STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
POLAROID CORPORATION and )
NBS IMAGING SYSTEMS, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 87-1125BID
) DEPARTMENT OF HIGHWAY SAFETY AND ) MOTOR VEHICLES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 31, April 1, and April 3, 1987, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Polaroid Corporation
H. Michael Madsen, Esquire Douglas J. Rillstone, Esquire Messer, Vickers, Caparello,
French & Madsen Post Office Box 1876
Tallahassee, Florida 32302-1876
NBS Imaging Systems, Inc. Keith C. Tischler, Esquire
Parker, Skelding, McVoy & Labasky Post Office Box 669
Tallahassee, Florida 32302
and
Robert G. Holderness, Esquire Robert G. Holderness & Associates 925 L. Street, Suite 1490
Sacramento, California 95814
For Respondent: Enoch J. Whitney, Esquire
General Counsel
Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and
Motor Vehicles
Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504
PROCEDURAL STATEMENT
The Department of Highway Safety and Motor Vehicles (hereinafter referred to as the "Department") issued an Invitation to Bid, Bid No. 2888-85 (Rebid II) on January 27, 1987. Addendas I, II and III to the Invitation to Bid were subsequently issued by the Department Notices of Protest were timely filed by Polaroid Corporation (hereinafter referred to as "Polaroid") and NBS Imaging Systems, Inc. (hereinafter referred to as "NBS"). The Formal Written Protests were referred to the Division of Administrative Hearings by letter from the Department dated March 17, 1987.
At the commencement of the formal hearing, the parties stipulated that any witness called by one party could be examined by any other party as that party's own witness. The parties also stipulated to the admission into evidence of Joint Composite exhibit 1.
Polaroid presented the testimony of Donald M. Dick, Walter Hathaway, D.O., Frank Weer, Clay W. Keith, John D. Fain, Alan Cochrane, II, Fred Dickinson, Bruce Kennedy and John Nester Jr. Polaroid's exhibits 1-35, including the deposition testimony of Leonard Mellon taken on April 29, 1986, in connection with Division of Administrative Hearings case number 86-1337, were accepted into evidence.
NBS presented the testimony of Ernest Marjoran, Carlos Urrutia, Dietrich Schultze, James W. McInnis and Joe McCaskill. NBS also presented the deposition testimony of Leonard Mellon and the Honorable George Firestone, taken in connection with this case. NBS exhibits 1-10 were accepted into evidence.
The Department presented the testimony of James H. Cox, Alan Cochrane, II, and Clay W. Keith. The Department offered 2 exhibits into evidence. Those exhibits, which were marked as Respondent's exhibits 1 and 2, were accepted into evidence.
A number of motions have been filed by the parties prior and subsequent to the final hearing. Prior to the commencement of the final hearing Polaroid filed Polaroid's Motion to Strike and Motion in Limine and the Department filed Department's Motion to Dismiss NBS's Petition for Formal Administrative Hearing and Formal Written Protest and Department's Motion to Dismiss Formal Written Protest of Polaroid Corporation. These Motions were denied prior to the final hearing and are discussed under Conclusions of Law, infra.
Subsequent to the completion of the final hearing NBS filed NBS Imaging Systems, Inc.'s Motion to Amend Petition for Formal Administrative Hearing to Conform with the Evidence. Polaroid and the Department filed responses in opposition to this Motion. NBS's Motion to Amend Petition is hereby denied.
NBS also filed a Motion to Strike the Proposed Recommended Order of Polaroid and Polaroid filed Polaroid's Motion to Strike Portions of NBS's Proposed Recommended Order. NBS's Motion is based upon the fact that Polaroid's Proposed Recommended Order was forty pages without citations to the record.
Polaroid's citations to the record were contained in a separate document which consisted of ten pages. The parties were told by the undersigned at the conclusion of the final hearing that their proposed findings of fact should be their conclusions as to what the evidence proved and that if they wished to present argument concerning conflicting testimony and evidence they could do so in a separate document or memorandum of law. Polaroid's citations contain such
argument. Therefore, Polaroid's citations are consistent with the undersigned's instructions to the parties and NBS's Motion to Strike is denied.
Polaroid's Motion to Strike is essentially a reply to NBS's proposed recommended order. Polaroid's Motion to Strike is therefore denied.
The parties have timely filed proposed recommended orders. The proposed recommended orders contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. In the Appendix it has been indicated where proposed findings of fact which have been accepted have been made in this Recommended Order and why proposed findings of fact which have not been accepted have been rejected.
ISSUE
Whether the changes to the Department's Invitation to Bid (Rebid II) suggested by Polaroid and/or NBS should be made?
GENERAL.
The Parties.
The Department is the state agency charged with, among other things, the responsibility to adopt and implement a program for the production of color photographic drivers' licenses for the State of Florida, pursuant to Chapter 322, Florida Statutes.
Polaroid and NBS are the two major suppliers of equipment and materials used in the majority of states to produce color photographic drivers' licenses. Both serve approximately 50 percent of the States.
NBS is the current supplier of color photographic drivers' licenses in the State of Florida.
Definitions.
Florida's color photographic drivers' license is essentially a picture of the driver and a data card containing pertinent information about the driver. A camera takes a picture of the driver and the data card simultaneously. The picture is developed in a relatively short period of time and the resulting picture is laminated with a clear plastic.
The size of the portion of the driver photographed and the data card are reduced, obviously, when the picture is taken. The terms reduction factor refer to the size of the resulting license compared to the original data card. For example, a requirement that the license not have a reduction factor of greater than 40 percent means that the resulting size of the picture of the data card photographed must be a least 60 percent of its original size.
The resulting picture of the driver and the data card is referred to as the core. The core consists of a picture of the driver's face, neck and shoulders, the data card and a "header bar" which is the area above the data card containing "Florida Driver License" on the currently used drivers' license in Florida.
The core may be fully laminated with clear plastic. If so, the laminate may be sealed in two ways: "flush-cut" or "lip-seal." If the lamination goes just to the edges of the core, this is referred to as a flush- cut design. If the laminate goes beyond the edges of the core and the front and back lamination is sealed together, this is referred to as a lip-seal design.
The type of film used generally is referred to as either "paper-based film" or "plastic or polyester-based film." If the core consist of paper-based film the core will consist of a layer of plastic on the front and back and a paper center. If the core consist of plastic-based film the core will be all plastic.
An ultraviolet or black-light security feature means that letters or an image of some kind can be seen with the naked eye only under an ultraviolet or black-light.
HISTORY OF FLORIDA'S COLOR PHOTOGRAPHIC DRIVERS' LICENSE.
The Initial Contract.
Color photographic drivers' licenses (hereinafter referred to as "License" or "Licenses"), have been used in the State of Florida since December 3, 1973.
The initial contract entered into by the Department for the provision of Licenses (hereinafter referred to as the "Initial Contract") was with DEK Processes Division of Scott & Fetzer Company.
The DEK Processes Division of Scott & Fetzer Company was acquired by NBS in March of 1985.
The Initial Contract was entered into for the period 1973 to 1977.
The Licenses produced pursuant to the Initial Contract were laminated with a lip seal, measured 3-3/8" x 2-1/8", had a paper-based film core which measured 2-3/4" x 1-3/4" and cost the State 37.98 cents per License.
The Initial Contract was renewed in 1977. The renewed contract was valid through 1981 and provided for Licenses which measured 3-3/8" x 2-1/8", flush-cut sealed lamination, a polyester-based film core and cost the State 36.725 cents per License. By using a flush-cut seal, the size of the film core increased to the same size as the License. This increase in size was instituted because of negative reactions to the legibility of the Licenses produced under the Initial Contract raised by law enforcement, merchants and the public.
The 1982 Contract.
In 1981 the Department solicited bids for a new four-year contract with a four-year extension option (increasing the length of the contract to June 30, 1990).
The 1981 Invitation to Bid allowed a large or small license and the use of a paper-based or plastic-based film core.
Both Polaroid and NBS submitted bids on the 1981 Invitation to Bid.
NBS was awarded the contract, which it entered into with the Department on February 22, 1982 (hereinafter referred to as the "1982 Contract").
The 1982 Contract contained the following relevant provisions:
The initial term of the contract was through June 30, 1986;
Licenses were to be lip-sealed;
The Licenses were to measure not less than 2-3/4" wide and 1-3/4" high and not more than 3-3/8" x 2-1/4" before lamination;
A paper-based film core measuring 2-3/9" x 2-3/4";
The price per License to the State during the first four years was to be 42.9 cents;
The price per License to the State during any extension was to be 42.9 cents plus or minus the increase or decrease in the cost of material; and
The contract could be extended for an additional four years through June 30, 1990.
The laminate had to be bonded to the License in such a way that it would be impossible to remove the laminate without destroying the License; and
The License had to have an ultraviolet or "black- light" security feature.
The current Florida License is produced pursuant to an extension of the 1982 Contract.
The First Invitation to Bid - 1985.
In June of 1985 the Department decided to issue an invitation to bid seeking to let a new License contract rather than exercising the option to renew the 1982 Contract. This decision was made because of a desire to improve the legibility, security and durability of the currently produced License.
In June, 1985, Major Clay W. Keith, former Director of the Department's Division of Drivers' Licenses, proposed the appointment of a task force to study the License in use in 1985 under the 1982 Contract and possible improvements thereto. Major Keith proposed the task force in anticipation of the June, 1986, expiration of the initial four-year term of the 1982 Contract.
Three major concerns were raised by the Department with regard to any License the State issued: legibility, durability and security.
The Department had received complaints from law enforcement and merchants concerning eligibility of the existing License and previous Licenses.
The Department had also received complaints concerning the ability to counterfeit or alter the existing License and previous Licenses.
The Department had also had problems with the durability of previous Licenses. Additionally, current law allows renewal of Licenses for six year terms and up to eight or ten years in some cases.
On July 3, 1985, Major Keith advised Mr. Leonard R. Mellon, the Director of the Department, and Mr. Fred Dickinson, Deputy Director of the
Department, by memorandum that a task force of persons with the expertise believed to be needed to study the existing License was being formed to decide what type of License to use in the future.
0n July 10, 1985, Mr. Mellon wrote a note to Major Keith indicating the following:
I do not want a task force established for this purpose. Please see me as soon as possible to discuss this matter.
Major Keith, as directed, saw Mr. Mellon. Mr. Mellon gave Major Keith a sample License and told Major Keith that the sample License was what the Department wanted. The sample License was an all-plastic License, similar in design and thickness to a credit card. It had embossed letters, like a credit card, of certain information.
Mr. Mellon explained that the sample License would meet the Department's desire to provide a License which was durable, legible and secure.
Mr. Mellon obtained the sample License he gave to Major Keith from representatives of NBS, including Barry Horenbein, during a demonstration of identification cards made by DEK sometime during 1985.
The 1985 demonstration was attended by Mr. Mellon, Mr. Horenbein, Mr. Vince Toffany, Mr. Carlos Urrutia and Mr. Bobby Bowick. Mr. Toffany, Mr. Urrutia and Mr. Bowick are representatives of NBS. Mr. Horenbein is the legislative liaison of NBS in Florida and has been a close personal friend of Mr. Mellon for over 27 years.
The Department ultimately learned that the sample License given to Major Keith by Mr. Mellon could not be produced in the manner that Licenses are produced in Florida. The sample License was produced in a laboratory-type setting and it would be too costly to produce "over the counter" as Licenses are produced in Florida.
In the Fall of 1985 the Department issued an invitation to bid instead of renewing the 1982 Contract with NBS and decided not to attempt to produce a License identical to the sample License given to Major Keith by Mr. Mellon. The Department decided to issue an invitation to bid in order to obtained a more legible, durable and secure License.
The Department issued an Invitation to Bid on November 27, 1985 (hereinafter referred to as the "First ITB"). Among the specifications contained in the First ITB, were the following:
The film core of the License was to be a plastic-based film core;
Lamination: flush-cut seal;
The License was to measure 3-3/8" x 2-1/8"; and
An ultraviolet security system.
No requirement as to the maximum reduction factor was contained in the First ITB.
At the time the First ITB was issued, Polaroid did not yet have plastic-based film. The Department was not aware of this fact at the time. NBS
did have plastic-based film. Based upon information provided to the Department by Polaroid representative, the Department believed that Polaroid could provide a plastic-based film. In fact, Christ Rousseff, an employee of Polaroid, sent a letter dated August 2, 1985, to Mr. Mellon informing him that Polaroid could provide an all plastic-based License.
Polaroid and NBS submitted bids in response to the First ITB in January, 1986.
Polaroid's bid cost per License was 49.9 cents and NBS's bid cost per License was 56.6 cents.
On January 27, 1986 the first bid tabulations indicated that Polaroid's bid was non-responsive as a result of Department of Agriculture testing of the License bid by Polaroid. Polaroid had used a paper-based film core which was revealed in the testing and was contrary to the specifications of the First ITB.
NBS's bid to the First ITB was also rejected because the Department of General Services determined that there had not been two responsive bids submitted.
The rejection of bids on the First ITB became final agency action. The Department began to prepare a new invitation to bid.
On March 6, 1986, Polaroid, at the request of the Department, conducted a demonstration of the type of License it could provide to the Department. Polaroid demonstrated a fully-laminated, lip-sealed, paper-based film core License. The demonstration was attended by Major Keith, Mr. James W. McInnis and other employees of the Department. Mr. Mellon spent about 5 minutes at the demonstration.
On March 12, 1986, Major Keith sent a memorandum to Mr. Mellon through Mr. Dickinson concerning the Polaroid demonstration. The Memorandum indicated that Division of Drivers' License personnel agreed that Polaroid had demonstrated the ability to provide an acceptable License.
Extension of the 1982 Contract.
On March 23 1986, a Sunday, Mr. Mellon and Mr. Dickinson spent the afternoon at the home of Mr. Horenbein. Present were Mr. Horenbein, Mr. Toffany and Mr. Bowick, all of whom represented NBS. A buffet dinner was served. Discussions occurred on this date concerning the price which would be charged for Licenses and whether additional cameras could be provided if the 1982 contract was extended for an additional four years pursuant to the renewal option contained in the 1982 Contract.
Mr. Mellon, on behalf of the Department, and the representatives of NBS agreed at the Sunday dinner that the 1982 Contract would be extended. Agreement was reached on a price per License to be paid and on the provision of additional cameras.
Other discussions had taken place concerning whether to extend the 1982 Contract.
On Monday, March 24, 1986, Mr. Dickinson met with Department personnel and informed them that the 1982 Contract would be extended. A Renewal of Color
Photographic Driver License Agreement was prepared. This agreement provided that the price per License for the extended term would be a set price of 42.9 cents instead of the 42.9 cents per License adjusted for any increase or decrease in the cost of sensitized photographic materials and laminates as specified in the 1982 Contract. The renewal also provided that NBS would provide additional camera equipment. The Department executed and tendered to the Department of General Services its proposed exercise of the option to renew the 1982 Contract. This action by the Department extended the 1982 Contract through June, 1990. Major Keith was not aware of the renewal until after the renewed agreement had been executed.
At the time the Department exercised its option to extend the 1982 Contract, the Department only had one week left in which to exercise its option. The option to renew had to be exercised at least ninety days prior to the expiration of the initial term of the 1982 Contract. Because of the lack of time remaining during which the Department could exercise its option, Mr. Mellon decided that renewing the 1982 Contract was in the best interest of the Department. The Department was able to obtain a License at no substantial increase in cost for an additional four years.
Following the execution of the renewal of the 1982 Contract, Polaroid filed two Notices of Protest which were filed with the Division of Administrative Hearings by the Department. The Protests were assigned case numbers 86-1337 and 86-1372.
On May 6, 1986, Polaroid, the Department and NBS entered into an agreement settling the dispute in case numbers 86-1337 and 86-1372. Pursuant to the settlement agreement, NBS agreed to continue providing Licenses at a cost of
49.58 cents per License. The term of the renewal was shortened to expire on August 31, 1987 and the parties agreed that there would be no further extensions of the 1982 Contract agreed upon without the approval of the Governor and the Cabinet. Finally, the parties agreed that a new invitation to bid would be issued to obtain a provider of Licenses beginning September 1, 1987. The Governor and Cabinet approved the settlement in May of 1986. The settlement became final agency action.
Licenses currently being produced in Florida pursuant to the renewal agreement approved by the Governors and the Cabinet contain a core slightly smaller than 1-3/4" x 2-3/4", are enclosed in lip-sealed lamination and use ultraviolet security markings on the back of the Licenses. The data card reduction factor is 42 percent.
Rebid I.
On June 6, 1986, the Department issued a Request for Information in an effort to preclude the development of noncompetitive specifications for future invitations to bid. In response to this request, Polaroid informed the Department that it could not provide an all-plastic License and NBS indicated that it could.
On July 22, 1986, Mr. McInnis circulated the first draft of the specifications for the next invitation to bid to Department personnel. It specified a License with full lamination, lip-seal and a plastic-based or paper- based film core. The draft provided that the core of the License was to measure 3-1/8" x 1-7/8" prior to lamination. Ultraviolet light security markings were also required.
For the first time, the draft of the specifications included a reduction factor requirement:
The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall not be less than 60 percent of the size of the photographed document. Section 4.8.1 of the draft invitation to rebid. This provision was included partially because of the responses to the Request for Information submitted to the Department by Polaroid
and NBS.
Major Keith was told by Mr. Dickinson that "the front office" wanted Rebid I to require a plastic-based film core. Major Keith understood the "front office" to mean Mr. Mellon.
In developing the next invitation to bid, the Department determined that enhanced security was a critical concern that needed to be addressed. At least in part, the Department's concern for security was based upon questions raised about security from the Governor's office, the Cabinet and law enforcement.
The Department attempted to determine what security features were available. The Department received sales and promotional brochures for various security products from Polaroid, 3M and Armstrong World Industries, Inc.
Polaroid, NBS and 3M were all invited to demonstrate their security features to the Department and they made presentations.
Polaroid demonstrated "Polasecure" and 3M demonstrated "Confirm." These products and Armstrong's "Armstrong Advantage" are security markings contained in laminating materials which change appearance when the viewing angle of a License changes.
Polaroid and NBS made their presentations to the Department, at the Department's request, in September of 1986. The primary emphasis of the demonstrations was security.
On October 3, 1986, the Department issued Invitation to Bid (Rebid I) (hereinafter referred to a "Rebid I").
In Rebid I, the Department included the same overall size requirement (3-3/8" x 2-1/8") included in the First ITB. The requirement that the film core be plastic (polyester, polycarbonate or an equivalent plastic) included in the First ITB was also included in Rebid I. The Department changed the seal specified in Rebid I to a lip-seal, added a requirement that the reduction factor should not exceed 40 percent and required a new security feature.
Because lip-seal was specified, the Department also provided that the core of the License should measure 3-1/8" x 1-7/8."
Rebid I also included the following security requirement which was not included in the First ITB:
The laminate shall be bonded to the finished license in such a way that the photographic
image will be destroyed or defaced if the laminate is removed. Section 4.8.3.
of Rebid I.
The new security feature specified in Rebid I provided for the following:
The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core ... The security marking feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security marking must be easily discernible with the naked eye, requiring no auxiliary reading devises for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. [Emphasis added]. Section 4.8.4 of Rebid I.
Although the Department did not intend to provide any competitive advantage to Polaroid in specifying the security feature of Section 4.8.4 of Rebid I, NBS informed the Department that the description of the security feature underlined in finding of fact 65 was a generic description of "Polasecure." In fact, the language used came out of a speech given by a Mr. DeKeiver at a conference held in Washington D.C. Although Mr. DeKeiver apparently had no connection with Polaroid, the copy of the speech relied upon in drafting Section 4.8.4 of Rebid I was provided to the Department by Mr. Weer, a Polaroid representative.
Rebid I provided that potential bidders could submit written changes to the specifications recommended by a potential bidder.
In a letter dated October 16, 1986, NBS recommended that "the state require a specific security feature or security product... " other than Polasecure which would be available to both Polaroid and NBS.
NBS also recommended that Section 4.8.3 of Rebid I be changed to require a full-cut seal instead of a lip-seal.
Polaroid, in a letter dated October 16, 1986, recommended that paper- based film be allowed.
On October 21, 1986, the Department rejected Polaroid's recommended change to allow paper-based film and NBS's recommendation to require a full-cut seal. The Department, because of its concern that Section 4.8.4 of Rebid I contained a description of Polasecure, accepted, in part, NBS's recommendation concerning the security feature. The Department changed the security requirement to provide that "Armstrong Advantage or Polaroid Polasecure or department approved equivalent pre-applied security markings ... " be affixed to the inside of the laminate. The Department made this change in an effort to eliminate any competitive advantage to potential bidders.
Polaroid and NBS both submitted bids in response to Rebid I.
On December 10, 1986, the Department's committee which evaluated the bids submitted in response to Rebid I reviewed the results of tests conducted on the License bid by Polaroid and NBS. NBS's bid was rejected because its License failed to disintegrate, as required by Rebid I, when the laminate was separated from the core. The committee therefore rejected NBS's bid without considering the price it had bid.
Although NBS had recommended that the Department specify Armstrong Advantage as a security feature, this security feature was incompatible with the requirement that the photographic image be destroyed upon removal of the laminate. NBS was aware of this and so informed the Department. NBS did not timely inform the Department, however. NBS's proposed License failed to satisfy the test performed on the License because of this incompatibility.
Polaroid's bid met the specifications of Rebid I and, upon opening the cost proposals, it was determined that Polaroid's bid price was 71.804 cents per License.
On December 10, 1986, the evaluation committee prepared a memorandum in which it indicated that the Polaroid bid should be accepted. Major Keith approved the recommendation and sent the recommendation to Mr. Dickinson.
Mr. Dickinson also recommended approval of Polaroid's bid and sent the recommendation on to Mr. Mellon. Mr. Mellon rejected Polaroid's bid because the Department had only budgeted 60.9 cents per License and Polaroid's bid of 71.804 cents was too far in excess of the budgeted amount.
The amount budgeted by the Department was based in part on Polaroid's bid in the State of Ohio in September of 1986. Polaroid had bid 55.9 cents per license in Ohio. The Department arrived at 60.9 cents per License by adding approximately 5 cents to the amount bid in Ohio for the additional requirement contained in Rebid I of Polasecure.
The product bid in Ohio was not, however, sufficiently similar to the License being sought by the Department to arrive at a budgeted amount for the Florida License. Ohio, unlike Florida, was not seeking a License with full lamination. Therefore, Ohio did not include the cost of laminating equipment, laminating materials or die cutters. There were other differences in Ohio's program which affected the cost bid by Polaroid in Ohio.
The Department was not aware of the differences with the License bid in Ohio and the License the Department was seeking in Rebid I.
The Department posted its tabulation on December 16, 1986. The Department indicated its decision to reject Polaroid's bid because "cost exceeds budget request."
The Department's action with regard to Rebid I is final agency action.
Rebid II.
In January, 1987, the Department began drafting specifications for the next invitation to bid. Mr. McInnis was one of the primary technical drafters of the invitation to bid.
Under the normal "chain-of-command" in the Department, Mr. McInnis received his instructions through or from Major Keith. In early January of 1986, Mr. McInnis was given a note on Mr. Dickinson's note paper by Mr. McCaskill containing the following:
Plastic
Size
Security - Negotiable
Maintenance/Serviceability
Number of Cameras
Mr. McCaskill explained to Mr. McInnis that the first two items, plastic and size, were not negotiable and that the
16 other items were to be studied further. Mr. McCaskill explained that the next invitation to bid was to provide for a License with a plastic- based film core and was to be the same size as in Rebid I, 3-1/8" x 1-7/8".
The note from Mr. Dickinson was not received through Major Keith, which was the normal way that Mr. McInnis received instructions from Mr. Dickinson.
Mr. McInnis prepared draft specifications and showed them to Major Keith along with the note from Mr. Dickinson. Major Keith instructed Mr. McInnis to submit the revised specifications back to Mr. Dickinson in the chain that he had received the note since Major Keith had not been involved in the instructions Mr. McInnis had received.
Mr. Mellon's decision to instruct Mr. McInnis to specify plastic and to stick to the larger size License was made because Mr. Mellon believed that those items would insure a License that was durable, readable and had some security to it.
The Department asked for the assistance of the Department of General Services in reviewing the draft of the invitation to bid. The Department of General Services reviewed the draft primarily with regard to the special conditions and not the technical specifications of the draft invitation to bid.
On January 27, 1987, the Department issued its third invitation to bid, Invitation to Bid (Rebid II)(hereinafter referred to as "Rebid II").
Rebid II specified that the License was to have a plastic-based film core, lip seal, no more than a 40 percent reduction factor and was to measure 3- 1/8" x 1-7/8". These were the same specifications contained in Rebid I. The security feature contained in Rebid I was replaced with the ultraviolet light requirement of the First ITB.
The decision to continue to require plastic-based film core was made by the Department because of Mr. Mellon's belief that it would result in a more durable, readable and secure License.
The elimination of the security feature to be contained in the laminate was based upon the Department's desire to obtain a cost bid within the Department's budget.
Potential bidders were required to submit any suggested changes to Rebid II in writing.
On February 3, 1987, Polaroid timely submitted recommended changes in writing to the Department. The relevant recommended changes included the following:
That the requirement of Section 4.8.1 of Rebid II that "photo sensitized polyester, polycarbonate, or an equivalent plastic material be changed to "photo sensitized material Polaroid recommended this change based upon its argument that sealing the photo core in a sealed and bonded polyester laminate would provide the necessary security and durability the Department was seeking and that paper-based film offered substantial cost savings;
That the requirement of Section 4.8.1 of Rebid II as to the size of the photo core be changed to allow a range of sizes from 2-3/4" x 1-3/4" to 3-1/8" x
1-7/8". Polaroid recommended this change based upon its argument that the 40 percent maximum reduction factor could be met on a smaller film core and therefore reduce the cost of Licenses;
That the ultraviolet light security feature be replaced with a requirement that Polasecure, Armstrong Advantage or equivalent security laminate be provided. Polaroid recommended this change based upon its argument that security would be enhanced at relatively little cost.
The recommended changes in the size of the License and the film-core material are similar to the current License specifications.
NBS did not submit any written recommended changes to Rebid II.
By letter dated February 4, 1987, Secretary of State George Firestone asked Mr. Mellon about the Department's response to the suggested changes from Polaroid and requested an explanation of the specifications of Rebid II.
In response to the Secretary of State's inquiry, Mr. Mellon submitted a letter and report to the Secretary of State. In part, Mr. Mellon told the Secretary of State the following:
Both Polaroid and NBS have demonstrated their ability to provide a plastic core license. However, NBS informed the Department in a presentation made on
September 17, 1986, that it will be unable to obtain paper film after the conclusion of their current contract with the State of Florida (August 31, 1987). They will be unable to bid on any contract for paper-based licenses after that date.
In order to provide the State of Florida with the most durable license at the lowest cost, at least two bids providing the same
durable core must be considered. Allowing vendors to bid two unlike products, either paper or plastic, would create a situation in which the products could not be objectively evaluated. That type of specification would also give a built-in price advantage to the vendor bidding a paper core, thereby prohibiting a competitive bid for the license, and increasing the price for the State.
Mr. Mellon also suggested that the Department's decision to require a large license would make the License more legible and that requiring only an ultraviolet light feature for security was designed to reduce cost. In the draft of the response to the Secretary of State, the Department indicated that Polasecure, Armstrong advantage or similar security laminate would improve security and was preferred by the Department. This language was not contained in the final letter.
On February 17, 1987, a meeting was conducted by the Department. It was attended by Mr. Mellon, Mr. Dickinson, Major Keith, Jim Cox and Mr. McCaskill. As a result of this meeting the Department decided to amend the specification contained in Section 4.8.1 of Rebid II pertaining to the film-core of the License. The Department decided to allow a paper-based or plastic-based film core in the hope that the cost bid by the vendors would come within the Department's budgeted amount. Polaroid's other suggested changes were rejected.
On February 19, 1987, the Department issued Addenda III to Rebid II. Addenda III amended Rebid II by deleting the requirement that the core be plastic-based film and substituted the requirement that the core be "full color photosensitized material", i.e., paper-based or plastic-based. Addenda III also amended the requirements pertaining to samples.
0n February 20, 1987, Polaroid submitted a Notice of Protest to Rebid II, as amended. NBS submitted a Notice of Protest to Rebid II, as amended, on February 23, 1987. Polaroid and NBS both subsequently timely filed Formal Protests and Requests for Administrative Hearing.
THE ALLEGED DEFICIENCIES OF REBID II, AS AMENDED.
General Requirements of Rebid II, as Amended.
A successful bidder to Rebid II would be required to furnish the Department with camera systems, photographic backdrops, film, laminating materials and equipment, training, support, maintenance and all other equipment and supplies necessary to produce Licenses and identification cards at License issuing offices of the Department throughout Florida. For each License or identification card produced, three film negatives must also be produced.
The Department's License examiners will operate the equipment and produce Licenses. Approximately 1,000 examiners will have to be trained and supported.
A fixed price for each License actually issued will be paid.
Licenses not issued because of equipment problems or defective materials are not paid for by the Department.
The driver, data card and header bar are photographed simultaneously and the images are optically combined by the camera system on a single piece of instant photographic film. The film is trimmed to the appropriate size in a "die cutter."
The combined image recorded on the film core is simultaneously recorded on color negative roll film. Each negative is imprinted with a number. Two black and white, 16 millimeter roll film negative copies are made. A "rapid retrieval system" including two microfilm reader/printers, to retrieve copies of the negatives must be furnished by the successful bidder.
The film core is to be laminated with a 1/8" lip seal.
The License is to be the same size as a credit card, 2-1/8" high by 3-3/8" wide. This is the size of Licenses issued in most states.
The License must be sufficiently durable to last seven years without deteriorating to the point that its functions are compromised.
Printed data on the License should be sufficiently legible for law enforcement officers and others who rely on the License as a form of identification.
The License should be secure it should be difficult to alter a License or to product a counterfeit License without the altered or counterfeit License being detectable.
The primary goal of the Department in issuing Rebid II, as amended, was to provide a License at a reasonable cost which is legible, durable and secure.
Polaroid's and NBS's Challenge to Rebid II, as Amended.
Rebid II, as amended, represents the Department's third attempt to let a new contract for the issuance of Licenses. The Department's rejection of the first two attempts, the First ITB and Rebid I, have become final agency action.
The extension of the 1982 Contract has also become final agency action.
In this proceeding NBS has challenged the following portions of Rebid II, as amended:
The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that the film core is to be "full color photo sensitized material." NBS has contended that the film core should be composed of "polyester, polycarbonate or equivalent plastic material."
The requirement of Section 4.8.1 of Rebid II that the "document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the date card shall be not less than 60 percent of the size of the photographed document." NBS has contended that a 30 percent reduction factor should be specified.
The requirement of Section 4.8.3 of Rebid II that a lip-seal lamination design be used. NBS contends that a flush-cut design should be required.
Polaroid challenged the following portions of Rebid II, as amended:
The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III that the film core be "3-1/8 inches wide and 1-7/8 inches high prior to lamination." Polaroid contends that a range of sizes should be specified, from 2-7/8 to 3-1/8 inches wide and from 1- 3/4 to 1-7/8 inches high.
The requirement of Section 4.8.4 of Rebid II which requires a black-light security feature. Polaroid contends that the Department should specify a security marking applied to the inside of the front laminate which is visible in ordinary light and is alternately visible and invisible as the angle of viewing the License is changed.
The requirement of Section 4.10.4 of Rebid II that no applicant be required to wait for a second applicant before the first applicant's License is processed. The parties stipulated that this challenge arose as a result of a misunderstanding of the requirements of Section 4.10.4 of Rebid II. Based upon a clarification of this Section by the Department Polaroid agreed not to pursue this portion of its challenge to Rebid II.
At the final hearing, Polaroid and NBS maintained that the Department had evidenced a bias in favor of the other.
Film Core; Section 4.8.1 of Rebid II, as Amended by Addendum III.
Section 4.8.1 of Rebid II, as amended by Addendum III, provides, in pertinent part:
The finished color photo core of the driver license or identification card shall be full color photo sensitized material ....
This provision replaces the requirement of Rebid II before amendment that the License be "full color photosensitized polyester, polycarbonate, or an equivalent plastic material
Other pertinent provisions of Rebid II which affect the type of film- core material include the following:
The Color photographic image must remain stable and survive intact under conditions of strenuous wear and tear and the photographic image must not significantly deteriorate or become illegible during the
life of the license (seven years). The Contractor shall bear the cost of materials and supplies for the reissuance of each license or identification card which must be reissued due to failure to meet these requirements.
The license or identification card shall be fully laminated, front and back, with a 1/3 inch lip seal. The laminate shall be not less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the side of the laminate. The finished license shall be 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. The finished license shall be not less than .021 inch and not more than .062 inch thick after lamination. The contractor shall be responsible for the supply of laminating equipment, materials, support services (e.g. training) and all other commodities necessary to assure that driver licenses have appropriate protection and security laminates.
As a part of their equipment demonstration, bidders shall submit with their bid twenty- five (25) sample licenses and ten (10) sample identification cards for testing and evaluation by the State of Florida. The samples must be identical to the proposed license and identification cards. If the proposed samples submitted for testing do not fulfill the requirements of this ITB, the State may reject the bid solely on this basis. Samples must be submitted at no additional cost to the State and additional quantities specified by the Department for further testing after opening of the bid must be supplied as long as said quantity does
not exceed 100. Sample licenses and identification cards will be tested by the Division of Chemistry, Department of Agriculture and Consumer Services of the State of Florida. These tests will include a tear test, an abrasion test, a tensile test, the use of a fadeometer, and a test of the ease of alteration. The tear test must exhibit a strength of at least 100 lbs., while the license must have a tensile strength of at least 250 lbs/in of width.
The abrasion resistance must show either no or only a slight dulling of the surface after
300 strokes with a dry nylon brush and there should be no or only slight fading visible with the use of the fadeometer.
The provision of Rebid II pertaining to the film-core material used cannot be reviewed in a vacuum. The provisions of Sections 4.8.2, 4.8.3 and
4.8.7 of Rebid II quoted above have not been challenged by Polaroid or NBS and must be considered when reviewing the film-core material requirement of Rebid II.
When the provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II and the film-core requirement of Rebid II, as amended, are taken into account, the Department's goal of providing a legible, secure and durable License should be insured.
The effect of Addendum III is to allow potential vendors to bid a License which contains a paper-based or plastic-based film core.
NBS has contended that the Department is restricting competition by allowing a paper-based film core License to be bid. The evidence fails to support this contention.
Polaroid is the primary manufacturer of paper-based instant photographic film, producing as much as 85 percent of such film. There is, however, at least one other manufacturer of paper-based film. That manufacturers is currently supplying paper-based film to NBS for use in producing the current License used in Florida.
NBS has been notified by its current supplier of paper-based film that the film cannot be produced and supplied to NBS at the current price because it is only being manufactured for NBS's use in Florida. The evidence did not prove whether the statements made to NBS are true.
Even if it is assumed that NBS cannot obtain paper-based film except at a higher price, the evidence did not prove that NBS cannot obtain paper-based film. Nor did the evidence prove that only one of the potential bidders could produce a License with "full color photo sensitized material." In the response to Rebid I, Polaroid and NBS produced a license which would meet this requirement.
NBS's plastic-based film which it uses to produce Licenses has better contrast and resolution than Polaroid's paper-based film. NBS's Dekachrome polyester material, which is manufactured by Ciba-Geigy, will resolve in excess of 100 lines per millimeter, and may resolve up to 140 lines per millimeter, resulting in the ability to render a high degree of resolution for smaller items, including type or letters.
Polaroid's film generally resolves at approximately 14 lines per millimeter, with a maximum resolution of 20 lines per millimeter.
The NBS Dekachrome film has approximately a five to one factor of sharpness and clarity over Polaroid film.
The contrast ratio of NBS Dekachrome material is approximately 77 percent and the contrast ratio of Polaroid film is approximately 73 percent.
The difference in contrast and resolution can be measured in the laboratory. The evidence failed to prove that the differences significantly affect the legibility of Licenses actually produced using the film of Polaroid or NBS. The evidence also failed to prove that there is any significant difference in the legibility of Licenses produced with plastic-based film or paper-based film.
There is no difference between Polaroid's plastic-based film and its paper-based film with regards to contrast and resolution. The difference in Polaroid film and NBS film is caused by the instant development process used by Polaroid and not by the difference in the material it uses. Therefore, the differences in contrast and resolution would exist even if Polaroid bid a plastic-based film.
The evidence failed to prove that plastic-based alterations to Licenses or counterfeiting of Licenses.
Rebid II, as amended, provides that sample Licenses are to be produced under the Department's supervision after bids are submitted. Those Licenses then must pass tests for tear strength, tensile strength, scratch resistance and resistance to fade. These provisions of Rebid II have not been challenged. These provisions will test the durability of the Licenses whether paper-based film or plastic-based film is used.
Rebid II, as amended, allows the laminate to be a minimum of 0.007 inches to a maximum of 0.062 inches thick. The thickness of the laminate selected and the film core will affect the tear strength and tensile strength of Licenses.
Use of a lip-seal laminate will also affect the durability of the License and eliminate the durability problems of paper-based film.
Both Polaroid and NBS can bid in response to the requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that plastic-based or paper-based film be used.
Reduction Factor; Section 4.8.1 of Rebid II, as Amended.
Section 4.8.1 of Rebid II, as amended, provides, in pertinent part, the following requirement:
The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall be not less than 60 percent of the size of the photographed documents.
The above quoted portion of Section 4.8.1 of Rebid II was contained in the original Rebid II issued by the Department on January 27, 1987, and was not amended by the Department.
Section 4.8.1 of Rebid II also requires that the License core is to be 3-1/8 inches wide and 1-7/8 inches high prior to lamination. Section 4.8.3 of Rebid 11 requires that the finished License is to measure 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. These requirements were contained in the original Rebid II issued by the Department on January 27, 1987, and were not amended by the Department.
Sections 3.2 and 3.3.2 of Rebid II provide for consideration by the Department of proposed changes to Rebid II. Section 3.3.2 of Rebid II provides the following requirements with regard to the manner in which changes were to proposed by potential bidders:
The bidder, who requests changes to the State's specifications, must identify and describe the bidder's difficulty in meeting the State's specifications, must provide detailed justification for a change, and must provide recommended changes to the specifications. Requests for changes to the Invitation to Bid must be received by the state not later than 5:00 p.m., February 3, 1987. A Bidder's failure to request changes by the date described above, shall be considered to constitute bidder's acceptance of State's specifications.
NBS's challenge to the 40 percent reduction factor requirement of Section 4.8.1 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that the maximum 40 percent reduction factor be changed to a maximum 30 percent reduction factor. Sections
3.2 and 3.3.2 of Rebid II have not been challenged by Polaroid or NBS.
At the commencement of the final hearing of this case the Department announced that it intended to change the reduction factor requirement of Section
4.8.1 of Rebid II to require a maximum reduction factor of 30 percent instead of the maximum of 40 percent contained in Rebid II as challenged in this proceeding.
Lip Seal; Section 4.8.3 of Rebid II, as Amended.
Section 4.8.3 of Rebid II requires, in pertinent part, the following:
The license or identification card shall be fully laminated, front and back, with a 1/8 inch lip seal. The laminate shall be no less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the inside of the laminate. The finished license shall be 3- 3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed... [Emphasis added].
NBS's challenge to the lip-seal lamination requirement of Section
4.8.3 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that a flush-cut seal be substituted for a lip-seal method of sealing the lamination.
The estimated cost per unit of lip-seal lamination for NBS's Licenses is six to eight cents per License.
The requirement of a lip-seal laminate contained in Rebid II was intended to provide additional security and durability.
Lamination tends to prevent moisture, which causes deterioration of the License, from penetrating the photo emulsion of the photo-core.
Whether plastic-based or paper-based film is used, the film emulsion layer may be scratched off if no lamination is used. Emulsion can also be removed from plastic-based film by moistening the film surface.
The Department used a plastic, unlaminated License in 1978. The photo emulsions of this License came unattached from the license core and had to be laminated.
The Department tried to use a flush-cut seal on paper-based film as a result of the problems it had with deterioration of the License produced by NBS in 1978. Flush-cut sealing of a paper-based film License does not stop the deterioration problems caused by water damage.
The requirement of Section 4.8.3 of Rebid II that the License be lip- sealed is reasonably calculated to enhance the security and durability of the License. It will also enhance legibility by eliminating deterioration of the License.
The requirement of Section 4.8.3 of Rebid II concerning lip-seal lamination does not restrict competition. Both Polaroid and NBS can bid a License with lip-seal lamination. F. Security; Section 4.8.4 of Rebid II, as Amended.
Section 4.8.4 of Rebid II provides:
The finished license or identification card shall contain security markings to be specified by the Department. The security markings shall be printed in fluorescent dye or a similar process so that they become visible when exposed to ultraviolet light.
The security markings may be a part of the laminating process.
Section 4.8.4 of Rebid I, as amended by Addenda III, provided:
The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core. The graphic design of the pro- applied security markings must be approved by the Department. The security markings feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle
changes. Any alteration of the security markings must be easily discernible with the naked eye, requiring no auxiliary reading devices for verification. The pre-applied security markings must be secure against being photographically reproduced or copied.
The First ITB contained the same security feature contained in Rebid
II.
A security feature like Polasecure, which changes appearance when the
viewing angle changes, would provide a bettor deterrent to alterations and counterfeiting of Licenses than ultraviolet light. Such a security feature can be seen by law enforcement and others without any auxiliary viewing devices or special lighting.
Although the security feature contained in Rebid I would enhance the security of Licenses, it was eliminated from Rebid II because of the inability of NBS to bid a License which contains such a feature and is consistent with the adhesion of the lamination specifications contained in Rebid I and Rebid II and because of the additional cost of such a feature.
Polaroid had represented to the Department that Polasecure would increase the cost of a License by approximately five cents per License. The evidence failed to prove that this information is correct. The evidence suggests that additional cost of Polasecure is in excess of five cents per License.
The ultraviolet security feature will provide security against unsophisticated counterfeiters and ensure the security goal of the Department is met. The Department is attempting to provide security against amateurs. Given enough time, any security feature can be counterfeited. Even products like Polasecure can be stolen from driver license offices and used to produce counterfeit Licenses.
The Department properly weighed the need for a security feature for Licenses and the cost of such security features and has provided a reasonable security feature in Rebid II.
Polaroid and NBS can produce a License which meets the security requirement of Rebid II.
License Size; Section 4.8.1 of Rebid II, as Amended.
Section 4.8.1 of Rebid II, as amended, requires that the core of Licenses measure 1-7/8 inches by 3-1/8 inches.
Polaroid has suggested that this provision be changed to allow a range of 1-3/4 inches by 2-3/4 inches to 1-7/8 inches by 3-1/8 inches.
The smaller size core suggested by Polaroid is used in 26 of the 27 states presently served by Polaroid and by various agencies of the federal government.
If the smaller size core is allowed, Polaroid can produce two Licenses from one sheet of its film. If the larger size core is required Polaroid can only make one License from each sheet of film.
The Department has required a larger License size in order to improve the legibility of Licenses. The Department is concerned about complaints it has received from law enforcement officers and others about the legibility of the currently used License.
The current License is legible by anyone who meets the vision requirements for employment by the Florida Highway Patrol, given good lighting and proper lenses to correct any vision problems the person may have. Not everyone, however, meets the vision requirements for employment by the Florida Highway Patrol. More importantly, law enforcement officers are sometimes required to read Licenses under poor lighting conditions. It is therefore reasonable for the Department to attempt to improve License legibility.
Factors which affect the legibility of a License include the quality of the printing on the data card used, the degree of contrast on the data card, the optical-reduction factor in the camera, and the quality of the photographic image produced by the camera and the film.
The evidence did not prove that the difference in the size of the License specified in Section 4.8.1 of Rebid II, as amended, and the size suggested by Polaroid will affect the legibility of the License.
Although evidence was presented during the final hearing concerning plans of the Department to improve the method in which the data card is printed, Sections 3.18 and 4.6.5 of Rebid II, as amended, specify that the Department's existing and currently used data card is to be used in submitting bids to Rebid II, as amended. These provisions have not been challenged.
Legibility will be affected by the extent of the maximum reduction factor allowed. The smaller the maximum reduction factor allowed, the better the legibility will be. Once reduced, the data card must fit into the size specified for the License core. Therefore, the reduction factor specified and the size of the License core must be consistent.
In the current License produced in Florida, the data card is reduced by 42 percent from its original size. The License produced in 1978 featured a
33 percent reduction factor.
The requirement as to the size of the License core and the maximum 40 percent reduction factor contained in Rebid II, as amended, are inconsistent. Mr. McCaskell conducted a study which indicated that if a 40 percent reduction factor is used there will be a considerable amount of unused space on a License core which measures 1-7/8 inches by 3-1/8 inches.
If the size of the License core is reduced to allow a License core measuring 1-3/4 inches by 2-3/4 inches, a data card reduced by 40 percent will not leave unused space.
The specification as to the maximum 40 percent reduction factor was included in Rebid II as a compromise between what Polaroid and NBS had informed Mr. McInnis they could produce. It was not based upon any scientific analysis by Mr. McInnis.
Although a data card reduced by a maximum 40 percent reduction factor will fit on the smaller License suggested by Polaroid, the legibility of the
License will not be improved. If the maximum reduction factor is reduced from
40 percent to 30 percent, however, the legibility of the License will be enhanced.
A data card reduced by a maximum reduction factor of 31 percent will fit into the space for the data card specified for a License core of the size specified in Section 4.8.1 of Rebid II, as amended. If the header bar is reduced slightly a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the size specified in Section 4.8.1 of Rebid II, as amended.
A data card reduced by a maximum reduction factor of 31 percent will also fit into the space for the data card specified for a License core of the smaller size suggested by Polaroid. If the header bar and the area for the driver's picture are reduced slightly, a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the smaller size suggested by Polaroid.
The size specified by the Department in Rebid II, as amended, will not directly affect the goal of improving the legibility of the License. Reducing the maximum reduction factor to 31 percent will improve legibility and will be consistent with the other requirements of Rebid II, as amended, as to the size of the header bar and the size of the photograph of the driver.
Allowing the range of sizes in the License core suggested by Polaroid is consistent with a reduction of the maximum reduction factor. Allowing the suggested range of sizes may also result in a cost savings to the Department since Polaroid would be able to produce two Licenses from one sheet of film.
The Department's actions with respect to the License core size and the reduction factor have been arbitrary.
Reducing the maximum reduction factor and allowing the Polaroid's suggested range of sizes for the License core are more reasonable specifications.
Both Polaroid and NBS can bid a License meeting a 31 percent maximum reduction factor requirement and the Polaroid suggested range of License core sizes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Sections 120.53(5) and 120.57(1), Florida Statutes (1986 Supp.).
MOTIONS TO DISMISS AND POLAROID'S MOTION TO STRIKE AND MOTION IN LIMINE.
The Department has filed a Motion to Dismiss Polaroid's and NBS's Petition for Formal Administrative Hearing and Formal Written Protest. Polaroid has filed a Motion to Strike and Motion in Limine challenging NBS's standing to challenge two of the specifications of Rebid II.
The Department's Motions to Dismiss Polaroid's and NBS's protest are based upon the Department's contention that Polaroid and NBS have failed to
state a cause of action within the provisions of Section 3.3.2 of Rebid II and that Polaroid and NBS have waived their right to file their protest.
Section 3.3.2 of Rebid II provides, in pertinent part:
3.3.2 The bidder shall examine the Invitation to Bid to determine if the State's requirements are clearly stated. If there are any requirements which restrict competition, the bidder may request in writing, to the State that the specifications be changed. The bidder, who requests changes to the State's specifications, must identify and describe the bidder's difficulty in meeting the State's specifications, must provide detailed justification for a change, and must provide recommended changes to the specifications ...
The Department has contended that Polaroid and NBS have failed to comply with this requirement because they have not alleged that the specifications challenged by Polaroid and NBS "restrict competition" or that they are not "clearly stated."
The effect of the portion of Section 3.3.2 of Rebid II, as amended, quoted, Asura, is to restrict challenges to the Department's specifications to allegations that a specification restricts competition or is not clearly stated. Such a restriction is contrary to the provisions of Section 120.53(5), Florida Statutes (1985), and the Department's own Rules. Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003, Florida Administrative Code, do not limit challenges to the Department's decisions concerning a bid solicitation to decisions which are allegedly restrictive of competition or unclear. Pursuant to Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003, Florida Administrative Code, a prospective bidder on a Department invitation to bid may challenge any agency decision or intended decision concerning a bid solicitation or contract award if certain procedural requirements are met. The Department cannot restrict the standing of a party to challenge a Department decision or intended decision concerning a bid solicitation or contract award conferred by Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003, Florida Administrative Code, by including such a restriction in an invitation to bid.
The Department has also contended that Polaroid and NBS have waived any right to protest the portions of Rebid II, as amended, challenged in this proceeding because the specifications challenged were contained in previous invitations to bid. It is true that the particular specifications challenged by Polaroid and NBS were contained in the First ITB, Rebid I or both and no challenge to those provisions was filed by Polaroid or NBS. The First ITB and Rebid I, however, were separate actions by the Department which have been disposed of by final agency action. Rebid II, although related to the previous action of the Department with regard to the First ITB and Rebid I, is a separate and independent proposed action of the Department. As such, Polaroid and NBS are entitled to a new point of entry to challenge this particular Department action. See, Manasota 88, Inc. v. Florida Department of Environmental Regulation, 417 So.2d 846 (Fla. 1st DCA 1982). The cases cited by the Department in support of its argument are distinguishable from this case in each of those cases, the protesters' challenges to the specifications were filed after the agency had announced its intended award of a contract. In this
proceeding, both Polaroid and NBS have timely filed their protest to the specifications contained in Rebid II before any submission of bids in response to the invitation to bid.
Based upon the foregoing, the Motions to Dismiss filed by the Department are denied. Polaroid's and NBS's protest are consistent with the requirements of Section 120.53 (5), Florida Statutes (1985), and Rule 15-2.003, Florida Administrative Code.
In Polaroid's Motion to Strike and Motion in Limine, Polaroid contends that NBS's challenge to the specifications of Rebid II, as amended, pertaining to the maximum 40 percent reduction factor and the lip-seal design of the lamination of the License should be struck and that no evidence or argument should be allowed on these challenges. In the Department's Motion to Dismiss NBS's protest, the Department has joined in support of Polaroid's Motion.
Polaroid's Motion is based upon the failure of NBS to comply with the following requirement of Section 3.3.2 of Rebid II, as amended:
Requests for changes to the Invitation to Bid must be received by the State not later than 5:00 p.m., February 3, 1987. A bidder's failure to request changes by the date described above, shall be considered to constitute bidder's acceptance of State's specifications.
The evidence established that the specifications concerning the 40 percent reduction factor and lip-seal lamination were contained in Rebid II as originally issued. The evidence also established that the addenda issued by the Department to Rebid II after February 3, 1986, did not affect these requirements. Finally, the evidence established that NBS did not file its challenge too these specifications in accordance with the portion of Section
3.3.2 of Rebid II, as amended, quoted, supra. Despite these facts, Polaroid's Motion to Strike and Motion in Limine and the portion of the Department's Motion to Dismiss the protest of NBS founded on Polaroid's Motion should be denied.
Pursuant to Section 120.53(5), Florida Statutes (1985), an agency which enters into a contract pursuant to Chapter 287, Florida Statutes, as the Department is attempting to do in this proceeding, is required to adopt rules which provide, among other things, that the following notice be contained in any notice of decision or intended decision of an agency:
Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes.
Pursuant to Rule 15-2.003(2)(b), Florida Administrative Code, the Department has adopted a rule which contain the language required to be included in agency rules by Section 120.53(5), Florida Statutes (1985), and requiring that the language be included in notices of an agency decision or intended decision.
Despite the requirement of the Department's Rules and Section 120.53(5), Florida Statutes (1985), quoted, supra, the Department failed to
inform Polaroid or NBS in Rebid II, as amended, that a failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes (1985), or the time specified in Section 3.3.2 of Rebid II, as amended, would constitute a waiver of proceedings under Chapter 120, Florida Statutes. The issuance of Rebid II constitutes notice of a decision or intended decision for which notice is required pursuant to Section 120.53(5), Florida Statutes (1985), and therefore the Department was required to so inform Polaroid and NBS.
Section 120.53(5), Florida Statutes (1985), also requires that agencies provide the following in their rules governing decisions and intended decisions with regard to a bid solicitation or contract award:
Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of
protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest...
The Department has adopted the language of Section 120.53(5)(b), Florida Statutes (1985), quoted, supra, in Rule 15-2.003(3), Florida Administrative Code. Despite this fact, the Department has provided a different date or time period in which potential bidders were to file a notice of protest in Section 3.3.2 of Rebid II. This requirement is inconsistent with the Department's own rules.
In light of the Department's failure to inform potential bidders that the failure to protest the Department's decision or intended decision to issue Rebid II within the time requirements of Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003, Florida Administrative Code, and the Department's attempt to establish a time requirement in Section 3.3.2 of Rebid II which is inconsistent with Section 120.53 and Rule 15-2.003, NBS's challenge to the specification of Rebid II pertaining to the maximum 40 percent reduction factor and the lip-seal design of the lamination of the License should not be struck. Accordingly, Polaroid's Motion to Strike and Motion in Limine are denied, and the Department's Motion to Dismiss NBS's protest based upon Polaroid's Motion is denied.
EFFECT OF THE DEPARTMENT'S CHANGE IN POSITION WITH REGARD TO THE MAXIMUM REDUCTION FACTOR.
Section 4.8.1 of Rebid II, as amended, provides that the document to photograph reduction factor cannot exceed 40 percent. NBS has challenged this portion of Rebid II, as amended. In its prehearing statement filed at the commencement of the final hearing the Department announced that it would modify Section 4.8.1 of Rebid II to accept NBS's suggested change of the maximum reduction factor to 30 percent. Polaroid objected to this change during the hearing and in its proposed recommended order.
As correctly pointed out by Polaroid in its proposed recommended order, Section 120.53(5), Florida Statutes (1985), provides that once a notice of protest has been timely filed, the agency must stop the bid solicitation process until the subject of the protest is resolved by final agency action. See also Rule 15-2.003(4), Florida Administrative Code. Based upon these
provisions, the bid solicitation process stopped when Polaroid and NBS filed their notices of protest and the Department is prohibited from amending Rebid II.
Despite the fact that the Department may not amend Rebid II during this proceeding to provide a maximum reduction factor of 30 percent, it has been concluded that NBS's challenge to the maximum 40 percent reduction factor was timely filed. Therefore, there is nothing which prevents the Department from stipulating that it agrees with NBS's challenge to this portion of Rebid II. More importantly, the evidence supports a conclusion that Section 4.8.1 of Rebid II, as amended, should be amended to allow a maximum reduction factor of 30 percent instead of the currently required 40 percent reduction factor.
Finally, it is concluded that the Department's change in position with regard to the reduction factor does not violate Polaroid's due process rights. Although Polaroid may not have had notice of the change in the Department's position, Polaroid did have a reasonable opportunity to investigate and offer evidence concerning the change. Polaroid was on notice that NBS was challenging the maximum 40 percent reduction factor specification contained in Rebid II and that NBS had suggested that the reduction factor be reduced to 30 percent. Thus, Polaroid was on notice that a possible consequence of this proceeding was a recommended change to Section 4.8.1 of Rebid II, as amended, to provide for a maximum reduction factor of 30 percent. Polaroid had standing to present evidence in opposition of this proposed change.
STANDARD OF DECISION.
The Department argued at the final hearing and in its proposed recommended order that the standard of decision to be applied in this case is a determination of whether the Department's proposed specifications are arbitrary, capricious, or beyond its discretion. Polaroid and NBS argued at the final hearing and in their proposed recommended orders that the hearing was not conducted to review the action of the Department as an appellate court but was instead conducted to formulate final agency action for the Department on a de novo basis.
The courts have held that on appellate review of final agency bid actions, the standard of review is whether the agency acted arbitrarily, capriciously or beyond its discretion. System Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982); Wood Hopkins Contracting Co. v. Robert J. Au & Son, 354 So.2d 450 (Fla. 1st DCA 1978). The court in Capelletti Brothers, Inc. v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983), applied this standard of review but went on to distinguish the decision to be made in an administrative hearing:
Capelletti also contends that the
hearing officer erred in not imposing upon Bergeron the burden at hearing to prove that DGS's previously announced intention to reject all bids was arbitrary, capricious and unreasonable. Capeletti misconceives the purpose of the Section 120.57 hearing. The rejection of the bids never became final agency action. As we have previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind. Couch Construction Co. v.
Department of Transportation, 361 So.2d 172,
176 (Fla. 1st DCA 1978); McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979).
Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily.
McDonald, supra at 584.
This proceeding was not conducted as an appellate court reviewing final agency action. Instead, the undersigned conducted the proceeding in place of the agency head, the Governor and the Cabinet, to resolve factual disputes and critique agency policy, as revealed in the record, in the public interest. It is the role of the undersigned in this proceeding to create a record and make findings of fact upon which the agency head can decide questions of policy. It is also the role of the undersigned to recommend such decisions on policy questions as are sound policy as supported by the record and not simply to review the intended decisions of the Department as if they were final agency action.
THE CHALLENGED SPECIFICATIONS.
Section 332.142(1), Florida Statutes (1985), requires the Department to issue, upon receipt of the required fee, an original color License to each qualified applicant. The License is to include a "full-face photograph of the licensee" and a space for the licensee to affix his or her signature.
Section 332.142(3), Florida Statutes (1985), provides the Department with the following authority to negotiate and enter into contracts for the provision of the License to be issued pursuant to Section 322.142(1), Florida Statutes (1985):
The department may conduct negotiations
and enter into contracts with qualified firms possessing the requisite qualifications for the development and production of photographic identification documents to assure efficient and economical processing of such licenses in sufficient quantity and of acceptable quality to meet the requirements and intent of this section, and to ensure adequate service at a sufficient number of convenient locations in each county, at the lowest competitive bid price. The terms of such contract may provide for return of the original copy of each application, a photographic duplicate thereof or the original negative. [Emphasis added].
In this proceeding, the parties agreed, and the evidence supports a conclusion, that in negotiating a contract for the provision of Licenses, the Department should seek to enter into a contract for the production of a legible,
durable and secure License at the lowest competitive bid price. These goals are consistent with, and are required by, Section 322.142(3), Florida Statutes (1985).
In negotiating and entering into contracts pursuant to Section 322.142(3), Florida Statutes (1985), the Department must comply with the requirements of Chapter 287, Florida Statutes, which governs the procurement of personal property and services by agencies. With certain exceptions not pertinent here, contracts for the procurement of personal property or services may be awarded only after compliance: with the competitive bid process provided by Chapter 287, Florida Statutes. In requiring that the bid process of Chapter
287 be followed by agencies, the Legislature recognized that "fair and open competition is a basic tenet of public procurement" and that competition reduces the opportunity and appearance of favoritism and inspires public confidence that contracts are awarded equitably and economically." See Liberty County v. Baxter's Asphalt & Concrete, 421 So.2d 505 (Fla. 1982); and Webster v. Belote, 103 Fla. 976, 138 So.721 (1931)
Pursuant to Chapter 287, personal property and services are generally procured through the issuance of an "invitation to bid." Section 287.012(7), Florida Statutes (1985), in defining an "invitation to bid", requires that invitations to bid contain provisions specifically defining the property on service sought. Those specifications cannot be drawn in such a manner as to permit only one bidder to qualify. Mayes Printing Company v. Flowers, 154 So.2d 859 (Fla. 1st DCA 1963); and Robinson, Inc. v. Short, 146 So.2d 108 (Fla. 1st DCA 1962). Specifications must be drawn in such a manner that no substantial competitive advantage is given to any potential bidder.
Polaroid and NBS have challenged the actions of the Department in issuing Rebid II, as amended, asserting that several of the specifications do not serve the public's interest in obtaining a legible, durable and secure License at the lowest competitive price. Both Petitioners have also alleged that the Department has created the appearance of, and opportunity for, favoritism. Finally, NBS has alleged that the Department provided one specification which places it at an unfair competitive advantage. Each of these allegations are discussed, infra.
Competitive Advantage; Film Core.
NBS has argued that the Department, in issuing Addendum III accepting Polaroid's suggested change to Section 4.8.1 of Rebid II to allow paper-based or plastic-based film, restricts competition in violation of Chapter 287, Florida Statutes. The evidence fails to support this contention.
Addendum III allows the bidders to bid a License using either paper- based or plastic-based film. The evidence failed to prove that NBS or Polaroid cannot bid either type of film. At best, NBS attempted to prove that it cannot obtain paper-based film as economically as Polaroid can. Even if NBS had succeeded in proving that it cannot obtain paper-based film as economically as Polaroid, Addendum III does not restrict competition in violation of Chapter 287, Florida Statutes. The fact that one potential bidder may be able to produce a product sought by an agency more economically than another potential bidder does not constitute the type of economic advantage which gives a bidder an unfair competitive advantage prohibited by Chapter 287, Florida Statutes. In fact, it is this very result that Chapter 287 is intended to achieve: the procurement of property or services at the lowest competitive bid price. Contracts should be awarded to the bidder best able to provide the property or
services "in the manner financially most advantageous to the community. "Marriott Corp. v. Metropolitan Dade County, 383 So.2d 662, 665 (Fla. 3d DCA 1980).
The evidence supports a conclusion that, by allowing potential bidders to bid either a paper-based or plastic-based film core, the Department will likely be able to procure a contract for the production of Licenses at the lowest competitive bid price. None of the cases cited by NBS in support of its position with regard to the film core specified in Rebid II, as amended, support a conclusion that any competitive advantage has been created by the Department.
B. Appearance of Bias.
In enacting Chapter 287, Florida Statutes, the Legislature declared that it intended to reduce the appearance of, and opportunity for, favoritism and to inspire public confidence that contracts for property and services are awarded equitably and economically. Section 287.001, Florida Statutes (1985). See also, Village South, Inc. v. Department of Health and Rehabilitative Services, 7 FALR 4121 (1985). Polaroid and NBS have both contended that certain actions by Department personnel create the appearance of bias. Polaroid asserts that the appearance of bias in favor of NBS supports its position as to the specifications which should be changed and its position as to why NBS's proposed changes to specifications should not be changed. NBS asserts that the appearance of bias in favor of Polaroid supports its position as to the specifications which should be changed and its position as to why Polaroid's changes should not be changed.
At best, the evidence raised questions, based upon 20- 20 hindsight, about the wisdom of some of the Department's actions. The questionable actions of the Department, however, in light of the long, involved and complicated process involved in arriving at the position of issuing Rebid II, do not constitute bias in favor of either Polaroid or NBS.
All of the actions questioned by Polaroid and NBS involved invitations to bid and other actions which have resulted in final agency action. If bias existed, Polaroid and NBS were given a point of entry to challenge the Department's actions. In fact, Polaroid did challenge the actions of Mr. Mellon and Mr. Dickinson when the Department entered into an extension of the existing contract with NBS. That challenge was settled by the parties and the settlement was approved by the head of the Department, the Governor and the Cabinet.
More importantly, all of the actions of the Department questioned by Polaroid and NBS were taken in an effort to obtain a contract for the production of a License which is legible, durable and secure at the lowest competitive price. Reasonableness of the Specifications Challenged by
Polaroid and NBS.
1. Paper-based or Plastic-based Film.
The evidence proved that allowing potential bidders to bid a License with paper-based or plastic-based film will enhance the procurement of a License that is legible, durable and secure at the lowest competitive price. Allowing only plastic-based film would not offer any significant advantage. Requiring plastic-based film only, when other potentially less expensive materials will meet the Department's goals, would amount to the inclusion of an arbitrary
specification. It would also eliminate any incentive on the part of bidders to recommend a less expensive method of achieving the Department's goals.
Both Polaroid and NBS can offer a License which meets the specifications of Section 4.8.1 of Rebid II, as amended, with regard to the core material of the License.
2. Maximum Reduction Factor.
The Department stipulated that the maximum 40 percent reduction factor specified in Section 4.8.1 of Rebid II, as amended, should be changed to a maximum reduction factor of 30 percent. The evidence supports the need for this proposed change in the specifications. The goal of the Department to provide a legible License will be enhanced by allowing a maximum reduction factor of only 30 percent. The currently produced License features a 42 percent reduction factor. Allowing a 40 percent reduction factor will do little to improve the legibility of Licenses. Allowing only a 30 percent reduction factor will, however, improve legibility. Although such a change in the specifications will necessitate a minor change in the size of the header bar, the evidence supports a conclusion that such a change in the header bar will have no adverse effect on the goals of the Department.
Both Polaroid and NBS can offer a License which features a maximum reduction factor of 30 percent.
3. Lip-sealed Lamination.
The evidence proved that the requirement of Section 4.8.3 of Rebid II, as amended, that Licenses be lip-sealed is reasonably calculated to enhance the legibility, security and durability of Licenses. Flush-cut sealing of Licenses will not enhance the goals of the Department.
Both Polaroid and NBS can offer a License which features a lip-seal design.
4. Security.
The evidence proved that there are security features available which would provide better security than the ultraviolet security feature specified by Section 4.8.4 of Rebid II, as amended. When the costs of such features and the enhanced security is weighed, however, it cannot be concluded that the Department has acted unreasonably in not requiring such security features. The evidence also proved that only one of two potential bidders can hid a License which includes the security feature suggested by Polaroid and meets all of the other specifications contained in Rebid II, as amended.
Both Polaroid and NBS can offer a License which features ultraviolet security.
5. License Size.
Finally, the evidence proved that the size of the License core specified in Section 4.8.1 of Rebid II, as amended, is not reasonably calculated to meet the goals of the Department. The purported purpose of the size of the License core contained in Rebid II, as amended, was to improve legibility. The
evidence failed, however, to prove that the difference in size of the License as currently specified and as suggested by Polaroid will affect the legibility of the License.
On tide other hand, the evidence also proved that if Polaroid's suggested range of sizes of the License core are allowed the ultimate price of the License to the Department and the State may be reduced. Therefore, accepting Polaroid's suggested change in the License core size is consistent with the goal of the Department to award a contract at the lowest competitive bid price.
The evidence also proved that a data card reduced by a maximum reduction factor of 30 percent will not fit on the smaller core size suggested by Polaroid. This does not support a conclusion that Polaroid's suggested change should not be accepted. First, Polaroid has suggested that a range of sizes be allowed. Therefore, if a bidder wishes to bid a License with a 30 percent reduction factor, the size of the License core can be adjusted within the range of sizes suggested by Polaroid. Secondly, the 30 percent reduction factor is a maximum reduction factor. Therefore, if a bidder wishes to bid a License of the smallest size, the reduction factor can be adjusted to 31 percent. Finally, in light of the possible reduction in cost of the License to the Department if a smaller License is allowed, the Department should reduce the size of the header bar and the area for the driver's picture so that a maximum reduction factor of 30 percent will fit onto a License core of the smaller
size. In order to use a 30 percent reduction factor, which the Department has indicated it agrees it should do, the Department will already be required to reduce the size of the header bar.
To accommodate the smaller size License core suggested by Polaroid the Department would only be required to also reduce the size of the area surrounding the driver's picture.
As an alternative to reducing the size of the header bar to accommodate a 30 percent reduction factor and a smaller size License core and to reducing the size of the driver's picture to accommodate a smaller size License core, the evidence proved that the Department can improve the legibility of Licenses by allowing a maximum reduction factor of 31 percent instead of 30 percent. This difference in the maximum reduction factor would not significantly affect the legibility of the License and would allow a change in the reduction factor and the size of the License core without the need to change the size of the header bar or the size of the driver's photograph. In light of the fact that the evidence supports a conclusion that changing the size of the header bar and the driver's picture will not affect the goals of the Department adversely, this alternative is not recommended.
Based upon the foregoing, it is concluded that the range of sizes suggested by Polaroid should be accepted and that the size of the header bar and the space for the picture of the driver be reduced to accommodate the smaller size License core and a maximum reduction factor of 30 percent.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department add a paragraph to its invitation to bid
informing potential bidders that failure to challenge the specifications of the invitation to bid within the time prescribed in Section 120.53(5), Florida
Statutes (1985), and Rule 15-2.003(2)(b), Florida Administrative Code, will constitute a waiver of proceedings under Chapter 120, Florida Statutes. It is further
RECOMMENDED that NBS's suggested changes to Rebid II, as amended, concerning the film core material specified in Section 4.8.1 of Rebid II, as amended, and lip-seal lamination specified in Section 4.8.3 of Rebid II, as amended, be denied. It is further
RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow a maximum reduction factor of 30 percent. It is further
RECOMMENDED that Polaroid's suggested changes to Rebid II, as amended, concerning the type of security feature specified in Section 4.8.4 of Rabid II, as amended, and the specification of Section 4.10.4 of Rebid II, as amended, be denied. It is further
RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow the film core to measure 2-7/8 to 3-1/8 inches wide and 1-3/4 to 1-7/0 inches high. It is further
RECOMMENDED that the size of the header bar and the space for the drivers' photograph be modified to accommodate a maximum 30 percent reduction factor and the smaller size License core.
DONE and ENTERED this 4th day of June, 1987, in Tallahassee, Florida.
LARRY J. SARTIN
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 4th day of June, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1125BID
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in, the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
Polaroid's Proposed Findings of Fact
Proposed Finding RO Number of Acceptance
of Fact Number or Reason for Rejection
1. 1.
2. This proposed finding of fact is irrelevant except to the extent that Polaroid and NBS serve about half of the states. See paragraph 2.
3. 103.
4. 104.
5. 105.
6. 4 and 6.
7. 106.
8. 107.
9. 7 and 108.
10. 109.
11. 7.
12. 108.
13. 113.
14. 110.
15. 111.
16. 112.
17. Not supported by the weight of the evidence.
18. 114.
19. 116 and 117.
20-22 116. The portion of proposed finding of fact 22 which begins "but careful ..." is rejected as argument.
23-25. 117.
26. 114.
27. 118.
28-31. 20.
32. 52.
33-36. Hereby accepted.
37-38. Irrelevant.
39. 22-24.
40. 28.
41. 29.
42. 30-31.
43. 32-33.
44. 34-35. The last sentence is not supported by the weight of the evidence.
45. 36.
46. 37 and 40.
47. 40-41.
48. 42.
49. 43.
50. 44.
51. 45-46.
52. 45 and 48-49.
53. 48.
54. | Hereby accepted. | |||
55. 56. | 49. The fact that "the Department did not approach Polaroid Corporation to determine if Polaroid could temporarily supply driver license systems during the same interim period is irrelevant. Irrelevant. | |||
57. | 50. | |||
58. | 51. | |||
59-60. | 53. | |||
61. | 54. | |||
62. | 54 and 63. | |||
63. | 54. | |||
64-65. | 55. | |||
66. | Not supported by the weight of the evidence. | |||
67. | 56. | |||
68-69. | 57. | |||
70-71. | 58. | |||
72. | 60. | |||
73. | 158. | |||
74. | 60. | |||
75. | 61. | |||
76. | 160. | |||
77. | Irrelevant. | |||
78. | 62. | |||
79. | 63. | |||
80. | 64. | |||
81. | 65. | |||
82. | 66. | |||
83. | Irrelevant. | |||
84. | 67. | |||
85. | 70. | |||
86. | 68. | |||
87. | 69. | |||
88-90. | 71. | |||
91. | 72. | |||
92. | 73. | |||
93. | 75. | |||
94. | Irrelevant. | |||
95. | Hereby accepted. | |||
96. | 75. | |||
97. | 76. | |||
98-99. | 77. | |||
100. | 82. | |||
101. | 78. | |||
102. | 79. | |||
103. | 80. | |||
104. | Irrelevant. | |||
105. | 83. Mr. McInnis | was | one of | the |
106. | primary technical drafters. 84-85. The last sentence is not | |||
107-108. | supported by the weight of the evidence. 84. | |||
109. | 86. The last sentence is | |||
irrelevant.
110-111. 88.
112. 89.
113. 90.
114. 91-92.
115. 90.
116-117. Irrelevant.
118. 93.
119. 94.
120. 96.
121. 97.
122-123. 98.
124. Not supported by the weight of the evidence.
125-126. 99.
127-132. Not supported by the weight of the evidence.
133-134. 100.
Irrelevant.
Not supported by the weight of the evidence.
137. 101.
138. Not supported by the weight of the evidence.
139. 101 and 119.
140. 138.
141. 126.
142-144. | Statements of | law. |
145. | 128 and 133. | |
146. | 132. | |
147. | 134. | |
148. | 135. | |
149. | 136. | |
150. | 137. | |
151. | 153. | |
152. | 150 and 153. | |
153. | 151. | |
154. | 164-165. | |
155. | 166. | |
156. 157. | 167. The last two sentences are not supported by the weight of the evidence. 168. | |
158. | 169. | |
159. | 170. | |
160. 161-165. | Not supported by the weight of the evidence. Irrelevant. | |
166. | 174-175. | |
167. | Irrelevant. | |
168. | 174. | |
169. | Irrelevant. | |
170. | 180. | |
171. | 179. | |
172. | 181. | |
173. | Not supported by the weight of the evidence. | |
174-175. | 183. | |
176. | 184. | |
177. | Hereby accepted. | |
178. | Not supported by the weight of | the |
evidence. | ||
179. | 159. | |
180. | Not supported by the weight of | the |
evidence. |
NBS's Proposed Findings of Fact
1. 1.
2. 2. The last-sentence is irrelevant.
3. 10-14.
4. 15. The last sentence is not supported by the weight of the evidence.
5. 16-18, 20-21 and 51.
6. 19.
7. 23.
8. 24.
9. 25-27.
10. Not supported by the weight of the evidence.
11. 37.
12. 35.
13. 36. The last sentence is irrelevant.
14. 38-40.
41. The second sentence is uncorroborated hearsay.
47-48. The last sentence is not supported by the weight of the evidence.
46. The last sentence is not supported by the weight of the evidence.
18. 49.
19. 50.
20. 51.
21. 43-44. Polaroid did not request permission to conduct a demonstration Polaroid was requested by the Department. The opinion expressed by Major Keith was the opinion of his office.
22. 53, 61-63, 65-68 and 71.
23. 72 and 74.
24. 73 and 75.
25. 76.
26. 76-77.
27. Irrelevant.
28. 77.
29. 89-90 and 93.
30. 94.
31. 97.
32. 98.
33. 100.
34. 101.
35. 102.
36. 139, 141 and 164.
37. 144.
38. Hereby accepted.
39. 177.
40. 174.
41. 179.
42. 175-176.
43. 175.
Hereby accepted.
Hereby accepted.
46. 145.
47. 7.
Not supported by the weight of the evidence.
Irrelevant.
Not supported by the weight of the evidence.
51. 147.
52-56. Not supported by the weight of the evidence.
57. Irrelevant.
58. 155.
59. 156.
60. 157.
61. 162.
62-63. 66.
64-65. Irrelevant.
66-67. 74.
68. Not supported by the weight of the evidence.
69. 160.
70. 163.
71. 101 and 119.
72. 119.
Not supported by the weight of the evidence.
125. The evidence failed to prove that "there exists virtually no other economical source for a similar paper based instant photographic product."
75. 126.
76-80. Not supported by the weight of the evidence.
81. 134.
82. Irrelevant.
83-86. Not supported by the weight of the evidence.
87. 128.
88. 129.
89. 130.
90. 131.
91. Irrelevant.
92. | 133. The last sentence is not supported by the weight of the evidence. | |
93. | 138. | |
94. | 113. | |
95-96. | Irrelevant. | |
97-102. | Not supported by the weight of the evidence, irrelevant or statement of law. | |
The Department's | Proposed | Findings of Fact |
1. | 4. | |
2. | 119. | |
3-5. | 120. | |
6. | 121-122. | |
7. | Statement of position. | |
8. | 128. | |
9. | 145. | |
10. | 148-149. | |
11. | 152. | |
12. | 151-152. | |
13. | Hereby accepted. | |
14. | 154. | |
15. | 139 and 144. | |
16-17. | 168. | |
18. | 173. | |
19. | 179. | |
20. | 172-173. | |
21. 22. | 172. The last sentence is not supported by the weight of the evidence. 164. | |
23. 24. | Not supported by the weight of the evidence. 113. | |
25. | Irrelevant. | |
26. 27. | Not supported by the weight of the evidence. 180. | |
28. | 185. | |
29. | 155. | |
30. | 156. | |
31-32. | 74 and 81. | |
33. | 159. | |
34. | 160. | |
35-38. | 161. | |
39. | 163. |
COPIES FURNISHED:
Leonard R. Mellon Executive Director
Department of Highway Safety and Motor Vehicles
Neil Kirkman Building Tallahassee, Florida 32399-0504
Enoch J. Whitney, Esquire General Counsel
Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles
Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504
H. Michael Madsen, Esquire Douglas J. Rillstone, Esquire Messer, Vickers, Caparello, French & Madsen
Post Office Box 1876 Tallahassee, Florida 32302-1876
Keith C. Tischler, Esquire Parker, Skelding, McVoy & Labasky
Post Office Box 669 Tallahassee, Florida 32302
Robert G. Holderness, Esquire Robert G. Holderness & Associates 925 L. Street, Suite 1490
Sacramento, California 95814
| Issue Date | Proceedings |
|---|---|
| Jun. 04, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 25, 1987 | Agency Final Order | |
| Jun. 04, 1987 | Recommended Order | Challenge to specifications of Invitation To Bid for driver license photo- graph equipment dismissed. No competitive advantage proved. |
