STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSAL TRAVEL & TOURS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-1362BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

ADVENTURES IN TRAVEL OF )

TALLAHASSEE, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

This matter came on for hearing on May 11, May 24 end June 7, 1984, in Tallahassee, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer. R. T. Carpenter. The parties were represented by:

APPEARANCES

For Petitioner: Thomas M. Beason, Esquire

MOYLE, JONES & FLANIGAN

118 North Gadsden Street, Suite 100 Tallahassee, Florida 32301

For Respondent: Mark A. Linsky, Esquire

Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 3230

For Intervenor: William L. Grossenbacher, Esquire

HORNE, RHODES & JAFFRY

Post Office Box 1140 Tallahassee, Florida 32302

This case arose on the Petitioner's challenge to Respondent's intended rejection of all proposals for its travel service contract. The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they are found to be subordinate, cumulative, immaterial, unnecessary or not supported by the evidence.

FINDINGS OF FACT

1. In January 1984, Respondent Department of Transportation (DOT) published a Request for Proposal for travel services (RFP). After receiving proposals, Respondent reconsidered its financial statement requirement and returned all proposals. DOT then published a second RFP deleting the financial statement requirement.

   
   

2. In its second RFP, Respondent stated:

   
   

   The Department intends to award the contract to the responsive and responsible proposer whose proposal is determined to be the most advantageous to the Department. A responsive proposer is one who has submitted a proposal which conforms in all material respects to this Request for Proposal . . . As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their

   proposals have been evaluated as being responsive.

   
   

3. The RFP directed that all proposals include a resume of the travel agency, explaining the abilities that make it best qualified to perform the required services and information relating to years of experience, ownership, minority ownership, volume of business, proof of membership in Air Traffic Conference (ATC) and International Air Transport Association (IATA), number of persons employed, number of persons to be assigned to DOT business, and computer/communications facilities.

   
   

4. The required minimum services specified in the RFP included: 1) planning fares and itineraries; 2) scheduling and arranging airline and rental car reservations; 3) issuing and delivering airline tickets; 4) processing unused tickets; 5) providing sufficient direct communications to DOT; 6) providing rental car confirmation numbers; 7) ensuring social security numbers recorded on tickets; 8) providing copies of used tickets for billing reconciliation purposes; 9) providing a monthly financial statement in a prescribed format, and 10) providing monthly summary analysis of travel trends and patterns. Each travel agency was also required to list any additional services it proposed to provide that were not included in the minimal travel service requirements and to list the additional services to be incorporated in the executed contract.

   
   

5. In order to determine the proposal which offered the most advantageous combination of services, Respondent developed a rating scale for the assignment of points to each additional service proposed according to its value (zero points for no value, one point for limited value, two points for reasonable value, and three points for significant value). Respondent intended that the agency proposing the most advantageous combination of services would receive the highest number of points and therefore award of the contract.

6. Proposals were submitted by eight travel agencies. The proposals were evaluated by Respondent and points were assigned on the zero to three point rating scale. Intervenor's score was highest with 24 points. Petitioner's proposal was second with 14 points. Respondent initially announced its intention to award the contract to Intervenor, but thereafter advised proposers that it intended to reject all proposals and withdraw the intended award.

   
   

7. Respondent's intent to withdraw is based on its admitted failure to announce criteria. This failure allowed bidders to obtain points for services of questionable or non-existent value. Petitioner, for example, received one point for Telex service which was not available when the proposal was submitted and still not installed at the time of final hearing.

   
   

8. The ratings were highly subjective as indicated by the disagreement of witnesses over the value of various services. Intervenor, for example, received several points for such questionable services as a newsletter, proposed workshops and staff visits. However, Respondent's principal rater supported his reasons for assignment of points on a rational basis. He conceded only a one point change in Petitioner's score and no change in Intervenor's score.

   
   

9. Both Intervenor and Petitioner claim advantages for the reliability and range of services provided by their computer systems. Respondent lacked the expertise necessary to resolve these competing claims with the precision demanded by Petitioner. However, the evidence offered at hearing by Petitioner in support of its claims of system superiority was largely self serving and unsubstantiated by any studies or performance data.

   
   

   CONCLUSIONS OF LAW

   
   

10. Subsection 287.057(2), Florida Statutes (1983) provides in part:

    
    

    Unless otherwise authorized by law, all [State of Florida] contracts for contractual services shall be awarded by competitive sealed bidding. An invitation to bid shall be issued which shall include a detailed description of the services sought; the date for submittal of bids; and all contractual terms and conditions applicable to the procurement of contractual services, including the criteria . . . No criteria may be used in determining acceptability of the bid that was not set

    forth in the invitation to bid. . .

    
    

11. Respondent's proposed rejection of all bids is arguably required by the above provision given the subjective nature of its point assignment system and open ended invitation to list (and receive points for) additional services. Further authority for this proposed rejection is contained in the RFP itself which reserves the right "to reject any and all proposals." Although such a decision may not be arbitrary, "In Florida, . . . a public body has wide discretion in soliciting and accepting bids . . ." Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505, 506 (Fla. 1982).

12. Petitioner sought to demonstrate that Respondent's RFP was valid and should not be withdrawn. If, however, Petitioner's arguments were accepted, Intervenor and not Petitioner would receive the contract since there was no evidence of material error or abuse of discretion in Respondent's ranking of the proposals.

    
    

13. Using the criteria set forth in the RFP, Petitioner demonstrated that fewer points could have been awarded to Intervenor's proposal. Petitioner also suggested areas where its score could reasonably have been increased. This showing did not prove that Respondent erred in its point awards, but rather that the standards were vague and lacked objectivity.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Respondent enter a Final Order denying the petition of Universal Travel and Tours, Inc.

DONE and ENTERED this 9th day of August, 1984, in Tallahassee, Florida.

R. T. CARPENTER 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 9th day of August, 1984.

COPIES FURNISHED:

Thomas M. Beason, MOYLE, JONES & FLANIGAN

118 North Gadsden Street, Suite 100 Tallahassee, Florida 32301

Mark A. Linsky, Esquire Department of Transportation 605 Suwannee Street

Haydon Burns Building Tallahassee, Florida 32301

William L. Grossenbacher, Esquire BORNE, RHODES, & JAFFRY

Post Office Box 1140 Tallahassee, Florida 32302

Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Docket for Case No: 84-001362

Orders for Case No: 84-001362