STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BELL ATLANTIC BUSINESS SYSTEMS ) SERVICES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-3693BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

) KENNSCO ENGINEERING SERVICE, INC. )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 25 , 1995, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner Gregory P. Borgognoni, Esquire Bell Atlantic Herman, Roof, Borgognoni & Moore Business Systems SunBank International Center

Services, Inc.: One Southeast Third Avenue, Suite 2110

Miami, Florida 33131

For Respondent Thomas H. Duffy, Esquire Department of Department of Transportation

Transportation: 605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

For Intervenor, M. Christopher Bryant, Esquire Kennsco Engineering Oertel, Hoffman, Fernandez & Cole Services, Inc.: Post Office Box 6507

Tallahassee, Florida 32314-6507 STATEMENT OF THE ISSUE

This is a bid protest proceeding in which the Petitioner challenges the Department's notice of intent to award the contract under ITB-DOT-95/96-9002 to the Intervenor Kennsco Engineering Services, Inc. Petitioner contends that the Kennsco bid should be rejected as non-responsive.

PRELIMINARY STATEMENT

At the formal hearing on September 25, 1995, the parties offered eight joint exhibits, all of which were received in evidence. The Petitioner offered another exhibit (Petitioner's Exhibit 5), which was received in evidence over objection. The Petitioner presented the testimony of three witnesses: Michelle Lukic, an employee of Bell Atlantic, Oscar Arenas, a Department employee, and Gregory Blanc, an employee of Kennsco. The Department presented the testimony of three witnesses, all Department employees: Terrence McCue, Richard Solomon, and Mr. Arenas. The Intervenor presented the testimony of two witnesses: Mr.

Blanc and Mr. Solomon.

At the conclusion of the hearing the parties requested, and were granted, ten days from the filing of the transcript within which to file their respective proposed recommended orders. The transcript was filed with the Hearing Officer on October 3, 1995. Thereafter, the parties requested extensions of time for the submission of their proposed recommended orders. The extensions were granted and the final deadline for the submission of proposed recommended orders was October 27, 1995. All parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. All proposed findings of fact submitted by all parties are specifically addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

Findings regarding the ITB and its Addendums

1. On or before May 11, 1995, the Department of Transportation issued ITB- DOT-95/96-9002, seeking a contractor to provide Statewide Full Service Repair and Support Under the Classifications of PC Maintenance, LAN Server Maintenance, and Novell LAN Support including All Parts and Labor Required for Inspection, Repair/Replacement of Defective, Missing or Worn parts.

   
   

2. The ITB contained, inter alia, the following requirements in sections

   1.5.1 and 1.5.2 regarding technical qualifications:

   
   

   1. GENERAL

      Bidders should meet the following minimum qualifications:

      
      

      1. Have been actively engaged in the type of business being requested for a minimum

         of two years. Be a certified Novell OEM Dealer, maintaining a certified Novell Support Center, and have at least three (3) certified Novell Engineers.

         
         

   2. RESPONSIVENESS OF BIDS

      When submitting the bid, each bidder should submit a written statement (FORM "E"), detailing their qualifications which demonstrate they meet

      the minimum qualifications contained in Subparagraph

      1.5.1.1. Bidders failure to provide the above item(s) will constitute a non-responsive deter- mination. Bids found to be non-responsive shall not be considered.

3. The ITB also contained the following requirements regarding the qualifications of key personnel in section 1.5.3:

   
   

   1. QUALIFICATIONS OF KEY PERSONNEL

   Those individuals who will be directly involved

   in the project should have demonstrated experience in the areas delineated in the scope of work.

   Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager. Where State of Florida registration or certification is deemed appropriate, a copy of the registration or certificate should be included in the bid package.

   
   

4. Form "E", referred to in the above-referenced portions of the ITB, provided, in pertinent part, the following:

   
   

   When submitting the bid, each vendor must furnish proof that he/she is capable of performing the work described in the attached specifications in a satisfactory manner.

   * * *

   The vendor shall provide the State with documented proof that the vendor is a certified Novel OEM dealer, maintains a certified Novell support center, and has at least 10 Certified Novell Engineers.

   
   

5. On or about May 9, 1995, Bell Atlantic submitted certain questions to the Department, including the following:

   
   

   Bell Atlantic Business Systems intends to participate in the subject ITB. The following is a list of questions that need further clarification.

   * * *

   2. FORM E:

   a. What form of documentation is the Department requiring as written proof that vendor is a certified Novell OEM dealer, Novell support

   center and has ten (10) Certified Novell Engineers?

   * * *

   c. Are the ten (10) required CNE's to be located in the state of Florida?

   
   

6. In response to the questions raised by Bell Atlantic, the Department issued Addendum #1 to the ITB, which provided, in pertinent part, the following:

   
   

   1. FORM E Where it reads:

      The vendor shall provide the State with documented proof that the vendor is a certified Novel OEM dealer, maintains a certified Novell support

      center, and has at least 10 Certified Novell Engineers.

      Shall be changed to read as follows:

      The vendor shall provide the State with documented proof that the vendor is a certified Novell Authorized Service Center (NASC), maintains a certified Novell support center, and has at least 3 Certified Novell Engineers available in the State of Florida. At least one of the Certified Novell Engineer[s] must be available in the Tallahassee area.

      
      

7. The terms "available in the State of Florida" and "available in the Tallahassee area" are not defined in the ITB or in the Addendums.

   
   

8. Addendum 1 also affected the description of scope of services contained in Exhibit A to the ITB. This description is contained in Section 2.4.4.2, LAN Server Maintenance and Novell LAN Support. As initially issued, this section read:

   
   

   Novell certified personnel must respond within thirty minutes. If deemed necessary by the Department, vendor must dispatch adequately trained personnel to the site of reported problems within one hour of notification.

   
   

   The quoted section was changed by Addendum 1 to read as follows:

   
   

   Novell certified personnel must respond within thirty minutes by telephone. If deemed necessary by the Department, vendor must dispatch adequately trained personnel to the District Office sites (see Attachment A) of reported problem within one hour of notification. Vendor must dispatch adequately trained personnel to all remote locations not listed in Attachment A within

   four hours of notification.

   
   

   Attachment A, as referenced in this paragraph, identifies DOT district offices and other key offices at 14 locations in nine cities in Florida: Tallahassee, Lake City, Fort Lauderdale, Miami, Bartow, Chipley, Deland, Tampa, and Boca Raton.

   
   

9. Section 2.4.4.2 does not specify that the "adequately trained personnel" who must be dispatched by the vendor to district office sites within one hour of notification must be CNE's. "Adequately trained personnel" does not necessarily mean CNE's, and CNE's are not necessarily required to perform LAN maintenance. DOT has used non-CNE's to service its LAN's.

   
   

10. Section 1.15.1 of the ITB provides that the Department intends to award the subject contract "to the responsible and responsive bidder who bids the lowest cost. "

    
    

11. To be responsive, bidders had to complete Form E, as stated in Section

    1.5.2 of the ITB. The ITB did not require the bidders to include in the bid the residence addresses of any of the three required CNE's. One of the Departments main reasons for requiring bidders to demonstrate that they had at least three

    CNE's available in the State of Florida was the Department's belief that a bidder who met that requirement would probably be qualified to perform the subject contract.

    
    

    Facts regarding Kennsco's bid

    
    

12. Kennsco submitted the lowest bid of the seven vendors bidding:

    $163,600.00. Kennsco's bid included the following language in the transmittal letter submitted as part of its bid:

    
    

    Kennsco has read, understands and accepts the terms and conditions of the Department's ITB.

    
    

    Kennsco currently has 4 CNE's, 1 of which is

    in his final phase of becoming a ECNE. Kennsco

    is a authorized service center and is a authorized Novell Dealer.

    
    

13. In response to the requirements of sections 1.5.1, 1.5.2, and Form E, Kennsco attached to is bid the CNE certificates of the following individuals:

    
    

    Steve Deal Allan Sellers

    C. Mark Robinson David R. Dremann, Jr.

    
    

    Kennsco did not include any information in its bid regarding where these four individuals lived or worked.

    
    

14. Messrs. Deal, Sellers, and Dremann are residents of St. Louis, Missouri, and work out of Kennsco's offices there; Mr. Robinson is no longer employed by Kennsco, but at the time of the submission of Kennsco's response Mr. Robinson was a resident of Minnesota and worked out of Kennsco's offices in that state.

    
    

15. On June 14, 1995, the Department posted its decision of intent to award the contract to Kennsco, and Bell Atlantic timely filed its Notice of Intent to Protest.

    
    

16. On June 26, 1995, Bell Atlantic timely filed its Formal Written Protest regarding the instant ITB alleging, inter alia, that the CNE's whose certificates were attached to Kennsco's bid were not available in Florida and not even one was available in Tallahassee as required by the ITB.

    
    

17. Shortly after receipt of Bell Atlantic's Formal Written Protest, a conversation occurred between Mr. Oscar Arenas, of the Department, and Greg Blanc, representative of Kennsco. That conversation resulted in correspondence of June 26, 1995, which provided as follows:

    
    

    As per our telephone conversation on June 26, 1995, regarding the availability of Novell Certified Network Engineers (CNE).

    
    

    Kennsco Engineering Services, Inc. has a minimal of one CNE available to serve the Department of Transportation on-site in Tallahassee within one hour of notice, and has four CNE's that are

    available to work in any area of Florida. In addition to this Kennsco has two other engineers that will be certified within the next 60 to 90 days, and one of our current engineers is one test away from becoming a ECNE.

    
    

    The names and location of these CNE are as follows: Mr. Mark Hansel - Tallahassee

    Mr. John Strobel - Tallahassee

    Mr. Mike Deshazo - Tallahassee, also a Banyan Certified Engineer

    Mr. Orlando Cone - Orlando

    
    

18. The names submitted by Kennsco in its conversation and correspondence of June 26, 1995, (Hansel, Strobel, Deshazo, and Cone) are different from those submitted with the bid documents (Deal, Sellers, Robinson and Dremann).

    
    

19. Messrs. Hansel, Strobel, Deshazo and Cone do not work for Kennsco, but work for other companies. Kennsco proposes to arrange for their services through subcontract agreements.

    
    

20. Kennsco has never submitted any certificates evidencing the qualifications of Messrs. Hansel, Strobel, Deshazo and Cone.

    
    

    Facts regarding Bell Atlantic's bid

    
    

21. Bell Atlantic submitted the second-lowest bid, $301,180.00. Bell Atlantic's bid included the following language as part of its response to the requirements of Form E:

    
    

    Bell Atlantic understands and will comply with the above requirements [the requirements printed on Form E] throughout the contract period. As requested above, we have provided the proof of our capabilities of performing the work described in the ITB document in a satisfactory manner on the following pages.

    
    

22. In further response to the requirements of Form E, Bell Atlantic also included the following language in its bid:

    
    

    Bell Atlantic has included herein documented proof that Bell Atlantic a certified Novell Authorized Service Center (NASC), maintains a certified Novell support center, (please reference Exhibit A, letter from Novell Corporation); and has at least 3 Certified Novell Engineers available in the State of Florida.

    At least one of the Certified Novell Engineers is available in the Tallahassee area, (please reference Exhibit B for the Novell Certificates/letter/Identi- fication Number of certified field engineers.)

    
    

    All Bell Atlantic personnel represented herein, have been actively engaged in the type of business being requested for a minimum of two years. These individuals, who will be directly involved in the project, have demonstrated experience in the areas

    delineated in the scope of work. These individuals whose qualifications are presented herein will be committed to the project for its duration unless otherwise excepted by the Department's Project Manager.

    
    

23. Bell Atlantic also included with its bid four CNE certificates of CNE's available in Florida, at least one of which was also available in the Tallahassee area.

    
    

    Facts regarding other matters

    
    

24. After opening the bids, the Department reviewed Kennsco's bid and concluded that it was responsive. Among the factors that influenced the Department's conclusion in this regard was the language in the Kennsco bid reading: "Kennsco has read, understands and accepts the terms and conditions of the Department's ITB."

    
    

25. Kennsco's use of CNE's other than those identified in its bid would not affect the price the State would pay for Kennsco's services. The ITB did not prohibit the use of subcontractors, nor did it require that the CNE's who perform services under the contract be employees of the contractor.

    
    

26. The CNE's who were to be available in Florida were the only personnel for whom the bidders were required to submit evidence of qualifications.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

28. Bell Atlantic and Kennsco both have standing to participate in this proceeding because the outcome of the proceeding may adversely impact the substantial interests of either.

    
    

29. The basic legal principles applicable to a case of this nature are summarized in Systems/Software/Solutions v. Department of Transportation, DOAH Case No. 92-0339BID, Recommended Order issued March 12, 1992, where Hearing Officer Kilbride wrote:

    
    

    1. The law of Florida has established that a strong deference be accorded an agency's decision in competitive bidding situations:

       
       

       [A] public body has wide discretion in solici- ting and accepting bids for public improvements and its decision, when based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.

       
       

       Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).

       
       

    2. In deciding Department of Trans-portation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla.

       1988), the Supreme Court of Florida ruled that the Liberty County decision established the standard by which an agency's decision on competitive bids for a public contract should be measured when it further held that the agency's discretion, as

       stated above, cannot be overturned absent a finding of "illegality, fraud, oppression or misconduct." Groves-Watkins, 530 So.2d at 913.

       
       

    3. The Groves-Watkins standard was recently reiterated in Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1131 (Fla. 1st DCA 1991). In Scientific Games, Inc., the Court was determining the scope of discovery to be permitted in an administrative proceeding concerning the evaluation of an RFP. The Court concluded that the scope of discovery must be viewed in light of the proper standard of review to be employed by the Hearing Officer in these types of proceedings and stated:

    
    

    The Hearing Officer need not, in effect, second guess the members of the evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result . . . "[T]he Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Groves-Watkins, 530 So.2d at 914.

    
    

    Scientific Games, Inc., 586 So.2d at 1131. See also, C.J. Courtenay v. Department of Health and Rehabilitative Services, 581 So.2d 621 (Fla. 5th DCA 1991). (It is not the Hearing Officer's function to reweigh award factors and award to protestor).

    
    

    Other summaries citing additional authorities can be found in the recommended orders issued in the following cases: Bozell, Inc., et al. v. Department of Lottery, et al., DOAH Case No. 91- 3165BID, Recommended Order issued July 25, 1991; Consultec, Inc. v. Department of Administration, Division of State Employees' Insurance, et al., DOAH Case No. 91-5950BID, Recommended Order issued November 13, 1991; Professional Testing Service, Inc. v. Department of Professional Regulation, DOAH Case No. 91-7429BID, Recommended Order issued January 3, 1992; Linder-Funk-Fregley- Oertel Interest v. Department of Corrections and ARC Developmental Companies, Inc., DOAH Case No. 93-0875BID, Recommended Order issued May 5, 1993.

    
    

30. Of particular interest are the following observations by former Hearing Officer Benton in Linder-Funk-Fregley-Oertel Interest, supra:

    
    

31. In Department of Transportation v. Groves- Watkins Constructors, 530 So.2d 912 (Fla. 1988), the Court held that an agency's free-form decision to reject all bids must stand, in the absence of proof that "the agency acted fraudulently, arbi- trarily, illegally or dishonestly." 530 So.2d 914.

32. While it is one thing to defer to an agency's judgment that budgetary constraints, a reordering

    of agency priorities or external economic conditions make it wise for the agency to defer or forego goods or services; see Couch Construction Co. v. Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978);

    Willis v. Hathaway 95 Fla. 608, 117 So. 89 (1928); it is another to oust the Division of Administrative Hearings from its traditional role of recommending agency action on the basis of fact, policy and law established in a neutral forum, when the question

    is which of two (or more) competing bidders is entitled to the award. See Capeletti Brothers v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

    
    

33. The First District has nevertheless extended the narrow Groves-Watkins standard of review to situations where an administrative agency elects to choose among competing bidders, and let the contract. E.g. Procacci v. State Department of Health and Rehabilitative Services, 603 So.2d 1299 (Fla. 1st DCA 1992); Moore v. Department of Health

and Rehabilitative Services, 596 So.2d 759 (Fla. 1st DCA 1992); Scientific Games v. Dittler Bros., Inc., 586 So.2d 1128 (Fla. 1st DCA 1991).

* * *

1. A request for proposals sets out specifications which proposals filed in response must meet in substance in order for the proposer to qualify as a competitor for the contract to be let. The request for proposals is the standard against which proposals are measured to determine whether they are eligible for consideration. Here the request

   for proposals also prescribed certain procedures for evaluation of the proposals. Specifications in invitations to bid, like "[w]ords in [almost] an[y] instrument should be given their natural or most commonly understood meaning." Tropabest Foods, Inc.

   v. State Department of General Services, 493 So.2d 50, 51-2 (Fla. 1st DCA 1986). The same is true regarding requests for proposals.

   
   

2. "Although a bid containing a material variance is unacceptable . . . not every deviation from the invitation is material." Robinson Electrical Co. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982); Tropabest Foods, Inc. v. State Department of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986); Glatstein v. Miami, 399 So.2d 1055 (Fla. 3rd DCA) rev. den. 407 So.2d 1102 (Fla. 1981). Unless the variance from specifications frustrates governmental requirements, it "is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v. State Department of General

Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986); Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1193 (Fla. 2d DCA 1977). The same

principle applies to proposals at variance with specifications in requests for proposals. System Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982).

1. There is no evidence in the record of this case suggesting that the Department acted fraudulently, illegally, or dishonestly. The disposition of this case turns on whether the Department's proposal to award the subject contract to the Intervenor Kennsco Engineering Services, Inc., was arbitrary.

   In this regard, the Petitioner bears the burden of proving by a preponderance of the competent substantial evidence that the Department acted arbitrarily by ignoring material provisions of the ITB and its Addendums.

   
   

2. We learn from Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), that:

   
   

   An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

   
   

3. The Department's proposed award of the subject contract to the Intervenor is based in large part upon an illogical, and thus arbitrary, interpretation of the language in Addendum #1 requiring that the bidder have CNE's "available in the State of Florida" and "available in the Tallahassee area." The Department offered evidence to the effect that by use of the quoted phrases the Department intended to require only that the CNE's be available for telephone consultation, and argued that the Intervenor's bid satisfies that intent. Regardless of what the Department may have intended, the ITB and its Addendums must be interpreted and applied in a manner consistent with the language that actually appears in those documents. The language in those documents cannot logically be construed to have a meaning consistent with that the Department says it intended. Rather, when the quoted phrases are given their "natural or most commonly understood meaning" (Tropabest Foods, Inc. v. State Department of General Services, 493 So. 2d 50, 51 (Fla. 1st DCA 1986)), they require that the bidder have, at the time of submitting its bid, CNE's physically present in the State of Florida and physically present in the Tallahassee area. The ITB and its Addendums also require that the bidder submit evidence of such presence. When it submitted its bid, the Intervenor did not have any CNE's physically present in Florida and, of course, did not submit any evidence of any such presence. The Intervenor's bid was therefore non- responsive, and it would be arbitrary for the Department to award the contract to a non-responsive bidder.

   
   

4. Citing International Properties, Inc. v. State Department of Health and Rehabilitative Services, 606 So.2d 380, 384 (Fla. 3d DCA 1992), the Respondent and the Intervenor argue that the Petitioner cannot prevail because "a party protesting an award to the low bidder must be prepared to show not only that the low bid was deficient, but must also show that the protestor's own bid does not suffer from the same deficiency." The Petitioner has met that showing.

When it submitted its bid, the Petitioner had three CNE's in Florida and one in the Tallahassee area, as required by the ITB. The Intervenor did not. The Petitioner specifically stated in its bid that it had the required CNE's in Florida and Tallahassee, that those CNE's had the required experience, and that they were committed to the project. The Intervenor's bid did not contain any such statements.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department of Transportation issue a Final Order in this case concluding that the bid submitted by the Intervenor Kennsco Engineering Services, Inc., was not responsive to the requirements of ITB-DOT-95/96-9002 and either awarding the subject contract to the lowest responsive bidder or rejecting all bids and readvertising for bids with improved bid specifications.

DONE AND ENTERED this 28th day of November 1995 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 28th day of November 1995.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by Petitioner: Paragraphs 1 through 5: Accepted.

Paragraph 6: Rejected as unnecessary summary of testimony or as

subordinate and unnecessary details.

Paragraphs 7 through 16: Accepted in whole or in substance, with some small modifications in the interest of clarity.

Paragraph 17: Rejected as subordinate and unnecessary details or as irrelevant to the dispositive issues in this case.

Paragraph 18: Accepted.

Proposed findings submitted by Respondent: Paragraphs 1 through 5: Accepted.

Paragraph 6: Rejected as not supported by persuasive competent substantial

evidence. While there was testimony to the effect proposed in this paragraph, that testimony was not persuasive, largely because it is illogical in view of the manner in which the word "available" is used in Addendum #1.

Paragraph 7: Rejected as not completely accurate. The Department's witnesses testified to the effect that the Department interpreted the ITB as not requiring the CNE's to reside in Florida at the time the bids were submitted.

That interpretation is inconsistent with the plain language of the ITB and Addendum #1.

Paragraph 8: Accepted, but with additional facts to put this fact into proper context.

Paragraph 9: Accepted in substance.

Paragraph 10: Rejected as either subordinate and unnecessary details or as irrelevant to the issues in this case.

Paragraphs 11 through 19: Accepted in whole or in substance.

Paragraph 20: Rejected as not completely accurate. While Bell Atlantic did not state the addresses of its CNE's, it did state that they were all available in Florida and that one was available in Tallahassee.

Paragraphs 21 and 22: Rejected as subordinate and unnecessary details or as irrelevant to the issues in this case.

Paragraphs 23 through 31: Accepted in whole or in substance.

Paragraph 32: Rejected because it reflects a Department interpretation of the ITB and Addendum #1 that is contrary to the plain language of those documents.

Proposed findings submitted by Intervenor: Paragraphs 1 through 3: Accepted.

Paragraph 4: First sentence is accepted in substance. Second and third

sentences rejected as argument about the meaning of language in the ITB and Addendum #1. Last sentence rejected as subordinate and unnecessary details or as irrelevant to the issues in this case.

Paragraphs 5 through 8: Accepted in substance.

Paragraph 9: Rejected as subordinate and unnecessary details or as irrelevant to the issues in this case.

Paragraph 10: First three sentences accepted in substance. Last sentence rejected as constituting a "non-fact" based on the absence of evidence. (Absence of proof of inability is not evidence of ability.)

Paragraph 11: Rejected as a combination of subordinate and unnecessary details and argument.

Paragraph 12: First and second sentences rejected as contrary to the language of the ITB and its Addendums. Third and fourth sentences rejected as subordinate and unnecessary details or as irrelevant to the issues in this case.

Paragraph 13: Rejected as argument about subordinate details, some of which argument is inconsistent with the language of the ITB and its Addendums.

Paragraph 14: Accepted in part and rejected in part. Accepted that Kennsco's use of other CNE's would not affect the price to the State. However, exempting Kennsco from requirements of the ITB and its Addendums would give Kennsco an advantage over other bidders and would be adverse to the State's interest in maintaining the integrity of the bidding process.

COPIES FURNISHED:

Gregory P. Borgognoni, Esquire Ruden, Barnett, McClosky, Smith 701 Brickell Avenue, Suite 1900

Miami, Florida 33131

Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

M. Christopher Bryant, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

Attn: Diedre Grubbs, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams, General Counsel Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

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 ten 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: 95-003693BID

Orders for Case No: 95-003693BID