STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

ENABLING TECHNOLOGIES COMPANY, )

)

Petitioner, )

)

vs. )

) FLORIDA DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, )

) CASE NO. 96-3265BID

Respondent, )

and )

)

EASY TALK, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on July 30, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert A. Schenk, President

Enabling Technologies, Inc. 3102 Southeast Jay Street Stuart, Florida 34997

For Respondent: Sonja P. Mathews, Esquire

Legal Office

Department of Labor and Employment Security

The Hartman Building, Suite 307 2012 Capital Circle Southeast Tallahassee, Florida 32399-2189

For Intervenor: Kerey Carpenter, Esquire

Attorney for Easy Talk 1228 North Adams Street

Tallahassee, Florida 32303 STATEMENT OF THE ISSUES

Petitioner has protested the intended award of bid No. 96-036-VA to a competing bidder (Intervenor). Because Petitioner's bid was disqualified for non-responsiveness, the threshold issue is whether Petitioner has standing to protest the intended award.

Petitioner contends that Intervenor's hardware fails to meet bid specification minimum requirements for speed and noise. If standing is established, the issue then is whether the agency's intended award to Intervenor is fraudulent, arbitrary, illegal or dishonest.

PRELIMINARY STATEMENT

Petitioner's formal written protest was forwarded to the Division of Administrative Hearings on July 15, 1996 and an evidentiary hearing was scheduled pursuant to section 120.53, Florida Statutes. In compliance with rule 60Q-2.006, Florida Administrative Code, counsel for Respondent provided notice of the protest to all of the bidders.

On July 17, 1996 Respondent filed its motion to dismiss and affirmative defense. The motion was taken under advisement pending consideration of the evidence presented at hearing. The disposition of the motion is addressed in the conclusions of law, below.

Two other bidders filed requests to intervene in the proceeding: E. M. Vitu, Inc. and Easy Talk. When E. M. Vitu failed to appear at hearing, having apparently resolved its concerns, the request to intervene was deemed abandoned. Without objection, the hearing officer granted Easy Talk's request to intervene and that party, through counsel, participated in the proceeding by cross- examining witnesses.

Petitioner presented the testimony of Robert A. (Tony) Schenk and offered seven exhibits. Petitioner's exhibits nos. 1 through 6 were received in evidence; exhibit no. 7, a withdrawn protest by Easy Talk, was rejected as irrelevant and was marked for identification only. Respondent presented the testimony of Sylvia Voyles and four exhibits, nos. 1 through 4, which were received in evidence without objection.

The transcript was filed on August 12, 1996; thereafter, Petitioner and Respondent filed timely proposed recommended orders. The attached appendix addresses the findings of fact proposed by each. In addition, Petitioner filed a notice of errors in the transcript, argument in a memorandum dated August 23, 1996 and an "analysis" dated August 22, 1996. These have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. On or about February 14, 1996, Respondent, the Department of Labor and Employment Security (DLES), issued an Invitation to Bid, bid number 96-036-VA soliciting competitive bids for Braille embossers and Braille software. More specifically, the bid specifications describe the purpose of the invitation

   
   

   ...to obtain competitive bid prices for heavy duty desktop interpoint braillers; braille translation software licenses, diskettes,

   and documentation; sound enclosures (if necessary to meet bid specifications); and warranty/maintenance on same for the Department of Labor and Employment Security, Division of Blind Services.

   (Respondent exhibit no. 3)

2. The specifications required, in pertinent part, that the bidder include three references of current owners of the printer model bid, including one owner who had operated the equipment for more than six months. The specifications also provided that after initial bid packages were reviewed and recommended, but prior to award of the bid, an on-site demonstration of the printer must be enacted by the selected vendor.

   
   

3. Specifications for the printer included these relevant requirements:

   
   

   * * *

   Printer must be an interpoint printer - simultaneous embossing of both sides of a sheet.

   * * *

   Printer must print at a minimum speed of 40 characters per second (cps), per side, or

   120 pages an hour, and a minimum of 40 braille characters per line, per side of paper.

   * * *

   If the noise level of the printer bid exceeds 60 dba, a sound enclosure must be included as an essential component of the bid package, one enclosure included per printer bid (per subsection "B" below).

   Total unit bid - with sound enclosure if necessary - must operate (printing and/or standing) at no more than 60 decibels.

   * * *

   (Respondent's exhibit no. 3)

   
   

4. An addendum to the Invitation to Bid was issued on March 19, 1996. The addendum changed the bid opening to April 2, 1996 and amended the printer specification related to minimum speed, as follows:

   
   

   Printer Specifications (B) (Page 10 of 18) Last paragraph on the page is to read as follows:

   "Printer must print at a minimum speed of

   40 characters per second (CPS), per side, or 120 total pages per hour; with a minimum of 40 braille characters per line per side of paper."

   (Respondent's exhibit no. 3)

   
   

5. Several firms responded to the invitation. Intervenor, Easy Talk, submitted four separate bids for different equipment at different prices. One of Easy Talk's bids was initially selected as the apparent low bid, but was then disqualified for lack of references. Petitioner Enabling Technologies' was the next lowest bid but it, too, was disqualified when its references revealed that none owned the machine being bid by Petitioner, the Juliet ET. Instead, they owned the Juliet model. Petitioner does not dispute these facts nor does it dispute that its bid was appropriately disqualified.

   
   

6. Rather, Petitioner contends that its competitor, Easy Talk, should also be disqualified because its equipment does not meet the bid specifications regarding printer speed and noise level.

7. As provided in the Invitation to Bid, compliance with the bid specifications was determined by an on-site demonstration monitored by Respondent's designated staff.

   
   

8. Respondent interpreted its printer speed specifications to mean that the printer must achieve 40 characters per second, per side, or 120 total pages per hour (one or the other). The addendum issued on March 19, 1996 was intended, in part, to clarify that requirement. Respondent also interpreted the term "page" to mean one side of a sheet of paper. Braille pages are commonly numbered on each side of a sheet.

   
   

9. Respondent determined that Easy Talk's printer met the speed requirement when it produced 198, single side, pages per hour.

   
   

10. Petitioner contends that "page" means a double-sided sheet, and that Easy Talk therefore only produced 99 pages, not the required minimum 120 total pages in an hour. Petitioner's argument is based on the fact (uncontroverted) that an interpoint Brailler is a Braille printer which produces simultaneous embossing on both sides of a sheet. (See paragraph 3, above, citing this requirement in the specifications.) Petitioner's argument is also bolstered by the fact that 40 characters per second, per side, translates to more than 120 single sides per hour.

    
    

11. In spite of the reasonableness of Petitioner's interpretation, and the notion that Respondent could have used the term "side" if it meant side, rather than "page," there is no evidence that Respondent's interpretation is patently wrong or that Respondent contrived the interpretation in order to insure that Easy Talk would meet the specifications.

    
    

12. The noise level of Easy Talk's printer was measured by Respondent's Division of Blind Services employee, Sylvia Voyles, who developed the specifications for the bid at issue. Ms. Voyles conducted the test with a small sound meter, hand-held or capable of being mounted on a tripod, purchased from Radio Shack. She relied on the sound meter's manufacturer's instructions in interpreting the results.

    
    

13. According to the instructions, the meter is accurate to plus or minus two decibels when measuring a sound level of 114 decibels. Ms. Voyles observed that the wand on the meter did tend to waver back and forth within a range of two to four decibels.

    
    

14. In conducting the test on Easy Talk's equipment, Ms. Voyles observed the wand to waver between 59.5 and 62 decibels. She rated the equipment at the high range, 62, applied the plus or minus two accuracy standard, and concluded that the equipment met the 60 decibel maximum specification.

    
    

15. When she conducted her test on Petitioner's equipment, Ms. Voyles used the same testing methodology as described above and concluded that it achieved a

    58 decibel rating.

    
    

16. Again, there is no evidence that the testing process was fatally flawed, unevenly applied, or otherwise devised to assure that Easy Talk could pass.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to sections 120.53(5)(e), Florida Statutes, and 120.57(1), Florida Statutes.

    
    

18. Persons "affected adversely" by the agency's decision or intended decision in a bid proceeding are provided in section 120.53(5), Florida Statutes, the opportunity to protest and challenge the agency's action or intended action. "Standing," or the status of "affected adversely," is the subject of myriad appellate court decisions related to bid proceedings. Those decisions, as appropriately noted by Respondent, establish that a bidder who is ineligible to be awarded the contract at issue does not have standing to protest the award. Preston Carroll Co., Inc. v. Florida Keys Aqueduct Authority, 400 So.2d 524 (Fla 3rd DCA 1981); Center for Independent Living v. Department of Health and Rehabilitative Services (DOAH No. 94-5627BID, final order entered 2/21/95).

    
    

19. Petitioner does not dispute that its own bid was properly disqualified; instead, it argues that if the Intervenor's bid is also defective, then Petitioner will be given another opportunity to compete when the process is begun anew.

    
    

20. Even if Petitioner is right about Intervenor's bid, the hearing officer has no authority to dictate that all bids be rejected and the bids be readvertised. There were several bidders in the process, other than Petitioner and Intervenor, and the evidence is not at all clear that all of those bidders have been, or should be, disqualified.

    
    

21. Petitioner has failed to establish its standing and its protest should be dismissed.

    
    

22. Assuming that standing had been established, Petitioner's protest still fails. Petitioner bears the burden of proof and the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally or dishonestly. Department of Transportation v. Groves- Watkins, 530 So.2d 912 (Fla. 1988).

    
    

23. Reasonable persons can disagree and it is not enough to establish that the Petitioner's interpretation is reasonable. A public body has wide discretion in the bidding process and its decision, when based on an honest exercise of discretion, should not be overturned "even if it may appear erroneous and even if reasonable persons may disagree." Groves-Watkins, supra, at 913, quoting Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d

    505 (Fla. 1982). In spite of a competent, reasonable, articulate presentation by Petitioner, the evidence fails to establish that the intended award to Easy Talk is fraudulent, arbitrary, illegal or dishonest.

    
    

24. When the agency issued its addendum it believed it was correcting ambiguities in the specification regarding printer speed. When no protest to the specifications was filed as provided in section 120.53(5)(b), Florida Statutes, the agency appropriately relied on those specifications in making its award, and its own interpretation of the specifications was not so implausible as to be arbitrary or dishonest.

    
    

25. The testing method, albeit imprecise, was applied to Petitioner's product as well. The plus or minus two decibel "grace" range was a function of

    the testing device, and did not mean that the agency was waiving its specification. The rate ascribed to Easy Talk's equipment was the highest reading from the meter's wand, and that rate, according to the manufacturer's instructions, could properly be considered anywhere between two decibels lower or higher.

    
    

    RECOMMENDATION

    
    

    Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that a final order be entered dismissing Petitioner's protest.

    
    

    DONE and ENTERED this 11th day of September, 1996, in Tallahassee, Florida.

    
    

    
    

    MARY CLARK, 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 11th day of September, 1996.

    
    

    APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-3265BID

    
    

    To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact:

    Petitioner's Proposed Findings of Fact. 1.-13. Adopted in substance.

    14.-15. Rejected as immaterial. 16.-25. Adopted in substance.

26. Rejected as immaterial.

Respondent's Proposed Findings of Fact. 1.-2. Adopted in substance.

3.-6. Rejected as unnecessary, except for Petitioner's

concurrence that its bid was properly disqualified.

7.-21. Adopted in substance.

COPIES FURNISHED:

Sonja P. Mathews, Senior Attorney Department of Labor and

Employment Security

The Hartman Building, Suite 307 2012 Capital Circle Southeast Tallahassee, Florida 32399-2152

Robert A. Schenk, President Enabling Technologies Company 3102 Southeast Jay Street Stuart, Florida 34997

Kerey Carpenter, Esquire 1228 North Adams Street Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 96-003265BID

Orders for Case No: 96-003265BID