STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NEC BUSINESS COMMUNICATION ) SYSTEMS (EAST), INC., )
)
Petitioner, )
)
vs. )
) SEMINOLE COUNTY SCHOOL BOARD, )
) CASE NO. 95-5038BID
Respondent, )
and )
)
SIEMENS-ROLM )
COMMUNICATIONS, INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 3, 1995, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Martha Harrell Chumbler, Esquire
Michael P. Donaldson, Esquire Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A. Post Office Drawer 190
Tallahassee, Florida 32302
For Respondent: Ned N. Julian, Esquire
Seminole County Public Schools
400 East Lake Mary Boulevard Sanford, Florida 32773
C. Graham Carothers, Esquire Macfarlane, Ausley, Ferguson & McMullen
227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32301
For Intervenor: Lauchlin T. Waldoch, Esquire
Messer, Caparello, Madsen, Goldman & Metz, P.A.
Post Office Box 1876 Tallahassee, Florida 32302-1876
STATEMENT OF THE ISSUE
The issue for determination in this proceeding is whether Respondent should award a contract for a new telecommunications system to Intervenor.
PRELIMINARY STATEMENT
On July 12, 1995, Respondent issued a request for proposal for a new telecommunications system ("RFP"). On September 21, 1995, Respondent provided notice of its intent to award the contract to Intervenor.
Petitioner timely filed a formal written protest on September 26,1995. On October 16, 1995, the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer to conduct a formal hearing.
At the formal hearing, the parties submitted 17 joint exhibits. Petitioner submitted four additional exhibits and the deposition testimony of one witness. Respondent submitted one additional exhibit at the formal hearing and a late filed exhibit on November 7, 1995. Intervenor filed two additional exhibits at the formal hearing.
Petitioner presented the testimony of seven witnesses. Respondent called no witnesses. Intervenor called two witnesses. The identity of the witnesses and exhibits and the rulings concerning each are reported in the transcript of the formal hearing filed on November 13, 1995.
The parties timely filed their proposed recommended orders ("PRO"s) on November 4, 1995. Proposed findings of fact in the parties' PROs are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner is a wholly owned subsidiary of NEC, Inc., a Delaware corporation authorized to do business and doing business in Florida. Respondent is a political subdivision and agency of the state. Intervenor is a Delaware corporation authorized to do business and doing business in Florida.
The System
Respondent's telecommunications system lacks the capacity to meet current and future needs. Respondent seeks a new telecommunications system to serve a minimum of seven high schools, 10 middle schools, 29 elementary schools, and 12 support offices (the "system"). 1/
The Expert
Respondent contracted with Omnicom, Inc. ("Omnicom") to assist Respondent in obtaining a new system that is in Respondent's best interest. Omnicom is an expert in telecommunications.
The contract requires Omnicom to perform several functions. Omnicom must prepare an RFP, administer the solicitation and receipt of proposals, evaluate the proposals on a point system, issue a report of its evaluation, and recommend a selection that is in Respondent's best interest.
Subjectivity
There are two primary means of public procurement. One is an invitation to bid ("ITB"). The other is an RFP.
The consulting contract refers to a "Request for Bid." The contract indicates that the document will establish an award to the "low fixed price bid meeting specifications."
An ITB is significantly different from an RFP. An RFP is inherently more subjective than an ITB.
An ITB requires bids to comply closely with the specifications prescribed in the ITB. An ITB prescribes specifications and a solution sought by the issuer. A bidder estimates the cost that the issuer will pay for the solution prescribed in the ITB.
An RFP is more subjective. An RFP generally asks proposers to propose a solution to the issuer's stated needs and to estimate the cost of the proposed solution. Proposals generally describe the proposer's sense of the best solution and its cost. The criteria and procedures prescribed in an RFP are intended to minimize, but not eliminate, the subjectivity inherent in the RFP process.
The procurement document Omnicom prepared is an RFP. The consulting contract does not require Omnicom to design and implement a new system for Respondent and then obtain bids for the cost of such a system.
The RFP solicits solutions to Respondent's telecommunication needs. It prescribes criteria important to Respondent, and Respondent then evaluates proposals on the basis of those criteria. Those criteria include service.
Intent
Respondent paid Omnicom to recommend a proposal that is in Respondent's best interest. However, neither Omnicom nor Respondent intended the recommendation to usurp Respondent's authority to exercise discretion in taking final agency action.
The RFP makes it clear that the proposal selected will be the system that Respondent determines to be in its best interest. The RFP states:
The proposal selected will be the . . . system that meets the present and future needs of [Respondent] and is in the best interest of [Respondent].
* * *
The objective of [Respondent] in soliciting and evaluating proposals . . . is to obtain a system that best meets the present and future needs of [Respondent] at a cost that is consistent with the features and services provided.
* * *
It should be understood that the information provided in this RFP is not to be construed as defining specific system equipment, features, or solutions, but rather is intended to present
[Respondent's] needs and objectives in terms of system services and control.
* * *
The submission and acceptance of proposals does not obligate [Respondent] in any way. . . .
[Respondent] reserves the right to reject any and all proposals received by reason of this request or to negotiate separately with any source whatsoever, in any manner necessary to serve its best interest. [Respondent] makes no representation, implied or expressed, that it will accept and approve any proposal submitted.
* * *
Proposals submitted may be reviewed and evaluated by any person at the discretion of [Respondent].
* * *
In submitting a proposal, the proposer understands
. . . [Respondent] will determine at [its] discre- tion, which proposal, if any, is accepted.
RFP at 1-2, 2-1, 2-4, 2-6, 2-7, and 2-11.
The RFP
The evaluation criteria and procedures established in the RFP are consistent with Respondent's intent in contracting with Omnicom. The RFP establishes a fixed rule or standard by which Respondent selects the proposal that is in Respondent's best interest. Respondent paid Omnicom with public funds to formulate that fixed rule or standard.
Final Decision
The RFP requires the proposal with the greatest total awarded points to be selected for a contract award. The RFP does not require the proposal with the greatest total awarded points to be recommended for selection. The RFP states:
Proposals will be ranked in accordance with the technical and administrative awarded points. . . . The proposal with the greatest total awarded points will be selected for a contract award. (emphasis supplied)
RFP, Appendix E, E-2.
Alleged ambiguities within the RFP are resolved by the clear and unambiguous meaning of the underscored words in the quoted language. The proposal with the greatest total awarded points is to be selected by Respondent for a contract award.
The clear and unambiguous words in the RFP are reasonable. Respondent hired a recognized expert in telecommunications to oversee the acquisition and implementation of a new system. The evaluation criteria and procedures fixed in the RFP reflect Respondent's intent to rely on the expertise it purchased with public funds unless Respondent: rejects all proposals; rejects Omnicom's
evaluation and recommendation and asks Omnicom to re-evaluate the proposals; or conducts an independent evaluation of the proposals and substitutes Respondent's own independent judgment.
The underscored language in the RFP is specific. It is consistent with general language in the RFP. For example, selection of the proposal with the most points awarded by Omnicom is consistent with the following general provision:
Proposals submitted may be reviewed and evaluated by any person at the discretion of [Respondent].
* * *
In submitting a proposal, the proposer understands
. . . [Respondent] will determine at [its] discre- tion, which proposal, if any, is accepted.
RFP at 2-7, and 2-11.
Other general language in the RFP authorizes Respondent to reject all proposals and either develop a new RFP, seek a system through the ITB process, or seek a system through a process that is exempt from public procurement requirements if the system or Respondent qualify for such an exemption. The RFP states:
The submission and acceptance of proposals does not obligate [Respondent] in any way . . . [Respondent] reserves the right to reject any and all proposals received by reason of this request or to negotiate separately with any source whatsoever, in any manner necessary to serve its best interest. [Respondent] makes no representation, implied or expressed, that it will accept and approve any proposal submitted.
RFP at 2-6.
Such language is "boiler plate" in public procurement documents.
Nothing in the RFP is intended to, or has the effect of, exempting Respondent from the law applicable to public procurement. The RFP states:
[Respondent] reserves the right to . . . negotiate separately with any source whatsoever, in any manner necessary to serve its best interest.
RFP at 2-6.
Respondent can not solicit proposals and then negotiate separately with a select proposer or a third party in violation of the body of law applicable to public procurement.
The language quoted in the preceding paragraph does not authorize Respondent to take final agency action in a manner that is not governed by fixed rule or standard. The fixed rule or standard that governs Respondent's determination of its best interest is prescribed in the RFP and sanctioned by Respondent. The RFP states:
Proposals will be ranked in accordance with the technical and administrative awarded points. . . . The proposal with the greatest total awarded points will be selected for a contract award. (emphasis supplied)
RFP, Appendix E, E-2.
The quoted language is specific, clear, and unambiguous. To the extent it is inconsistent with general provisions in the RFP, the plain meaning of the specific language controls any general provisions that may be contrary to either the specific language or the law applicable to public procurement.
Scope Of Review
The RFP limits the scope of review to information contained in the proposals submitted by the proposers. The RFP states:
. . . Only the information contained in the proposal and references verifications will be used in the evaluation.
RFP at E-2.
Respondent fixes the scope of review by limiting it to the information contained in the proposals.
Review And Approval
Respondent reviewed the rule or standard fixed in the RFP. Respondent approved the RFP on July 11, 1995. On July 12, 1995, Omnicom issued the RFP.
Omnicom's Evaluation And Recommendation
The RFP solicits base proposals and alternate proposals that achieve Respondent's objectives for a new system. No alternate proposal is authorized without a base proposal that complies with the basic configuration prescribed in the RFP.
Seven proposals were submitted to Omnicom. Omnicom determined that one proposal did not satisfy mandatory requirements.
Omnicom evaluated the six proposals that satisfied mandatory requirements. They are: Petitioner's base proposal; Petitioner's alternate proposal; Intervenor's proposal; a base proposal from Bell South Business Systems, Inc. ("Bell South"); a base proposal from Orlando Business Telephone Systems ("OBTS"); and a base proposal from WilTel Communications, Inc. ("WilTel").
Omnicom awarded the following technical, cost, and total points.
PROPOSAL | TECHNICAL | COST | TOTAL |
NEC (Alternate) | 699 | 200 | 899.0 |
Siemens ROLM | 715.5 | 179 | 894.5 |
Bell South | 719.5 | 161.1 | 880.6 |
NEC (Base) | 700 | 172.8 | 872.8 |
WilTel(Base) | 617 | 157.2 | 774.2 |
OBTS | 595.5 | 158.4 | 753.9 |
Omnicom ranked Petitioner's alternate proposal highest in total points and points awarded for cost. Omnicom ranked Intervenor's proposal highest in technical merit.
Omnicom conditioned its recommendation of Petitioner's alternate proposal on resolution of several concerns Omnicom expressed in its evaluation report. Those concerns are included in the discussion in paragraphs 108-124, infra.
Omnicom recommended Petitioner's alternate proposal for selection if Respondent could resolve the concerns Omnicom had with Petitioner's alternate proposal and if Respondent deemed it to be in Respondent's best interest. Omnicom recommended Intervenor's proposal if Respondent either could not resolve Omnicom's concerns or if Respondent did not deem Petitioner's alternate proposal to be in Respondent's best interest.
Arbitrary Selection
Respondent selected Intervenor's proposal over Petitioner's alternate proposal. Respondent's selection of Intervenor's proposal was within the scope of the recommendation made by Omnicom. However, the manner in which Respondent exercised its agency discretion is arbitrary.
The manner in which Respondent determined that Intervenor's proposal is in Respondent's best interest is not governed by any fixed rule or standard. Respondent did not conduct an independent evaluation and substitute Respondent's own judgment. Respondent did not apply the rule or standard fixed in the RFP to the information included in the proposals and substitute its judgment for that of Omnicom. Respondent did not substitute a fixed rule or standard different from the rule or standard fixed in the RFP. Respondent substituted a rule or standard that is not fixed but is invisible and known only to Respondent.
Respondent expanded the evaluation procedure and scope of review fixed in the RFP. Respondent improperly applied criteria fixed in the RFP and applied improper criteria not established in the RFP.
6.1 Scope Of Review
The RFP assignes a maximum of 800 points to criteria prescribed in six technical categories. It assigns a maximum of 200 points to cost. The maximum total score for technical and cost criteria is 1,000 points.
The points Respondent fixed for the criteria in the RFP indicate the relative importance of the criteria. The RFP states:
Proposals will be ranked in accordance with
the technical and administrative awarded points
and a short list of proposals established for further evaluation. The short listed proposals will then be evaluated on a cost basis and points awarded accordingly. Awarded cost points will then be summed with the awarded technical and administrative points. The proposal with the greatest total awarded points will be selected for a contract award.
RFP, Appendix E, at E-2. 38.
Omnicom evaluated the six proposals that met mandatory requirements and submitted an evaluation report in accordance with the evaluation criteria and procedures fixed in the RFP. The report recommends that the contract be awarded to Petitioner.
In accordance with the evaluation procedure established in the RFP, Omnicom's evaluation report was submitted to a review committee on September 8, 1995. The committee consisted of knowledgeable representatives from the community and select employees of Respondent.
The committee reviewed the evaluation report for accuracy and objectivity. The committee took no exception to any portion of the evaluation report and recommendation.
In accordance with the evaluation procedure established in the RFP, the Superintendent of the Seminole County School District (the "Superintendent") recommended that Respondent award the contract to Petitioner for its alternate proposal. Respondent did not take issue with the recommendations of Omnicom, the committee, or the Superintendent.
Respondent issued a notice of intent to award the contract to Petitioner on September 8, 1995. Respondent scheduled a work session for September 12, 1995, to consider the evaluation report from Omnicom and to vote on Omnicom's recommendation.
6.1(a) Intervenor's Expanded Proposal
On September 11, 1995, Intervenor sent a letter to each of Respondent's members. Separately, each member obtained a report on user ratings of telecommunications equipment.
The letter urged Respondent to consider Intervenor's local presence, including the local presence of Siemens Stromberg Carlson, Intervenor's corporate sibling. The letter asserted that Petitioner has no significant local presence. It claims that Intervenor is a "Tier 1" telecommunications vendor and that Petitioner is not. None of these matters were included in Intervenor's proposal even though service was one of the criteria for evaluation.
Intervenor's solicitation provided Respondent with information not included in Intervenor's proposal. The additional information exceeded the scope of review and evaluation procedure fixed in the RFP.
6.2(b) Altered Procedure
At the work session conducted on September 12, 1995, Respondent accepted comments from the public and from proposers. Intervenor emphasized its status as a Tier 1 vendor.
One of Respondent's members expressed concern that Petitioner had only one local representative and that he worked out of his home. Petitioner has four technicians and stated in its alternate proposal that two additional technicians would be added. No member read any of the proposals.
A second member stated that cost is an insignificant matter. The second member opined that cost should not be an issue considered in making the final decision.
The second member is a senior management employee for Bell South. Bell South was ranked third in total points by Omnicom.
The second member seconded a motion to postpone the contract award. In considering postponement of their vote, the members relied on information contained in Intervenor's expanded proposal.
The members voted to postpone the award of the contract until September 20, 1995. At that meeting, each proposer was to make a twenty minute presentation to Respondent.
6.2(c) Improper Consideration Of Fixed Criteria And Consideration Of Improper Criteria
The background statement in the agenda to the meeting scheduled for September 20, 1995, stated that Omnicom's point scores could not be used as the determining factor in awarding the contract because all but one of the proposals "did not meet all mandatory requirements." This was the first instance in which either Respondent or Omnicom indicated that any proposal except the alternate proposal submitted by WilTel failed to satisfy mandatory requirements in the RFP. 2/
None of Respondent's individual members read any portion of the proposals submitted to Omnicom. The members did not make independent determinations of whether the proposals submitted by Petitioner or Intervenor in fact satisfied mandatory requirements established in the RFP.
On September 18, 1995, Petitioner notified Respondent that Petitioner protested the meeting scheduled for September 20, 1995. Petitioner stated that it would participate in the meeting under protest; without waiving any right it had to protest Respondent's deviation from the evaluation criteria, procedure, and scope of review fixed in the RFP.
In the Notice of Public Meeting issued for the September 20 meeting, Respondent stated it may add up to 200 points to the total points awarded by Omnicom. The additional points were to be based upon the information the proposers submitted at the meeting. This was the first time Respondent disclosed the availability of points other than the 1,000 points fixed in the RFP.
The Notice of Public Meeting stated no criteria upon which the additional points would be awarded. Respondent did not formulate any criteria upon which to award the additional points.
6.2(d) Final Decision: Expanded Scope, Altered Procedure, Improper Consideration Of Fixed Criteria And Consideration Of Improper Criteria
At the meeting conducted on September 20, 1995, the proposers gave presentations to Respondent and Omnicom. The proposers answered questions posed orally by Respondent's individual members.
Omnicom responded to comments made by the proposers. Each proposer was then allowed two minutes for "surrebuttal."
The majority of comments related to reasons why specific points were deducted during Omnicom's evaluation. The proposers did not have access to a specific point award matrix to which the members may have referred during the meeting.
The subject matter of the inquiry included criteria established in the RFP, including service capability. The inquiry did not focus on conditions Omnicom attached to its recommendation of Petitioner's alternate proposal. See, paragraphs 108-124, infra.
Intervenor repeated its representation that it is a Tier 1 vendor. Intervenor asserted that it is the number one PBX supplier in the world and the number two vendor in annual expenditures for research and development. Intervenor submitted documents substantiating its claims. None of this information was included in Intervenor's proposal.
After the presentations, the Superintendent suggested the members write down three of the five proposers. The Superintended stated that the additional points would not be written down because they were for the use of the individual members.
The first round of voting produced a new short list that deleted Petitioner and consisted of Intervenor and Bell South. The members then discussed the two proposals on the new short list. During the discussion, one member stated that she felt the RFP assigned too many points for cost.
The members voted to award the contract to Intervenor. The member who is an employee of Bell South recused himself from the final vote. The voting members did not disclose the criteria they relied on for their vote, the weight assigned to the criteria relied on, the additional points assigned, or the fixed rule or standard which governed Respondent's determination of which proposal was in Respondent's best interest.
On September 21, 1995, Petitioner received Respondent's formal notice to award the contract to Intervenor. The notice states only that Respondent's decision is based on the evaluations by Omnicom and the presentations on September 20, 1995. 3/
The manner in which Respondent determined that Intervenor's proposal is in Respondent's best interest was not governed by any fixed rule or standard. Respondent selected Intervenor's proposal in a manner contrary to the rule or standard fixed in the RFP and on the basis of criteria and procedures that are not fixed in the RFP.
Major Variation
Respondent's deviation from the rule or standard fixed in the RFP is a major variation. The deviation affects the price of the contract selected. It gives Intervenor a benefit not enjoyed by other proposers. It adversely impacts the interests of Respondent. 4/
Contract Price
Respondent's deviation from the rule or standard fixed in the RFP affected the contract price in two ways. First, it affected the stated cost of the contract. Second, it added costs that are inherent, but not stated, in Intervenor's proposal.
7.1(a) Stated Cost
The complete system is to be installed in all 58 facilities over five years. The useful life of the system is between 7 and 10 years.
Omnicom valued the system included in each proposal over its 10 year life expectancy. Omnicom placed the cost for each facility on a spread sheet correlating to the anticipated time of installation. The cost of each facility was discounted to its net present value at the time of evaluation.
The evaluation report rates costs through 10 years because that is the reasonable life expectancy of the system. The cost of Intervenor's system was less in years 1-5. For the total life expectancy of the system, however, the cost of Petitioner's alternate proposal was less.
During the 10 year useful life of the new system, the cost of Petitioner's alternate proposal would save Respondent $1,547,726 over the cost of Intervenor's proposal. The net present value of that savings is $1,212,528.
Omnicom awarded the following technical, cost, and total points for the seventh year of operation.
PROPOSAL | TECHNICAL | COST | TOTAL |
NEC (Alternate) | 699 | 200 | 899.0 |
Siemens ROLM | 715.5 | 179 | 894.5 |
Bell South | 719.5 | 161.1 | 880.6 |
NEC (Base) | 700 | 172.8 | 872.8 |
WilTel(Base) | 617 | 157.2 | 774.2 |
OBTS | 595.5 | 158.4 | 753.9 |
The total point differential between Petitioner and Intervenor widened for years 8-10. The points awarded for the cost of Intervenor's proposal dropped to 178.4, 177.8, and 177.3, respectively, in years 8-10. The corresponding total scores for Intervenor's proposal dropped to 893.9, 893.3, and 892.8.
7.1(b) Unstated Cost
The RFP requires five out of eight categories of work station devices to be two-way speaker phones. Two-way speaker phones eliminate the need for ancillary intercom equipment.
Two of the five categories required to be two-way speaker phones are noncompliant in Intervenor's proposal. Compliant telephones are more expensive than the telephones used by Intervenor to calculate the cost Omnicom evaluated.
Compliant telephones would cost approximately $736,901 more than the cost evaluated by Omnicom; based on information available in Intervenor's proposal. 5/ Respondent will either incur additional costs to acquire compliant telephones or incur the cost of ancillary intercom equipment.
Benefit Not Enjoyed By Others
Intervenor enjoyed a benefit not enjoyed by others. Intervenor obtained a competitive advantage and a palpable economic benefit.
7.2(a) Expanded Scope
Respondent's reliance on a rule or standard not fixed in the RFP resulted in a benefit to Intervenor. Other proposers did not enjoy a similar benefit. 6/
The proposers relied upon the point distribution, evaluation procedure, and criteria fixed in the RFP. Any of the proposers could have solicited Respondent to consider information not included in the proposals, to follow procedures not established in the RFP, to assign an undisclosed weight to criteria fixed in the RFP, and to consider undisclosed criteria. However, only Intervenor successfully solicited Respondent to do so and then enjoyed the benefit of being selected for the contract.
Respondent made concessions that favored Intervenor. No other proposer enjoyed the benefit of Respondent's concessions in a manner that changed the outcome of the contract award.
7.2(b) Alternate Proposal
The base proposal required in the RFP included a configuration using analog tie lines. Intervenor prepared only one proposal. It included only digital tie lines.
Intervenor's proposal is an alternate proposal. It does not include the analog tie lines required in the basic configuration prescribed in the RFP.
Omnicom deducted points for Intervenor's failure to include analog tie lines. However, Omnicom evaluated Intervenor's alternate proposal in the absence of a base proposal. 7/
All other proposers complied with the provision in the RFP that prohibited alternate proposals in the absence of a base proposal. The prohibition, in effect, required Petitioner to submit two proposals.
Petitioner prepared a base proposal and an alternate proposal. Petitioner prepared two quotes for each of the 58 facilities contemplated in the new system.
Intervenor prepared only one quote for each of the facilities contemplated in the new system. Intervenor did not invest the time, energy, and expense invested by Petitioner in its two proposals.
7.2(c) Cost
By using noncompliant telephones in its proposal, Intervenor lowered the cost evaluated by Omnicom. If other proposers had proposed noncompliant telephones, they would have been able to affect their evaluation scores in a positive manner. Intervenor received a palpable economic benefit from its omission.
A cost difference of $50,000 to $100,000 translates to approximately two points in the evaluation process. An increased cost of $736,901 would have lowered Intervenor's cost score between 7.36 and 14.7 points. 8/
Omnicom did deduct points from Intervenor's technical score for the failure to include compliant telephones in its proposal. However, Omnicom did not deduct points for Intervenor's failure to include unit prices for compliant telephones. 9/
Unit prices are necessary for Omnicom to accurately calculate the increased cost of compliant telephones. Omnicom could not calculate the increased cost of compliant telephones based on the information available in Intervenor's proposal. Omnicom evaluated the cost of Intervenor's proposal based on the cost stated in the proposal.
Adverse Impact On Respondent
Respondent's deviation from the evaluation criteria and procedures fixed in the RFP has an adverse impact on the financial interests of Respondent. The award of the contract to Intervenor will cost Respondent approximately
$1,212,528 in present value.
Respondent may need to purchase compliant telephones at an additional cost of up to $736,901. Alternatively, Respondent may need to purchase ancillary intercom equipment at an unknown cost.
Respondent's deviation from the evaluation criteria and procedures established in the RFP has an adverse impact on the Respondent's technical needs. The award of the contract to Intervenor may result in the use of noncompliant telephones, ancillary intercom equipment, or, in the event of an unforseen budget shortfall at the time, none of the technical capabilities needed by Respondent.
Public Policy
There is a "strong public policy against disqualifying the low bidder for technical deficiencies. . . ." 10/ Although an RFP inherently demands more subjectivity than an ITB, Respondent disqualified the low proposer for reasons that are not governed by any fixed rule or standard.
Respondent could have rejected all six proposals and sought to obtain its system through a new RFP, the ITB process, or a process exempt from public procurement requirements; if the system or Respondent qualifies for such an exemption. 11/ However, Respondent did not reject all proposals and start over or seek to obtain its system through an exempt process.
Respondent paid public funds for Omnicom's expert advice. Respondent paid Omnicom to evaluate Respondent's technical needs, formulate criteria, develop an evaluation procedure, prepare an RFP, evaluate proposals, and
recommend the proposal that was in Respondent's best interest. Respondent approved the RFP prepared by Omnicom, including the rule or standard fixed in the RFP.
Respondent then deviated from the fixed rule or standard. Respondent added points to change the relative importance of the technical and cost criteria fixed in the RFP.
Respondent awarded up to 200 points in addition to the 1,000 points fixed in the RFP. The members neither disclosed the criteria they used to award additional points nor disclosed the number of points awarded. The members did not reveal, explain, or define either the weight assigned to each fixed criteria or any other fixed rule or standard used to evaluate the oral presentations made by the proposers.
Respondent did not conduct an independent evaluation of the proposals and substitute its own judgment for that of Omnicom. None of Respondent's members read any of the proposals.
Omnicom evaluated the proposals fairly, objectively, and reasonably. Omnicom's evaluation and recommendation was an honest exercise of agency discretion by the agency's own expert. 12/
Respondent neither rejected Omnicom's evaluation of the proposals nor rejected the proposals. Respondent did not request that Omnicom re-evaluate the proposals and did not request that Omnicom start over with a new RFP, an ITB, or pursue a system through an exempt process.
Respondent neither explained its exercise of agency discretion on the record in this proceeding nor disclosed a fixed rule or standard Respondent used to govern its action. Respondent made an arbitrary decision.
Illegal
Respondent made an emergency award of a portion of the contract to Intervenor during the pendency of this proceeding. The award is limited to a purchase order for one switch out of 52 switches that will comprise the complete system.
The single switch is necessary for Respondent to occupy its new administrative offices. Occupancy of the new administrative offices has always been a critical element in procurement of the entire system. Respondent is currently engaged in accomplishing this critical element.
Respondent's award of part of the contract is not required by an immediate and serious threat to the public health, safety, or welfare. Respondent awarded part of the contract to Intervenor for public convenience.
Installation of the system at the new administrative offices is necessary to occupy the new building. Occupancy is necessary so that various administrative offices of the School District can be consolidated. The School District has incurred costs since October, 1995, for utilities and maintenance associated with the unoccupied building.
The reasons evidenced by Respondent constitute neither an immediate nor serious threat to the public health, safety, and welfare. It is not necessary to award any portion of the contract prior to final agency action in this proceeding.
Minor Irregularities
Omnicom conditioned its recommendation of Petitioner's alternate proposal on resolution of four concerns. Petitioner's alternate proposal failed to include detailed price information for one of the elementary schools in the new system ("Elementary School D"). Petitioner failed to separate its installation price from the price for hardware and software. Petitioner conditioned the mandatory commitment to discounted pricing beyond July, 1997, on a requirement that Respondent accept Petitioner's full contract. Finally, Petitioner failed to base its cost on required response times.
Elementary School D
Petitioner failed to include information for Elementary School D on the individual system detail price sheet. Petitioner's failure does not affect the contract price, does not result in a palpable economic benefit to Petitioner, and does not adversely affect Respondent's interest.
Omnicom sent out approximately six addenda to the RFP before completing its evaluation. One of the addenda failed to include Elementary School D.
Omnicom discovered the error and evaluated the cost of all proposals with Elementary School D excluded. The omission of Elementary School D was an honest exercise of agency discretion by Omnicom and did not result in disqualification of the low proposal for technical reasons.
Combined Pricing
The detailed price sheets for each school and support office includes a space for the price of hardware and software. A separate space is provided for the price of installation. Petitioner did not provide separate prices but provided one price for hardware, software, and installation.
The purpose of the separate pricing requirement is twofold. Separate pricing allows Omnicom to determine if individual prices are out of line with industry standards. It also provides information needed for additional purchases of separate items.
Petitioner's deviation from separate pricing requirement did not violate the strong public policy against disqualifying the low bidder for technical reasons. Omnicom awarded Petitioner the highest number of points and recommended Petitioner for the contract.
Petitioner's deviation did not result in a competitive advantage for Petitioner. The purpose of the separate pricing requirements was informational.
Petitioner's deviation did not adversely impact the interests of Respondent. It did not impact the lowest price posed or the technical capability of the proposal.
Discounted Pricing
The RFP instructs proposers to base their pricing on the assumption that the proposer would install the entire system. Petitioner's conditional commitment to discount pricing through July, 1997, merely restates the assumption mandated in the RFP. The RFP instructs all proposers to assume they will be awarded the contract for the entire system in preparing their proposals.
Even if Petitioner's conditional commitment were a deviation from the RFP, it would not be a major variation. It does not violate the strong public policy against disqualifying the low bidder for technical reasons. It does not result in a competitive advantage for Petitioner. It does not adversely impact the interests of Respondent.
Response Time
The RFP requires an emergency service response time of two hours. It mandates damages for violation of the response time of $250 per hour up to
$2,500 a month.
Petitioner's alternate proposal does not conform with this requirement. It proposes a four hour response time. Petitioner took exception to the liquidated damages provision and proposed a maximum damage of $500.
Petitioner's deviation is a minor irregularity. Omnicom adequately addressed the deviation in the evaluation report so that the deviation will not affect contract price, afford Petitioner a palpable economic benefit, or adversely impact Respondent's interest.
Honest Exercise Of Agency Discretion
Omnicom's response to the deviation's in Petitioner's proposal is an honest exercise of agency discretion by Omnicom. Omnicom applied the same methodology in a consistent manner for all of the proposals. Omnicom's decision is a reasonable exercise of its expertise in telecommunications based on independent knowledge and experience.
Respondent did not reject Omnicom's evaluation of the proposals or reject the proposals. Respondent did not request that Omnicom re-evaluate the proposals. Respondent stated in its notice of intent to award the contract to Intervenor that its decision is based on the presentations at the September 20 meeting and on Omnicom's evaluation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. 13/ The parties were duly noticed for the formal hearing. The parties have standing in this proceeding.
Burden Of Proof
The burden of proof is on the party asserting the affirmative of an issue. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 2d DCA 1981). Petitioner must show by a preponderance of the evidence that Respondent's selection of Intervenor for the contract and subsequent award
of that contract was an arbitrary, fraudulent, dishonest, or illegal act of agency discretion. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912 (Fla. 1988).
Petitioner did not show that Respondent's exercise of agency discretion was fraudulent or dishonest. Petitioner showed that Respondent's exercise of agency discretion was arbitrary, and illegal within the meaning of the law applicable to public procurement.
Scope Of Review
Contrary to the procedure generally followed for formal hearings conducted pursuant to Section 120.57(1), the hearing officer does not conduct a de novo hearing in public procurement proceedings. In such proceedings:
. . . the hearing officer sits in a review capacity, and must determine whether . . . [RFP] criteria . . . have been satisfied.
Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So.2d 380, 386 (Fla. 3d DCA 1992).
The hearing officer's scope of inquiry is limited to a determination of whether Respondent abused its discretion. An agency abuses its discretion if it exercises that discretion in an arbitrary, dishonest, fraudulent, or illegal manner. In Groves-Watkins, the court stated:
. . . the hearing officer's sole responsibility is to ascertain whether the agency acted fraudu- lently, arbitrarily, illegally, or dishonestly.
Groves-Watkins, 530 So. 2d at 914.
Arbitrary Decision
An arbitrary decision, in the context of public procurement, is a decisive decision not governed by a fixed rule or standard. Youth Crime Watch of America v. Department of Health and Rehabilitative Services, 619 So.2d 405,
406 (Fla. 2d DCA 1993). Respondent's selection of Intervenor for the contract is an arbitrary decision.
Decisive Decision
Respondent's selection of Intervenor for the contract is a decisive decision. It is the ultimate decision Respondent set out to make when Respondent first paid Omnicom with public funds to assist Respondent in determining the proposal that is in Respondent's best interest.
No Fixed Rule Or Standard
Respondent's decision is not governed by any fixed rule or standard. Respondent improperly applied criteria and procedures fixed in the RFP. Respondent applied improper criteria and followed evaluation procedures not fixed in the RFP.
Respondent did not disclose the criteria it used, if any, to award points in addition to those fixed in the RFP. Respondent did not disclose the
criteria Respondent used in evaluating the proposals after Respondent received the evaluation report from Omnicom. Respondent did not disclose the weight it assigned to criteria fixed in the RFP. Respondent did not disclose the fixed rule or standard, if any, that Respondent applied in selecting Intervenor.
An agency's improper use of weighted criteria and consideration of improper criteria is not an honest exercise of agency discretion and results in a fatally defective decision. Courtenay v. Department of Health and Rehabilitative Services, 581 So.2d 621, 623 (Fla. 5th DCA 1991). Respondent improperly considered fixed criteria. Respondent also considered improper criteria.
An agency's failure to follow its own evaluation procedure is arbitrary. Procacci v. Department of Health and Rehabilitative Services, 603 So.2d 1299, 1299-1300 (Fla. 1st DCA 1992). Respondent failed to follow its own evaluation procedure.
Public Policy
135. There is a strong public policy against disqualifying the lowest bidder for minor technical grounds. Intercontinental Properties, 606 So.2d at
386. Although an RFP is more subjective than an ITB, and price may be less significant than technical considerations, Respondent disqualified the lowest proposal for grounds that are not governed by any fixed rule or standard. 14/
Respondent has ample flexibility to exercise its discretion within the limits of the law applicable to public procurement. Respondent may select Petitioner's alternate proposal if Respondent can resolve the concerns expressed by Omnicom as conditions of Omnicom's recommendation. In the event Respondent is unable to resolve those concerns, Respondent may select Intervenor's proposal. Alternatively, Respondent may reject Omnicom's recommendation and instruct Omnicom to re- evaluate the proposals; or reject all of the proposals and seek a new system through a new RFP, the ITB process, or any exempt process for which the system or Respondent may qualify. See, e.g., Groves-Watkins, 530 So.2d at 913. 15/
Respondent did not exercise any of its legitimate options under the public procurement process. Respondent rejected the first recommendation of Respondent's paid expert without ever reading the proposals evaluated by Omnicom, without considering the information contained therein, and without addressing the conditions Omnicom attached to its recommendation. Respondent then made an independent selection from a new short list made up of Intervenor and Bell South in a manner that was not governed by any fixed rule or standard. Such action defeats the object and integrity of the public procurement process. See, e.g., Groves Watkins, 530 So.2d at 913.
Material Variation
Respondent's deviation from the rule or standard fixed in the RFP is a material variation. A variation is material if:
. . . it affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by other bidders.
Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1193 (Fla. 2d DCA 1977).
A variation is material if it affects the price of the proposal, gives the proposer an advantage or benefit not enjoyed by other proposers, or adversely impacts the interests of the agency. Cf. Intercontinental Properties, 606 So.2d at 386 (holding that an agency decision was a minor variation because it failed to satisfy one of the foregoing requirements for a major variation). Respondent's deviation from the evaluation procedure and criteria established in the RFP satisfied all three of the disjunctive requirements for a material variation.
Illegal
Respondent violated its own rule by awarding a portion of the contract in the absence of an immediate and serious danger to the public health, safety, or welfare. Rule (3)(b), entitled Resolution of Protests From Contract Bidding Process, provides in relevant part:
. . . notice of formal written protest . . . shall halt the . . . contract award process until the subject of the protest is resolved
by School Board action. . . . Provided however, the School Board may set forth in writing particular facts and circumstances which
require the continuance of the . . . contract award without delay . . . to avoid an immediate and serious danger to public health, safety or welfare.
Respondent provided only a general conclusory statement of immediate and serious harm. Respondent's statement was not supported by evidence of particular facts and circumstances showing an immediate and serious harm. Cianbro Corporation v. Jacksonville Transportation Authority, 473 So.2d 209, 212 (Fla. 1st DCA 1985).
A properly adopted rule of an administrative agency has the force and effect of law. Respondent violated that law by awarding a part of the contract in the absence of an immediate and serious danger to the public health, safety, or welfare.
Respondent is statutorily prohibited from deviating from its own rule. To do so is a violation of Section 120.68(12)(a).
The automatic stay of formal protests serves several legitimate purposes. It prevents award of the contract to the wrong proposer. It allows disputes to be resolved before performance of the contract begins. It preserves the rights of the protester and the public treasury. Cianbro, 473 So.2d at 212.
The system designs offered by Petitioner and Intervenor are incompatible. The automatic stay avoids a situation where Petitioner can not complete performance because equipment already installed by Intervenor is incompatible. 16/ Id.
Minor Irregularities
For reasons stated in paragraphs 108-124, the deviations in Petitioner's proposal are minor irregularities. They do not affect the contract
price. They do not afford a competitive advantage or benefit to Petitioner. They do not adversely impact the interests of Respondent.
Omnicom's response to the irregularities in Petitioner's alternate proposal is an honest exercise of agency discretion by Respondent's expert. Omnicom's response is a reasonable exercise of discretion based on its expertise in telecommunications and its independent knowledge and experience. Omnicom acted fairly, objectively, and reasonably.
In Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d
505 (Fla. 1982), the court stated:
public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based on an honest exercise of this
discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree.
Liberty County, 421 So. 2d at 507.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's
protest of the selection of Intervenor.
RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida.
DANIEL S. MANRY, 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 29th day of December, 1995.
ENDNOTES
1/ The system must serve a minimum of 58 facilities: 7 high schools; 10 middle schools; 29 elementary schools; and 12 support offices.
2/ Omnicom previously determined that only the alternate proposal submitted by WilTel failed to satisfy mandatory requirements. Omnicom determined that the other six proposals satisfied mandatory requirements. Omnicom evaluated the remaining proposals and included them in its evaluation report.
3/ Petitioner filed its notice of intent to protest on September 22, 1995. Petitioner filed its formal written protest on September 26, 1995.
4/ Cf. Intercontinental Properties, Inc., v. Department of Health and Rehabilitative Services, 606 So.2d 380, (Fla. 3d DCA 1992). The court defined a minor irregularity as:
. . . a variation from the bid invitation or proposal terms and conditions which does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interests of the Department.
Intercontinental Properties, 606 So.2d at 386.
5/ Based on testimony during the formal hearing, the actual cost for compliant telephones may be as low as $380,578.92. However, the price of $736,901 is based on information available in Intervenor's proposal. Contrary to the procedure generally followed in a formal hearing conducted pursuant to Sec.
120.57(1), the undersigned does not conduct a de novo proceeding in protests of public procurement. In public procurement proceedings:
. . . the hearing officer sits in a review capacity, and must determine whether . . . [RFP] criteria . . . have been satisfied.
Intercontinental Properties, 606 So.2d at 386.
6/ A benefit was enjoyed by Bell South when it moved from third to second place in the rankings. However, only Intervenor enjoyed the benefit of being selected for the contract.
7/ This deviation from the requirements of the RFP was a minor irregularity in the evaluation report submitted by Omnicom. Since Omnicom recommended Petitioner for selection, the deviation that permitted Intervenor to submit an alternate proposal without a base proposal did not affect the contract price, did not afford Intervenor a palpable economic benefit, and did not adversely affect the interests of Respondent. However, Respondent transformed that minor irregularity into a major irregularity when Respondent selected Intervenor. At that point in time, the deviation did affect the contract price. It afforded Intervenor a palpable economic benefit, and it adversely affected the interests of Respondent.
8/ The Omnicom representative could not be more precise than to estimate a relationship of two points for every $50,000 to $100,000 difference in cost. An increased cost of $380,578.92 would have lowered Intervenor's cost score between
3.8 and 7.6 points.
9/ The RFP required proposals to include unit pricing for all equipment offered by the proposer.
10/ Intercontinental Properties, 606 So.2d at 387. 11/ The RFP states:
The submission and acceptance of proposals
does not obligate [Respondent] in any way
. . . [Respondent] reserves the right to reject any and all proposals received by reason of this request or to negotiate
separately with any source whatsoever, in any manner necessary to serve its best interest. [Respondent] makes no represen- tation, implied or expressed, that it will accept and approve any proposal submitted.
RFP at 2-6.
12/ Omnicom's acceptance of only an alternate proposal from Intervenor and the other irregularities discussed in paras. 108- 124, infra., are minor irregularities when they are considered within the confines of Omnicom's evaluation report. Since Omnicom did not recommend Intervenor for a contract, the irregularities did not violate the strong public policy against disqualifying the low bidder for technical reasons. Similarly, the irregularities in Omnicom's evaluation neither resulted in a benefit for Intervenor not enjoyed by other proposers nor had an adverse impact on Respondent's interest. However, minor irregularities in Omnicom's evaluation were transformed into major irregularities by Respondent's ad hoc alteration of Omnicom's evaluation and recommendation.
13/ All chapter and section references are to Florida Statutes (1993 and Supp. 1994) unless otherwise stated.
14/ Respondent and Intervenor emphasize that technical excellence, rather than cost, is the polestar factor to be considered in evaluating proposals in response to an RFP and that Respondent is not required to accept a proposal simply because it is lowest in cost. See, e.g., System Development Corporation
v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982); Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986); Marriott Corporation v. Metropolitan Dade County, 383 So.2d 622 (Fla. 3d DCA 1980); Eggart V. Westmark, 45 So.2d 505 (Fla. 1950).
Respondent and Intervenor beg the issue.
The issue is not whether Respondent may reject the lowest priced proposal. Clearly, Respondent may do so. When Respondent first established a fixed rule or standard in the RFP, Respondent could have assigned no points to cost.
However, Respondent chose to assign points to cost. Once Respondent made the choice to assign points to cost, the issue is whether the manner or basis upon which Respondent rejects the lowest priced proposal is governed by a fixed rule or standard.
Respondent and Intervenor cite cases in which courts uphold an agency's right to select a technically superior proposal over a less expensive proposal. Respondent and Intervenor wish the trier of fact to draw an inference that Respondent selected Intervenor's proposal because it received more technical points than Petitioner's alternate proposal. An inference does not establish that technical superiority is the fixed rule or standard used by Respondent to select a proposal that is in its best interest. The record does not evidence that Respondent relied on such a fixed rule or standard, or any other fixed rule or standard, to reject the lowest cost proposal. The rule or standard by which Respondent determined its own best interest is invisible and known only to Respondent's voting members.
15/ In Groves-Watkins, the court was concerned with an ITB. The court stated that flexibility needed to exercise the agency's broad discretion is provided in the ability to accept the lowest bid or reject all bids.
16/ If an agency awards a contract before final disposition of a protest, the aggrieved party may seek ancillary relief pursuant to Sec. 120.68(13)(a)2.
Hubbard Construction Company v. Department of Transportation, 642 So.2d 1192 (Fla. 1st DCA 1994).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5038BID
Petitioner's Proposed Findings Of Fact. 1.-26 Accepted in substance
27. Rejected as recited testimony 28.-50. Accepted in substance
51.-52. Rejected as recited testimony 53.-74. Accepted in substance
Respondent's Proposed Findings Of Fact. 1.-35. Accepted in substance
Rejected as not supported by credible and persuasive
evidence
Accepted in substance
Rejected as not supported by credible and persuasive evidence
Accepted in substance
Rejected as not supported by credible and persuasive evidence
Accepted in substance
See Intervenor's Proposed Findings of Fact, infra.
Intervenor's Proposed Findings Of Fact. 1.-14. Accepted in substance
15.-17. Rejected as not supported by credible and persuasive
evidence
18.-25. Accepted in substance
26. The first sentence is accepted in substance. The first part of the second sentence is rejected as
irrelevant and immaterial to the cost evaluation used by Omnicom to award points. The characterization in the second part of the second sentence is rejected.
27.-28. Accepted in substance
See finding 26.
Sentences 1, 3, and 4 are accepted in substance. The second sentence is rejected for the reasons stated as to finding 26.
31.-36. Accepted in substance
37. Rejected as not supported by credible and persuasive evidence
38.-39. Accepted in part and rejected in part as not supported by credible and persuasive evidence
Accepted in substance
Accepted in part and rejected in part as not supported by credible and persuasive evidence
42.-50. Accepted in substance
51. Rejected as not supported by credible and persuasive evidence
52.-68. Accepted in substance
Rejected in part as not supported by credible and persuasive evidence
Rejected as not supported by credible and persuasive evidence
71.-75. Accepted in substance
76. Rejected as not supported by credible and persuasive evidence
77.-78. Accepted in substance
Accepted in substance except for the last sentence. The last sentence is rejected as not supported by credible and persuasive evidence.
Accepted in part and rejected in part as not supported by credible and persuasive evidence
Rejected as not supported by credible and persuasive evidence
82.-83. Accepted in substance
COPIES FURNISHED:
Dr. Paul Hagerty, Superintendent Seminole County Public Schools 1211 South Mellonville Avenue Sanford, Florida 32771
Frank T. Brogan, Commissioner Department of Education
The Capitol
Tallahassee, Florida 32399-0400
Barbara J. Staros, General Counsel Department of Education
The Capitol, PL-08
Tallahassee, Florida 32399-0400
Martha Harrell Chumbler, Esquire Michael P. Donaldson, Esquire Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A. Post Office Drawer 190
Tallahassee, Florida 32302
Ned N. Julian, Esquire Seminole County Public Schools
400 East Lake Mary Boulevard Sanford, Florida 32773
C. Graham Carothers, Esquire Macfarlane, Ausley, Ferguson
& McMullen
227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32301
Lauchlin T. Waldoch, Esquire Messer, Caparello, Madsen,
Goldman & Metz, P.A. Post Office Box 1876
Tallahassee, Florida 32302-1876
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 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
================================================================= THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA
NEC BUSINESS COMMUNICATION SYSTEMS (EAST), INC.,
Petitioner,
DOAH CASE NO.: 95-5038BID
vs. Seminole County School
Board CASE NO.: 95-0001BID
SEMINOLE COUNTY SCHOOL BOARD,
Respondent,
and
SIEMENS-ROLM COMMUNICATIONS, INC.,
Intervenor.
/
FINAL ORDER
This matter having come on to be heard by the School Board of Seminole County, Florida pursuant to notice in open, public session on the 18th day of January, 1996 in Lake Mary, Seminole County, Florida for the purpose of adopting a Final Order and the School Board of Seminole County, Florida (a/k/a "Seminole County School Board" or "School Board"), having reviewed the complete record, heard arguments from counsel and deliberated openly, it is thereupon ORDERED as follows:
The Exceptions submitted by Intervenor are accepted to the following extent:
Intervenor' Exception Number : The School Board agrees that the Recommended Order should not be construed as requiring that the telecommunications contract be awarded to the proposal which received the greatest number of points from Omnicom.
Intervenor's Exception Number : The School Board agrees that the RFP is a contractual document and its construction is a matter of law, not of fact. This exception should be treated as a Conclusion of Law.
Intervenor's remaining Exceptions, other than those adopted by implication in the School Board's adoption of its Final Order, are denied as being irrelevant or because there is sufficient evidence to support the Hearing Officer's Findings of Fact.
3 Findings of Fact 108-121 are rejected as being irrelevant to the issue presented to the Hearing Officer (whether the award to Intervenor was appropriate) and, therefore, failing to comply with essential requirements of law.
4. The Hearing Officer's Recommended Order dated December 29, 1995, modified as provided above, is adopted as the School Board's Final Order.
DONE and ORDERED in open public session.
The School Board of Seminole County, Florida
By: Sandy Robinson
as its Chairman
File with the School Board's Clerk on January 23, 1996.
Joan C. Walker
as the School Board's Clerk
COPIES FURNISHED:
Frank T. Brogan, Commissioner Michael H. Olenick, General Counsel Martha Harrell Chumbler, Esquire Michael P. Donaldson, Esquire
Ned Julian, Esquire
Graham Carothers, Esquire Lauchlin T. Waldoch, Esquire Andrew B. Thomas, Esquire
| Issue Date | Proceedings |
|---|---|
| Mar. 18, 1996 | Fifth DCA Opinion (Petition for review of Non-Final Administrative Action) issued 2/23/96 and Mandate filed. |
| Feb. 01, 1996 | Final Order filed. |
| Dec. 29, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 11/03/95. |
| Nov. 20, 1995 | (Petitioner) Notice of Filing Proposed Recommended Order; (Petitioner) Recommended Order (for Hearing Officer signature) filed. |
| Nov. 20, 1995 | Proposed Recommended Order On Behalf of Seminole County School Board;Siemens Rolm Proposed Recommended Order filed. |
| Nov. 14, 1995 | (Lauchlin T. Waldoch) Notice of Correction of Scrivener`s Error w/cover letter filed. |
| Nov. 13, 1995 | Volume 2 of 2 (Transcript) filed. |
| Nov. 07, 1995 | (Ned N. Julian, Jr.) Notice of Filing; Requisition Purchase Order filed. |
| Nov. 06, 1995 | Transcript (volume I, tagged) filed. |
| Nov. 03, 1995 | CASE STATUS: Hearing Held. |
| Nov. 03, 1995 | (Respondent) Answers to Interrogatories filed. |
| Nov. 03, 1995 | Siemens Rolm Communications Inc.`s Notice of Filing w/cover letter filed. |
| Nov. 02, 1995 | (Martha Harrell Chumbler) Request for Official Recognition filed. |
| Nov. 02, 1995 | Joint Prehearing Stipulation filed. |
| Oct. 31, 1995 | NEC Business Communication Systems (East), Inc.`s Notice of Filing filed. |
| Oct. 26, 1995 | (Petitioner) Notice of Serving Interrogatories to Intervenor; Notice of Serving Interrogatories to Respondent filed. |
| Oct. 26, 1995 | (Respondent) Notice of Compliance With Paragraphs One and Two of the Prehearing Order; Letters to J. Fisher, E. Erbar, P. Duckie, C. Johnson, from Ned N. Julian, Jr. (Unsigned) Re: Enclosing amended Notice of hearing and Prehearing Order filed. |
| Oct. 25, 1995 | (Lauchlin Waldoch) Request for Production; Certificate of Service filed. |
| Oct. 24, 1995 | (Siemens Rolm Communications Inc. ("Siemens Rolm") Petition for Leave to Intervene w/cover letter filed. |
| Oct. 23, 1995 | (Petitioner) Notice of Taking Depositions filed. |
| Oct. 20, 1995 | Second Amended Notice of Hearing sent out. (hearing set for 11/3/95; 8:30am; Tallahassee) |
| Oct. 17, 1995 | Amended Notice of Hearing (as to date only) sent out. (hearing set for 10/27/95; 9:00am; Sanford) |
| Oct. 16, 1995 | Prehearing Order sent out. |
| Oct. 16, 1995 | Notice of Hearing sent out. (hearing set for 11/27/95; 9:00am; Sanford) |
| Oct. 13, 1995 | Agency referral letter; Formal Written Protest and Request for Formal Hearing (& exhibit A-B) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 23, 1996 | Agency Final Order | |
| Dec. 29, 1995 | Recommended Order | School Board members who rejected lowest cost proposal without fixed rule or standard made arbitrary decision in selecting higher cost proposal. |
KNAUS SYSTEMS, INC. OF FLORIDA vs DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, 95-005038BID (1995)
PAB CONSULTANTS, INC. vs DEPARTMENT OF TRANSPORTATION, 95-005038BID (1995)
AUDIO LABS, INC. vs. DEPARTMENT OF GENERAL SERVICES, 95-005038BID (1995)
ACCENTURE LLP vs DEPARTMENT OF TRANSPORTATION, 95-005038BID (1995)
