STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOLID WASTE AND RECOVERY )

SYSTEMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-5854BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on December 19, 1990 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES FOR PETITIONER: W. K. Lally, P.A.

6160 Arlington Expressway

Jacksonville, Florida 32211

FOR RESPONDENT: Perri M. King

Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUES

This is a challenge of the Department of Corrections' decision to reject Solid Waste and Recovery Systems, Inc.'s bid for Invitation to Bid 90-Region- 001R for a recyclable baling machine for Region I.

PRELIMINARY STATEMENT

This cause arose pursuant to the "fast track" procedures established by Section 120.53(5) F.S., which were subsequently waived by the parties with regard to date of hearing, submittal of post-hearing proposals, and entry of this Recommended Order.

Petitioner presented the oral testimony of Barbara Stephens (as an adverse witness), Juanita Frazier and Ted Flood and had 11 exhibits admitted in evidence.

Respondent presented the oral testimony of Bob Sandall and Barbara Stephens, had three exhibits marked and one admitted.

No transcript was provided, but Petitioner's proposed findings of fact filed January 8, 1990 and Respondent's proposed findings of fact filed December 29, 1989 have been ruled on in the appendix to this Recommended Order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. The Department of Corrections (Corrections) initially published an Invitation to Bid (ITB) 90-Region-001 for the provision of a recyclable baling machine which had an opening date and time of 1:00 p.m., August 22, 1989.

   
   

2. Upon opening and evaluation of the bids filed in response to ITB 90- Region-001, Corrections' purchasing and technical staff determined that the specifications for this initial ITB had been drafted too narrowly for them to validly and reasonably compare the bids submitted. This was Corrections' first attempt to meet certain recycling mandates and the agency personnel were initially unfamiliar with all of the machinery available in the marketplace. Lack of technical literature from some bidders was also a problem. In comparing the five bid responses received, it became apparent to Barbara Stephens, Corrections' Purchasing Director, that the specifications she had initially drafted worked against agency interests in that they were so narrow that different models could not be compared. In Ms. Stephens' words, one could not even compare "apples and apples," let alone "apples and oranges." The line item on Page 6 defied comparison and other line items presented significant comparison problems. After a review by Corrections' General Services Specialist Bob Sandall, it was determined that it was to the agency's advantage, as well as advantageous to the competitive bidding process, to rebid on more general specifications instead of specifications solely geared to one single model of one type of baler already owned by the agency, a McDonald single phase baler. For the foregoing reasons, Corrections elected to reject all bids received in response to ITB 90-Region-001 and rebid the item so as to broaden the eligibility base through new specifications, thereby ensuring that more than a single manufacturer could compete while making line item comparisons by the agency possible. Line item comparisons were considered advantageous to all potential bidders and to the agency and essential to a fair competitive bidding process.

   
   

3. Considering purely bottom-line cost, Petitioner Solid Waste was the low bidder on initial ITB No. 90-Region-001 if its mathematical error were ignored and its bid were recorded as $23,960.00 instead of as $35,970.00. There were apparently some other problems with Solid Waste's bid response. These were not clearly addressed by any witness' testimony, but it is apparent that the requested manufacturer's specification sheet was included with Solid Waste's response to ITB 90-Region-001. Corrections did not reach any of the potential bid defects of Solid Waste because the agency elected to discard all the bids almost immediately.

   
   

4. Rule 13A-1.002(9) F.A.C. provides that an agency shall reserve the right to reject any and all bids and shall so indicate in its invitation to bid. Corrections followed this requirement in General Condition 10 of ITB No. 90- Region-001, which provides in pertinent part, as follows:

   
   

   As the best interest of the State may require, the right is reserved to

   reject any and all bids . .

5. Bob Sandall and Barbara Stephens redrafted the bid specifications for the recyclable baling machine more broadly, primarily to encourage greater competition of bidders. Corrections properly published these new specifications in ITB No. 90-Region-001 on or about September 18, 1989. Bids were to be opened on October 3, 1989.

   
   

6. On October 3, 1989, the bids submitted in response to ITB No. 90- Region-001 were opened and checked for completeness. Upon opening the bid packet submitted by Petitioner Solid Waste, Corrections personnel discovered that the manufacturer's specification sheet which had been required in both initial ITB No. 90-Region-001 and in rebid ITB No. 90- Region-001R was missing. Based on the missing specification sheet, Petitioner's bid on ITB No. 90-Region- 001R was rejected as unresponsive.

7. General Condition 7 in ITB 90-Region-001R provided in pertinent part: Bidder shall submit with his bid, cuts,

   sketches, and descriptive literature and/or complete specifications. Reference to literature submitted with a pervious bid will not satisfy this provision. The State of Florida reserves the right to determine acceptance of item(s) as an approved equivalent. Bids which do not comply with these requirements are subiect to reiection. (Emphasis supplied)

   
   

8. Special Condition VI of ITB 90-Region-001R, "Submission of Mandatory Forms/Literature," further provided that:

   
   

   5. Complete Technical Data on items other than as specified shall be provided with bid by the vendor, for evaluation purposes, otherwise bid will not be considered.

   
   

9. Nowhere in ITB 90-Region-001R is there any suggestion that responses thereto are supplemental to those filed for ITB 90-Region-001 or that "carryovers" or "reactivations" of earlier ITB 90-Region-001 responses would be considered.

   
   

10. Corrections rejected other bidders' responses for other acts of non- responsiveness, and it was not necessary to waive any condition in order to award the bid to any of the bidders who were in full compliance with ITB 90- Region-001R.

    
    

11. Petitioner timely filed a formal written protest to Corrections' bid tabulation of ITB 90-Region-001R on October 23, 1989. In this protest, Petitioner also included its only and untimely challenge to the agency's rejection of all bids for ITB 90-Region-001.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Sections 120.53(5) and 120.57(1) F.S.

    
    

13. Petitioner's challenge or protest to the initial rejection of all bids received for ITB 90-Region-001 is untimely and could not be resurrected as of

    October 23, 1989 by its challenge of a subsequent rebid bid tabulation. See, Capelletti Bros. Inc. V. DOT, 499 So.2d 855 (Fla. 1st DCA 1986); Xerox Corp. V. Florida Dept. of Professional Regulation, 489 So.2d 1230, So.2d 1230 (Fla. 1st DCA 1986).

    
    

14. Even if there were some theory upon which Corrections' treatment of the October 23, 1989 protest could be held to constitute acquiescence in a late protest of the rejection of all bids under ITB 90-Region-001, it would make no difference, since jurisdiction may not be conferred in Section 120.53 cases merely by agreement of the parties. Furthermore, Corrections had discretion to reject all bids pursuant to specific language contained in its own ITB and in 13A-1.002(9) F.A.C. which provides as follows:

    
    

    Right to Reject Bids/Proposals--The agency shall reserve the right to reject any or all bids/proposals and such reservation shall be indicated in all advertising and invitations to bid/request for proposals.

    
    

    See, Caber Systems, Inc. V. Department of General Services, 520 So.2d 325 (Fla. 1st DCA 1988), Intern. Medical Centers V. HRS, 417 So.2d 734 (Fla. 1st DCA 1982).

    
    

15. The purpose of the competitive bidding process is to secure fair competition on equal terms to all bidders by affording an opportunity for an exact comparison of bids. Harry Pepper and Associates, Inc. V. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1977). When Corrections discovered that this purpose had not been met during the first bidding process due to the ITB 90-Region-001 specifications being so narrowly written that only one machine could legitimately meet them and such restrictions served no such valid purpose

    of the agency, Corrections was justified in rejecting all bids and rewriting the specifications so as to allow more competition by allowing a comparison with other machines besides the McDonald 6030 baler. Corrections' rejection of all initial bids and rebid was not an arbitrary or capricious act.

    
    

16. Petitioner has suggested that it must prevail because Corrections failed to show that the Florida Division of Purchasing, Bureau of Standards determined that the first ITB was deficient. The foregoing Conclusions of Law with regard to lack of jurisdiction of that protest obviate the need to address this argument at length except to say that Petitioner has misconstrued the burden of proof herein.

    
    

17. Respondent's rejection of Petitioner's ITB 90- Region-001R was also in line with the purposes of the competitive bidding procedure. Petitioner argued that the specification sheet from their first bid could have been used with the second, but going outside the particular bid for additional material from another bid subverts the purpose of the bidding process and is in direct conflict with the general and special conditions set forth in ITB 90-Region- 001R. Corrections did not have the authority to accept a bid which, at the time of its submission, was not in conformance with the mandatory requirements set forth in the general and specific conditions of the current ITB.

    
    

18. Petitioner asserted that Rule 13A-1.002(6) F.A.C. permitting initial review of agency bid packages for deficiencies by the Florida Division of Purchasing, Bureau of Standards precludes any showing in a de novo proceeding of any deficiency in either the first or second bid package. Suffice to say, Petitioner has misconstrued the effect and purpose of Rule 13A- 1.002(6) F.A.C.

and the burden of proof in these proceedings. Petitioner has failed to meet its burden of proof herein. See, Sections 120.53(5) and 120.57(1) F.S.; McDonald V. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Harry Pepper & Assoc. V. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1978); Couch Const.

Co. Inc. V. Dept. of Transp., 361 So.2d 172 (Fla. 1st DCA 1978); Capelletti Bros. V. Dept. of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983).

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Corrections enter a Final Order dismissing Petitioner's protest and ratifying its rejection of all bids for ITB 90-Region- O01R and its tabulation of bids for ITB 90-Region-001R.

DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Florida.

ELLA JANE P. 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 7th day of February, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5854BID

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1. is accepted except for the ultimate conclusion of law. See Conclusions of Law.

2-3, 5-7 are rejected as mere legal argument or proposed conclusions of law. See Conclusions of Law.

4 is rejected as characterization of testimony.

Respondent' s PFOF:

1-7 are accepted.

COPIES FURNISHED:

W. K. Lally, P.A.

6160 Arlington Expressway

Jacksonville, Florida 32211

Perri M. King

Assistant General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Courtesy copy to:

Richard L. Dugger, Secretary Thomas W. Riggs, President Department of Corrections Municipal Sales and Leasing 1311 Winewood Boulevard Inc. Post Office Box 90306 Tallahassee, Florida 32399-2500 Lakeland, Florida, 33804

Louis A. Vargas, General Counsel Department of Corrections

1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Docket for Case No: 89-005854BID

Orders for Case No: 89-005854BID