STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLANNING RESEARCH CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1873RX

)

STATE OF FLORIDA, ) DEPARTMENT OF GENERAL SERVICES, )

)

Respondent. )

)

and )

)

CUBIC WESTERN DATA, )

)

Respondent. )

)

FINAL ORDER

Following the provision of notice, a formal hearing was held on April 23, 1990 in accordance with 120.57(1), Florida Statutes. The location of the hearing was the Offices of the Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Debra Getzoff, Esquire

Pamela Garvin, Esquire Fowler, White, Gillan

Boggs and Banker 9th Floor

101 North Monroe Street Tallahassee, FL 32302

For Respondent: Susan Kirkland, General Counsel

Department of General Services

309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399

For Intervenor: Gary Pappas, Esquire

Popham, Haik, Scnobrich and Kaufman Ltd.

4100 Centrust Building

100 S.W. Second Street Miami, FL 33131

STATEMENT OF ISSUES

This case concerns a challenge to the validity of Rules 13A-1.001(12), 13A- 1.002(1)(b) and 13A-1.002(3) , Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.

PRELIMINARY STATEMENT

The final order is being entered after considering the transcript and Petitioner's composite exhibit No. 1 and Intervenor' s composite exhibit 1. At hearing Paul Edward Gibson testified for Petitioner. William Monroe testified for Respondent.

Petitioner sought the official recognition of Chapter 287, Florida Statutes, in the years 1981, 1982 and 1983. That party also requested official recognition of the entirety Chapter 13A-I, Florida Administrative Code, as it now exists. Respondent sought the recognition of the pertinent provisions within Chapter 287, Florida Statutes, as it is presently drawn and the current Chapter 13N-1, Florida Administrative Code. Moreover, Respondent sought official recognition of Chapter 83-99 and Chapter 88-384, Laws of Florida.

Official recognition was granted for all references.

All parties have timely submitted proposed final orders. Petitioner has provided a memorandum in argument in support of its position. These items have been reviewed in the preparation of the final order. The fact finding suggested in the proposed final orders is commented on in an Appendix to the final order.

FINDINGS OF FACT

1. In the fall of 1988, the State of Florida, Department of Transportation (DOT) put out a Request for Proposals (RFP) as RFP-DOT-88-0l. Through this RFP the agency sought to acquire a new barrier and ticket toll collection system which would automate the toll collection operations and retrieval of audit data, having in mind increased reliability and performance.

   
   

2. The project is principally one which envisions the purchase of commodities. It has an associated service component.

   
   

3. Section 287.062(1)(e), Florida Statutes together with Section 287.073(3), Florida Statutes, established the basic authority for the award of RFP-DOT-88-01.

   
   

4. The agency received responses in March, 1989, from three companies. The offerors were Petitioner and Intervenor and one other concern. The other company was AGS Informations, Inc. (AGS).

   
   

5. Following evaluation DOT determined on May 18, 1989 to reject the Intervenor's proposal as nonresponsive. This rejection was followed by the Intervenor's notice of protest on Nay 25, 1989. A formal written protest was made on June 6, 1989. On July 31, 1989, Intervenor filed a notice of voluntarily dismissal of the formal written protest. This was addressed by the DOT final order of August 2, 1989 which dismissed the formal written protest.

   
   

6. On November 21, 1989, DOT posted its intent to award a contract to Petitioner.

7. This statement of intent to award was met by a notice of protest filed by Intervenor on November 27, 1989, followed by a formal written protest on December 6, 1989. The case was sent to the Division of Administrative Hearings for consideration and through response to a motion to dismiss the Hearing Officer in that case, DOAH Case NO. 89-6926B1D, entered a recommended order of dismissal. On January 22, 1990 DOT entered a final order dismissing Intervenor's petition and stating its intent to award the contract to Petitioner. An amendment to the January 22, 1990 order was made on February 21, 1990 reminding all concerned that the contract award was subject to review and approval by the Governor and Cabinet sitting as the State of Florida, Department of General Services to decide the propriety of the subject purchase which was an information technology resources purchase under Section 287.073, Florida Statutes.

   
   

8. On February 21, 1990, DOT sent notice to the three offerors that it was rejecting all proposals submitted. As described in the notice of agency decision, DOT was operating on the basis that a further review of the proposals revealed that the proposals by AGS and Intervenor were nonresponsive. It went on to say that to have competitive offerors there must be two or more offers submitted by responsive and qualified offerors. In this instance DOT felt that it did not have two acceptable proposals and did not have a competitive offer. Because the commodities sought were available from more than one source, it had decided to withdraw its notice of intent to award which was contingent upon the approval of the Governor and Cabinet.

   
   

9. On February 27, 1990, Petitioner gave a notice of protest of the DOT decision to reject all bids. This was followed by a formal written protest on March 9, 1990.

   
   

10. Although the decision to reject all proposals was not opposed by Intervenor, the motion by the Intervenor to intervene in DOAH Case No. 90- 1583BID was granted allowing limited participation in support of the DOT decision to reject all proposals. That outcome tended to create the opportunity for Intervenor to participate in any re-advertisement for proposals.

    
    

11. As revealed in the final hearing in DOAH Case No. 90-1583BID, DOT utilizes Chapter 13A, Florida Administrative Code, in the procurement process.

    
    

12. Intervenor participated in the final hearing in DOAH Case NO. 90- 1583BID.

    
    

13. The DOT decision to reject all proposals in which reliance upon the rules under challenge are perceived to support that decision has an adverse impact on Petitioner. By that arrangement Petitioner loses the opportunity for the contract. Additionally, it is placed in a disadvantaged position in that the particulars of its method of responding to the RFP have been revealed and are now known to the competitors who might be expected to utilize that information in a setting where a re-advertisement takes place.

    
    

14. Under the circumstances, Petitioner filed its challenge to the existing rule on March 28, 1990.

    
    

15. Intervenor sought the opportunity to intervene in this case on April 4, 1990, and that opportunity was granted on April 6, 1990. Intervenor intends to participate in any re-advertisements of the RFP.

16. In his testimony at hearing William Monroe, Director of the Division of Purchasing for Respondent, established that in governmental purchasing the terms "offers" and "proposals" are synonymous. This opinion is accepted.

    
    

17. Mr. Monroe also established that Respondent believed that it was implementing Section 287.012(15), Florida Statutes, when promulgating Rule 13A- 1.001(12), Florida Administrative Code. Through the promulgation of Rules 13A- 1.002(1)(b), and 13A-1.002(3), Florida Administrative Code, Respondent believed that it was implementing Section 287.062, Florida Statutes. Respondent interprets Section 287.062, Florida Statutes, to require an agency making a commodity purchase to use competitive sealed proposals in instances where invitations to bid are not used. Mr. Monroe in speaking for Respondent indicated that this interpretation gained support from the language set out in Section 287.001, Florida Statutes.

    
    

18. According to Mr. Monroe the circumstance in which less than two responsive and qualified offerors respond to an RFP is one in which the procuring agency must reject all proposals or seek the approval from Respondent to negotiate with the one responsive offeror or where no responsive offerors were received to negotiate with someone whom the agency has chosen. Likewise, a sole source purchase negotiation must be approved by Respondent.

    
    

19. Mr. Monroe's testimony, in speaking for Respondent, indicates that Respondent interprets the terminology within Section 287.062(2), Florida Statutes, "no competitive" to modify the words "bids" and "proposals." Thus, it is incumbent upon an agency to receive authority to negotiate in those instances where it receives less than two proposals submitted by responsive and qualified offerors who are responding to a RFP in acquiring commodities.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.56 and 120.57(1), Florida Statutes.

    
    

21. Petitioner has standing to challenge the validity of the rules at issue here. Agrico Chemical Co. v. Department, Etc., 406 So.2d 478 (Fla. 2nd DCA 1981). Intervenor has standing to defend the agency rule. Florida Electric Power Coordinating Group, Inc., et al. v. County of Manatee, 417 So.2d 752 (Fla. 1st DCA 1982).

    
    

22. Petitioner takes issue with the validity of the rules in question. Authority for such challenge is set forth in Section 120.52(8), Florida Statutes, where the concept of an invalid exercise of delegated legislative authority is stated as follows:

    
    

    "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

    1. The agency has materially failed to follow the applicable rulemaking procedures set forth in S. 120.54;

    2. The agency has exceeded its grant of rulemaking authority, citation to which is required by 120.54(7):

    3. The rule enlarges, modifies, or contravenes the specific provision of law implemented, citation to which is required by S. 120.57;

    4. The rule is arbitrary or capricious.

       
       

23. Specifically, Petitioner claims that the rules impose additional and inconsistent requirements when compared to the enabling legislation.

    
    

24. The burden to prove the alleged invalidity resides with Petitioner. State Board of Optometry v. Florida Society of Opthomology, 538 So.2d 878 (Fla. 1st DCA 1988) and State Marine Fisheries Commission v. Organized Fisherman of Florida 503 So.2d 935 (Fla. 1st DCA 1987)

    
    

25. In examining this dispute the interpretation which the agency has given the underlying statutes, as evidenced by rule enactments will not be overturned unless it is clear1 erroneous. Where a variety of possible interpretations are available, the interpretation given by the agency is an acceptable interpretation if it is among the possible interpretations. It need not be the most desirable interpretation. State Board of Optometry, supra; Austin v. Department of Health and Rehabilitative Services, 495 So.2d 777 (Fla. 1st DCA 1986) and Department of Professional Regulation v. Durrani, 455 So.2d

    515 (Fla. 1st DCA 1934).

    
    

26. Petitioner has challenged Rule 13A-1.001(12), Florida Administrative Code, which states:

    
    

    Competitive Bids or Offers--Competitive bids or offers shall mean receipt of two or more bids or offers submitted by responsive and qualified bidders or offerors.

    That rule closely resembles Section 287.012(15), Florida Statutes, which states: "Competitive bids" or "competitive offers"

    mean the receipt of two or more bids or

    offers submitted by responsive and qualified bidders or offerors.

    
    

27. Given the similarity in language the rule cannot be said to be an invalid exercise of legislative authority.

    
    

28. The remaining provisions within Chapter 13A-1, Florida Administrative Code which are subject to challenge are Rule 13A- 1.002(1)(b), Florida Administrative Code, which states:

    
    

    When an agency determines in writing that the use if competitive sealed bidding is not practicable or not advantageous to the State, commodities shall be procured by competitive sealed proposals. Solicitations shall be mailed at least twenty-eight (28:) days prior to the date set for submittal of proposals,

    unless waived, in writing, by the Division. For commodities in excess of the threshold amount of Category Four, that are to be procured by Request for Proposal, the determination in writing that solicitation for competitive bids is not practical or not advantageous to the State, shall be submitted to the Division. In the event an award is made by the agency, the basis on which the award was made shall be submitted, in writing, to the Division.

    
    

29. And Rule 13A-1.002(3), Florida Administrative Code, which states:

Receipt of No Competitive Bids/Proposals, in the First Invitation to Bid/Request for Proposal on Commodities Exceeding the Threshold Amount for Category Two--When no competitive bids/proposals are received for the purchase of a commodity or group of commodities exceeding the threshold amount for Category Two in the bid/proposal solicitation, the agency shall review the situation in order to determine the reasons, if any, why no competitive bids/proposals were received before issuing a second invitation to bid/request for proposals; provided, however, if the agency determines that commodities are available only form a single source, or that conditions and circumstances warrant negotiation on the best terms and conditions, then the agency head may make a certification, in writing , using Exceptional Purchase Request/ Authorizations Certification Form PUR 7006 (Rev. 4/89), hereby incorporated by reference, as to the conditions and circumstances to the Division of Purchasing. In addition, a copy of the complete bid invitation or request for proposal, a copy of any bids/proposals received, along with a tabulation sheet noting "no bid/no proposal" responses, a list of vendors by name and address from whom bid invitations/proposals were solicited and a copy of the notice of intended award indicating no protest has been filed within the prescribed posting time or any protest filed has been resolved by final agency action, must accompany the certification.

The Division may, in writing, authorize the purchase or negotiation or require issuance of a second invitation to bid or request for proposal. The Division's intended decision shall be posted within 21 days after receipt or within 14 days after receipt of additional materials, if requested. Any person affected adversely by the Division's intended decision

may protest in accordance with Rule 13A- 1.006(3), F.A.C. Failure of the Division to approve or disapprove the request promptly after expiration of the time periods provided for protests by the statute or within the 21- day period (as extended by the 14-day period when applicable), whichever is later, shall constitute prior approval unless a protest is filed. If a protest is filed, the running of the 21-day and 14-day periods is stopped until the protest is resolved by final agency action, subject to the provisions of Rule

13A-1.006(3) , F.A.C.

1. Section 287.032, Florida Statutes, establishes the purpose of the Division of Purchasing within the State of Florida, Department of General Services as including coordination of the purchase of commodities in the state.

   
   

2. Section 287.042, Florida Statutes, describes the duties of that Division. Among the responsibilities as set out in Section 287.042(13), Florida Statutes, is the requirement to adopt the rules necessary for procedures associated with the procurement of commodities, reminding other state agencies that the purchase of commodities shall be in strict accordance with the rules and procedures that are prescribed by Respondent.

   
   

3. In identifying the specific authority for enacting the latter two rule provisions that are under challenge Respondent refers to Section 287.042(13), Florida Statutes. It also references Section 287.042(1) and (4), Florida Statutes. Section 287.042(4), Florida Statutes, calls upon the Division of Purchasing to establish a system of coordinated and uniform procurement policies, procedures and practices for agencies within the state who acquire commodities.

   
   

4. Respondent also refers to Section 287.062, Florida Statutes, as authority for promulgating the subject rules. That section describes the instances in which competitive bids (invitations to bid) are required and those occasions when they are not.

   
   

5. The statutory provisions which enable Respondent to enact rules and the rules themselves must be examined in the context of the statement of legislative intent for procurement of commodities and services by state agencies. That legislative intent is announced at Section 287.001, Florida Statutes, which states:

   
   

   The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which contractual services are procured.

   It is essential to the effective and ethical procurement of contractual services that

   there be a system of uniform procedures to be utilized by state agencies in managing and procuring contractual services; that detailed justification of agency decisions in the procurement of contractual services be maintained; and that adherence by the agency and the consultant to specific ethical considerations be, required.

   
   

6. It is clear that the legislature intended that the procurement process in Florida be done through competitive means. Deference is to be afforded that stated legislative intent. Parker v. State, 406 So.2d 1089 (Fla. 1982).

   
   

7. In the parlance of government procurement the term "offers" is synonymous with the term "proposals." Therefore, the term "competitive offers" found within Section 287.012(15), Florida Statutes, is comparable to the concept of "competitive proposals" set forth in Section 287.062(2), Florida Statutes, which states:

   
   

   If no competitive bids or proposals for commodity purchases are received, the division may negotiate on the best terms and conditions.

   
   

   This is premised upon the conclusion that the words "if no competitive" modifies the word "proposals" found within Section 287.062(2), Florida Statutes. This modifying feature is found for reasons that will be discussed.

   
   

8. In examining the statutory provisions to ascertain whether those provisions are in harmony with the rules under challenge, those statutory provisions must be interpreted in a context which is not destructive of their intent. Graham v. Edwards, 472 So.2d 803 (Fla. 1st DCA 1985).

   
   

9. To appropriately decide this case reference is made to Satellite Television Engineering v. DGS, 522 So.2d 440 (Fla. 1st DCA 1988). In that case, the court was examining the outcome of an invitation to bid which had been put out by the Department of Education. Six companies responded to the invitation but only one was found responsive. That company was Microdyne. Satellite was a disappointed bidder. It challenged the award of the `contract to Microdyne. That protest was dismissed because a decision was reached in which the Hearing Officer found that Satellite had not met the bid specifications. A final order was entered by the Commissioner of Education adopting the recommendation of the Hearing Officer. Beyond that point, the Commissioner- of Education asked permission of DGS in the person of its Division of Purchasing to allow the Department of Education to enter into a contract with Microdyne. Ultimately, the Department of Education was allowed to negotiate a contract with Microdyne based upon approval by the Governor and Cabinet sitting as the Department of General Services. Satellite took an appeal from that decision.

   
   

10. In the appeal Satellite advanced the notion that in the instance where you have only one valid response to an invitation you have "no competitive bids" within the meaning of Section 287.062(2), Florida Statutes, and that absent existence of exceptional opportunities under Section 287.0(32(1)(a) -(e), Florida Statutes, a second round of bidding is mandated. The Department of General Services felt that in the instance where you only had one responsive bid you had a situation of "no competitive bids" but argued that the Department of General Services had the discretion to authorize the Department of Education to

    negotiate a contract with one valid bidder or to require that agency to institute a second invitation to bid. The Department of Education argued that if you have one responsive bid together with nonresponsive bids that this constitutes competitive bidding within the meaning of the statute and would permit the award of the contract to that responsive bidder without further activity.

    
    

11. The court accepted the reasoning of the Department of Education.

    
    

12. In that case the court was examining statutory language in Section 287.062, Florida Statutes, which in pertinent parts is the same as the present language. However, it was considering the situation of an invitation to bid and not a RFP as the present case. The language which it examined is set out as follows:

    
    

    1. No purchase of commodities may be made when the purchase price thereof is in excess of the threshold amount provided in s.

       287.017 for CATEGORY TWO unless made upon competitive bids received, except:

       1. If the head of any state agency maintains that an emergency exists in regard

          to the purchase of any commodity, so than the delay incident to giving opportunity for competitive bidding would be detrimental to the interests of the state, then the head of such agency shall file with the division a statement under oath certifying the conditions and circumstances. The individual purchase of personal clothing, shelter, or supplies which are needed on an emergency basis to avoid institutionalization or placement in a more restrictive setting is an emergency for the purposes of this section, and the filing with the division of such statement is waived. In the case of the emergency purchase of insurance, the period of coverage of such insurance shall not exceed a period of 30 days, and all such emergency purchases shall be reported to the head of the Department of General Services.

       2. Purchasing agreements, contracts, and maximum price regulations executed by the division are excepted from bid requirements.

       3. Commodities available only from a single source may be excepted from the bid requirements upon the filing by the head of an agency of a certification of conditions and circumstances with the division if, subsequent thereto, the division authorizes the exception in writing. To the greatest extent practicable, but no later than 45 days after authorizing the exception in writing, the division shall combine single-source procurement authorizations for identical information technology resources for which the purchase price exceeds the threshold

          amount for CATEGORY FOUR, as provided in s. 287.017, and shall negotiate and execute volume purchasing agreements for such procurements on behalf of the agencies.

       4. When it is in the best interest of the state, the head of the Department of General Services may authorize the division director to purchase insurance by negotiation, but his shall be done only under conditions most favorable to the public interest and upon a showing that such a purchase will result in the lowest ultimate cost for the coverage obtained.

       5. When an agency determines in writing

       that the solicitation for competitive bids is not practicable or not advantageous to the state, commodities may be procured by request for proposals. For commodities in excess of the threshold amount provided in S. 287 3017 for CATEGORY FOUR, the determination shall be submitted to the division. To assure full understanding of any responsiveness to the requirements set forth in the requires for proposals, discussions may be conducted with qualified offerors. The division shall assist in the discussion upon request from the agency. Qualified offerors shall be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals prior to the submittal date specified in the request for proposals. The award shall be made to the responsive offeror whose proposal is determined to be the most advantageous to the state, taking into consideration price and the other evaluation criteria set forth in the request for proposals. The basis on which the award is made for commodities in excess of the threshold amount provided in S. 287.017 for CATEGORY FOUR shall be submitted in writing to the division.

    2. If no competitive bids or proposals for commodity purchases are received, the division may negotiate on the best terms and conditions. 1/

       
       

13. At the time the court decided the Satellite case there did not exist a definition of "competitive bids" as is found in Section 287.012(15), Florida Statutes. As a consequence the court inferred the meaning of "competitive bids" by reference to the definition of "responsive bidder" set out in Section 287.012(12), Florida Statutes, which stated:

    
    

    "Responsive bidder" or "responsive offeror" means a person who has submitted a bid which conforms in all material respects to tee invitation to bid or request for proposals.

    The court drew the analogy that a "competitive bid" was "a bid which conforms in all material respects to the invitation to bid." Therefore, if one responsive bid is received together with an additional nonresponsive bid, then the concept of competitive bids as set out in Section 287.062(1), Florida Statutes, has been realized. Under this interpretation, the court was not confronted with the circumstance in which it was contemplated that the Division of Purchasing would negotiate or authorize a negotiation for best terms and conditions in the instance where "no competitive bids" were received as envisioned by Section 287.062(2), Florida Statutes. Nonetheless, the court held that the Division of Purchasing could authorize the Department of Education to contract with Microdyne without resort to a second round of bidding. It was later held in Harrison v. Office Systems Consultants, 533 So.2d 833 (Fla. 1st DCA 1988) that an agency could contract without resort to permission from the Division of Purchasing using the rationale in the Satellite opinion.

    
    

14. The Department of General Services Rule 13A-1.001(12), Florida Administrative Code, had somewhat different language at that time. It stated: "Competitive bids shall mean two or more valid responses to an invitation to bid/proposal." The Court was not called upon to speak directly to the matter of rule validity but did observe that it disagreed with the rule's interpretation of the statute and held that it superimposed a meaning upon the statute that the legislature had not intended.

    
    

15. The court interpreted the then-existing Rule 13A- 1.002(3), Florida Administrative Code, which is somewhat different from the present rule, although not significantly so, as not describing the circumstance wherein one responsive bid had been received. The terminology in that rule was seen to describe the circumstance wherein zero competitive bids have been received.

    
    

16. The court went on to conclude what it interpreted the term "competitive bids" to mean. The court felt that its interpretation precluded the necessity of a second round of bidding that would disadvantage the sole responsive bidder add promote delays in the award of a contract by eliminating what it regarded to be an unnecessary procedural step.

    
    

17. What should be understood about this opinion is that it did not resolve the question of whether section 287.062(1)(e), Florida Statutes, which describes the use of the RFP, calls for a competitive solicitation. Nor did it answer the question of whether within Section 287.062(2), Florida Statutes, the term "no competitive" modifies the word "proposals." It did bend to confirm that the terminology "competitive bids" found within Section 287.062(1), Florida Statutes, refers to an invitation to bid only. It could also be concluded by analogy that to the extent that Section 287.062(1)(e) dealing with the RFP called for competitive solicitation, a competitive solicitation in that circumstance would only require the submission of one responsive proposal together with at least one non-responsive proposal to constitute a competitive solicitation. The analogy is drawn where the court referred to the then Section 287.012(12), Florida Statutes, as it described "responsive bidder" to understand what "competitive bids" within Section 287.062(1) meant and that same definitional section had offered a similar definition for "responsive offer that pertains to the RFP method of procurement.

    
    

18. The premise upon which Petitioner advances its argument, is the proposition that all categories announced in Section 287.062(1)(a)-(f), Florida Statutes, constitute exceptions to the requirement that competitive bidding be utilized. Competitive bidding under this interpretation refers to exclusive procurement by competitive means. That interpretation is incorrect. As alluded

    to before, Section 287.062(1), Florida Statutes wherein it describes the term "competitive bids" refers to purchases by invitations to bid. It does not signify that the invitation to bid purchase is the only manner of competitive procurement contemplated within Section 287.062(1). Section 287.62(1)(e), Florida Statutes, which describes procurement of commodities through the use of the RFP, anticipates competition. It speaks in the plural in the sense of responses from qualified offerors through submission of proposals by competitors for the contract award. Section 287.062(1)(e), Florida Statutes, should be read in the context of Section 287.012(15) and Section 287.062(2), Florida Statutes. When that reading is given, the concept of procurement through a competitive process is required when resorting to an RFP. The emphasis which Petitioner places upon the language which says that the contract award shall be made to the responsive offeror who has submitted the proposal that has been determined to be the most advantageous to the state, regardless of how many responsive proposals have been received, does not detract from the idea that the purchasing undertaken here is by a competitive procurement process. Whether it is necessary to have more than one responsive proposal in a setting in which more than one proposal has been received in order to have a competitive proposals is the question. Again, if resort was made to the Satellite case, supra, by analogy the answer would be to the effect that only one responsive proposal (where more than one proposal has been submitted) suffices to establish a setting in which competitive proposals are realized. However, subsequent to that opinion, Section 287.012, Florida Statutes, was amended to include Section 287.012(15), Florida Statutes, which not only defines the concept of "competitive bids," but also defines "competitive offers" as well. It describes both of those circumstances as being instances in which receipt of two or more bids or offers submitted by responsive and qualified bidders or offerors was necessary. While the language "competitive offerors" was chosen, it is held to be synonymous with the concept of "competitive proposals" as set out in Section 287..062(2), Florida Statutes. In this connection, the words "no competitive" is found to modify the word "proposals." Therefore, the definition of "competitive bids" and "competitive proposals" has been established for purposes of understanding those references at Section 287.062(2), Florida Statutes. The definition need not be inferred as was required by the court in rendering its opinion in Satellite, supra. As a consequence a contract award may not be made to the sole responsive offeror without permission from Respondent no matter how advantageous it may be to the procuring agency.

    
    

19. Under this interpretation, Respondent is empowered to enact rules related to competitive procurement by using a RFP and the idea of negotiation for best terms and conditions in the circumstance in which no competitive proposals, that is to say the occasion where receipt of two or more offers is not forthcoming.

    
    

20. Rule 13A-1.002(1)(b), Florida Administrative Code, is in keeping with the idea of the competitive solicitation process through the RFP and is not an invalid exercise. of delegated legislative authority. Rule 13A-1.02(3), Florida Administrative Code, is in keeping with the responsibility of Respondent assooicated with negotiations in instances where competitive proposals are not submitted as envisioned by Section 287.062(2), Florida Statutes. Petitioner has failed to establish that the rule is an invalid exercise of delegated legislative authority.

    
    

21. Having considered the facts, and in view of the legal conclusions reached, it is,

ORDERED:

That the challenge pursuant to Section 120.56, Florida Statutes, directed to Rule 13A-1.001(12), Florida Administrative Code; Rule 13A-1.002(1)(b), Florida Administrative Code and Rule 13Al.002(3), Florida Administrative Code is dismissed.

DONE and ORDERED this 4th day of June, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS

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 4th day of June, 1990.

ENDNOTES

1/ Subsection 287.062(1)(f), Florida Statutes, was not in effect at the time of the court opinion. It has no relevance in this case.

2/ This subsection is now 287.012(13), Florida Statutes.

APPENDIX - CASE NO. 90-1873RX

The following discussion is given concerning the proposed facts of the parties: Petitioner' s Facts

Paragraphs 1-14 are subordinate to facts found.

Contrary to the suggestion in Paragraph 15, as a vendor Intervenor does have a substantial interest in the outcome of challenges to the underlying rules which control the procurement process.

Concerning Paragraph 16 see remarks related to Paragraph Respondent' s Facts

Paragraphs 1-7 are subordinate to facts Paragraph 9 is subordinate to facts found.

Paragraphs 8 and 10 are not necessary to the resolution of the dispute. Intervenor' s Facts

Intervenor's facts are subordinate to facts found.

COPIES FURNISHED:

Ronald W. Thomas, Executive Director Department of General Services

Knight Building, Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 32399-0955

Deborah A. Getzoff, Esquire Pamela Garvin, Esquire

101 North Monroe Street Suite 910

Tallahassee, FL 32301

Susan Kirkland, General Counsel Department of General Services

452 Larson Building

200 East Gaines Street Tallahassee, FL 32399-0955

Frank Shepard, Esquire Popham, Haik, Scnobrich

and Kaufman, Ltd. 4100 Centrust Building

100 S.W. Second Street Miami, FL 33131

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, FL 32399-1300

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 90-001873RX

Orders for Case No: 90-001873RX