STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAC-TEC, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-6011BID

) DEPARTMENT OF MANAGEMENT ) SERVICES, )

)

Respondent, ) and )

) STIMSONITE CORPORATION, )

)

Intervenor. )

)

SUMMARY RECOMMENDED ORDER

This matter came on for telephone hearing upon the Motions of Respondent's Department of Management Services, Motion for Summary Recommended Order and Amended Motion for Summary Recommended Order and Intervenor's, Stimsonite's Motion for Prehearing Conference and Joinder in Department of Management Services' Motion for Summary Recommended Order on January 11, 1996.

APPEARANCES

For Petitioner: David H. Smith, Esquire (No appearance)

Post Office Box 589 Astor, Florida 32101

For Respondent: Cindy Horne, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

For Intervenor: Mary M. Piccard, Esquire

Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive Tallahassee, Florida 32302-0589

STATEMENT OF ISSUES

Whether Petitioner's bid protest should be dismissed for failure to state with specificity the underlying facts of the protest or facts sufficient to form a basis for a bid protest.

PRELIMINARY STATEMENT

On December 13, 1995, Petitioner Pac-Tec, Inc. filed a Formal Protest pursuant to Rule 60A-1.006, Florida Administrative Code.

On December 15, 1995, Respondent, the Department of Management Services filed a Motion for Summary Recommended Order and on January 4, 1996, Respondent, the Department of Management Services filed an Amended Motion for Summary Recommended Order and on January 8, 1996, Intervenor, Stimsonite Corporation filed a Joinder In Motion for Summary Recommended Order.

A motion hearing was held by telephone on January 11, 1996. All parties were notified of the hearing. Respondent Department of Management Services and Intervenor Stimsonite Corporation were present. Petitioner Pac-Tec was not present.

FINDINGS OF FACT

1. The Petitioner filed a bid protest of Invitation To Bid (ITB) No. 13- 550-002-A for raised pavement markers. Petitioner was disqualified from award of the bid due to the failure to meet the requirement that the products bid must be on the Florida Department of Transportation Qualified Products List at the time of the bid opening.

   
   

2. Petitioner's Formal Protest contains no specific allegations of fact and as such is not in conformance with Rule 60Q-2.004(3), Florida Administrative Code, and Section 120.53(5)(b), Florida Statutes.

   
   

3. On December 20, 1995, the Hearing Officer, sua sponte, entered an order requiring Petitioner to file an amended Formal Protest stating with specificity the facts and law which form the basis for its protest.

   
   

4. The document filed by Petitioner in response to the order in essence:

   
   

   1. States there are on-going discussions with the Florida Department of Transportation, ("FDOT") District V Secretary and the Florida Department of Transportation Secretary that should preempt any further litigation.

   2. Complains that Section 316.0745(4), of the Florida Statutes is being improperly

      interpreted by FDOT so that the State is being forced to purchase a highway safety product at a cost far in excess of prudent purchasing practices.

   3. Alleges that the Petitioner meets all the qualifications of laboratory and field testing required by the Florida Department of Transportation Materials Laboratory . . .

      
      

5. The formal protest filed in this case by Pac-Tec does not provide such notice to the Department of Management Services. Therefore the Department of Management Services cannot prepare an adequate defense to the protest.

   
   

6. The response does not cure the deficiencies in the formal protest.

   
   

   CONCLUSIONS OF LAW

   
   

7. Subsection 120.53(5)(b), Florida Statutes states in relevant part that " . . . the formal written protest shall state with particularity the facts and law upon which the protest is based."

8. Rule 60Q-2.004(3)(e), Florida Administrative Code, states that a petition must contain "A concise statement of the ultimate facts to be alleged, as well as the rules and statutes which entitle the petitioner to relief."

   
   

9. In a case dealing with a Section 120.57, Florida Statutes petition, the First District Court of Appeal described the purpose of a similar requirement regarding a sufficient petition as providing sufficient notice to the defendant of the factual allegations against them. Totura v. Dept of State, Division of Licensing, 553 So. 2d 272, at 274 (Fla. 1st DCA 1989).

   
   

10. Petitioner filed an amended protest which did not contain any facts sufficient to form a basis for this protest.

    
    

11. First, FDOT is not a party to this proceeding and if it were the existence or nonexistence of discussions does not establish the factual and legal grounds for the protest of a bid involving DMS.

    
    

12. Second, from the Petitioner's document it appears that Pac-Tec is not happy with the way the FDOT not DMS has interpreted or applied a certain statute. However, that does not form a viable basis for protesting the contract award. Therefore, no facts setting forth the product or service involved in the bid. What part of the bid specifications are being challenged, or DMS's error in the bid award. At best, this aspect of Pac-Tec's "protest" could only be construed as an effort to challenge the specifications of the invitation to bid. Therefore, the challenge is untimely. Section 120.53(5), Florida Statutes.

RECOMMENDATION

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

That the Department of Management Services issue a Final Order dismissing the Formal Protest filed by Petitioner.

DONE and ENTERED this 24th day of January, 1996, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER, 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 24th day of January, 1996.

COPIES FURNISHED:

Cindy Horne, Esquire

Department of Management Services 4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

David H. Smith, Esquire Post Office Box 279 Astor, Florida 32101

Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589

Tallahassee, Florida 32302-0589

William H. Linder, Secretary Department of Management Services 4050 Esplanade Way

Tallahassee, Florida 32399-0950

Paul A. Rowell, Esquire Department of Management Services 4050 Esplanade Way

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: 95-006011BID

Orders for Case No: 95-006011BID