STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

E. L. COLE PHOTOGRAPHY, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-3401BID

)

FLORIDA DEPARTMENT OF )

LAW ENFORCEMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, by video conferencing on September 10, 1999.

APPEARANCES

For Petitioner: Sherwood S. Coleman, Esquire

Kwall, Showers, and Coleman, P.A.

133 North Fort Harrison Avenue Clearwater, Florida 33755

For Respondent: John P. Booth, Assistant General Counsel

Karen Simmons, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1498

Tallahassee, Florida 32302-1489

STATEMENT OF THE ISSUE

The issue in this case is whether a contract on Florida Department of Law Enforcement Bid No. B-904 should be awarded to Petitioner, E. L. Cole Photography, Inc., as the only responsive bidder.

PRELIMINARY STATEMENT

On or about May 5, 1999, Respondent, the Florida Department of Law Enforcement, issued an Invitation to Bid, Bid No. B-904 seeking a contract for the purchase of photographic supplies for use in Respondent's facilities. Petitioner, E. L. Cole Photography, Inc., submitted a bid in response to the Invitation to Bid.

Bids on Bid No. B-904 were opened by Respondent on June 15, 1999. The final bid tabulation was posted on July 19, 1999. The contract was awarded to Mardel Enterprises, Inc.

Petitioner filed a challenge to Respondent's decision. That challenge was filed by Respondent with the Division of Administrative Hearings on August 10, 1999. The matter was designated Case No. 99-3401BID and was assigned to the undersigned.

The formal hearing was scheduled for September 10, 1999.

The hearing was conducted by video conferencing. Petitioner was located at the Department of Management Services in Tampa, Florida. The undersigned, the court reporter, and Respondent were located at the Department of Management Services in Tallahassee, Florida.

At the formal hearing Petitioner presented the testimony of Eddie L. Cole. Petitioner also offered three exhibits. They were accepted into evidence. On October 14, 1999, Respondent filed a substitute copy of Petitioner's Exhibit No. 3.

Respondent presented the testimony of Sonya Avant.

Respondent offered two exhibits, Respondent's Exhibit Nos. 1 and

4 were admitted into evidence. Respondent was ordered to provide a full copy of Respondent's Exhibit No. 4 to Petitioner and Petitioner was given an opportunity to object to the exhibit in its Proposed Recommended Order. Respondent filed a complete copy of Respondent's Exhibit No. 4 on September 16, 1999. The complete copy of the exhibit has been identified as Respondent's Exhibit No. 5. Petitioner objected to the exhibit in its Proposed Recommended Order. Respondent's Exhibit 5 is accepted into evidence to the extent relevant.

A transcript of the hearing was ordered. The Transcript was filed September 24, 1999. Proposed orders were, therefore, required to be filed on or before October 4, 1999. A Joint Motion for Extension of Time in Which to File Proposed Recommended Orders was filed and granted, extending the filing date of proposed orders to October 14, 1999.

Proposed Recommended Orders were filed by both parties on October 14, 1999. The Proposed Recommended Orders have been fully considered in entering this Recommended Order.

FINDINGS OF FACT

1. Respondent, the Florida Department of Law Enforcement (hereinafter referred to as the "Department"), issued an Invitation to Bid (hereinafter referred to as the "ITB"),

   designated Bid No. B-904, on May 5,1999. The ITB requested bids on photographic film and paper for use by is crime laboratories.

2. No challenges to the specifications of the ITB were filed.

3. Seventy-nine items of photographic film and paper were listed in the ITB. Bidders were requested to provide a unit price for each item. Bidders were also requested to provide a total price for the Department's amount of film and paper it estimated its laboratories would use.

4. There was not a minimum or maximum amount the Department could purchase under the contact. The total quantities listed in the ITB were estimates only. The successful bidder was required to provide the items listed in the ITB for the costs listed in the winning bid for any amount of the items purchased by the Department.

5. One of the 79 items for which bids were requested in the ITB was duplicated. The item was Catalog Number 171-6042, Kodak

   C.P.O. [contrast process ortho film] 4/5 (100sht/pkg) (hereinafter referred to as the "Duplicated Item"). The Duplicated Item was listed as item 3 on numbered page 10 and as item 16 on numbered page 12 of the ITM. On page 10, item 3 was listed as Catalog #171-6042 and a Description of Kodak C.P.O. 4X5 (100sht/pkg). The Estimated Quantity was 470 pkg. On page 12, item 16 was listed as Catalog #171-6042 and a Description of

   Contrast Process Ortho Film 100/4X5. The Estimated Quantity was

   
   

   75 bx.

   
   

6. The duplication was the result of a response to a 1996 ITB, Bid No. B-843 (hereinafter referred to as the 1996 ITB). In the 1996 ITB the Department had listed items similar to those listed in the instant ITB. The Duplicated Item was correctly described in one location in the 1996 ITB, but was also incorrectly described in the 1996 ITB. A bidder corrected the description in its response. This correction caused the Duplicated Item to be listed in two locations.

7. When the ITB was prepared, the Department used the same list of items it had used in the 1996 ITB, as corrected. The Department failed to discover the Duplicated Item.

8. The ITB included General Conditions used in most, if not all, invitations to bid. The ITB also included specific conditions. Among the specific conditions the ITB included the following:

   BID EVALUATION

   
   

   There are two (2) biddable categories for photographic supplies in this Invitation to Bid that are separated into Attachment "A" - Film, Black & White and Color and Attachment "B" - Paper, Black & White and Color. Vendors may bid on either one or both of the attachments, but vendors are to price the attachments separately. Vendors must price all the items listed on the attachment(s) unless there is a duplication of an item or, an item has been discontinued by the manufacturer. Bidder must indicate that information by entering "DISCONTINUED" or "DUPLICATION" by that item on the appropriate attachment(s). All items

   marked "Discontinued" will be verified. Bids which do not meet the requirements specified in this Invitation to Bid will be considered non- responsive. Responsive bids meeting the mandatory requirements will be evaluated. [Emphasis in original].

   
   

9. Another specific condition included in the ITB is titled "Mandatory Requirement." The Mandatory Requirement condition provides the following:

   The us of "shall", "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State.

   
   

10. The Mandatory Requirement condition also provides that "[m]aterial deviations can not be waived." A "material deviation" is defined as follows:

    A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the Invitation to Bid requirements, provides an advantage to one bidder over the quantity or quality of items bid, or on the cost to the State. . . .

    
    

11. Several bids were received in response to the ITB. The bids were opened on June 15, 1999. Eddie L. Cole, majority stockholder of Petitioner, E. L. Cole Photography, Inc. (hereinafter referred to as "Cole Photography"), attended the opening. Seven bids were determined to be responsive, including Cole Photography and Mardel Enterprises, Inc. (hereinafter referred to as Mardel").

12. Cole Photography and Mardel are minority business enterprises. Pursuant to the ITB, minority business enterprises

    were entitled to a ten percent price preference. Cole Photography's and Mardel's bids were, therefore, reduced by ten percent before determining the lowest bid on the ITB.

13. Initially the Department made adjustments to all of the responsive bids based upon "discrepancies" between the items listed in the ITB by the Department and the products actually available.

14. The bid tabulation on the ITB was posted by the Department between July 6 and July 9, 1999.

15. Mardel was determined to be the lowest bidder after the ten percent minority business enterprise preference was applied. Cole Photography protested this determination.

16. Following Cole Photography's protest, the Department recalculated the responses to the ITB. Items previously excluded by the Department in its tabulation were included in the recalculation. The inclusion of those items in the recalculation are not at issue in this proceeding. In addition to including the previously excluded items, however, the Department also excluded the double inclusion of the Duplicated Item.

17. Mardel had bid a unit price of $106.03 per package for the estimated quantity of 470 pkg for item 3 on page 10 of the ITB. The total price bid by Mardel was $49,834.10. Cole Photography bid a unit price of $102.15 for item 3 on page 10. The total price bid by Cole Photography was $48,010.50.

18. Mardel bid a unit price of $106.03 per box for the estimated quantity of 75 boxes for item 16 on page 12 of the ITB. The total price bid by Mardel was $7,952.25. Mardel failed to indicate that item 16 on page 12 of the ITB was a duplication as required by the specific conditions of the ITB. Cole marked item

    16 on page 12 as "Duplication."

    
    

19. In its recalculation of the bid submittals, the Department excluded the $7,952.25 bid for item 16 on page 12 of the ITB submitted by Mardel. No adjustment of Cole Photography's bid was necessary.

20. Mardel's total bid before the reduction for the Duplicated Item was $349,448.75. Cole Photography's total bid was $343,063.40. After the reduction for the Duplicated Item, Mardel's bid was $341,496.50. After the reduction for the ten percent minority business enterprise preference, Mardel's bid was

    $310,362.21 and Cole Photography's bid was $311,929.11.

    
    

21. The Department indicated its intent to award the contract on the ITB to Mardel. Cole Photography was third lowest bidder.

22. Mardel's bid on the Duplicated Item has no impact on the ultimate amount of costs the Department may incur as a result of awarding a contract on the ITB, since Mardel bid the same unit price for Item 3 on page 10 and Item 16 on page 12. Therefore, the Department may purchase any amount of the item for the unit price bid by Mardel. If Cole Photography had been the lowest

    bidder, the Department would have been able to purchase any amount of the Duplicated Item for the unit price Cole Photography bid.

23. Including Mardel's two bids on the Duplicated Item results in an arbitrarily inflated bid.

24. The failure of all of the responsive bidders except Cole Photography to indicate that the Duplicated Item constituted a duplication on the ITB as required in the specific conditions was a "deviation" from the ITB's requirements. Even with this deviation, the responsive bids are still "in substantial accord with the Invitation to Bid requirements," and they do not provide "an advantage to one bidder over the quantity or quality of items bid, or on the cost to the State." Therefore, the failure to indicate that the failure to note the Duplicated Item does not constitute a "material deviation" as defined in the ITB.

25. Both parties have filed Motions for Costs and Charges in this case pursuant to Section 287.042(2)(c), Florida Statutes. Cole Photography has incurred costs, excluding attorney's fees, in the amount of $264.15. The Department has incurred costs, excluding attorney's fees, in the amount of $51.40.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1997).

27. Section 120.57(3)(f), Florida Statutes, provides, in pertinent part, the following:

    In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.

28. Cole Photography has asserted that the failure of Mardel and the other bidders deemed responsive by the Department to recognize the Duplicated Item and to indicate that it was a duplicate on their ITB submissions is "contrary to the bid or proposal specifications." In particular, Cole Photography has argued that Mardel failed to comply with a "mandatory requirement" and that the failure to comply is a material deviation.

29. While the ITB clearly specifies that duplications "must" be noted by bidders, the failure of the Department to reject Mardel's bid under the circumstances of this case cannot be said to be "clearly erroneous, contrary to competition, arbitrary, or capricious."

30. By ignoring the duplicate listing of the same unit price for the Duplicated Item by Mardel, because the Department is not required to purchase of any particular quantity of the item, did not give Mardel any advantage or benefit not enjoyed by

    other bidders in the evaluation process. Nor did it adversely impact any interest of the Department. If fact, it eliminated a possible adverse impact to the interest of the Department in acquiring the lowest possible price for the items listed in the ITB.

31. Mardel's failure to list the Duplicated Item as a duplication in its response to the ITB was a deviation from the ITB, but did not constitute a "material deviation." See Rules 60A-1.001(16) and 60A-1.002(9), Florida Administrative Code.

32. Cole Photography has failed to prove that the Department's proposed award of the ITB to Mardel was "clearly erroneous, contrary to competition, arbitrary, or capricious."

33. Section 287.042(2)(c), Florida Statutes, provides for a recovery of costs, other than attorney's fees, incurred by the prevailing party in challenges to proposed bid awards before the Division of Administrative Hearings and in any subsequent appellate court proceeding. Cole Photography and the Department have filed Motions for Costs and Charges for an award of costs incurred by them in this proceeding. As the prevailing party, the Department is entitled to an award of $51.40 to be deducted from the bond posted by Cole Photography.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered by the Department of Law Enforcement finding that E. L. Cole Photography, Inc., failed to prove that the decision of the Department finding that Mardel Enterprises, Inc., submitted the lowest responsive bid to the ITB was "clearly erroneous, contrary to competition, arbitrary, or capricious" and dismissing the bid protest of E. L. Photography, Inc.

DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1999.

COPIES FURNISHED:

Sherwood S. Coleman, Esquire Kwall, Showers, and Coleman, P.A.

133 North Fort Harrison Avenue Clearwater, Florida 33755

John P. Booth, Assistant General Counsel Karen Simmons, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1498

Tallahassee, Florida 32302-1489

James T. Moore, Commissoner

Florida Department of Law Enforcement Post Office box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 10 days from the date of 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: 99-003401BID

Orders for Case No: 99-003401BID