STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MODERN MAILERS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3593BID

)

STATE OF FLORIDA, ) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on July 22, 1994, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was the Offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Daniel W. Dobbins, Esquire

Callahan & Dobbins

433 North Magnolia Drive Tallahassee, Florida 32308

For Respondent: Vytas J. Urba, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

STATEMENT OF ISSUES

This case considers whether Petitioner's response to Invitation to Bid, No. 94-014, as revised, issued by the Respondent, is responsive to the terms of the Invitation to Bid. If Petitioner is found responsive, then the question is raised whether Petitioner has offered the lowest and best response to the invitation to bid.

PRELIMINARY STATEMENT

Petitioner and Mail Master of Tallahassee, Inc., another vendor, formally protested Respondent's decision to award a contract to Educational Clearinghouse for the services contemplated in Bid No. 94-014, as revised. Those formal protests were referred to the Division of Administrative Hearings for disposition.

Prior to hearing Mail Master of Tallahassee, Inc. voluntarily dismissed its petition in Mail Masters of Tallahassee, Inc. v. State of Florida, Department of Business and Professional Regulation, DOAH Case No. 94-3594BID.

At hearing Petitioner presented the testimony of Joe Biggs. Respondent presented the testimony of Bobby Gene Paul and Stephen C. Willis. Four joint exhibits were admitted as evidence.

A transcript of the hearing was prepared. The transcript was filed on August 1, 1994. Proposed recommended orders were filed August 22, 1994. Under the circumstances the requirement to enter the recommended order within 30 days after receipt of the transcript is waived. See Rule 60Q-2.031, Florida Administrative Code.

The fact finding suggested in the proposed recommended orders is discussed in an appendix to this recommended order.

FINDINGS OF FACT

1. On May 26, 1994, Respondent provided a memorandum to prospective vendors concerning Bid No. 94-014, as revised. This memorandum informed the prospective vendors that the new bid due date was June 6, 1994. The memorandum attached the bid instructions.

   
   

2. Under general conditions to the invitation to bid the prospective vendors were reminded in Paragraph 7 that the Respondent could ". . . reject any or all bids or waive any minor irregularity or technicality in bids received."

   
   

3. Under the heading "Special Provisions" prospective vendors were informed that "The charge per 1,000 for individual items under Exhibit A shall be the rates for the contract with the successful bidder."

4. The prospective bidders were instructed as follows: REQUIRED ITEMS TO BE SUBMITTED WITH BID:

   The bidder must complete all required items below and submit as part of the bid package. Any bid in which these items are not used or in which these items are improperly executed, may be considered

   non-responsive and the bid may be subject to rejection.

   
   

5. Among the items to be submitted with the bid was Exhibit A.

   
   

6. The bidders were informed about the process of EVALUATION/AWARD. There it was stated:

   
   

   Bids will be evaluated and awarded on an all or none basis to one bidder. Award will be

   based on the total costs of four (4) theoretical jobs (See Exhibit B-Bid Total) requiring varying services and on the bidder's qualifications to best serve the Department's needs.

   
   

7. The prospective bidders were then reminded a second time that: "THE DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS AND TO WAIVE ANY MINOR IRREGULARITIES IN BIDS RECEIVED."

8. Within Exhibit A to the bid document was a category referred to as "Tabbing", calling for the charge per 1,000 for that service.

   
   

9. Within Exhibit B under the fourth theoretical job was a requirement to quote the subtotal cost for 200,000 newsletter preparations to include "Tabbing."

   
   

10. Three vendors submitted responses to the invitation to bid. Those responses were opened on June 6, 1994. The vendors who responded were Petitioner, Educational Clearinghouse, Inc. and Mail Masters of Tallahassee, Inc.

    
    

11. In the subtotal for costs for 200,000 newsletter preparations, in activity four, concerning theoretical jobs, found within Petitioner's Exhibit B to the response to the invitation to bid, Petitioner made a mistake. It misplaced the decimal point and described the subtotal cost for 200,000 newsletter preparations as $73.80 instead of $7,380.00. Respondent characterized this as a typographical error or nominal mistake. In fact, this error constituted a minor irregularity which did not preclude the ability to understand Petitioner's response so that it might be compared to the responses by the competition.

    
    

12. Petitioner made a second error. This error occurred when Petitioner failed to indicate the amount that it would charge per 1,000 for "Tabbing" within Exhibit A. Respondent did not consider this to be a minor irregularity and rejected Petitioner's bid as non-responsive for the failure to include a quotation for the charge per 1,000 for "Tabbing." This resulted in the intent to award the contract to Educational Clearinghouse, Inc. whose bid total for the four theoretical jobs under Exhibit B was $9,137.25 compared to Petitioner's bid total of $8,374.62.

    
    

13. In preparing Exhibit B, activity four, Petitioner included a theoretical charge for "Tabbing" in the amount of $8.00 per 1,000. Petitioner contends that the $8.00 per 1,000 found within that entry may be correlated with the missing information concerning "Tabbing" in Exhibit A to its response to the invitation to bid.

    
    

14. In the instructions to the vendors, Respondent has informed the vendors that the charge per thousand for individual items identified in Exhibit A constitutes the rate that the Respondent would expect to pay under a contract with the successful bidder. By contrast, the function of the information provided in Exhibit B is for purposes of awarding the contract based upon total costs of the four theoretical jobs and on the basis of the vendor's qualifications to best serve the Respondent's needs.

    
    

15. Although not stated in the invitation to bid it can be inferred that similar references within Exhibits A and B, such as the reference to "Tabbing", calls for a comparable price to be set forth for the item in both Exhibit A and Exhibit B. Otherwise vendors would have the opportunity to quote low prices in completing Exhibit B as a means to win the cost comparison with their competitors for purposes of the award and then have the opportunity to charge higher costs per 1,000 as reflected in Exhibit A when establishing the charges for the contract with the Respondent following the competition contemplated in the comparison of the theoretical bid total under Exhibit B. Therefore, it would be reasonable for the Respondent to expect that the Petitioner would charge $8.00 per 1,000 for "Tabbing" under a contract between the Petitioner and

    Respondent based upon information that was set forth in the response to Exhibit B, activity four, "Tabbing."

    
    

16. In summary, Petitioner's oversight in leaving out reference to the tabbing charge in Exhibit A does not affect the comparison of bid responses as contemplated by the instructions to the vendors, a function performed by comparing the respective Exhibits B. Otherwise, Respondent may gain the necessary understanding of Petitioner's charge per 1,000 for "Tabbing" as contemplated in instructions concerning Exhibit A as a means for entering into the contract. This understanding is achieved by transposing the $8.00 per 1,000 "Tabbing" quotation in Exhibit B to the "Tabbing" charge within Exhibit A as

    $8.00 per 1,000. With this adjustment, Modern Mailers, Inc. is the lowest responsive bidder and best able to serve Respondent's needs pertaining to Invitation to Bid No. 94-014, as revised.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Sections 120.53(5) and 120.57(1), Florida Statutes.

    
    

18. Petitioner submitted sufficient information in completing Exhibit B to its response so that it might be compared to its competitors for purposes of awarding the contract to Petitioner based upon the lowest cost quotation and on its qualifications to best serve.

    
    

19. Concerning the Respondent's ability to ascertain the amount which Petitioner would charge per 1,000 for "Tabbing" under Exhibit A, it is appropriate to carry over the reference to $8.00 per 1,000 for "Tabbing" in activity four to Exhibit B. This provides the Respondent with the information it needs to complete the contract setting forth the unit billing for items within Exhibit A.

    
    

20. Petitioner is a "qualified" and "responsible" vendor who has submitted the lowest and best responsive bid. See Section 287.012(14)(17) and (18), Florida Statutes. Petitioner is entitled to the award of a contract under the terms set forth in the invitation to bid. For Respondent to act contrary would be an act of arbitrariness, beyond the scope of its discretion. See Department of Transportation v. Groves Watkins Constructors, 530 So.2d 912 (Fla. 1988).

RECOMMENDATION

Based upon the findings of fact and the conclusions of law reached, it is, RECOMMENDED:

That a final order be entered which finds that Petitioner is a "qualified" and "responsible" bidder who is the lowest and best responsive bidder to Invitation to Bid, No. 94-014, as revised and is entitled to the award of the contract contemplated by that invitation to bid.

DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida.

CHARLES C. ADAMS

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 8th day of September, 1994.

APPENDIX

The following discussion is given concerning the proposed findings of fact of the Parties:

Petitioner's Facts:

Paragraph 1 is subordinate to facts found.

Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 5 are subordinate to facts found.

Paragraphs 6 and 7 are rejected to the extent that they are intended to establish an excuse for the Petitioner not providing information related to the cost for tabbing called for in Exhibit A in the invitation to bid.

Paragraph 8 is subordinate to facts found.

Paragraphs 9 through 12 are not necessary to the resolution of the dispute. Paragraph 13 is subordinate to facts found.

Paragraph 14 is rejected to the extent that it suggests that Petitioner may amend its response to the invitation to bid to specifically set forth the amount attributable to the tabbing charges per 1,000 in Exhibit A. Nonetheless one may infer that the cost per 1,000 for tabbing is the same as is set forth in Exhibit B.

Paragraphs 15 through 17 are subordinate to facts found. Paragraph 18 constitutes legal argument.

Respondent's Facts:

Paragraph 1 is subordinate to facts found. Paragraph 2 is contrary to facts found Paragraph 3 is rejected in fact and law.

Paragraph 4 is rejected in the suggestion that the Petitioner does not have the ability to perform the contract.

COPIES FURNISHED:

Daniel W. Dobbins, Esquire Callahan & Dobbins

433 North Magnolia Drive Tallahassee, FL 32308

Vytas J. Urba, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

George Stuart, Secretary Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Informational Copies:

Ronald W. Brooks, Esquire Brooks and LeBoeuf, P.A. 863 East Park Avenue Tallahassee, FL 32301

Joan Reeves, Vice President Educational Clearinghouse Post Office Box 3951 Tallahassee, FL 32315

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: 94-003593BID

Orders for Case No: 94-003593BID