) CASE NO. 85-1847BID
) FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 12, 1985 in Tallahassee, Florida.
APPEARANCES
For Petitioner: Lynda Gayle Richards
P. O. Box 2520
Gainesville, Florida 32602
For Respondent: John P. Booth, Esquire
P. O. Box 1489
Tallahassee, Florida 32302 BACKGROUND
On April 1, 1985, Respondent, Florida Department of Law Enforcement (FDLE), gave notice to qualified vendors that it would receive bids on Bid No. 84-67 for eight computer binder cabinets, 300 single point binder hooks and 600 ten-inch steel reinforced binder posts. The sealed bids were to be filed no later than April 16, 1985. Petitioner, Pro Tech Data, timely filed its bid reflecting that it could provide the requested commodities for $4,645. Office Systems Consultants also submitted a bid in the amount of $5,244.
On May 3, 1985, Petitioner advised Respondent that its bid was being "rejected for not meeting specifications" and that the agency intended to award the bid to Office Systems Consultants pending sole source approval.
On May 13, 1985, Petitioner filed its notice of protest pursuant to Subsection 120.53(5)(b), Florida Statutes. This was followed by a formal request for a 120.57(1) hearing on May 20, 1985. In its protest Petitioner generally alleged that Respondent's decision to reject its bid was "arbitrary and capricious and not consistent with bidding practices practiced by Department of General Services for the State of Florida."
The matter was referred to the Division of Administrative Hearings by FDLE on June 5, 1985, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated June 24, 1985, the final hearing in this matter was scheduled for July 12, 1985 in Tallahassee, Florida.
At final hearing Petitioner presented the testimony of its owner and president, Lynda Gayle Richards, and offered Petitioner's exhibits 1-8. All were received in evidence.
Respondent presented the testimony of Jean A. Delaney, Mark Scharein and W. S. Webb, Jr., and offered Respondent's exhibits 1-3. All were received in evidence.
There is no transcript of hearing in this proceeding.
Proposed findings of fact and conclusions of law were filed by Respondent and Petitioner on August 6 and 13, 1985, respectively, and have been considered by the undersigned in the preparation of this order.1 A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.
The issue herein is whether the award of Bid No. 84-67 by Respondent was correct.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
On April 1, 1985, Respondent, Florida Department of Law Enforcement (FDLE), gave notice to thirty vendors that it would receive competitive sealed bids on Bid Number 84-67 for the following commodities: eight computer binder cabinets 36x18
5/8x71 Putty/Black, three hundred single point binder hooks, six hundred 10" steel reinforced binder posts. The bids were to be filed in Tallahassee, Florida, no later than 11:00 a.m.,
April 16, 1985. The Invitation to Bid included General Conditions, Special Conditions and technical specifications describing the dimensions and capacities of the desired equipment. Of special significance was the technical specification that the single point binder hooks be "[c]apable of supporting up to 6 inches of llx14 7/8 20 lb. computer paper."
Paragraph 6 of the General Conditions provides as follows:
6. MANUFACTURERS' NAMES AND APPROVED EQUIVALENTS: Any manufacturers' names, trade names, brand names, information and/or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative, which meets or exceeds the specification for any items(s) [sic]. If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. Bidder shall submit with his bid, cuts, sketches and descriptive literature and or complete specifications. Reference to literature submitted with a previous bid will not satisfy this provision. The bidder shall also explain in detail the reason(s) why the proposed equivalent will meet the specifications and not be considered an exception thereto. The State of Florida reserves the right to determine acceptance of items(s) [sic] as an approved equivalent. Bids which do not comply with these requirements are subject to rejection. Bids lacking any written indication of intent to bid an alternate brand will be received and considered in complete compliance with the specifications as listed on the bid form. The purchaser is to be notified of any proposed changes in
(a) materials used, (b) manufacturing process, or (c) construction. However, changes shall not be binding upon the State
unless evidenced by a Change Notice issued and signed by the purchaser. (Emphasis added.)
Paragraph 7 of the General Conditions imposed the following duty upon all bidders:
7. INTERPRETATIONS: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision.
Of the thirty vendors given an opportunity to submit bids, only two did so. They were Petitioner, Pro Tech Data (PTD or Petitioner), and Office Systems Consultants (OSC). Their bids were in the amounts of $4,645 and $5,244, respectively.
After reviewing the bids, and consulting with both bidders, the director of the agency's Division of Criminal Justice Information Systems, Mark Scharein, determined that Petitioner's bid was nonresponsive for not meeting specifications and was accordingly rejected. The bid was then awarded to OSC, the second lowest bidder, on May 3, 1985. That precipitated the instant proceeding.
In its bid response, PTD listed "Dennison Monarch #7830" as manufacturer and model number for the single point binder hooks. Petitioner also submitted a Dennison Monarch catalogue with its bid response. When FDLE examined the catalogue to ascertain the specifications of the hooks, it found no model number 7830. Indeed, the closest item matching this number was model number 7830-22 which referred to shelf supports, an item not solicited in the bid proposal. After consulting with PTD, it was determined that the use of model number 7830 was in error, and that Petitioner had intended to use model number 7802-30. Its request to amend the bid response was denied.
Even if the bid proposal had contained the correct model number, the binder hooks in model number 7802-30 did not meet specifications. The product description of that model
carries the following limitation: "Can accommodate a few sheets of paper or a stack of data 4" thick." In addition, at hearing PTD's representative conceded that the manufacturer did not recommend hanging six inches of paper from that model binder hook. This was inconsistent with FDLE's specific requirement that such hooks be "[c]apable of supporting up to 6 inches of .
. . computer paper."
OCS submitted product designations which conformed in all material respects to the specifications and conditions required by the bid proposal. Although PTD suggests that OCS's binder hooks do not support six inches of computer paper, .OCS's bid response reflects that they do, and there was no evidence to contradict this representation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Subsection 287.062(1), Florida Statutes, provides as follows:
No purchase of commodities may be made when the purchase price thereof is in excess of $2,500 unless made upon competitive bids received;
The office equipment herein is an acquisition of commodities within the meaning of the foregoing statute, and is therefore subject to the competitive bid process.
The evidence discloses that Petitioner's bid must be rejected for two reasons. First, although inadvertent, PTD's bid response contained the wrong model number for binder hooks, and it "may not modify its bid after bid/proposal opening." Rule
13A-1.02(9), Florida Administrative Code. To allow bid modifications after the bid opening would "open the door to the abuses. . . competitive bidding (is designed) to prevent and suppress." Collier v. City of Saint Paul, 223 Minn. 376, 26 N.W. 2d 835, 842 (1947). Accord: Harry Pepper and Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2nd DCA 1977).
Secondly, even if the error in model numbers was not present, Petitioner's bid was nonconforming since the binder hooks did not meet specifications. As such, the agency was authorized under Paragraph 6 of the General Conditions to reject PTD's bid
response. Cf. Solar Energy Control, Inc. v. Department of Health and Rehabilitative Services, DOAH Case No. 79-2410, Final Order entered April 16, 1980.
It is concluded that OCS's bid met all specifications and requirements, and that it should be awarded Bid No. 84-67.
