STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEGROFF BUSINESS MACHINES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-0793BID

) THE SCHOOL BOARD OF PALM BEACH ) COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on March 10, 1988 in West Palm Beach, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Ellis DeGroff, Pro Se

DeGroff Business Machines 2745 US Highway One

Riviera Beach, Florida 33404

FOR RESPONDENT: Vladimir R. Martinez, Esquire

3323 Belvedere Road

West Palm Beach, Florida 33416-4690 BACKGROUND

Respondent decided to acquire a quantity of electronic cash registers and issued an invitation for bids. The bid submitted by Petitioner was deemed nonresponsive by Respondent. As a result, Petitioner filed a formal protest and this administrative hearing followed.

At hearing, the Petitioner presented testimony of two witnesses and one exhibit. Respondent presented the testimony of two witnesses and five exhibits. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Petitioner is Ellis I. DeGroff. He is president of DeGroff Business Machines, Inc.

   
   

2. The Respondent is the School Board of Palm Beach County, Florida.

3. On September 17, 1987, the Respondent issued Invitation for Bid number SB-88C-120B for the potential acquisition of electronic cash registers.

   
   

4. Bids were opened by the Respondent on October 14, 1987. Five bids were received. The monetary amounts of the bids were listed and Petitioner's bid was the lowest. Respondent then reviewed the bids to determine compliance with bid specifications contained in the Invitation for Bid. The Respondent determined the bid of the Petitioner was not in compliance with bid specifications as follows:

   
   

   1. The system bid by the Petitioner did not have cassette tape recorder interface for programming as required by bid specifications.

   2. The system bid by the Petitioner did not have the capacity of keeping an inventory of

      700 bulk items as required by bid specifications.

   3. The system bid by the Petitioner did not have a communication board for interface with a

      personal computer as required by bid specifications.

   4. The Petitioner did not provide literature to document that the system bid by the Petitioner met or exceeded the brand name system designated in the bid specifications.

      
      

5. The system bid by the Petitioner did not have a cassette tape recorder interface for programming as required by bid specification number 18, set forth on page 6 of the Respondent's invitation to bid. The equivalent, as argued by the Petitioner, is a portable "transpack" which can be plugged into machines to accomplish virtually the same purpose. Petitioner did not include the "transpack" in the price quoted in his bid. It would have to be purchased separately. The Petitioner's bid was nonresponsive as to this specification.

   
   

6. The Petitioner initially testified that the machine bid by him could not manage more than 512 bulk inventory items. On further examination, he alleged his machine would handle over the 700 inventory items required by bid specification number 24, on page 7 of Petitioner's invitation to bid. The additional inventory would result from an upgrade to the machine. The Petitioner's bid is not responsive to this bid specification.

   
   

7. Petitioner's machine as bid does have the ability for communication with a personal computer through a communications wire or telephone modem. Petitioner's bid included a software (floppy disk) program for computer assimilation of data from the electronic cash register. Petitioner's bid was responsive to this specification set forth in item 1b on page 11 of the invitation to bid.

   
   

8. The Respondent's bid specified an electronic cash register known as National Semiconductor Model 2170 or acceptable equivalent. Paragraph number 6 on the first page of the bid specification package emphasizes that use of such a brand name is simply for the purpose of establishing a grade or quality. Under requirements of special condition K on page 4 of the bid package, a bidder submitting a different brand name must also submit information, including the manufacturer's latest literature on the machine being offered, as may be necessary to verify that the bid item meets or exceeds the requirements of the brand name machine set forth in the bid package. The submission of such

   additional information must be made within three days of notification by the Respondent.

   
   

9. Since the Petitioner had bid a machine of a different brand than that set forth in the bid package and was also the low bidder, Respondent requested and timely received additional information from the Petitioner which was to have verified the specifications of the Petitioner's machine. Notably, the electronic cash register bid by the Petitioner and demonstrated for the Respondent during the process of bid evaluation was a machine produced by Sharp Electronics Corporation and designated on page 11 of Petitioner's bid as model number 4230M-ES. The Petitioner provided Respondent with additional information in the form of a glossy brochure detailing the advantages of a machine made by the same corporation and designated in the brochure as model ER-4230F. Petitioner also included literature on a circuit module with a model designation of 4050. A cover letter with these two publications from the Petitioner pointed out that the model number in the bid package was a typographical error and should be corrected to read 4230F-ES. The assertion of Petitioner in this letter and reaffirmed in testimony at hearing is not supported by the evidence which establishes Petitioner did indeed bid the model 4230M-ES and did subsequently demonstrate that machine to Respondent. It is further established that the 4230M-ES does not possess a flat liquid resistant keyboard as required in specification number 1 on page 6 of the bid package. Petitioner's bid was nonresponsive in its failure to comply with the requirement of special condition K.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes (1987).

The Respondent elected to acquire electronic cash registers via a bid process. The requirements of that bid process are set forth in Section 6A- 1.1012, Florida Administrative Code. Regulations of the Department of General Services, Division of Purchasing are applicable to price consideration by the Respondent in such bid process. Subsection 6A-1.1012 (4), Florida Administrative Code.

The argument of Petitioner that the differences between the model machine bid by him and the machine specifications set forth in Respondent's bid request are minor variations, fail to meet the test of what constitutes a minor variation. A minor variation is one which, if granted, does not affect the price or give a special benefit or advantage to a particular bidder. If, for example, the Respondent were to waive the bid specification for a cassette recorder interface as a minor variation, Petitioner would receive a special advantage over other bidders complying with this requirement. Further, price would be affected since cost of the "transpack" proposed by Petitioner as a substitute for the cassette recorder interface is not included in his bid price. Such a variation is not minor and cannot be waived. Section 13A-1.001 (10), Florida Administrative Code. See also Harry Pepper v. City of Cape Coral, 352 So 2d 1190 (Fla. 2nd DCA 1978).

Further, the Petitioner's bid is nonresponsive due to his machine's lack of the required inventory capacity, the absence of a flat liquid resistant key board on the machine and, the Petitioner's failure to provide documentation to Respondent upon which to base further determination of compliance with bid specifications. A responsive bid is one which complies in all material respects

to the invitation for bids. Subsection 13A-1.001 (13), Florida Administrative Code. The Petitioner's bid differs substantially from that requested by the Respondent and should be disallowed. City of Miami Beach v. Klinger, 179 So 2d 864 (Fla., 3rd DCA 1965).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter a final order finding the bid of the

Petitioner to be unresponsive.

DONE AND RECOMMENDED this 25th day of March, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1988.

APPENDIX

The following constitutes my specific rulings on findings of fact submitted by the parties.

Respondent

1. Included in finding number 3.

2. Included in finding number 4.

3. Included in finding number 4.

4. Included in finding number 4.

5. Included in findings numbered 4, 5, 6, 8, and 9.

6. Included in findings numbered 4, 5, 6, 8, and 9.

7. Rejected as unnecessary.

8. Rejected as unnecessary.

Petitioner

The Petitioner submitted a post hearing document which is divided into three sections. The second section entitled "Statement of Petitioner's Position" is presumed to be proposed findings. The proposed findings, designated by letters A through D, have been renumbered as paragraphs 1 through

4 and are treated as follows:

1. Not supported by the evidence.

2. Not supported by the evidence.

3. Adopted in part in finding number 7.

4. Not supported by the evidence.

COPIES FURNISHED:

Thomas J. Mills Superintendent of Schools 3323 Belvedere Road

P.O. Box 24690

West Palm Beach, FL 33416-4690

Ellis I. DeGroff

DeGroff Business Machines, Inc. 2745 U.S. #1

Riviera Beach, FL 33404

Vladimir R. Martinez, Esq. 3323 Belvedere Road

Building 503, Room 232

West Palm Beach, FL 33416-4690

Docket for Case No: 88-000793BID

Orders for Case No: 88-000793BID