STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CABER SYSTEMS, INC., )
)
Petitioner, )
and )
) MINI COMPUTER ASSOCIATES, INC., ) and TANDON CORPORATION, )
)
Intervenors, )
)
vs. ) CASE NO. 87-0836BID
) STATE OF FLORIDA, DEPARTMENT OF ) GENERAL SERVICES, )
)
Respondent, )
and )
)
APPLE COMPUTER, INC., and ) INTERNATIONAL BUSINESS MACHINES ) CORPORATION, )
)
Intervenors. )
) MICROAGE COMPUTER STORES, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 87-0837BID
) STATE OF FLORIDA, DEPARTMENT OF ) GENERAL SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Richard J. Dewitt, Jr., Esquire, of Miami, and Philip L. O'Neill Esquire, of Washington, D.C., for Caber Systems, Inc.
Nancy N. Nowlis, Esquire, of Jacksonville, for Mini Computer Associates,
Inc.
Susan B. Kirkland, Esquire, and Sandra E. Allen, Esquire, of Tallahassee,
for Respondent, Department of General Services.
Thomas M. Beason, Esquire, and Richard A. Lotspeich, Esquire, of Tallahassee, for Apple Computer, Inc.
Paula Monopoli, Esquire, of Tallahassee, for IBM Corporation.
No appearance for Tandon Corporation or MicroAge Computer Stores, Inc.
A formal administrative hearing was held in this case in Tallahassee on March 13, 16 and 17, 1987. (The parties asked for and received until April 13, 1987, in which to file proposed recommended orders.) The issue is the final outcome of Invitation To Bid No. 545-25a-040-B, Microcomputers (the ITB), issued by Department of General Services (DGS), on August 29, 1986, to solicit bids far the sale of various microcomputers, system components and accessories during the year 1987.
After Caber Systems, Inc. (Caber) protested some of the awards the DGS had proposed to make on December 15, 1986, the DGS gave notice of intent to reject all bids on January 21, 1987. Initially, Caber in Case 87-0836BID and MicroAge Computer Stores, Inc. (MicroAge), in Case 87-0837BID protested the rejection of all bids. Later, Mini Computer Associates, Inc. (Mini Computer) and Tandon Corporation (Tandon) intervened to also challenge the rejection of all bids.
Apple Computer, Inc. (Apple) and IBM Corporation (IBM) intervened in support of the rejection of all bids and, alternatively, in opposition to Caber's protest of the December 15, 1986, awards to them.
Before final hearing, MicroAge voluntarily-dismissed its petition in Case 87-0837BID, disposing of that proceeding.
FINDINGS OF FACT
The Department of General Services (DGS), through its Division of Purchasing (Division), is the State agency responsible for establishing term contracts under which the DGS requires state agencies to purchase the commodities on such contracts and under which a county, municipality or other local public agency may purchase. State agencies, political subdivisions and local agencies purchasing under the State contract are exempt from competitive bid requirements for such purchases.
The DGS surveys the State's purchases of commodities and, if the volume of purchases of various commodities warrants, develops and bids term contacts for such commodities. The purpose of the term contracts is to obtain for the State the price advantages of large quantity purchases, to standardize the terms, conditions and technical specifications for commodities purchased by the State and to eliminate State agencies having to publish numerous individual invitations to bid. The Division's objective should be to write specifications which allow for the widest participation of interested vendors and to obtain the greatest competition on pricing.
In recent years, the DGS has established annual term contracts to make microcomputers available to state agencies, political subdivisions, and the state university system. The first annual term contract for microcomputers was established in 1979 or 1980. The bid specifications for the microcomputer contract have remained essentially the same since inception. Based on history, it can be estimated that contract users will expend approximately $38,000,000 in 1987.
On August 29, 1986, the DGS issued Invitation To Bid 545-250-040-B, Microcomputers (ITB), for purposes of establishing the 1987 term contract. The ITB classifies microcomputers in seven categories, which are further divided into subcategories as follows: Category 1: identified as an eight or sixteen bit word size microcomputer with at least 16K Bytes of RAM, a video display, one
(1) diskette drive with controller, and necessary software/firmware to support the BASIC language, the diskette system and other hardware items of the system. The following three (3) subcategories will be considered for award:
Commodity Number Subcategory Description
250-040-010-0001 | 1A | Commodore 64 |
1B | Tandy Color Computer | |
1C | Other Low Qualified Bid |
Category 2: Identified as an eight or sixteen bit word size microcomputer with at least 32K Bytes of RAM, a video display, two (2) diskette drives with controller, and necessary software/firmware to support the BASIC language, the diskette system and other hardware items of the system. The following seven (7) subcategories will be considered for award.
Commodity Number Subcategory Description
250-040-020-0001 | 2A | Apple IIe |
2B | Atari 800 Series | |
2C | Commodore 4032 | |
2D | Commodore 8032 | |
2E | Tandy Model 4D | |
2F | Atari 130 XE | |
2G | Other Low Qualified Bid |
Category 3: Identified as a sixteen/thirty-two bit word size microcomputer with data bus at 8 or 16 bit width with at least 256K Bytes of RAM, a video display, two (2) diskette/disk drives with controller, and necessary software/firmware to support the BASIC language, the diskette/disk system and other hardware items of the system. Communications software/firmware may be bid as an option in this category. The following twenty-three (23) subcategories will be considered for award:
Commodity Number Subcategory Description 250-040-040-0001 3A IBM PC Series
(All Models Except those in Category 4)
3B Wang Professional Computer
3C Burroughs B-20 Series (All Models)
3D Apple Macintosh
3E Tandy TRS-80 Series (1000/1200/2000/3000)
3F Zenith - 100 Series (All Models)
3G Xerox 6000 Series (All Models)
3H Harris C-2000 Series
3I Sperry - PC
3J NCR PC Series
(All Models)
3K AT&T PC-6300
3L Hewlett-Packard Model 150
3M Compaq Deskpro Series
(All Models)
3N Digital PC Series (All Models except
those in Category 4)
3O TI Business Pro
3P Telex Business Pro
3Q Convergent Technology Series
3R Leading Edge Model D
3S Epson Equity Series
*3T 100 percent IBM Compatible Clone. PC-DGS-MS-DGS (PC, PC-XT)
3U Atari 500 Series
3V Commodore Amiga
3W Other Low Qualified Bid
*Note: The apparent low qualified bidder must demonstrate by a benchmark using the Norton Utilities that the machines bid are determined to be functionally compatible with the above IBM models. This benchmark will be conducted in Tallahassee.
Category 4: Identified as a sixteen/thirty-two bit word size multi-user microcomputer system with data bus at 16 bit width with at least 512K Bytes of RAM, a system control monitor/workstation, file server of at least 35 Mb Winchester (Hard) disk, one (1) floppy diskette drive, three (3) user work- stations, and not more than eight (8) user workstations, sufficient tape backup capability to backup the Winchester disk that is bid, and necessary software/firmware to support the BASIC language, operating system, communications, the diskette/disk system and other hardware items of the system. The following twelve (12) subcategories will be considered for award.
Commodity Number Subcategory Description
250-040-050-0001 4A IBM PC/Series I
4B IBM PC/System 36
4C IBM PC-AT
4D NCR Tower (All Models Except Super-Micro)
4E Tandy 6000
4F Digital PDP-11
4G AT&T PC 7300
4H Wang APC/PC Series
4I Sperry Series 5000/20
*4K 100 percent IBM Compatible Clone MS-DGS/PC-DGS
(PC-AT)
4L Other Low Qualified Bid
*Note: The apparent low qualified bidder must demonstrate by a benchmark using the Norton Utilities that the machines bid are determined to be functionally compatible with the above IBM models. This benchmark will be conducted in Tallahassee.
Category 5: Identified as an eight or sixteen bit word size portable microcomputer with at least 16Kb RAM, video display with full screen capability (minimum display of 16 lines, 32 characters per line), one (1) diskette drive
with controller, and necessary software/firmware to support the BASIC language, the diskette system and other hardware items of the system. The following three
(3) subcategories will be considered for award:
Commodity Number Subcategory Description 250-040-060-0001 5A Kaypro Series
(All Models)
5B Apple IIC
5C Other Low Qualified Bid
Category 6: Identified as an eight or sixteen bit word size portable microcomputer with at least 8Kb RAM, video display with limited capability (minimum display of 8 lines, 40 characters per line), one (1) cassette recorder and/or diskette drive with controller, and necessary software/firmware to support the BASIC language, the diskette system and other hardware items of the system. The following two (2) sub-categories will be considered for award:
Commodity Number Subcategory Description
250-040-070-0001 6A Tandy 102/200/600
6B Other Low Qualified Bid
Category 7: Identified as a sixteen bit word size portable microcomputer with at least 64Kb RAM, video display, at least one (1) diskette drive with controller and necessary software/firmware to support the BASIC language, the diskette system and other hardware items of the system. The following six (6) sub-categories will be considered for award.
Commodity Number Subcategory Description 250-040-080-0001 7A Compaq
7B IBM PC Convertible
7C Data General One
7D Zenith Z-100 Portable Series
7E Kaypro 2000
7F Other Low Qualified Bid
The Special Conditions of the ITB include a requirement for submission of price tables as part of a bid:
To be considered responsive, bidder must submit properly completed Tables A, B, C and D.
A complete set of Tables A, B, C and D must be submitted for each subcategory bid.
TABLE A - MICROCOMPUTER HARDWARE COMPONENTS:
All hardware bid, whether mandatory or optional,
must be entered in Table A. The subcategory, district and vendor must be indicated in space provided.
Table A must reflect only items applicable to the subcategory. A separate Table A must be submitted for each subcategory bid.
TABLE B - MICROCOMPUTER OPTIONS/ACCESSORIES
All options, upgrades, and accessories must be entered in Table B. Accessories must identify microcomputer model(s) to which they are applicable. If there are no options, upgrades or accessories, so indicate with N/A.
TABLE C - SYSTEM SOFTWARE:
All system software, such as the operating system, editors, loaders, generalized utilities, etc., must be entered on Table C - System Software. Unit price of additional copies of documentation, if any, must be listed.
A separate Table C must be submitted for each subcategory bid.
TABLE D - EVALUATION CONFIGURATION:
Seven basic configurations will be considered in making awards. The configurations are designated Category 1 through 7 and are shown in Table D1 through D7. Care should be taken in completion of Table D since incorrect information could result in disqualification. In case of errors in Table "D", prices in Tables A, C, shall prevail. State reserves the right to correct arithmetic errors in Table "D".
To qualify for award, any system must, as a minimum, satisfy the evaluation configuration specified in Table D.
Manufacturer Name and Model: Enter subcategory (listed in Table I of specifications) being bid plus the name and model of the system.
If there is no charge for a component, so indicate with N/C.
Components and prices listed by vendors in Table D must agree with components and prices listed in Tables A and C.
Use separate Table D for each subcategory.
The Special Conditions also state: "Any contract resulting from this bid will be awarded by subcategory to the low bidder."
Historically, awards were made by make and model, using a format substantially like the current ITB format for the invitation to bid. Within each subcategory, DGS evaluated the various makes and models by price. Significantly, this was done even if the subcategory description was not "Other Low Qualifying Bids" and did not include words like "all models" or "series."
If there were more than one bid on a particular model, the award would be to the
lowest bidder. If only one bid was received on a particular model, the award would be made to that bidder. In order to be considered responsive, a bidder had only to submit one responsive Table D per subcategory. Once it was determined that the bidder had submitted a responsive Table D, the individual models listed on Table A would be evaluated and considered for award. (See Respondent's Exhibits 14, 15 and 16, as well as the testimony of George Banks, Lynn Silver, Timothy Dwelle and Charles Becker.) As a result, the contract currently in place has approximately 200 to 250 microcomputers; the ITB last year listed only 48 subcategories.
The past practice of DGS was to award accessories to each vendor who was awarded a model, thereby creating competition for acquisition of accessories within the contract. For example, if three different models were awarded to three different bidders in one subcategory in the 1986 contract, each bidder would also be awarded the accessories listed on its Table A. (In 1985, Table A incorporated both Table A and Table B of the ITB in issue in this case.) A state agency would purchase accessories from the vendor with the lowest price. Historically, state agencies have been required to purchase accessories awarded under the contract. The same scenario was true for the software. The bidders who were awarded a model in the 1986 contract would be awarded the software they had listed on Table B (Table C in the ITB in issue in this case), and state agencies who are required to purchase from the contract could choose the lowest prices.
The ITB in issue in this case was sent to 258 vendors, of whom 67 responded.
Some, mostly the manufacturers, including Apple and IBM, responded to the bid in accordance with past practice. They did not interpret the ITB to require a separate Table D for each model bid, just a separate Table D for each subcategory. They also structured their bids with the understanding that all models on Table A would be considered for award and that there would be more than one award per subcategory (even if the subcategory description was not "Other Low Qualified Bid" or the new "100 percent IBM Compatible Clone" and did not include words like "all models" or "series.")
Other bidders, mostly dealers, including Caber and Mini Computer, who were not as familiar with the history of the microcomputer bidding process, interpreted the ITB to require a separate Table D for each bid, not just for each subcategory. Mini Computer strictly interpreted the ITB to provide for only one award per subcategory. Caber's interpretation was that multiple awards were contemplated by the ITB only in the subcategories described "Other Low Qualified Bid" or "100 percent IBM Compatible Clone" and in other subcategories whose description included the words "all models" or "series."
As for accessories and software, Caber and Mini Computer did not read the ITB to provide for any award of accessories on Table B or software on Table
C. They thought Tables B and C were for informational purposes only and that there would be no requirement for users of the resulting contract to buy accessories or software from the contract. There was no evidence tending to show whether the other bidders thought there would be an award of accessories or software or how they would be awarded.
The responses to the ITB were opened on October 9, 1986. As was DGS' custom, the Table D prices only were tabulated. Among other things, the tabulations showed that Caber's Table D prices in subcategories 2A and 5s were lower than Apple's or any other bidder's.
DGS then began the process of evaluating the bids and making awards. Based on the historical response, DGS allotted three weeks for evaluation and award. But due to the unusual number of bidders and bids, the process took ten weeks.
After the tabulation but before the posting of awards, Caber informed some fellow Apple dealers that Caber was the low bidder in subcategories 2A and 5B and would be getting the 1987 state term contract. The word spread among the Apple dealers and customers in Florida, and some concerned Apple dealers and customers contacted Apple, asking if it was true that Caber was going to have the 1987 contract. To clarify the question, among other things, Apple scheduled a meeting with the DGS in early November, 1986. Apple was assured that DGS intended to evaluate the bids by make and model and make awards to the lowest bidder of each make and model, as usual, including all models bid under subcategories 2A and 5B.
On December 15, 1986, DGS posted awards. On receipt of the posting, Caber noticed that DGS had designated its previously tabulated Table D price in Subcategory 2A as the "Professional System," added three prices to Apple's previously tabulated 2A price--designated "Starter System," "3.5 Starter System" and "Color Classroom System"--and awarded all four under 2A. Similarly, DGS had designated Caber's and Apple's previously tabulated Table D prices in Subcategory 5B as the `Starter System," added a Caber price designated "CPU," added an Apple price designated "Color System," and awarded the "Starter System" and "CPU" to Caber and the "Color System" to Apple. Caber arranged to further investigate the awards.
An additional award was also recommended for Tandon in Subcategory 3W. The original bid tabulation did not indicate that a bid had been sought or received on this model. The Division constructed a bid price for this model from Tandon's bid, inserted that price on the bid tabulation and circled it, indicating award.
Other than those five models, the posting did not contain similar insertions of other additional models, i.e., models not previously tabulated, other than clerical adjustments.
In late December, 1986, Caber protested the three awards to Apple in Subcategory 2A, three awards to IBM in Subcategory 3A, one award to Apple in Subcategory 3D, one award to Microage in Subcategory 3L, seven awards to Microage in Subcategory 3M, two awards to IBM in Subcategory 4C, the award to Apple in Subcategory 5B, six awards to Microage in Subcategory 7A, and one award to IBM in Subcategory 7B.
Caber's definition of "model" seemed to also be at variance with the way DGS had interpreted that term. DGS viewed a model as the model number by which the manufacturer identified a part or a particular configuration. Caber viewed the type of computer as the model and any variation from the basics computer as an assemblage for marketing purposes even though the manufacturer may identify the assemblages by different model numbers. For example, in Subcategory 2A, Apple IIe, DGS viewed the Starter System, the 3.5 Starter System, and the Color Classroom System as models within the subcategory. Caber viewed Apple IIe as the model, meaning there was only one model in Subcategory 2A. In Subcategory 3A, IBM PC Series, DGS viewed the subcategory to be divided
into series consisting of PC, XT, XT-286, and 3270 PC and the series to be further divided into models. Caber viewed the PC, XT, XT-286 as models rather than series.
Each of the three additional models awarded to Apple in Subcategory 2A--the Starter System, 3.5 Starter System and Color Classroom System--are single diskette drive systems, whereas Subcategory 2A specifies a two diskette drive system. Each of the three additional "models" awarded to Apple in Subcategory 2A meet the specifications of Subcategory 1C, Other Low Qualified Bid. But it was DGS' intent for those models of the Apple IIe to be bid under Subcategory 2A, Apple IIe, as historically had been done, not under Subcategory 1C, Other Low Qualified Bid.
If DGS were held to the strictest interpretation of the ITB's method of award (the interpretation given by Mini Computer), there would be only 56 awards, and the term contract for microcomputers would not be meeting the agencies' needs. There would be no award of Table A, B or C items other than those used to make up the system described on Table D, the evaluation configuration. DGS would be inundated with contract exceptions from state agencies because state agencies are required to buy from the term contract unless DGS grants an exception. This means the agencies would end up going out for bid for microcomputers, thereby defeating the purpose of the term contract. Political subdivisions would also have to go out and bid to get favorable pricing and to purchase items which would not be on the state contract. This would not be in the State's best interest.
Under the interpretation of the award of Table A items offered by Caber at the hearing, and of the award of Table B and C items offered post- hearing, Table A, B and C items would not be evaluated, but would be awarded along with the award for the lowest Table D price. Using Subcategory 2A as an example, this would, as a practical matter, result in the award of Starter System, 3.5 Starter System and the Color Classroom System to Caber, along with the Professional System in its Table D, because Caber could put those system models together from its Table A, B and C items. But the price of those additional system models put together from Caber's Tables A, B and C would be higher than the prices Apple bid for them in its Table A. Since only about 10 percent of the State's Apple IIe purchases in 1986 were Professional Systems, the price differences are significant. Taking the Color Classroom System alone, approximately 60 percent of the State's 10,000 Apple IIe purchases in 1986 were Color Classroom Systems. At a price difference of approximately $150 per sale, it would cost the State approximately $900,000 more to buy those same systems from Caber in 1987. Similarly, Caber's Starter System would cost contract users
$965 compared to Apple's bid of $827, and Caber's 3.5 Starter System would cost contract users $1050 compared to Apple's bid of $878. This, too, would not be in the best interest of the State.
Also, under the interpretation of the award of Table B accessories offered by Caber post-hearing, although a wider variety of accessories would be available than under the strictest interpretation of one award per subcategory, winner take all, accessories would be available from somewhat fewer vendors. This reduces the incentive of bidders to price Table B accessories competitively and increases the likelihood that higher prices will be paid by contract users. Since accessories are now approximately 40 percent of the State's purchases, it is in the best interests of the State to structure the bid to foster price competition for accessories if accessories are not to be separately evaluated.
Subcategory 5B is the Apple IIc. The December 15, 1986, posting recommended awards to Caber for the Apple IIc CPU and the Apple IIc Starter System. The posting recommended an award to Apple for the Apple IIc Color System. Apple submitted a Table D for category 5B which met the minimum evaluation configuration. The Apple IIc Color System is a model within the Apple IIc series, as "model" is defined by Apple, as manufacturer, and by DGS, although this definition is not spelled out in the ITB. Caber defines the Apple IIc as the microcomputer model. Apple bid the Apple IIc Color System which includes the more popular color monitor rather than the monochrome monitor bid by Caber.
Apple's bid in Subcategory 3D, Apple Macintosh, does not contain BASIC, whereas the bid specifications appear to require it. Because of the absence of BASIC, Apple's bid in Subcategory 3D does not contain a software command program that would allow the user to execute a user program, list the source code of a user workspace in memory, and clear the user workspace or memory, whereas Special Conditions 3.2.11.1, a., b., and c. require it.
Apple does not manufacture or supply BASIC and could not bid BASIC except as a so-called "third-party" component.
The DGS did not include the words "no substitutes" in the ITB. (See Rule 13A-1.002(16), Florida Administrative Code (1986).) Meanwhile, the ITB does include General Condition 6:
MANUFACTURERS' NAME 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 specifications for any item(s).... 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 State of
Florida reserves the right to determine acceptance of item(s) 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 specifications as listed on the bid form. The Division of Purchasing 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 Director, Division of Purchasing.
But the general condition appears on a form cover sheet while this ITB is for a multiple award. A reasonable interpretation of this ITB, taken as a whole, is that subcategories described by specific manufacturers and models call for a bid of the specific manufacturer's products and that so-called "third party
components" can be bid only in subcategories described as "Other Low Qualified Bid" or "100 percent IBM Compatible Clone." Otherwise, it would be very difficult, if not impossible, to compare and evaluate bids in the various subcategories. But the ITB is ambiguous on the use of "third party components."
Although IBM listed third party components on its Table Bs (optional hardware) in its bid, Apple and the DGS interpreted the ITB to restrict the use of "third party components" to subcategories described as "Other Low Qualified Bid" or "100 percent IBM Compatible Clone." As a result of this interpretation, Apple did not include BASIC in its bid in Subcategory 3D. DGS posted the award of the Apple Macintosh to Apple, as low bidder, instead of Caber, as second low bidder. But actually, under the DGS interpretation, Apple's bid using "third party" BASIC was unresponsive, and the specifications were written so as to preclude Apple, the manufacturer, from bidding its own Apple Macintosh. Such a result would not be in the State's best interest.
Following its interpretation of the ITB concerning use of "third party components," Caber's bid in Subcategory 4C, IBM PC-AT, proposes use of 5 third party components: a 40 Mb Rodime Winchester hard disk; a Kimtron KT-7/AT terminal; an archive T160 Mb tape back-up; an AST Four Port-XN; and Microsoft BASIC.
The practice of mixing third party components with IBM personal computers is common, and there are perhaps millions of them in use that have third party components.
State purchasers would not have been adversely affected in terms of performance or price by Caber's proposed third party components. With respect to the 40 Mb Rodime Winchester hard disk proposed by Caber, its performance would have been superior to IBM's proposal of two 20Mb Winchester hard disks in many applications.
DGS could readily have verified whether the 5 third party components proposed by Caber complied with the technical specifications of Subcategory 4C. DGS would have had to do this anyway if Caber had bid the model in the "Other Low Qualified Bid" Subcategory.
Caber's bid was the lowest bid in Subcategory 4C. Compared to IBM's bid price for the IBM PC-AT system described in subcategory, Caber's bid would save State purchasers approximately $1000 per unit. (The evidence on the number of units estimated to be purchased in 1987 was speculative.)
Following its interpretation of the ITB on the use of "third party components," DGS disqualified the Caber bid in Subcategory 4C and posted the award to IBM. (In posting award of Subcategory 4C to IBM, DGS allowed IBM to supply two 20 Mb Winchester hard disks, which IBM does manufacturer, instead of a 35 Mb Winchester hard disk, which it does not manufacture, to meet the bid specification.)
The facts show that the ITB was seriously flawed in several respects. First, it neither reflects the DGS intent and historical practice to award by make and model under all subcategories nor clearly and unambiguously reflects any other intent, such as either the intent Caber or the intent Mini Computer inferred from the ITB. Second, it neither provides for evaluation of Table B accessories or Table C software nor clearly provides that awards of Table B accessories or Table C software will be made. Third, the ITB is ambiguous on the use of "third party components." And fourth, if "third party components"
are not allowed in most subcategories, Subcategory 3D is written so as to preclude Apple from bidding on its own Apple Macintosh. 2/
As a result of these flaws, Caber, which, like all of the bidders, had invested substantial time, money and energy responding to what it thought the ITB said, understandably reacted with some degree of indignation and suspicion to some of the awards DGS posted using its interpretation of the ITS.
Meanwhile, DGS' personnel, who also had invested substantial time, money and energy in the ITB process (especially the 10 week evaluation process) on behalf of the State, understandably reacted with some degree of annoyance, disappointment and dejection when Caber's December, 1986, protest made it inescapably apparent that the ITB had serious flaws that promised to make life very difficult for the DGS, and particularly for those involved in the ITB process.
In order to continue doing business- during the pendency of the bid protest, DGS extended the 1986 contract for microcomputers pursuant to the terms of the contract and General Condition 19 of the invitation to bid that resulted in it:
RENEWAL: The Division of Purchasing reserves the option to renew the period of this contract, or any portion thereof, for an additional contract period.
Renewal of the contract period shall be by mutual agreement in writing.
All but three of the vendors on the 1986 contract consented to the renewal. At the time the proposed awards were posted, there would have been a savings of up to $3.8 million to the State by awarding a new contract for the 47 subcategories not subject to Caber's December, 1986, protest rather than continuing with the existing contract. But since the contract has been extended, there have been price reductions under the terms of the contract and General Condition 17 of the invitation to bid that resulted in it:
PRICE ADJUSTMENTS: Any price decrease effectuated during the contract period
by reason of market change shall be passed on to the State of Florida. This shall also apply to all in-place equipment on rent or lease plan. Price increases are not acceptable.
There also have been additions of new products under the terms of the contract and the following Special Condition of the invitation to bid that resulted in it:
ADDITION/DELETION/CHANGE: The Division of Purchasing reserves the right to add to or delete any item from this bid on a quarterly basis when deemed to be in the State's best interest. Deadline dates for quarterly changes will be mailed to contract suppliers with certification
of contract. Submission must be on
same type forms as those used in this bid.
As a result, the savings to the State by awarding a new contract for the 47 subcategories not subject to Caber's protest, if any, is speculative on the evidence presented at the final hearing.
General Condition 9 of the ITB provides:
AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual item,
group of items, all or none, or a combination thereof, on a geographical district basis and/or on a statewide basis with one or
more suppliers to reject any and all bids or waive any minor irregularity or technicality in bids received. When it is
determined there is competition to the lowest responsible bidder, evaluation of other bids is not required. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. All awards made as a result of this bid shall conform to applicable Florida Statutes.
On balance, the evidence convincingly proved that it is in the State's best interests to reject the bids in subcategories 2A, 3D, 4C and 5B, correct the flaws in the ITB and re-bid those subcategories, possibly with additional subcategories.
The evidence was less convincing on the question whether it is in the State's best interest to reject the bids in the other 52 subcategories. But there was proof:
One of the things when we began this part of the evaluation that became clear to us was the fact that the bidders responded in two distinct different ways. We had a group of bidders that responded with a literal interpretation of our evaluation and award statement that said we were going to award by the lowest price per subcategory. And we had probably a larger group of people that had historically participated in the bid that responded by make and model, which is how we evaluated the bid and how we have historically awarded the bid.
* * *
I think the other thing that has come to light in our meetings is simply
the fact that if I as a bidder conditioned my bid knowing that historically you've awarded by make and model, and you have
my bid and you've evaluated it and you've found me responsive, but all of a sudden now we find that we can't award it that
way, or, even worse, we say we have to award it the way Caber intends, I would
say that's unfair to me. You're evaluating my bid differently than what my intent and understanding was when I submitted it.
On the other hand, if indeed, as Mini Computer did, I looked at it and I took a literal interpretation, and the State has evaluated it by make and model, that's not fair to him.
So what I would say is that unfortunately
we have spent a lot of time administratively, manpower, and so have the vendors. But
it's an insolvable situation that can best be remedied by rejection of the bids, correcting the language, correcting the specifications, and going forward with a new bid, turning it around and getting a new contract into place.
Testimony of George Banks, TR. 345 and 374-375.
Besides the question of fairness to all the bidders, there is the question of fairness to the State. It is possible, though not proved by the evidence, that the confusion in the ITB worked to reduce price competition by make and model because some bidders either thought only one award would be made per subcategory (as Mini Computer did) or thought that all makes and models in a bid response in a subcategory would be awarded on the basis of the prices in the Table D only (as Caber did), allowing the bidder to "low-ball" Table D and
"high-ball" other components on Tables A, B and C (including accessories.)
Under all the circumstances which the evidence shows surround this ITB, it cannot be said that a decision to reject all bids is without any rational basis, is arbitrary or is capricious.
CONCLUSIONS OF LAW
Section 287.001, Florida Statutes (1985), provides:
287.001 Legislative intent.-The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which contractual services are procured. It is essential to the effective and
ethical procurement of contractual services that there be a system of uniform procedures to be utilized by state agencies in managing
and procuring contractual services; that detailed justification of agency decisions in the procurement
of contractual services be maintained; and that adherence by the agency and the consultant to specific ethical considerations be required.
Section 120.53(5), Florida Statutes (1985), prescribing procedures for bidding, provides in pertinent part:
Upon receipt of a notice of protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts
and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare. (Emphasis added.)
But neither the statute nor the court decisions prohibited the DGS from rejecting all bids or required the DGS to postpone a decision to reject all bids until after Caber's protest of the December 15, 1986, posting of awards was resolved by final agency action. In Cianbro Corp. v. Jacksonville Transp.
Auth., 473 So.2d 209 (Fla. 1st DCA 1985), the court stayed the award of a contract during the pendency of bidders' protests. 3/ In Solar Energy Control, Inc. v. Dept. of Health and Rehabilitative Services 377 So.2d 746 (Fla. 1st DCA 1979), the court stayed the re-bidding of a contract during the pendency of a bidder's protest of the agency's rejection of all responses to the initial invitation to bid. In this case, DGS' procedures have resulted in one administrative proceeding to resolve efficiently both Caber's protest of the December 15, 1986, posting of awards and its protest of the January 21, 1987, rejection of all bids. No further bidding or award of contracts will take place until after the resolution of this proceeding. Caber cannot use Section 120.53(5)(c) or the court decisions either as a means of delaying the resolution of its protests by requiring their consideration in two separate, consecutive administrative proceedings or as a sword to cut off DGS' ability to consider whether to reject all bids.
Section 120.53(5)(d), Florida Statutes (1985), also provides in pertinent part:
The agency, on its own initiative
or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the
parties within 7 days, excluding Saturdays,
Sundays, and legal holidays, of receipt of a formal written protest.
* * *
2. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of the formal
written protest and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under s. 120.57(1).
In this case, DGS did not refer Caber's protest of the December 15, 1986, posting until February 27, 1987, when it referred to the Division of Administrative Hearings both that protest and Caber's protest of the January 21, 1987, rejection of all bids. The delay in referring the first protest technically violated the procedures set out in Section 120.53(5)(d). But the error did not prejudice Caber. Referral of the first protest to the Division of Administrative Hearings legally would not have prevented DGS from later rejecting all bids. See Conclusion 2, immediately above.
The evidence was clear that DGS gave Caber "an opportunity to resolve [both of Caber's protests] by mutual agreement." Settlement meetings were held on January 5 and again on February 12, 1987. The evidence did not prove that either DGS or Caber negotiated in bad faith but only that the parties were unable to agree to a resolution of either of the protests and that there were hard feelings on both sides. See Findings 33 and 34, above.
Rule 13A-1.002, Florida Administrative Code (1986), provides that an agency shall reserve the right to reject any and all bids and shall so indicate in its invitation to bid.
General Condition 9 of the ITB, DGS expressly reserved the right "as the best interest of the state may require" to award by individual items or groups of items or to reject any and all bids or waive any minor irregularity or technicality.
Notwithstanding Rule 13A-1.002 and General Condition 9, the courts have held that an agency's authority to reject all bids is not unbridled. An agency's rejection of all bids may not be arbitrary or capricious. But, otherwise, an agency has wide discretion to reject all bids. See Liberty County
v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982); Capeletti Bros., Inc. v. Dept. of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Couch Constr. Co., Inc., Dept. of Transp., 361 So.2d 172 (Fla. 1st DCA 1978); Woods-Hopkins Contracting Co. v. Roger J. Au & Sons, Inc., 354 So.2d 446 (Fla. 1st DCA 1978).
A formal administrative proceeding under Section 120.57(1), Florida Statutes (Supp. 1986), arising out of the protest of an agency decision to reject all bids is de novo in the sense that the issue whether the agency decision to reject all bids has a rational basis or is arbitrary and capricious is decided upon evidence of facts and circumstances at the time of the final hearing. See Couch Const. Co., Inc. v. Dept. of Transp., supra, at 175-176.
For this reason, a 120.57(1) proceeding arising out of the protest of an agency decision to reject all bids is essentially different than a rule
challenge under Section 120.56, Florida Statutes (1985), in which the Hearing Officer enters a final order on the issue whether an agency's rule is capricious. In the latter, only evidence of the facts and circumstances at the time of the adoption of the rule is admissible as relevant to the issue. For this reason, while a rule can be invalidated as being capricious, as defined in Aorico Chemical Co., v. Dept. of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), it safely can be predicted that few agency final orders rejecting all bids after 120.57(1) proceedings will be said to be capricious, as defined by Agrico: "A capricious action is one which is taken without thought or reason or irrationally."
On the other hand, under the applicable law as it has developed, a 120.57(1) proceeding arising out of the protest of an agency decision to reject all bids also is essentially different than a completely de novo proceeding as described in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). If the former were the same as the latter, the issue before the Hearing Officer would be whether the agency should reject all bids. Id. at 581-
583. Instead, the issue is whether the agency decision to reject all bids has a rational basis and is not arbitrary. See, , Couch Constr. Co., Inc. v. Dept. of Transp., supra.
As found, the DGS decision to reject all bids in this case has a rational basis. It is not arbitrary or capricious. It is apparent, for example, that DGS intended to award by make and model but the invitation to bid did not reflect its intent clearly. Some bidders prepared their bids based upon the historical method of award, and others followed more literal readings of the invitation to bid. Thus, the specifications did not adequately apprise the bidders of the method of award that would be used. Contracts procured through competitive bidding "should be predicated upon adequate specifications which afford some reasonable basis for a comparison of bids, in order that bids, when received, might be truly competitive in character by having them applied to the same things." Wester v. Belote, 138. So. 721, 724 (Fla. 1931).
The facts in this case are similar to the facts in Aurora Pumo v. Goulds Pumps, Inc., 424 So.2d 70 (Fla. 1st DCA 1982). In Aurora, the Jacksonville Electric Authority (JEA) had issued an invitation to bid for centrifugal pumps. The invitation to bid did not address procedures which would be used in negotiating price adjustments to the bids; however, the price adjustments were governed by unwritten procedures based on the customary practices of JEA. Goulds Pumps, relying on his interpretation of the invitation to bid, submitted his proposal after the submission of a preliminary evaluation by the engineers to JEA; however, according to past practices, JEA did not accept price adjustments after the submission of the preliminary evaluation.
The other bidders were aware of the unwritten deadline for submission of cost adjustments. In an appeal arising out of a circuit court judgment enjoining the JEA from entering into a contract with Aurora Pump, the court appreciated the dilemma caused by the inconsistencies between the past practices and the bid solicitation documents.
[T]he question is, in the first instance, whether the bidding documents were sufficiently specific to assure fair competition to all the bidders.
* * *
Regardless of whether all the other companies, including Aurora, understood
that no modifications would be made after the evaluation was submitted, the other companies' operating their negotiations from a vantage obtained
through prior dealings with JEA, worked to create the appearance of favoritism and impropriety. Further, had JEA accepted Goulds' eleventh-hour cost deduction, where the other companies believed last minute modifications were precluded by the instructions, Goulds would have received an unfair economic advantage. Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982).
Aurora argues that if Goulds was confused, it could have requested in writing an interpretation of the instructions; yet, Aurora's argument misses the point. Because of its lack of knowledge of the "unwritten rules", and due to its reasonable interpretation of the instructions, Goulds did not know it was "confused." Whether the deadline for submitting modifications was a date, or an event, as Aurora alleges, is irrelevant in this case where the instructions did not specify one or the other, and all involved apparently were unaware of the imbroglio.
Id. at 74, 75. The court affirmed the injunction against JEA from entering into any contract and directed JEA to rebid if it desired to proceed with the work.
In so holding, the court stated:
[T]hose who we hope to encourage are the public agencies and authorities to responsibly prepare and disseminate clear and precise bidding instructions so the public may be protected against collusive
contracts; to secure fair competition upon equal terms to all bidders; and
to remove temptation for favoritism and fraud at the public expense.
Wester v. Belote.
The lower court correctly concluded, under these circumstances, that JEA exercised its discretion in an arbitrary
and capricious manner. William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla. 2d DCA 1960).
Id. at 75.
In this case, to award by make and model treats the bidders who submitted bids according to one of the more literal readings of the ITB unfairly. On the other hand, to award by one of the stricter readings of the ITB is unfair to those bidders who submitted bids based on DGS' past practices. Therefore, on the authority of the Aurora decision, not only was the DGS decision to reject all bids neither arbitrary nor capricious, it may have been arbitrary and capricious for DGS not to have rejected all bids.
The decision in the Final Order, Douglas Printing Co., Inc., v. Dept. of Agriculture and Consumer Services, 5 F.A.L.R. 2225-A (Dept. A. and C.S. 1983), while somewhat confusing, might seem on first reading to conclude that all bids cannot be rejected after the bids are opened and considered. But on closer reading, the decision is distinguishable from the facts of this case.
The decision notes: "In the instant case, there was no showing of any reason for rejection of all bids other than that the Director felt an inadequate number of bids had been received." Id. at 2227-A. There was no reason to wait until after bid opening to reject all bids on that ground. To the contrary, in this case the DGS did not know the grounds for rejection of all bids until after the December 15, 1986, posting.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of General Services, enter a final order
(1) dismissing Case No. 87-0837BID and (2), if this still is how it wishes to exercise its discretion on this record, dismissing Case No. 86-0836BID and rejecting all bids in response to ITB 545-250-040-B, Microcomputers.
RECOMMENDED this 13th day of May, 1987 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 13th day of May, 1987.
ENDNOTES
1/ Notwithstanding the clear testimony of Caber's president, Richard Evans, that this was how Caber interpreted the ITB at the time, Caber disingenuously argued in its proposed recommended order for a contrary "subcategory winner take all criterion of award."
2/ The ITB also does not define options, upgrades, or accessories. Bidders were confused whether to use Table A or B when listing some of the various components that were also to be listed in Table D. Table A called for all hardware whether mandatory or optional, and Table B called for all options, upgrades, and accessories. Some bidders felt that some of the components listed
on Table D were considered accessories so they listed the components in Table B rather than Table A. Although the ITB required that the prices in Table D be verified by the price lists in Tables A and C, DGS also used Table B to verify prices listed in Table D because of the apparent confusion of the bidders. The specifications, however, said that DGS would not use Table B for this purpose.
3/ Incident to that decision, the court considered the transportation authority's argument that proceeding with the award process was necessary to avoid additional cost and delay if all bids automatically were rejected upon the expiration of 120 days after the opening of the bids, as provided in the bid specifications. 473 So.2d at 213-214. In dicta, the court stated: "We have serious reservations as to the propriety of this provision. Initially, we question whether by setting a deadline of 120 days for award of contracts, JTA can avoid a contract award protest and simply rebid the project." 473 So.2d at
214. But in this case, DGS does not base its rejection of all bids on an arbitrary time deadline.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-0836BID and 87-0837BID
Section 120.59(2), Florida Statutes (Supp. 1986), requires rulings on timely proposed findings of fact. Compliance with that requirement has been complicated by several motions and responses filed after the proposed findings of fact. Some preliminary rulings are required in this case.
On April 15, 1987, DGS served Department of General Services' Motion To Strike Petitioner's Proposed Recommended Order. On April 17, 1987, Caber served a reply and alternative Motion For Leave To File Proposed Recommended Order In Excess Of Page Limitations Or, In The Alternative, To File Separate, Conforming Proposed Recommended Order And Post-Hearing Brief. Tandon Corporation also served a response to the motion to strike. (Tandon's "Comments Of Intervenor Tandon Corporation On Proposed Recommended Orders" attempted to adopt portions of the proposed recommended orders of both Caber and Mini Computer.) Although DGS correctly points out in its motion to strike that Caber technically violated Rule 221-6.031(3), Florida Administrative Code (1986), the responses to the motion are persuasive that, in this case, the motion should be denied. Caber's alternative motions are denied as moot.
On April 16, 1987, DGS served Department of General Services' Motion To Strike Intervenor Mini Computer Associates, Inc.'s Proposed Recommended Order on the ground that it is untimely. Mini Computer and, again, Tandon responded in opposition. Mini Computer's response concedes that Mini Computer's proposed recommended order was served on the stipulated deadline, not filed on the deadline, as required by the parties' stipulation. But Mini Computer states that its proposed recommended order was served by an overnight delivery service, and it is apparent that DGS suffered no prejudice from the technical violation of the stipulation. Instead, it only served to put Mini Computer, whose attorney's office is in Jacksonville, on equal footing with DGS in meeting the deadline. For these reasons, DGS's motion to strike is denied.
Finally, on May 7, 1987, DGS also filed Department Of General Services' Motion To Strike Intervenor Tandon Corporation's Comments On Proposed Recommended Orders. The "comments," which were served on April 27, 1987, were filed over two weeks past the deadline for proposed recommended orders and post- hearing submissions. In addition, they were filed by a non-Florida lawyer who
made no effort to comply with Rule 221-6.008, Florida Administrative Code. Therefore, DGS' motion to strike is granted, and the Comments Of Intervenor Tandon Corporation On Proposed Recommended Orders are stricken.
Caber's Proposed Findings Of Fact.
Second sentence rejected as contrary to fact found; the purpose was not to establish a contract only for
7 categories involving 56 configurations. Otherwise, accepted and incorporated.
The second sentence is rejected as contrary to facts found; it omits Subcategory 3T, 100 percent IBM Compatible Clone. Otherwise, accepted and incorporated.
Rejected as contrary to facts found.
The parenthetical in the second sentence is rejected as contrary to facts found. Otherwise, accepted and incorporated.
The parenthetical in the first sentence is rejected as contrary to facts found. Otherwise, accepted and incorporated.
Rejected as contrary to facts found. 7.-8. Accepted and incorporated.
9. Accepted and incorporated that this was `apparent" to Caber and some others; rejected as contrary to facts found that this was "apparent" to all.
10.-11. Accepted and incorporated.
12. Rejected as not proved. (Apple had not seen any bids yet, and DGS had not completed evaluation of the bids.)
13.-15. Accepted and incorporated. 16.-21. Rejected as not proved.
Rejected as not proved that there was a "threat . unless Caber withdrew its protest." Otherwise, accepted and incorporated.
Rejected as not proved.
22.-27. Accepted and, to the extent necessary, incorporated.
28. Rejected as not proved; the evidence showed that there were more than one possible reasonable definition of "model."
29.-33. Accepted and incorporated.
34.-47. Unnecessary in view of the resolution, by rejection of all bids, of some of the other issues Caber raised.
Rejected as not proved because the sales projections were admittedly highly speculative. Otherwise accepted and incorporated.
First sentence accepted and incorporated.) Rest rejected as not proved; the evidence showed more than one possible reasonable definition and use of "third party components" under the ITB.
50.-51. Accepted and incorporated.
Except that the fact in the last sentence should be limited to many, but not all, applications, accepted and, with the limitation, incorporated.
Accepted and incorporated.
Rejected as not proved that there was a "waiver." Accepted and incorporated the DGS allowed the bid and considered it responsive to the ITB.
55.-61. See 34.-47., above.
62.-63. Rejected as contrary to facts found.
Rejected as not proved.
Accepted and incorporated.
DGS' Proposed Findings Of Fact.
1.-2. Accepted and incorporated.
3. Unnecessary in light of the resolution, by rejection of all bids, of some of the other issues Caber raised. Accepted and incorporated.
Accepted and incorporated except for the last two sentences, which are unnecessary.
Accepted and incorporated.
10.-15. Accepted and incorporated to the extent necessary and not subordinate. (As to the penultimate sentence of 12, the evidence was that the estimated difference would be $900,000, not $750,000.
It was Apple's failure to manufacture or supply BASIC that made it unable to respond under DGS' and Apple's interpretation of Subcategory 3D, not just its status as a manufacturer. Otherwise, accepted and incorporated.
See 3., above.
First six sentences accepted and, except to the extent they contain argument, incorporated. Rest, see 3., above.
19.-20. See 3., above.
Accepted and, except to the extent it is subordinate, incorporated.
Accepted and incorporated along with additional findings.
Apple's Proposed Findings Of Fact.
1.-5. Accepted and incorporated.
6. Accepted. The last sentence incorporated; what precedes is subordinate.
7.-14. Accepted and incorporated (as to 13, that Caber took this position as to the subcategories it protested.)
Accepted but, except as to the citation to General Condition 9, unnecessary.
Accepted and incorporated.
Accepted and incorporated, to the extent necessary. 18.-19. Accepted and incorporated.
20. As to Mini Computer, accepted and incorporated; as to Caber, rejected as contrary to fact found.
21.-22. Accepted and incorporated.
Accepted and incorporated to the extent necessary.
Rejected (that Caber insists on one award per subcategory) as contrary to facts found; otherwise, accepted and incorporated.
Accepted and incorporated to the extent necessary. 26.-29. Accepted and incorporated.
30. Except that the first sentence omits Subcategory 3T,
100 percent IBM Compatible Clone, accepted and, as corrected, incorporated to the extent necessary.
31 -34. Accepted and incorporated.
35.-36. Unnecessary in light of the resolution, by rejection of all bids, of some of the other issued Caber raised.
Accepted except that it does not recognize that there were more than one possible reasonable definition of "model" and, with that change, incorporated.
Accepted and incorporated.
Mini Computer Proposed Findings Of Fact.
1.-5. Accepted and incorporated.
6. Accepted but unnecessary. 7.-8. Accepted and incorporated.
Rejected as speculative and not proved that they will be "harmed"; accepted that they are substantially affected by rejection of all bids but unnecessary.
Accepted but unnecessary and subordinate to facts not proved (to the extent Mini Computer seeks to prove that the decision was capricious.) See Conclusion Of Law 8.
Rejected as contrary to facts found. (DGS' main position throughout this proceeding has been that rejection of all bids and extension of the 1986 contract pending re-bidding is better than going forward with the bid process in dispute.)
Accepted but unnecessary.
First sentence, rejected as contrary to facts found; second sentence, accepted as a general proposition but, according to DGS, not applicable to the facts of this case.
IBM's Proposed Findings Of Fact.
1.-5. Accepted and incorporated.
6.-8. Unnecessary in light of the resolution, by rejection of all bids, of some of the other issues Caber raised.
9. Accepted and incorporated. 10.-12. See 6.-8., above.
Except that it should be limited to some applications, accepted and, with this limitation, incorporated.
Except that it does not recognize more than one possible reasonable interpretation of the definition and use of "third party components" under the ITB, accepted and, with that change, incorporated.
Accepted and incorporated. 16.-25. See 6.-8., above.
COPIES FURNISHED:
Richard J. Dewitt, Jr., Esquire Squire, Sanders & Dempsey
3000 Miami Center
100 Chopin Plaza Miami,Florida33131
Philip L. O'Neill, Esquire Keck, Mahin & Cate
Suite 350
1730 Pennsylvania Avenue, N.W. Washington, D.C. 20006
Susan B. Kirkland, Esquire Sandra E. Allen, Esquire Department of General Services
452 Larson Building Tallahassee,Florida32399-0955
Thomas M. Beason, Esquire Moyle, Flanigan, Katz, Fitzgerald & Sheehan
Suite 100, The Perkins House
118 North Gadsden Street Tallahassee,Florida32301
Richard A. Lotspeich, Esquire Landers, Parson & Whlfedler
P. O. Box 271 Tallahassee,Florida32302
Paula A. Monopoli, Esquire Holland & Knight
600 Barnett Bank Building Tallahassee,Florida32301
Nancy N. Nowlis, Esquire Zisser, Robison, Spohrer
& Wilner
624 Ocean Street Jacksonville,Florida32202
George V. Matlock, Esquire Young, van Assenderp, Varnadoe
& Benton, P.A.
P. O. Box 1833 Tallahassee,Florida32302
Milton D. Andrews 1111-19th Street, N.W. Suite 1000
Washington, D.C. 20036
Ronald W. Thomas Executive Director Department of General Services
Room 113, Larson Building Tallahassee,Florida32399-0950
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF GENERAL SERVICES
CABER SYSTEMS, INC.,
Petitioner,
and
MINI COMPUTER ASSOCIATES, INC. and TANDON CORPORATION,
Intervenors,
vs. DOAH CASE NO. 87-0836BID
STATE OF FLORIDA,
DEPARTMENT OF GENERAL SERVICES,
Respondent,
and
APPLE COMPUTERS, INC. and INTERNATIONAL BUSINESS MACHINES CORPORATION,
Intervenors.
/ MICROAGE COMPUTER STORES, INC.,
Petitioner,
vs. DOAH CASE NO. 87-0837BID
STATE OF FLORIDA,
DEPARTMENT OF GENERAL SERVICES,
Respondent.
/
FINAL ORDER
Pursuant to notice, the Recommended Order of the Hearing Officer and the Exceptions to the Recommended Order filed by Petitioner Caber Systems, Inc. (Caber) and Intervenor Mini Computer Associates, Inc. (Mini Computer) came before the Governor and Cabinet sitting as the head of the Department of General Services (DGS) on August 4, 1987. Caber's Exception 1 is to the Hearing Officer's Conclusion of Law that the Department was not precluded from rejecting all bids after Caber filed a protest with the Department on December 15, 1986, protesting DGS' proposed recommended awards. As support for ITB exception, Caber cites Cianbro Corp. v. Jacksonville Transp. Auth., 473 So.2d 209 Filed in Office of Clerk of Department Of General Services on (Fla. 1st DCA 1985); Solar Energy Control, Inc. v. Department of Health and Rehabilitative Services, 377 So.2d 746 (Fla. 1st DCA 1979) and Douglas Printing Company, Inc. v Department of Agriculture and Consumer Services, 5 F.A.L.R. 2225-A (Dept. A. and C.S. 1983). None of those cases are applicable to the instant case, and the Hearing Officer has succinctly distinguished those cases in his recommended order.
The purpose of Section 120.53(5)(c), Florida Statutes, is to prohibit the agency from rebidding or awarding a contract during the pendency of a protest and to prohibit an agency from continuing with the bid solicitation process if a timely protest is filed concerning the bid solicitation process. In the instant proceeding, DGS has not awarded a contract; DGS has not commenced rebidding; and the bid solicitation process was concluded prior to the filing of the first protest. The decision of the Department to reject all bids did not deny Caber a right to be heard on the issues raised in ITB first protest. Both Caber's protest to the recommended awards and ITB protest to the rejection of all bids were forwarded to the Division of Administrative Hearings, and the issues raised in both petitions were heard in a three day administrative hearing.
The posting of the recommended awards was a proposed agency action. If this were not so, there would be no need for an administrative hearing to give a protester the opportunity to change the agency's mind. The protester's proper remedy would be to appeal the decision to the appropriate district court of appeal.
Additionally, in Exception 1 Caber cites Douglas Printing, Inc. v.
Department of Agriculture and Consumer Services, supra, for the proposition that bids cannot be rejected after they are posted. A close reading of Douglas Printing shows that the case is not analogous to this proceeding. The hearing officer in Douglas Printing stated "[in the instant case, there was no showing of any reason for rejection of all bids other than that the Director felt an inadequate number of bids had been received. The specifications were not ambiguous, and the bids were responsive." In the instant case, the specifications are ambiguous and the Department did not become aware that the specifications were ambiguous until after the bid protest had been filed and Department staff met with representatives of Caber. (TR 422, 423, 360, 366-368,
372, 374, 475-476)
In Caber's Exception 2, it objects to the Hearing Officer's conclusion that Caber could not use Section 12O.53(5)(c), Florida Statutes, as a sword to cut off DGS' ability to consider whether to reject all bids. The Hearing Officer's conclusion was correct and comports with Capelletti Bros. Inc. v. State Dept. of Gen. Ser., 432 So.2d 1359 (Fla. 1st DCA 1983); Couch Construction, Inc. v.
Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978) and McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).
In Caber's Exception 3, it objects to the Hearing Officer's finding that DGS' delay in referring Caber's initial protest to the Division of Administrative Hearings did not result in prejudice to Caber. The Hearing Officer's conclusion of law is correct. Caber presented no evidence to show that it was prejudiced by the delay. Caber had an administrative hearing on the issues raised in both ITB initial protest of the recommended awards and ITB second protest to the rejection of all bids. The Hearing Officer found that DGS' decision to reject all bids was proper; thus, Caber would not be entitled to any awards because no awards would be made.
In Exception 4, Caber objects to the Hearing Officer failing to address Caber's claim that DGS' notice of bid rejection was defective. The record shows that a cover sheet for the bid tabulation referenced last year's invitation to bid number and the general condition in last year's bid which gave the authority for the rejection of all bids. The bid tabulation itself referenced the correct ITB number and indicated no award for each item. Additionally, each bidder was called and told that DGS was reposting and rejecting all bids. (TR 371; DGS Exhibit 7) Caber filed a timely notice to the rejection of the bids and referenced the correct invitation to bid number. MicroAge Computer Stores, Inc. (MicroAge) also filed a notice of protest to the rejection of bids. Notice was given to all bidders of the protests filed by Caber and MicroAge and all bidders were given an opportunity to intervene in the proceedings. Four bidders did intervene in the proceedings.
Additionally, Caber objects to the Hearing Officer's Finding of Fact 38 claiming that it is not supported by competent substantial evidence. The finding is supported by competent substantial evidence. The Hearing Officer cited extensively to the testimony of George Banks in the recommended order. Caber presented no evidence to rebut this testimony. Mini Computer testified it based ITB bid on a literal reading of the invitation to bid. (TR 329, 332) IBM and Apple presented testimony to indicate they prepared their bid based on the historical practice of DGS in awarding bids by make and model. (TR 527, 529, 530, 590) Caber interpreted the ITB differently from Mini Computer, DGS, Apple, and IBM.
In Exception 5, Caber objects to the Hearing Officer's conclusions of law that the hearing is a de novo proceeding and will be decided upon the facts and circumstances that exist at the time of the final hearing. Such a conclusion is correct. In Couch Construction, Inc. v. Department of Transportation, supra, at 175-176, the court stated:
A final agency order in proceedings which are concerned principally with agency policy, must explain the reasons for exercising agency discretion in the chosen way. The order must take account of countervailing evidence and argument. As we said in McDonald, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind. That being so, the agency's final order must defend ITB decision on the basis of what it knows at the time the order is entered.
In Exception 6, Caber objects to the Hearing Officer's finding that the ITB does not reflect the intent and the historical practices of DGS to award by make and model as set forth in Finding of Fact 32. The Hearing Officer's finding is
supported by competent substantial evidence. (TR 302, 345, 527, 529, 530, 552,
590, 372, 440, 441, 450; Caber Exhibit 2; DGS Exhibit 15)
The Hearing Officer correctly relied upon Aurora Pump v. Goulds Pump, Inc.,
424 So.2d 70 (Fla. 1st DCA 1982). Although the ITB states that contracts will be awarded by subcategory to the low bidder, that is not the method of award that DGS had used in the past. DGS' unwritten method of award was to award by make and model. Thus, the instant situation is very much like Aurora Pump.
Some bidders relied on the wording in the ITB and some bidders relied on the unwritten procedures DGS had followed in the past in awarding by make and model. It should be noted that Caber was neither relying on the literal wording of the ITB nor the past practices of DGS in ITB interpretation of the ITB.
In Exception 7, Caber objects to the Hearing Officer's conclusion that the ITB was flawed with respect to the issue of third party components. The Hearing Officer's conclusion is correct. DGS did not intend that third party components be bid except in the categories of "Other Low Qualified Bid" and "100 percent IBM Compatible Clone." The ITB contained a general condition allowing approved equivalents; however, the ITB was structured so that subcategories were described by specific manufacturers. Because of the general condition allowing approved equivalents and the structuring of subcategories by manufacturer's name, a bidder could be confused as to the use of third party components. Some bidders such as Caber interpreted the ITB to mean that third party components were allowed in categories other than "Other Low Qualified Bid" or "100 percent IBM Compatible Clone." Other bidders such as Apple interpreted the ITB as DGS did and concluded that third party components could not be bid in subcategories which called for a specific manufacturer's product.
Caber objects to the Hearing Officer's finding in Finding of Fact 24 that "it would be difficult, if not impossible, to compare and evaluate bids in the various subcategories." Such finding is supported by competent substantial evidence. (TR 377) The record shows that the evaluation process took eight weeks and that there were 67 bids. (TR 343). Given the fact that there were 56 subcategories and within those subcategories, DGS was evaluating by make and model, it is reasonable to conclude that it would be difficult to compare and evaluate the bids in the various subcategories if third party components were allowed in all subcategories.
In Exception 8, Caber objects to the Hearing Officer's finding in Conclusion of Law 4 that neither DGS nor Caber negotiated in bad faith. The Hearing Officer heard the testimony of Richard Evans and George Banks on this issue. As finder of fact, the Hearing Officer judged the credibility of the witnesses and drew the inference from their testimony that there was no bad faith by either party. Caber has not shown that there was no competent substantial evidence to support the finding. Thus, the Hearing Officer's conclusion of law should be upheld.
In Exception 9 Caber objects to the Hearing Officer's failing to include in his recommended order findings of fact addressing issues such as whether IBM and Apple are responsive to the ITB, the method of award, and the third party components. It is not necessary that findings of fact be made on those issues because the Hearing Officer concluded that it was in the best interests of the State to reject all bids and that to not reject all bids may have been an arbitrary and capricious action.
In Exception 10 Caber objects to the Hearing Officer's finding that if accessories are available from fewer vendors it reduces the incentive of bidders
to price accessories competitively. This finding is based upon competent substantial evidence. (TR 373, 491, 382, 389-390, 448, 350; Caber Exhibit 2)
In Exception 11, Caber objects to the Hearing Officer's finding that it was speculative whether the state would realize savings by awarding contracts in the
52 subcategories other than 2A, 3D, 4C, and 55. The Hearing Officer's finding is based on competent substantial evidence. (TR 361, 394-396, 513)
In Caber's Exception 12, Caber objects to specific rulings by the Hearing Officer on the proposed findings of fact submitted by Caber, DGS, Apple, and IBM on the basis that those rulings are not supported by substantial evidence or are contrary to law. The Hearing Officer ruled that Caber's proposed Findings of Fact 3, 4, 5, 6, 12, 16-21, 28, 48, 49, 54, and 62-64 were rejected in whole or part as contrary to the facts found or not proven. The Hearing Officer's findings are supported by the record and are correct. (Proposed Findings 3, 4 and 5 (TR 302, 344-346, 527, 529, 530, 552, 590; Caber Exhibit 2; DGS Exhibit
14); Proposed Finding 6 (TR 346, 349, 389, 390, 357-358, 350, 351); Proposed
Finding 12 (TR 346, 553-555, 557); Proposed Findings 16-21(TR 344-346, 348, 349,
362-364, 369-370, 378, 386, 472-473); Proposed Finding 28 (TR 458); Proposed
Finding 48 (TR 602); Proposed Finding 49 (TR 310-312, 316-317, 367, 377, 594;
Caber Exhibit 2))
The Hearing Officer ruled that Caber's proposed Findings 22-27 were accepted and to the extent necessary incorporated. The Hearing Officer also found that Caber's proposed Findings 34-47 and 55-61 were unnecessary. Many of the findings in Caber's proposed Findings 22-27 dealt with issues other than the rejection of bids and all of the findings proposed by Caber in their proposed Findings 34-47 and 55-61 dealt with issues other than the rejection of the bids. Because the Hearing Officer recommended that all bids be rejected and found that the rejection of all bids was in the best interest of the state, it is not necessary to address issues such as warranty provisions, service facilities and the responsiveness of other bidders. Caber excepted to the Hearing Officer's rulings on ITB proposed Finding 65. Although the Hearing Officer accepted the finding, it does not appear that it was incorporated in the recommended order.
However, since the proposed finding dealt with warranty issues, it is unnecessary for the reasons the Hearing Officer gave in ITB rulings on Caber's proposed Findings 34-47. It also appears that the Hearing Officer did not address Caber's proposed Findings 66 and 67. Those two findings are unnecessary in light of the Hearing Officer's recommendation to reject all bids.
Caber objects to the Hearing Officer's acceptance of DGS' proposed Findings of Fact 5, 6, 8, 10, 12, 14, 16, 17, 18, 19, 20, 21, and 22 on the basis that those proposed findings are not supported by competent substantial evidence.
DGS' proposed findings are based on competent substantial evidence and the Hearing Officer's rulings are supported by the record. (Proposed Finding 5 (TR 302, 341, 345, 346, 527, 529, 530, 552, 590, 373; DGS Exhibit 14); Proposed
Finding 6 (TR 349, 350, 351, 357-358, 389, 390); Proposed Finding 8 (TR 148,
366, 368, 370, 371, 422, 475, 476; DGS Exhibit 7); Proposed Finding 10 (TR 372,
440, 441, 450, 345, 374, 527, 529, 530, 590, 241, 205, 243, 458, 222-224, 458,
271, 215, 346; Caber Exhibit 2, 4); Proposed Finding 12 (TR 124-126, 210-214,
376, 560, 602; Caber Exhibit 3, 4; DGS Exhibit 6); Proposed Finding 14 (TR 378,
352; Caber Exhibit 2); Proposed Finding 16 (TR 309, 387, 533; Caber Exhibit 2;
DGS Exhibit 6); Proposed Finding 17 (TR 218, 219; Caber Exhibit 2, 3, 4);
Proposed Finding 18 (TR 310-312, 316-317, 367, 377, 594, 225; Caber Exhibit 2);
Proposed Finding 1 (DGS Exhibit 5, 6, 9; Caber Exhibit 8, 19, 2); Proposed
Finding 20 (TR 120-121, Caber Exhibit 4, 7); Proposed Finding 21 (TR 369-370,
557, 594, 367; Caber Exhibit 2); Proposed Finding 22 (TR 361, 394-396, 488-489,
359, 513; Caber Exhibit 14; DGS Exhibit 14)) The Hearing Officer did rule that some of the proposed findings were not necessary in light of the recommendation by the Hearing Officer to reject all bids, and such ruling is correct to the extent that the proposed findings did not relate to the issue of the rejection of bids.
Caber objects to the Hearing Officer's acceptance of DGS' proposed Findings of Fact 11, 13, 15, and 18, stating those proposed findings are irrelevant.
DGS' proposed Finding of Fact 11 and 13 are relevant. A literal interpretation of the ITB is relevant since some of the bidders submitted their bids based on a literal interpretation of the ITB and it is the responsibility of public agencies to "prepare and disseminate clear and precise bidding instructions." Aurora Pump, supra, at 75. Caber Objects to DGS' proposed Findings of Fact 15 and 18 as irrelevant. What DGS intended through ITB is relevant. The ITB should accurately reflect what DGS' intent was in issuing the ITB and DGS' intent is reflected in ITB past practices. The facts show that the ITB did not accurately reflect DGS' intent nor did the ITB accurately reflect DGS' past practices.
Caber objects to the Hearing Officer's acceptance of Apple's proposed Findings 11, 13, 14, 17, 19, 20, 21, 25, 26, 29, 30-35, and 38, stating that the proposed findings were not supported by substantial evidence, were inaccurate, were not proved, were speculative, or were contradicted by the evidence. Such findings are supported by competent substantial evidence and the Hearing Officer's rulings are supported by the record. Proposed Finding 11 (TR 34-349); Proposed Finding 13 (TR 123, 363); Proposed Finding 14 (TR 374); Proposed
Finding 17 (TR 373, 374, 382); Proposed Finding 19 (TR 346); Proposed Finding 20
(TR 332, 205, 345, 374); Proposed Finding 20 (TR 33; 205, 345, 374); Proposed
Finding 21 (TR 345, 527, 590); Proposed Finding 25 (TR 390); Proposed Finding 26
(TR 525, 560); Proposed Finding 29 (TR 367, 377); Proposed Findings 30-35 (TR
367, 377, 346, 347, 378, 374, 309, 387, 353, 530, 533, 384; Caber Exhibit 2, );
Proposed Finding 38 (TR 369-370))
Caber objects to Apple's proposed Finding 28 as irrelevant. The finding is relevant since some bidders based their submission of bids on DGS' past practice of awarding by make and model and awarding by make and model will result in lower prices to the state.
Caber objected to the Hearing Officer's acceptance of IBM's proposed Findings of Fact 7, 10, 11, 12, 14, 20, 21, 23, and 24, stating that the proposed findings were not supported by evidence and contradicted by the evidence. The proposed findings are supported by competent substantial evidence and the Hearing Officer's rulings are supported by the record. (Proposed Finding 7 (TR 357; Caber Exhibit 37, 4); Proposed Finding 10 (TR 366; Caber
Exhibit 3, 4; DGS Exhibit 5); Proposed Finding 11 (TR 519-520, 586-587);
Proposed Finding 12 (TR 587; Caber Exhibit 2); Proposed Finding 14 (TR 316, 345,
367, 377); Proposed Finding 23 (TR 591-592); Proposed Finding 24 (TR 592; DGS Exhibit 5)) Further, Caber objects to the Hearing Officer's finding that IBM's proposed Findings 6-8 were unnecessary. The Hearing Officer ruled correctly since the issues discussed in Findings 6-8 dealt with issues other than the Hearing Officer's recommended rejection of all bids.
In Mini Computer's Exception 1, Mini Computer objects to Finding of Fact 18 on the basis that the Hearing Officer confused Mini Computer's testimony at the hearing concerning ITB interpretation of the ITB's method of award with the position which Mini Computer adopted in ITB proposed recommended order. The hearing Officer is not confused. Mini Computer's President testified that Mini
Computer interpreted the ITB to mean that only 56 subcategories would be awarded and that Mini Computer submitted ITB bid on that basis. (TR 329, 332) The Hearing Officer's finding is supported by competent substantial evidence and demonstrates that not all bidders were submitting bids based upon the same understanding of the method of award.
In Mini Computer's Exception 2, it objects to Finding of Fact 35 wherein the Hearing Officer finds that it is speculative that the State would save $3.8 million if a new contract were awarded to the 47 subcategories not challenged by Caber. George Banks testified that there had been many price reductions since the present contract had been extended. Based upon the price reductions, there was only a short period of time in which the prices on the contract that was extended are higher than the prices that were contained in the bids. (TR 361, 394-396, 513) The Hearing Officer's finding is supported by competent substantial evidence.
In Mini Computer's Exception 3, it objects to Finding of Fact 38 on the basis that the Hearing Officer is using a vague feeling of unfairness to bidders to justify rejecting all bids. The Hearing Officer made ITB finding based upon the testimony of George Banks and such finding is supported by competent substantial evidence. (TR 345, 374, 375) As the court pointed out in Aurora Pump, supra, it is the responsibility of the public agency to ensure that the bidding documents are sufficiently specific to assure fair competition to all bidders. In the instant case, it is very obvious that the specifications were not specific and that all bidders were not able to bid on equal terms. Some bidders have relied on DGS' past practice in awarding by make and model and some bidders have relied on the strict reading of the ITB to determine the method of award.
In Mini Computer's Exception 4, it objects to Finding of Fact 39 on the basis that the Hearing Officer did not find that the motivation for the state to reject all bids was to teach bidders not to protest. The Hearing Officer correctly did not make such a finding because such a finding is not supported by competent substantial evidence, and Mini Computer made no reference to the record to support such a finding. On page 21 of the recommended order, the Hearing Officer stated "the evidence did not prove that either DGS or Caber negotiated in bad faith."
In Mini Computer's Exception 5, it objects to the Hearing Officer's response to Mini Computer's proposed Findings of Fact 9 and 12. Mini Computer's proposed Findings of Fact 9 and 12 address Mini Computer's standing to intervene in the proceeding. There have been no challenges to Mini Computer's standing.
Thus, the Hearing Officer's acceptance of these proposed findings of fact is correct and his finding that the incorporation of the proposed findings in the recommended order is unnecessary is also correct since the Hearing Officer did not rule that Mini Computer did not have standing to intervene.
In Mini Computer's Exception 6, it objects to the Conclusion of Law 10, stating that the Hearing Officer failed to distinguish between an isolated contract and the extension of a term contract. The fact that the contract involved in Aurora Pump was for a specified number of pumps and not a term contract has no bearing on the principles of law involved in that case. The court found that the bid documents did not adequately apprise the bidders of the procedures to be followed in the submission of bids. Because of this flaw in the bid documents, all bidders were not treated fairly. In the instant case, there have been a myriad of flaws which have caused confusion to the bidders and resulted in the inability of DGS to treat all bidders fairly. The facts that a
term contract is involved and that the previous year's contract has been extended do not change the flaws in the ITB nor eliminate the problem of not being able to treat all bidders fairly because of the flaws in the ITB. The Hearing Officer correctly relied on Aurora Pump.
It is ordered by the Department of General Services:
The Hearing Officer's Findings of Fact and Conclusions of Law are adopted.
The Exceptions are denied.
Case No. 87-0837 Bid is dismissed.
Case No. 87-0836 BID is dismissed.
All bids received in response to ITB 545-250-04-5 Microcomputers are rejected.
Dated this 5th day of August, 1987.
RONALD W. THOMAS
Executive Director
Department of General Services
133 Larson Building Tallahassee, Florida 32399-0955 (904)488-2786
A party who is adversely affected by this Final Order is entitled to judicial review which shall be instituted by filing one copy of the notice of appeal with the agency clerk of the Department of General Services, and a second copy, along with filing fees prescribed by law, with the district court of appeal in the appellate district in which the agency maintains ITB headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida Appellate Rules. Notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Copies furnished to:
THOMAS M. BEASON RICHARD A. LOTSPEICH MARTHA W. BARNETT PAULA A. MONOPOLI NANCY N. NOWLIS RICHARD J. DEWITT PHILIP O'NEAL
MILTON D. ANDREWS SUSAN B. KIRKLAND SANDRA E. ALLEN
| Issue Date | Proceedings |
|---|---|
| May 13, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 05, 1987 | Agency Final Order | |
| May 13, 1987 | Recommended Order | Rejection of bids during bid protest permissible. On protest of bid rejection, hearing is de novo but issue is whether rejection is arbitrary. Not. |
TAMCO ELECTRIC, INC. vs PINELLAS COUNTY SCHOOL BOARD, 87-000836BID (1987)
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NAPLES BUSINESS EQUIPMENT AND SYSTEMS, INC. vs. LEE COUNTY SCHOOL BOARD, 87-000836BID (1987)
MARPAN SUPPLY COMPANY, INC. vs DEPARTMENT OF MANAGEMENT SERVICES, 87-000836BID (1987)
TOXICOLOGY TESTING SERVICE, INC. vs DEPARTMENT OF CORRECTIONS, 87-000836BID (1987)
