STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMDAHL CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5382BID

) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, and )

UNISYS CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on November 27 and 28, 1995, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Amdahl: Julie Gallagher, Esquire

Julie Gallagher, P.A. Post Office Box 10948

Tallahassee, Florida 32302

Karen Zucker,Esquire c/o Amdahl Corporation Chevy Chase Pavilion

5335 Wisconsin Avenue North West Washington, DC 20015

For Respondent DHSMV: Michael Alderman, Esquire

Judson Chapman, Esquire Enoch J. Whitney, Esquire Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504

For Intervenor Unisys: Mary Piccard, Esquire

W. Robert Vezina, III, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589

Tallahassee, Florida 32302-0589

Steven A. Blaske, Esquire 4151 Ashford Dunwoody Road, Suite 600E

Atlanta, Georgia 30319

STATEMENT OF THE ISSUE

Is Petitioner Amdahl Corporation (Amdahl) entitled to be awarded the computer contract under RFP 046-95REBID because the Department of Highway Safety and Motor Vehicles' (DHSMV's) decision to award this contract to Unisys Corporation (Unisys) was arbitrary, capricious, illegal or fraudulent?

PRELIMINARY STATEMENT

On May 19, 1995, Amdahl timely filed a petition for formal hearing and sought to protest the agency's decision to benchmark Unisys. [See Finding of Fact 16 for description of "benchmarking".] That petition was dismissed as premature in DOAH Case No. 95-2648BID. A final order adopting the recommendation of dismissal was filed by the agency on June 21, 1995.

The benchmark was originally scheduled to begin on June 2 and end June 5, 1995. The schedule was revised to include a projected completion date of August 18th. The benchmark was again delayed, and posting of the award was scheduled for September 27, 1995. Further delays ensued, but Unisys successfully completed the benchmark on October 16, 1995. Notice of the agency's intent to award the contract to Unisys was issued on October 18, 1995.

The instant a case arises from a timely notice of protest and formal protest filed by Petitioner Amdahl after DHSMV announced its intent to award a contract for computer hardware, software and services to Intervenor Unisys.

At the commencement of formal hearing, Petitioner waived those allegations of its petition that the participation of Unisys' primary minority business subcontractor was a sham for creating a conduit for Unisys to provide the services itself. (TR36-37).

The parties agreed to the admission of 19 joint exhibits numbered 1 through 23, with the omission of exhibit numbers 14, 15, 18, and 20. Joint exhibits 1-

12, 12a, 13, 16, 17, 19, and 21-23 were admitted in evidence.

Petitioner Amdahl presented the oral testimony of Timothy Bird, George Akins, and Marsha Nims, and had two exhibits admitted in evidence, Unisys-7 and Amdahl-1. Petitioner proffered the testimony of David Cunningham, whose testimony was not admitted over objection for the technical reasons set forth in the record.

Respondent DHSMV presented no witnesses and offered no exhibits. Intervenor Unisys presented the oral testimony of Randy Esser, Richard

Johnston, Russ Rothman, and William Nazaret. Unisys offered four additional

exhibits; none was admitted in evidence.

A transcript was filed in due course. All timely-filed proposed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. On April 4, 1995, DHSMV released RFP 046-95-REBID, requesting proposals for a distributed server system.

2. General Condition 8 of the RFP reserves to the state the right to waive any minor irregularity or technicality in proposals.

   
   

3. Under the RFP's terms, each bidder was required to submit separately a technical proposal and a price proposal. The technical proposal was to contain a transmittal letter identifying the bidder and all subcontractors, including any subcontractors which the state had certified as minority business enterprises, (CMBE's) and the percentage of the total contract price allocated to CMBEs. Responsive proposals would be scored, in part, on CMBE participation.

   
   

4. RFP Special Condition 6.1.4 provided that points would be awarded for participation by a CMBE. CMBE participation of more than 24 percent of the contract value would be awarded 50 points. Points would be prorated for a lower level of proposed CMBE participation, and if no CMBE participation was proposed, no points would be awarded in that category.

   
   

5. Amdahl and Unisys both submitted proposals. DHSMV opened the technical proposals on May 2, 1995 and evaluated them for technical quality. After this evaluation, the separate price proposals were opened on May 4, 1995.

   
   

6. Special Condition 3.27 provided that the agency could request clarification of the responses.

   
   

7. The RFP conditions pertinent to the issue of CMBE participation are more specifically set out as follows:

   
   

   1. RFP General Condition paragraph 3 provides:

      ...A proposal may not be altered after opening of the price proposals...

   2. RFP Special Condition 5.3 provides: Proposals which for any reason are not timely received will not be considered. Late proposals will be declared non-responsive, and will not be scored. Unsealed and/or unsigned proposals by telegram, telephone or facsimile transmission or other means are not acceptable, and will be declared non-responsive and will not be scored. A proposal may not be altered after opening.

   3. RFP Special Condition 3.26.5 provides: EACH PROPOSAL SHALL BE A FIRM AND FINAL OFFER BY THE PROPOSER. PROPOSALS BASED UPON PROVISION OR ASSUMPTIONS OF SUBSEQUENT NEGOTIATIONS BETWEEN THE PROPOSER AND THE STATE AS TO THE EQUIPMENT, SOFTWARE, TERMS AND CONDITIONS SHALL BE REJECTED.

      (Emphasis in original.)

   4. RFP Special Condition 3.27 provides: The DHSMV reserves the right to contact any and all proposers concerning clarification of

      responses to this RFP. TECHNICAL DOCUMENTATION MAY BE REQUIRED AND REQUESTED WHEN EVALUATING THE RESPONSES SUBMITTED UNDER THIS RFP. THE PURPOSES OF THE TECHNICAL DOCUMENTATION IS TO VALIDATE COMPLIANCE OF THE PRODUCT(S) PROPOSED WITH APPLICABLE TECHNICAL REQUIREMENTS OF THE RFP AND TO ALLOW A TECHNICAL EVALUATION OF

      THE PRODUCT. (Emphasis in original.)

   5. RFP Special Condition 3.23, relating to CMBE participation, provides:

      Each Respondent must state...what percent- age of the total contract price will be spent with CMBE firms who will be supplying them.

      The CMBE participation claimed in the techni- cal proposal must be substantiated in the price proposal, or points assigned for unsubstantiated CMBE participation will be withdrawn...

      [O]nly certified State of Florida CMBEs will be considered in evaluating this portion of a Respondent's proposal.

   6. RFP Special Condition 5.7.1. provides:

      The [transmital] letter must identify any and all joint proposing firms and/or subcontractors.

   7. RFP Special Conditions 6.1.1 and 6.1.2 pertaining to the technical evaluation, discuss two items that will result in a finding of "unresponsiveness". Items 6.1.3 and 6.1.4 are listed after that and do not discuss "unresponsiveness."

      RFP 6.1.4 provides:

      In order to evaluate the Technical responses the following steps shall be followed:

      4. Any minority business participation as defined in RFP Section 3.23. These points will be awarded as follows:

      CMBE participation of more than 24 percent (24 percent) of the total contract value, 50 points. CMBE participation of less than 24 percent (24 percent), but greater than zero, (proposed percentage divided by 24 times 50 points). Zero percentage (0 percent) CMBE participation, 0 points. These points shall become "Total 6.1.4."

   8. RFP Special Condition paragraph 3.1 provides:

      1. MANDATORY REQUIREMENTS:

         The Department has established certain mandatory requirements which must be included as part of any proposal. The use of the terms "shall", "must", or "will" (except to indicate simple futurity) in this RFP indicates a mandatory requirement or condition.

         The words "should", "prefers", or "may" in this RFP indicate desirable attributes or conditions, but are permissive in nature.

         Deviation from, or omission of, such a

         desirable feature will not itself cause rejection of a proposal.

         (i) RFP Special Condition paragraph 3.2 provides:

      2. NON-RESPONSIVE PROPOSALS, NON-RESPONSIBLE RESPONDENTS:

      Proposals which do not meet all requirements of this RFP or which fail to provide all required information, documents, or materials will be rejected as non-responsive. MATERIAL REQUIREMENTS OF THE RFP ARE THOSE SET FORTH

      AS MANDATORY OR WITHOUT WHICH AN ADEQUATE ANALYSIS AND COMPARISON OF PROPOSALS ARE IMPOSSIBLE, OR THOSE WHICH AFFECT THE COMPETITIVENESS OF PROPOSALS OR THE COST TO

      THE STATE. Respondents whose proposals, past performance or current status do not reflect the capability, integrity or reliability to fully and in good faith perform the require- ments of the Contract may be rejected as non- responsive. The Department reserves the right to determine which proposals meet the material requirements of the RFP, and which respondents are responsible. (Emphasis supplied).

      
      

8. When the price proposals were opened, the agency initially found it was unable to determine the exact nature and price allocation for CMBE participation for four bidders' technical and price proposals, so the agency requested written clarification from all four, including Amdahl and Unisys. The agency's purpose in requesting these clarifications was to equate the dollar amount being spent by each proposer on CMBEs with the proposer's total contract price so that the agency could verify that CMBE participation met the claimed percentages of the total amount of the proposal.

   
   

9. Unisys responded by letter through facsimile transmission on May 4, 1995 that its primary CMBE participation would come from Coastal Consulting, Inc., (Coastal) which would deliver the Unisys hardware and software described in Unisys' price proposal.

   
   

10. Coastal would provide the primary CMBE participation, but Computer Academy, Inc. was also a CMBE which would provide a lesser percentage of participation in another category.

    
    

11. Unisys then submitted a further clarification by letter through facsimile transmission, also on May 4, 1995. This letter designated the exact dollar amounts assigned to each of these components and again specified Coastal would provide hardware and software. The total amount for these products was

    $878,629, approximately 30 percent of the total contract price. DHSMV accepted this documentation and awarded Unisys' proposal the maximum 50 points for CMBE participation above 24 percent as allocated by the RFP.

    
    

12. DHSMV also asked Amdahl to clarify dollar amounts it had assigned to CMBE participation. By a May 4, 1995 letter, Amdahl also set out the exact amount of contract funds to be paid to the CMBE designated in its proposal. The agency accepted Amdahl's documentation and awarded Amdahl the maximum 50 points for CMBE participation provided in the RFP.

    
    

13. The agency considered Unisys to be a responsive bidder. Unisys' bid received the highest technical score of 588 points. Its total price bid was

    $2,445,012.90.

14. The agency considered Amdahl to be a responsive bidder. Amdahl received the second highest technical score of 557.6901. Its total price bid was $2,647,057.00.

    
    

15. Specifically, the agency evaluated the bids as follows:

    
    

    Price Technical CMBE Participation Total (max. 500 pts.) (max. 80 pts.) (max. 50 pts.)

    
    

    Unisys:	500.0000	38	50	588.0000
    Amdahl:	472.6901	35	50	557.6901

    
    

16. Later that same day, May 4, 1995, DHSMV posted a notice that Unisys had been selected as the bidder for benchmarking. The benchmarking process involves a trial run of the tentatively successful bidder's equipment and services. If the systems perform to expected standards, agency staff recommend that the benchmarking bidder's proposal be accepted and the contract awarded to that bidder.

    
    

17. After the bids were opened, scored, and the results announced, an Amdahl representative telephoned DHSMV Chief of General Services, Russ Rothman, and suggested that Coastal was not state-certified as a CMBE to provide hardware and software. Mr. Rothman then spoke to Marsha Nims of the Minority Business Enterprise Advocacy and Assistance Office for the State of Florida. She advised him that, indeed, Coastal was not state-certified to provide hardware and software, but was certified to provide consulting services. She also told him that if DHSMV awarded its contract to Unisys with Coastal as Unisys' qualifying CMBE in the wrong category, her office would not credit DHSMV with points toward DHSMV's minority participation goal.

    
    

18. The RFP did not say in so many words that in order for the bid proposer to receive points from DHSMV for CMBE participation, the CMBE subcontractor would have to be approved by Ms. Nims' office in the particular category for which the subcontractor was proposed. That requirement was inherent in the RFP requirement that the minority subcontractors be certified by the State in the first place. See, RFP 3.23. No reasonable person could interpret the RFP language to mean that DHSMV wanted proposers to utilize MBEs certified for services different from the services they were scheduled to perform as subcontractors.

    
    

19. Although DHSMV witnesses testified that DHSMV has no interest in the type of work to be performed by the CMBE or who the CMBE is as long as the prime contractor/proposer spends the proper amounts of money on CMBEs, it is abundantly clear that failure to attain credit for minority participation can diminish DHSMV's compliance with State minority goals and offends the State policy to encourage minority participation in State contracting. The very fact that the agency cared enough to include a CMBE requirement in its RFP is sufficient proof that CMBE compliance mattered to the agency.

    
    

20. After speaking with Ms. Nims, Mr. Rothman did not disqualify Unisys or subtract points for Unisys' designation of Coastal as one of its minority subcontractors. He telephoned Rick Johnston of Unisys and explained that the State MBE certification office would not count Coastal's participation toward DHSMV's MBE goal if Coastal were used by Unisys to provide hardware and software as set out in Unisys' proposal.

21. On May 8, 1995, Unisys transmitted a letter to DHSMV to the effect that Unisys would restructure its proposal so that Unisys would provide the hardware and software and would utilize Coastal to provide necessary support services. To do this, Unisys proposed to subcontract with Coastal rather than supply eleven of its own full-time employees to provide consulting services to DHSMV as originally set out in Unisys' proposal which had resulted in the agency awarding benchmarking status to Unisys.

    
    

22. Neither the total contract price nor "over 24 percent" level of CMBE participation changed under the proposal as restructured by Unisys after all proposals were opened and after the intent to award on the basis of Unisys' original proposal was posted, but clearly, the proposal was more than a "further clarification." Unisys' proposal was materially altered after opening and award despite agency witnesses' testimony to the contrary.

    
    

23. The RFP only provides for scoring "any" CMBE participation, large or small. See, RFP 6.1.4. A proposer was free to offer zero CMBE participation and receive zero points in that category while still being considered responsive on the mandatory technical components. However, the fact that the RFP does not make CMBE compliance a mandatory requirement so as to affect a proposer's threshold responsiveness does not automatically render such a "second-look" alteration an "immaterial" change. The change in this case affects the competitiveness of proposals. See RFP 3.2.

    
    

24. DHSMV improperly treated Unisys' revision as only a minor change and did not disallow any CMBE points. It continued to work with Unisys to schedule the benchmark.

    
    

25. If DHSMV had rejected Unisys' revised proposal, as Amdahl contends it should have, Unisys' proposal would not have received the 50 maximum points for CMBE participation, due to the disqualification of Coastal. Instead, Unisys would have been given at most 6.19 CMBE participation points for a second CMBE subcontractor, Computer Academy, Inc., included in its original proposal to provide training at $69,500. Unisys' total score then would have been 544.19, or about 13.5 points below Amdahl's score of 557.6901. Assuming no changes were made to Amdahl's score, if the agency had deducted points assigned Unisys for Coastal's participation as a CMBE when it discovered Coastal was not appropriately certified to provide the products specified in Unisys' original proposal, Amdahl would have been permitted to benchmark in Unisys' place. It is axiomatic that this constituted an unfair economic advantage to Unisys.

    
    

26. The benchmark was originally scheduled to take place June 2-5, 1995, with evaluation and approval on June 6, 1995, but the benchmark was rescheduled several times.

    
    

27. In the interim, on October 11, 1995, Unisys notified DHSMV that Coastal had withdrawn from any participation in the RFP as of August 28, 1995. The letter provided that CMBE Computers and Technical Services, Inc. (CTS) now would fulfill both the training and equipment requirements of the contract.

    
    

28. CTS is a successor company to Computer Academy, Inc. Apparently, Computer Academy, Inc. was a CMBE for training purposes on May 4, 1995, the date of scoring and posting the award. The record is unclear as to Computer Academy's status during benchmarking or at the present time. CTS was not in existence as of May 4, 1995. CTS was not even incorporated until September 25, 1995. CTS was not certified as a CMBE in computer hardware and software until September 29, 1995, well after the date for submittal of RFP proposals and well

    after opening, scoring, and award of benchmarking status to Unisys. CTS did not reach its agreement with Unisys until October 4, 1995.

    
    

29. Due to the withdrawal of Coastal and the delay in subcontracting with CTS, Unisys had no qualified CMBE in place as originally bid between August 28 and October 4, 1995. This period also encompassed the period of benchmarking. The benchmarking ultimately was successfully completed by Unisys on October 18, 1995.

    
    

30. On October 19, 1995, Unisys informed DHSMV that CTS would be supplying hardware and software in the amount of $878,629, or 36 percent of the total contract price. The substitution of CTS for Coastal and Computer Academy under the circumstances of this case constituted yet another material alteration of Unisys' proposal after award.

    
    

31. RFP Special Condition paragraph 4.5 provides:

    
    

    4.5 RAID DISK SUBSYSTEM:

    The DHSMV prefers Redundant Array of Independent Disk (RAID) technology, and will award additional evaluation points for devices proposed and included in ATTACHMENT-C that support RAID levels 0, 1, 3, 5 on all proposed platforms. RAID is not a mandatory requirement.

    
    

32. While a "preferred" and not a "mandatory" requirement for base-line responsiveness purposes, the RAID requirement at RFP 4.5 was clearly material because without it, an adequate analysis and comparison of proposals was impossible, and its inclusion or exclusion affected competitiveness of proposals. See, RFP 3.2.

    
    

33. RAID is an acronym for Redundant Array of Inexpensive Disks. RAID technology permits computer users to store large amounts of information on inexpensive hardware devices. The different levels of RAID refer to techniques used to make use of the inexpensive disk devices to store and retrieve pyramidal data, so as to reconstruct data in the event that a disk in their array of disks fails, thereby preventing loss of data and continuity of operation. The agency wanted the four RAID levels it had specified in the RFP so as to protect the driver's license and motor vehicle data collected by the agency statewide.

    
    

34. Amdahl proposed to provide the required RAID levels through a subcontractor known as Sun Micro Systems Computer Company (Sun).

    
    

35. The RFP permitted bidders to submit written questions prior to submitting proposals. The questions and answers were made a part of the RFP by Addendum number 1. The following question and answer related to the requirements for obtaining the 20 bonus points for offering RAID capability:

    
    

    1. RAID Disk Subsystem, Page 30

       1. The requirement for RAID 0, 1, 3, and 5 at the hardware level appears to have been deleted. Can RAID now be provided by soft- ware to qualify for the RAID points?

    No. RAID levels 0, 1, 3, and 5 can not be provided by software.

36. DHSMV intended RFP 4.5 and the foregoing question and answer to mean that RAID could not be provided on a system that would run on software/the host computer. The question and answer show on their face that DHSMV would not accept RAID levels 0, 1, 3, and 5 if provided by software. The greater weight of the credible evidence is that any person knowledgeable in the industry would have known that by prohibiting RAID from being provided at the software level, RAID would have to be run on a separate, independent dedicated controller, not the host computer.

    
    

37. DHSMV included the requirement that RAID could not be provided at the software level because it did not want to have the capacity of its host computer burdened with running the RAID system.

    
    

38. Despite the foregoing clarifying question and answer, Amdahl's witnesses interpreted the RFP to merely prohibit providing RAID solely through software. Amdahl requested no further clarification and did not protest the specification as interpreted by the question and the agency's answer. Rather, it proceeded on its own interpretation and submitted Amdahl's RFP proposal.

    
    

39. Unisys asserted that Sun could not provide RAID Level 3 capabilities under any circumstances, but the evidence to that effect was not persuasive.

    The expert testimony in support of this theory was contradictory in parts, and much of it was based on old or incomplete sources. Marketing information in the computer field is notoriously quick to go out of date, and no completeness of investigation was established. While experts may, and often do, form their opinions in whole or in part upon hearsay, unsubstantiated hearsay as the basis of expert opinion undermines the competency of experts who rely on it.

    Therefore, no finding is made with regard to Unisys' contention that Sun cannot deliver RAID 3 by any means.

    
    

40. However, it is not disputed that the Sun RAID system proposed by Amdahl to DHSMV in this case clearly involves both hardware and software in combination, is dependent on the host computer, and would not be provided through an independent dedicated controller.

    
    

41. Therefore, Amdahl's proposal encompassing the Sun RAID configuration did not meet the RFP's RAID specifications. Simply because Amdahl's response binds it to provide RAID 0, 1, 3, and 5 levels does not meet the DHSMV specification if there has never been a meeting of minds on what was offered and accepted. The assertion that any proposer can be held liable for breach of contract if it does not deliver what is promised is an empty and costly safety net under such circumstances. Amdahl was not entitled to those additional 20 points originally assigned its proposal on that basis.

    
    

42. Without the 20 bonus points for providing RAID, Amdahl's score for its response to the RFP would be lower than Unisys' score even after 50 points for CMBE participation is subtracted from Unisys' score. The spread would be as follows:

    
    

    Unisys: 588 minus 43.81 (if only Coastal's disqualification were considered) = 544.19; or 588 minus 50.00 (if Computer Academy's participation on May 4, 1995 is no longer considered) = 538.00.

    Amdahl: 557.6901 - 20 = 537.6901.

    CONCLUSIONS OF LAW

    
    

43. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S. and 120.53(5), F.S.

    
    

44. The issues raised by the Petition, as amended by announcement at formal hearing, are: Whether Unisys' failure to have on line as its subcontractor an appropriately state-certified CMBE for the work proposed for that CMBE as of the date of the award of benchmarking status has disqualified Unisys from 43.81 points for CMBE compliance; and did DHSMV act arbitrarily, capriciously, or fraudulently in permitting the several subsequent amendments of Unisys' bid proposal after posting the award.

    
    

45. Because the RFP did not require vendors to identify the type of work to be performed by the CMBE subcontracting firm and because the price of Unisys' proposal was not altered by the nature of the CMBE participation it would provide, Unisys and DHSMV asserted that there was no material irregularity in the several "amendments" or "clarifications" to Unisys' proposal after the posting of the award. Further, these parties asserted that since nothing in the RFP specifically prohibits a proposer from changing the role or identity of the CMBE between submittal and award or during the life of the contract, the agency's permission for such changes as have occurred here was proper.

    
    

46. In addition to disputing Amdahl's protest, Unisys contended that Amdahl lacks standing to protest because Amdahl's proposal was materially irregular and Amdahl would not be entitled to the award of the contract regardless of the merits of its protest. Essentially, even if Unisys lost 43.81 points, or even 50 points, on the CMBE issue, Amdahl would lose 20 points on the RAID issue and Unisys would still be the high scorer. Amdahl countered that if its CMBE subcontractor (Sun) could provide RAID at the appropriate levels and that was all the RFP called for, Amdahl could not be penalized for providing RAID by a combination of hardware and software, contrary to DHSMV's expressed desire for no use of its host computer.

    
    

47. Coastal was not an appropriately state-certified CMBE on the date proposals were opened, nor was CTS. Agency scoring to permit CMBE qualification points based on something that could but did not happen (Coastal's appropriate certification) or that could and did happen (CTS coming into existence and being appropriately certified) after posting the apparent low bidder subverts the entire concept of a level playing field in state bidding. There may have been other potential bidders who would have submitted bids had they known that subcontractors included on their bid could become qualified after submittal of the bid. More significantly, a basic premise pervading all competitive bidding requires proposals to be complete and true on the date they are opened. The RFP expressed the same premise. Certainly, the agency's permitting an amendment of a proposal to the extent of submitting a never named CMBE subcontractor months after the proposal was opened is capricious and fundamentally unfair to all bidders. The fact that the work to be assigned to various subcontractors went through several metamorphoses over time makes the sequential amendments more material and more aggregious rather than less so.

    
    

48. The foregoing is no less true because the RFP did not specifically require that the area of subcontract be disclosed for each CMBE the contractor proposed to utilize. The CMBE participation claimed in the technical proposal had to be substantiated in the price proposal. See, RFP 3.23. The RFP gave DHSMV the opportunity to ask for clarification to validate representations

    contained in the proposals. See, RFP 3.27. These clarifications prior to the award became a part of the respective proposals themselves. DHSMV relied on Unisys' answers to its initial request for clarification and awarded benchmarking status to Unisys on that basis. If Unisys had not made its May 4, 1995 clarification concerning the dollar amount to be paid to Coastal, Unisys would have been disqualified from those 43.81 points, and Amdahl would have been awarded the contract on that date. There could be no clearer unfair economic advantage than to repeatedly allow Unisys to amend its bid after opening and award.

    
    

49. The agency's actions subverted Florida's policy of encouraging bona fide minority businesses. Florida's Minority Business Enterprise program was created by the Legislature to eliminate disparate treatment encountered by bona fide minority vendors contracting with the State of Florida. The purpose behind state certification of businesses in certain categories is to ensure that unqualified or "paper" minority businesses do not get state contracts and that genuine, qualified minority businesses do not get shut out of the state bidding process. Requiring CMBE status to be in effect on the date bids are opened is the only way to ensure those objectives are met and to prevent unscrupulous persons from manipulating the process to their own advantage. While substitution of a subcontractor due to unavailability with permission of the agency might be routine and permissible under some circumstances, those circumstances require at a minimum that the original subcontractor was properly qualified. Unisys never met that requirement for 43.81 points. Any subcontractor might like to wait to qualify as a CMBE until after it knows the prime contractor has the bid award. Any prime contractor might like to wait to make a final choice of CMBE until after getting the bid award. Such late choices inevitably affect costs. The agency was arbitrary and capricious in allowing Unisys and CTS such options which were not extended to all other bidders. That is fundamentally unfair, and Unisys should be penalized the 43.81 CMBE points.

    
    

50. Subtracting the 20 points originally assigned for RAID compliance from Amdahl's score also is appropriate for the reasons set out in the foregoing findings of fact. Accordingly, Unisys remains the lowest responsive bidder with the highest score, and case law dictates that Unisys should receive the award despite its own loss of points.

    
    

51. The case at bar differs from the situation in North Florida Construction v. Pro-Steel Builders, Inc., DOAH Case No. 94-2353BID (RO 6/13/94; FO 9/12/94). Therein, there was an ITB provision requiring rejection of a bidder who listed a CMBE subcontractor not licensed to perform the work specified on the date of bid opening and another unequivocal ITB provision stating specifically that such failure was non-responsive and "will be" rejected. Therein, the CMBE licensing failure of the apparent low bidder went to base-line responsiveness. Under that scenario, the next lowest responsive bidder should prevail. This case also differs from the situation in Proctor v. Department of Health and Rehabilitative Services and TCC no.3 Ltd., Inc., DOAH Case No. 91-5361BID (RO 12/20/91; FO entered 1/10/92; Unpublished Order of the First District Court of Appeal in Case No. 92-379 entered June 22, 1992; Amended FO entered 7/17/92 rejecting both bids.) In that case, both the apparent low bidder and the protestant were unresponsive on base-line mandatory conditions of the RFP, and the hearing officer recommended rejecting all bids and re- advertising the RFP. An unpublished First District Court of Appeal Order distinguished Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912 (Fla. 1988), and other seminal bid case precedents. It required the agency to clarify its final order which had rejected the recommendation and

    awarded the bid to the apparent low bidder by concluding that if the protestant was unresponsive, the protestant had never had standing to bring the protest.

    In response, the agency adopted the hearing officer's recommendation to reject all bids and readvertise where all bidders were unresponsive upon base-line requirements.

    
    

52. Herein, neither bidder was unresponsive on any mandatory base-line component of the RFP. Both were, however, materially defective on competitive conditions to which specific points had been allotted by the agency's scoring system. This case does not require reevaluation of the bids from a quality standpoint. It is only necessary to subtract preassigned points after each proposal's flaws have been eliminated. In that equation, Unisys must prevail.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter

a final order awarding RFP 046-95REBID to Unisys Corporation and dismissing

Amdahl Corporation's Petition herein.

RECOMMENDED this 29th day of January, 1996, in Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of Janaury, 1996.

APPENDIX TO RECOMMENDED ORDER 95-5382BID

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner Amdahl's PFOF:

1-5, there are two fives; 6, the first 7, 8-13, 19-20, 26-29, 31, 34 Accepted in substance except that unnecessary, subordinate, and/or cumulative material has

not been adopted.

The second 7, 14, 21-25, 30, 33

Rejected because as stated they are legal argumentation, preliminary matters, or conclusions of law, but covered.

32, 35 Contrary to the facts as found upon the greater weight of the credible competent evidence or there is insufficient evidence to reach this determination.

15-18 Rejected as subordinate to the facts as found.

Respondent DHSMV's PFOF:

1-4, 7-13, 17-25, 28-33

Accepted in substance except that unnecessary, subordinate, and/or cumulative material has not been adopted.

5-6, 34 Rejected as legal argumentation or a misleading statement contrary to the facts as found.

14 Accepted as restated to better explain the agency's initial concern with CMBE compliance and why it required the clarification be made in dollar amounts instead of percentages.

15-16 Contrary to the facts as found upon the greater weight of the credible competent evidence.

However this isolated testimony has been covered within the Recommended Order's finding of fact.

26-27 Covered with preliminary matters. Intervenor Unisys' PFOF:

1-3, 5-19, 21-29, 37, 43-48, 51-54

Accepted in substance except that unnecessary, subordinate, or cumulative material has not been adopted. Interspersed legal argumenta- tion or is likewise rejected.

4, 20, 30-31, 36

Rejected as legal argumentation or a misleading statement which does not fully explain the issue. However, the issues are covered within the Recommended Order

34, 38, 40-42

Rejected as legal argumentation, a preliminary matter, or conclusion of law.

35, 49-50 Legal argumentation; mere quotation of isolated testimony; Contrary to the facts as found upon the greater weight of the credible competent evidence; or there is insufficient evidence to reach this determination.

32, 39 Accepted as restated to better explain the agency's initial concern with CMBE compliance why it required the clarification be made in dollar amounts instead of percentages.

33 Accepted that the May 4 clarification of Amdahl and Unisys did not materially alter their proposals. These became part of the proposals. Alterations after award of benchmarking status were a different matter as discussed in the Recommended Order.

COPIES FURNISHED:

Julie Gallagher, Esquire Post Office Box 10948 Tallahassee, Florida 32302

Karen Zucker, Esquire c/o Amdahl Corporation Chevy Chase Pavilion 5335 Wisconsin Avenue NW Washington, DC 20015

Michael Alderman, Esquire Judson Chapman, Esquire Enoch J. Whitney, Esquire Department of Highway Safety

& Motor Vehicles

Neil Kirkman Building, A-432 Tallahassee, Florida 32399-0504

Mary Piccard, Esquire Robert Vezina, Esquire Post Office Box 589

Tallahassee, Florida 32302-0589

Charles J. Brantley, Director Division of Motor Vehicles

Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500

Enoch J. Whitney, Esquire Department of Highway Safety

& Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399-0500

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.

Docket for Case No: 95-005382BID

Orders for Case No: 95-005382BID