STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRISON REHABILITATIVE INDUSTRIES ) AND DIVERSIFIED ENTERPRISES, ) INC., d/b/a PRIDE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5772BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 3, 1994, in Tallahassee, Florida, before Stephen F. Dean, a duly

Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wilbur E. Brewton, Esquire

I. Ed Pantaleon, Esquire

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

For Respondent: Louis A. Vargas, General Counsel

Steven S. Ferst, Assistant General Counsel Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

STATEMENT OF THE ISSUES

The issues are whether the bids submitted by Daffin and Gulf Coast were responsive, and whether the failure by the Department of Corrections to evaluate each proposal at the time the proposals were opened to determine if the proposal was responsive is fatal to consideration of the bids under the terms of the ITB.

PRELIMINARY STATEMENT

The Department published an ITB to provide storage and delivery services for food and food products to its prisons located in its five regions. Pride, Daffin and Gulf Coast submitted bids to provide these services to one or more of the Department's five regions. The Department evaluated the bids and awarded the bid in Regions I to Daffin, and in Regions II and V to Gulf Coast. Pride made proposals on each of these regions, and made a timely protest of the award of the bids to Daffin and Gulf Coast. The Department forwarded the matter to the Division of Administrative Hearings, a final hearing was scheduled in the case, and the matter heard on November 3, 1994. Subsequently, there were

difficulties in the preparation of the transcript which delayed the preparation of the proposed orders, which were received on January 13, 1995.

Both Pride and the Department submitted proposed orders which were read and considered. The Appendix to this order states which of the findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. The Department issued Invitation to Bid No. 94-DC-6279 (the ITB) on May 27, 1994.

   
   

2. The ITB requested bidders to submit proposals to provide receipt, storage and delivery of frozen and non-frozen food products. The bid was separated into five distinct regions and vendors could bid on any or all of the regions.

   
   

3. Proposals had to be filed with the Department by July 20, 1994, and were opened on that date.

   
   

4. The bid was divided into two parts for purposes of point distribution. Sixty (60) points were allotted for price criteria, and forty (40) points were allotted for additional, non-price criteria. [Joint Exhibit A.]

   
   

5. The Additional Criteria, which related to non-costs issues and were not mandatory criteria, were listed in Section 4.8.2. of the ITB as follows:

   
   

   Additional Criteria 40 Points

   
   

   • Prior experience and history of timely deliveries

   • Condition of equipment/type - # (number of) trucks-conditions

   • Location of contractor's facilities

   • Personnel/staffing [Joint Exhibit A.]

6. Addendum 2 to the ITB further provided that:

   
   

   4. Direct your attention to the additional criteria used for evaluation. The low bid

   will be 60 points (Note: 4.3 states erroneously

   50 percent; 60 is correct). Forty [40.] will be for additional criteria listed in the ITB. We suggest that you list the information in additional criteria for consideration and evaluation.

   
   

7. Jim Morris, Bureau Chief of General Services for the Department of Corrections, was the individual responsible for monitoring the ITB. [R. pg. 66, line 14-16; pg. 75, line 5-12.]

   
   

8. Bill Bowers, Chief of Food Services for the Department of Corrections, participated in defining the scope of the contract, and assembled the criteria for the ITB. [R. pg. 108, lines 10-25; pg. 117, lines 18-21.]

9. The Department's evaluations were conducted by Howell L. Winfree, III,

   J.L. (Joe) Murphy; Fred J. Boyd; Robert Sandal and Chris Dennard. [Joint Exhibit M and N.]

   
   

10. The criteria used by the Department's evaluator were as follows:

    
    

    1. Prior experience and history of timely deliveries (15) (Length of time in distribution business and

       any known complaints by customers)

       
       

    2. Condition of Equipment/type (10) Task- related experience (Age of trucks/with freezer)

       
       

    3. Location of Contractor's facilities (10) (Location of distribution points in relation to regions being served)

       
       

    4. Personnel/Staffing (5)

    (Is sufficient staff available) [Joint Exhibit L.]

11. The criteria scoring sheet used by the Department in evaluating the bids submitted, specifically Joint Exhibit L, was not included in the ITB. [Joint Exhibit A.]

    
    

12. Six vendors submitted bids on the Department's five regions. Pride submitted a bid for all five (5) regions requested by the Department's ITB. [Joint Exhibit D.] After the evaluation of the bids was conducted by the Department, the following awards were made:

    
    

    1. Region I - Daffin

    2. Region II - C & W

    3. Region III and V - Gulf Coast

    4. Region IV - Pride [Joint Exhibit F.]

       COMPETITIVE BID PROCEDURE

       
       

13. At the time the bids were publicly opened the Department did not make a determination that the bids were responsive. [R. pg. 73, lines 4-8.]

    
    

14. No one in the legal office made a determination that the bids were responsive to the ITB. [R. pg. 77, lines 2-6; pg. 85, lines 2-17.]

    
    

15. No one made a determination, written or otherwise, that the bids submitted in response to Invitation to Bid No. 94-DC-6279 were responsive to the ITB. [R. pg. 76, lines 6-10; pg. 97, lines 13

    
    

16. The Department transmitted the bids and evaluation materials to the evaluators after the bids were opened. There is no evidence that any of the bids failed to meet technical qualifications. [R. pg. 78, lines 4-8; pg. 79, line 17 through pg. 80 line 2; pg. 83, lines 18-25; pg. 85, lines 2-17.]

17. Paragraph 4.11 of the ITB permitted the Department to obtain from a vendor information by questioning the vendors if necessary to resolve questions which might arise about the vendors' responses. None of the vendors controverted this provision in the ITB. The Department did seek and consider such additional information from Daffin during a site visit. [R. pg. 141, line

    21 through 147.]

    
    

18. Daffin's bid response included the following documents:

    
    

    1. Signed Invitation to Bid Cover Sheet

    2. Signed Public Entity Crimes Form

    3. One page memo re: Requested Criteria

    4. Signed Addendum #1-4 to the Invitation to Bid

    5. Signed Price Quote Sheet [Joint Exhibit C.]

19. Daffin Supply Company (Daffin) and Pride were the only vendors that submitted bids for Region I in response to the ITB. [Joint Exhibit F and H.] Daffin's price was $1.389 per case for receipt, storage and delivery of the food items, and Pride's price was $2.5296 per case for receipt, storage, and delivery of the food items.

    
    

20. Daffin received a total of 69.26 on its evaluation, and Pride received

    46.49 on its evaluation for Region I. Daffin received the highest point score for its bid for Region I, and Pride received the second highest point score for its bid for Region I. [Joint Exhibit H.]

    
    

21. In response to the Additional Criteria requirements, Daffin included only the following information:

    
    

    As additional criteria, we have been in the Supply and Distribution business for over twenty

    Drive

    in Panama City, Fla. The warehouse has three receiving docks and a large enclosed staging area.

    
    

    [Joint Exhibit C.]

    
    

22. Howell L. Winfree, III, indicated regarding Daffin's bid that no information was available regarding the condition or type of Daffin's equipment or its personnel. J.L. Murphy's evaluation of Daffin's bid states, "Insufficient detail to evaluate properly." Chris Dennard's evaluation of Daffin's bid states, "This bidder did not provide sufficient information about their experience, equipment, personnel to give this evaluator an indication they could handle this bid if awarded." Fred Boyd's evaluation of Daffins bid states, "This vendor did not supply information which shows qualification for this bid." [Joint Composite Exhibit L.] Only one of the five evaluators gave Daffin points for these criteria, and Daffin received only 9.26 points of the 40 available non-costs criteria points.

    
    

23. Pride received a significant number of the total points awarded for the non-costs criteria. However, Pride trailed Daffin by 23 points overall because Pride's cost was almost a dollar more per case.

24. Subsequent to the bid evaluations, Mr. Morris and Mr. Bowers made a site visit to Daffin Supply Company. The purpose of the visit was to become familiar with the vendor, and to determine the company's capacity to store and transport the food items. R. pg. 75-76, lines 22-25; 1-2; pg. 85, line 18 through pg. 86, line 7; pg. 118, lines 4-14.] Until Mr. Morris and Mr. Bowers spoke to Mr. Daffin, the Department was not certain whether Daffin had facilities, truck and staff to carry out the bid. [R. pg. 114, lines 19-23.]

    
    

25. After the site visit, the Department determined that Daffin could provide the services required by the bid for Region I. [R. pg. 118, lines 4- 18.]

    
    

26. On September 1, 1994, subsequent to the bid opening, the Department received a letter from Daffin evidencing that they had an agreement with Ryder Truck Leasing company to lease trucks to carry out the services requested in the ITB; the letter is dated September 1, 1994.

    
    

27. The Department did not conduct a site visit of Pride or any other bidder's facilities. Pride had been providing the services being bid upon to the Department prior to the ITB.

    
    

28. The Department awarded Gulf Coast Food Service (Gulf Coast) the highest point score for its bid for Regions III (90.60 points) and V (90.60), and awarded Pride the second highest point score for its bid for Regions III (59.56 points) and V (59.56 points). Gulf Coast bid $1.63 per case and Pride bid $2.5296 per case to receive, store, and deliver the food items in both Regions III and V. [Joint Exhibit H.]

    
    

29. Gulf Coast's bid response included the following documents:

    
    

    1. Signed Invitation to Bid Cover Sheet

    2. Signed Public Entity Crimes Form

    3. One page Letter re: Company Criteria

    4. Signed Addendum #1-4 to the Invitation to Bid

    5. Signed Price Quote Sheet

    6. Annual Report - Suncoast [Joint Exhibit B.]

30. Gulf Coast's bid included the following information relating to the non-cost criteria:

    
    

    1. The Condition of the Equipment. The Bid stated "15 fully equipped [sic] temperature controlled trucks." [Joint Exhibit B; R. pg. 129, lines 1-3.]

    2. Prior Experience/Timeliness of Deliveries. The bid stated "8 years of excellent service to Foodservice Industry." [Joint Exhibit B; R. pg. 59, lines 9-13; pg. 129, lines 7-21.]

    3. Personnel/staffing attributed to the bid. The bid stated "Fully trained delivery staff with

    5 years no accident safety record," and "Fully trained senior staff of buyers with over 90 years combined experience."

    [Joint Exhibit B; R. pg. 129, lines 7-21.]

    
    

31. Pride's bid response included the following documents:

    
    

    1. Signed Invitation to Bid Cover Sheet.

    2. Unsigned Public Entity Crimes Form (Pride exempt.)

    3. Signed Addendum #1-4 to the Invitation to Bid.

    4. Signed Price Quote Sheet

    5. 29 page attachment covering the requirements of the bid and the additional criteria listed in Section 4.8.2 of the ITB.

    
    

    [Joint Exhibit D.]

    
    

32. Pride listed the type of equipment by model name, size, and the quantity, as well as the condition of such equipment utilized for transportation and for the other requirements of the project [Joint Exhibit D; R. pg. 59, lines 18-21]; listed information regarding its shipping and receiving procedures; customer surveys to indicate prior experience and history of timely deliveries [Joint Exhibit D]; the staff positions that would be dedicated to the project for each location, and the location of all its facilities. [Joint Exhibit D; R. pg. 59, line 25 through pg. 60, line 5.]

    
    

33. Pride submitted information relating to each of the criteria listed in the ITB.

    
    

34. The total savings on the award of these three contracts to Daffin and Gulf Coast as opposed to Pride is $228,548.09.

    
    

35. Pride filed a timely challenge to the award of the contracts for Regions I, III and V.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

37. Pride filed a timely protest of the instant bids, and has standing to file its petition in this case.

    
    

38. Pride has the burden to prove that the Department's award of the bids in this case was fraudulent, arbitrary, illegal or dishonest.

    
    

39. There is no evidence that the Department's award was fraudulent or dishonest. There was no evidence that any of the bids failed to meet the technical qualifications of the ITB. The instant controversy is limited to (1) whether the failure of the Department to determine whether the bid proposals were responsive upon opening contrary to Rule 60A-1.001(10), Florida Administrative Code, was fatal to the bid process under the terms of this ITB, and (2) whether the information provided by Daffin and Gulf Coast in regard to the non-costs criteria was "responsive" to the ITB.

    
    

40. The evidence clearly shows that the Department failed to determine upon opening whether the bid proposals were responsive. This is a formal requirement established by rule. The procedures followed by the Department do not comport to the procedures required by the rule; however, in this instance,

    the failure of the Department to comply with Rule 60A-1.001(10), Florida Administrative Code, did not constitute a fatal error because the portion of the proposals alleged to be non-responsive was not a mandatory requirement and was evaluated in the formal process.

    
    

41. Regarding the allegations that Daffin and Gulf Coast were not responsive, the evidence indicates that Gulf Coast did address the non-costs criteria in its proposal as stated in Paragraph 29, above.

    
    

42. One can controvert the completeness of this response; however, there was sufficient information provided that the evaluators could assess the bidder's compliance and award points.

    
    

43. Daffin's response, quoted in paragraph 21 of the Findings, was less informative, and four of the five evaluators awarded Daffin no points for the non-costs criteria. One of the evaluators awarded sufficient points that Daffin received 9.26 points on the non-costs criteria.

    
    

44. Under the terms of the bid, these criteria were only assigned a value of forty points, and they were not mandatory requirements. Had a bidder responding to this criteria replied that they had no experience, no equipment, no facilities, and no staff, the proposal would have been responsive and the proposal would have received zero points. This hypothetical is similar to the response of Daffin which received inconsequential number of points for its response. The evaluation was heavily weighted towards the costs criteria, and Pride, whose prices were significantly higher than Daffin's and Gulf Coast's, did not fair well on the evaluation of costs.

    
    

45. Pride further asserts that the Department violated the bid process by accepting and considering additional information after the bid openings from Daffin. Specifically, these allegations arise from a site visit to Daffin after the evaluation by Department personnel. Pride asserts that this visit was for the purpose of determining whether Daffin was a "responsible bidder," which was a determination the Department was obliged to make at the point of opening the bids, and, therefore, information provided was an impermissible amendment of the proposal.

    
    

46. The facts reveal that the visit was to determine whether Daffin had sufficient staff and freezer capacity which is an element of determining whether Daffin was a responsible bidder. Pride's argument would limit an agency's determination of whether a bidder is responsible to the bid opening. This is a misstatement of the requirement for determining whether a bidder is responsible. Assessment of the bidder as a responsible bidder is ongoing throughout the process as additional elements of the ITB and responses are evaluated.

    
    

47. The terms of the bid permitted the Department to make inquiry of bidders after the opening, and Pride did not raise any objection to this provision. Under the bids terms, the acquisition of additional information to complete the evaluation process was permitted, and the Department's visit to determine if Daffin had adequate staff and freezer capacity was within the scope of that provision. Regarding Daffin's submission after the opening of a letter regarding its lease of trucks from Ryder, from the minimal number of points awarded Daffin on non-costs related criteria, it is clear that the evaluators did not consider this information.

    
    

48. Under the terms of this ITB, the Department's actions were not fraudulent, arbitrary, illegal or dishonest. The Department did not violate the

terms of bid process in evaluating the bids of Daffin and Gulf Coast. The petition of Pride should be dismissed, and the award of the bids should go to Daffin and Gulf Coast as proposed by the Department.

RECOMMENDATION

It is, accordingly, RECOMMENDED,

That the Petition of Pride be dismissed, and the bids be awarded to Gulf Coast and Daffin.

DONE and ENTERED this 8th day of February, 1995.

STEPHEN 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 8th day of February, 1995.

APPENDIX

The parties submitted proposed findings of fact which were read and considered. The following states which of those facts were adopted and which were rejected and why:

PETITIONER'S FINDINGS RECOMMENDED ORDER

Paragraph 1 Paragraph 1

Paragraphs 2,3 Paragraphs 7,8

Paragraph 4 Paragraph 4

Paragraph 5 Rejected as contrary to facts

Paragraphs 7,8 Paragraphs 5,6

Paragraphs 6,9 Subsumed in 5,6

Paragraphs 10-19 Paragraphs 9-17 Paragraphs 20,21,22 Conclusions of Law Paragraphs 23-26 Paragraphs 18-21

Paragraph 27 Conclusion of Law

Paragraph 28 Subsumed in 22

Paragraph 29 Paragraph 22

Paragraph 30 Irrelevant, and subsumed in 15 Paragraphs 31,32,34 Paragraph 23

Paragraph 33 Irrelevant. Although information may have been provided about staff, the evaluations had already been completed and there is no evidence that this added information changed the already completed evaluations.

Paragraphs 35-37,39-41 Paragraphs 24-29 Paragraph 38,42 Contrary to facts.

Paragraph 43-47 Paragraphs 30-33 RESPONDENT'S FINDINGS RECOMMENDED ORDER

Paragraphs 1-3 Paragraphs 1-3

Paragraphs 4,5 Paragraph 12

Paragraph 6 Subsumed in 12

Paragraph 7 Paragraph 19

Paragraph 8 Subsumed in 35

Paragraph 9 Paragraph 20

Paragraph 10 Paragraph 27

Paragraph 11 Paragraph 35

Paragraphs 12,13 Paragraph 27

Paragraph 14 Subsumed in 35

Paragraph 15 Paragraph 27

Paragraphs 16,17 Paragraphs 34,35

Paragraph 18,19 Respondent's order deleted 18,19 Paragraph 20 The evaluation was proper; however, the

Department did not follow Rule 60A-1.001, F.A.C.

Paragraph 21 There was no evidence of fraud or dishonesty. See comments to Paragraph 20, above, and Conclusions of Law.

Paragraph 22 Paragraph 22

Paragraph 23 Subsumed in 22

Paragraph 24 Paragraph 23

Paragraphs 25,26 Paragraph 22

Paragraph 27 Subsumed in 22

Paragraph 28 Paragraph 33

Paragraph 29 Subsumed in 22 and 27

Paragraph 30 Conclusions of Law

Paragraph 31 Paragraph 12

Paragraphs 32,33 Conclusions of Law

Paragraphs 34,35 Paragraph 23

Paragraph 36 Paragraph 24

Paragraph 37 Conclusion of Law

Paragraph 38 Argument

Paragraph 39 Conclusion of Law

Paragraph 40 Paragraph 23

Paragraph 41 Conclusion of Law

COPIES FURNISHED:

Wilbur E. Brewton, Esquire

I. Ed Pantaleon, Esquire

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Louis A. Vargas, General Counsel

Steven Ferst, Assistant General Counsel Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

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: 94-005772BID

Orders for Case No: 94-005772BID