STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
UNISYS CORPORATION, )
)
Petitioner, )
)
vs. ) CASE No. 88-2525BID
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent, )
)
and )
)
NCR CORPORATION, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held on June 7-8, 1988, in Tallahassee, Florida, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Edgar L Elzie, Jr., Esquire
MacFarlane, Ferguson Allison & Kelly
804 First Florida Bank Building Tallahassee, Florida 32301
Charles R. Holman, Jr., Esquire Unisys Corporation
4151 Ashford, Dunwoody Road, Northeast Atlanta, Georgia 30319
For Respondent: B. Elaine New, Esquire
Assistant General Counsel, HRS 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
For Intervenor: Gary P. Sams, Esquire
Cheryl G. Stuart, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314
Robert J. Beggs, Esquire NCR Corporation
1700 South Patterson Boulevard Dayton, Ohio 45479
BACKGROUND
This case arose out of a bid protest petition filed by Petitioner, Unisys Corporation (Unisys), challenging the Respondent's, Department of Health and Rehabilitative Services' (HRS), award of Bid No. VH-2 to NCR Corporation (NCR). NCR was allowed to intervene in the case.
The parties submitted a prehearing stipulation in which certain facts were agreed to. The relevant stipulated facts are included in the Findings of Fact section of this Order.
At the hearing, all three parties presented the testimony of Vincent C. Messina, Hilda Fowler Moore and James R. Hall, and offered two joint exhibits, which were received into evidence. NCR also presented the testimony of Theresa Gordon and John Casey, and offered three exhibits (numbered 2-4), which were received into evidence. Unisys also presented the testimony of Harriet Parker and offered seven exhibits, which were received into evidence. Finally, HRS offered six exhibits, which were received into evidence.
All parties filed Proposed Recommended Orders containing proposed findings of fact which are addressed in the Appendix attached to this Recommended Order.
FINDINGS OF FACT
Overview
Invitation to Bid VH-2 (ITB) sought bids for full service hardware maintenance for approximately 3,500 computer terminals, printers, microcomputers and associated components and peripheral devices, located throughout the state. Upon acceptance of the lowest responsive bid, the State would enter into a six- month contract, renewable for two twelve-month periods.
HRS officials considered whether to acquire the services through a Request for Proposal process or through an Invitation to Bid. The decision was made to pursue an ITB.
The ITB was prepared by Harriet Parker, who, at the time, was the administrator of the HRS Data Center in Jacksonville, Florida. Ms. Parker's employment with HRS ended after the bidder's conference and after she had answered bidder's questions which came in after the bidder's conference. Ms. Parker was not employed by HRS when the bids received in response to the ITB were received.
HRS issued the ITB on January 22, 1988. After a bidder's conference was held, HRS, on March 1 and 9, 1988, issued addenda to the ITB, which contained changes to the ITB. Additionally, the addendum issued on March 1, 1988 contained written responses to questions submitted by potential bidders.
The ITB and addenda were reviewed by the Information Technology Resource Procurement Advisory Council.
Five companies submitted bids: RAM Systems, Inc., Data Access Systems, Inc., Instrument Control Services, Inc., NCR, and Unisys.
The bid of RAM Systems, Inc. was rejected as untimely. The remaining four bids were timely filed.
Ms. Parker appointed three HRS employees to serve on the bid evaluation committee which reviewed the bids received in response to the ITB. The three employees were: Vincent C. Messina, a Data Communications Specialist III, James
R. Hall, a Data Processing Manager II, and Hilda Fowler Moore, an administrative assistant. All three committee members were employees at the HRS Data Center in Jacksonville, Florida.
At its first meeting, the committee reviewed the four bids to determine if they were in the format requested in the ITB. This review was solely as to form, instead of content.
After the meeting, each committee member prepared cost extension sheets for each bid, in accordance with the method set forth in the ITB, to determine which bidder was the lowest.
At the next meeting, the committee members compared the cost extension sheets each had prepared. While there were differences between them, each member had the bids ranked in the same order. The committee determined that Data Access Systems, Inc. was the lowest bidder, NCR the next lowest, then Unisys and, finally, Instrument Control Services, Inc.
After further review, the bid of Data Access Systems, Inc. was rejected as nonresponsive.
The committee then decided to concentrate their review on the bids of NCR, now the lowest bidder, and Unisys, now the second lowest bidder. The bid of Instrument Control Services, Inc. was laid aside, since it was the high bidder.
After reviewing the content of the NCR and Unisys bids, the committee determined that both bids were responsive.
Since NCR was the lowest bidder, the committee decided NCR should be awarded the bid.
The Notice of Intent to award the bid was posted on April 5, 1988.
Unisys timely filed its notice of intent to protest, and its formal written protest and request for a hearing.
Review Standards Used by Committee
The committee was not given any direction on how to evaluate the bids, and no instructions on how to determine a bid was responsive. The committee members never discussed the meaning of the terms "minor irregularity or "material deviation" and were never told the meaning of these terms. Finally, the committee members neither sought nor received legal advice on how to evaluate certain provisions contained in the bids.
Mr. Messina interpreted his role on the committee to be to compare the items in each bid with the ITB. Reviewed his role as determining whether the
wording of the bid would be sufficient to supply the State with a viable service agreement. His determination of whether a bid was responsive was not based on a word for word comparison of the bid with the ITB, but on an overall impression of what each bid contained.
Mr. Hall reviewed the bids to make sure that each bidder was meeting what the ITB required. His main focus in reviewing each bid was whether the wording of the bid gave that bidder an advantage over another bidder.
At the time of reviewing the bids, Ms. Fowler Moore's understanding of what constituted a "material deviation" was that it would be a major change which would affect an issue or an item in some way. She understood a "minor irregularity" to be a lesser difference.
The committee as a group believed that there would be further review of their decision and that some differences between the bids and the ITB would be worked out later by others. The committee members did not think that their decision would be the final decision.
The ITB, General Provisions
The ITB, including attachments and the two addenda consisted of over
150 pages.
The ITB contained a number of mandatory requirements. The ITB explained these as follows:
MANDATORY REQUIREMENTS
Introduction
The State has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must" or "will" (except to indicate simple futurity) in this Invitation To Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this (sic) Invitation To Bid requirements, provides an advantage to one bidder over other bidders, has a potential significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived.
The words "should" or "may" in this Invitation To Bid indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause
rejection of a bid. (Emphasis in original)
On page 5, the ITB provided that "any Bid which fails to meet the mandatory requirements stated in this Invitation to Bid shall be rejected."
On page 1, the ITB provided that "Bids containing terms and conditions conflicting with those contained in the invitation to bid shall be rejected.
On page 6, the ITB, in describing the format to be used, provided that "there is no intent to limit the content of the Bid. Additional information deemed appropriate by the bidder should be included."
The addendum issued on March 1, 1988, contained the following:
Q. Can a bid contain options that HRS will consider, providing all mandatories are met?
If all mandatories are met, bidder may submit options for HRS consideration. These need to be clearly identified in a separate section of the bid. The bid price should not be based on HRS acceptance of options.
The ITB contained the standard language that "Any questions concerning conditions and specifications shall be directed in writing . . . for receipt no later than ten (10) days prior to the bid opening," and gave bidders the opportunity to dispute the reasonableness, necessity and competitiveness of the terms and conditions of the ITB.
On page 3, the ITB provided: Contractual Mandatories
A bidder's response to this Invitation To Bid shall be considered as the bidder's formal offer. The signing of the contract by the Department shall constitute the Department's written acceptance of the successful Bid and a copy of the signed contract shall be forwarded to the successful bidder. The contract for services required by this Invitation To Bid is contained herein.
The contract included in the -ITB incorporated and made part of the contract both the ITB and the successful bidder's bid.
Comparison of the NCR Bid with the ITB
The NCR bid contained numerous changes to the provisions of the ITB. These changes are set forth below.
Supplemental Bid Sheets
Pages 146 and 147 of the ITB consisted of a form which each bidder was to complete and return as part of its bid. The form stated that "each designated paragraph in this Invitation to Bid must be addressed. The bidder must initial the designated item indicating concurrence." The form set forth 47 items. The layout of the form, showing the first two items for illustration purposes, was as follows:
TITLE RESPONSE INITIALS
Introduction Understood and Agreed Mandatory Requirements Understood and Agreed
The NCR bid contained initials in the appropriate place for all items. On thirteen of the items, NCR's bid contained the words "as per Bidder's Proposal" typed under the words "Understood and Agreed" as shown in the following example:
TITLE RESPONSE INITIALS
Introduction Understood and Agreed
as per Bidder's Proposal
Mandatory Requirements Understood and Agreed
as per Bidder's Proposal
The words inserted by NCR related to the items in the line directly above the inserted words.
The committee members interpreted the insertion of the words "as per Bidder's Proposal" in different ways. Mr. Messina interpreted it to mean that NCR was agreeing to the terms of the ITB and was offering the State something better and different which the State could accept or reject. He thought the differences would be worked out later; that the differences were more a "legal matter" than something the committee could solve. Mr. Hall interpreted it to mean that NCR agreed to the provisions of the ITB as some of the provisions had been changed by NCR. Ms. Fowler Moore interpreted it to mean that the items for which "as per Bidder's Proposal" was added were qualified and the ones where nothing was added were not qualified.
Limitation of Remedies
The addendum issued on March 1, 1988 contained two new pages which became part of the contract section of the ITB. These new pages were numbered 23A and 23B. In its bid, NCR changed the wording of page 23A. The relevant portions of page 23A of the NCR response are set forth below:
Limitation of Remedies
Contractor's entire liability and the State's exclusive remedy shall be as follows:
In all situations involving performance or non-performance of machines or
programming maintained or serviced [furnished] under this Agreement, the State's remedy is (1) the adjustment or repair of the machine or replacement of its parts by Contractor, or, at Contractor's option, replacement of the machine [or correction of programming] errors, or (b) if, after repeated efforts, Contractor is unable to install the machine or a replacement machine, model upgrade or feature in good working order, or to restore it to good working order, or to make programming operate, [all as warranted,] the State shall be entitled to recover actual damages to the limits set forth in this Section.
* * *
Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in contractor or in tort including negligence, shall be limited to the greater of $100,000 or the actual amount laid by the State to the Contractor for the services provided under this Agreement [appropriate price stated herein for the specific machines that caused the damages or] that are the subject matter of or are directly related to the cause of action....
Contractor shall hold and save the State harmless for any and all suits and judgements against the State for personal injury or damage to real or personal property up to the value of the Agreement at the time this Agreement is terminated caused by Contractor's tortious conduct in the performance of this Agreement....
(Underlined words were added by NCR, brackets indicate words NCR struck through).
The committee members felt that these changes either were necessary, enhanced the language in the ITB, or would not have much of an effect on the contract. From a legal standpoint, however, the committee was not sure what the changes meant. The committee members felt that they were not qualified to determine whether the changes constituted a material deviation and believed that decision would be made by someone else after the committee was finished.
The changes made by NCR to the first paragraph help to clarify the document to meet the provisions of the ITB. The ITB was not for the purchase of machines or programming, but for the servicing of hardware.
The changes made to the second paragraph enhance HRS's position and help to clarify the language. HRS's position is enhanced because under the ITB
language the limitation would have been the greater of $100,000 or $0 since the ITB did not contain prices for specific machines. Again, the stricken language would apply to a purchase agreement and not to a service contract.
The change to the third paragraph has the effect of nullifying the hold harmless clause, since "the value of the Agreement at the time this Agreement is terminated" is zero.
Bid Bond
On page 3, the ITB required bidders to submit a bid bond or bid guarantee in the amount of $10,000. If the successful bidder failed to execute a contract within ten days after notification of award, the bid guarantee was to be forfeited to the State.
The bid bond submitted by NCR contained the following language:
NOW, THEREFORE, the condition of the obligation is such that, if the said principal shall be awarded the said contracts and shall within (*) days after receiving notice of the award enter into a contract. . .
*to be negotiated between said principal and said obligee.
Since NCR's bid bond left the period of time within which to enter into a contract to be negotiated, the bid bond was not in compliance with the ITB's requirements.
Invoicing
On page 21, the ITB set forth certain requirements for invoices. One of the requirements was that "the invoice will include a detail list of costs for parts replaced listed on each malfunction incident report." This information was important to Ms. Parker in order for HRS to know what it was paying for, even though the contract price included both parts and labor. NCR's bid had the quoted language stricken through.
On page 12, the ITB required that "Invoices for payment must be submitted to the State monthly, with at least the same level of detail found in Attachment A." Page 13 of NCR's bid, under the caption "Invoices," stated that "NCR agrees to conform with the existing payment plans as established in previous agreements between NCR and the State of Florida Comptroller's Office."
The committee members did not think that the requirement that the invoice contain the cost of replacement parts was important. They assumed that they would not receive this information from the winning bidder, since they were not receiving it from the existing contractor.
The committee members did not know what the previous agreements were between NCR and the Comptroller's Office. The committee assumed that NCR's response would be sufficient to meet HRS's needs.
Configurations
The addendum issued on March 1, 1988, contained a new page 26 for the ITB, which contained the following language:
Full service maintenance for microcomputers will include the following configuration: Up to 768KB RAM plus up to one memory expansion card, up to two 5 1/4 inch 360KB or up to two 1.2MB floppy disk drives, up to 20MB hard disk, enhanced graphics capability, monochrome or color monitor, and an ICC card if required for network communications. This full service maintenance configuration was developed to include features that are basic to microcomputers connected to the HRS Data Communications Network and are, therefore, the maintenance responsibility of the Data Center.
Machine features that are not included in this configuration are not covered by the maintenance contract resulting from this ITB. Enhancements that may be on a microcomputer covered by the maintenance contract but would not themselves be covered include, but are not limited to:
local area network (LAN) cards, 40MB hard disk, 3 1/2 inch floppy disk drive and Bernoulli Boxes. Maintenance of these enhanced features are the responsibility of the user. (emphasis added)
NCR, in listing its price for servicing certain equipment, assumed configurations that are less than those stated in the ITB. For example, NCR did not include hard disks in its configuration for some equipment. Hard disk drives are some of the more expensive items to repair and replace in computers.
The committee members did not compare the configurations in the NCR bid with those in the ITB. Therefore, they did not take into account the differences between the two in determining that the NCR bid was responsive.
Termination of the Contract
Page 11 of the ITB provided that:
The State reserves the right to cancel maintenance coverage for any single piece of equipment or any number of pieces of equipment or the entire contract upon thirty (30) days written notice to the Contractor.
NCR in its bid provided that: Withdraw/Termination
Neither party shall be deemed to be in default of this agreement, or of any contract entered into pursuant to it unless, as a condition precedent thereto, the other party shall have first given written notice describing with reasonable detail the condition which it perceives to be a default as outlined in Attachment D and the Bidder's Proposal, and within sixty (60) days following receipt thereof, the party receiving such notice shall have failed or refused to correct such condition. Both parties shall make all reasonable efforts to correct any problems which may lead to termination of the agreement.
The evaluation committee noticed this difference, and felt that this was an area to be looked at by other persons who would do a final review.
Engineering Changes
The ITB, on pages 12 and 13 stated that:
Cost of maintenance shall include installation of all announced engineering changes applicable to any piece of equipment covered by this contract. All engineering changes which the manufacturer considers mandatory or engineering changes which the manufacturer or the Contractor considers necessary for safety reasons must be installed as soon as possible.
Contractor shall notify the State in writing of all mandatory and safety related engineering changes.
Engineering changes which the manufacturer recommends but which are neither mandatory nor for safety reasons must be installed within a reasonable period of time after the Contractor has notified the State of such changes and the State has authorized the installation of such changes . . . It
is the Contractor's responsibility to determine what engineering changes are available, whether they are mandatory changes, safety changes, or other changes. Furthermore, it is the
Contractor's responsibility to initiate the installation of all such changes. (emphasis added)
Page 9 of NCR's bid provided that:
Engineering Changes
should a reliability modification released from an OEM be deemed necessary by NCR, the modification will be performed during the prime shift of maintenance at no additional charge to the State of Florida. The original equipment manufacturers with whom NCR has agreements are responsible for providing notification to NCR on any engineering changes. NCR will make HRS aware of engineering changes when the
necessary. information becomes available to NCR. (emphasis added)
The committee assumed that if a manufacturer considered an engineering change to be mandatory, NCR would deem it to be necessary and would make this change. Therefore, the committee determined that the NCR language was responsive and would result in the State receiving the service it expected.
Malfunction Incident Reports
Page 10 of the ITB required that the winning bidder furnish HRS with a written--malfunction incident report upon completion of each maintenance call. The ITB went on to describe ten items which had to be included in the reports.
Page 12 of the NCR bid provided the following: Reports
NCR has the ability to provide monthly service reports to HRS which summarize the maintenance activity of the account. Such records may include a listing of all equipment covered in the maintenance agreement accompanied by the dates of service calls, number of service calls received per equipment type, description of problem and solution, and the time spent for repair. NCR maintains a comprehensive equipment history file to meet your reporting needs. Reporting procedures will be jointly defined by NCR and HRS. (emphasis added)
One member of the evaluation committee did not consider the reports to be an important item. Another member of the committee assumed that HRS would get the information it needed from the reporting procedures to be jointly defined by NCR and HRS once the contract was awarded.
Additional Equipment
Page 11 of the ITB required that the contractor would be responsible for maintaining all the equipment owned by the State which is of the type set forth in the ITB, regardless of whether the specific piece of equipment is listed in the ITB or subsequently purchased. Equipment of a type not described in the ITB is not part of the agreement.
NCR's bid is consistent with this requirement. Also, NCR's bid gives HRS the option of adding equipment of a type not described in the ITB, after NCR evaluates the equipment and agrees to accept it.
Principal Period of Maintenance
Page 9 of the ITB provided that the "Principal period of maintenance shall be at least from 8:00 a.m. to 5:00 p.m., local time at each site, Monday to Friday, exclusive of holidays observed by the Department." Also, page 17 of the ITB provided that, "Principal Period of Maintenance (PPM)" shall be defined as at least nine consecutive hours per day (usually between the hours of 8:00
a.m. and 5:00 p.m.; local time at the site) as selected by the State, Monday through Friday, excluding holidays observed at the site." Finally, page 19 of the ITB contained language similar to the language in page 9 of the ITB.
In the industry, "principal period of maintenance is that period of time during which a customer is buying services, including parts and labor, at a flat rate under a contract with the service provider.
Page 8 of NCR's bid provided that "NCR's Principal Period of Maintenance (PPM) is Monday through Friday, 8:00 a.m. to 5:00 p.m., including a one hour meal period." NCR's bid did not change the language contained in page
19 of the ITB, noted above, which became part of its bid. Finally, in its Attachment to the contract provided in the ITB, NCR's bid stated that "the 'Principal Period of Maintenance' shall be defined as Monday through Friday, 8:00 a.m. to 5:00 p.m., exclusive of a one hour meal period, excluding holidays."
The evaluation committee discussed the differences in the language between the NCR bid and the ITB dealing with principal period of maintenance and decided that the NCR bid was responsive.
Response Time, Loaner Equipment and Penalties
Page 9 of the ITB required the following:
5. Contractor must provide on site response within four (4) hours in metro areas and six (6) hours in all other
areas at a 95 percent response level. Metro and non-metro locations are listed in Attachment B. If the response level
falls below ninety-five percent (95 percent) overall for the State on a monthly
basis, the Contractor will forfeit ten
percent (10 percent) of the monthly maintenance cost per unit for each incident in the
month of the occurrence.
7. The Contractor will have the equipment repaired and accepted by HRS Data Center staff or the Contractor will install an equivalent substitute device within six (6) hours after the maintenance begins. Maintenance begins when the Contractor arrives at the site and takes control of the equipment. If the equipment is not repaired or the Contractor does not install equivalent working equipment, the Contractor shall
forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each
incident in the month of the occurrence.
The NCR bid, on pages 8-9, provided the following: Response Time
A firm commitment to response time and a stringent set of escalation procedures will be an integral part of NCR's service program for HRS. NCR has a commitment to arriving on-site within four (4) business hours of receipt of call during NCR's Principal Period of Maintenance, for equipment located within metropolitan areas. For non- metropolitan equipment sites, the average response commitment is six (6) hours.
NCR understands the State of Florida's objectives to make system availability as high as possible, and we have an internal commitment to help the State meet the goal. Should NCR fail to meet its response and escalation standards as outlined herein, NCR will entertain future negotiations relative to credits and penalties. Because of NCR's response time, repair and escalation procedures, NCR generally does not provide loaner equipment. (emphasis added)
The NCR bid then continues, on pages 10-12, under the heading "Escalation/Problem Resolution," to explain the procedures NCR personnel will follow when a machine cannot be restored to good operating condition within set periods of time.
The evaluation committee interpreted NCR's bid to mean that NCR would respond within six (6) hours in the non-metro areas, even though the NCR bid stated that "the average response commitment is six (6) hours."
The evaluation committee believed that the ten percent (10 percent) penalties set forth in the ITB were irrelevant and not necessary, since the
penalties were too low. Therefore, the committee felt that NCR's proposal to negotiate a system of penalties and credits made sense.
The committee also believed that, under NCR's escalation procedures, coupled with the statement on page 8 of the NCR bid that "Periodically, a whole unit swap philosophy may be utilized to maximize system uptime," the machines would be fixed within six (6) hours or an equivalent working device (loaner) would be installed.
Probationary Period Evaluation
Page 145 of the ITB set forth the evaluation criteria which HRS would use to evaluate the contractor's performance during the initial 6-month term of the contract.
NCR's bid added language to five of the criteria, as follows:
Is the response level of ninety-five
(95 percent) maintained consistently each month in all major areas of the State? On the average.
Are adequate spare parts available for equipment repair within six (6) hours? Spare carts are generally available within six (6) hours; maximum of twenty- four (24) hours.
Is an equivalent substitute device installed if parts are not available or if repair is expected to require more than six (6) hours?
Compliance in the following manner:
NCR's repair and escalation procedures may result in utilizing a substitute device to maximize system uptime.
Are the changes in priorities easily accomplished? As stated, not a quantifiable standard; would prefer substitute language.
Are malfunction incident reports received on a timely basis? Compliance defined in Reporting section of Bidder's
Proposal. (Underlined words were added by NCR)
The committee noted that the NCR bid contained changes to the evaluation language.
Implementation of Contract
The NCR bid, in Appendix C, contained an implementation schedule calling for service to certain equipment to begin five weeks after the contract
was awarded and to the remainder of the equipment nine weeks after the contract was awarded.
The ITB, while not explicitly stating when the new contractor was to begin services, appears to contemplate that full service would begin immediately, since it provides for HRS to begin paying maintenance charges on the effective date of the contract. Under the terms of the ITB, the effective date of the contract would be no later than ten days after the award was posted.
One member of the evaluation committee, Mr. Hall, believed the new contractor would begin service immediately, which to him meant within a month after the award was made.
Execution of Contract
The ITB contemplated that the successful bidder execute the contract provided in the ITB within ten days of notification of the award.
The NCR bid provided that "Upon mutual agreement of the terms and conditions between our organizations, NCR agrees to execute a contract within ten (10) days." Also, the implementation schedule set forth in Appendix C of the NCR bid provided for the contract to be negotiated and executed between the second and fifth week after notification of the award.
Assignment of Contract
Page 22 of the ITB provided that "This Agreement is not assignable without the prior written consent of the Customer. Any attempt to assign any of the rights, duties or obligation of this Agreement without such consent is void.
In its bid, NCR struck through the word "Customer" and inserted the word "parties."
Site Rules and Regulations
Page 23 of the ITB stated that:
The Contractor shall use its best efforts to assure that its employees and agents, while on the State's premises, shall comply with the State's site rules and regulations.
The NCR bid in its attachment to the contract, under the heading "The Rules and Regulations," provided that "Execution of a contract by NCR is contingent upon NCR's review of the State's site rule and regulations."
REVIEW OF THE UNISYS BID
As stated earlier, the Unisys bid was found to be responsive by the evaluation committee.
Unisys agreed to all the performance mandatories of the ITB.
The Unisys bid did not contain any deviations from the ITB and was consistent with all the terms and conditions of the ITB.
Bid?
ISSUE
Whether the bids of Unisys and NCR were responsive to the Invitation to
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the
subject matter of, and the parties to, this case. Sections 120.53 and 120.54, Florida Statutes.
Before addressing the merits of this case, two issues which have been raised by the parties need to be addressed: (1) The standing of the parties and
(2) the testimony of Ms. Harriet Parker.
Standing
At the outset of the hearing, Unisys objected to NCR's ability to present evidence that the Unisys bid is nonresponsive. The issue of the responsiveness of Unisys was raised by NCR in the prehearing stipulation filed in this case.
Initially, it should be noted that Unisys as the second lowest bidder has standing to bring the protest, since it is adversely affected by HRS's proposed decision. NCR, as the proposed winning bidder, has standing, since its substantial interests are subject to determination in the proceeding. See, S. Kirkland, Standing in Bid Protests, Vol. 62, No.7 Florida Bar Journal 41 (1988) and cases cited therein.
Unisys argues that if it can show that NCR's bid is nonresponsive, then NCR is a "non-bidder" and lacks standing to challenge the Unisys bid. Additionally, Unisys argues that NCR failed to mention the issue of the responsiveness of Unisys' bid in its Petition to Intervene. NCR, on the other hand, argues that in order for Unisys to have standing in this case, Unisys must show that it is a responsive bidder.
Both parties rely on Westinghouse Electric Corporation v. Jacksonville Transportation Authority and MATRA Transport, S.A., 491 So.2d 1238 (Fla. 1st DCA 1986). In Westinghouse, the invitation to bid asked for a priced proposal. Westinghouse submitted a box containing a letter stating that it could not submit a responsive proposal and making a different proposal. The court determined that, as a non-bidder, Westinghouse lacked standing.
This case does not involve non-bidders. Both NCR and Unisys submitted timely bids to HRS. Therefore, Westinghouse is not controlling here. The issue here concerns the responsiveness of the bids, not whether there is a bid. Alternatively, if a nonresponsive bidder is the equivalent of a non-bidder under Westinghouse, then, in this case, the issue of standing is merged with the overall issue in this case, that is, the responsiveness of the bids. If either the NCR bid or the Unisys bid is found to be nonresponsive, the nonresponsive bidder loses the case and also its standing. If both bids are found to be nonresponsive, then HRS should rebid the contract, or give notice of intent to award the contract to the next lowest responsive bidder.
The analysis which Unisys proposes be followed, i.e., that if it is successful in showing that NCR is nonresponsive, the case is over, can lead to an absurd result. For example, two bidders can submit proposals which are
identical, except for the cost information. The agency then proposes to award the contract to the lowest bidder and the other bidder protests alleging that the lowest bidder is nonresponsive. Under Unisys' analysis, if the protestant is successful, the contract would be awarded to the high bidder who submitted a bid identical to the low bidder's nonresponsive bid.
Unisys also challenges the timeliness of NCR's raising the issue of the responsiveness Unisys' bid. In most instances, intervenors are limited to the issues raised by the original parties. However, NCR, being the proposed winning bidder is not a typical intervenor. NCR is more like an original party, since its interests may be greater than HRS's. Therefore, it can raise issues not raised by the original parties. Finally, in the context of the expedited treatment given bid cases, NCR timely raised the issue of Unisys' responsiveness.
Testimony of Harriet Parker
Ms. Harriet Parker was the HRS employee who drafted the ITB and appointed the evaluation committee. At the hearing, Ms. Parker was called to testify by Unisys. She was not qualified as an expert. Both NCR and HRS objected to the admissibility of any opinion testimony offered by Ms. Parker relating to the significance of any differences between the NCR bid and the ITB. In their proposed recommended orders NCR and HRS restate their objection. Also HRS would like Ms. Parker's testimony to be discredited because of bias.
In preparing this Recommended Order, I have not relied on any opinion testimony which might have been given by Ms. Parker. However, her testimony as to why certain items were in the ITB and their importance to HRS is entirely proper, and to that extent, her testimony has been used in the preparation of this Recommended Order. HRS's attempt to discredit her testimony was unsuccessful.
Standard for Review and Burden of Proof
HRS and NCR argue that the standard for review in this proceeding is whether the actions of HRS in proposing to award the bid to NCR were arbitrary and capricious. This standard, however, was rejected in Capeletti Brothers v. State Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983), where the court stated:
Capeletti also contends that the hearing officer erred in not imposing upon Bergeron the burden at hearing to prove that DGS' 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 Const. Co. v. Department of Transp., 361 So.2d 172, 176 (Fla. 1st DCA 1978); McDonald
v. Department of Banking & 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.
Therefore, this type of hearing is de novo in nature, with some limitations.
For example, a bidder should not be allowed to present evidence which would change its bid. See, Harry Pepper & Associates, Inc. v. The City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2nd DCA 1977); Rule 13A-1.002(11), Florida
Administrative Code. Also, the responsiveness of the bid is to be determined as of the time the bids are opened and not as of the time of the hearing. Rule
13A-1.001(13), F.A.C. Finally, the decisions made by the agency should be given some deference, since the agency is awarded, "wide discretion in soliciting and accepting bids for public improvement, and its decisions when based on an honest exercise of its discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree." Liberty County
v. Baxter's Asphalt and Concrete, Inc., 421 So.2d505, 507 (Fla. 1982).
In this case, Unisys, being the protestant, has the burden of proving, by a preponderance of the evidence, that the NCR bid is nonresponsive under the applicable statutes and rules, and under the terms of the ITB. By the same token, NCR, being the party challenging the Unisys bid, has the burden of proving that the Unisys bid is nonresponsive.
Applicable Law
Section 287.012(7), Florida Statutes, defines the term "Invitation to bid" to mean:
a written solicitation for sealed competitive bids with the title, date, and hour of the public bid opening designated and specifically defining the commodity, group of commodities, or services for which bids are sought. It includes instructions prescribing all conditions for bidding and shall be distributed to all prospective bidders simultaneously. The invitation to bid is used when the agency is capable of specifically defining the scope of work for which a contractual service is required or when the agency is capable of establishing precise specifications defining the actual commodity or group of commodities required.
In Systems Development Corp. v. Department of Health and Rehabilitative Services, 432 So.2d 433, 434 (Fla. 1st DCA 1982), the court explained the difference between an ITB and a request for proposals (RFP) as follows:
Typically, an [ITB] is rigid and identifies the solution to the problem. By definition, the invitation specifically defines the scope of the work required by soliciting bids
responsive to the detailed plans and specifications set forth. Section 287.057(1)(a) and (2), as amended. On the contrary, an RFP is flexible, identifies the problem, and requests a solution. Consideration of a response to an [ITB] is controlled by cost, that is, the lowest and best bid, whereas consideration of an offer to an RFP is controlled by technical excellence as well as cost. (Footnote omitted.)
See also Section 287.012(11), Florida Statutes (definition of RFP).
An ITB, however, is not so rigid that some irregularities contained in a bid cannot be waived. Rule 13A- 1.002(10), Florida Administrative Code, provides:
Right to Waive Minor Irregularities--The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid/proposal. A minor irregularity is a variation from the invitation to bid/request for proposal terms and conditions which does not affect the price of the bid/proposal, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency.
Variations which are not minor can not be waived.
DISCUSSION
Before embarking on a specific review of the differences between the bids and the ITB, a few overall comments are in order. First, this case involves an invitation to bid and not a request for proposal. NCR argues that this case involves a hybrid form of bidding procedure involving elements of both an invitation to bid and a request for proposal. This hybrid bidding procedure, however, does not appear to be recognized under Florida law. Chapter 287, Florida Statutes, only recognizes invitations to bid and requests for proposals. Also, while HRS debated whether to proceed under an ITB or a request for proposal, it made a clear choice to proceed under an ITB and produced a fairly rigid document. Therefore, the bids in this case will be evaluated as what they are -- bids in response to an invitation to bid.
Second, the review committee members did not think that they would have the final decision on the award of the contract. In some instances, the committee members realized that they did not have the expertise to make the required decisions and assumed that these decisions would be made later by others. Therefore, while one should defer to the agency's expertise when it makes some decisions, no deference is warranted in those instances where the agency's actions are not based on its expertise.
Third, the parties properly have couched their arguments in terms of whether the deviations from the ITB were material deviations or minor
irregularities. In doing so, however, they appear to have overlooked the full meaning of those terms. The ITB states that a material deviation is one where "the deficient response is not in substantial accord with this (sic) Invitation to Bid requirements, provides an advantage to one bidder over other bidders, has a potential significant effect on the quantity or quality of items bid, or on the cost to the State." (emphasis in original). The parties have concentrated their efforts on the last three quoted phrases and appear to have overlooked the first phrase, "the deficient response is not in substantial accord with this (sic) Invitation to Bid requirements." Also, as provided by Rule 13A-1.002(10), Florida Administrative Code, the agency can waive minor irregularities. Before it can do so, however, the bid needs to be an "otherwise valid bid." Id.
Review of the NCR Bid
The NCR bid contains a number of deviations from the requirements of the ITB. As further discussed below, some of the deviations are material deviations which, under the terms of the ITB, cannot be waived. Also, some of these deviations are not "minor irregularities" as that term is defined in Rule 13A- 1.002(10), Florida Administrative Code. Finally, the NCR bid is not a proper response to the ITB since it envisions further negotiations with HRS prior to a contract being executed.
The addition of the words "as per Bidder's proposal" to the thirteen items of the Supplemental Bid Sheets can only mean that NCR agreed to those items as they had been changed in the NCR bid. The argument that NCR was proposing options, additions or changes which HRS could accept or reject in the final contract is without merit. If NCR was proposing options, it went about it in the wrong manner. The addendum to the ITB issued on March 1, 1988 clearly stated that while options were acceptable, they needed to be clearly identified in a separate section of the bid. Also, the ITB clearly stated that the bidder's response "shall be considered the bidder's formal offer." HRS can either accept the entire NCR bid or can declare it invalid or nonresponsive; it cannot accept or reject portions of the bid as it chooses. See also, Rule 13A- 1.001(19)(b), F.A.C.
Limitations of Remedies
The first two changes made to the Limitation of Remedies section of the ITB are minor irregularities and can be waived, since they serve to clarify the language and enhance HRS's position. See, Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986). The third change, where NCR inserted the words "up to the value of the Agreement at the time this Agreement is terminated," is not a minor irregularity, since it adversely impacts the interests of HRS and cannot be waived. Under this last change, the liability of NCR to the State due to NCR's tortious conduct goes from unlimited liability in the ITB to zero under the NCR bid.
Bid Bond
The bid bond submitted by NCR was not in compliance with the ITB, since it left the period of time to enter into a contract "to be negotiated." The ITB required a bid bond which would be forfeited to the State if the winning bidder did not enter into a contract within 10 days after notification of the award. This deviation is material because it is not in substantial accord with the ITB and it adversely impacts the interests of the agency, since HRS will not be able to enforce the bond if NCR refuses to enter into a contract within ten days. Additionally, the submission of the bid bond with the language "to be
negotiated" is evidence that NCR envisioned further negotiations, in contravention of the ITB and the applicable rules, which do not encompass further negotiations.
Invoices
The ITB required that invoices be submitted with a certain level of detail and that they "include a detail list of cost for parts replaced listed on each malfunction incident report." The NCR bid struck the language requiring the detail list of cost for parts and provided that NCR agreed to conform with payment plans under previous agreements between NCR and the State of Florida Comptroller's office. The detail list of costs was important enough to the person who drafted the ITB that she made it a mandatory requirement of the ITB. As such it could not be waived, even though the committee members did not think it was important. This change is not a deviation from a mandatory requirement, but instead it is the total removal of a mandatory requirement. For HRS to now determine that it is not an important item would be unfair to the other bidders. Also, the actions of the evaluation committee in accepting NCR's proposal to conform to payment plans established with the Comptroller's office as responsive are arbitrary, since the committee members did not know what the payment plans were and did not know if they would serve the interests of HRS.
Configurations
Under the terms of the ITB, machine features that are not included in the configuration set forth in the ITB are not covered by the maintenance contract resulting from the ITB. Therefore, to the extent that the NCR bid limited the configurations to cover less than those stated in the ITB, HRS would receive less service than the ITB asked for. This is clearly a material deviation, since the evidence shows that some items covered under the ITB, e.g., hard disks for certain microcomputers, are not covered by the NCR bid.
Cancellation
The ITB provided that HRS reserved the right to cancel the entire contract, or portions thereof, upon thirty days written notice. The NCR bid provided for sixty days written notice with the opportunity to cure any problems. The evaluation committee felt this was an issue for others to decide. The NCR proposal conflicts with the clear terms of the ITB and adversely impacts HRS's interests, since it removes HRS's ability to cancel the contract, without cause, simply by giving thirty days' notice.
Engineering Changes
The ITB required the contractor to install, as soon as possible, all engineering changes to equipment covered by the contract which the manufacturer of the equipment considers mandatory. NCR's bid provided that engineering changes deemed necessary by NCR would be performed during the prime shift of maintenance. This change shifts the determination of what is necessary from the manufacturer to NCR. The evaluation committee found NCR's proposal to be responsive by assuming that, if the manufacturer deemed a change necessary, NCR would do the same. The problem with the assumption, however, is that it is not based on anything included in the NCR bid. Under NCR's bid, NCR can refuse to make an engineering change deemed necessary by the manufacturer, if NCR does not deem the change to be necessary. This is a material deviation, since it may result in HRS receiving less service than is required by the ITB.
Malfunction Incident Reports
The ITB required a very specific written malfunction incident report upon the completion of each maintenance call. The NCR bid described NCR's ability to provide monthly comprehensive service reports and stated that "Reporting procedures will be jointly defined by NCR and HRS. The evaluation committee determined that this item of NCR's bid was responsive because it did not consider the reports to be important and assumed that HRS would receive the information it needed under the jointly defined procedures. In reality, NCR's proposal is an option to be considered by HRS. As an option, it should have been clearly identified in a separate section of the bid. Also, if HRS did not consider this item to be important, it should not have made it a mandatory requirement of the ITB. By leaving this item to be negotiated in the future, NCR's bid failed to meet the mandatory requirements of the ITB. Finally, this is another item in the NCR bid which indicates that the NCR bid was not a proper bid, since it envisions future negotiations.
Principal Period of Maintenance
The ITB defined the principal period of maintenance in three separate places, using slightly different language, as 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding State holidays. The NCR bid also dealt with the principal period of maintenance in three separate places, using different language in each and conflicting language in two places. Therefore, it is difficult to determine what NCR's bid means. If NCR and HRS were to enter into a contract based on the ITB and the NCR bid, NCR would be bound by the terms of the ITB, since the conflicting language would be interpreted against NCR. Therefore, this item can be considered a minor irregularity and can be waived.
Response Time, Loaner Equipment and Penalties
The ITB provided specific time frames for the delivery of services. The contractor needed to respond to a call within four hours in metro locations and six hours in non-metro locations. Once at the site, the contractor needed to fix the equipment or provide an equivalent substitute device (loaner) within six hours after arriving on site. Failure to comply with these requirements would result in mandatory penalties being imposed. NCR, in its bid, did not agree to these provisions but set forth, in detail, NCR's procedures for response time and problem resolution, and agreed to entertain future negotiations relative to credits and penalties should NCR fail to meet its own procedures. The NCR procedures differ from those in the ITB in at least three material respects. First the NCR bid sets forth as average response commitment of six hours for non-metropolitan sites. The ITB called for six hours, not an average. Second, the ITB called for specific penalties for failure to comply with its terms and the NCR bid called for future negotiations. Third, the ITB provided for the contractor to provide loaner equipment if a piece of equipment could not be fixed within six hours. On this item, the NCR bid stated that loaner equipment is not generally provided but that periodically loaner equipment may be used to maximize system uptime.
The evaluation committee bound that NCR's proposal to negotiate a system of penalties and credits made sense, since the committee believed that the penalties set forth in the ITB were too low and would have little impact on the contractor. Also, the committee believed that, under the NCR bid, NCR would provide loaner equipment within six hours.
In reality, the NCR bid proposes materially different procedures than those called for in the ITB. It does not provide for penalties, and leaves the decision of when loaner equipment will be used up to NCR, as opposed to providing it within six hours. Therefore, these provisions conflict with the ITB and the bid should be rejected.
If HRS now determines that the system of penalties in the ITB is too low and that it would prefer to negotiate a different system, then HRS needs to make that option available to all bidders.
Probationary Period Evaluation
The NCR bid added language to five of the criteria to be used to evaluate the contractor's performance during the initial six-month term of the contract. The changes made by NCR conform the ITB's evaluation criteria to the provisions in NCR's bid. These changes are further evidence that NCR was not agreeing to the requirements of the ITB for the items covered by each of the amended evaluation criteria. For example, one of the criteria is "Are malfunction incident reports received on a timely basis?" NCR's bid added the following language to the criteria: "Compliance defined in Reporting section of Bidder's proposal." This change is a clear indication that NCR, in its bid, was not agreeing to provide the reports called for in the ITB, but was agreeing to jointly negotiate reporting procedures.
Implementation of Contract
The NCR bid contained an implementation schedule which would result in service not being provided to any equipment for five weeks after award of the bid and to some equipment until nine weeks had passed. The ITB appears to contemplate that service be provided immediately, since it provides for payment of monthly maintenance charges beginning with the execution of the contract.
The evidence in this case, however, is insufficient to establish whether this delay is a material deviation.
Execution of Contract
Under the terms of the ITB, the winning bidder had ten days to execute the contract; the contract would consist of the contract language provided in the ITB, the provisions of the ITB and the successful bidder's bid. The NCR bid left the date of execution of the contract to be determined in the future after further negotiations of the terms and conditions of the contract. NCR's proposal is a material deviation since it is not in substantial accord with the ITB requirements. See also, Rule 13A-1.001(19)(b), F.A.C.
Assignment of Contract
The ITB contained a provision in the contract language which stated that "This Agreement is not assignable without the prior written consent of the Customer." The NCR bid struck the word "Customer" and inserted the word "parties." No testimony was presented on this issue and it appears to be a minor irregularity which can be waived. What benefit, if any, NCR gained from this change is not discernible.
Site Rules and Regulations
The ITB provided that the contractor shall use its best efforts to assure that its personnel complied with the State's site rules and regulations.
The NCR bid made the execution of a contract contingent on NCR's review of the State's site rules and regulations. This language is further evidence that NCR did not intend for its bid to result in the formation of a contract, as called for in the ITB.
Review of the UNISYS Bid
NCR argues that the Unisys bid is nonresponsive for two reasons. One, that Unisys did not agree to locate a contract liaison in Jacksonville.
Two, that Unisys' parts inventory will not allow Unisys to meet the ITB's requirements that parts be airfreighted within twenty (24) hours and that timely response be achieved 95 percent of the time. The evidence in this case, however, does not support NCR's argument. The evidence shows that Unisys agreed to all the performance mandatories of the ITB and complied with all its requirements.
CONCLUSION
HRS should reject the NCR bid as nonresponsive because it contains material deviations from the ITB. Also the NCR bid is not a true bid, since it contemplates and provides for future negotiations between NCR and HRS in violation of the explicit provisions of the ITB and of the rules applicable to this proceeding.
The Unisys bid is the next lowest responsive bid and Unisys should be awarded the contract.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that HRS issue a final order finding NCR's bid to be nonresponsive and awarding the contract under the Bid No. VH-2 to Unisys.
DONE and ENTERED 26th day of July, 1988, in Tallahassee, Florida.
JOSE A. DIEZ-ARGUELLES
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 26th day of July, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-22525Bid
The parties submitted proposed findings of fact which are addressed below.
Paragraph numbers in the Recommended Order are referred to as "RO " UNISYS' Proposed Findings of Fact
Proposed Finding
of Fact Number Ruling and RO Paragraph
1.-14. Accepted.
15.-18. Accepted as set forth in RO34.
Accepted.
Rejected as a conclusion. But see Conclusions of Law section of this Order.
21.-45. Accepted.
46. Rejected as irrelevant.
47.-52. Accepted.
53. Accepted. See Conclusions of Law section of this Order.
54.-58. Accepted.
59. Accepted except for last two phrases which are rejected. The evidence is inconclusive on whether NCR would have an advantage over other bidders and whether the price of the contract was affected by this provision.
60.-63. Accepted.
64.-65. Rejected. The evidence is inconclusive as to the effect the NOR bid's language would have. See Conclusions of Law section of this Order.
66.-69. Accepted.
Rejected. Since, there is no way of knowing the result of the negotiations, one cannot determine if this would result in an unfair advantage or would have an economic impact.
Rejected. Delay can occur in any contract. Under the ITB, undue delay would be penalized.
72.-75. Accepted.
Rejected as irrelevant.
Rejected as irrelevant. The statement may be true, but that is not the situation here.
78.-79. Accepted.
80. First phrase, rejected. NCR did not agree to anything. Second phrase, accepted.
81.-83. Accepted.
84. Rejected as a conclusion and an assumption, since no one knows what the jointly defined procedures would be.
85.-86. Accepted.
Accepted as what the committee felt. However, the provisions of the NCR bid dealing with additional equipment are consistent with the ITB.
Rejected as contrary to facts found.
89.-90. Accepted.
Accepted. See Conclusions of Law section of this Order.
Accepted.
Accepted. See Conclusions of Law section of this Order.
94.-97. Accepted.
98. First two sentences accepted. Third sentence rejected; the evidence does not show what is included in the payment plans with the Comptroller.
99-102. Accepted.
Rejected. The evidence is inconclusive on whether this item affected the price of the bid.
Rejected as irrelevant.
Rejected as irrelevant.
Accepted.
Rejected as not supported by the evidence. The NCR bid states that NCR would prefer substitute language.
108.-112. Accepted to the extent they restate the ITB and the NCR bid. However, the implicit conclusion that this is at variance with the ITB is rejected as not supported by competent evidence.
113.-119. Accepted.
120. The introductory paragraph is rejected as a conclusion of law. Subparagraphs A. through are accepted.
HRS's Proposed Findings of Fact Proposed Finding
of Fact Number Ruling and RO Paragraph
1.-7 Accepted
Accepted.
Accepted.
True but unnecessary.
Accepted generally.
Accepted.
Accepted generally.
Accepted generally.
Rejected as not supported by the weight of the evidence.
First sentence accepted. Second sentence is true as to what the evaluation committee believed. However, the overall service to the State is affected by the NCR bid.
True that this is what the evaluation committee determined, believed and concluded. However, the findings of fact made in this RO differ from what the evaluation committee believed.
Rejected as contrary to the weight of the evidence.
Rejected as contrary to the weight of the evidence.
Rejected as contrary to the weight of the evidence.
Rejected as contrary to the weight of the evidence.
Rejected. While the cost of the services may be the same, less services are provided for in the NCR bid than are called for in the ITB.
Rejected as contrary to the weight of the evidence.
Rejected as contrary to the weight of the evidence.
Rejected. HRS may wish to accept the NCR bid; if it does so, however, it will agree to a different agreement than called for in the ITB. There can be no meeting of the minds when items are left to be negotiated and where the evaluation committee members did cot understand all the provisions of the NCR bid.
Rejected. See RO41.
Rejected as irrelevant. See also Conclusions of Law.
Rejected as irrelevant.
Supported by competent evidence, but unnecessary to the decision reached. Also, the fact that this was the first ITB that Ms. Parker ever prepared does not mean that HRS can now disregard its mandatory provisions.
Rejected as irrelevant.
NCR's Proposed Findings of Fact
Proposed Finding
of Fact Number Ruling and RO Paragraph
1-6. Accepted
Subparagraphs a) through s) are accurate representations of what the ITB contained. However, the first phrase to the effect that the ITB recognized and incorporated concepts of variability is rejected. The ITB was rigid and precise.
Accepted.
Accepted.
Accepted.
First sentence, true but irrelevant. Second sentence accepted. RO2. Third sentence, true but irrelevant. Fourth sentence rejected; the ITB is neither ambivalent nor flexible. Fifth sentence rejected as irrelevant and not supported by competent evidence.
Accepted.
Accepted.
Supported by competent evidence but unnecessary to the decision reached.
Supported by competent evidence but unnecessary to the decision reached.
First two sentences rejected as contrary to the weight of the evidence. Third and fourth sentences rejected as argument and conclusions.
First three sentences are accepted as what they are: the evaluation committee's views, beliefs and understandings. Fourth sentence is rejected. The ITB reserved the right "to reject any and all bids or waive any minor irregularity or technicality in bids received." It did not reserve the right to waive any proposed additions or changes which are unacceptable, regardless of how material they may be. Also, the ITB did not provide for further negotiations prior to contract finalization.
Fourth sentence rejected; the evidence is inconclusive on what the NCR language means. Rest of paragraph accepted.
First, second and fourth sentences accepted. Third sentence rejected as contrary to the weight of the evidence and the words of the ITB. Fifth sentence rejected as irrelevant; while the NCR proposal may be more beneficial to the State it is inconsistent with the ITB.
First, second, fourth and seventh sentences accepted. Third sentence rejected as irrelevant. Fourth sentence accepted. Fifth sentence rejected as irrelevant; while NCR's view may be useful, the ITB did not contemplate it. Sixth sentence accepted, but this only refers to controlling and installing the engineering change and not to deciding whether the change should be made.
First, and seventh sentences accepted. Second sentence rejected as irrelevant. Third through sixth sentences reflect what NCR proposed, but this is contrary to the requirements of the ITB. Seventh sentence rejected as argument.
First three sentences accepted. Fourth sentence rejected as argument.
First and second sentences accepted, noting that the four week training period ended eight weeks after the notice of award. Third sentence accepted, but ITB appeared to contemplate immediate service under the contract since it provided for payments to begin upon execution of the contract. Fourth sentence accepted, but the ITB language speaks to ongoing training of the contract and not training specific to this contract. Fifth
sentence accepted. Sixth sentence accepted; however, it is unclear whether the ITB contemplated a nine week delay for full implementation of the contract.
First, third and sixth sentences accepted. Second, fourth and fifth sentences rejected as contrary to the weight of the evidence.
Last sentence rejected as not supported by the evidence. The evaluation team considered the malfunction incident reports unimportant and did not know what the existing payment plans with the Comptroller's office were; therefore, the committee could not know if these plans met HRS's needs. Rest of paragraph accepted, except to note that there is no evidence to show that the payment plans with the Comptroller's office would meet HRS needs, and that, while HRS may now decide that parts costs are not needed, this was a mandatory requirement of the ITB.
Rejected as irrelevant. If NCR or any other bidder had a problem with the ITB they could have asked for clarification or could have challenged the ITB for restricting competition.
Rejected as irrelevant.
21.c. First and second sentences accepted. Third, fourth and fifth sentences irrelevant; NCR could have asked for clarification or challenged the ITB. Fourth sentence irrelevant. Sixth sentence rejected as irrelevant. Seventh sentence irrelevant and not supported by competent evidence; it is impossible to now determine what NCR would have bid.
Accepted.
Accepted.
The first sentence being the one following the quoted material, which is accepted. First sentence rejected as being contrary to the weight of the evidence. Second sentence accepted. Third sentence rejected as irrelevant; this is the number of calls made in the past. Fourth and fifth sentences rejected as assumptions. Fifth sentence accepted.
First, second and third sentences accepted. Fourth and fifth sentences rejected as irrelevant; while these statements may be true, the NCR bid's provisions conflict with the ITB.
First sentence accepted. Rest of paragraph rejected as argument and conclusion.
First and second sentences accepted. Third sentence rejected as irrelevant. Fourth sentence rejected; while the addendums issued to the ITB maintained February 8th as the last day for submissions and inquiries, the ITB's general conditions stated that inquiries could be sent in 10 days prior to bid opening. The limitation of remedies form was sent to bidders on March 1, 1988; bids were not due until March 29, 1988. Fifth through ninth sentences accepted. Tenth sentence rejected; the language in the NCR bid is clear and does limit NCR's liability. Eleventh and twelfth sentences rejected as irrelevant. Thirteenth sentence rejected; the NCR language does not refer to the value of the remaining contract but to the value at the time of termination, which is zero at all times.
Rejected as not supported by competent evidence. The evidence is insufficient to determine whether the person was licensed at the time the bid bond was countersigned.
Rejected as irrelevant.
Rejected as a recitation of testimony. The evidence shows that Unisys agreed to the ITB provisions requiring a Jacksonville office.
Rejected as irrelevant. Unisys agreed to the provisions of the ITB and will be penalized for failure to comply with them.
Rejected as irrelevant.
First sentence accepted. Second sentence rejected; this is clearly a proper option under the terms of the ITB.
Rejected. See ruling on proposed finding of fact 21e.
Rejected as irrelevant.
COPIES FURNISHED:
Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson,
Allison & Kelly
804 First Florida Bank Building Tallahassee, Florida 32301
Charles R. Holman, Jr., Esquire Unisys Corporation
4151 Ashford, Dunwoody Road, N.E. Atlanta, Georgia 30319
Elaine New, Esquire Assistant General Counsel, HRS 1323 Winewood Boulevard Building I, Room 407
Tallahassee, Florida 32399-0700
Gary P. Sams, Esquire Cheryl G. Stuart, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314
Robert J. Beggs, Esquire NCR Corporation
1700 South Patterson Blvd. Dayton, Ohio 45479
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Miller, Acting General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
| Issue Date | Proceedings |
|---|---|
| Jul. 26, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 12, 1988 | Agency Final Order | |
| Jul. 26, 1988 | Recommended Order | Petitioner, as next lowest responsive bidder, should be awarded the contract because the lowest bid was non-responsive and violated the Invitation To Bid's provisions. |
KELLY SERVICES vs. BAY COUNTY SCHOOL BOARD, 88-002525BID (1988)
IKON OFFICE SOLUTIONS, INC. vs PINELLAS COUNTY SCHOOL BOARD, 88-002525BID (1988)
IKON OFFICE SOLUTIONS, INC. vs PINELLAS COUNTY SCHOOL BOARD, 88-002525BID (1988)
K AND M PINE STRAW vs DEPARTMENT OF CORRECTIONS, 88-002525BID (1988)
FIRST COMMUNICATIONS, INC. vs DEPARTMENT OF CORRECTIONS, 88-002525BID (1988)
