STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER J. BARTON PRODUCTIONS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-2979BID

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 26, 1983. Each of the parties waived the fourteen-day notice requirement for conducting the final hearing in this cause.

APPEARANCES

For Petitioner: John R. LaCapra, Esquire

Post Office Box 10137

Suite 712, Barnett Bank Building Tallahassee, Florida 32301

For Respondent: Kenneth H. Hart, Jr., Esquire

General Counsel

Florida Department of Labor and Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

By Petition for Administrative Hearing filed with the Division of Administrative Hearings on September 21, 1983, Petitioner, Peter J. Barton Productions, Inc. ("Petitioner"), challenges the proposed action of the Department of Labor and Employment Security ("Respondent") in awarding a contract for radio and television public service announcements ("PSA") pursuant to RFP No. 84-012-PS. The issues involved in this cause, as stipulated by the parties, include whether the contract should be awarded to Petitioner's competitor, Bill Cowles ("Cowles"), and, if not, whether the contract in dispute should be awarded to Petitioner.

At final hearing in this cause, Cowles was advised of his right to participate as a party in this proceeding, but chose not to do so.

Final hearing in this cause was scheduled for September 26, 1983, by Notice of Hearing dated September 22, 1983. At the final hearing, Petitioner called Russ Rothman, Suellen Walvoord, John Canetta, and Larry Noda as its witnesses.

Petitioner offered Petitioner's Exhibits 1 through 3, which were received into

evidence. Respondent called Edward Judge, Bill Cowles, Russ Rothman, and Elaine Palmer as its witnesses. Respondent offered Respondent's Exhibits 1 through 5, which were received into evidence.

Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings have not been adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. By its Invitation to Bid, RFP #84-012-PS, Respondent sought proposals for the production of public service announcements for statewide distribution for both television and radio broadcast. The Invitation to Bid contained five criteria for evaluating proposals. Four of these were "narrative" criteria worth a maximum of 25 points per category. The fifth category, price, was worth a maximum of 50 points. The dispute in this case concerns Respondent's interpretation of the narrative criteria contained in paragraph X, A., 1 which was used to evaluate:

   
   

   [t]he experience and evident capa- bility of the offeror to perform the work required including the background of the offeror's organi- zation.

   
   

2. In response to the Invitation to Bid, Cowles and Petitioner submitted proposals for consideration by Respondent. In response to the narrative criteria requirement contained in paragraph X, A., 1, quoted above, Cowles submitted the following:

   
   

   Bill Cowles was for more than fifteen years employed in the radio and tele- vision industries in Ohio and Florida. For many of those years he was actively in charge of the production and direction of hundreds of public service announce- ments, commercials and news and public affairs programs.

   
   

   For an additional eight years while engaged in political campaigns and the direction of the Republican Party of Florida, he was responsible for innumer-

   able commercials (all media) for individual candidates, party promotions, get-out-the- vote campaigns, etc.

   
   

   For the past five years, as co-owner of his own business, he has worked closely with many state agencies in a variety of communication related situations.

   
   

   During all these years, the offeror assembled many "teams" of talent representing all the

   disciplines required in order to most effec- tively complete the task at hand

   
   

   In preparation for the project outlined in this RFP, Cowles has used his vast

   knowledge and experience to bring together a "team" that is particularly qualified.

   Working with him to successfully complete the requirements of the RFP will be a staff of experts who will be directed by Cowles and the following professionals:

   
   

   Roy Nilson who is the President/Owner of WRENPRO Corporation has spent his entire career in the electronic media. He has

   held positions as Program Director, Producer,

   Operations Manager and Executive Producer

   of radio and television stations in Minnesota, New Mexico and Tampa-St. Petersburg. He formed WRENPRO, a consulting and production company, in 1971.

   
   

   Nilson is credited with the innovation of the "do-nut" and "pretzel" commercials that are now commonplace in the industry.

   
   

   He has served as consultant to over

   100 radio and television stations; written several books on electronic media contests, history and radio auto- mation and has produced and syndicated radio programs and contests. His pro- duction of OPUS, an annual review of

   the top records of the year, is aired on more than 300 stations. OPUS has been the recipient of two BILLBOARD "Silver Mikes".

   
   

   The public service announcements, com- mercials and programs produced by Nilson number in the thousands.

   
   

   The creativity of Cowles and Nilson will

   be augmented by the technical expertise of:

   
   

   Dan Lunin who is currently the General Manager of WRENPRO and is also the Production Engineer of Production Associ- ates of Tampa.

   
   

   Lunin in the cast twenty-five years has served as Production Engineer, Channel 40, Sarasota; Production and Chief Engineer, Channel 28, Tampa; Chief and Production Engineer, WLCY AM & FM, Tampa-St. Petersburg and General Manager of TV-9 (Group W),

   Tampa-St. Petersburg.

   Mr. Lunin will be in charge of the technical direction of the tasks to be performed at the studios of WRENPRO (radio) and Pro- duction Associates (television)

   
   

3. Petitioner contends that the information quoted above from Cowles' proposal was not responsive to the narrative criterion in that Cowles submitted no evidence to show that he had entered into any joint venture agreement or contractual relationship with the associates named in the proposal. Petitioner contends further that Cowles' proposal should have been evaluated on his individual qualifications, and that no consideration should have been given to the background, experience, and capabilities of Messrs. Nilson and Lunin since they were neither employed by nor under contract with Cowles. Petitioner also contends that the inclusion of the experience and qualifications of Messrs. Nilson and Lunin was misleading in that they were not actually "offerors" on the proposal, but were instead only independent contractors who were to be utilized by Cowles. Finally, Petitioner contends that the inclusion of the qualifications and experience of Nilson and Lunin resulted in the award of higher point totals under narrative criteria X, A., 1 than would have been awarded had Cowles been measured on his individual qualifications.

   
   

4. The gist of Petitioner's objection to Cowles' proposal is that Cowles does not own a production company, but instead proposes to produce the public service announcements to be furnished to Respondent with associates who are in essence independent contractors. There is, however, no requirement in the Invitation to Bid that the public service announcements be produced by means of an inhouse production company. The means by which the announcements are to be produced is left to the discretion of the offeror, so long as he can demonstrate, in accordance with the terms of the Invitation to Bid, "experience and evident capabilities" to perform the work. In fact, the narrative criteria at issue in this proceeding clearly require a demonstration of "experience and evident capability" to perform the work of both the "offeror" and the "offeror's organization." In this regard, Cowles' response to this narrative criteria, as outlined above, was clearly responsive to the provisions of the Invitation to Bid. Further, nothing in Cowles' response could be misleading, since there is no representation that Messrs. Nilson and Lunin are anything other than independent contractors who would be utilized by Cowles in the production of public service announcements.

   
   

5. Cowles has extensive experience in the radio and television industry. In addition, he has produced radio and television announcements and commercials while employed by the Florida Republican Party. There are no facts of record in this proceeding from which it can be concluded that Cowles is either unqualified to perform the work required in the Invitation to Bid, or that he is unable for any reason to successfully produce the work called for in that document. In fact, this record supports the conclusion that Cowles has the requisite experience and evident capability to perform the required work, and that he has, in fact, successfully completed similar projects for other state agencies in the recent past. Finally, Petitioner's contention that Cowles was awarded more points on narrative criteria X, A., 1 than would otherwise have been the case had the qualifications of Messrs. Nilson and Lunin been omitted from his proposal, is without merit in that the record in this proceeding contains no evidence of the points actually awarded to either Cowles or Petitioner in the bid evaluation process.

6. Even had Cowles' proposal been determined in this proceeding to have been unresponsive, there are insufficient facts of record in this cause from which any recommendation could have been made to award the contract to Petitioner. Although the petition alleged that Petitioner was the second lowest bidder, there are no facts of record to substantiate that allegation. In fact, there is no evidence of record in this cause regarding the "cost" portion of the bid submitted by Cowles or Petitioner, which would allow a comparison of those proposals to those of any of the other bidders.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.53(5) and 120.57(1), Florida Statutes.

   
   

8. The party seeking affirmative relief in an administrative proceeding bears the ultimate burden of persuasion to establish entitlement to that relief. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). In this case, Petitioner seeks to have Cowles disqualified from participation in the bidding process by virtue of his having submitted an unresponsive proposal, and, further to have the contract awarded instead to Petitioner. It is specifically concluded, that Petitioner has failed to establish its entitlement to the relief requested. In the first instance, Petitioner has failed to establish that Cowles' response to the Invitation to Bid was not in accordance with the provisions of that document. Further, Petitioner has failed to establish, as it must, that Cowles is unable to perform the requirements of the contract. Finally, even had Petitioner prevailed on the issue of Cowles' qualifications, the evidence in this cause does not establish that Petitioner was the lowest responsive bidder in the event Cowles was disqualified from further participation.

Accordingly, it is RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Labor and Employment Security, denying the relief requested by Petitioner, and dismissing the petition.

DONE AND ENTERED this 29th day of September, 1983, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1983.

COPIES FURNISHED:

John R. LaCapra, Esquire Wallace E. Orr, Secretary

Post Office Box 10137 Department of Labor and Suite 712, Barnett Bank Building Employment Security Tallahassee, Florida 32301 206 Berkeley Building

2590 Executive Center Circle, East

Kenneth H. Hart, Jr., Esquire Tallahassee, Florida 32301 General Counsel

Department of Labor and Employment Security

Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301

Docket for Case No: 83-002979

Orders for Case No: 83-002979