STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
COMPUTERLAND, n/k/a )
VANSTAR CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 94-3379BID
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard pursuant to Notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on July 7 and 8, 1994, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Paul L. SanGiovanni, Attorney at Law
Pleus, Adams, Davis & Spears, P.A. 940 Highland Avenue
Orlando, Florida 32803
For Respondent: William A. Frieder, Attorney at Law
Department of Health and Rehabilitative Services
Building E, Room 200 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
For Intervenor: Gregory Borgognoni, Attorney at Law Bell Atlantic Ruden & Barnett
Business 701 Brickell Avenue, Suite 1900 Systems Miami, Florida 33131
For Intervenor: J. Riley Davis, Attorney at Law NCR/ATT Katz, Kutter, Haigler, Alderman, Global Systems Marks & Bryant, P.A.
106 East College Avenue Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
Regarding the Department of Heath and Rehabilitative Services' (Department's) award of the contract contemplated by RFP 94-07BB-NTM: whether the Department's evaluation of Item 2.2.G of ComputerLand's Technical Proposal was arbitrary and capricious, whether the Department's evaluation of Item 2.2.K of ComputerLand's Technical Proposal was arbitrary and capricious.
PRELIMINARY STATEMENT
On December 27, 1993, the Department released Request for Proposal No. 94- 07BB-NTM relating to the full service hardware maintenance for videos, printers, microcomputers and associate components and peripheral devices (RFP). The RFP addressed five (5) categories of services to be provided and contemplated that the procurement may result in as many as five (5) separate contracts, with any number of component categories being awarded to a single contractor. The categories were identified as "Unisys", "IBM", "Zenith", "Other" and "Communications Controller."
The RFP required that each vendor responding to the RFP submit both a Technical Proposal and a Cost Proposal to the Department. On March 1, 1994, Petitioner, ComputerLand n/k/a/ Vanstar Corporation (ComputerLand), submitted its Technical Proposal and its Cost Proposal to the Department. On May 9, 1994, the Department announced its intent to award the contracts for the "Unisys" and "Other Vendor" categories to vendor AT&T NCR Global Systems and the contracts for the "IBM" and "Zenith" and "Communications Controllers" categories to vendor Bell Atlantic Business Systems Service. On May 12, 1994, ComputerLand served its Notice of Intent to Protest and on May 20, 1994, ComputerLand filed its formal Petition for Protest.
On June 17, 1994, the Petition was transmitted to the Division of Administrative Hearings (Division). The case was scheduled for hearing on July 7, 1994, and heard as noticed on July 7 and 8, 1994 in Tallahassee, Florida.
ComputerLand filed a timely protest of the intended award to AT&T and Bell of Categories 1-5 contending that HRS had improperly evaluated ComputerLand's response to the RFP in the following particulars:
The evaluation by HRS of requirement Item "G" of ComputerLand's Technical Proposal was arbitrary and capricious.
The evaluation by HRS of requirement Item "K" of ComputerLand's Technical Proposal was arbitrary and capricious.
The evaluation by HRS of the Corporate Capabilities Section of ComputerLand's Technical Proposal was arbitrary and capricious.
The award by HRS of the contract contemplated by RFP 94-07BB-NTM was arbitrary, capricious, and was otherwise outside of the authority of HRS.
ComputerLand neither challenged the validity of the evaluation by HRS of AT&T's response to the RFP, nor challenged the validity of the evaluation by HRS of Bell's response to the RFP. ComputerLand's position is that the evaluation by HRS of its technical response to the RFP was arbitrary and capricious. At final hearing, ComputerLand waived and withdrew its challenge to the evaluation by HRS of the Corporate Capabilities Section of ComputerLand's technical proposal.
At the commencement of the hearing, this Division granted the Petitions to Intervene of Bell Atlantic Business Systems Service and AT&T NCR Global Systems. The Division denied the Department's Motion to Dismiss.
ComputerLand presented the testimony of HRS Assistant Program Administrator, Karin L. Morris, HRS evaluators, Danny Jordan, William Horton,
Monique Emmanuel, and Douglas Davis and the testimony of Matthew J. Smith. Petitioner's Exhibits Nos. 1 - 28 were introduced into evidence, including the deposition of HRS evaluator, Nancy Pederson. The Department presented the testimony of Karin L. Morris and Danny Jordan and introduced Respondent's Exhibit No. 1.
The hearing was transcribed and the transcript filed with this Division on July 29, 1994. References to the hearing transcript shall be indicated with a "Tr" followed by the appropriate page number, a period and the line number.
References to the Petitioner's Exhibits shall be indicted with a "P-Ex." for Petitioner's and "R-Ex." for Respondent's followed by the exhibit number and, if appropriate, other identifying information.
Prior to the date proposed findings were to be filed, the parties moved for an extension of time in which to file their proposed findings until August 16, 1994. This was granted, and the time for filing this order was waived pursuant to Rule 60Q
orders which were read and considered. The Appendix to this order states which of the findings were adopted, and which were rejected and why.
FINDINGS OF FACT
On December 27, 1993, the Department published Request for Proposal No. 94-07BB-NTM requesting proposals to provide full hardware maintenance services for its videos, printers, microcomputers and associate components and peripheral devices. (P-Ex. 1 [RFP], Sections 1.2 and 1.2 [Statement of Need, Statement of Purpose], Page 9).
The contract(s) to be awarded pursuant to the RFP addressed hardware in five (5) categories, as follows:
Unisys Equipment IBM Equipment Zenith Equipment
Other Vendors' Equipment Communications Controllers
Vendors were invited to submit Proposals in any or all of these categories. It was possible that the procurement may have resulted in as many as five (5) separate contracts, with any number of component categories being awarded to a single contractor. (P- Ex. 1 [RFP], Section 1.1 and 1.2 [Statement of Need and Statement of Purpose], Page 9 described categories 1 - 4. The RFP was later modified to add the Communication Controllers described in category 5. (See, P-Ex. 2)
A conference was conducted by HRS to permit perspective vendors an opportunity to discuss the provisions of the RFP, and clarify any of its terms. (T-318,L-22) All prospective vendors received the same information in response to their individual questions about the RFP. ComputerLand asked questions at the conference and later which were answered. Prospective vendors, including ComputerLand, had the opportunity to challenge any specifications or requirements contained in the RFP. ComputerLand did not challenge any provisions of the RFP.
The RFP provided for the evaluation of proposals, as follows:
The department will conduct a comprehensive, fair and impartial evaluation of all proposals received in response to this RFP in compliance with the due dates specified in the section entitled "Calendar of Events".
Evaluation criteria are grouped into six categories, each of which will be discussed further in this section. The following shows the maximum number of points that may be awarded by section:
Category 1 Mandatory Requirements 0 points
Category 2 Management Summary 0 points
Category 3 Corporate Capabilities 100 points
Category 4 Project Staff 200 points Category 5 - Technical Approach 300 points Category 6 - Cost 400 points
Selection of the successful vendor will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP.
(P-Ex. 1 [RFP], Section 6.0 [Proposal Evaluation], Page 41).
The RFP provided that any proposals not meeting the Mandatory Requirements would be rejected. The RFP provided that an Evaluation Committee would thereafter evaluate the proposals in the technical categories of Corporate Capabilities, Project Staff and Technical Approach, with points awarded for each category. (P-Ex. 1 [RFP], Section 6.1 [Evaluation Procedure], Page 41).
The RFP provided that only those proposals receiving at least 450 points on the Technical Evaluation as assessed by the Evaluation Committee would have their Cost Proposals evaluated. (P-Ex. 2 [Amendments to the RFP], Amendment 15, [Amending Section 6.3 relating to the Evaluation of Cost Proposal], Amending RFP Page 44 and adding Page 44A).
The members of the Evaluation Committee were provided with a Proposal Evaluation Manual prior to performing the Technical Evaluation. The Manual set forth the guidelines, criteria and scoring parameters to be used by the Evaluation Committee in its evaluation of the proposals. (P-Ex. 3 [Evaluation Manual]; Tr. 35.11). The committee members followed the Manual in making their evaluations.
The committee's responsibility was to evaluate the Technical Approach, Corporate Capabilities and Project Staff sections of all responsive proposals. (P-Ex. 1, Page 41). Each vendor was advised that the Technical Approach section would be evaluated based on the vendor's supplied information in response to the section entitled "Tab 4-Technical Approach." The criteria to be used in evaluating responses to Technical Approach were listed in attachment D. (P-Ex.
1, Page 43). Attachment D to the RFP advised each vendor that HRS would evaluate the vendor's Technical Approach based upon completeness, viability, and quality. The evaluation criteria, for this area were listed and included the following:
Bidder's Training Program for Service Personnel
Proposed Reporting and Statuting System for Matching Performance
Proposed Procedures for Responding to Maintenance Calls.
Proposed Procedures for Remedial and Preventive Maintenance, Including Escalation Procedures
Proposed Contractor Maintenance Structure
Proposed Policy and Procedures Dealing with Spare Parts, Inventorying and Replacement
Proposed Test Equipment and Related Procedures
Proposed Responsibility Limitations
Proposed Policy and Procedures for Engineering Changes
Proposed Policy and Procedure for Engineering Changes [sic]
Proposed Procedures for Diagnostic Updates
Proposed Method to Maintain Department's Priority Status with Manufacturers and Continuing Support of System Engineers and Customer Support Centers
Proposed Method for Meeting Service Call Time Requirements, and
Proposed Method for (1) Minimizing Customer Impact Caused by Intermittent Problems and (2) For Meeting Required Availability Threshold. (P-Ex. 1, p.66).
The RFP advised the vendor that the proposals must include the number of experienced, trained staff that will be working on the project. Information provided should have included an explanation as to the experience of a particular staff member in maintaining the specified hardware included in each component category proposed and the experience of the staff member in maintaining hardware similar to that included in each component category proposed. (P-Ex. 1, pp. 36-37). In addition, the proposal must include a complete description of the proposed training plan for all the vendor's service personnel. (P-Ex. 1, p.38).
In evaluating specific criteria/questions within each of the categories, evaluators were required to score each response as follows:
0 = No Value: Bidder has no capability or has ignored this area.
1 = Poor: Bidder has little or no direct capability or has not covered this area, but there is some indication of marginal capability.
2 = Acceptable: Bidder has adequate capability
3 = Good: Bidder has a good approach with above capability.
4 = Superior: Bidder has excellent capability and an outstanding approach.
Questions identified in the evaluation manual as best answered by "yes" or "no" should be scored "0" for "no" and "2" for "yes," unless specified otherwise.
In considering the evaluation criteria for the Technical Approach section of the technical proposal, each evaluator was given 27 questions to specifically respond to and score by awarding points from 0 to 4. In certain instances the evaluator was to respond "yes" or "no" to the question and award either a 0 or a no answer or a "2" or "4" for a "yes" answer. (P-Ex. 3 pp. 64- 80).
Each of the Evaluators was instructed to review and read each Technical Proposal in its entirety in performing their evaluations - "to look everywhere for the information". (Tr. 73.18 and 294.7).
On March 1, 1994, ComputerLand submitted its Technical Proposal and its Cost Proposal to the Department on each of the five categories in the RFP. (P-Ex. 14 [Final Report and Recommendation for Award], Page 3).
ComputerLand submitted a cost proposal to the Department to perform the following services at the following cost:
5 x 9 | 6 x 14 | |
Unisys | $10,490 | $10,490 |
IBM | $93,891 | $93,891 |
Zenith | $18,989 | $18,989 |
Other | $12,406 | $12,406 |
Controller | $ 3,343 | N/A |
(Tr. 193.03)c
ComputerLand was found to have satisfied the Mandatory Requirements and its proposal was submitted to the Evaluation Committee for a Technical Evaluation. (P-Ex. 14, Page 5).
Facts Relating to Requirement Item 2.2.G
The RFP provided that the "Technical Approach" Category of the Proposal was to explicitly address all Department requirements specified in Section D and in the "Services to be Provided" section of the RFP. (P-Ex. 1 [RFP], Section 5.0 (D), Page 38).
Section 2.2 of the RFP titled "Services to be Provided" included Requirement Items 2.2.G and 2.2.K. (P-Ex. 1, Section 2.2, Pages 10 - 12).
Item 2.2.G of the RFP required a response to the following requirement:
G. The cost of maintenance service shall include unlimited replacement parts.
(P-Ex. 1, Section 2.2 (G), Page 12).
Throughout its proposal, ComputerLand restated each Requirement Item as set forth in the RFP in bold type which was immediately followed by ComputerLand's response to the Requirement Item in standard typeface. This formatting was not required by the RFP, but was done by ComputerLand purely for the convenience of the Department. (P-Ex. 4, Tab 14 [Cross Reference Index], Page 1. Also evident throughout P-Ex 4.)
ComputerLand explained in the proposal its method and its intent in restating each Requirement Item in the Cross-Reference Section of its Technical Proposal. Id. (ComputerLand Document Appendix, Tab 5)
ComputerLand's Proposal exactly restated each Requirement Item as set forth in the RFP with the exception of Item 2.2.G which did not address unlimited replacement parts, but mistakenly repeated the requirements of another provision relating to service calls. (P-Ex. 4, Section 4 [Technical Approach], Page 94) The reference to "service calls" in ComputerLand's duplication of Item
2.2.G was a scriveners error. (Tr. 218.13 and 220.3).
Four (4) of the five (5) HRS evaluators concluded or assumed that ComputerLand's response to 2.2.G was a mistake. Several made comments on their evaluations relating to it. Because of the mistake, ComputerLand did not state that it would furnish unlimited replacements parts in response to 2.2.G in its proposal.
In order for the evaluators to have considered ComputerLand's mistake in its response to the replacement parts requirement, the evaluators would have had to disregard the actual wording of the response which addressed service calls, and then substitute nonexistent language addressing replacement parts.
The provision of unlimited replacement parts was a material provision. The evaluators correctly identified the response as an erroneous response and properly did not assign points for ComputerLand's response.
With respect to the response to Item "G", the Evaluation Manual set forth a grading criteria which provided as follows:
Does the vendor state that he will supply unlimited replacement parts? (Section 2.2.G, Page 12).
Score:
Yes 4
No 0
(P-Ex. 3, Page 84).
Each evaluator scored ComputerLand zero (0) in this section, resulting in a weighted score of zero (0) for Item 2.2.G. (P-Ex. 13).
In contrast, IBM stated simply at page 4-48:
G. IBM accepts these conditions.
(P-Ex. 8, Page 4-48)(ComputerLand Document Appendix, Tab 8).
The evaluators concluded the response labeled "G" on page 4-48 of IBM's Technical Proposal was a response to Item 2.2.G of the Department's RFP,
based upon IBM's format and, even though page 4-48 did not include any direct reference to "replacement parts," awarded IBM four (4) points for this response, resulting in a weighted score of eight (8) points for Item 2.2.G. (P-Ex. 10; Tr. 55.25)(ComputerLand Document Appendix, Tab 8).
The IBM response was unambiguous in accepting the requirements of 2.2.G.
Facts Relating to Requirement Item 2.2.K
The RFP required a prospective vendor to identify staff who would be assigned to service HRS equipment. It further required that resumes of these individuals be provided as part of the proposal. ComputerLand submitted the resumes of its support personnel as required by the terms of the RFP. The resumes addressed in detail the experience and training of personnel on equipment.
Item 2.2.K of the RFP required a response to the following requirement:
K. All personnel performing maintenance must be trained to service the equipment listed in this RFP. Training shall be completed before the individual is assigned to service the equipment.
Training shall be provided at whatever level is deemed necessary to insure the individual has the requisite qualifications to perform satisfactory maintenance service on the equipment. Vendors shall submit with their proposal a summary of their training program
and resumes of personnel who will be performing this training. (Emphasis Added).
(P-Ex. 1, Section 2.2 (K), Page 12)
Other areas of the RFP requested information relating to the personnel who would be servicing the equipment, including inquiries regarding training programs and experience of the technical staff. (P-Ex. 1 pp.37, 38, 66).
With regard to Item "K", ComputerLand's response provided as follows:
ComputerLand fully agrees to comply with the training requirement for equipment contained in all five (5) categories. To review the current training levels for ComputerLand's Field Engineers and Branch Service Managers,
please see the Technical Response, Tab 3, Project Staff and Appendix 3: Support Staff Resumes.
For a complete description of ComputerLand's training program, including resumes of training personnel, please see the Technical Response Appendix 4: Charts and Exhibits, Item "G", Engineer Skills Matrix and Training Plan.
(P-Ex. 4, Tab 4 [Technical Approach], Page 95-96).
With respect to Section "K", numbered Item 23 in the evaluation criteria, the evaluation manual provided as follows:
23. Has the vendor affirmed that all personnel have already been trained to adequately service the equipment covered by the proposal? (Section 2.2.K, Page 12).
Score:
Yes 4
No 0
(P-Ex. 3, Page 86)(Emphasis Added).
Each evaluator applied this standard of evaluation to evaluate ComputerLand's response to Item 2.2.K.
Each evaluator scored ComputerLand zero (0) in this section, resulting in a weighted score of zero (0) for Item 2.2.K. (P-Ex. 13). According to Ms. Morris, the project manager, this was because ComputerLand's staff had poor experience; however, the separate evaluation of the staff requirement awarded ComputerLand 151 or 200 points, or fourth of eleven vendors. (P-Ex. 14, p. 12; Tr. 106-130).
The evaluators purportedly graded down ComputerLand on "Corporate Capabilities" because all of ComputerLand's existing personnel were not already trained.
The area in which ComputerLand was deemed to be specifically lacking, according to HRS, was in personnel to maintain "IBM Communications Controllers" or the equipment which acts as a switchboard/translator for mainframe computers. The ComputerLand staff were not trained on specific IBM equipment, specifically the 3745 communications controller, according to HRS. (Tr. 174.11)
The RFP did not include any indication in Section 2.2.K, or anywhere throughout the RFP, that the vendor was to affirm that "all personnel have already been trained to adequately service the equipment covered by the proposal". (P-Ex. 1 and 2).
The resume of Edward Wayne Barker specifically indicated under "Educational Background" certification or experience with "IBM Controllers and Term's [Terminals]". (P
services equipment, on site. (Tr. 223.9). However, Barker's resume was the only one which revealed experience or certification on IBM controllers.
ComputerLand's Technical Proposal included an outline of its training program and a chart which presented its method of establishing training needs and training the necessary personnel. (Appendix 4G [Field Engineer Skills Matrix and Training Plan] including Figures 1 and 2.) (ComputerLand Document Appendix, Tab 7). The reference to IBM equipment in this Training Matrix includes 3745 controllers. (Tr. 181.14 and 397.11).
The Evaluators assumed those staff members who were designated were the pool of personnel from which ComputerLand would select the personnel to work on the equipment covered under the proposal, and scored Item 2.2.K accordingly. (Tr. 118, 122 et seq.) In doing this, HRS differentiated between companies
which had some trained personnel and companies who had trained completely all their personnel. (Tr. 325, 1-10) HRS also assumed that the companies would not take further steps to acquire personnel trained to maintain equipment by additional hires, transfers of existing personnel, or training existing personnel.
Each evaluator scored ComputerLand a "0" in response to this question because ComputerLand had not affirmed that all personnel had already been trained to adequately service the equipment covered by the proposal. The answer to this question was considered by HRS to be a significant factor because if the personnel were not already trained, the vendor would not be able to meet the contract demands for commencing the contract.
Question 23 was not the only question by which the evaluators evaluated the training capabilities and programs of the vendor and experience level of the vendor's staff. For example, Question No. 1 in the Technical Approach section of the Evaluation Manual (p. 64) used training and staff as an element of evaluating the extent the vendor's proposal demonstrated an understanding of the scope of the services to be provided. (P-Ex. 3, p.64)
Question 13 in the Technical Approach section of the Evaluation Manual specifically requires the evaluation of how adequately the vendor's service personnel have been trained and specifically references 2.2 K, p. 12 of the RFP using the corporate responses as well as the Technical Materials. The evaluators were required to consider the formal training of each proposed service personnel and were also asked to consider whether all required training had been completed on the equipment being proposed. (P-Ex., p.76)
In response to the same question, Bull Customer Service answered as follows:
Bull Customer Service Engineers are experienced in supporting the equipment and systems utilized in the State of Florida Department of Health and Rehabilitative Services configurations in Table C for the categories being bid. Any additional training required will be completed before the individuals assigned to service the equipment covered by the contract.
* * * Supplemental training on either a "stand up" or "infield" basis is provided when any existing products or systems have major modifications implemented or whenever new models with major differences are added to a product line and
are shipped to users in the field. We schedule such supplementary training in advance of field shipment such that all appropriate service personnel can handle both installation and maintenance requirements on a totally profes- sional and efficient matter.
(P-Ex. 11, Tab 4, Page 4-10)(Emphasis Added).
Each evaluator awarded Bull Customer Service four (4) points for this response, resulting in a weighted score of eight (8) points for Item 2.2.K for Bull Customer Service.
Facts Relating to Adverse Effect of Agency Action
ComputerLand did not score at least 450 weighted points on its technical proposal and its cost proposal was not considered.
On May 9, 1994, the Department announced its intent to award the contracts for the "Unisys" and "Other Vendor" categories to vendor AT&T NCR Global Systems and the contracts for the "IBM" and "Zenith" and "Communications Controllers" categories to vendor Bell Atlantic Business Systems Service. (P- Ex. 15 and 16 and Tr. 84.10).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case, pursuant to Chapter 120, Florida Statutes.
Florida's Administrative Procedure Act (APA) provides the procedural mechanism for review of an agency's decision to award a bid or to reject all bids. However, the scope of inquiry at these proceedings is limited to whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly in rendering its decision to award the bid to the specified vendor. It is not the Hearing Officers function to reweigh the award factors and award the bid to the protestor. This is the sole prerogative of HRS. Courtenay v. Department of Health and Rehabilitative Services, 581 So.2d 621 (Fla. 5th DCA 1991).
If it is determined that the evaluation by HRS of ComputerLand's response to the RFP was arbitrary or capricious, HRS cannot automatically award the contract to ComputerLand. HRS must reevaluate ComputerLand's proposal, as well as the proposals of the other vendors, and render its decision. This procedure is necessary to maintain the integrity of the competitive bidding process. Moore v. State, Department of Health and Rehabilitative Services, 596 So.2d 759 (Fla. 1st DCA 1992).
Accordingly, in this case, the Hearing Officer's ultimate function is to determine whether HRS properly evaluated ComputerLand's responses to the RFP regarding the issues raised by ComputerLand, to wit, items G and K of the Technical Proposal.
STANDING
Because of the two tiered system of evaluation used by HRS, no vendor who was eliminated by the first assessment would have been considered in the second tier and have an opportunity to be "runner-up." In such a process, a vendor need not be runner-up to have standing to challenge the process under which it was eliminated at the first assessment upon allegations that the process was arbitrary or capricious.
In particular, ComputerLand may demonstrate that, but for the alleged arbitrary and capricious assessment of its proposal of Items 2.2.G and 2.2.K, it would have met and exceeded the 450 point threshold. If ComputerLand can show it would have made it over the first hurdle, but for the arbitrary and capricious conduct, it has standing.
General
As the protestant, ComputerLand has the burden of establishing, by a preponderance of the evidence, that HRS's action or decisions in this case departed from the essential requirements of law. The Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In soliciting and accepting competitive bids, therefore, an agency has wide discretion, and its decision, if based on an honest exercise of this discretion, and is not arbitrary or capricious, will not be overturned even if reasonable persons may differ with the outcome. See DOT v. Groves-Watkins Constructors,
530 So.2d 912 (Fla. 1988); Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla. 1982).
It is well established that, although not required by common law, competitive bidding has been statutorily mandated for the protection of the public. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, (Fla. 1988). Competitive bidding not only provides a means by which the goods or services required by public authorities may be acquired at the lowest possible cost, the system of competitive bidding also protects against collusion, favoritism and fraud in the award of public contracts. Id. Rules relating to the competitive bidding process are designed to prevent competitive advantages, insure public confidence in the bidding process and encourage future competition. E.M. Watkins v. Board of Regents, 414, So. 2d 583 (Fla. 1st DCA, 1982) The subject RFP specifies that the Department's evaluation will be "comprehensive, fair and impartial". See, 6.0, RFP.
Issue (a). Whether the Department's evaluation of Item 2.2.G of ComputerLand's Technical Proposal was arbitrary and capricious.
ComputerLand's proposal erroneously failed to state that it would provide unlimited replacement parts. It stated instead that it would provide unlimited service calls. While this was an error, and identified as such by most of the evaluators, they could not supply the correction and the response failed to agree to a material requirement of the request for proposal. The action of HRS was not arbitrary or capricious in scoring this requirement.
Although the Technical Proposal submitted by IBM did not restate the text of the RFP, it stated sufficient information for the evaluators to conclude that IBM had accepted the requirement to provide unlimited replacement parts. The vendors were free to present their proposals in any fashion they desired; however, it had to be responsive. Had IBM mistakenly written "H." instead of "G.", its response also would have been unresponsive to 2.2.G.
While the agency could waive requirements which were not material, the failure of ComputerLand to affirmatively respond to Requirement 2.2.G was material, and to waive the error would have given ComputerLand an advantage over the other vendors because, in the absence of some amendment of its proposal, it would not have been legally obligated to provide unlimited replacement parts. ComputerLand's error was material because it went to the costs of providing the service.
Issue (b). Whether the Department's evaluation of Item 2.2.K of ComputerLand's Technical Proposal was arbitrary and capricious.
The difference between the proposal requirement and evaluation criteria can be clearly seen by comparing the RFP requirement with the criteria included in the Evaluation Committee Manual, as follows:
Requirement of the RFP: All personnel perform- ing maintenance must be trained to service the equipment listed in this RFP. Training shall be completed before the individual is assigned to service the equipment. Training shall be provided at whatever level is deemed necessary to insure the individual has the requisite qualifications
to perform satisfactory maintenance service on the equipment. Vendors shall submit with their proposal a summary of their training program and resumes of personnel who will be performing this training. [Emphasis Added].
Evaluation Manual Criteria: Has the vendor affirmed that all personnel have already been trained to adequately service the equipment covered by the proposal? (Section 2.2.K, Page 12). [Emphasis Added].
Score:
Yes 4
No 0
The plain language of Item 2.2.K requires the vendor to provide a summary of its training program and personnel information which would indicate that personnel performing maintenance would be trained to service the equipment listed in the RFP. The second sentence of the Item 2.2.K indicates that the Requirement Item is requesting information relating to training to be performed during the term or period of the contract. The RFP did not include any indication in Section 2.2.K or elsewhere in the RFP that the vendor was to affirm that "all personnel have already been trained to adequately service the equipment covered by the proposal" in its Technical Capabilities Section of the Technical Proposal.
The evaluation criteria for Requirement Item "K" required the Vendor to illustrate that its staff had already been trained to service the equipment.
The evaluation criteria assessed a requirement not contained in the RFP by assessing whether personnel, as of the date of the proposal, "have already been trained" to adequately service the equipment.
Further, the specific basis for down grading ComputerLand's proposal was lack of experience on the part of its personnel with IBM communications controllers. The alleged lack of experience with these devices of ComputerLand was scored against the vendor on portions of its proposal which did not relate to either IBM equipment or communications controllers, which were separate items under the RFP, and, therefore, the maintenance responsibility of the vendor who was selected for those categories. HRS's evaluation method reduced ComputerLand's scores in categories unrelated to IBM communications controllers.
The evaluation of the requirements based on criteria unrelated to the requirement in the RFP is arbitrary and capricious, and the evaluation of categories based upon criteria unrelated to the category of equipment being evaluated is also arbitrary and capricious.
It is also apparent that the evaluators did not treat the vendors uniformly with respect to this evaluation item. For example, the proposal submitted by Bull Customer Service, like the response in the proposal submitted by ComputerLand, indicated its personnel were generally trained and referred to future or anticipated training of personnel.
Although Bull Customer Service and ComputerLand both indicated that they would train their personnel prior to assigning them to maintain the Department's equipment, each evaluator awarded Bull Customer Service four (4) points for this response, resulting in a weighted score of eight (8) points for Item 2.2.K for Bull Customer Service, while ComputerLand was awarded zero (0) points for providing essentially the same response.
The Department's evaluation of this Requirement Item for ComputerLand in a fashion different from Bull is arbitrary and capricious, undermines the intent of competitive bidding and dilutes the public's confidence in the process, all as prohibited by the Court's decision in Department of Transportation v. Groves-Watkins Constructors and its progeny.
ComputerLand's Technical Proposal fully and completely responded to Item 2.2.K of the RFP.
Had the Department properly evaluated ComputerLand's response to Item
2.2 K, ComputerLand would have been awarded the full four (4) points, translating into eight (8) weighted points for Item 2.2.K. (See, Appendix "A").
Summary of Issues
The Petitioner proved that the Department evaluation of Requirement
2.2.K was arbitrary and capricious. The Petitioner failed to show that the Department consideration of Requirement 2.2.G was arbitrary and capricious. Because of the numerical score which had to be attained, it was necessary for Petitioner to prevail on both issues in order to be considered further in the evaluation process. Therefore, it is recommended that the Petitioner petition be dismissed.
The Department's Motion for Attorneys Fees
The Department moved for the assessment of Attorney's Fees and Costs. The motion was grounded upon allegations that the "Petitioner knew at the time that it filed its petition that it had no standing to do so." As stated above, the Petitioner has standing. The Motion for attorney's fees and costs is denied.
Based upon the foregoing findings of fact and conclusions of law set forth herein, it is,
RECOMMENDED that the Petitioner's Petition be dismissed.
DONE AND ENTERED this 21st day of September, 1994, in Tallahassee, Florida.
STEPHEN F. DEAN
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 21st day of September, 1994.
APPENDIX
All the parties submitted proposed findings which were read and considered.
The following states which findings were adopted, and which were rejected and why.
Petitioner's Findings
Paragraph 1-2 Paragraph 1-3
Paragraph 3-6 Paragraph 5-8
Paragraph 7-13 Paragraph 14-18
Paragraph 14-21 Paragraph 21-24
Paragraph 22-26 Paragraph 27-30
Paragraph 27 Paragraph 33
Paragraph 28-31 Paragraph 35-38
Paragraph 32-36 Paragraph 40-43
Paragraph 37,38 Paragraph 48,49
Paragraph 39 Paragraph 51
ATT's Findings
Paragraph 1 Subsumed in Paragraph 51.
Paragraph 2 Irrelevant and subsumed in other findings. Paragraph 3 Irrelevant.
Paragraph 4 Paragraph 5
Paragraph 5 Subsumed in Paragraph 6,9,12.
Paragraph 6 Paragraph 8,10,19,20,33
Paragraph 7 Subsumed in Paragraph 9. Paragraph 8 Conclusion of Law Paragraph 9 Paragraph 11
Paragraph 10 Paragraph 12,13,
Paragraph 11 Rejected because part of the guidelines were arbitrary and capricious.
Paragraph 12 Paragraph 19,20
Paragraph 13 Paragraph 27
Paragraph 14 Subsumed in 25-31.
Paragraph 15,16 Paragraph 33,34
Paragraph 17 Subsumed in Paragraph 41 et seq. Paragraph 18,19 Paragraph 36,37,46,47
Paragraph 20 Questions 1 & 13 are not challenged, and are irrelevant.
HRS's Findings
Paragraph 1 Statement of Case Paragraph 2 Subsumed in Paragraph 1,2.
Paragraph 3 Subsumed in Paragraph 8.
Paragraph 4 Subsumed in Paragraph 5.
Paragraph 5 Paragraph 50 Paragraph 6 Statement of Case Paragraph 7 Conclusion of Law
Paragraph 8 Statement of Case & Issues Paragraph 9 Subsumed in Issues Paragraph 10 Conclusion of Law Paragraph 11 Irrelevant
Paragraph 12-15 Paragraph 4
Paragraph 16 Subsumed in other findings. Paragraph 17,18 Subsumed in Paragraph 32.
Paragraph 19,20 Paragraph 44
Paragraph 21 Rejected as being contrary from the stated requirements. Paragraph 22 Unnecessary.
Paragraph 23 Argument.
Paragraph 24-27 These facts are true; however, IBM equipment and Communications Controllers were separate categories of equipment under the RFP, therefore, there was reason to grade ComputerLand down for lack of trained personnel to maintain these items in considering its proposal on unrelated equipment.
Paragraph 28 Relates to HRS's argument on standing, and is irrelevant under the HO's suggested view of this issue.
Paragraph 29,30 Subsumed in Paragraph 23,24
Paragraph 31 Paragraph 26.
Paragraph 32 Paragraph 25
Paragraph 33-35 True, but addressed by not making affirmative findings on these issues.
Paragraph 36 The facts indicate that the evaluation of 2.2.K was arbitrary and capricious.
COPIES FURNISHED:
Paul L. SanGiovanni, Esquire Pleus, Adams, Davis & Spears, P.A. 940 Highland Avenue
Orlando, Florida 32803
William A. Frieder, Esquire Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory Borgognoni, Esquire Ruden & Barnett
701 Brickell Avenue, Suite 1900
Miami, Florida 33131
J. Riley Davis, Esquire
Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A.
106 East College Avenue Tallahassee, Florida 32301
Robert L. Powell, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32399-0700
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. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
OF STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
COMPUTERLAND, n/k/a VANSTAR CORPORATION,
Petitioner,
vs. Case No. 94-3379BID
RENDITION No. 94-392-FOF-BID
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/
FINAL ORDER
THIS CAUSE came on before me for entry of a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings ("DOAH") in the above-styled case has submitted a Recommended Order to the Department of Health and Rehabilitative Services ("HRS"; "the Department"). The Recommended Order of Hearing Officer Stephen F. Dean dated September 21, 1994, is attached hereto and incorporated by reference.
RULINGS ON EXCEPTIONS COMPUTERLAND'S EXCEPTIONS
Counsel for Computerland filed exceptions to findings of fact 24-26, 30, 31, and to conclusions of law 54 and 60-62.
With respect to the Hearing Officer's finding 24, counsel excepts to the following portion thereof: "Because of the mistake, Computerland did not state that it would furnish unlimited replacement parts in response to 2.2.G in its proposal." "[T]he mistake" refers to Computerland's failure, in its response to 2.2.G, to specifically address the requirement that "[t]he cost of maintenance service shall include unlimited replacement parts." My review of the entire record discloses that this portion of finding 24 is supported by record evidence.
Counsel also excepts to the finding in paragraph 24 that "[f]our (4) of the five (5) HRS evaluators concluded or assumed that Computerland's response to
2.2.G was a mistake." The evidence leads to a conclusion that in addressing
2.2.G Computerland did not adequately address unlimited replacement parts. Its proposal indicated that it was addressing not unlimited replacement parts but, instead:
The cost of maintenance service shall include unlimited service calls during the principal period of maintenance except as defined in the contract.
The exceptions to finding 24 are denied.
Counsel for Computerland next excepts to finding 25 that Computerland's error, specifically the failure of what it presented in its proposal as 2.2.G. to clearly address unlimited replacement parts rather than unlimited service calls, would have required the evaluators to disregard the actual wording and substitute nonexistent language addressing replacement parts. The record evidence supports the Hearing Officer's finding. The exception is denied.
In his exception to finding 30, counsel for Computerland "seeks a modification of [finding] 30 to include the word `logically' before the word
`concluded' in the first line of the first sentence." counsel urges that the proposed modification would render the Hearing Officer's finding 30 more consistent with the testimony. The exception is denied. Because a witness' testimony describes a conclusion by the evaluators as a "logical conclusion" is not a reason to require the hearing Officer's finding to parrot the witness' testimony. The Hearing Officer's finding 30 is permissible as it stands.
Counsel for Computerland excepts to finding 31 that "[t]he IBM response was unambiguous in accepting the requirements of 2.2.G." The Hearing Officer's finding is permissible based on the evidence. Whether a statement is clear or unclear, or ambiguous, is a permissible and therefore proper factual finding.
The exception is denied.
Counsel next excepts to finding 26 that "the evaluators correctly identified the response as an erroneous response and properly did not assign points for Computerland's response." counsel, in a play on words, again urges that the "response" was not erroneous. Clearly the manner in which 2.2.G was set out in Computerland's proposal contained a costly error. Because of the
error, no points were awarded to Petitioner. The evaluators' actions were proper in all respects in light of Computerland's error. The evidence supports finding 26. The exception is denied.
Computerland excepts to conclusion 54 that even if HRS" evaluation of Computerland was arbitrary, HRS could not automatically award the contract to Computerland, but must reevaluate Computerland's proposal, as well as the other proposals. Clearly, an evaluation of Computerland's proposal would be needed in order to assign points. It is not clear that the proposals of the other vendors would have to be reevaluated. The exception is granted as far as conclusion 54 would require the other vendors' proposals to be reevaluated merely because the one vendor's evaluation had been arbitrary. The exception is denied insofar as it disagrees that Computerland's proposal would need to be evaluated before it could receive the award.
Counsel excepts to conclusion 60, pointing to other places in Computerland's proposal that could have been interpreted as agreeing to provide unlimited replacement parts. The exception is denied. The evaluation team properly conducted its evaluation of 2.2.G, and the Hearing Officer's conclusion of law is correct.
Conclusion of law 61 is excepted to on the grounds that IBM'S response to "G" was simply "IBM accepts these conditions" (unlimited replacement parts).
There being nothing missing in IBM's response, the exception is denied.
Counsel excepts to conclusion 62, arguing that the error which resulted in Computerland receiving zero (0) points for 2.2.G, unlimited replacement parts, was a minor irregularity that the Department should have waived. Conclusion 62 is supported by the evidence. The failure of Computerland to affirmatively respond to 2.2.G was material, and to waive the error would have given Computerland an advantage over the other vendors in that it would not have been legally obligated to provide unlimited replacement parts. The error was material because it went to the costs of providing the services. Accordingly, the exception is denied.
BELL ATLANTIC'S EXCEPTIONS
Counsel for Intervenor Bell Atlantic Business Systems ("Bell Atlantic) filed written exceptions consisting of paragraphs 1-3, 15-24 of the proposed findings of fact and paragraphs 1-3, 5, 6, of the proposed conclusion of law contained in Bell Atlantic's Proposed Recommended Order." Bell Atlantic's "exceptions" to the Hearing Officer's findings of fact are incomplete in that they do not specifically allege that said findings are not supported by record evidence. The agency is without authority to make findings of fact or supplementary findings of fact. Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla. 1st DCA 1987). Accordingly, counsel's proposed findings cannot be substituted in this final order for the Hearing Officer's findings. Since Bell Atlantic has failed to assert that the Hearing Officer's findings of fact are improper as not supported by the evidence, said exceptions are invalid and are accordingly denied.
Bell Atlantic also excepts to the Hearing Officer's conclusion of law that the Department acted arbitrarily when it evaluated a requirement not contained in the RFP by assessing whether personnel, as of the date of the proposal, "have already been trained" to adequately service the equipment. But the RFP requires that "Training shall be completed before the individual is assigned to service the equipment," not that they be already trained as of the day the proposal is
submitted. Conducting an evaluation of a requirement that is not clearly stated in the RFP is arbitrary because the vendor was not put on notice of the requirement. The Department drafted the requirements. Any uncertainty must be decided against the drafter. Bell Atlantic's exceptions to the conclusions of law contained in the Recommended Order are denied.
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order, except where inconsistent with the above Rulings on Exceptions.
Based upon the foregoing, it is
ADJUDGED that the Petition for relief and the formal written protest of Petitioner Computerland n/k/a Vanstar Corporation be and the same are hereby DISMISSED. It is further adjudged that the Department may now proceed with the procurement that is the subject of this proceeding.
DONE and ORDERED at Tallahassee, Leon county, Florida, this 18th day of October, 1994.
H. James Towey, Secretary Department of Health and
Rehabilitative Services
by Lowell Clary
Deputy Secretary for Administration
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
COPIES FURNISHED:
Paul L. SanGiovanni, Esquire Pleus, Adams, Davis & Spears, P.A. 940 Highland Ave.
Orlando, Florida 32803
William A. Frieder Esquire Department of Health and
Rehabilitative Services 1323 Winewood Blvd.
Tallahassee, Florida 32399-0700
Gregory Borgognoni, Esquire Ruden & Barnett
701 Brickell Ave., Suite 1900
Miami, Florida 33131
J. Riley Davis, Esquire
Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A.
106 East college Ave. Tallahassee, Florida 32301
Hearing Officer Stephen F. Dean Division of Administrative Hearings The DeSoto Bldg.
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been furnished to the above-named persons by U.S. Mail this 21st day of October, 1994.
ROBERT L. POWELL, SR.
Agency Clerk
Department of Health and Rehabilitative Services
Building E, Suite 200 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
(904) 488-2381
| Issue Date | Proceedings |
|---|---|
| Oct. 21, 1994 | Final Order filed. |
| Sep. 21, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 07/07 & 08/94. |
| Aug. 17, 1994 | (unsigned) Proposed Recommended Order of Intervenor Bell Atlantic Business Systems Services, Inc. w/cover ltr filed. |
| Aug. 17, 1994 | Document Appendix to Computerland`s Proposed Recommended Order w/cover ltr & computer disk filed. |
| Aug. 17, 1994 | Proposed Recommended Order of NCR/AT&T Global Information Solution w/computer disk filed. |
| Aug. 16, 1994 | (Respondent) Proposed Findings of Fact and Conclusions of Law w/Computer Disk filed. |
| Aug. 05, 1994 | Letter to Frank Vignochi from Kenneth S. Klein (re: conversation regarding an extension of time) filed. |
| Aug. 03, 1994 | Computerland'/s Request for One (1) Day Extension of Time Within Which to File Proposed Findings of Fact and Law filed. |
| Jul. 29, 1994 | Transcript (Vols 1-3) filed. |
| Jul. 08, 1994 | (Petitioner) Motion to Amend Protest; Notice of Service of Amended Exhibit List w/Exhibit-A filed. |
| Jul. 07, 1994 | CASE STATUS: Hearing Held. |
| Jul. 06, 1994 | (Petitioner) Computerland's Notice of Filing of Unilateral Proposed Prehearing Stipulation filed. |
| Jul. 06, 1994 | (Petitioner) Notice of Service of Computerland`s Answers to Respondent`s First Interrogatories to Petitioner filed. |
| Jul. 06, 1994 | Respondent's Prehearing Submission filed. |
| Jul. 06, 1994 | Order sent out. (Bell Atlantic and AT&T may intervene) |
| Jul. 01, 1994 | (Petitioner) Petition to Intervene of NCR/AT&T Global Information Solutions filed. |
| Jun. 30, 1994 | (Bell Atlantic Business Systems) Motion to Be Joined As A Party of Record filed. |
| Jun. 30, 1994 | Petitioner`s Notice of Taking Deposition Duces Tecum (6); Petitioner`s First Request for Production And Inspection of Documents; Notice of Service; Computerland`s Objections To Respondent`s First Interrogatories To Petitioner filed. |
| Jun. 29, 1994 | Respondent's Notice of Taking Deposition filed. |
| Jun. 29, 1994 | Respondent's First Interrogatories to Petitioner Computer/Vanstar Corporation; Notice of Service of Interrogatories; Computerland's Objections to Respondent's First Interrogatories to Petitioner; Notice of Compliance; Notice of Protest w/Notice of Referra |
| Jun. 28, 1994 | (Respondent) Notice of Service of Interrogatories filed. |
| Jun. 23, 1994 | Prehearing Order sent out. |
| Jun. 23, 1994 | Notice of Hearing sent out. (hearing set for 07/07/94, 9:00 a.m., Tallahassee) |
| Jun. 20, 1994 | Notice of Related Case (94-3370BID & 94-3379BID); (DHRS) Motion for the Assessment of Attorney's Fees and Costs; (DHRS) Motion to Dismiss and Request for Hearing; Notice of Referral and Notice to Bidders; Petition and Formal Written Protest (letter form) |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 18, 1994 | Agency Final Order | |
| Sep. 21, 1994 | Recommended Order | In a two tiered review of BIDs, a nonrunner up may have standing. Agreement to provide the wrong service is not compliance; Agency must grade criteria. |
