STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ACORDIA OF SOUTH FLORIDA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6454BID

)

DEPARTMENT OF MANAGEMENT )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on January 4, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert S. Cohen, Esquire

Post Office Box 10095 Tallahassee, Florida 32302

For Respondent: Terry A. Stepp, Esquire

Suite 312, Knight Building 2737 Centerview Drive

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUES

The issue is whether respondent acted fraudulently, arbitrarily, illegally, or dishonestly in proposing to award the agent of record contract for the Fire Insurance Trust Fund to Johnson & Higgins of Georgia, Inc.

PRELIMINARY STATEMENT

This matter began on May 27, 1993, when petitioner, Rogers & Cummings, Inc., d/b/a ABI Walton Insurance, now known as Acordia of South Florida, Inc., filed its formal written protest contesting a decision by respondent, Department of Management Services, to award a contract for the placement of certain insurance to Johnson & Higgins of Georgia, Inc. The protest generally alleged that during the negotiation phase of the process, respondent had imposed new requirements not previously addressed in the prequalification document.

Thereafter, the protest was dismissed by the agency because petitioner failed to timely post a bond in accordance with Subsection 287.042(2)(c), Florida Statutes. The agency's order of dismissal was appealed, and the district court of appeal later remanded the case to respondent with instructions that it make a "determination (of the protest) on the merits." ABI Walton Insurance v. Dept. of Management Services, 610 So.2d 38 (Fla. 1st DCA 1994).

The matter was then referred by respondent to the Division of Administrative Hearings on November 17, 1994, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated November 18, 1994, a final hearing was scheduled on December 1, 1994, in Tallahassee, Florida. At petitioner's request, the matter was continued to January 4, 1995.

At final hearing, petitioner presented the testimony of Jerry Walton, its executive vice-president. Also, it offered petitioner's exhibit 1 which was received in evidence. That exhibit is the deposition of Wiley H. Cooper, IV, a property manager with Cooney, Rikard and Curtin, an insurance firm in Birmingham, Alabama. Respondent presented the testimony of Robert J. Castellanos, director of the Department of Insurance's division of risk management, and Stephany R. Fall, an operations management consultant III with respondent. Also, it offered respondent's exhibits 1-9. All exhibits were received in evidence.

The transcript of hearing was filed on January 17, 1995. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to February 21, 1995, and then again to February 28, 1995. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Respondent, Department of Management Services (DMS), has the responsibility of procuring insurance coverage for all state agencies. One area of coverage is for fire, windstorm and other risks to state owned buildings and their contents. The state is a self-insurer for the first two million dollars of loss through a fire insurance trust fund established for that purpose, but it purchases excess coverage from commercial insurance carriers for any claims in excess of that amount.

      
      

   2. Prior to this dispute arising, DMS obtained this excess coverage through the solicitation of bids and the awarding of a contract to an insurance company who purchased the excess coverage on behalf of the state. Indeed, petitioner, Acordia of South Florida, Inc. (ASFI), had provided this coverage for the previous nine years.

      
      

   3. Due to "gaps" in coverage caused by Hurricane Andrew in August 1992, and its desire to reduce rapidly spriraling costs, DMS decided to select an "agent of record" for obtaining the excess coverage. Under this approach, the selected firm (agent of record) would agree to work on behalf of the state to select and negotiate sufficient coverages for the Fire Insurance Trust Fund Excess Property Program.

      
      

   4. After obtaining the agency head's approval to negotiate a contract under Rule 60A-1.018(2), Florida Administrative Code, rather than use the normal competitive bid or request for proposal process, a DMS staffer, in consultation with the Department of Insurance (DOI), prepared a prequalification questionnaire which was sent to interested vendors on April 28, 1993, inviting them to prequalify for the contract.

   5. Based on prequalification, the three highest ranked vendors were required to give an oral presentation to, and answer questions by, an evaluation committee who ranked them based on their presentation and responses. Only four vendors filed prequalifying responses, including petitioner and Johnson & Higgins of Georgia, Inc. (JHGI). After one vendor was preliminarily disqualified, the committee met separately with each of the three remaining vendors and then assigned a score.

      
      

   6. Under the committee's scoring procedures, JHGI received the highest score and was slated to receive the contract. Petitioner was ranked second. Claiming that the evaluation committee raised new matters during the negotiation process that were not contained in the prequalification questionnaire, ASFI has challenged the award of the contract to JHGI.

      
      

2. The Specifications

   
   

   1. DOI was aware that several other states, including the State of Georgia, were using the agent of record approach for insurance acquisitions. Accordingly, DMS obtained a blank Request for Proposal used by the State of Georgia and gave it to DOI to use in tailoring specifications that would fit DMS' needs. There was no mention or reference to JHGI in any material received from Georgia. During the formulation of the Florida solicitation, DOI did not contact nor receive any input from JHGI. The suggestions by petitioner that JHGI improperly influenced the drafting of the specifications, or that the specifications were drawn in JHGI's favor, are rejected.

      
      

   2. DMS' invitation to negotiate was issued on April 28, 1993. It advised all vendors that DMS intended "to negotiate to award a contract to a licensed insurance broker/agent for the placement of the State of Florida's Fire Insurance Trust Fund Excess Property Program." (emphasis added) The invitation further stated that each broker/agent must complete the attached prequalifying questionnaire and return it to DMS by 2:00 p. m. on May 7, 1993. The questionnaire was simply intended to screen out bidders that could not qualify, establish minimum standards, and identify qualified firms for further negotiations. It was always envisioned that those vendors who prequalified would be asked additional questions during the actual negotiation process. During these discussions, Rule 60A-1.018(2), Florida Administrative Code, which governs this process, allows the vendor to give a "final firm price, terms and conditions."

      
      

   3. Of particular relevance to this dispute were the requirements in the questionnaire that each vendor identify (a) the "account executives" who would be assigned to the state's account (subparagraph 2a.), and (b) "information on compensation" (paragraph 4).

      
      

   4. Paragraph 2 of the questionnaire dealt generally with a vendor's organization and staffing. Subparagraph 2a. required the vendor to state "the name(s) and provide a resume for the account executive(s) who will be assigned to this account." In other words, the vendor was required to name the individuals who would administer the program.

      
      

   5. The second item in question, which contained a number of typographical errors, pertained to information on compensation and informed all vendors that they would be paid on a "fee basis." Subparagraph 4a. required the firm to "give details on how you will document that coverage are (sic) placed on a 'net' (ex-commission) basis," subparagraph 4b. stated that "(n)o commission may be

      received for placements of these (sic) coverage," while subparagraph 4c. provided that "(i)f your firm utilizes an intermediary, surplus lines of (sic) London broker owned by your firm or your parent firm, no commissions shall be allowed to these firms." Under this arrangement, then, the successful vendor would provide the services for a flat fee and state the amount of that fee on the questionnaire, and DMS would pay only premiums, with no commissions included, to insurance carriers for the coverage needed. This requirement was considered critical to DMS for controlling costs because DMS wanted to be sure it was paying pure premium to the carriers for risk coverage and not commissions to other entities for merely doing paperwork.

      
      

   6. Finally, the invitation to negotiate provided that after the questionnaires were timely filed, the three highest ranked vendors would meet individually with an evaluation committee and "verbally present and discuss the information furnished by the broker/agent and to answer questions posed by the committee." The latter questions are found in respondent's exhibit 8.

      
      

3. The Evaluation Process

1. The evaluation committee was composed of four persons, three from DMS, and one from DOI. All members participated in the questioning of vendor representatives, and after the session, each reviewed the tape recording of the meeting and independently assigned scores to each of the three vendors. Thereafter, the scores were combined and overall rankings were assigned the vendors. In this case, JHGI received a score of 310, petitioner received a score of 290, and Arthur J. Gallagher & Company, the third vendor, received the lowest score of 230.

   
   

2. During the negotiation phase of the process, all vendors were asked to state "the name of one person and one alternate to be the account executive to administer the coverage" (question 2.a.). Petitioner says it had no advance notice that the name of an additional person would be required. Believing that DMS was looking for a person with multiple designations, ASFI initially responded to the question by naming Lee Anne Cross, an employee with CPUC, CIC, and AMIM designations. Since Cross had not handled a billion dollar property account, however, ASFI was given no points for naming that individual. In hindsight, ASFI now says that it would have named a different individual who had the necessary experience in handling large accounts, and this individual would have received at least thirty more points. Whether this assumption is correct is speculative at best. Even so, the committee did not allow petitioner to change its response and name a more qualified individual, and in this respect DMS did not follow the requirements of its own rule (60A-1.018), which contemplates that a vendor be allowed to give a "final firm price, terms and conditions" during the negotiation process.

   
   

3. Petitioner contends that by requesting this information during the discussion phase of the process, the committee imposed a new requirement not previously mentioned in the prequalification questionnaire. However, the specifications asked each vendor to "state the name(s) and provide a resume of the account executive(s) who would be assigned to the account," and each vendor was advised to be prepared "to discuss the information furnished by the Broker/Agent and to answer questions posed by the committee." Accordingly, it is found that DMS did not deviate from the requirements stated in the prequalification questionnaire by asking question 2.a. Indeed, petitioner's witness acknowledged that when the question was asked, he simply named the wrong employee.

4. During the negotiation process, all vendors were asked to provide a statement that they intended to comply with the requirement that DMS would pay no commissions to intermediaries who secured excess coverages for the state (question 4.e.). Only ASFI declined to make such a statement. ASFI responded that it could not place coverage without the use of non-owned intermediaries, and thus it would have to pay additional commissions to those entities. Since this was contrary to the clear requirement in paragraph 4, ASFI received only ten points, in contrast to thirty points received by JHGI for that question.

   
   

5. After being told that no commissions would be paid, ASFI sought to amend its proposal by increasing its flat fee from $95,000 to $195,000 to take into account the additional commissions it would have to pay. Even then, AFSI's fee would have been $30,000 lower than the $225,000 fee proposed by JHGI. On the theory that the deadline for filing proposals had long since expired, and it would be unfair to allow a vendor to amend its proposal at that point, the committee denied ASFI's request to change its fee proposal. This was contrary to the terms of rule 60A-1.018(2).

   
   

6. ASFI contends that by imposing the requirement that commissions could not be paid if non-owned intermediaries were used, DMS added a new requirement not previously found in the specifications. It further argues that by using the word "intermediary" in paragraph 4a. of the prequalification questionnaire, DMS was referring to an owned intermediary, rather than a non-owned intermediary.

   In addition, it points out that such a distinction was not made when DMS used the competitive bidding process. But under the new negotiation process, the questionnaire had stated in three different ways that DMS did not intend to pay any commissions other than the agent of record fee, no matter what entities were used. Accordingly, there is no basis on which to find that DMS deviated from the requirements of the specifications by asking question 4.e.

   
   

7. Finally, ASFI suggests that the specifications were vague and confusing. However, AFSI could have sought to clarify or contest those items prior to being qualified but it failed to do so. Moreover, during the negotiation process, its representative did not indicate to the committee that he was confused or did not understand the requirements, and no objection was ever made until AFSI learned it had not been awarded the contract. Since the other two vendors filed responsive questionnaires, and were not confused, and the challenged language was self-explanatory, it is found that the specifications were not misleading.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

9. In this case, the agency has elected to negotiate a contract for the purchase of services without competitive sealed bids or proposals, a process contemplated under Rule 60A-1.018, Florida Administrative Code. When the value of services being obtained under this method exceeds the threshold for category two (or more than $10,000), as it has here, the requirements of paragraph (2) of the rule apply.

   
   

10. Under the negotiation process outlined in the rule, the following procedure must be followed. First, the agency must obtain "written information concerning (each vendor's) qualifications, integrity, and reliability, appropriate information concerning the contractual service which may be offered

    by the vendor to meet the agency's needs, and such other information as the agency may require." Subparagraph(2)(c). Once this information is received, the vendors are ranked, in order of preference, and discussions are then initiated with each ranked vendor. Subparagraph (2)(d). According to subparagraph (2)(e), the "negotiations shall be made on the best price, terms, and conditions obtainable by the agency to meet its needs." "During (these) discussions, each vendor will be required to give a final firm price, terms, and conditions for the specific contractual service offered." Subparagraph (2)(f). Thereafter, and "(u)pon completion of discussions, the agency shall select the vendor offering the contractual service with the price, terms, and conditions which, in its judgment, best meets its needs." Id. Subsection 287.042, Florida Statutes, which is the source of authority for the rule, provides in part that the "procurement of contractual services by state agencies shall be in strict accordance with the rules and procedures prescribed by the Department of Management Services." Therefore, DMS is bound to strictly comply with the terms of its rule.

    
    

11. Neither party has cited any precedent involving the use of Rule 60A- 1.018, Florida Administrative Code, and the undersigned's independent research has uncovered no administrative decisions interpreting that regulation. A reading of the rule, however, reveals that when this process is used, the more stringent requirements typically found in the competitive bidding process do not apply. Indeed, the rule itself refers to private negotiations (or discussions) between each vendor and agency after a vendor has prequalified, and a requirement that during the discussions, the vendor give "a final firm price, terms, and conditions" for the service being offered. Rule 60A-1.018(2)(f), F.

    A. C. This is in contrast to the competitive bidding process where such discussions between the bidder and the agency do not occur, and the final price, terms and conditions are firmly locked in at the time the bid package is submitted. More importantly, the obvious purpose of negotiating a contract is to avoid the formalities attendant to the competitive bidding process and allow the agency, after a give and take process, to select the vendor with the best price, terms and conditions. Given these considerations, it is concluded that the normal constraints against a vendor adjusting its price, terms or conditions after the submission of a proposal should not apply in the negotiation process. This is confirmed by the rule's own wording.

    
    

12. Even though this case involves a negotiated contract with different procedures, several long-established principles of law governing bid disputes should still apply. Thus, the scope of inquiry in this proceeding is limited to determining "whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly" in choosing JHGI as the successful vendor. See, e. g., Moore v. State, Department of Health and Rehabilitative Services, 596 So.2d 759, 761 (Fla. 1st DCA 1992). Further, the undersigned is required to honor the rule that a public body has "wide discretion" in the procurement of services, and its decision, when based on an honest exercise of the discretion, should not be overturned "even if it may appear erroneous and even if reasonable persons may disagree." Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505,

    507 (Fla. 1982). Finally, as the party challenging the agency's action, petitioner must prove by a preponderance of the evidence that DMS' decision was inappropriate for one of the reasons cited in Moore.

    
    

13. The evidence shows that even though respondent did not deviate from its specifications by asking questions 2.a. and 4.e. during the negotiations, it violated the terms of its own rule by not allowing petitioner to adjust its price, terms and conditions during that phase of the process. Had it been allowed to do so, ASFI would have made a statement of compliance in accordance

with question 4.e., and adjusted its fee upward by approximately $100,000. Further, in response to question 2.e., it would have named a more qualified alternate account executive to administer the state's account. Had such changes been permitted, AFSI might have received a higher score. By refusing to allow such changes, in contravention of its own rule, respondent acted in an arbitrary manner. Moore, supra. Since it is not the function of the hearing officer to reweigh the submissions and determine the most qualified vendor, see e. g., Dr.

C. J. Courtney v. Dept. of Health and Rehabilitative Services, 581 So.2d 621 (Fla. 5th DCA 1991), the matter should be reconsidered by the agency in conformity with its rule and a final order entered awarding the contract to the vendor "with the best price, terms and conditions."

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that DMS reconsider the three proposals in a manner consistent

with its rule and enter a final order awarding the agent of record contract for the Fire Insurance Trust Fund to the vendor "with the best price, terms and conditions."

DONE AND ENTERED this 13th day of March, 1995, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 13th day of March, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6454BID

Petitioner:

1. Partially accepted in finding of fact 1.

2. Covered in preliminary statement.

3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 3. 6-9. Rejected as being unnecessary.

10-11. Partially accepted in finding of fact 4.

1. Partially accepted in finding of fact 8.

2. Partially accepted in finding of fact 7. 14-15. Partially accepted in finding of fact 4.

1. Partially accepted in finding of fact 5.

2. Partially accepted in finding of fact 16.

3. Partially accepted in finding of fact 5.

4. Partially accepted in findings of fact 15 and 16.

5. Partially accepted in finding of fact 13.

6. Partially accepted in finding of fact 5.

1. Partially accepted in finding of fact 11.

2. Partially accepted in finding of fact 18.

Respondent:

1. Partially accepted in finding of fact 3.

2. Covered in preliminary statement.

3. Partially accepted in finding of fact 7.

4. Partially accepted in finding of fact 3.

1. Rejected as being unnecessary.

2. Partially accepted in finding of fact 18.

3. Partially accepted in finding of fact 19. 35-36. Partially accepted in finding of fact 16. 37-38. Partially accepted in finding of fact 14. 39-41. Rejected as being unnecessary.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible evidence, cumulative, subordinate, or a conclusion of law.

COPIES FURNISHED:

William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307

2737 Centerview Drive

Tallahassee, FL 32399-0950

Paul A. Rowell, Esquire General Counsel

Department of Management Services Knight Building, Suite 312

2737 Centerview Drive

Tallahassee, FL 32399-0950

Robert S. Cohen, Esquire Post Office Box 10095 Tallahassee, FL 32302

Terry A. Stepp, Esquire Department of Management Services Knight Building, Suite 312

2737 Centerview Drive

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within 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

=================================================================

STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES

ACCORDIA OF SOUTH FLORIDA, INC.,

Petitioner,

vs. CASE NO. 94-6454BID

STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES,

Respondent.

/

FINAL ORDER

On March 13, 1995, the Division of Administrative Hearings (DOAH) Hearing Officer, Donald R. Alexander, submitted his Recommended Order to the Department of Management Services (DMS). Pursuant to Section 120.57(1)(b)9, F.S., and

1. Rule 60-4.017, the parties were allowed to file written exceptions to the Recommended Order. DMS filed Exceptions and Accordia of South Florida, Inc., filed a Response to Exceptions. This cause came before me, as head of the Department, for final agency action.

   
   

   IT IS ORDERED THAT:

   
   

   1. The findings of fact in paragraphs 1-7, 9-16 and 18-19 of the Recommended Order are hereby accepted as the findings of fact of the agency.

      
      

   2. The finding of facts in paragraphs 8 and 17 of the Recommended Order are rejected.

      
      

   3. The conclusions of law in paragraphs 20-21 and 24 of the Recommended Order are accepted as the conclusions of law of the agency.

      
      

   4. The conclusions of law in paragraphs 22-23 and 25 are rejected.

      
      

   5. The exceptions to the Recommended Order are granted in part and denied in part for reasons stated hereafter.

      
      

   6. Exception 1 is granted. In paragraph 8 of the findings of fact the Hearing Officer overlooked Subsection (g) of Rule 60A-1.018(2), Florida Administrative Code, which permitted the Agency to set up alternative negotiation procedures. Competent, substantial evidence in the record demonstrated that in its letter of April 28, 1993, to Jerry Walton, the Agency established an alternative negotiation process. The alternative negotiation process excluded price from final terms and conditions given by the vendor during the discussions.

   7. Exception 2 is denied. Paragraph 14 of the findings of fact is supported by competent, substantial evidence in the record. The name of an alternate account manager was a term and condition considered during the evaluation process.

      
      

   8. Exception 3 is granted. There is no evidence in the record to support the finding in finding of fact 17 that Accordia of South Florida, Inc., ever sought to amend its price during the negotiation process. Furthermore, the alternate negotiation process adopted by the Agency pursuant to Rule 60A- 1.018(2)(g), Florida Administrative Code, did not permit the vendors to alter prices during the discussions.

      
      

   9. Exception 4 is denied. In conclusion of law 21 of the Recommended Order the Hearing Officer found that Rule 60A-1.018(2), Florida Administrative Code, applied to the negotiation process employed by the Agency in this case. Rule 60A-1.018(2), Florida Administrative Code, subsumes Rule 60A-1.018(2)(g), Florida Administrative Code.

      
      

   10. Exception 5 is granted. In paragraph 22 of the Recommended Order the Hearing Officer overlooked Subsection (g) of Rule 60A-1.018(2), Florida Administrative Code, which permits the Agency to use an alternative negotiation process.

       
       

   11. Exception 6 is granted. In paragraph 23 of the Recommended Order the Hearing Officer overlooked Subsection (g) of Rule 60A-1.018(2), Florida Administrative Code, which allowed the Agency to adopt an alternate negotiation procedure from the procedure specified in Subsections (a) through (g).

       
       

   12. Exception 7 is granted. In paragraph 25 of the Recommended Order the Hearing Officer overlooked Subsection (g) of Rule 60A-1.018(2), Florida Administrative Code, which allowed the agency to adopt an alternate negotiation procedure from the procedure specified in Subsections (a) through (f). According to the procedure adopted by the agency, the vendor could have altered terms or conditions in the discussion, but not price.

       
       

   13. The Hearing Officer's sole responsibility is to determine whether the agency's proposed action is fraudulent, arbitrary, illegal or dishonest, Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988). The question which was to be resolved at the hearing was whether DMS acted fraudulently, arbitrarily or dishonestly in awarding the contract for the agent of record for the Fire Insurance Trust Fund to Johnson & Higgins, Inc., of Georgia. In his determination that DMS had acted arbitrarily, the Hearing Officer relied on Subsections (a) through (f) of Rule 60A-1.018(2), Florida Administrative Code. Based on this rule provision, the Hearing Officer determined that DMS had not followed its own negotiation procedures. However, the Hearing Officer overlooked Subsection (g), which permitted DMS to establish an alternate procedure. There is substantial, competent evidence in the record that DMS fulfilled the requirements of Subsection (g) of Rule 60A-1.018(2), Florida Administrative Code, by establishing an alternate bid procedure. This procedure did not include price. However, even under the alternate negotiation procedure, the vendor could have altered its terms and conditions. There is substantial, competent evidence that DMS did not allow any vendors to alter any terms or conditions from the information contained in the Pre-Qualification Questionnaire. Therefore, in that respect DMS did not follow its alternate procedure.

Once the agency action is determined to be flawed, the subsequent course of action is left to the agency's sound discretion, Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759 (Fla. 1st DCA 1992). In the present case the record demonstrated that DMS awarded the contract to Johnson & Higgins of Georgia and that the contract has reached substantial completion. Therefore the remedy recommended by the Hearing Officer of reconsidering the matter and awarding to the vendor with the best price, term and conditions is an impossibility.

IT IS THEREFORE ORDERED by the Department of Management Services that the Recommended Order is substantially adopted regarding the determination that the Department of Management Services acted arbitrarily. However as the Department of Management Services has awarded the contract, reconsideration of the proposals and award of the contract is not feasible. Therefore, the Hearing Officer's proposed remedy is hereby rejected.

DONE AND ORDERED in Leon County, Florida, on this 21st day of April, 1995.

Don Mills

Deputy Secretary

Department of Management Services Suite 307, Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-0950

(904) 488-2786

NOTICE OF RIGHT TO APPEAL

This order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a notice of appeal with the filing fee prescribed by law in the District Court of Appeal, pursuant to Section 10.68, Florida Statutes, and a copy with the clerk of the Department of Management Services. Such notice must be filed within thirty (30) calendar days of the date this order is filed in the official records of the Department of Management Services, as indicated in the Certificate of Clerk. Review proceedings shall be conducted in accordance with the Florida Rules of Appellate Procedure.

Certificate of Clerk:

Filed in the office of the Clerk of the Department of Management Services on this 21st day of April, 1995.

Clerk

Copies furnished to:

Robert S. Cohen

Post Office Box 10095 Tallahassee, Florida 32302

Terry Stepp

Assistant General Counsel Department of Management Services Suite 312, Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-0950

Donald R. Alexander Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

================================================================= DISTRICT COURT ORDER

=================================================================

DISTRICT COURT OF APPEAL, FIRST DISTRICT

Tallahassee, Florida 32399

Telephone (904) 488-6151

DATE: August 30, 1995

CASE NO. 95-01853

L.T. CASE NO. 94-6454BID

Accordia of South Florida, Inc. vs. Department of Management

Services

/ Appellant(s), Appellee(s).

BY ORDER OF THE COURT:

Appeal dismissed pursuant to Rule 9.350(b), Fla.R.App.P.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

JON S. WHEELER, CLERK

by: Judy Whan

Depty Clerk

(SEAL)

Copies:

Robert S. Cohen Charles W. Murphy

Terry A. Stepp Ann Cole, Agency Clerk

Docket for Case No: 94-006454BID

Orders for Case No: 94-006454BID