STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STIMSONITE CORPORATION, )

)

Petitioner, )

)

vs ) CASE NO. 96-0894BID

)

DEPARTMENT OF MANAGEMENT ) SERVICES and MINNESOTA MINING ) AND MANUFACTURING, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing pursuant to Sections 120.53(5) and 120.57 F.S. before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings, on April 1, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner Mary M. Piccard, Esquire Stimsonite: W. Robert Vezina, Esquire

Steven Sellers, Esquire

CUMMINGS, LAWRENCE & VEZINA, P.A.

1004 DeSoto Building

Tallahassee, Florida 32301

For Respondent Cindy H. Horne, Esquire

DMS: Department of Management Services 4050 Esplande Way, Suite 260

Tallahassee, Florida 32301

For Intervenor Geoffrey D. Smith, Esquire

3M: Timothy G. Schoenwalder, Esquire

T. Ross McSwain, Esquire BLANK, RIGSBY & MEENAN, P.A.

204 South Monroe Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

1. Whether the Department of Management Services acted arbitrarily, fraudulently, illegally or dishonestly in rejecting the bid proposed by Petitioner Stimsonite Corporation; and

   
   

2. Whether the Department of Management Services' proposed award of a contract to Minnesota Mining and Manufacturing, Inc. was arbitrary, illegal, fraudulent or dishonest.

PRELIMINARY STATEMENT

On February 6, 1996, Stimsonite Corporation (Stimsonite) timely filed a petition for formal hearing protesting the Department of Management Services's (DMS's) decision to award a contract for supplying reflective sheeting materials for highway signs to Minnesota Mining and Manufacturing, Inc. (3M).

The petition encompassed DMS's rejection of Stimsonite's bids for 1995 ITB 20-550-590-A Nos. 13, 14, 15, and 22. Prior to the day of formal hearing, Stimsonite voluntarily dismissed its challenge to DMS's rejection of Stimsonite's bid for Item No. 14. Therefore, Item No. 14 will not be addressed in this Recommended Order.

Within hours of the formal hearing, 3M filed a Motion for Summary Recommended Order or in the Alternative to Bifurcate Issues. That motion was denied, but was used as a vehicle to determine the extent of stipulations among the three parties, since Petitioner and Respondents had filed unilateral prehearing statements.

Ultimately, all facts as alleged within the motion were stipulated as not in dispute nor requiring of further proof, with the exception of those facts alleged within paragraph 3.(r) on page five of the motion. To the extent appropriate and necessary, the parties' stipulations have been utilized in the preparation of this Recommended Order.

Petitioner Stimsonite presented the oral testimony of Robert Rhine and Genny Boynton and had five exhibits admitted in evidence.

Respondent DMS presented the oral testimony of Buddy Barker and Genny Boynton, and had three exhibits admitted in evidence.

Respondent-Intervenor 3M presented the oral testimony of Dennis Johnson and Julie Burke, and had four exhibits admitted in evidence.

Official recognition was taken of Rule 60A-1.001(16), F.A.C.

A transcript of the proceedings was filed on May 7, 1996. All timely-filed proposed findings of fact have been duly considered and are ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. On or about October 30, 1995, DMS mailed to interested vendors ITB No. 20-550-590-A for Sign Material, Reflective Sheeting & Related Materials. Stimsonite and 3M were among the vendors who received copies of the ITB.

   
   

2. After receiving the ITB, no interested vendor, including Stimsonite and 3M, requested that DMS clarify any of the ITB's general or special terms and conditions.

   
   

3. Similarly, no one timely filed any protest to challenge any ITB terms or conditions.

   
   

4. On or about December 28, 1995, DMS opened the bids submitted in response to the ITB.

5. Thereafter, DMS evaluated the bids and determined which were responsive to the ITB requirements.

   
   

6. Stimsonite and 3M were the only vendors to submit bid prices for ITB Item Nos. 13, 15, and 22, which pertain to reflective sheeting.

   
   

7. DMS's bid tabulations reflect that 3M and Stimsonite offered the following bid prices, per square foot, for reflective sheeting under ITB Item Nos. 13, 15, and 22:

   
   

   Item No.	13	15	22
   Stimsonite	$3.5489	$3.2199	$3.2199
   3M	$3.588	$3.25	$3.25

   
   

8. On or about January 23, 1996, DMS posted the bid tabulations.

   
   

9. DMS's bid tabulations specify an NAS (not as specified) code indicating reasons why it rejected certain bids.

   
   

10. Stimsonite's bids on ITB Item Nos. 13, 15, and 22 were rejected as non-responsive with an indication of NAS Code 1. NAS Code 1 provides: "Vendor did not submit diskette as required by the bid."

    
    

11. Stimsonite admittedly did not include a computer diskette with its 1995 bid. Because of the absence of the diskette, the Stimsonite bid had neither a price list nor a material list.

    
    

12. No responding vendor, except 3M, included a computer diskette in response to the 1995 ITB.

l3. DMS consistently rejected all bids submitted in response to its 1995 ITB which failed to include the required computer diskette(s).

1. In evaluating the 1995 bids, DMS reviewed the material list information that 3M submitted with its bid in hard copy and on computer diskette. DMS posted its intent to award the bid to the only fully responsive bidder, 3M.

   
   

2. Shortly after DMS posted the 1995 bid tabulations with its intent to award to 3M as the only responsive bidder, Stimsonite urged DMS to accept a materials list that Stimsonite had prepared on computer diskette. DMS refused to accept this diskette, which Stimsonite was offering nearly a month after the 1995 bid opening date. DMS rejected Stimsonite's late offering of the diskette because it was offered after bid opening, because it was offered after evaluation of bids, and because DMS's intent to award already had been posted. However, the greater weight of the evidence is that Stimsonite's after-offered diskette would not have met the 1995 ITB specifications even if it had been submitted simultaneously with Stimsonite's bid response. The after-offered diskette failed to offer the required size widths of reflective sheeting or the accessory items used with the sheeting such as process colors, inks, clears, and thinners.

   
   

3. Stimsonite timely challenged the rejection of its 1995 bid as non- responsive and timely challenged DMS's intent to award the contract to 3M.

   
   

4. Stimsonite contended, with regard to its failure to timely submit a conforming diskette, that the clear language of the 1995 ITB did not require the

   submission of a diskette for the items Stimsonite had chosen to bid on, and that submission of such a diskette could legitimately be made only by the successful bidder after bid opening.

   
   

5. The 1995 ITB, which is at issue in this proceeding, contains the following Special Conditions directly related to a material list on Page 4:

   
   

   FORMAT FOR SUBMISSION OF BID

   
   

   On all bids which require any of the following documents:

   1. Manufacturer's or Dealer's Published Price Lists,

   2. Authorized Dealer's List

   3. Authorized Service Center Locations.

      
      

      Bidder shall provide these documents, with his bid, in a letter quality text response and with computer diskette media. The format for the computer diskette media shall be:

      
      

      1. WordPerfect 5.1 file format using an IBM Compatible Personal Computer,

      2. On 8-1/2" x 11" paper with portrait orientation,

      3. Margins: Left: minimum .3 inch; Right: minimum .8 inch, Top & Bottom: minimum

         .5 inch,

      4. Font: Courier 10 cpi,

      5. 3.5 or 5.25 inch diskette media,

      6. No landscape, No Tables or Columns, No Line Draw, No pictures, No strike- throughs and No Graphics allowed.

      
      

      These documents shall be submitted in hard copy as well as on 3.5 or 5.25 inch diskette media. [Failure to comply with this requirement will result in disqualification of your bid.]

      [Emphasis supplied]

      
      

      MATERIAL LIST

      
      

      A material list shall be provided on diskette formatted as specified in the Special Cond- ition "FORMAT FOR SUBMISSION OF BID" along

      with a print out of same for each item bid. The information must include product number for color, and size specified sheeting under the DMS thirteen (13) digit commodity number. If prices are included on the materials list they must be contract prices. [This list may be included on the same diskette as "Format for Submission of Bid" listed above.] (Emphasis supplied)

      
      

6. Some other provisions of the 1995 ITB which affect the issues in this case are as follows:

   1. General Condition 4(b) on page 1 of the ITB specifies: ELIGIBLE USERS: Under Florida Law use of State contracts shall be available to political sub- divisions (county, local county board of

      public instruction, municipal or other local public agency or authority) and State Univer- sities, which may desire to purchase under the terms and conditions of the contract.

      
      

   2. General Condition 5 provides:

      ADDITIONAL TERMS AND CONDITIONS: No addition-

      al terms and conditions included with the bid response shall be evaluated or considered and any and all such additional terms and condi- tions shall have no force and effect and are inapplicable to this bid. If submitted either purposely through intent or design or inadver- tently appearing separately in transmittal letters, specifications, literature, price lists or warranties, it is understood and agreed the general and special conditions in this bid solicitation are the only conditions applicable to this bid and the bidder's autho- rized signature affixed to the bidder acknow- ledgment form attests to this.

      
      

   3. General Condition 7 states: INTERPRETATIONS/DISPUTES: Any questions con- cerning conditions and specifications shall be directed in writing to this office for receipt no later than (10) days prior to the bid opening. Inquiries must reference the date of the bid opening and the bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full comp- liance with this provision. . .

      
      

   4. General Condition 15 states:

      LEGAL REQUIREMENTS: Applicable provisions of all Federal, State, county and local laws, and of all ordinances, rules and regulations

      shall govern development, submittal and evalua- tion of all bids received in response hereto and shall govern any and all claims and dis- putes which may arise between person(s) hereto and the State of Florida, by and through its officers, employees and authorized represent- atives, or any other person natural or other- wise; and lack of knowledge thereof shall not constitute a legal defense against the effect thereof.

      
      

   5. General Condition 26 provides that:

      [THE SUCCESSFUL BIDDER(S) MUST PROVIDE: a copy

      of any product literature and price list, in

      excellent quality black image on white paper.] [Emphasis supplied]

      
      

   6. On the bottom of page 2, after the list of General Conditions, there is a note which states: [ANY AND ALL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE.] THIS SHEET AND THE ACCOMPANYING BID CONSTITUTE AN OFFER

      FROM THE BIDDER. IF ANY OR ALL PARTS OF THE BID ARE ACCEPTED BY THE STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, AN AUTHORIZED REPRESENTATIVE OF THE DIVISION OF PURCHASING OF THE DEPARTMENT OF MANAGEMENT SERVICES, SHALL AFFIX HIS SIGNATURE HERETO, AND THIS SHALL THEN CONSTITUTE THE WRITTEN AGREEMENT BETWEEN PARTIES. THE CONDITIONS OF THIS FORM BECOME A PART OF THE WRITTEN AGREEMENT BETWEEN THE PARTIES.

      [Emphasis supplied]

      
      

   7. Page 2A of the ITB contains a Vendor Bid Preparation Checklist. No. 16 thereof reminds all bidders to review the FORMAT FOR SUBMISSION OF BID for compliance with bid requirements.

      
      

   8. After the list of General Conditions, the Special Conditions begin on page 3 of the ITB. Among

   the Special Conditions of note in addition to the FORMAT FOR SUBMISSION OF BID and MATERIAL

   LIST, stated above, are:

   
   

   PURPOSE: ...to establish a 12 month contract by all State of Florida agencies and other eligible users ...

   
   

   TECHNICAL DOCUMENTATION: ... When technical documentation is required by this ITB, its pur- pose is to demonstrate compliance of the pro- duct bid with applicable technical require- ments of the ITB and to allow a technical evaluation of the product. [Failure to provide the required technical documentation with the bid submittal shall make the bidder nonre- sponsive], unless the Division of Purchasing, in its sole discretion and in the best inte- rest of the State, determines the accept- ability of the products offered through technical documentation available within the Division [as of the date and time of bid opening]. ... [Emphasis supplied]

   
   

   ACCESSORIES: [Inks, colors, clears, and thinners, required for use with non-perfor- ated commodities shall be included in the price per square foot bid price.]

   [Emphasis supplied]

   BALANCE OF LINE: [The bidder shall bid a balance of line which will include options and accessories at a fixed discount. Only vendors awarded specified sheeting items

   will be eligible for a balance of line award. Items in the balance of line which are dupli- cative of those specified will be deleted.

   The balance of line price list must be in effect on the date and time of the bid opening]. [Emphasis supplied]

   
   

7. The Specification Summary and Bid Price Sheets for bidding items 13, 15, and 22 of the ITB are found on pages 25, 26, and 27 of the ITB and were as follows:

   
   

   SPECIFICATION SUMMARY AND PRICE SHEET

   
   

   COMMODITY NUMBER AND DESCRIPTION NET DELIVERED PRICE

   
   

   550-590-350-0100

   Sheeting, not perforated, reflective, Type IIIA, or Type IIIC sizes 1" through 48" by

   50 yds, with a precoated pressure sensitive adhesive backing (Class I). Primer Not Required. Sheeting (Both Types) shall be available in no less than the following colors: blue, brown, green, yellow, and silver-white.

   
   

   Sheeting Manufacturer:

   Product No./Series: FDOT Qualified Products

   List Approval No.

   
   

   $ PER SQ. FT. (13

   
   

   [Inks, colors, clears and thinners for use with non-preforated commodities shall be in- cluded in the per square foot price bid]. [Emphasis supplied]

   
   

   VENDOR:

   
   

   SPECIFICATIONS SUMMARY AND PRICE SHEET COMMOD- ITY NUMBER AND DESCRIPTION NET DELIVERED PRICE

   
   

   550-590-350-0120

   Sheeting, not perforated, reflective, Type IIIA, or Type IIIC sizes 1" through 48" by

   50 yds, with a precoated pressure sensitive adhesive backing (Class I). Primer Not Required. Sheeting (Both Types) shall be available in no less than the following

   color: orange

   Sheeting Manufacturer: Product No./Series: FDOT Qualified Products

   List Approval No.

   
   

   $ PER SQ. FT. (15

   
   

   [Inks, colors, clears and thinners for use with non-preforated commodities shall be included

   in the per square foot price bid.] [Emphasis supplied]

   
   

   VENDOR:

   
   

   SPECIFICATION SUMMARY AND PRICE SHEET COMMODITY NUMBER AND DESCRIPTION NET DELIVERED PRICE

   
   

   550-590-760-2600

   Reflective sheeting, construction barricade sheeting, Type IIA, or IIIA, or IIIB, or IIIC pressure sensitive adhesive backing (Class I). 4" or 6" orange and white or orange and silver strips running diagonally across the sheeting at a 45 degree angle, size 12", 24" and 36" by 50 yds.

   
   

   Sheeting Manufacturer:

   Product No./Series: FDOT Qualified Products

   List Approval No.

   
   

   $ PER SQ. FT. (22

   
   

   [Inks, colors, clears and thinners for use with non-preforated commodities shall be in- cluded in the per square foot price bid.] [Emphasis supplied]

   
   

   VENDOR:

   
   

8. After the item-by-item specifications, the ITB provides a page (page

   39) of specification summary and price sheet for bidding the "balance of line discount offered for directly related sign material, not specified on the Bid Price Sheet." That format requires that the bidder state a fixed percentage discount from the price list for balance of line items.

   
   

9. "Balance of Line" as used by DMS in the ITB refers to any and all accessories that might be used with the individual Items that are bid.

10. Stimsonite's bid supervisor claimed that Stimsonite's failure to submit a diskette containing a material list was a reasonable, and indeed a clear and unambiguous, reading of the 1995 ITB. He had read the ITB to provide that the three categories of list (a manufacturer's or dealer's published price list, authorized dealer list, or authorized service center location list) which were named under the Special Condition, FORMAT FOR SUBMISSION OF BID, on page 4 were required to be submitted on a diskette with the bid, but he also considered that the diskette was not required for the three items that Stimsonite bid upon (Items 13, 15, and 22 on pages 25, 26, and 27 at Finding of Fact 20 supra) because none of the categories of list under FORMAT were required specifically within those Item No. specifications on the subsequent specification pages. Apparently due to the admonition at the bottom of ITB page 2 of the General Conditions [see Finding of Fact 19(f)], he assumed that the Item No. instructions on the specifications and price summary sheets on pages 25, 26, and

    27 took precedence over, i.e. supplanted, the Special Condition MATERIAL LIST paragraph requiring a material list for every item in both hard copy and on diskette which also included the requirement of including product numbers for color, size, and DMS commodity numbers.

    
    

11. Stimsonite's bid supervisor also asserted that because the Special Condition MATERIAL LIST paragraph and the Item No. specifications of pages 25, 26, and 27 did not specifically reiterate that the material list diskette must be submitted with the bid, the material list diskette legitimately could be submitted after the bid award, as was attempted by Stimsonite. He ostensibly interpreted General Condition 26, applicable to successful bidders, to mean that only successful bidders must provide a price list and a material list. Accordingly, Stimsonite further argued in the alternative that even if the ITB could be construed to require submission of a material list on diskette, Stimsonite's failure to submit the diskette to DMS with the rest of its bid response was only a minor irregularity unworthy of being ruled unresponsive because DMS had no substantive need for the information on the material list diskette until it decided which bidder was going to be the successful bidder. The bid supervisor's perception that the information on the diskette was not needed for bid evaluation purposes was another reason he ostensibly did not timely submit a diskette. Stimsonite has not asserted that late submission was a waiveable irregularity. 1/

    
    

12. In fact and to the contrary, the diskette is used by DMS to evaluate bids for responsiveness. This evaluation technique was introduced in 1994. It allows the reviewer, in this case, Ms. Boynton, to use the material list on the diskette to determine if each bidder has actually bid everything DMS asked for in the item by item specifications. Without a diskette, the reviewer cannot confirm that a bid matches the ITB.

    
    

13. DMS uses the bidder's material list on diskette to confirm that the bidder currently manufactures the full range of sheeting widths and sizes (1 inch through 48 inches by 50 yards), as the ITB requires, which is a nonstandard range in the reflective sheeting industry. Additionally, DMS uses the material list diskette to confirm that the bidder proposes to make the full range of required sheeting widths and sizes available to state and local government purchasers. (See General Condition (4)(b) ELIGIBLE USERS and Special Condition PURPOSE in the ITB) DMS also uses the material list diskette to ensure that the bidder will make the required range of inks, clears, colors, and thinners available at the bid price.

    
    

14. After the bid has been awarded, Ms. Boynton also uses the diskette for dissemination to contract users for ordering purposes on the electronic contract

    system. The diskette system saves DMS the time and cost of wordprocessing data from hard copy and avoids transcription erors. This was one of the purposes behind DMS' decision to start requiring a diskette in 1994. It comports with General Condition 4(b) ELIGIBLE USERS and Special Conditions PURPOSE.

    
    

15. The Stimsonite bid supervisor did not have a manufacturer's price list and was not offering any accessories other than those inks, etc. covered under the Special Condition ACCESSORIES paragraph and those stated on pages 25, 26, and 27. Therefore, he did not read the Special Condition BALANCE OF LINE paragraph saying duplicates listed on page 39 for balance of line would be disregarded by DMS as an indicator that DMS expected any balance of line bids to include more than just the inks, etc. listed under ACCESSORIES and on pages 25, 26, and 27. Because he could not conceive of any balance of line more extensive than the inks, etc. which seemed to him to be excluded by the language on the specifications summary and price sheets for each Item No. (ITB pages 25, 26, and

    27) and the balance of line summary and price sheet (page 39), and because Stimsonite was offering these inks, etc. within the price per square foot of sheeting at no extra charge on pages 25, 26, and 27, Stimsonite's bid supervisor felt that the diskette was not needed to evaluate these prices.

    
    

16. Therefore, when he showed a balance of line on the balance of line summary sheet (ITB page 39) he showed no discount and he submitted no material list or price list on diskette.

    
    

17. The ITB required a discount if a balance of line was offered under Special Condition BALANCE OF LINE.

    
    

18. According to DMS employees, a price list was only necessary if a balance of line was bid. If a balance of line was bid, then a price list was necessary.

    
    

19. The result of Stimsonite's interpretation of the 1995 ITB was that Stimsonite submitted a bid without a diskette which therefore contained neither a price list nor a material list. The hard copy offered a balance of line with no discount from a price list.

    
    

20. Responsiveness in bidding Item Nos 13, 15, and 22 in 1995 did not require that vendors submit an authorized dealer's list or service center location list. The ITB used the language "shall submit" with regard to bidding a balance of line, but according to Ms. Boynton, the evaluator, and Mr. Barker, Chief of DMS's Bureau of Procurement, submission of a balance of line was not mandatory. Ms. Boynton speculated that if DMS did not get a balance of line bid from a responding bidder, DMS "might possibly find it was a minor irregularity." Clearly, the ITB provided that if there were any duplications on the balance of line offering, the agency could unilaterally delete them. However, if a vendor did bid a balance of line, DMS would need a price list, since with a balance of line and no price list, there was no way to evaluate the bid because DMS then could not calculate what the percentage reduction would be based upon. Therefore, under this situation in 1995, Stimsonite's balance of line bid with no price list on diskette was rejected as nonresponsive. 2/

    
    

21. The greater weight of the credible evidence, particularly but not exclusively that of Ms. Boynton, Mr. Barker, and Mr. Johnson, is that allowing any bidder to turn in the diskette after bid opening and award would give that bidder the advantage of changing the balance of line prices. If permitted to submit the material list after award, the bidder could elect to offer only one size which would impose an additional cost on the contract users to provide

    labor and expertise to cut to size, thus lowering the bidder's cost. Under a scenario which required only successful bidders to submit a diskette, DMS would not have the opportunity to reject the bid if the information on the diskette was nonconforming to the bid specifications. The bidder who delayed or never submitted a diskette also could exclude cities and counties from the cost-saving electronic contract system and could take telephone orders from the Department of Transportation, one of the agencies eligible to tie-in to DMS's electronic contract. Requiring a diskette only after award might permit the successful bidder to limit the sizes and colors offered. By not submitting a diskette at all, even late, a bidder could even disqualify its bid and back out of the contract if that bidder unilaterally decided its bid was too low or if the price of raw materials increased. Experience with successful bidders who ultimately failed to submit a material list at all was another reason for DMS's decision to start requiring a diskette in 1994.

    
    

22. Any of the foregoing situations creates an advantage to the bidder who files a diskette late or the bidder who never files a diskette. Any of the foregoing situations increases costs to the state agency and contract users. Factually, this is a material irregularity.

    
    

23. Stimsonite alleged that 3M was unresponsive because its bid transmittal letter contained a paragraph on terms and conditions of sale and warranties. However, it appears that the warranty language in 3M's transmittal letter actually enhances its bid. Also, it is standard practice for DMS to ignore these letters pursuant to ITB General Condition 5, which states that transmittal letter variances are of no force and effect. Factually, since 3M's letter cannot be relied upon by 3M either to enhance or diminish its bid, and since all such letters are disregarded in the bid evaluation/tabulation, the transmittal letter is a minor, nondisqualifying irregularity as to the 3M bid.

    
    

24. Stimsonite asserted that the 3M diskette was not responsive to the ITB specifications. There is no dispute that the diskette 3M submitted was in the wrong font. However, since font size can be customized by a "click" on a computer mouse, and since Ms. Boynton was able to use 3M's diskette for the purposes intended by the ITB specifications, the irregular font size of 3M's diskette is found factually to constitute an immaterial flaw not worthy of declaring 3M's bid nonresponsive.

    
    

25. Finally, Stimsonite contended that because the 3M bid failed to answer an ITB question that requested information about why a vendor's price list was item by item higher or lower than previous years, the entire 3M bid was unresponsive. This contention was not acknowledged as viable by the agency witnesses. DMS, like 3M, viewed this question as only information gathering for some cost trend analysis by the agency apart from bid evaluation. The information requested could not alter the bid price offered by 3M and is not necessary to DMS's evaluation of its bid or comparison of its bid with other bids. It is a flaw systematically ignored by the agency in bid evaluation. There was no evidence that any bid has ever been rejected for such a flaw. The absence of such information does not affect the cost to the agency nor does its absence provide an advantage to 3M. Factually, it is a minor irregularity.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

27. A Special Condition labeled, "MATERIAL LIST" in the ITB provides that a material list in hard copy and on computer diskette shall be submitted. This is mandatory language. Mandatory language is normally considered disqualifying language when not met. Stimsonite did not meet this Special Condition of the ITB.

    
    

28. Stimsonite's assertion that because the ITB established a different format on pages 25, 26, and 27 for the three items Stimsonite bid upon and that format did not repeat the Special Condition of a material list in hard copy and on diskette for each item is a tortured reading of a fairly straightforward bid requirement. Stimsonite's assertion that because each part of the ITB did not include the admonition that all bidders, not just successful bidders, must comply with the Special Condition of submitting a material list in hard copy and on diskette also is a tortured reading of the ITB. Both interpretations fly in the face of the clear language of the ITB. Courts favor an interpretation of bid or contract provisions using the plain meaning of words. See, Quesada v. Director, Federal Emergency Management Agency, 577 F. Supp. 695 (S.D. Fla. 1983), and Tropabest Foods, Inc. vs. State, Department of General Srvices, 493 So.2d 50 (Fla. 1st DCA 1986). Common sense suggests that a straightforward analysis of bid language is always best.

    
    

29. Moreover, Stimsonite's construction of the ITB attempts to abrogate the fundamental rule that all bids must be complete upon opening. Stimsonite's argument that the ITB provision that special conditions take precedence over general conditions and therefore the ITB's failure to include the requirement of a diskette within the specifications for each of Items 13, 15, and 22 on pages 25, 26, and 27 is not persuasive. Clearly, the agency intended, and the ITB contemplates, that general conditions and special conditions apply to all the specifications for each Item the agency was requesting vendors supply.

    
    

30. Stimsonite's bid did not include a material list diskette ostensibly because its bid supervisor did not think a diskette was required until after the award of the bid due to General Condition 26. Otherwise, he did not believe that a price list was necessary at all, because Stimsonite did not have a manufacturer's price list as specified under the Special Condition FORMAT FOR SUBMISSION OF BID; because the Items pages did not require one; because Stimsonite's balance of line items were included in their bid price; or because DMS had no use for this information until after a successful bidder was announced.

    
    

31. Stimsonite's position on BALANCE OF LINE is convoluted but basically boils down to an assertion that if it stated throughout the document it was charging nothing outside the square footage cost, Stimsonite ought not to have to clarify what it was doing with balance of line pricing on diskette or otherwise. The undersigned has considered that Ms. Boynton speculated that balance of line bids could be waiveable in some instances, however the ITB is clear. It states under Special Conditions on page 6 that a balance of line bid is required and must show a discount percentage. It further states that the balance of line does not include any of the items otherwise specified in the bid (such as inks, clears, etc.) and that duplications will be deleted. This is repeated on the Items specifications sheets (pages 25, 26, and 27) and on the final balance of line price sheet (page 39) where the discount percentage is again requested. Read together, the plain meaning is that the agency was seeking to find out if the bidder was offering a balance of line of some accessories list more extensive than the inks etc. asked for on pages 25, 26, and 27. If there were any confusion, Stimsonite should have raised a timely question concerning the specifications before the bid was submitted. Stimsonite

    ignored the plain meaning of this condition by insisting that "balance of line" in the ITB consisted of only the items listed as Special Condition ACCESSORIES or as part of the bid price on pages 25, 26, 27, and 39.

    
    

32. Contrary to Stimsonite's assertions, the ITB special condition language that, "A material list shall be provided on diskette . . . for each item bid. ... This list may be included on the same diskette as 'Format for Submission of Bid' listed above," does not equate with Stimsonite's interpretation that "only awarded contract bidders shall submit material lists."

    
    

33. The format for the material list diskette is described under FORMAT FOR SUBMISSION OF BIDS. The ITB clearly states that the diskette is to be submitted with the bid and that failure to include the diskette is grounds for disqualification. The opportunity to include the material list for each Item on the same diskette with the manufacturer's or dealer's published lists, authorized dealers list, and/or the authorized service center locations lists when any one or all of those three other lists are also required does not reasonably equate with Stimsonite's reading that when none of those other three lists are required, a bidder then does not have to submit the mandatory materials list.

    
    

34. The ITB clearly states the material list must include product number for color, and size specified sheeting under the DMS commodity number, and if prices are included, it must include prices at the contract price. DMS uses the diskette to confirm during the bid evaluation that the required materials and price discount are being offered in the bid. That evaluation cannot be accomplished after the bid is awarded.

    
    

35. Despite 3M's urging, Stimsonite's attempt to file a non-complying material list on diskette after disqualification does not necessarily suggest any nefarious doings by Stimsonite, but under the circumstances of this case, it also renders not credible the assertion that Stimsonite believed a diskette was required only from a successful bidder. Moreover, the flawed diskette that Stimsonite presented after the fact further demonstrates why a bidder's omission of its material list from its bid is not a waiveable minor irregularity.

    
    

36. Rule 60A-1.002(16) F.A.C. establishes what constitutes a minor irregularity:

    
    

    A variation from the invitation to bid/request for proposal terms and conditions which does not affect the price of the bid/proposal, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency.

    
    

37. Upon the foregoing rule's definition, Stimsonite's omission of the diskette cannot be considered "minor". For all the factual reasons enumerated in Findings of Fact 25, 26, 34, and 35, the failure to timely file a complying diskette creates an advantage for Stimsonite, could affect the price of the proposal, and adversely impacts on the interests of the agency. Legally, Stimsonite's omission is not a minor irregularity, and the agency has not acted fraudulently, arbitrarily, or capriciously in rejecting Stimsonite's bid.

    
    

38. Legally, upon the foregoing definition, 3M's transmittal letter, the font size of 3M's diskette, and 3M's failure to answer a general marketplace

    price question are minor irregularities (see Findings of Fact 36-38), and DMS's inherent waiver of them by its posted intent to award to 3M, was proper and not fraudulent, arbitrary, or capricious.

    
    

39. Finally, Stimsonite asserted the purely legal argument that Sections 287.057(1) and 287.012(5) F.S. preclude DMS from awarding a contract to 3M if 3M is found to be the only responsive bidder. Stimsonite asserted that recent amendments to these statutes, in effect, "overrule" the only case on point, Satellite Television Engineering, Inc. v. Dept. of General Services, 522 So. 2d

    440 (Fla. 1st DCA 1988). That case allowed an award when there was only one responsive bidder after another bidder was disqualified. Stimsonite's construction of the later statute is not persuasive. While the better course sometimes may be to relet all bids when an agency feels that it could do better if it could entice more bidders to compete with one another, that course is not always wise or prudent. There are often situations in which, due to the nature of a contract, only the same two vendors will ever bid on a particular ITB. Based on the fact that only 3M and Stimsonite bid on the three items at issue here (see Finding of Fact 6) that is a real possibility in this case. In such situations, every time one vendor is found unresponsive, the agency would be put to the effort and expense of readvertising the bid and then face the greater chance that both vendors would second-guess each other on pricing, thereby increasing the cost to the agency. Surely, that cannot be the intent of the legislature with regard to its amendments. It is concluded that this contract properly may be awarded to 3M as the sole responsive bidder.

    
    

40. In reaching the foregoing conclusions of law, the undersigned has not considered the effect of the parties' prior course of dealing during the 1994 ITB letting. (See Endnotes to Findings of Fact 24 and 33) Stimsonite's consistent position throughout these proceedings has been that the 1994 bidding process was irrelevant, based upon Caber Systems v. Department of General Services, 530 So. 2d 325 (Fla. 1st DCA 1988) and Aurora Pump v. Goulds Pump, Inc., 424 So. 2d 70 (Fla. 1st DCA 1982). Those cases are more on point of the present situation, than are the cases cited by Respondents. However, it is noted that if the 1994 bid letting history could be considered herein, it would not alter the recommendation.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Management Services enter a final order

ratifying its award of ITB 20-550-590-A Item Nos. 13, 15, and 22 to Minnesota Mining and Manufacturing, Inc. and dismissing the bid protest Petition of Stimsonite.

RECOMMENDED this 14th day of June, 1996, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 14th day of June, 1996.

ENDNOTES

1/ This endnote is included in an abundance of caution so as to avoid any need for reconsideration due to conflicting case law on admissibility of "course of dealing" evidence. However, the evidence which is its basis is ruled irrelevant for the reasons given in Conclusion of Law 53.

If relevant, the evidence would show that in response to the identical Material List Special Condition in DMS's 1994 ITB, Stimsonite and 3M each prepared and included with their respective 1994 bids a Material List in hard copy and on computer diskette. That year, DMS awarded Stimsonite the contract for the three ITB Item Nos. that are now at issue in this instant 1995 ITB bid award challenge. That year, DMS did not penalize Stimsonite for not submitting a price list, dealer's or manufacturer's list, or a balance of line because Stimsonite had submitted a Material List with all the sizes and all the materials for the price list. Ms. Boynton, who initially evaluated the 1995 bid responses for DMS, speculated that if Stimsonite had merely done what it did in the prior year, it might not have been rated non-responsive in regard to the 1995 ITB here at issue.

This evidence, if relevant, would support Respondents' argument that Stimsonite's "corporate amnesia" in 1995 undermines Stimsonite's assertion herein that a clear reading of the identical provision in the 1995 ITB does not require that a Material List diskette be filed simultaneously with the 1995 bids.

It would not show that Stimsonite was evaluated differently in 1995 than in 1994.

2/ See Endnote 1.

APPENDIX TO RECOMMENDED ORDER CASE NO. 96-0894BID

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Stimsonite's PFOF:

1-10 Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated.

1. Rejected upon a reconciliation of all relevant, competent, credible evidence, without relying on material out of context or not supported by the record as a whole. See FOF 25, 26, 27, 34, and 35.

2. The proposed facts in the first sentence are accepted. The legal conclusion is rejected for all the reasons outlined in the Recommended Order.

3. Rejected as stated upon a reconciliation of all relevant, competent, credible evidence, without relying on material out of context or not supported by the record as a whole. See FOF 22-35.

4. Rejected as subordinate, nondispositive, out of context and misleading.

5. Rejected upon a reconciliation of all relevant, competent, credible evidence, without relying on material out of context or not supported by the record as a whole. See FOF 22-35.

6. Rejected as without supporting citations to the record and upon a reconciliation of all relevant, competent, credible evidence, without relying on material out of context or not supported by the record as a whole. See FOF 22- 35.

7. Rejected upon a reconciliation of all relevant, competent, credible evidence, without relying on material out of context or not supported by the record as a whole. See FOF 22-35.

8. Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated.

9. Rejected upon a reconciliation of all relevant, competent, credible evidence, without relying on material out of context or not supported by the record as a whole. See FOF 22-35.

10. Rejected as not supported by the greater weight of the credible evidence. See FOF 36.

DMS's PFOF:

1-18 Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated

19-31 Rejected as subordinate to the facts as found, or in parts, irrelevant or mere legal argument. See the discussion of irrelevance of prior ITBs and contracts within the Conclusions of Law.

1. Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated

2. Rejected as subordinate to the facts as found.

34-40 Accepted as subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated.

41 Rejected; see the Conclusions of Law.

42-44 Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated.

45 Rejected as subordinate to the facts as found.

46-48 Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated

3M's PFOF:

1-a---r Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated

Unnumbered paragraph Covered in the Preliminary Statement

1-12 Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated

13-18 Rejected as subordinate to the facts as found, or in parts, irrelevant. See discussion of irrelevance of prior ITBs and contracts within the Conclusions of Law.

19-22 Rejected as subordinate to the facts as found. 23-25 Rejected as subordinate to the facts as found.

1. The first sentence is accepted but is subordinate to the facts as found. The second sentence is rejected as legal argument.

2. Rejected as irrelevant and as legal argument. See the Conclusions of Law on relevancy.

28-34 Accepted, but unnecessary, subordinate, cumulative, and/or irrelevant material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated See the Conclusions of Law on relevancy.

35 Rejected as a Conclusion of Law.

36-38 Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated

39 Rejected as legal argument.

40-46 Accepted, but unnecessary, subordinate, and/or cumulative material has not been adopted. Likewise, any interspersed legal argument has not been accepted nor incorporated

COPIES FURNISHED:

W. Robert Vezina, III, Esquire Mary M. Piccard, Esquire Steven E. Sellers, Esquire

CUMMINGS, LAWRENCE & VEZINA, P.A.

1004 DeSoto Park Drive Tallahassee, Florida 32302-0589

Cindy Horne, Esquire

Department of Management Services Suite 260

4050 Esplande Way

Tallahassee, Florida 32399-0950

Timothy Schoenwalder, Esquire BLANK, RIGSBY & MEENAN, P.A.

Post Office Box 11068 Tallahassee, Florida 32302-3068

William H. Lindner, Secretary Department of Management Services 4050 Esplande Way

Tallahassee, Florida 32399-0950

Paul A. Rowell, Esquire Department of Management Services 4050 Esplande 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: 96-000894BID

Orders for Case No: 96-000894BID