STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GLOBAL MARKETING OF NORTH )
CAROLINA, )
)
Petitioner, )
)
vs. ) CASE NO. 90-6962BID
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent, )
and )
) CONTINENTAL WATER SYSTEMS, INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Off.icer, Don W. Davis, held a formal hearing in the above- styled case on November 20, 1990, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Donna H. Stinson, Esquire
Suite 100, The Perkins House
118 North Gadsden street Tallahassee, Florida 32301
For Respondent: Cynthia K. Christen, Esquire
Department of Environmental Regulation 2600 B1airstone Road, Room 654
Tallahassee, Florida 32399-2400
For Intervenor: M. Christopher Bryant, Esquire
2700 Blairstone Road, Suite C Tallahassee, Florida 32301
The primary issue for determination is whether Petitioner's bid, in response to Respondent's invitation to bid, is responsive; and, if so, whether Petitioner should be awarded the bid.
PRELIMINARY STATEMENT
By letter dated October 12, 1990, Respondent notified Petitioner of Respondent's intent to award the subject bid to Intervenor. Petitioner timely filed a notice of protest.
Thereafter the matter was transferred to the Division Of Administrative Hearings for conduct of a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.
At the final hearing, Petitioner presented the testimony of five witnesses and 22 evidentiary exhibits. Testimony of one witness and three evidentiary exhibits were presented on behalf of Intervenor. Respondent presented no additional witnesses, but did elicit direct testimony through witnesses presented by Petitioner.
A transcript of the final hearing was filed with the Division of Administrative Hearings on November 30, 1990. Proposed findings of fact were submitted by the parties and are; addressed in the appendix to this recommended order.
FINDINGS OF FACT
Respondent issued an Invitation To Bid (ITB) for Bid No. 91-04, entitled "Granular Activated Carbon (GAC) Filter Installations and Exchanges" in September, 1990.
The purpose of the ITB was to continue a project begun around 1985 for the removal of the pesticide ethylene dibromide (EDB) from private drinking water wells.
The EDB project began with a field test involving wells installed by Intervenor working with Respondent. The equipment and material in those wells were the basis for specifications developed by Respondent. Glenn Dykes, an employee of Respondent was responsible for developing the specifications.
When the project began, the state legislature intended the Department of Agriculture and Consumer Services (DACS) to manage the EDB removal contracts since EDB had been applied to citrus groves by the state in some affected areas.
Removal of EDB from the drinking water in these areas is accomplished by installation and regular maintenance of filter systems at the wells. The heart of each filter system is a tank of granular activated carbon (GAC) which absorbs EDB. The carbon is replaced every six months.
The project was administered by )ACS through contract with Respondent. Funds were transferred from Respondent to DACS, subject to the approval of Dykes, contract manager on the project for Respondent. Dykes' office also had monitoring responsibilities for the project.
From 1986 to 1989, Intervenor received contracts to perform the work, even though there were lower bidders. Several times all bids were rejected, but Intervenor received the contract. Intervenor has other contracts with Respondent and its relationship with Respondent was such that it listed Dykes and an another Respondent employee, John Kraynak, as references in the bid later submitted in response to the ITB which forms the basis of this proceeding.
Dykes and Kraynak exercised responsibility for preparation of ITB NO. 91-04.
In 1989, DACS issued an invitation to bid containing the identical carbon filter specifications as those contained in Respondent's Bid No. 91-04. Petitioner in the instant proceeding was awarded the DACS' bid. A bid protest, initiated by Intervenor, resulted. During the pendency of that protest proceeding, DACS issued emergency purchase orders to the intended bid awardee.
Petitioner and DACS were in general agreement that specifications contained in the DACS' bid were applicable to the emergency purchase orders and operated on that basis until October 15, 1990.
Contract management for EDB filter installation and maintenance was returned from DACS to Respondent, effective October 15, 1990.
Because of the pending return of management of the EDB removal project, Respondent advertised its invitation to bid for EDB removal and gasoline contamination removal under ITB 91- 04.
Two bids were received in response to Respondent's ITB 91-04; one from Petitioner for a composite total price of $748,355.00 and one from Intervenor for a total composite price of $904.475.00. An intended contract award was not immediately posted, rather the bids were evaluated before announce:nent of an intended decision.
Three Respondent employees were mainly involved in the writing and processing of ITB NO. 91-04. Those persons were Kraynak, Dykes, and an individual named James Den Bleyker.
Kraynak, in charge of the bid for Respondent's water supply section of the Bureau of Drinking Watr and Ground Water Resources, wrote the bid specification based upon the previous DACS bid and discussions with John Folks, a DACS employee involved in the previous emergency purchase orders to Petitioner. 1(raynak, who had no prior experience with the state bid process nor any training in that area, was assisted by his supervisor, Glenn Dykes.
Den Bleyker, a Respondent purchasing agent overseeing the bid preparation for Respondent's purchasing section to insure compliance with bidding requirements, knew nothing about the technical aspects of the bid. He instructed Kraynak that each bid "is supposed to stand on its own." He also instructed Kraynak to check anything on the bid submittal that appeared questionable.
Kraynak had the responsibility for determining whether the bids were responsive. He was also instructed by Den Bleyker to check both bids if a point in one bid raised a question. Apparently, this is the usual procedure for Respondent's ITB process.
One of the specifications included in ITB NO. 91-04 was a requirement for a carbon filter (GAC 30) with a minimum iodine number of 950. This number reflects the milligrams of iodine adsorbed per gram of carbon; a higher numbr, the more adsorptive the carbon.
Manufacture of GAC is not an exact science. The carbon is produced in lots. A lot is a quantity of carbon that has gone through the manufacturing process together. Each lot may have some variation from another lot because the processing entails adjustment of oxygen, temperature, and steam of the furnace.
After removal from the furnace, the lot is taken for analysis of physical and activity properties. This is a lot analysis and is done by the manufacturer. Some lots will have iodine numbers of 950 or greater. Lots can be hand selected to meet all Respondent's ITB 91-04 specifications. However, absent such a selection process, no manufacturer in this country produces a standard carbon which meets Respondent's bid specifications.
Sensitized through a review of the previous DACS' bid and the resultant administrative litigation, Kraynak was aware that the carbon specification was the most important aspect of the bid package. Kraynak attempted to treat this aspect of the two bid packages carefully.
Vendors were required by the ITB to provide "full documentation and specification on all equipment and components to be used in providing the GAC filter systems and maintenance." This last point was reiterated in the specifications section of the bid with the following:
Specifications for the individual equipment components MUST BE PROVIDED WITH YOUR BID OR THE BID WILL BE DECLARED INCOMPLETE AND INELIGIBLE FOR CONSIDERATION!
While the ITB required bidders to submit specifications for products, it did not require submission of manufacturer's specifications. Included iii. Petitioner's bid submittal was the manufacturer's specification sheet for a product known as GAC 30.
The name of the company on the specification sheet submitted by Petitioner is Atochem. On the specification sheet, the number 950 appeared as the minimum iodine number. An asterisk appeared next to the minimum iodine number. At the bottom of the page was the following typed note:
* Lots will be specifically selected to meet or exceed all bid requirements.
In reviewing Petitioner's bid, Dykes and Kraynak were aware from a previous conference with John Folks, contract manager for DACS, that Petitioner had been using selected lots of Atochem GAC 30 which met the specified iodine numbei of 950 and that lot analyses were provided to Folks. As a result, the provision of an analysis for each lot was included in ITB NO. 91- 04.
Kraynak understood that carbon came in "lots', and that lots varied in analysis. Nonetheless, he determined to verify the contents of the bids.
On October 9, 1990, 1(raynak called Atochem, the manufacturer whose specification sheet was submitted b Petitioner. He learned that the specification sheet lists 900 as the minimum iodine number. Atochem does not make a standard GAC 30 filter with a minimum iodine number of 950 and was unaware of the alteration or the inclusion of an altered specification sheet in Petitioner's bid submitta1.
However, Atochem also confirmed during that telephone conversation and later, per Kraynak's request for written confirmation, by facsimile letter to Kraynak dated October 10, 1990, that the actual iodine number for GAC 30 is often above 950 and that lot selections of carbon could be made meeting or exceeding 950.
Intervenor's bid submittal contained a typewritten specification sheet which was originally hand written by Intervenor's carbon supplier, a company named Alamo. While Alamo does not manufacture carbon, the specifications on the sheet were accurate for the lots of carbon that Alamo would supply to Intervenor. Alamo brand ABG-CWF with a minimum iodine number of 950.
In the course of verification of the bid specification of the carbon intended to be supplied by Intervenor, Kraynak was told ABG-CWF met specifications, was manufactured by a company named Calgon and also had a minimum iodine number of 900.
Interestingly, as established at the final hearing and contrary to the results of Kraynak's verification, Alamo will obtain the carbon to be supplied to Intervenor from Atochem, the same manufacturer intended to be used by Petitioner. Under Alamo's arrangement with Atochem, lots of Atochem's GAC 30, a standard available product, will be selected by Alamo meeting the bid specification of an iodine number of 950.
After selection, Alamo will mark those lots with the brand ABG-CWF, a brand specifically prepared for Intervenor. This is not a standard available product and, in fact, "CWF" stands for "Continental Water Florida", intervenor in this proceeding.
The ITB requires that isotherms be provided in a bid response for the carbon proposed to be used. An isotherm is a graphic depiction of the adsorptive capabilities of Larbon. The bid responses of both Petitioner and Intervenor included isotherms for Atochem GAC 30.
The ITB also requires that lot analyses confirming compliance with bid specifications be provided in the course of any subsequent contract on all carbon filters to be used by the successful bidder.
The carbon specification sheet submitted by Petitioner in its bid response did not purport to be from the manufacturer. The asterisk and footnote are clearly typed separately and clearly describe how specifications aide to be met.
While Kraynak determined it appropriate to consider information from Atochem that its specifications were different from those submitted by Petitioner, he chose to reject Atochem's confirmation of Petitioner's explanation that lots would be selected to meet bid requirements.
Kraynak documented in a memorandum to Respondent's purchasing office his reasons for rejecting Petitioner's bid. In that memorandum, he explained that the bid specifications differed from those of the manufacturer. Notably, he omitted any reference to Petitioner's footnote on the bid submission or the October 10 letter from Atochem.
By letter dated October 12, 1990, Respondent informed Petitioner of the intended award of the bid to Intervenor as a "Single Bidder Award. " The letter contained no statement regarding deficiencies in Petitioner's bid.
Two other areas of Petitioner's bid response were reviewed by Respondent's personne1. These areas involved Petitioner's lack of qualified personnel residing in the State of Florida, and Petitioner's failure to specify the type of a particular transformer being proposed as part of equipment to be supplied.
Neither the matter of personnel or the transformer description was considered by Respondent to constitute a sufficient basis to deem Petitioner's bid non-responsive. Furthers testimony at the final hearing on these points establishes that these variances in Petitioner's bid response did not constitute material deficiencies.
40 Respondent determined Petitioner's bid non- responsive totally on the basis of the carbon iodine number which had been changed from 900 to 950 in the course of Petitioner's customizing the Atochem GAC 30 specification sheet.
Following rejection of Petitioner's bid, Respondent issued purchase orders to Intervenor in amounts exceeding $200,000.
Petitioner was responsive in all material respects to Respondent's ITB NO. 91-04.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner bears the burden of establishing its entitlement to the relief sought in this proceeding. Florida Department of Transportation v. J. W.
C. Company Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
Whether Petitioner has met that burden must be resolved by determining whether, upon the facts now known, Petitioner's bid is responsive. This does not mean that facts ascertained at the final hearing can be utilized to supplement or change Petitioner's bid. Tel Plus Florida, Inc. v. Department of General Services, DOAH Case Nos. 86-4701BID and 86-4702BID (Recommended Order dated March 16, 1987; adopted by Final Order of the Department of General Services dated May 6, 1987.)
However, the facts adduced at the final hearing in this proceeding demonstrate that Respondent's rejection of Petitioner's bid was based solely upon Petitioner's submission of a manufacturer's specification sheet for carbon with changes on the face of that sheet which clearly indicated that Petitioner proposed to provide selected lots of GAC 30 meeting or exceeding the bid specifications.
The result of a comparison of the carbon specification submitted by Petitioner with that submitted by Intervenor is, as the old saw goes, "a distinction without a difference." One bidder chose to customize a specification sheet from a manufacturer, the other chose to provide the same information on a typewritten sheet.
Respondent's ITB did not require submission of manufacturer's specifications for products not named by manufacturer in the ITB. The carbon in the ITB was described by features, not brand. Specifications in the ITB consist simply of a description of the product offered. This is unlike the circumstances discussed in Tel Plus Florida, supra, where technical literature, inclusive of manufacturer specifications, was required. If Respondent's ITB had required submission of a manufacturer's carbon specification sheet, neither bid would be responsive.
The document submitted by Petitioner was a description of the product to be offered; it contained a description of a product in compliance with the ITB. Similarly, Intervenor's specifications were likewise not the specifications of a manufacturer, but simply a description of the product offered. That intervenor's description was drafted by a middleman should make it
no more valid than Petitioner's description. The ITB made no requirement that identification be provided by bidders regarding who would select the carbon to be supplied.
Intervenor's argument that Petitioner has inappropriately supplemented its bid after opening is unpersuasive. Respondent is the party who contacted Atochem arid Alamo about the carbon to be supplied. Alamo's information that a coirany named Calgon would supply carbon for Intervenor was erroneous; and information from Atochem merely confirmed Petitioner's bid rather than changing it.
Petitioner's bid complied with ITB carbon specifications; there was no ambiguity. There was no need to go outside of the bid for additional information to clarify a point. However, once Respondent has gone outside the bid documents, it may not consider part of the information received and refuse to consider other information. If Atochem's information that selected lots of GAC 30 do indeed exceed a minimum iodine number of 950 is to be rejected in the consideration of Petitioner's bid, then it must also be rejected in the consideration of responsiveness of Intervenor's bid which offers the same carbon.
There is no dispute that Petitioner's $748,355.00 bid price is preferable to Intervenor's price of $904,475.00.
Pursuant to Rule 13A-1.001(19), Florida Administrative Code, contracts are to be awarded after a bid procedure to the responsive and responsible ier with the lowest price.
Unlike the situation in Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), all bids were not rejected in this case. Instead, only the low bid was rejected. The purpose of purpose of competitive bidding is to secure the lowest responsible offer, Robinson Electrical Co., Dade Co.,417 So.2d 1032 (Fla. 3rd DCA 1982); Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986).
13. The facts established at the final hearing demonstrate that Petitioner's bid was facially responsive; that Petitioner is capable of providing Atochem GAC 30 through selected lots to meet Respondent's ITB carbon specification; and that Petitioner's bid was proven to be responsive in fact, as supported by competent substantial evidence.
Based on the foregoing, it is hereby
RECOMMENDED that a Final Order be entered granting the award of the bid in Respondent's ITB NO. 91-04 to Petitioner as the lowest and best bid.
DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1990.
APPENDIX
The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.
Petitioner's Proposed Findings. 1.-2. Adopted in substance.
3. Rejected, unnecessary. 4.-17. Adopted in substance. l8.-19. Adopted by reference. 20.-34. Adopted in substance.
Intervenor's Proposed Findings. 1.-3. Rejected, unnecessary.
4.-14 Adopted in substance, though not verbatim.
Rejected, not supported by the weight of the evidence.
Adopted in substance.
17.-18. Rejected, not supported by weight of the evidence. 19.-20. Adopted in substance, though not verbatim.
21.-26. Rejected, relevance, argumentative.
Rejected, not relevance in the face of Respondent determination that these matters werE not material to responsiveness of the bid.
Rejected, argument.
Adopted by reference.
30.-33. Rejected, not relevance, argument. Respondent's Proposed Findings.
1.-2I. Adopted in substance.
22. Rejected, not supported by weight of the evi6ence. 23.-40. Adopted in substance, though not verbatim.
41. Rejected.
COPIES FURNISHED:
Donna H. Stinson, Esquire Suite 100, The Perkins House
118 North Gadsden Street Tallahassee,Florida 32301
Cynthia K. Christen, Esquire Department of
Environmental Regulation
2600 Blairstone Road, Room 654
Tallahassee, Florida 32399-2400
M. Christopher Bryant, Esquire 2700 Blairstone Road, Suite C Tallahassee, FL 32301
Dale H. Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 davs in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agencv that will issue the final order in this case concerning aencv rules on the deadline for filing exceptions to this recommended order. And exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
GLOBAL MARKETING OF NORTH CAROLINA,
Petitioner
v.
STATE OF FLORIDA DEPARTMENT DOAH Case NO. 90-6962B1D
OF ENVIRONMENTAL REGULATION, OGC Case NO. 90-1624
Respondent,
and
CONTINENTAL WATER SYSTEMS, INC.,
Intervenor.
/
FINAL ORDER
On December 19, 1990, the designated hearing officer from the Division of Administrative Hearings submitted to The and to all parties his Recommended Order in this case. (Exhibit A) Respondent, the Department of Environmental Regulation (Department), and Intervenor, Continental Water Systems, Inc. (Continental), both submitted timely exceptions to the Recommended Order.
Petitioner, Global Marketing of North Carolina (Global), submitted timely responses to the exceptions filed by both of the other parties. Thereafter, the Final Order came before me as Secretary of the Department for final agency action.
BACKGROUND
This proceeding is a bid protest by Global to contest the awarding of a contract pursuant to Invitation to Bid No. 91-04 (ITB). The purpose of the bid is to provide for continuation of a program to provide for removal of the pesticide ethylene dibromide (EDB) from private drinking water wells in areas of EDB contamination of the groundwater.
The Department issued its ITB in September, 1990. Two bids were received in response to the ITB. Global submitted a bid with a composite total price of
$748,355.00. Continental's bid was $904,475.00. After evaluation of the bids, the Department determined that Global's bid was nonresponsive and by letter dated October 12, 1990, the Department notified Global that it intended to award the bid to Continental as a single bidder. Global timely filed a Formal Protest and Request for Formal Hearing, which was transferred to the Division of Administrative Hearings. Continental intervened in the proceedings. The
hearing was held on November 20, 1990. The hearing officer held that Global's bid should not have been rejected as nonresponsive, and recommended that Global be awarded the bid.
RULINGS ON EXCEPTIONS
The parties have submitted a number of exceptions to both findings of fact and to conclusions of law. As the Department's two exceptions are to the same findings and conclusions addressed by Continental, I shall address the exceptions in the order of the findings and conclusions to which they object. My rulings on these exceptions are undertaken in recognition of Section 120.57(1)(b)10., Florida Statutes, which prevents me from overturning any finding of fact by a hearing officer that is supported in the record by competent substantial evidence. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985)
Exceptions to Findings of Fact Finding of Fact No. 7
In this exception, Continental objects to the hearing officer's listing the history of Continental's receipt of previous contracts for installation and maintenance of the filter systems for EDB removal. Continental objects to the following statement: "From 1986 to 1989, Intervenor received contracts to perform the work, even though there were lower bidders. Several times all bids were rejected, but Intervenor received the contract." The wording of the finding is identical to that in Global's proposed recommended order, proposed finding of fact No. 6. As support for the proposed finding, Global cited to the transcript, pages 16-18. That testimony was given by James Tate, Jr., vice president of Global. The testimony could support a finding that Continental had received a contract on one bid in which they were not the lowest bidder. There was no statement as to whether the low bidder was responsive or whether there was some other reason why the contract was not awarded to the low bidder. The testimony also supports a finding that two subsequent rounds of bidding were rejected and that a third round resulted in Continental being awarded the contract. There is no testimony as to whether Continental was the low bidder on the third round of bidding. I have been unable to find other evidence specifically on this subject other than that cited by Continental in its exception. I recite this testimony not in order to make additional findings of fact, but simply to determine whether the cited finding is supported by competent substantial testimony in the record. I find that the finding is not supported by the cited evidence or any other evidence in the record, and therefore Continental's exception is accepted. I note that insofar as the finding might give rise to any inference of favoritism on the part of the Department, my ruling, above, renders the remainder of the exception moot.
Nevertheless, I agree with Continental that the results of bids awarded by the Department of Agriculture and Consumer Services (DACS) do not show that the Department favored any bidder. I further agree that the finding is not relevant to the issue of responsiveness to the ITB, the issue in this case. Therefore, my acceptance of this exception has no bearing on whether I should accept or reject the Recommended Order.
Finding of Fact No.29
Continental objects to this finding as hearsay. As Continental correctly points out, while hearsay is admissible in an administrative proceeding, it may not be the sole basis for a finding of fact. Section 120.58 (1)(a), Florida Statutes. Hearsay is a statement made by a person who is not testifying that is offered to prove the truth of the matter asserted in the reported statement. Section 90.801, Florida Statutes. A statement is not hearsay if it is not used to prove the truth of the matter asserted. Freeman v. State, 494 So.2d 270 (F1a. 1st DCA 1988). In this case, the finding was that Mr. Kraynak, a Department employee, was told something in the course of a conversation. As the finding does not purport to -hold that the information given to Mr. Kraynak is true, the finding is not based on hearsay, and this exception is rejected. For the same reason, that there is no finding that the statement is true, the additional objection that finding No. 29 contradicts finding No. 28 is also rejected.
Finding of Fact No.34
Continental objects to this finding in its entirety. The finding reads: "The carbon specification sheets submitted by Petitioner in its bid response did not purport to be from the manufacturer. The asterisk and footnote are clearly typed separately and clearly describe how specifications are to be met." Continental argues that because the specifications were on an altered sheet of manufacturer's stationery, that the finding is incorrect. Continental admits that the asterisk and footnote are clearly typed. The Department also excepts to this finding on the basis that the evidence does not support a finding that the use of the asterisk and footnote clearly describe how specifications are to be met. In order to respond to Continental's objection, I first note that whether the sheet did or did not "purport to be from the manufacturer" is irrelevant. The ITB did not require manufacturer's specifications, only the specifications of the materials to be submitted. Absent evidence of an intent to defraud, or of a requirement that the data be presented in a particular way, the use of the manufacturer's stationery cannot be said to violate the ITB. On the face of the sheet, the specifications required in the ITB were met.
Therefore, Continental's exception is rejected.
Similarly, the Department's exception must be rejected. The hearing officer's determination is supported by competent substantial evidence. The sheet itself was entered into evidence and the hearing officer's interpretation cannot be simply rejected. In addition, there is evidence in the record that the practices in the industry for selection of lots was known to the Department, and therefore the footnote did not render inherently ambiguous the statement that the 950 iodine specification would be met by lot selection. The Department also asserts as erroneous the statement that the footnote describes how the specifications will be met. In a broad sense this is true, and if I could find that the ITB required such a description, the exception would be well taken. However, I am constrained to interpret the finding in the context of the case and the requirements of the ITB. To that end I interpret the finding to mean that the asterisk and footnote show that the specifications will be met by lot selection, but does not show how that lot selection will be accomplished. However, as I noted above, the ITB does not require such a description. Therefore the exception of the Department to finding of fact no 34 is rejected.
Finding of Fact No.35
Continental excepts to the second half of the finding, which relates to Mr. Kraynak's rejection of a late confirmation by Atochem explaining the lot selection process. Interestingly, Continental objects to this statement as being after the bid process but does not raise a similar objection to the first half of the finding, which refers to Kraynak's acceptance of other information received after the bids were opened. The simple response to this exception is that the finding is based on competent substantial evidence in the record.
However, I note that the objection is not that the finding does not reflect the evidence, but that it might be interpreted in a certain way. The finding simply recites a sequence of events, and I do not take it as implying that Mr.
Kraynak's actions were arbitrary. I shall address the issue of the consideration of post bid information in my rulings on exceptions to conclusions of law. The exception is rejected.
Finding of Fact No.39
The hearing officer found that, although there were two other items commented upon by Department personnel in their review of Global's bid, neither of these two areas constituted a sufficient basis to deem the bid nonresponsive. The two areas were Global's lack of personnel residing in Florida and Global's failure to specify the type of transformer to be used in a particular piece of equipment.
On the issue of personnel, Global's bid was responsive on its face. It contained a list of names of managers and installers and their certifications. The evidence at hearing revealed that, by the time of the hearing, two of the installers were no longer employed by Global. There was no evidence in the record that the personnel were not employees at the time of the bid. Therefore, the evidence indicates that Global, at the time it submitted its bid, did have the requisite personnel to satisfy the requirements. Residence in Florida was not a requirement in the ITB.
Global's bid did include a price bid on transformers. The notation on the Department's bid review sheet indicates that not specifying the type was a minor omission. There was no particular transformer requirement identified in the bid specifications other than the line requesting the price in the bid sheet.
Continental contends that the determination of whether a bid is materially nonresponsive is a conclusion of law and not a finding of fact. I agree with Continental that whether a deviation in a bid is minor and thus of no legal significance, is a qualitative judgement that amounts to a legal conclusion. Nevertheless, I agree with the hearing officer's conclusion here, and therefore decline to overturn his conclusion.
The Department's rejection of the bid was due solely to Global's supposed nonresponsiveness on the issue of the iodine adsorption characteristics of the carbon to be used. When Global challenged the determination by the Department, it did so on that basis. Global was entitled to rely on this posture of the case unless another party came forward with evidence to show in some way that other matters were at issue. A review of the record fails to disclose that such issues were put forth prior to or at the hearing.
It is the burden of one asserting a position to go forward with evidence to establish that position. Thus, it was Global's burden to go forward with evidence to establish the responsiveness of its bid. Once a prima facie case was established, it was incumbent on the opposing parties to come forward with evidence to refute the prima facie case. Dept. of Transportation v. J.W.C. Co. Inc. 396 So.2d 778 (Fla., 1st DCA 1981). In the absence of such evidence, the initial presentation of a prima facie case is sufficient to meet the initial burden of proof. The only evidence on either of the two issues was presented in the direct and cross examination of Mr. Tate, the vice president of Global, and in the copy of Global's bid package, Petitioner's Exhibit 2. There is no contention that the bid itself did not meet specifications on the issue of personnel. There was no evidence presented on the importance of the transformer specification. Global entered its bid into evidence. No one presented or elicited evidence at the hearing that the contents of the bid were incorrect on the personnel issue. The Department witnesses testified that they considered the issues minor. Neither Continental nor the Department presented any evidence to show that this interpretation was incorrect, nor did they attempt to cross examine Department personnel on either of these issues.
In addition, the amount bid by Global for the transformers and the amount bid by Continental were identical. Both bids were for $600, an insignificant amount in comparison with the overall bid. Therefore, it is difficult to credit Continental's argument that there was an unfair bidding advantage enjoyed by Global in this*
*Note: The last page of this Final Order was not filed with the Division and is therefore not a part of this ACCESS document. The Filing date of 2/18/91 has also been
used as the Agency FO issue date in the ACCESS Index.
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
GLOBAL MARKETING OF NORTH CAROLINA,
Petitioner,
v. DOAH CASE NO. 90-6962BID
OGC CASE NO. 90-1624
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
CONTINENTAL WATER SYSTEMS, INC.,
Intervenor.
/
FINAL ORDER ON COSTS
On February 15, 1991, a Final Order was entered on the bid protest that is the substantive issue in this case. Petitioner, Global Marketing of North Carolina (Global), was the prevailing party in that protest and thus was entitled to recover its costs in that proceeding, pursuant to Section 287.042(2)(c), Florida Statutes. Global submitted an initial request for costs. I responded to that request in my previous order, but held open a final determination of the costs to allow Global to submit additional information. In that previous order I indicated that the Department's consideration of appropriate costs is based on the "Statewide Uniform Guidelines for Taxation of Costs in Civil Actions" which were adopted by Administrative Order of the Florida Supreme Court, October 28, 1991. 7 F.L.W. 517 (Fla. 1981). As it appears that the awarding of these costs is a matter of first impression before this Department, I declined to hold Global to a strict standard based on these guidelines in its initial submittal for costs. I allowed Global ten days to resubmit its affidavit on the costs. Global timely submitted a Motion to Amend Award of Costs (Exhibit 1), which is now before me for final action.
The first portion of the amended motion lists the cost attributable to the deposition of Terry Insko as $120.00. As I previously allowed the costs of that deposition, but did not have before The the specific amount, that cost is allowed and shall be added to the costs recoverable by Global.
The second item presented is a request for reimbursement for depositions that were not introduced at the hearing nor used for impeachment. Global characterizes these depositions as reasonably necessary to the preparation of its case. While I have no doubt that it was prudent of Global to obtain the information in the depositions, I am constrained to interpret the language of the guidelines in accord with previous district court of appeal decisions on them. In so doing, I observe that the Supreme Court went into detail in its listing of the instances in which depositories could be recovered. Only after listing several specific instances in which such costs were reimburseable did the court also state that after a showing by the prevailing party that other depositions were "reasonably necessary" would those additional depositions be
eligible for reimbursement. As nearly any non-frivolous deposition could be considered necessary to some extent, it is reasonable to infer that by requiring an additional showing of necessity, the Supreme Court meant to apply a more stringent standard. The cost of depositions that simply help prepare for trial do not meet the guidelines. Otis Elevator Co. v. Bryan, 489 So.2d 1189 (Fla.
1st DCA 1986). Global has not presented any special circumstances to support reimbursement of these costs. Therefore, Global's request for reimbursement for depositions not introduced at the hearing is disallowed.
The third item submitted by Global is a request for reimbursement of the expenses of Bernard Lalli, who appeared as an expert witness for Global. The costs were disallowed in the initial order because the guidelines provide only for reimbursement of an actual fee and not travel expenses from outside the state. Global states that "it should not matter that [Mr. Lalli) billed the amount of expenses rather than time." However, Global does not provide any justification for such treatment beyond a statement that the "amount is well within an acceptable amount for an expert witness "
Again, I am constrained to follow the Uniform Guidelines. They state that an expert witness is to be reimbursed in an amount equal to the time spent testifying and, where appropriate, for time spent on inspections or research.
The amount awarded is to be ad on the total time together with consideration of the expertise required. In addition, travel is to be reimbursed in the sound discretion of the court. In this instance, Global has failed to give any justification for the fee other than the conclusory allegation that it is an "acceptable amount." In addition, it has given no reason why travel costs should be reimbursed. The information provided is inadequate for me to make an accurate determination of a reasonable fee for Mr. Lily's testimony. Given that Global has been given an opportunity to amend its request for reimbursement and has been provided a copy of the Uniform Guidelines as a foundation for its request, it has had ample opportunity to provide the basis for its costs.
Therefore, the request for reimbursement for the expenses of Bernard Lalli are disallowed.
In summary, I find that Global has provided adequate additional support for reimbursement of the cost of the deposition of Terry Insko in the amount of
$120.00. That amount will be added to the amounts previously awarded. Therefore, IT IS ORDERED,
The previous Final Order is hereby amended as to costs only. The Department shall pay to Global the sum of $1119.70, in satisfaction of all costs due as a result of this action.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the Clerk of the Department.
DONE AND ORDERED in Tallahassee this 8th day of March, 1991.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CAROL M. BROWNER SECRETARY
Twin Towers Office Building 2600 Blairstone Road
Tallahasee, Florida 32399-2400
Telephone (904) 488-4805
FILING AND ACKNOWLEDGEMENT FILED, on this date, pursuant to 5120.52 Florida Statutes, with the designated Departmentment Clerk, receipt of which is hereby acknowledged.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER ON COSTS has been hand delivered to Don W. Davis, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; Ann Cole, Clerk, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; Cynthia Christen, Esquire, Department of Environmental Regulation, 2600 Blairstone Road, Tallahassee, Florida 32399-2400; and by U.S. Mail to Donna H. Stinson, Esquire, Suite 100, The Perkings House, 118 North Gadsden Street, Tallahassee, Florida 32301 and Christopher Bryant, Esquire, 2700 Blairstone Road, Suite C, Tallahassee, Florida 32301 on this 9th day of April, 1991.
CAROL A. FORTHMAN
Deputy General Counsel STATE OF FLORIDA DEPARTMENT ENVIRONMENTAL REGULATION
Twin Towers Office Building 2600 Blairstone Road
Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Dec. 19, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 18, 1991 | Agency Final Order | Filed incomplete. |
| Dec. 19, 1990 | Recommended Order | Respondent erred by rejecting bid for charcoal filters where petitioner plainly noted that specification would be met on all charcoal lots. |
