STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RESTAT, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0337BID

) DEPARTMENT OF ADMINISTRATION,)

)

and )

)

CONSULTEC, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on February 10, 1992 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Paul R. Ezatoff, Esquire

Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A.

Post Office Box 1877 Tallahassee, Florida 32302

FOR RESPONDENT: John M. Carlson, Esquire

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

FOR INTERVENOR: William L. Hyde, Esquire

Greenberg, Traurig, Hoffman, et al.

101 East College Avenue Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether or not Petitioner Restat's response to the Respondent Department of Administration's Invitation to Bid (ITB) 92-08 was responsive and is the lowest and best response.

STATEMENT OF THE CASE

On November 22, 1991, The Department of Administration (DOA) mailed ITB 92- 08, titled "Prescription Drug Card Program". On November 26, 1991, DOA issued an amendment to the schedule of events, changing the deadline for the opening of bids to December 10, 1991 at 2:00 p.m. On December 4, 1991, DOA issued a correction.

Several firms submitted bids in response to ITB 92-08, including Petitioner Restat and Intervenor Consultec, Inc. Consultec Inc. timely submitted an original, completed, and signed proposal. Restat transmitted, by facsimile, a copy of its proposal to its Tallahassee agent, Pharmacy Provider Service Corporation, (PPSC), which made a xerox copy of the facsimile transmission. On behalf of Restat, PPSC timely submitted the xerox copy to DOA.

The agency determined that the bids submitted by Consultec Inc. (Consultec) and Restat adhered to the bid completion requirement specified in the ITB. Six other bids were submitted, two of which were rejected as non-responsive. DOA's evaluation committee preliminarily determined that Consultec was the low bidder of all the bids that met the ITB specifications and recommended on December 13, 1991 that Consultec be awarded the contract to administer the prescription drug card program. The first three bidders as ranked in order by the evaluation committee were: Consultec, Health Care Pharmacy Providers, and Restat.

Restat timely filed a written protest and petition as to the proposed bid award. Restat had never filed any protest with regard to the nature, format, specifications, terms, criteria, provisions, or contents of the ITB before submitting its bid.

In its protest/petition filed after the notice of intended award, Petitioner Restat complained as follows:

5a. First, Consultec was not responsive to the ITB. Section IV, item 3.1, of the ITB required each bidder to attach to its bid a list of participating pharmacies, which list was to include at least one participating pharmacy in every Florida county in which there is a licensed pharmacy. The list attached to Consultec's bid did not meet the requirements of the ITB because it did not include participating pharmacies in at least

10 Florida counties in which licensed pharmacies are present. Pursuant to Section VIII of the ITB, Consultec's bid must be rejected as non-responsive.

5b. Second, the assumed average claim cost for brand name prescriptions used by DOA to evaluate the competing bids is higher than the actual average claim cost for such prescriptions. If the correct lower average cost is used to evaluate the bids, Restat's bid is lower than that of Consultec.

5c. Third, the assumed number of brand name prescription drug claims paid each year (1,706,000) is higher than the actual number of such claims paid each year. If the correct, lower number is used to evaluate the bids, Restat's bid is lower than Consultec's.

5d. Fourth, DOA erred in evaluating the bid on the basis of the assumed cost to the State

of a four year contract. As Section III of the ITB provides, DOA only intends to enter into a twenty-two month contract with the possibility of renewal for two additional twelve month terms subject to continued appropriations by the legislature. Since the base contract term is only twenty-two months, DOA's evaluation of the bids on the basis of an assumed four year contract is arbitrary and capricious. Assuming a four year term is especially objectionable and improper since any renewal of the contract is speculative and since the contract can under no circumstances remain in force for a four year term.

The cause was referred to the Division of Administrative Hearings on January 17, 1992.

Consultec was granted Intervenor status by an Order entered January 22, 1992.

Subsequently, a number of motions were filed and ruled-upon. Among the several motions, DOA and Consultec filed motions to dismiss Restat's petition on the grounds that Restat had failed to challenge the second presumed low bidder, Health Care Pharmacy Providers. In the alternative, Consultec moved to strike1/ paragraphs 5b, 5c, and 5d of Restat's petition because they constituted untimely challenges to the specifications contained in the ITB itself and had not been timely protested within the terms of the ITB or within 72 hours of Restat's initial receipt of the ITB pursuant to Section 120.53 (5) F.S., or indeed, prior to Restat's bid submittal.

After oral argument on these motions and a continuance of the scheduled formal hearing, but before the motions could be ruled-upon, Restat filed a Motion to Amend Petition to include, as grounds for Restat's prayer that the bid be awarded to Restat or that all bids be rejected, a wholly new allegation that the agency's use of ITB 92-08 instead of a Request for Proposals (RFP) was contrary to Section 110.123 F.S. No protest/petition on this ground had been filed within the statutory timeframe after receipt of the ITB or before Restat's submittal of its bid, either.

The parties were permitted additional time to expand their pending written motions and responses thereto, and appropriate pleadings were filed, as was a Joint Prehearing Stipulation.

By the Order on All Pendings [sic] Motions entered February 7, 1992, Restat's Motion to Amend Petition was denied, Consultec's and DOA's motions to dismiss were denied, and Consultec's motion to strike paragraphs 5b, 5c, and 5d of Restat's original petition was granted, for all of the reasons set out in the several pleadings and responses which appear of record herein, including but not limited to the authority of Capeletti Brothers, Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986) and its caselaw progeny.

At formal hearing, on February 10, 1992, the parties' Joint Prehearing Stipulation, which had been filed on February 5, 1992, was admitted as HO Exhibit A and Joint Exhibits A-F were also admitted. Petitioner moved for reconsideration of Restat's motion to amend petition and DOA's and Consultec's

motions to dismiss/strike. Further argument was heard, and upon reconsideration, the same rulings as contained in the February 7, 1992 order were reiterated orally by the undersigned.

Thereupon, Restat withdrew the only remaining allegations contained in its original Petition, that is, paragraph 5a thereof. Consultec announced that it declined to pursue a pending motion for attorney's fees and that Consultec was abandoning its allegations, previously raised, that Restat had no standing in this cause because Restat's bid was a facsimile copy and not an original.

Consultec announced that it retained the right to assert that Restat's Petition was fatally flawed by Restat's failure to allege that its bid was superior to the second lowest bidder, Health Care Pharmacy Providers.

Accordingly, there remained no disputed issue of material fact to be resolved by a Section 120.57(1) F.S. proceeding.2/

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

   
   

2. Either by interlocutory order or withdrawal of the issues there remain no further disputed issues of material fact for resolution in this forum.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED

That the Department of Administration enter a final order dismissing Restat's Protest/ Petition and ratifying its intended award of ITB 92-08 to Consultec.

DONE and ENTERED this 20th day of February, 1992, at 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 20th day of February, 1992.

ENDNOTES

1/ Consultec's motion was styled, Consultec's Motion to Strike or Dismiss Restat's Petition.

2/ However, by agreement of the parties, Restat was permitted to proffer argument and exhibits as to what Restat felt it could have shown had it been permitted to introduce evidence upon paragraphs 5b, 5c and 5d of its original Petition and the allegations of its Motion to Amend Petition. To this end,

Restat Exhibits 1-7 were proffered. DOA adopted as its proffer Restat's Exhibits 2, 3, and 6 and DOA's Exhibit 1 (Request for Official Recognition granted). Consultec proffered no materials.

COPIES FURNISHED TO:

John M. Carlson, Esquire Senior Attorney

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

William L. Hyde, Esquire

GREENBERG, TRAURIG, HOFFMAN, ET AL.

101 East College Avenue Tallahassee, Florida 32302

Paul R. Ezatoff, Esquire KATZ, KUTTER, HAIGLER,

ALDERMAN, DAVIS, MARKS & RUTLEDGE, P.A.

Post Office Box 1877 Tallahassee, Florida 32302-1877

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

John A. Pieno, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

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 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the dealine for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-000337BID

Orders for Case No: 92-000337BID