STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAINBOW GRAPHICS TECHNOLOGY, INC., )

)

Petitioner, )

)

vs. ) CASE No. 89-4833BID

) UNIVERSITY OF SOUTH FLORIDA, )

)

Respondent, )

)

and IMAGE RESOURCES, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 5, 1989, in Tampa, Florida.

APPEARANCES

For Petitioner: Brian E. Johnson, Esquire and

Robert F. Guthrie, Esquire 7190 Seminole Boulevard Seminole Professional Centre Seminole, Florida 34642

For Respondent: Justin R. Lumley, Esquire

Associate General Counsel Office of the General Counsel University of South Florida 4202 Fowler Avenue

Tampa, Florida 32620-6250

For Intervenor: Eric Smith

Image Resources, Inc.

511 West Bay Street, Suite 303A Tampa, Florida 33606

STATEMENT OF THE ISSUE

Whether or not Respondent properly awarded Image Resources, Inc., the bid for computer graphics equipment as set forth in bid No. 9-428-D.

PRELIMINARY STATEMENT

During February 1989, the University of South Florida Health Service Center (USF) and its purchasing agent, Tom DeBella, prepared what purported to be a request for proposal (RFP) for computer graphic equipment for its Health Service

Center Media Center. The RFP consisted of a general cover sheet, instructions on submitting the proposal, Appendix A entitled Objective and Appendix B entitled Proposed Software and Hardware and a final tabulation sheet. It was stipulated at the hearing that the proposal was not an Invitation to Bid within the contemplation of Chapter 287.12(12), Florida Statutes, (1988 Supp.).

Seventeen requests for proposal were mailed to various offerers and the proposals were initially scheduled to be opened on June 9, 1989. At that time, Respondent had received responses from only two of the seventeen offerers The opening was extended to June 16, 1989 to provide another offerer an opportunity to prepare a proposal.

Proposals were opened on June 16, 1989, tabulated and posted on August 10, 1989 whereupon a timely notice of intent to protest was filed by Petitioner pursuant to Section 120.53(5), Florida Statutes, (1987). Petitioner timely filed a petition for formal hearing which was submitted to USF, Department of Purchasing, and a formal hearing was scheduled and held on October 5, 1989.

James W. Mercer, district manager, Rainbow Graphics Technology, Inc., testified on behalf of Petitioner and Tom DeBella, purchasing agent, and Frank

1. Ribaudo, director, USF Health Service Center Media Center, testified on behalf of Respondent. Eric Smith of Image Resources, Inc., testified on behalf of Intervenor.

   
   

   Respondent's Exhibits 1 through 9 were received in evidence and Petitioner's Exhibits A, B and C were received.

   
   

   FINDINGS OF FACT

   
   

   1. On February 20, 1989, Petitioner's district manager, James W. Mercer, met with USF agents Frank Ribaudo and Renee Clements, for the purpose of discussing the needs of the Learning Resource Center's proposed new graphics work station.

      
      

   2. On March 6, 1989, Mercer delivered to Ribaudo the Petitioner's hard copy proposal for the graphics work station which was considered by Respondent in preparing its RFP. In May 1989, the University of South Florida (USF) issued a RFP for a computer graphics system for the Learning Resource Center of the Health Sciences Center of the University, proposal No. 9-428-D.

      
      

   3. On May 26, 1989, Petitioner received a copy of USF's RFP which included, among other things, Appendix A, a verbatim copy of the hard copy proposal as prepared and submitted by Petitioner in early March, 1989. Included with the RFP was also an Appendix B which was prepared by another offerer. Appendix B had the appearance of a "shopping list" for various computer equipment for USF's graphics work station.

      
      

   4. Petitioner, based on what it construed as an inconsistency between Appendix A and B, called Tom DeBella for clarification and was told that the proposal should be prepared according to the specifications called for in Appendix A which took precedence over Appendix B to the extent there were any inconsistencies between the two appendices. The effect of Petitioner's conversation with DeBella removed all inconsistencies between the appendices.

      
      

   5. Petitioner delivered its RFP to the purchasing agent at USF on June 9, 1989, in a timely fashion. On June 10, 1989, an addendum no. 1, extending the date to respond to the RFP until June 16, 1989, was prepared by Respondent and

      delivered to the various offerers. Petitioner notified Respondent on June 16, 1989, that its RFP, as originally submitted on June 9, 1989, should be considered as its final offering. Respondent received proposals from three offerers, Rainbow Graphics Technology, Inc., Image Resources, Inc., and Blumberg Communications, Inc. On June 16, 1989, the bids were tabulated and the documentation of the three offerers were presented to a committee for evaluation. The committee met and on July 5, 1989, drafted a memo which was delivered to the purchasing department stating its recommendation to accept the system offered by Intervenor, Image Resources, Inc.

      
      

   6. The three offerers submitted responses to the RFP as follows:

      
      

      Image Resources, Inc., submitted a timely response for the sum of $79,860.00; Blumberg Communications, Inc., submitted a timely response for the sum of $94,075.00 and;

      Rainbow Graphics Technology, Inc., timely submitted its response for the sum of

      $97,484.

      
      

   7. In preparing the RFP, Frank Ribaudo attended various seminars where computer graphics equipment was displayed, worked with various vendors and utilized the knowledge gained from the liaison with the vendors, the seminars and his contact person at USF's medical center, Dr. Kaufman. Prior to submitting their proposals, the three vendors responding to the RFP were invited to the University to review the facility and the university's layout to determine exactly what specific graphic system would be needed to best satisfy USF's requirements.

      
      

   8. Of the three vendors responding to the RFP, Petitioner submitted the highest response.

      
      

   9. Intervenor, Image Resources, Inc., was the lowest offerer of the three vendors responding to the RFP.

      
      

   10. All of the responses were evaluated by the Learning Resources Center HFC Committee in accordance with the procedures of Chapter 287.062(1), Florida Statutes. USF, following review by its evaluation committee, accepted the response submitted by Intervenor as the lowest responsive offer.

       
       

   11. The RFP called for an integrated system capable of industrial quality 3/4" video output. Specifications in the RFP also called for optical storage as being critical to management of TARGA files. The specifications required that hard disk performance of 13 MS and optical storage were critical to the management of TARGA files.

       
       

   12. Petitioner submitted a proposal providing a hard disk system with a speed of 1 MS which exceeds the specifications called for in the RFP.

       Petitioner also included a Shinko ChC-345 printer which is not postscript compatible and does not have an internal controller with a microcompressor and 8 MB RAM as specified in Appendix A.

       
       

   13. Intervenor's proposed printer is postscript compatible with the software package included in its proposal. Specifications in the RFP require a video adapter capable of 32-BIT color or PAL and Intervenor's proposal is capable of handling 32-BIT color.

   14. Intervenor is an authorized dealer to handle the Matrix instruments film recorder and has offered to serve and maintain the equipment it proposed for one year, a substantially longer period than the 90 day warranty offered by the manufacturer, Matrix.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.53, Florida Statutes.

       
       

   16. The authority of the Respondent is derived from Section 120.53, Florida Statutes.

       
       

   17. Petitioner, an unsuccessful proposer, has properly complied with all procedural requirements for a protest hearing. It now bears the burden to establish that it is entitled to the award. See, Florida Department of Transportation vs. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to carry that burden. A review of the subject proposal and the appendixes attached thereto reveal that there was a minor discrepancy in the specifications for the three-quarter inch videotape device which was not restated in paragraph 5, titled Accessories in Appendix B. The effect of this ambiguity was clarified by Respondent in a telecommunique with Petitioner. Moreover, consideration was given to what advantage, if any, Intervenor received from deleting the amount Petitioner included in its bid for the video tape device. After doing so, it is clear that Petitioner's response is still more than $3,000.00 higher than the response of Intervenor. Therefore, Intervenor was not unfairly advantaged by deleting the videotape device from its proposal. Secondly, Petitioner did not seek further verification of what it considered an alleged discrepancy between the specifications in Appendix A and B as required by paragraph 7 of the RFP's general conditions. This is so despite oral instructions from USF's liaison, Frank Ribaudo, that Appendix A shall have precedence over Appendix B in the event of ambiguity. Evidence revealed that based on price considerations, a check of references provided by all offerers and upon reviewing written clarification about certain equipment which Petitioner contends made the proposal of Intervenor nonresponsive, the Respondent properly determined that Intervenor provided the computer graphics system requested in its RFP and that Intervenor could provide the requisite training and follow up service required to offer computer graphic services to its clients within the budgetary constraints USF operated under. No evidence was offered to conclude that the USF acted fraudulently, arbitrarily, illegally or dishonestly. See Florida Department of Transportation vs. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Respondent, the University of South Florida Purchasing Department, enter a final order upholding the award of the bid proposal for the computer graphics system to Image Resources, Inc., and deny Petitioner's request to resubmit this proposal as an Invitation to Bid under Chapter 287.12(8), Florida Statutes (1988 Supp.). 1/

DONE and ENTERED this 12th day of December, 1989, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 12th day of December, 1989.

ENDNOTE

1/ Based on the determination herein that the Petitioner's request that the proposal herein should not be resubmitted, it is not a prevailing party and therefore return of its bond is not proper at this time pursuant to Chapter 287.042(c), Florida Statutes (1988 Supp.).

COPIES FURNISHED:

Brian E Johnson, Esquire Robert F. Guthrie

7190 Seminole Boulevard Seminole Professional Centre Seminole, Florida 34642

Justin R. Lumley, Esquire Associate General Counsel Office of General Counsel University of South Florida 4202 Fowler Avenue

Tampa, Florida 32620-6250

Eric Smith

Image Resources, Inc.

511 West Bay Street, Suite 303A Tampa, Florida 33606

Robert F. Bethea, Esquire HUNTER PATTILLO MARCHMAN

SANDERS & BETHEA, P.A.

243 West Park Avenue Post Office Box 340

Winter Park, Florida 32790

Keith Simmons, Director Division of Purchasing University of South Florida 4202 Fowler Avenue

Tampa, Florida 33620-5900

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA STATE UNIVERSITY SYSTEM

UNIVERSITY OF SOUTH FLORIDA

RAINBOW GRAPHICS TECHNOLOGY, INC.,

Petitioner,

vs. CASE NO. 89-4833BID

UNIVERSITY OF SOUTH FLORIDA,

Respondent.

and

IMAGE RESOURCES, INC.,

Intervenor.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency (educational unit) order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the University of South Florida. A true copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The University of South Florida hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The University of South Florida hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order.

Based upon the foregoing, it is

ADJUDGED, that the request to resubmit the University of South Florida's proposal as an Invitation to Bid under Chapter 287.12(8), Florida Statutes (1988 Supp.) filed by the Petitioner is denied and the award of the University of South Florida Purchasing Department's bid proposal for the computer graphics system to Image Resources, Inc., is upheld.

DONE and ORDERED this 27th day of December, 1989, in Tampa, Florida.

FRANCIS T. BORKOWSKI

President

University of South Florida

By

1. Keith Simmons Director of Purchasing

University of South Florida

COPIES FURNISHED:

Honorable James E. Bradwell Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Brian E. Johnson, Esquire Robert F. Guthrie, Esquire 7190 Seminole Boulevard Seminole Professional Centre Seminole, Florida 34642

Justin R. Lumley, Esquire Associate General Counsel Office of General Counsel University of South Florida 4202 Fowler Avenue

Tampa, Florida 32620-6250

Eric Smith

Image Resources, Inc.

511 West Bay Street, Suite 303A Tampa, Florida 33606

Robert F. Bethea, Esquire

Hunter, Pattillo, Marchman, Sanders & Bethea, P.A.

243 West Park Avenue Post Office Box 340

Winter Park, Florida 32790 053/8912/050

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE DIRECTOR OF PURCHASING, UNIVERSITY OF SOUTH FLORIDA, AND A SECOND COPY, ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY (EDUCATIONAL UNIT) MAINTAINS ITS HEADQUARTERS (MAIN CAMPUS) OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

RAINBOW GRAPHICS TECHNOLOGY, INC.,

Appellant,

v. CASE NO. 90-00257

DOAH CASE NO. 89-4833BID

UNIVERSITY OF SOUTH FLORIDA, and IMAGE RESOURCES, INC.,

Appellees.

/ Opinion filed September 28, 1990.

Appeal from the Director of Purchasing, University of South Florida.

Kelli Hanley Crabb of Battaglia, Ross, Hastings, and Dicus, St. Petersburg, for Appellant.

Debra A. King, Tampa, for Appellee University of South Florida.

PER CURIAM.

Affirmed.

RYDER, A.C.J., FRANK and HALL, JJ., Concur.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

STYLE: Rainbow Graphics Technology Inc. v. University of South Florida

COUNTY: Hillsborough APPELLATE CASE NO: 90-00257 TRIAL COURT CASE NO.:

This cause having been brought to this Court by appeal and after due consideration, the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that further proceedings be had in said cause in accordance with the opinion of this Court and with the rules of procedure and laws of the State of Florida.

WITNESS, the Honorable Jack R. Schoonover, Chief Judge of the District Court of Appeal of the State of Florida, Second District, and the seal of said Court at Lakeland, Florida on this day.

October 16, 1990

William A. Haddad

Clerk, District Court of Appeal of Florida, Second District

Docket for Case No: 89-004833BID

Orders for Case No: 89-004833BID