robotics unit, the
future value of tape equipment shall equal to [sic] the amount entered for item 1 above.
(B) If the tape drives must be replaced in accordance with section 6 of this ITB, the amount entered will be the trade-in value of the equipment in October 1993.
HRS received two bids for ITB 92-18BC. The bids that were submitted were bids by StorageTek and Unisys.
The two bids were publicly opened at Winewood and transported to Management Systems for evaluation.
When the bids arrived at Management Systems they were evaluated by an evaluation team consisting of Joe Duggar, Marilyn VanDusseldorp and Dick Bradley.
The evaluation team concluded that both bids that were submitted were materially responsive to the ITB.
However, review of the StorageTek bid showed that StorageTek failed to subtract line six from line five on the bid pricing sheet and had placed a zero for the cost on line seven of the bid pricing sheet.
HRS reworked the numbers and entered a price on line seven in accordance with the mathematical requirements of the pricing sheet.
HRS corrected StorageTek's entry on line seven and found that StorageTek's bid for line seven was over $300,000.
Unisys' bid for line seven was for $243,454.
HRS concluded that Unisys was the lowest responsive bidder for ITB 92- 18BC.
As such, Management Systems reported these findings to Secretary Robert B. Williams, Secretary, Department of Health and Services, on January 2, 1992.
After, reviewing the Unisys bid, StorageTek raised concerns about whether the Unisys bid satisfied the mandatory requirements of the ITB.
StorageTek was concerned with whether Unisys had met the requirement of "At least one dual path controller with redundant paths for each string."
Larry Smith, an employee of StorageTek, contacted Tom Johnson, Assistant Deputy Secretary for Management Systems, about the contents of the Unisys bid.
Mr. Johnson, after listening to Larry Smith's concerns, asked Marilyn VanDusseldorp to check into StorageTek's allegations. Ms. VanDusseldorp and Mr. Duggar met with Mr. Greg Priest and Mr. John Thompson of the Unisys Corporation.
Mr. Priest and Mr. Thompson went over the bid with the HRS evaluators.
At this meeting, a conversation took place about the number of controllers that StorageTek and Unisys had bid and the cross coupling cables between those controllers. Unisys informed HRS that if HRS wanted that cable for strings B and C, Unisys could make that cable available at no additional charge. However, HRS would not avail itself of this crosscabling until after the acceptance period for the hardware as bid. The ability to cross cable strings B and C is not a requirement of or part of this ITB.
Ms. VanDusseldorp and Mr. Duggar were convinced that they understood the Unisys bid and their original understanding of the Unisys bid's responsiveness did not change because of these conversations. Ms. VanDusseldorp reported back to Tom Johnson that the allegations by StorageTek were unfounded and that Unisys was responsive as bid in Unisys' response to the ITB.
HRS awarded the bid to Unisys on January 16, 1992.
StorageTek filed a timely notice of protest and formal written protest. As framed by StorageTek's amended formal written protest and the parties' Prehearing Stipulation, StorageTek contended that the award to Unisys was improper because:
Unisys did not meet the requirement of providing "at least one dual path controller with redundant paths for each string";
Unisys allegedly failed to prove equipment capable of connecting the tape drives to an IBM computer without the loss of redundant paths; and
Unisys allegedly failed to accurately represent net future costs.
DISPUTED TECHNICAL REQUIREMENTS
At Least One Dual Path Controller With Redundant Paths for Each String
The ITB contained the following pertinent hardware requirements: Quantities and technical specifications:
The following minimum specifications shall
govern any equipment offered:
(28) Cartridge tape drives configured as
follows:
One (1) string of sixteen (16) tape drives One (1) string of eight (8) tape drives One (1) string of four (4) tape drives
At least one (1) dual path controller with redundant paths for each string
. . .
StorageTek bid equipment to provide two controllers for string A, two controllers for string B and two controllers for string C.
Unisys bid two controllers for string A, one controller for string B and one controller for string C.
StorageTek interpreted the requirement "at least one dual path controller with redundant paths for each string" as calling for dual or redundant controllers and complete redundancy from the mainframe or host computers to the tape drives.
StorageTek's interpretation is contrary to the plain language of the specification and the common usage in the industry.
In determining the common usage in the industry, the testimony of Dr. Fred J. Taylor is given great weight. He is an expert in configuration and design of I/O subsystems. He is an independent expert in that he is not an employee of any party and he had no involvement in the bid proceedings.
A "path" is an unidirectional connection between two points. The word "path" has a different meaning depending on whether it is being used in reference to software or hardware. In the software context a "logical path" is the artificial path which exists only within the software configuration. The "physical path" is a hardware path along which information is actually communicated. It is the wires themselves.
ITB 92-18BC is seeking a hardware system, not a software system. Therefore, the requirement of "[a]t least one dual path controller with redundant paths" relates only to the physical connection path. It refers only to the physical path (the wires) between the host computer (the A15 and A17) and the controller.
Each controller can control only eight tape drives. Therefore, for string A, two controllers are needed. For Strings B and C, only one controller is required as long as it has two physical paths between the host and the controller and two other redundant physical paths between the same points.
The term "redundant" given both its common English language usage and its usage in the industry means "duplicate," "copy," "alternate," or "more than one of that thing."
The three string configurations bid by Unisys are responsive to the requirements of the ITB because each string contains dual paths between the host and the controller and each contains redundant paths for each of the requisite dual paths.
StorageTek claimed to have asked HRS at the prebid conference and later in a telephone conference with Tom Johnson, Assistant Deputy Secretary for
Management Systems, whether HRS intended to require two controllers per string. The evidence does not support this claim.
StorageTek also claimed to have orally questioned whether the purpose of requiring at least one dual path controller with redundant paths for each string was to provide for simultaneous data transfers. Again, the competent, substantial, credible evidence does not support this claim.
StorageTek did not put any such questions in writing.
The ITB provided and StorageTek understood that changes or clarifications to the contract were not binding unless in writing.
Nothing in the ITB required each string of tape drives to contain two controllers.
Nothing in the ITB required that each string be capable of processing simultaneous data transfers.
Nothing in the ITB required complete redundancy from the host computers to the tape drives.
Capability to Connect Tape Drives to an IBM Computer in the Future
The ITB contained the following special condition:
The office of management systems also must be able to connect these tape drives to an IBM computer in the future. This capability is mandatory and must be stated with supporting documentation. The hardware/software to accomplish this goal is not part of this bid, but associated costs should be identified in the documentation provided.
StorageTek claimed that Unisys' bid was nonresponsive because it did not demonstrate that the subsystem as bid in its entirety was capable of attaching to an IBM computer without losing one of the redundant paths on string B and string C.
Nothing in the ITB required the bidders to demonstrate that the subsystem as bid could attach to an IBM computer without losing one of its redundant paths. To the contrary, the specification was specifically limited to demonstrating the capability of connecting the underlying tape drives to an IBM computer in the future.
The purpose of the requirement for demonstrating the capability to attach to an IBM computer was to insure that the tape drives retained some value in the future if HRS no longer used the equipment to attach to the Unisys A series computer.
Unisys' bid demonstrated it was capable of attaching the tape drives to an IBM computer and therefore the bid was responsive.
NET FUTURE COST
The ITB provided that the contract would be awarded to the bidder with the lowest dollar amount for "net future cost."
Net future cost was the descriptive term for line item 7 on the ITB pricing information sheet (the pricing sheet).
The ITB pricing sheet is set forth in Findings of Fact 14 above.
The bidders were to insert the appropriate amount on each line, adding or subtracting as indicated by the presence or absence of parentheses.
Unisys and StorageTek both filled out the pricing sheet appropriately with respect to line items 1-6.
On line item 7, Unisys entered the difference between line item 5 and line item 6. This resulted in a figure of $243,454.00. StorageTek entered a zero on line item 7.
The clear meaning of the pricing sheet was that line item 7 would be the difference between line item 6 and line item 5.
StorageTek inserted on line item 7 its proposed cost to HRS in the future to attach the cartridge tape drives bid by StorageTek to robotic units.
Line item 2 required bidders to enter one of two numbers. If the bidders' cartridge tapes would be capable of directly attaching to robotic units, the bidder was given a 100% credit for the present cost of the cartridge tapes on the pricing sheet.
If the bidders' cartridge tapes would not be capable of directly attaching to robotic units, the bidder was required to insert on line item 2 the amount of the trade-in value the bidder would provide in the future in order to attach to robotic units.
Under StorageTek's asserted interpretation of the pricing sheet, there would have been no difference between the information provided on line item 2 and the information provided on line item 7 because, as submitted by StorageTek, the substance of the information provided on both line 2 and line 7 was that there would be no additional change to HRS to attach the StorageTek cartridge tape drives to robotic units.
Under StorageTek's asserted interpretation of the requirements of the pricing sheet, the amount of money being expended by HRS today would have had no bearing on the award of the contract. If StorageTek's bid on line item 5 -- the net cost to HRS today -- had been $10 million or $100 million, under StorageTek's theory it still would have been entitled to award of the contract because it would charge zero dollars in the future to attach the tape drives to robotic units. Such an interpretation is both illogical and unreasonable.
The ITB did not define net future cost as the cost of attaching the cartridge tape drives to robotic units in the future.
During the prebid conference, Larry Smith, the account representative for StorageTek, questioned Karin Morris, the HRS contract administrator for the ITB.
Larry Smith suggested to HRS that the cost of attaching to the robotic units "was being totally ignored in this ITB."
Karin Morris advised Larry Smith to put his concerns in writing.
StorageTek did put its concern in writing requesting HRS to reconsider this acquisition by issuing an RFP (request for proposals) which would include consideration of the cost of converting to automation (robotics).
HRS' response to StorageTek's written question was "No. The success of this ITB will be based on using current allocations to fund the charge to cartridge tape. No new appropriations have been requested for this acquisition."
Larry Smith testified that he objected to the ITB because it ignored the cost of attaching to robotics, yet he inserted zero on line 7 because he understood net future costs to be the cost of attaching to robotics.
The response of HRS to StorageTek's written question no. 11 unequivocally stated that the ITB would be awarded based on current allocations.
HRS properly concluded that StorageTek deviated from the bid requirements by placing a zero on line 7.
HRS properly waived the irregularity in StorageTek's bid regarding the line item 7 and recalculated StorageTek's pricing sheet to comport with the pricing sheet requirements by subtracting line six from line five to arrive at the net future cost in line 7.
After recalculating StorageTek's pricing sheet, HRS correctly found that Unisys submitted lower dollar amounts on line item 5 and line item 7.
ULTIMATE FACTS
Unisys' bid was responsive to the ITB in all material respects.
Unisys' bid was the lowest bid.
Unisys' bid was the lowest responsive bid and should be awarded the contract.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.53(5), Florida Statutes.
The Petitioner, StorageTek has the burden of proving by a preponderance of the evidence that the relief sought in the Petition for formal hearing should be granted.
The scope of the inquiry is set forth in Section 287.057(1), Florida Statutes (1991), pursuant to which this ITB was issued:
The contract shall be awarded . . . to the qualified and responsive bidder who submits the lowest responsive bid. This bid must be determined in writing to meet the requirements
and criteria set forth in the invitation to bid.
HRS and Unisys assert that the scope of inquiry is limited to that set forth in Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla.
1988), where that court said that the "scope of inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly."
The abuse of discretion standard of review set forth in Groves-Watkins is not applicable in this case. In Groves-Watkins, the agency exercised its discretion in deciding to reject all bids in a bid let pursuant to Chapter 337, Florida Statutes. In this case, the issue involved is whether the bid of Unisys is unresponsive to the ITB such that HRS' acceptance of that bid as responsive was incorrect. Since the acceptance of a bid which is not materially responsive to the ITB would be unlawful, HRS in this case is not exercising its discretion in finding the bid of Unisys responsive. Therefore, there is no issue concerning the exercise of its discretion so as to require the application of the Groves-Watkins standard of review.
However, being mindful of the position of HRS in issuing the final order in Lanier Voice Products v. Department of Health and Rehabilitative Services, 13 F.A.L.R. 3319 (Fla. Dept. of Health & Rehabilitative Services, March 29, 1991), in which HRS rejected the standard of review imposed in that case and, instead, adopted the abuse of discretion standard of Groves-Watkins, the Groves-Watkins standard of review will be applied, in the alternative, to the facts herein.
Public agencies and authorities have the responsibility of preparing and disseminating clear and precise bidding specifications and instructions. Aurora Pump, Div. of Gen. Signal Corp. v. Goulds Pumps, Inc., 424 So.2d 70 (Fla. 1st DCA 1982); ERM-South v. State of Florida Department of Environmental Regulation, 10 F.A.L.R. 3151 (Fla. Department of Environmental. Regulation May 24, 1983). The reasons for this are to secure fair competition upon equal terms to all bidders; to remove temptation for favoritism and fraud at the public expense; and to protect the public from collusive contracts. Aurora Pump, 424 So.2d at 75. If there is ambiguity in the specifications or instructions, the ambiguity should be resolved against the agency. ERM-South, 10 F.A.L.R. at
3169-70.
However, where no such ambiguity is proven, the agency has wide discretion in soliciting and accepting bids and its interpretation of its own bid specifications is entitled to great weight.
In applying either standard, it can only be concluded that Unisys is the lowest responsive bidder. While the language "[a]t least one dual path controller with redundant paths for each string" is open to some interpretation, the preponderance of the evidence showed that the interpretation assigned by HRS is both logical and reasonable. Under that interpretation, both bidders were responsive even though each bid different configurations for strings B and C.
Additionally, StorageTek was simply incorrect when it interpreted the ITB to require the capacity to connect to an IBM computer in the future without losing the redundancy required in the present. These two separate requirements are mutually exclusive in the ITB. The ITB did not require such a capacity in the future without losing redundancy in the present. Current capability is unrelated to future capacity.
Finally, StorageTek's unsupported and incorrect interpretation of and calculation in the pricing sheet for item 7, Net Future Cost, is actually contrary to the ITB, especially in light of HRS' written response to
StorageTek's written question about consideration of the future cost of going to robotics in awarding this bid. Both the ITB and HRS made it clear to StorageTek that the future cost of going to robotics was not to be considered in the award on ITB 92-18BC. Additionally, the pricing sheet clearly required simple mathematic calculations. It is commonly understood that in a list of calculations, items contained within parentheses are to be subtracted and items not in parentheses are to be added. StorageTek's insertion of $0 in line 7 is simply not responsive and does not perform the required calculation of subtracting line six from line five to determine Net Future Cost in line 7.
HRS correctly recalculated StorageTek's bid to arrive at the correct figure on line 7 for Net Future Cost. StorageTek's Net Future Cost was in excess of $300,000. Unisys' Net Future Cost on line 7 was $243,454.
Unisys was the lowest bidder and was a responsive bidder. Accordingly, Unisys is entitled to the award for ITB 92-18BC.
As a final matter, Unisys filed a motion for an award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes, which authorizes such an award only when a pleading or other paper is filed for an "improper purpose, such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation." While the positions asserted by StorageTek have been debatable and have not been sustained herein, it cannot be concluded that StorageTek availed itself of its statutory point of entry for a purpose that was improper or frivolous or to needlessly increase the cost of litigation. Accordingly, the motion for attorney's fees and cost in DENIED and that denial is made a part of this Recommended Order.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter
a Final Order therein:
Determine Unisys to be the lowest responsive bidder pursuant to Section 287.057(1).
Award the bid for ITB 92-18BC to Unisys.
DONE and ENTERED this 31st day of March, 1992, in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
APPENDIX TO THE RECOMMENDED ORDER
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact
Submitted by Petitioner, Storage Technology Corporation
1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2-7(9-14); and 34(43).
2. Proposed findings of fact 8-10, 52-54, 93, 103, 111, 112, 122, 134,
135, 141, 145, 146, 148, 156, and 158 are subordinate to the facts actually found in this Recommended Order.
3. Proposed findings of fact 11-21, 29-32, 39, 40, 47-51, 91, 92, 104-107,
110, 123-129, 131, 132, 136-140, 142, 143, 149, 150, 152, and 153 are irrelevant
to the resolution of the issues raised in this case.
4. Proposed findings of fact 22-28, 35-38, 41-43, 55-76, and 113-121 are mere summaries of testimony and to the extent that factual matters recited in them are reflected in the Findings of Fact herein, they are subordinate to those Facts.
5. Proposed findings of fact 33, 44-46, 77-79, 94, 98, 102, 108, 109, 130,
133, 144, 147, 151, 154, 155, 157, 159, and 160 are unsupported by the credible, competent and substantial evidence.
6. Proposed findings of fact 80-90, 95-97, and 99-101 are unnecessary in light of the Findings of Fact and issues herein.
Specific Rulings on Proposed Findings of Fact
Submitted by Respondent, Department of Health and Rehabilitative Services
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-8(1-8); 9-26(15-32); 27(34); 28(41); 29(43); 30(50); 35(52); 37(57); 38(58); 39(63); 40(62); 41(77); 42(78); and 43(82).
Proposed findings of fact 31-34 and 36 are subordinate to the facts actually found in this Recommended Order.
Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Unisys Corporation
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(57); 2(58); 3(14&59);
4-23(60-79); 29-33(34-38); 34-40(45-51); 41(41); 43(44); and 45-49(52-56).
Proposed findings of fact 24-28, 42, and 44 are subordinate to the facts actually found in this Recommended Order.
COPIES FURNISHED:
F. Perry Odom
Melissa Fletcher Allaman Attorneys at Law
Ervin, Varn, Jacobs, Odom & Ervin
305 South Gadsden Street Post Office Drawer 1170 Tallahassee, Florida 32302
Peter A. Lewis
Assistant General Counsel
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Building one, Room 407 Tallahassee, Florida 32399-0700
W. Robert Vezina, III Mary M. Piccard Attorneys at Law
Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive
Post Office Box 589
Tallahassee, Florida 32302-0589
Robert B. Williams, Secretary
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Slye General Counsel
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Sam Power, Agency Clerk
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
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 HEALTH AND REHABILITATIVE SERVICE
STORAGE TECHNOLOGY CORPORATION,
Petitioner, CASE NO.: 92-0977BID RENDITION NO.: HRS-92-88-FOF-BID
vs.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent
and
UNISYS CORPORATION,
Intervenor.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of the Recommended Order is attached hereto.
FINDINGS OF FACT
The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:
The Hearing Officer's responsibility in a bid protest proceeding is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly. Moore vs. State, 1st DCA Case Number 91-1757, opinion dated April 2, 1992.
Based upon the foregoing, it is
ADJUDGED, that the bid protest filed by petitioner, Storage Technology Corporation be rejected. Unisys Corporation's bid for ITB 92-18BC is accepted.
DONE and ORDERED this 21st Tallahassee, Florida.
day of April , 1992, in
Robert B. Williams Secretary
Department of Health and Rehabilitative Services
by Deputy Secretary for Administration
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE
DISTRICT-A WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
Copies furnished to:
Peter A. Lewis, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700
F. Perry Odom, Esquire
Melissa Fletcher Allaman, Esquire ERVIN, VARN, JACOBS, ODOM & ERVIN
Post Office Drawer 1100 Tallahassee, FL 32302
W. Robert Vezina, III, Esquire Mary M. Piccard, Esquire
CUMMINGS, LAWRENCE & VEZINA, P. A.
Post Office Box 589 Tallahassee, FL 32302-0589
Diane K. Kiesling Hearing Officer
DOAH, The DeSoto Building 1230 Apalachee Parkway
Tallahassee, FL 32399-1550
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U. S. Mail this 23 day of Apr , 1992.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 (904)488-2381
| Issue Date | Proceedings |
|---|---|
| Apr. 22, 1992 | Final Order filed. |
| Apr. 20, 1992 | Unisys' Response to Notice of Ex Parte Communication filed. |
| Mar. 31, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 3-3-92. |
| Mar. 27, 1992 | Petitioner`s Memorandum in Opposition to Unisys`s Motion for Attorney`s Fees filed. |
| Mar. 16, 1992 | (Unisys) Notice of Filing Proposed Order Awarding Fees and Expenses; Proposed Order Awarding Fees and Expenses (for Hearing Officer signature) filed. |
| Mar. 16, 1992 | (Unisys) Proposed Recommended Order filed. |
| Mar. 16, 1992 | Proposed Recommended Order filed. |
| Mar. 16, 1992 | (Respondent) Notice of Filing filed. |
| Mar. 16, 1992 | (Proposed) Recommended Order (unsigned) w/Notice of Filing Proposed Recommended Order filed. (From F. Perry Odom & Melissa F. Allaman) |
| Mar. 16, 1992 | Order On Motion To Compel sent out. (moot) |
| Mar. 13, 1992 | Petitioner`s Renewed Motion to Compel Production of Documents and for an Order Leaving the Record Open With Respect to Such Documents filed. |
| Mar. 06, 1992 | Transcript (Vols 1&2) filed. |
| Mar. 03, 1992 | CASE STATUS: Hearing Held. |
| Mar. 03, 1992 | Transcript (hearing on pending motions) filed. |
| Mar. 02, 1992 | Petitioner`s Motion to Compel Production of Documents w/Exhibit A-D filed. |
| Mar. 02, 1992 | Petitioner`s Notice of Hearing on Motion in Limine and Motion to Strike; Petitioner`s Response to Request for Production of Documents by Unisys Corporation; Petitioner`s Motion in Limine and Motion to Strike w/Exhibits A-I filed. |
| Mar. 02, 1992 | (joint) Prehearing Stipulation filed. |
| Feb. 28, 1992 | Petitioner`s Amended Notice of Taking Deposition filed. |
| Feb. 28, 1992 | Petitioner`s Notice of Filing Amendments to Respondent`s Answers to Petitioner`s First Set of Interrogatories w/Amendments to Respondent`s Answers to Petitioner`s First Set of Interrogatories; Petitioner`s Notice of Taking Deposit ion filed. |
| Feb. 28, 1992 | Ltr. to DKK from M. Allaman; Intervenor's Response to Request for Production of Documents filed. |
| Feb. 27, 1992 | Intervenor's Response to Protest, Motion to Dismiss and Motion for Attorney's Fees filed. |
| Feb. 27, 1992 | (Petitioner) Expert Witness List filed. |
| Feb. 27, 1992 | Intervenor's Response to Request for Production of Documents filed. |
| Feb. 26, 1992 | Joint Motion for Protective Order filed. |
| Feb. 26, 1992 | Request for Production of Documents filed. |
| Feb. 26, 1992 | Petitioner`s First Set of Interrogs. to Respondent filed. |
| Feb. 26, 1992 | Petitioner`s Notice of Filing Answers to Interrogs filed. |
| Feb. 25, 1992 | Petitioner`s First Set of Interrogatories to Invention; Notice of Serving Answers to Petitioner`s First Set of Interrogatories to Intervenor filed. |
| Feb. 25, 1992 | Notice of Service of Answers to Petitioner`s First Set of Interrogatories filed. |
| Feb. 25, 1992 | Petitioner`s Notice of Taking Deposition filed. |
| Feb. 25, 1992 | Petitioner`s Notice of Taking Deposition filed. |
| Feb. 24, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for March 3, 1992; 9:00am; Tallahassee). |
| Feb. 21, 1992 | Petitioner`s Motion for Continuance filed. |
| Feb. 20, 1992 | Notice of Propounding Petitioner`s First Set of Interrogatories to Intervenor; Petitioner`s First Request to Respondent to Produce Documents; Petitioner`s First Request to Intervenor to Produce Documents filed. |
| Feb. 20, 1992 | Notice of Propounding Petitioner`s First Set of Interrogatories to Respondent filed. |
| Feb. 18, 1992 | (Petitioner) Response in Opposition to Petitioner`s Motion to Strike filed. |
| Feb. 14, 1992 | Pre Hearing Order sent out. |
| Feb. 14, 1992 | Notice of Hearing sent out. (hearing set for 2-28-92; 9:00am; Tallahassee) |
| Feb. 14, 1992 | Petitioners` Notice of Filing Opposition to Petition to Intervene Filed By Unisys Corporation and Motion to Strike filed. |
| Feb. 13, 1992 | Notice of Referral and Notice to Bidders; Amended Formal Written Protest and Request for Formal Administrative Hearing; (Unisys Corp) Petition to Intervene filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 21, 1992 | Agency Final Order | |
| Mar. 31, 1992 | Recommended Order | Where no ambiguity is shown in the Invitation To Bid, agency has wide discretion in interpreting specs, as long as reasonable and logical. |
