STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL DATA PRODUCTS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-0534BID

) STATE OF FLORIDA, DEPARTMENT ) OF MANAGEMENT SERVICES, DIVISION ) OF PURCHASING, )

)

Respondent, )

)

and )

)

MON-WAL, INC., d/b/a )

THE WALDEC GROUP, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on February 12 and 16, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner, Brian M. Nugent, Esquire National Data C. Timothy Gray, Esquire Products, Inc.: Katz, Kutter, Haigler, Alderman,

Davis & Marks, P.A. Highpointe Center, Suite 1200

106 East College Avenue Tallahassee, Florida 32302

For Respondent, O. Earl Black, Jr., Esquire Department of Office of General Counsel Management Department of Management Services Services, Knight Building, Suite 309 Division of Koger Executive Center Purchasing: 2737 Centerview Drive

Tallahassee, Florida 32399-0950

For Intervenor, Edward S. Stafman, Esquire Mon-Wal, Inc.: 318 North Calhoun Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue in this proceeding is whether the decision of the Department of Management Services (Department) to reject the bid of National Data Products, Inc. (NDP), as non-responsive departed from the essential requirements of law.

PRELIMINARY STATEMENT

These proceedings arose as a result of an invitation to bid (ITB) issued by the Department on December 4, 1992, for microcomputers and optional components. Following its review of the bids, the Department, on December 21, 1992, posted its bid tabulation which reflected its decision to reject the bid of NDP as non- responsive, and to award the bid to Mon-Wal, Inc., d/b/a The Waldec Group (Waldec) as the low responsive bidder.

On December 23, 1992, NDP filed a protest and on December 31, 1992, a formal written protest challenging the Department's rejection of its bid as non- responsive because, according to the Department, it failed to include current manufacturer's suggested retail price lists with its bid. Here, NDP contends that such price lists were attached to its bid when it was delivered to the Department or, alternatively, if not attached, such omission was a minor irregularity which should be waived. If established, as alleged, NDP would be the apparent low responsive bidder.

At hearing, NDP called Jacqueline Smith, Kyle Peterson, and Douglas Melvin as witnesses, and its exhibits 1, 2 and 4 were received into evidence. The Department called Douglas Gillis, Barbara Thompson, Marvin Williams, Kelly Sanders, Douglas Melvin, and H. P. Barker, Jr., as witnesses, and its exhibits

1. , 7A, 7B, 7C, 8, 9, 11 and 12 were received into evidence. Waldec's exhibits

   1, 2, 3 and 4 were received into evidence. 1/

   
   

   The transcript of hearing was filed March 3, 1993, and the parties were granted leave until March 15, 1993, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   Background

   
   

   1. On December 4, 1992, the Department of Management Services (Department) issued Invitation to Bid number 79-250-040-B REBID (hereinafter "the ITB") to establish a contract whereby eligible users could purchase microcomputers and optional components during the period of January 15, 1993, through October 31, 1993.

      
      

   2. The deadline for submitting sealed bids in response to the ITB was established as 2:00 p.m., December 16, 1992. At the time of the deadline, the Department received a number of bids, including those of petitioner, National Data Products, Inc. (NDP), and intervenor, Mon-Wal, Inc., d/b/a the Waldec Group (Waldec).

      
      

   3. On December 21, 1992, following its evaluation of the bids, the Department posted its bid tabulation. The bid tabulation indicated, inter alia, that, although NDP was the apparent low bidder, its bid had been rejected as

      non-responsive, and that Waldec was declared the low responsive bidder.

      Pertinent to this case, the predicate for the Department's rejection of NDP's bid was its conclusion that NDP had failed to include, as required by the ITB, the manufacturer's suggested retail price lists with its bid.

      
      

   4. NDP filed a timely notice of protest and formal written protest to contest the Department's decision. Such protest contended that the manufacturer's suggested retail price lists were included with its bid or, alternatively, that had they not been submitted, such oversight was a minor irregularity that should be waived.

      
      

      The Invitation to Bid

      
      

   5. The stated purpose of the ITB was to establish pricing for the purchase of microcomputers and optional components to be added to an existing contract for use by all State of Florida agencies and other eligible users.

      Specifically, the ITB invited bids for three separate product lines, Hewlett Packard, NCR and Zenith, and a bidder could respond with regard to one or more of the product lines. This bid protest relates only to that portion of the ITB regarding the Hewlett Packard (HP) product line.

      
      

   6. The ITB, apart from specifying the HP product line, did not identify any particular HP product or volume. Rather, the ITB sought to establish pricing by requiring each bidder to specify a percentage discount off the manufacturer's suggested retail price of all HP microcomputer systems and peripheral products.

      
      

   7. Pertinent to this case, the general conditions of the ITB provided:

      
      

      9. AWARDS: As the best interest of the State may require, the right is reserved . . . to reject any and all bids or waive any minor irregularity or technicality in bids received.

      * * *

      15. PRICE ADJUSTMENTS: Any price decrease effectuated during the contract period by reason of market change shall be passed on to the State of Florida . . . Price increases are not acceptable.

      * * *

      24. THE SUCCESSFUL BIDDER(S) MUST PROVIDE: A copy of any product literature and price list, in excellent quality black image or white paper, or on 4 x reduction microfiche,

      suitable for duplication (120 lines resolution or better).

      * * * NOTE:

      ANY AND ALL SPECIAL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE. . . .

      And, the ITB contained the following special conditions:

      
      

      LITERATURE DISTRIBUTION

      Successful bidder shall be required to furnish State agencies and political subdivisions with price lists, (printed) descriptive literature and technical data service information for items awarded. Bidders are urged to reserve approximately 1,500 price lists for this purpose.

      * * * PRICE DISCOUNT SCHEDULE

      Bidders of brand name microcomputer systems and optional components, shall complete the price discount schedule in the format provided. The following information will be included: a copy of the Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the "date mailed" as shown on the ITB and the Bid opening date), number and date, bid discount for microcomputer configured systems, bid discount for optional components not purchased as part of a microcomputer system. Separate bid discounts for government and education are requested, however education bid discounts must be greater than government bid discounts, for a separate award to be made.

      (See EVALUATION and AWARD paragraph, page 16, for evaluation and award criteria.)

      
      

      PRICING

      The discount offered and awarded shall remain firm for any product placed on the contract resulting from this bid, or for products added to the contract at a later date through revision to the contract.

      * * *

      MANUFACTURER'S SUGGESTED RETAIL PRICE CHANGES

      When the list prices for products on the contract are reduced, the contractor shall submit new prices which reflect the same percentage off list price as was originally bid. When the contractor cannot continue to offer products at the contracted discount due to a general change in the manufacturer's pricing policy or other valid reasons, the State shall determine whether to allow the product line to remain on contract. The contractor shall provide to the Division of Purchasing, documentation to justify why the product line can no longer be offered at the contracted discount. The determination to allow the product line to remain on contract and under what conditions shall be at the discretion of the Division of Purchasing in

      the best interest of the State. In no instance may the new pricing result in an increase in net prices.

      
      

      Reductions in price shall be effective upon receipt of written notification to the Division of Purchasing and shall remain in effect for the balance of the contract term, unless further reduced by the contractor. In the event that the contractor announces a price reduction on any equipment listed on the contract prior to the purchaser's acceptance of said equipment, such price reduction shall be made available to the purchaser.

      * * *

      FORMAT FOR SUBMISSION OF BID PRICE SHEETS

      Referenced Price Lists, Ordering Instructions, Dealer Lists and Locations or Service Locations, required in this bid, must be submitted in hard copy with the bid package.

      Also provide with the bid package or within ten (10) working days after notification the identical information, in WordPerfect 5.1 format, portrait orientation with minimum 0.5 inch margins, Courier 10 pitch font, in hard copy and on 3.5 or 5.25 diskette media.

      
      

      Failure to comply will result in your contract being withheld from distribution.

      
      

      EVALUATION AND AWARD

      Bids will be evaluated as follows:

      1. Government and Education bids will be evaluated and awarded separately.

      2. The percentage (%) discount bid for each brand name, for each category (configured microcomputer systems and optional components), will be multiplied by an applicable usage factor, (the projected percentage purchases from each category) to be stated at the time of the bid opening, which will yield a weighted discount.

      3. The weighted discounts of the two categories will be added to yield the total weighted discount on which an award will be made.

      4. Awards will be made separately for Government, and Education (if applicable), to the responsive bidder offering the greatest total weighted discount.

      
      

      EVALUATION FORMULA

      (Micro (%) discount (x) usage factor) (+) plus (option components (%) discount (x) usage factor) = total evaluation (%) discount.

      * * *

      MICROCOMPUTERS AND OPTIONAL COMPONENTS PRICE DISCOUNT SCHEDULE

      
      

      GOVERNMENT EDUCATION

      Manufacturers MICROS OPTIONS MICROS OPTIONS Brand Name Catalog Date %DISCOUNT %DISCOUNT %DISCOUNT %DISCOUNT

      
      

      HEWLETT PACKARD	1(A)	(B)	(C) -NA-	(D) -NA-
      NCR	2(A)	(B)	(C)	(D)
      ZENITH	3(A)	(B)	(C)	(D)

      MSPR: Manufacturer's Suggested Retail Price from which discounts will be taken.

      Micros: Percentage discount for microcomputer systems.

      Options: Percentage discount for optional components when purchased Separately, not as a part of a microcomputer system.

      
      

      Responses to the ITB

      
      

   8. The price discount schedules submitted on behalf on NDP and Waldec were virtually identical except for the discounts offered. Each specified the HP catalog of October 1992 as containing the manufacturer's suggested retail price for personal computer products and the HP catalog of November 1992 for peripheral products from which percentage discounts would be taken for microcomputer systems and optional components. As to discounts, NDP bid 32.02% for microcomputer systems and 38.05% for optional components, and Waldec bid 25.90% for microcomputer systems and 39.92% for optional components.

      
      

   9. Following the bid opening, at which the bids were announced and tabulated, the bid documents were transported to the office of a Department purchasing specialist charged with the responsibility of evaluating the bids. Applying the evaluation criteria established by the ITB, NDP was calculated to be the apparent low bidder; however, because NDP's bid failed to include the MSRP lists, when examined by the specialist, it was declared non-responsive.

      The bid of Waldec, which scored second under the evaluation criteria, was found to include copies of the MSRP list referenced in its price discount schedule and was declared the low responsive bidder.

      
      

      The Manufacturer's Suggested Retail Price (MSRP) List

      
      

   10. With regard to Hewlett Packard, and ostensibly all manufacturers, there is only one manufacturer's suggested retail price (MSRP) at any given time. That price may be established by reference to the MSRP list published by the company, as well as any addenda that may be pertinent.

       
       

   11. Hewlett Packard publishes separate MSRP lists for personal computer products and peripheral products at 90 day intervals and updates those lists on a monthly basis, as needed, through addenda, its "In Touch" publication, and "The Hewlett-Packard News Network." Each method used by HP to update its quarterly MSRP list is expected to provide identical information, and each is considered an addendum to its quarterly MSRP list from which the current MSRP can be derived. 2/

       
       

   12. Here, the proof demonstrates that the "Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the `date mailed' as shown on the ITB and the Bid opening date)" which the ITB directed should be included with the bid, was the HP quarterly MSRP list

       of October 1992 for personal computer products, the HP quarterly MSRP list of November 1992 for peripheral products, and an addendum effective December 1, 1992 (whether by addenda, "In Touch" or "The Hewlett-Packard News Network"), for personal computer products.

       
       

   13. NDP contends that included with its bid were copies of the October 1992 and November 1992 MSRP lists for personal computer products and peripheral products, respectively, and a copy of the December 1, 1992, "In Touch" newsletter. The parties have stipulated that if NDP's bid included such documents it was responsive to the ITB. Compared with NDP's averred response, Waldec's bid included a copy of the October 1992 MSRP list for personal computer products and the November 1992 MSRP list for peripheral products, but no addenda to reflect price changes affecting personal computer products through the bid opening date. Notwithstanding, the Department has found Waldec's bid responsive. Such finding, discussed more fully infra, mitigates against the Department's contention that any failure to include MSRP lists with the bid constitutes a material deviation.

       
       

       The missing price lists

       
       

   14. To support its position that its bid included the HP MSRP lists, NDP offered, inter alia, the testimony of Carol Hutchins, Kyle Peterson, and Jacqueline Smith. Ms. Hutchins is the government sales manager for NDP at its offices in Clearwater, Florida, and prepared NDP's bid. Mr. Peterson is the general manager of the Tallahassee branch office of NDP, and was responsible for delivering NDP's bid to the Department. Ms. Smith is employed in the Tallahassee branch office, and is engaged in government sales on behalf of NDP.

       
       

   15. The bid prepared on behalf of NDP by Ms. Hutchins ostensibly included a copy of HP's MSRP list of October 1992 for personal computer products, HP's MSRP list of November 1992 for peripheral products, and HP's "In Touch" newsletter for December 1992. This bid package, along with two blank copies of the price discount schedule (page 23 of the ITB) in case NDP decided to alter the discount it initially established in its bid before submittal, was shipped via Federal Express to Mr. Peterson at NDP's Tallahassee branch office.

       
       

   16. According to Mr. Peterson, the package was delivered to his office at or about 11:00 a.m., December 16, 1992, and placed on his desk. When he opened it, Mr. Peterson observed NDP's response to the ITB, as well as the MSRP lists heretofore discussed.

       
       

   17. Notwithstanding that the role of the Tallahassee branch was "very minor . . ., to act as courier for the bid and ensure that it was delivered in a timely manner," the bid package was disassembled at least twice within that office. First, Ms. Smith thought it would be a good idea to make a copy of the bid for their files, so she made a copy of NDP's bid, but not the MSRP lists. According to Ms. Smith, after making the copy she replaced the original bid on top of the MSRP lists on Mr. Peterson's desk. Second, NDP elected to change the discount rate it initially proposed so a new price discount schedule was typed by Mr. Peterson's staff, and he exchanged the new page for the old page in the bid document. Thereafter, according to Mr. Peterson, he inserted the bid package, including the price lists, into an envelope which he sealed and delivered to the Department shortly before the bid opening, to-wit: at 1:49 p.m., December 16, 1992.

   18. Both Mr. Peterson and Ms. Smith attended the bid opening and, at hearing, related what they recalled of the scene and procedures utilized. Regarding significant matters, their recitation of what occurred bore little resemblance to what actually transpired. For example, Mr. Peterson described the tenor of what occurred during the bid opening as one of confusion, when the more compelling proof demonstrates the contrary. Indeed, the two purchasing agents and the purchasing specialist who conducted the opening did so with precision and in accord with Department policy. Mr. Peterson, likewise, described the table upon which the bids were opened as being upon a raised platform when in fact it was not, and recalled that the purchasing agent who opened the bids separated the envelopes from the bid packages before passing the bid package to the purchasing specialist to announce the bid, which she did not. Finally, notwithstanding the limited nature of their involvement with the bid, as well as the fact that each was taking notes as each bid was announced, Mr. Peterson and Ms. Smith aver that they saw the price lists attached to NDP's bid when it was announced. As for Mr. Peterson, he averred that he noticed "stapled" booklets included with NDP's bid which could only have been the price lists. Ms. Smith recalls that the thickness of the bid package she observed at opening compels the conclusion that the price lists were attached. Given the circumstances, the testimony of Mr. Peterson and Ms. Smith regarding their observations at bid opening, and having specific recall regarding the presence of "stapled" booklets or the thickness of the package, is less than compelling.

       
       

   19. Regarding the bid opening procedure, the proof demonstrates that it was carefully and precisely run, consistent with Department policy. The first purchasing agent was seated on the left of the bid opening table, the purchasing specialist was seated in the center, and the second purchasing agent was seated to the right. The first agent had the sealed bids stacked alphabetically in front of her, opened one at a time, removed the contents from the envelope, placed the contents on top of the envelope and secured them with a rubber band, and passed the bid package to the specialist. The specialist opened the bid to the price discount schedule (page 23 of the ITB), read off the discount bid, and laid the bid package upside down to his right. Continuing through the responses, each bid or no bid was announced and placed on the appropriate stack to his right. The second agent recorded the bids on the bid tabulation sheet, as announced, and never touched the bid packages. Following the bid opening, the first agent retrieved the bids and, as to each bid, cut the date stamp off the envelope and stapled it to the first page of the bid form and, if the bid contained a form requesting notice of the bid result and a check for such service, removed the form and check and stapled them together for delivery to another employee to process. 3/ The bids, each separately secured by a rubber band, were then stacked and secured by another rubber band and taken to the office of another purchasing specialist for evaluation. When the agent took the bids from the bid room, no papers were left behind.

       
       

   20. The specialist who evaluated the bids found them in his office, as bound by the agent, between 3:15 p.m. and 3:30 p.m. that day, or approximately

       45 minutes to one hour after the bid opening concluded. The specialist went through each bid separately to ascertain its responsiveness to the conditions of the ITB, and calculated the apparent low bidder by application of the evaluation formula contained in the ITB. Upon evaluation of NDP's bid, the specialist discovered that it did not include the price lists required by the ITB, and concluded that NDP's bid was, therefore, non-responsive.

   21. Considering the proof, it is most unlikely that the price lists that were to be included in NDP's bid were misplaced by the Department. Rather, it is more likely that such price lists were not included with NDP's bid, when it was delivered to the Department, because of an oversight at NDP's Tallahassee branch office.

       
       

   22. While the proof fails to support the conclusion that NDP's bid included the HP price lists when delivered to the Department, such failure is not dispositive of NDP's protest where, as here, such failing was a minor irregularity.

       
       

       Minor irregularity

       
       

   23. Rule 60A-1.001(31), Florida Administrative Code, defines the term "minor irregularity" as"

       
       

       A variation from the invitation to bid . . . terms and conditions which does not affect the price of the bid . . ., or give the bidder

       . . . an advantage or benefit not enjoyed by other bidders . . ., or does not adversely impact the interests of the agency.

       
       

   24. Here, the Department rejected NDP's bid based on a uniform policy which it has established that the omission of a price list from any bid can never constitute a minor irregularity and always renders a bid non-responsive. The justification for such policy was stated as follows:

       
       

       . . . The purpose of requiring price lists is to insure that the vendor is bidding on the material that he has offered, that he has been certified by the manufacturer to act in their behalf. It also gives [the Department] the information by which [the Department] can provide price lists to agencies so the using agencies know the price lists from which they expect the discounts. Tr. 247.

       
       

       . . . A bidder can obtain a competitive advantage over competitors by failing to submit price lists with its bid because the bidder would then have the ability to disqualify its own bid in the event their quotation was out of line with the other bidders. Tr. 246. Also, by failing to submit a price list, a vendor may attempt to rely on price lists reflecting higher prices for the ultimate contract with the state. Tr. 268. [Department proposed findings of fact 21 and 22.]

       
       

   25. While the Department's concerns or rationale may be legitimate, depending on the facts of the case, they do not rationally support a uniform policy that a failure to include price lists with any bid can never be a minor irregularity. Stated differently, to explicate application of its policy in

       this case requires that the Department demonstrate that the concerns underlying its policy are existent in the instant bid. Here, at least with regard to NDP's bid, the proof fails to support the Department's policy.

       
       

   26. Of import to the resolution of the issue in this case are the provisions of the ITB regarding the price discount schedule, as follows:

       
       

       Bidders of brand name microcomputer systems and optional components, shall complete the price discount schedule in the format provided. The following information will be included: a copy of the Manufacturer's Suggested Retail current Price list (current Price list is the latest price list in effect between the "date mailed" as shown on the ITB and the Bid opening date), number and date, bid discount for microcomputer configured systems, bid discount for optional components not purchased as part of a microcomputer system.

       
       

   27. NDP's bid, consistent with Waldec's bid, specified the Hewlett Packard price lists of October 1992 and November 1992 as being the "current Price list" upon which it based its bid. Such lists are readily identifiable, and permitting NDP to provide such price lists after bid opening would not affect the price of its bid, give it any advantage or benefit not enjoyed by other bidders or adversely affect the interests of the agency.

       
       

   28. Also of import to the resolution of the issue in this case is the proof which demonstrates that during the course of its evaluation the Department did not know what the current price lists were, relied upon the bidders to comply with the requirement to attach current price lists, accepted Waldec's bid as responsive although it failed to include the December 1992 addendum, and proposed to rely on the manufacturer to resolve any disputes regarding discrepancies between lists. Such proof demonstrates that the price lists were a mere technicality, and that the provisions of the ITB, which specified the basis on which the bids were predicated as the manufacturers "current" price list, defined as "the latest price list in effect between the `date mailed' as shown on the ITB and the Bid opening date," were sufficiently precise to allow the parties to confidently contract.

       
       

   29. Here, none of the announced concerns of the Department, as set forth in paragraph 24 supra, have any applicability to NDP's bid. NDP's response to the price discount schedule was sufficiently precise to identify the price lists on which it was bidding (the material being offered), it submitted the required manufacturer's certificate demonstrating NDP was authorized to represent

       Hewlett-Packard (page 21 of the ITB), the provisions of the ITB required the successful bidder to furnish the state agencies and political subdivisions with price lists (page 10 of the ITB) after award, and NDP's identification of the price lists in the price discount schedule would preclude it from altering its bid after bid opening. In sum, NDP's failure to include the price lists with its bid was a minor irregularity that did not affect the price of the bid, give NDP an advantage or benefit not enjoyed by other bidders, or adversely affect the interests of the agency.

       CONCLUSIONS OF LAW

       
       

   30. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.53(5)(d)2 and 120.57(1), Florida Statutes.

       
       

   31. Here, NDP contends that the Department's rejection of its bid as non- responsive because of its failure to include price lists was improper because its bid included the price lists when delivered to the Department or, if not included, that such failure was a minor irregularity. As the protestant, NDP has the burden of establishing, by a preponderance of the evidence, that the Department's actions or decisions departed from the essential requirements of law. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

       
       

   32. Where, as here, an issue is raised concerning a missing document, the burden is on the bidder to demonstrate, by a preponderance of the evidence, that the document was included with the bid. Asphalt Pavers, Inc. v. Department of Transportation, 602 So.2d 558 (Fla. 1st DCA 1992), and Overstreet Paving Co. v. Department of Transportation, 17 FLW D2323 (Fla. 1st DCA 1992). For the reasons set forth in the findings of fact, NDP has failed to sustain its burden of proof. 4/

       
       

   33. While NDP has failed to demonstrate that the price lists were included with its bid, it has established that the absence of such price lists was a minor irregularity that should be waived.

       
       

   34. Competitive bidding requirements, such as those imposed upon the Department, have as their purpose and object the following:

       
       

       [T]o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion

       and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the [public] at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the [government], by affording an opportunity for an exact comparison of bids.

       
       

       Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (Fla. 1931), and Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1990-92 (Fla. 2d DCA 1977).

       
       

   35. In soliciting and accepting competitive bids, an agency has wide discretion, and its decision, if based on an honest exercise of this discretion, will not be overturned even if reasonable persons may differ with the outcome. See Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), and Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d

       505 (Fla. 1982). Its discretion, while broad, is not, however, unbridled. It must exercise such discretion in a manner that is not illegal, dishonest, fraudulent, arbitrary, or in any other way that would subvert the purpose of competitive bidding. See Department of Transportation v. Groves-Watkins Constructors, supra; Caber Systems v. Department of General Services, 530 So.2d

       325 (Fla. 1st DCA 1988), Couch Construction Company, Inc. v. Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978), and Wood-Hopkins Contracting Company v. Roger J. Au & Sons, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). Here, for the reasons that follow, it is concluded that NDP has demonstrated that the Department's decision to reject its bid as non-responsive departed from the essential requirements of law.

       
       

   36. In exercising its discretion, an agency may not accept a bid that is materially at variance with the invitation to bid. However, although a bid containing a material variance is unacceptable, not every deviation from the ITB is material. It is only material if it affects the price of the proposal, gives the offeror an advantage or benefit not enjoyed by other offerors, or adversely impacts the interests of the agency. See: Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 17 FLW D2030 (Fla. 3d DCA 1992), Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986), Robinson Electrical Co., Inc. v. Dade County, 417 So.2d 1032 (Fla. 3d DCA 1982), Harry Pepper & Asso., Inc. v. City of Cape Coral, supra, and Rule 60A-1.001(31), Florida Administrative Code. Here, as noted in the findings of fact, NDP's failure to include the price lists with its bid did not affect the price of the proposal, did not give it an advantage or benefit not enjoyed by other bidders, and did not adversely impact the interests of the agency. Under such circumstances, NDP's failure was a minor irregularity, and the Department's refusal to waive such discrepancy was arbitrary and contrary to the purpose of competitive bidding. Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, supra, at p. D2033 ("[T]here is a strong public policy in favor of awarding contracts to the low bidder, and an equally strong public policy against disqualifying the low bidder for technical deficiencies which do not confer an economic advantage on one bidder over another."). See also, Asphalt Pavers, Inc. v. Department of Transportation, supra, and Overstreet Paving Co. v. Department of Transportation, supra.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding NDP's bid responsive,

and awarding the subject bid to NDP as the lowest responsive bidder.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993.

WILLIAM J. KENDRICK

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 31st day of March 1993.

ENDNOTES

1/ The admissibility of Waldec's exhibit 3, the deposition of Kyle Peterson, was taken under advisement at hearing. Upon consideration, such deposition has been received into evidence under the provisions of Rule 1.330(a)(2), Florida Rules of Civil Procedures.

2/ While each mode is expected to provide identical information, mistakes apparently do occur, and resort to the manufacturer may be necessary to resolve such conflicts.

3/ While some bids were disassembled by the agent to retrieve the notice form and check for processing, this was done bid by bid, and each bid reassembled. Here, there was no proof that NDP included such a request within its bid and therefore no proof that its bid was so handled.

4/ To the extent it could be argued that NDP presented a prima facie case that the price lists were included with its bid, the Department's proof adequately refuted such case. Considering the proof, it is more likely than not that the price lists were not included with NDP's bid when it was delivered to the Department and, therefore, not in NDP's bid at the time of bid opening.

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 2.

2. Addressed in paragraphs 5 and 6.

3. Unnecessary detail and subordinate.

4. Addressed in paragraphs 7 and 8.

5. Addressed in paragraph 7.

6 & 7. Addressed in paragraphs 1 and 7.

8 & 9. Unnecessary detail.

10 & 11: Addressed in paragraphs 14 and 15, otherwise unnecessary detail or subordinate. Regarding the "checklist" it is noted that no such list was produced at hearing.

12. Addressed in paragraph 16.

13 & 14. Addressed in paragraph 17.

1. Addressed in paragraphs 17 and 21, otherwise rejected as not credible or persuasive.

2. Addressed in paragraph 18.

3. Unnecessary detail.

18 & 19. Addressed in paragraphs 18 and 19.

20 & 21. Addressed in paragraphs 18 and 19, otherwise rejected as not supported by the more compelling proof.

1. Unnecessary detail.

2. Addressed in paragraph 19 and endnote 3. With regard to petitioner's assertion that "Thompson disassembled each bid package" such is not supported by the proof as noted in endnote 3.

3. Unnecessary detail and subordinate.

4. Addressed in paragraph 19, otherwise unnecessary detail.

5. Addressed in paragraph 7, otherwise unnecessary detail.

27 & 28. Addressed in paragraphs 7 and 20, otherwise unnecessary detail or contrary to the proof.

29-31. Addressed in paragraph 28, otherwise unnecessary detail or redundant.

1. Rejected as unnecessary detail and not material. See paragraph 21.

2. While Melvin or any other DMS employee may not have personal knowledge as to whether a price list was attached to NDP's bid at opening does not compel the conclusions that they are without any knowledge that would aid in the inquiry. See paragraphs 19-21.

3. Addressed in paragraphs 20 and 24.

35 & 36. Addressed in paragraph 23, otherwise unnecessary detail.

37 & 38. Addressed in paragraphs 20 and 24, otherwise redundant.

1. Addressed in paragraph 24.

2. Addressed in paragraph 27.

41-43. Addressed in paragraphs 7, 8, and 28.

44-46. Addressed in paragraphs 8, 11 and 12, otherwise unnecessary detail.

1. Addressed in paragraph 13.

2. Addressed in paragraph 11.

3. Addressed in paragraph 12.

4. Addressed in paragraph 13.

5. Addressed in paragraph 10.

6. Addressed in paragraph 28.

53 & 54. Addressed in paragraph 7.

55 & 56. Addressed in paragraphs 9 and 14-21, otherwise unnecessary detail.

57 & 58. Addressed in paragraph 4.

Respondent's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 1 and 2.

3. Addressed in paragraphs 2 and 3.

4 & 5. Addressed in paragraphs 4 and 5.

6 Addressed in paragraph 7.

1. Addressed in paragraphs 14 and 15.

2. Addressed in paragraph 16.

9 & 10. Addressed in paragraphs 17 and 21, otherwise subordinate or unnecessary detail.

11 & 12. Addressed in paragraphs 18 and 21, otherwise subordinate or unnecessary detail.

13-17. Addressed in paragraphs 18 and 19, otherwise subordinate or unnecessary detail.

Addressed in paragraph 20, otherwise subordinate or unnecessary detail.

Subordinate or unnecessary detail. See paragraphs 17-21.

Addressed in paragraphs 24 and 25.

Addressed in paragraphs 10-13, 27 and 28, otherwise rejected as contrary to the proof. Addressed in paragraph 24.

1. Addressed in paragraph 18.

2. Addressed in paragraph 24, otherwise subordinate or unnecessary detail.

Intervenor's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 2.

2 & 3. Addressed in paragraph 3.

4. Addressed in paragraph 4.

5-8. Addressed in paragraphs 14-17, and 21.

9-11. Addressed in paragraphs 19 and 20.

1. Addressed in paragraph 7.

2. Addressed in paragraphs 19 and 20, otherwise subordinate or unnecessary detail.

3. Addressed in paragraphs 14-21, otherwise subordinate, unnecessary detail, or argumentative.

4. Addressed in paragraphs 24-29.

COPIES FURNISHED:

Brian M. Nugent, Esquire

C. Timothy Gray, Esquire

Katz, Kutter, Haigler, Alderman, Davis & Marks, P.A.

Highpointe Center, Suite 1200

106 East College Avenue Tallahassee, Florida 32302

O. Earl Black, Jr., Esquire Office of General Counsel Department of Management Services Knight Building, Suite 309

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

Edward S. Stafman, Esquire

318 North Calhoun Street Tallahassee, Florida 32301

William H. Linder, Secretary Department of Management Services Knight Building, Suite 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

Susan B. Kirkland General Counsel

Department of Management Services Knight Building, Suite 309

Koger Executive Center 2737 Centerview Drive

Tallahassee, Florida 32399-0950

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.

Docket for Case No: 93-000534BID

Orders for Case No: 93-000534BID