STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE SYSTEMS CONSULTANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0304BID

)

DEPARTMENT OF HIGHWAY ) SAFETY AND MOTOR VEHICLES, )

)

Respondent, )

and )

)

HARRIS/3M, )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in the above-styled cause was held pursuant to notice on February 11, 1987, in Tallahassee, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on a challenge by Office Systems Consultants to the award of a bid by the Department of Highway Safety and Motor Vehicles to Harris/3M.

APPEARANCES

For Office Systems J. Marshall Conrad, Esquire Consultants: AUSLEY, McMULLEN, McGEHEE,

CAROTHERS & PROCTOR

227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302

For Department of Michael J. Alderman, Esquire Highway Safety and Assistant General Counsel Motor Vehicles: Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

For Harris/3M: Jim L. Dye, Esquire

Post Office Box 9480 Tallahassee, Florida 32302

ISSUES

The following issues were raised in the challenge of the award of the bid:

1. Did Harris/3M fail to comply with Special Condition 28 of the Invitation to Bid, which required each bidder to provide references from two customers having similar equipment?

   
   

2. Did the Department request a demonstration of the bid equipment under Special Condition 15?

   
   

3. If such a demonstration was requested, did Harris/3M comply with the request?

   
   

4. Were the machines bid by Harris/3M available under terms of General Condition 4(d)?

   
   

5. Did the machines bid by Harris/3M comply with General Condition 4(f) requiring that the equipment bid carry the Underwriter's Laboratory listing?

   
   

6. In response to Harris/3M's Motion for Directed Verdict on issue number 5, the Hearing Officer granted the motion on a finding that no evidence had been presented on this issue by the Petitioner. The Petitioner's compliance with the specifications was not at issue.

FINDINGS OF FACT

1. On or about December 15, 1986, the Department issued and advertised its Invitation to Bid 3162-86 related to the acquisition of 15 microfilm reader/printers for use in searching, reading and printing motor vehicle documents which had been microfilmed by the Department of Highway Safety. Microfilm reader/printers are essentially units of hardware into which cartridges of microfilm are inserted and the microfilm is passed through a camera which reflects the images of the microfilm onto a screen from which information can be read and copies printed. The Invitation to Bid required that the equipment must have a "controller," a device for automatically locating specific microfilm documents by the use of coded information or "blips" on the film.

   
   

2. On or about January 5, 1987, responses to the Department's bid were submitted by Petitioner OSC and Intervenor, Harris/3M, together with bids from other bidders whose bids are not an issue in these proceedings. All bids were opened on January 5, 1987.

   
   

3. The equipment bid by Harris/3M was the Model MFB1100 Reader/Printer with a "page search" kit or controller.

4. Special Condition 28 of the Invitation to Bid states: "28. REFERENCES

   The bidder shall supply with his bid the names, addresses and telephone numbers of two references for whom the bidder has previously provided similar equipment being bid. If the bidder is unable to provide satisfactory references to the Department, the Department may, at its discretion, reject the bidder's

   bid if it determines that a responsive offer in full compliance with the bid speci- fications and conditions was not submitted. Failure to supply the references as required may result in rejection of the bid." (e.s.)

   
   

5. Harris/3M provided two references in satisfaction of Special Condition

1. Both of the references had versions of the Model MFB1100; however, neither of the references had the "controller" or page search kit, which was called for in the Invitation to Bid.

   
   

   1. Special Condition 28 was drafted by Merelyn Grubbs. According to Ms. Grubbs, the purpose of this requirement was to assure the Department that the bidder was responsible. "Similar" equipment is sufficient to assess the bidder's responsibility based upon machines made by the same manufacturer which performed essentially the same function. The MFB1100 without a page search kit is a "similar" machine. The two references provided were sufficient.

   2. Special Condition 15 states: DEMONSTRATIONS

      1. After opening of bid and prior to award of bid, the apparent low responsive

         bidder may be required to demonstrate to the Division of Administrative Services the equipment he proposes to furnish. If requested, a "working model" of the equipment bid and to be supplied in compliance with these specifications must be demonstrated in Tallahassee, Florida, within seven (7) calendar days from receipt of notification.

         
         

      2. If apparent low responsive bidder cannot successfully execute the demonstration,

         the Department shall revert to the next low responsive bidder and request demon- stration, continuing through the list of responsive bidders until a successful demonstration is achieved, the list of responsive bidders is exhausted or it is in the State's best interest to terminate the bid process.

         
         

         Demonstrations to be furnished at no expense to the Department."

         
         

   3. On January 7, 1987, Mr. Ray Boetch, the supervisor of the division within the Department of Highway Safety where the reader/printers would ultimately be used, wrote a memorandum to Merelyn Grubbs requesting that a demonstration be made on the Harris/3M Model MFB1100 Reader/Printer prior to the awarding of the bid. Mr. Boetch also discussed the matter with Ms. Grubbs indicating his primary concern was verifying the quality of the prints produced by the machine and whether it could print half pages.

      
      

   4. Ms. Grubbs spoke with Nick Vuillemot of Harris/3M about a demonstration of the equipment in Tallahassee. In these discussions, Harris/3M offered to fly

      representatives of the Department to St. Paul, Minnesota, the home office of the manufacturer, for a demonstration of the equipment. This was because Harris/3M had only two prototypes of the equipment and it was more economical for Harris/3M to fly Department personnel to Minnesota for purposes of the demonstration than to disassemble, ship to Tallahassee and reassemble the prototype for a demonstration. The Department declined to accept Harris/3M's offer. The Department accepted instead a demonstration of a Model MFB1100 without the controller or page search kit at the Division of Elections in Tallahassee, Florida. The MFB1100 without controller does not meet the specifications in the Invitation to Bid.

      
      

   5. The "controller" or page search kit is of modular construction in the MFB1100, which can be ordered with or without the controller or page search kit. However, the bid specifically calls for a reader/printer with a page search device.

      
      

   6. Following the demonstration of the MFB1100 without page search capability, the Department officially posted its bid tabulations on January 12, 1987, designating Harris/3M as the low and responsive bidder and OSC was the next low and responsive bidder.

      
      

   7. Item 4 (d). Conditions and Packaging of the General Conditions of the Invitation to Bid provides as follows:

      
      

      It is understood and agreed that any item offered or shipped as a result of this bid shall be new, current standard production model available at the time of bid. (e.s.)

      
      

   8. Item 18. Delivery Schedule of the special conditions required delivery of the items bid within 30 days of the bid award or, in the alternative, a substitute item acceptable to the Department at no cost to the Department.

      
      

   9. The bid submitted by Harris/3M certified that delivery of all 15 units would be delivered within 30 days after receipt of a purchase order.

      
      

   10. Although the Harris/3M Model MFB1100 Reader/ Printer without page search had been on the market for a number of months prior to the issuance of the Invitation to Bid, the Model MFB1100 with page search had not been authorized for sale by the manufacturer until late November 1986. At the time demonstration was requested, only two prototypes existed of the MFB1100 with page search capability. As of the date of the hearing on February 11, 1987, no Model MFB1100 Reader/Printers with page search capability had been installed in any customer location within the United States.

       
       

   11. The Petitioner did not present any evidence to support its claim that the MFB1100 Reader/Printer with page search did not have a UL listing.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has juris- diction to enter this Order pursuant to Section 120.53, Florida Statutes. The burden of proof in an administrative proceeding is on the party asserting the affirmative of an issue. Withers vs. Metropolitan-Dade County, 200 So.2d 5-73 (1974). The standard of proof in this type of administrative proceeding is the preponderance of the evidence standard. Florida Department of Health and Rehabilitative

       Services, etc. vs. Career Service Commission of Department of Administration, (Fla. 4th DCA 1974). Office Systems Consultants as Petitioner has the burden of proof to show by a preponderance of the evidence that the award by the Department to Harris/3M materially deviated from the Invitation to Bid and the statutes and rules governing the bid process.

       
       

   13. With exceptions not applicable in this case, Florida law requires all purchases for commodities in excess of $3,000 to be acquired through the competitive bidding process. See Section 287.062, Florida Statutes. The Division of Purchasing promulgated procedures, rules and forms pursuant to Sections 287.032 and 287.042, Florida Statutes, to be used by State agencies for procuring commodities. As a State agency, the Department of Highway Safety and Motor Vehicles must comply with these procedures, Rules and Statutes. The procedures and definitions for competitive bidding are found in Rules 13A-1.01, et seq., Florida Administrative Code, 13A-1.001(13), Florida Administrative Code, defines "responsive bidder" and "qualified bidder" as follows:

       
       

       1. Responsive bidder/offerer means a person or firm which has submitted a bid/proposal which conforms in all material respects to the invitation to bid or request for proposal.

       2. Responsible or qualified bidder/offerer means a person or firm with the capability in all respects to perform fully the contract requirements and the integrity and relia- bility to assure good faith performance. Failure to provide information to determine responsibility in response to a condition of a bid/proposal requiring information will be cause for such bid/proposal to be rejected.

       
       

   14. A valid bid is a responsive offer in full compliance with the bid specifications and conditions submitted by responsible person or firm. The responsiveness of a bid and the qualifications and responsibility of the offerer are determined at the time the bids are made public. See Rule 13A-1.001(13), Florida Administrative Code.

       
       

   15. Minor variations from the Invitation to Bid are acceptable if the variation does not affect the price of the bid or give the unsuccessful bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interest of the agency. See Rule 13A-1.02(10), Florida Administrative Code, and Baxter's Asphalt and Concrete, Inc. vs. Liberty County,

       406 So.2d 461 at page 463 (Fla. 1st DCA 1981); Glastein vs. City of Miami, 399 So.2d 1005 (Fla. 3rd DCA 1981).

       
       

   16. A public agency may not waive certain specifications or conditions because it temporarily creates unfair competition and favoritism. See City of Opa Locka vs. Trustees of Plumbing Industry Promotion Fund, 193 So.2d 29 (Fla. 3rd DCA 1966) and E.M. Watkins and Company vs. Board of Regents, 414 So.2d 583 (Fla. 1st DCA 1982).

   17. Having considered these general principles, the issues presented will be considered in ascending order of complexity.

       
       

       DID THE EQUIPMENT OFFERED BY HARRIS/3M CARRY THE UNDERWRITER'S LABORATORY'S REEXAMINATION LISTING?

       
       

   18. At the conclusion of the presentation of the Petitioner's case, the Intervenor, Harris/3M, joined by the Department moved for a directed verdict on this issue on the grounds that the Petitioner presented no evidence in support of its allegation that the MFB1100 with page search lacked an Underwriter's Laboratory reexamination listing. This motion was granted only as to this issue. Accordingly, having found that Office systems Consultants failed to submit any evidence in support of its allegation on this issue, it is recommended that no action be taken with regard to the Petitioner's allegation.

       
       

       DID HARRIS/3M PROVIDE TWO REFERENCES AS REQUIRED BY SPECIAL CONDITION 28 OF THE INVITATION TO BID?

       
       

   19. All parties agreed that two references were submitted by Harris/3M and that these references were from persons or agencies which had the MFB1100 without the page search kit or controller. The question is whether the MFB1100 without page search is "similar" to the MFB1100 with page search. It is concluded that, in plain language, the MFB1100 without page search is "similar" to the MFB1100 with page search. The drafters would have used "like equipment" had they desired references from persons using exactly the same equipment. The drafters used the term "similar" equipment. Based upon the capabilities of the machines, the two machines were similar.

       
       

       DID THE DEPARTMENT REQUEST A DEMONSTRATION OF THE EQUIPMENT PROPOSED TO BE FURNISHED BY HARRIS/3M IN TALLAHASSEE? WHETHER A WORKING MODEL OF THE EQUIPMENT TO BE BID WAS DEMONSTRATED IN TALLAHASSEE.

       
       

   20. In summary, there was a request for a demonstration, Harris/3M could not or would not demonstrate the equipment as requested and the Department waived demonstration of a working model of the equipment in Tallahassee.

       
       

       WAS THE EQUIPMENT TO BE OFFERED BY HARRIS/3M AVAILABLE?

       
       

   21. Office Systems Consultants suggests the evidence pre- sented shows that only two prototypes of the equipment existed, Harris/3M lacked the capacity to deliver the equipment at the time the bids were made public, and as of the date of the formal hearing none of the equipment had been delivered and installed by Harris/3M. The Department and Harris/3M argue that the General

       Condition Item 4(d) must be read with Special Condition Item 5 and that together they provide that the equipment to be offered must be new, not used or discontinued or out of production equipment.

       
       

       Item 4(d) Conditions and Packaging provides:

       
       

       It is understood and agreed that any item offered or shipped as a result of this bid shall be a new, current standard production model available at the time of the bid.

       
       

   22. The argument of the Department and of Harris/3M is strained. The term "available" in General Condition Item 4(d) is not ambiguous. The plain language of this provision means that the equipment to be offered must be new, must be current, must be a standard production model and must be available at the time of bid. The facts in this case show that while the MFB1100 may have been new and may have been a standard production model, that it was not available at the time of bid equipped with the page search kit.

       
       

   23. Having determined that the Department waived the provision requiring the offerer to demonstrate a working model of the equipment in Tallahassee, Florida, and having determined that the MFB1100 with page search was not available as required by the General Conditions contained in Item 4(d) of the Invitation to Bid, it is

RECOMMENDED that the Department award the bid to the next lowest qualifying bidder.

DONE and ORDERED this 10th day of April 1987, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-304BID

Office System Consultants Proposed Findings of Fact: 1-3. Adopted.

1. Rejected as irrelevant (no issue of timeliness of challenge is raised).

2. Adopted.

3. Rejected as argument.

4. Adopted.

5. Rejected; delivery is not at issue.

6. Adopted.

7. Adopted in part. Summarized in part. Rejected as to Item 6 as irrelevant to issue.

11-14. Adopted.

1. Adopted except for last sentence which is rejected as irrelevant.

2. Adopted in part. Rejected in part as irrelevant.

3. Adopted.

18-20. Adopted with rewording.

1. Rejected as irrelevant.

2. Adopted.

3. Adopted in part. Rejected in part as irrelevant.

4. Rejected as conclusion.

5. Adopted.

6. Rejected as recitation of testimony.

Department of Highway Safety and Motor Vehicles' Proposed Findings of Fact: 1-3. Adopted.

4-7. Adopted, reordered and reworded.

1. Deleted as irrelevant.

2. Deleted as argument.

3. Adopted.

11-12. Adopted and combined.

13. Adopted.

14-16. Rejected. The request for a demonstration was not a negotiation, decision or action.

17. Rejected as contrary to the evidence.

18-19. Combined in part and portions rejected as irrelevant and as argument.

1. Adopted as to the demonstration having been conducted. The results are irrelevant to the issue.

2. Rejected as argument.

3. Rejected as irrelevant.

4. Rejected as a conclusion of law.

5. Rejected as argument.

6. Adopted.

7. Rejected as irrelevant. 27-28. Rejected as argument.

1. Rejected as contrary to the facts.

2. Adopted in part.

3. Rejected as a conclusion of law.

Harris/3M's Proposed Findings of Fact: 1-3. Adopted.

1. Adopted in part and rejected in part as irrelevant.

2. Rejected as an unnecessary finding.

3. Rejected as a conclusion of law.

4. Adopted.

8-10. Adopted (reworded).

11-12. Rejected as contrary to the facts and as a conclusion of law.

1. Rejected as argument.

2. Rejected as irrelevant.

3. Adopted.

4. Rejected as irrelevant. 17-19. Rejected as argument.

COPIES FURNISHED:

J. Marshall Conrad, Esquire AUSLEY, McMULLEN, McGEHEE,

CAROTHERS & PROCTOR

227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302

Michael J. Alderman, Esquire Assistant General Counsel Department of Highway safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

Jim L. Dye, Esquire Post Office Box 9480

Tallahassee, Florida 32302

Leonard R. Mellon, Executive Director Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

Enoch Jon Whitney, Esquire General Counsel

Department of Highway safety and Motor Vehicles

Neil Kirkman Building Tallahassee, Florida 32399-0504

=================================================================

ORDER ON REMAND

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE SYSTEMS CONSULTANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0304BID

)

DEPARTMENT OF HIGHWAY ) SAFETY AND MOTOR VEHICLES, )

)

Respondent, )

and )

)

HARRIS/3M, )

)

Intervenor. )

)

ORDER ON REMAND

On June 3, 1987, the Executive Director of the Department of Highway Safety and Motor Vehicles (DHSMV) entered an order remanding the above-styled matter back to the Division of Administrative Hearings "for further proceedings and entry of supplemental findings of fact on the issue of the responsiveness of the other two bidders."

On July 17, 1987 a preliminary hearing was held to determine what issues remained, what parties should participate, and whether the remand should be considered. In addition to the record of the first hearing, official recognition is taken of the correspondence between DHSMV and Department of General Services (DGS) which was attached to the order of remand.

The original recommended order dated April 10, 1987 found that the challenged bid was not responsive and recommended that the bid be awarded to the next lowest qualified bidder. While that finding was correct and based upon the facts, the Department correctly pointed out that the recommendation was erroneous because it went beyond the issue raised in the case. It is well settled that a recommendation is only advisory to an agency head. The issue on remand is limited to the responsiveness of the other bidders; however, further proceedings on this issue would compound the original error under the facts and law presented.

FACTS

In this case, there were several bids initially received. DHSMV determined that the bids of 3M and Office Systems Consultants (OSC) were competitive bids, and gave notice of its intent to award the bid to 3M. Petitioner's Exhibit 4 introduced at hearing indicates that the other bids were evaluated in part with regard to price and certain qualifications relating to their responsiveness; however, Petitioner's Exhibit 4 recites that the remaining bids were not evaluated in detail in accordance with General Condition 10 of the Department's invitation to bid which provided:

10. AWARDS: * * * When it is determined there is competition to the lowest responsible bidder, evaluation of the other bids is not required. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive.

OSC filed a timely challenge to the agency's notice of intent, attacking whether 3M's bid was responsive. None of the other bidders challenged the actions of the agency, and waived their rights to a hearing on the responsiveness of their bids. After a full evidentiary hearing in which the issue was limited to the responsiveness of the bid of 3M, the bid of 3M was found not to be responsive. The only remaining bid was that of OSC which had been determined to be a responsive bid by the agency and which has never been challenged.

The order of remand states in pertinent part:

"In order to adopt the Hearing Officer's Recommended Order to award to the next lowest bidder, Office Systems Consultants, it is necessary for there to be at least one other responsive bidder."

However, this presumes that the recommendation was proper and that an award pursuant to competitive bid is the only means of resolving the instant situation. Both presumptions are incorrect.

While the competitive bid process does require at least two valid responses to the invitation to bid, the rules recognize that there are times in which only one responsive bid or no responsive bids will be offered. Rule 13A-1.002(3),

F.A.C. provides that if there are no competitive bids to the first invitation to bid, the agency will review the situation to determine why there were no competitive bids prior to issuing a second invitation to bid; provided however, if the agency determines that commodities are available only from a single source, or that conditions and circumstances warrant negotiation on the best terms and conditions, the agency head may make a certification in writing as to the conditions and circumstances to the Division of Purchasing, Department of General Services. This rule addresses the three possible factual situations which could arise in an invitation to bid: (1) there are more than two qualified responsive bids, (2) there are no qualified responsive bids, or (3) there is only one qualified responsive bid.

Clearly a valid, responsive bid was received from OSC. There was at least one bid; therefore, there is no need to discuss the "zero bid" option. It is the responsiveness of the other bids which the Department now seeks to have determined on remand. Notwithstanding the agency's lack of detailed evaluation, Petitioner's Exhibit 4 reflects that DHSMV analyzed the bids to determine which bid had the lowest cost, whether the bidders were responsible, and if the bids were responsive. The agency compared them sufficiently to exclude the bids other than 3M's and OSC's and that decision became final when it was not challenged. The agency's action excluding the other bids is presumed to comport with legal requirements and the facts support this presumption. With the successful challenge to the bid of 3M, there is only one valid bid remaining.

Only one valid bid is strong evidence that a commodity is only available from one vendor. In this circumstance, the rules provide that the agency head may request DGS to approve sole source purchase of the commodity and certify to DGS in writing that the commodities are available only from a single source. In this case after examining the file at the request of the DHSMV, DGS advised DHSMV as follows in its letter dated April 29, 1987:

"Rule 13A-1.002(3) requires that an agency make a certification, in writing, to the Division of Purchasing as to the conditions and circumstances which would justify the award as a single source or would warrant negotiation. Should you desire to make a formal request and elaborate on the conditions and circumstances warranting single source or negotiation, we would be happy to review the bid package at that time and made a decision."

After the request by DHSMV, it is DGS's decision whether single source is appropriate. If DGS determined it was not appropriate, DGS might require DHSMV to issue another invitation to bid or request for proposal.

Conversely, re-evaluation of the responsiveness of the "unevaluated" bids recommences the evaluation process over six months after the bids were opened and the extent of evaluation must also be considered. Assessing retrospectively the responsiveness of the other bids without a comparison on their merits does not establish any real competition, and in the absence of acceptance by the agency, the offers made by the offerors, unless they were held open, were limited to no more than three months. See Section 672.205, Florida Statutes.

Re- evaluation serves no purpose at this point.

In summary, DHSMV correctly pointed out that the recommendation was erroneous. However, the additional findings requested by the DHSMV are not necessary at this juncture because all the facts necessary for DHSMV to act have been developed. Although the agency stated that it did not evaluate the bids of the other bidders, the facts reveal that the agency had to have evaluated the bids sufficiently to make the findings stated in bid tabulation which included the critical determination of responsiveness. If the agency's evaluation had not determined responsiveness, their exclusion was an agency decision the operative effect of which was the same as a determination of non- responsiveness. The agency's decision to exclude these bids is final because it was not challenged by anyone, and neither DHSMV nor one of the parties can resurrect these bids at this point.

DHSMV may now place the matter before DGS to determined whether it is proper to award a sole source contract at this point. This process also clarifies the role of DGS in this matter and the relationship of DHSMV and DGS. Upon making the request for sole source purchase, DHSMV is a petitioner to DGS which is recognized by all as the ultimate arbiter of the bidding/contract award process. One of the unsettling procedural aspects which indicates that something is very wrong in the current posture of this case is that DHSMV is "interpreting" DGS's rules and DGS is not a party nor bound by this proceeding. Once DHSMV requests action by DGS, DGS is called upon to interpret and apply its own rules and DHSMV and all the parties are bound by DGS's determination.

The original recommendation should have been limited to disqualification of 3M. This would have avoided introducing the issue of other qualified bidders.

Clearly, under the facts presented, OSC is the only remaining bidder. But for the misleading recommendation, DHSMV would have certified the matter to DGS and, based upon the correspondence with DGS, requested sole source purchase of the commodity following the applicable rules. Therefore, the original recommended order is herewith amended as follows:

RECOMMENDED that 3M be disqualified as the successful bidder, and the matter referred to the DHSMV for action pursuant to Rule 13A-1.002(3), F.A.C.

DONE and ORDERED this 3rd day of September 1987, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1987.

COPIES FURNISHED:

W. S. Webb, Jr., Esquire General Counsel

Office Systems Consultants 1351 Thomasville Road

Tallahassee, Florida 32303

Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

Leonard R. Mellon, Executive Director Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0504

J. Marshall Conrad, Esquire AUSLEY, McMULLEN, McGEHEE

CAROTHERS & PROCTOR

227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302

James L. Dye, Esquire Post Office Box 9480

Tallahassee, Florida 32302

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

OFFICE SYSTEMS CONSULTANTS,

Petitioner,

vs. CASE NO.: 87-0304BID

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,

Respondent,

and

HARRIS/3M COMPANY,

Intervenors.

/

FINAL ORDER

This matter came on before the Governor and Cabinet, sitting as the head of the Department of Highway Safety and Motor Vehicles on October 21, 1987, upon the Hearing Officer's Recommended Order and Order on Remand pursuant to Section 120.59, Florida Statutes. The Department has before it the Hearing Officer's Recommended Order issued April 10, 1987, and Order on Remand issued September 3, 1987, (copies attached), as well as Exceptions to the Recommended Order filed by the Intervenor, Harris/3M. 1/ Having heard argument by the parties and being otherwise completely advised of the matters at issue, the Department hereby adopts the Recommended Order, as modified by the Order on Remand as its Final Order.

Based upon the foregoing, it is found that Office Systems Consultants is the sole responsive bidder on this contract.

Accordingly, it is ORDERED,

that the Department shall apply forthwith to the Department of General Services for permission to negotiate with Office Systems Consultants upon the best terms and conditions for purchase of the 15 microfilm reader-printers, and

It is further ORDERED

that the Department of Highway Safety and Motor Vehicles is authorized to contract with Office Systems Consultants for purchase of the equipment, if such permission is granted by the Department of General Services.

DONE AND ORDERED this 20th day of October, 1987, at Tallahassee, Leon County, Florida.

LEONARD R. MELLON

Executive Director

Filed with the Division Clerk, Department of Highway Safety and Motor Vehicles, this 20th day of October, 1987.

ENDNOTE

1/ These exceptions are ruled on in the Appendix.

APPENDIX TO FINAL ORDER, CASE NO. 87-0304

Rulings on Exceptions to Recommended Order Harris/3M's Exceptions:

I.1. Rejected as not being supported by the record.

II.1., 2., 3., 4. Rejected as not being supported by the record.

III. Rejected as not being supported by the record.

COPIES FURNISHED:

Enoch J. Whitney General Counsel

and

Michael J. Alderman Assistant General Counsel Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504

J. Marshall Conrad, Esquire AUSLEY, MCMULLEN, MCGEHEE,

CAROTHERS & PROCTOR

227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302

Jim L. Dye, Esquire Post Office Box 9480

Tallahassee, Florida 32302

S. Webb, Jr., Esquire General Counsel

Office Systems Consultants 1351 Thomasville Road

Tallahassee, Florida 32303

Stephen F. Dean Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 87-000304BID

Orders for Case No: 87-000304BID