STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANAGEMENT CONCEPTS, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5803BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

and )

)

ZANCO PERSONNEL RESOURCES )

AND CONSULTING SERVICES, )

)

Intervenor. )

) NEW DAY ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-5804BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

and )

)

ZANCO PERSONNEL RESOURCES )

AND CONSULTING SERVICES, )

)

Intervenor. )

)

RECOMMENDED ORDER

On December 15, 1996, a formal administrative hearing was held in this case in Tallahassee, Florida, before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Norberto S. Katz, Esquire New Day Katz and Veliz, P.A. Enterprises 2211 East Michigan Street

Orlando, Florida 32806

For Petitioner: (no appearance) Management

Concepts

For Respondent: Daniel Te Young, Esquire

Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

For Intervenor: M. Christopher Bryant, Esquire

Oertel, Hoffman, Fernandez and Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507 STATEMENT OF THE ISSUE

Whether the Department of Corrections acted arbitrarily, illegally, fraudulently, or dishonestly in the intent to award the contract for RFP No. 95- CO-6740 to Zanco Personnel Resources and Consulting Services.

PRELIMINARY STATEMENT

On August 4, 1995, the Respondent issued request for proposal No. 95-CO- 6740 titled "Appreciating Racial, Cultural and Gender Diversity" (the RFP) for the delivery of instruction on these issues in the correctional work place. No protest challenging the terms and conditions of RFP was filed. Proposals were opened on September 6, 1995. Twelve proposals were submitted and referred to an evaluation hearing. On November 7, 1995 Respondent issued its intent to award the RFP to Intervenor Zanco. On November 13, 1995, Petitioners, Management Concepts and New Day Enterprises, submitted their notices of protest to the Respondent. In response to Management Concepts' protest the Respondent filed a Motion to Dismiss, or the Alternative for a More Definite Statement, dated December 1, 1995. The Respondent also filed a Motion to Consolidate both cases and this matter was referred to the Division of Administrative Hearings on December 1, 1995.

An Order Granting Motion to Consolidate was issued on December 5, 1995 and this case was set for hearing. As to Petitioner Management Concepts, an Order denying Respondent's Motion to Dismiss was entered on December 8, 1995.

Petitioner Management Concepts was granted leave to amend its formal protest and post bond on or before December 13, 1995. Zanco Personnel Services was granted leave to intervene on December 14, 1995. On December 14, 1995 Petitioner Management Concepts failed to post the bond required by Section 287.042(2)(c), Florida Statutes and on the same date filed its notice that it was withdrawing its Amended Notice of Protest. The motion to withdraw was granted at the formal hearing on December 15, 1995 and Management Concepts is dismissed from this proceeding.

Respondent filed its Notice of Compliance in accordance with the Prehearing Order, on December 8, 1995. Respondent and Petitioner New Day Enterprises filed a Prehearing Stipulation on December 14, 1995 and this matter proceeded to hearing on December 15, 1995.

At the hearing, Petitioner New Day called five witnesses and offered thirteen exhibits in evidence. Respondent offered one exhibit in evidence. Intervenor Zanco called one witness to testify and offered one exhibit in evidence. Based on the stipulation of the parties, the parties filed a supplementation of the record on December 19, 1995. The transcript was prepared and filed on January 3, 1996. Each of the parties prepared proposed findings of fact and conclusions of law which were simultaneously filed on January 16, 1996.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to this Recommended Order.

FINDINGS OF FACT

1. On August 4, 1995, the Department issued request for proposal Number 95-CO-6740 titled "Appreciating Racial, Cultural, and Gender Diversity" (the "RFP") for the delivery of instruction addressing racial, cultural, and gender diversity issues in the correctional work place, as well as workplace diversity issues relating to the American with Disabilities Act (ADA). The proposal called for the training of 1,500 of its employees, thirty persons per session, at sites throughout the state. Four of the sessions were to be "train-the trainer" sessions, which would prepare Department employees to carry on the training after the expiration of the Contract.

   
   

2. No protest challenging the terms and conditions of the RFP was filed. The RFP contained a description of the scope of the work to be performed, and of the required contents of the proposals to be submitted, as well as expectations for the prevailing offeror.

   
   

3. Proposals were submitted to the Department on September 6, 1995 and were reviewed and evaluated by five (5) employees of Respondent who comprised the Evaluation Committee.

   
   

4. Proposals were scored on a 100-point scale consisting of 50 evaluation points and 50 cost points. The 50 evaluation points were comprised of 10 points for "qualifications of offeror," 10 points for "previous related experience," and 30 points for "work plan and course outline."

   
   

5. The proposal with the lowest cost per student was awarded 50 cost points. The cost points of all other proposals was determined by the formula 50(1-A/B). A being the difference between the cost-per student of the proposal being scored and B being the lowest cost per student.

   
   

6. Petitioner New Day was a responsible bidder to the RFP.

   
   

7. Out of a possible 50 points for the evaluation of its proposal, Petitioner New Day received an average of 43.8 points and Zanco received an average of 32.0 points.

   
   

8. Out of a possible 50 points for its price per student, Petitioner received 31.4 points and Zanco received the full 50 points.

   
   

9. Adding committee points and cost points, Zanco's proposal received the highest overall score with 82.0 points and New Day received the second highest score with 75.2 points.

   
   

10. Respondent issued its intent to award the bid to Zanco.

    
    

11. Petitioner seeks to compare its proposal with Intervenor's. This is contrary to the instructions given to the bidders and the evaluation committee.

12. The evaluation committee guidelines stated, in part:

    
    

    3.a. DO NOT evaluate by comparing one bid/proposal with another; each must be evaluated independently of the others. (Emphasis in original).

    
    

13. Petitioner argues that Zanco's proposal was non-responsive because it did not comply with the mandatory requirements of the RFP. Petitioner argues that Zanco's proposal did not demonstrate a comprehensive knowledge of trends related to diversity and demographic changes.

    
    

14. Relating to the mandatory requirements, sections 5.1 and 5.10 of the RFP provide as follows:

    
    

    5.1 The State has established certain requirements with respect to responses to be submitted by bidders. The use of "shall", "must" or "will" (except to indicate simple futurity) in this Request for Proposal indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if the deficient response is not in substantial accord with this Request for Proposal require- ments, provides an advantage to one bidder

    over other bidders, has a [potentially signifi- cant] effect on the quantity or quality of items proposed, or on the cost to the State. [Material deviations cannot be waived].

    (Emphasis in original).

    5.10. Any RFP response which fails to meet the mandatory requirements stated in this Request may be rejected.

    
    

15. Section 2.1 of the RFP lists the mandatory requirements.

    
    

16. Section 3.1 of the RFP, titled "RFP response format," describes the format in which an offeror is to assemble the requirements in its proposal.

    
    

17. On the issue relating to the offeror's knowledge of trends, section

    2.1.1 of the RFP provides as follows:

    
    

    The offeror must demonstrate a comprehensive knowledge of racial, cultural and gender diversity issues and trends with particular emphasis on methods of improving racial cult- ural and gender interaction in the work place. The offer must also demonstrate comprehensive knowledge of diversity as described as above and as it pertains to ADA.

    
    

18. Contained in Zanco's executive summary is the following statement:

    
    

    By the year 2000, just five brief years from now, minorities and women will completely dominate the demographics of the United States

    - a fact which will revolutionize the way in which our society will have to operate. Gone will be the days of the traditional majority - replaced by large groups of women, older and handicapped persons, Hispanics, Afro-Americans, Asians, Native Americans and others.

    
    

19. Petitioner argues this statement is incorrect because the traditional majority will continue to be white Americans.

    
    

20. Zanco's statement does not imply that white Americans will not be the majority. Zanco's statement merely separates white women from white men and predicts that there will be many more white women, along with men and women of other backgrounds, than white men.

    
    

21. The United States Department of Commerce, Bureau of the Census, predicts that by the year 2000, there will be approximately 96 million white men compared to approximately 178 million combined white women and Hispanic, Black, American Indian, Eskimo, and Aleut, and Asian and Pacific Islander men and women in the workplace.

    
    

22. Zanco's statement is correct and supported by the evidence.

    
    

23. Zanco's proposal demonstrated a comprehensive knowledge of racial, cultural and gender diversity issues and trends.

    
    

24. Petitioner argues that Zanco's proposal did not contain training goals or behavioral objectives.

    
    

25. On this issue, section 2.1.2 of the RFP provides as follows:

    
    

    The offeror must provide specific training goals and behavior objectives along with a course outline depicting areas to be addressed in the instructional program.

    
    

26. Petitioner argues that a behavior objective focuses on what participants are expected to do. They are expressed in behavior terms with verbs, such that a participant will distinguish, identify, or list. Petitioner bases this opinion on chapter 9 of Foundations of Education. This book, although a useful source book, was neither included in nor referenced by the RFP. Thus, Foundations of Education is relevant for the limited purpose of supporting the opinion of Petitioner as to the definition of a behavioral objective. Foundations of Education can not be the basis by which to determine whether Zanco's proposal includes training goals and behavioral objectives.

    
    

27. Zanco's proposal includes training goals and behavioral objectives.

    
    

28. For example, the training goal of session two is to establish a common language. The training goal of session three is to relate diversity to every day life. The behavioral objective of session six is to raise awareness and reduce attitudinal barriers. The training goal of session seven is to lead to effective cross-cultural relationships. The behavioral objective of session nine is the management and controlling of prejudicial thinking. The behavioral objective of session 11 is to have participants view others and themselves as greater than the sum of their parts. The behavioral objective of session 13 is to understand how a community's reaction to differences adversely affects

    everyone's humanity. The behavioral objective of session 16 is to become aware of our natural inclination to generalize and apply assumptions. The behavioral objective of session 20 is responding effectively to changes. The behavioral objective of session 21 is understanding differences and valuing uniqueness.

    The behavioral objective and training goal of session 22 is creating an environment for diversity in order to establish effective working relationships in which employees can succeed. The behavioral objective of session 23 is encouraging listening and responding constructively to others' views.

    
    

29. Zanco also includes behavioral objectives in tab one of its proposal, its executive summary, as follows:

    
    

    Zanco helps employers think differently about the way people learn and develop, about employees [sic] capacity to achieve maximum performance, about how attitudes, actions and policies affect the climate of the workplace and, ultimately, its mission capability. . . Zanco's programs inspire individual contri- butors to take responsibility for improving

    the effectiveness of their organization, under- standing that those individuals who can work effectively with coworkers and inmates from a variety of backgrounds will be best equipped

    to contribute to their organization's goals and to fulfill their own career aspirations.

    
    

30. Zanco's proposal included training goals and behavioral objectives.

    
    

31. Petitioner argues that Zanco's proposal did not show comprehensive knowledge of familiarity with federal and state laws.

32. On this issue section 2.1.3 of the RFP provides as follows: The offeror must demonstrate comprehensive know-

    ledge of all state and federal laws, rules and guidelines governing affirmative action, equal opportunity employment issues, and ADA.

    
    

33. Under previous task-related experience, Zanco's proposal included an outline of the Florida Education Equity Act which was prepared pursuant to training clients in the education field based in Florida.

    
    

34. Zanco's proposal refers to the ADA in its previous task-related experience and in its course outline.

    
    

35. Zanco's proposal demonstrated comprehensive knowledge of all state and federal laws governing affirmative action, equal opportunity employment issues, and the ADA.

    
    

36. Petitioner argues that Zanco's proposal does not show that it knows of the composition of the Department's work force.

37. On this issue section 2.1.4 of the RFP provides as follows:

    
    

    The offeror must demonstrate reasonable aware- ness of the composition of the corrections workforce and of the corrections workplace/ environment.

    
    

38. Zanco's proposal substantially demonstrates a reasonable awareness of the composition of the Department's work force.

    
    

39. Petitioner argues that Zanco's proposal did not include visual or printed materials to be used in the program delivery process.

    
    

40. On this issue section 2.1.5 of the RFP provides as follows:

    
    

    Instructional methods employed in the program delivery process must include appropriate visual and printed materials, hands-on experi-

    ence and performance-based participant interaction.

    
    

41. This is a requirement for the successful offeror that is awarded the contract. It is not a requirement for an offeror to put in its proposal. Thus, it is irrelevant whether Zanco's proposal included visual or printed materials.

    
    

42. Petitioner argues that three of the five references listed by Zanco were for the same training exercises.

    
    

43. On this issue sections 2.1.11 and 3.1.3.1 of the REP provide as follows:

    
    

    The offeror must provide a listing of at least four (4) previous clients who are able to provide evaluative [sic] information regarding the offeror's instructional performance.

    The vendor shall provide a list of four (4) different previous clients as references.

    References shall provide a description of services performed with enough detail to allow the evaluation committee to easily determine whether the work was similar to that being requested by the state in this Request for Proposal....

    
    

44. Zanco listed the following four clients: the School Board of Charlotte County, the School Board of Sarasota County, the School Board of Manatee County, and the Florida Department of Labor and Employment Security.

    
    

45. The RFP did not request the vendor to list five references that received different types of training. Rather, the RFP requested a list of four previous clients that received training similar to that being sought by the Department.

    
    

46. Zanco's proposal listed four clients and described the services performed with sufficient detail to determine that the work was similar to that being requested by the Department.

47. Petitioner argues that Zanco's proposal fails to include relevant measurement instrument samples.

    
    

48. On this issue section 2.1.9 of the RFP provides as follows:

    
    

    The offeror must provide samples of relevant and measurement instruments, including performance evaluations, objective tests and course/instructor evaluation surveys.

    
    

49. Zanco's proposal included samples of relevant measurement instruments.

    
    

50. Zanco's proposal fails to list the education of Inez Bracy in its resume.

    
    

51. On this issue section 3.1.2 of the RFP provides in pertinent part as follows:

    
    

    The vendor shall include resumes of the specific individuals proposed to work on this contract, specifying education and work

    experience that relates directly to appreciating racial, cultural and gender diversity.

    
    

52. If Bracy's education were not directly related to appreciating racial, cultural and gender diversity, by a plain reading of section 3.1.2 if would not need to be specified.

    
    

53. However, the first sentence in Bracy's resume states "I have taught in the Palm Beach District School System for fifteen years."

    
    

54. Moreover, Section 3.1.2 did not ask for only the education of the trainer but prior work experience.

    
    

55. Bracy's work experience was listed and includes coordinating a conference titled "Building Global Bridges" and teaching "sensitivity in a multicultural classroom" to the Palm Beach County Classroom Teachers Association.

    
    

56. Zanco's proposal substantially demonstrates the educational background and work experience of Inez Bracy.

    
    

57. Zanco's proposal indicates that it is entering its fifth year of business, but Petitioner argues that Zanco's references begin in 1994 and that Zanco does not have relevant experience that predates 1994.

    
    

58. On this issue, Section 3.1.3.2 of the RFP provides as follows:

    
    

    The Department prefers vendors who have been in business for at least three years. Vendors which have not been in the instructional delivery business for at least three years will receive a five (5) point deduction.

    
    

59. Zanco's proposal includes a statement that Zanco "is entering its fifth year as a specialist in the Diversity and Equity instructional delivery business."

60. The RFP did not request references corresponding to every year a vendor is in business.

    
    

61. Further, if Zanco had been in business for only one or two years, Section 3.1.3.2 of the RFP would only effect the score assigned to Zanco and not the responsiveness of Zanco's proposal. The score, reduced by 5 points, would still exceed Petitioners score.

    
    

62. Petitioner argues that Zanco's proposal does not contain a work plan.

63. On this issue, Section 3.1.4 of the RFP provides as follows: [Tab 4, Workplan and Course Outline] - This

    section shall include a proposed workplan

    describing how the vendor will approach this training including training aids, trainee interaction, etc. plus a proposed course out- line for the 3-day session. There shall be a workplan and outline for both the staff training and the train-the-trainer training. (Emphasis in original).

    
    

64. Petitioner argues that this requirement mandates that a course outline and workplan must be separate documents.

    
    

65. The RFP, however, does not state that two separate documents must be provided. It states that both must be present.

    
    

66. Zanco's work plan is mixed with its outline.

    
    

67. Zanco's proposal contained a work plan.

    
    

68. Petitioner argues that the score given to Zanco's proposal was arbitrary because the proposal did not include a work plan or an outline for the three-day session.

    
    

69. The 50 evaluation points consisted of 10 points for "qualifications of offeror", 10 points for "previous related experience", and 30 points for "work plan and course outline".

    
    

70. Petitioner does not challenge the 50 cost-points given to Zanco.

    
    

71. Zanco received an average of 32.0 evaluation points.

    
    

72. Petitioner received an average of 43.8 evaluation points.

    
    

73. For qualifications of offeror, Zanco received 5, 7, 10, 9, and 5 points for an average of 7.2 points.

    
    

74. For previous related experience, Zanco received 10, 5, 10, 9, and 5 points for an average of 7.8 points.

    
    

75. For work plan and course outline, Zanco received 20, 15, 15, 15, and

    20 points for an average of 17.0 points.

76. Petitioner proffered that 5 points was logical for Zanco's qualifications, and that 5 points was logical for Zanco's previous related experience. In Petitioner's witness Thompson's opinion, however, any score given to Zanco's qualifications or previous related experience above 5 points was arbitrary.

    
    

77. Petitioner argues that Zanco should have received no points for its work plan and course outline because Zanco did not include a separate work plan. Petitioner argues that it was arbitrary for Zanco to have received any points for its work plan and course outline. By Petitioner's interpretation of the RFP, the work plan had to be separated from the course outline, and that Zanco did not include a separate three-day course outline.

    
    

78. Zanco's three-day course outline is contained in its proposal.

    
    

79. Each of the 25 sessions listed by Zanco in its diversity training outline is approximately 45 minutes to an hour in duration. It would take roughly 24 hours to cover 25 45-minute to one-hour sessions, or three eight-hour days.

    
    

80. There was no requirement in the RFP that the work plan and course outline had to be on separate pages or located under separate tabs.

    
    

81. Zanco's work plan is mixed with its outline.

    
    

82. The evaluation committee did not award points for Zanco's work plan and course outline in an arbitrary or capricious manner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

84. Petitioner asserts error in the Department's bid award. Therefore, Petitioner has the burden of proof in this hearing. Further, Petitioner must establish its burden by a preponderance of the evidence. See, Florida Department of Health and Rehabilitative Services v. Career Service Commission,

    289 So.2d 412 (Fla. 4th DCA 1974); Florida Department of Transportation v.

    J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

85. An agency has wide discretion in all aspects of bid letting and awarding bids. Such discretion, even if wrong, will not be disturbed unless it is found to be arbitrary, illegal, fraudulent, or dishonest. See, Department of Transportation v. Groves-Watkins Construction, 530 So.2d 912 (Fla. 1988); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982); Moore v. Department of Health and Rehabilitative Services, 596 So.2d 759 (Fla. 1st DCA 1992); and Asphalt Pavers, Inc. v. Department of Transportation, 602 So.2d 558 (Fla. 1st DCA 1992).

    
    

86. In the event the Hearing Officer finds that the Department acted arbitrarily, illegally, fraudulently, or dishonestly, then his only authority is to return the bid to the Department for proceedings consistent with the Department's rules. See, Moore, 596 So.2d at 759.

87. Additionally, a party must object to the terms and conditions of a bid within 72 hours of receipt of the bid document. See, Capeletti Brothers, Inc.

    v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986); Section 120.53(5)(b), Florida Statutes.

    
    

88. Petitioner does not argue that the Department acted illegally, fraudulently, or dishonestly. It argues that the Department acted arbitrarily because the proposal of Zanco was non-responsive since it did not include mandatory requirements listed in the RFP.

    
    

89. In Agrico Chemical Company v. Department of Environmental Regulation,

    365 So.2d 759, 763 (Fla. 1st DCA 1979), the court defined "arbitrary" to mean not supported by facts or logic, or despotic. In Youth Crime Watch of America

    v. Department of Health and Rehabilitative Services, 619 So.2d 405, 406 (Fla. 3d DCA 1993), the court defined "arbitrary" to be action that is not governed by fixed rule or standard. Neither of these cases dealt with the definition of "arbitrary" for purposes of a bid award.

    
    

90. An agency has discretion to waive a minor irregularity in a bid proposal. See, Tropabest Foods, Inc. v. Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986); Robinson Electric Company, Inc. v. Dade County,

    417 So.2d 1032 (Fla. 3d DCA 1982). A minor irregularity is a variation from the bid specifications 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 agency." Tropabest, 493 So.2d at 52. As noted by the Tropabest court, "the purpose of competitive bidding is to secure the lowest responsible offer and minor irregularities can be waived in effectuating that purpose." Tropabest, 493 So.2d at 52.

    
    

91. Based upon the testimony and evidence submitted, the mandatory requirements were, in fact, provided by Zanco. Zanco's proposal included training goals and behavioral objectives. Zanco's proposal demonstrated comprehensive knowledge of all state and federal laws governing affirmative action, equal opportunity employment issues, and the ADA.

    
    

92. Zanco's proposal included relevant measurement samples, as well as a work plan and a course outline.

    
    

93. Zanco's proposal shows substantial conformity with the other requirements. Zanco's proposal substantially demonstrates that it knows the composition of the Department's work force. Even if Zanco did not substantially show that it knew the composition of the Department's work force, Petitioner presented no evidence concerning how this gave Zanco a benefit not enjoyed by others, how this would effect cost, or adversely impact the interests of the Department. Thus, although Zanco substantially demonstrated that it knew the composition of the Department's work force, had it not, at most this would create only a minor irregularity which the Department could waive. See, Tropabest, 493 So.2d at 52.

    
    

94. Zanco's proposal substantially demonstrated the education and prior work of Inez Bracy. If Bracy's education were not directly related to appreciating racial, cultural, and gender diversity, by a plain and logical reading of Section 3.1.2, it would not need to be specified. Although her education is not listed, her resume states that she has taught in the Palm Beach District School System for 15 years, and her resume shows her prior work experience. Even if Zanco did not substantially show the education of Bracy,

    Petitioner presented no evidence concerning how this gave Zanco a benefit not shared by others, how this would effect cost, or adversely impact the interests of the Department.

    
    

95. Further, the RFP provides that the Department "reserves the right to approve or veto the use of specific vendor staff members in the instructional delivery process as covered under the scope of this RFP." The Department, thus, has the authority to approve or veto Zanco using Bracy as an instructor.

    
    

96. Petitioner also argues that the Department arbitrarily scored the work plan and course outline of Zanco, as it argues that no work plan was provided. A work plan was provided, but was mixed with the course outline.

    
    

97. The Liberty County court stated that "[i]n Florida, on the other hand, a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when based upon 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." 421 So.2d at 507.

    
    

98. Petitioner also argues that giving Zanco more than five points for its previous related experience and qualifications of offeror was arbitrary. However, the role of the Hearing Officer is not to re-score Zanco's proposal but to determine whether the Department acted arbitrarily, illegally, fraudulently, or dishonestly. See, Groves-Watkins, 530 So.2d at 913-14.

    
    

99. There was insufficient evidence presented to prove that the Department acted arbitrarily, illegally, fraudulently, or dishonestly in scoring Zanco's proposal.

    
    

100. Although Petitioner presented an excellent proposal, it is not within the authority of the Hearing Officer to reevaluate or re-score the bidder's proposal and award the bid to the bidder which the Hearing Officer would favor.

     
     

101. There is simply no evidence establishing that the Department acted arbitrarily, illegally, fraudulently, or dishonestly in the bidding process.

     
     

102. Thus, because the Department has not acted arbitrarily, illegally, fraudulently, or dishonestly, the award of RFP Number 95-CO-6740 to Zanco must be upheld.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying the relief

requested by Petitioner and recommending that a Final Order be entered awarding the contract for RFP Number 95-CO-6740 to Intervenor, Zanco.

DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Florida.

DANIEL M. KILBRIDE, 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 16th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5803BID

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

Accepted in substance: paragraph 1, 2 (partially addressed in Preliminary Statement), 3, 4 (Preliminary Statement), and 5.

Rejected as against the greater weight of evidence: paragraphs 6(A), (B),

Rejected as subsumed, or irrelevant and immaterial: paragraphs 21, 49, 50, 55, 69, 70, 74, 77, 113, 114, 115, 116, 117, 118, 120, 121, 122, and 123.

Intervenor's Proposed Findings of Fact.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10 (in part),

12, 13 (in part), 14, 15, 16 (in part), 17, 18 (in part), 19 (in part), 21 (in

part), 22 (in part), 24 (in part), 25, 26, 27, 28, 29, 30, 31, 32, 33, and 34.

Rejected as subsumed, or irrelevant and immaterial paragraphs 9, 10 (in part), 11 (in part), 13 (in part), 16 (in part), 18 (in part), 19 (in part), 20

(in part), 21 (in part), 22 (in part), 23, 24 (in part), 25 (in part).

COPIES FURNISHED:

Norberto S. Katz, Esquire Katz and Veliz, P.A.

2211 East Michigan Street Orlando, Florida 32806

Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road

Tallahassee, Florida 32399-2500

M. Christopher Bryant, Esquire

Oertel, Hoffman, Fernandez and Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

Louis A. Vargas, General Counsel Department of Corrections

2601 Blair Stone Road Tallahassee, Florida 32399-2500

Darlene Andert-Schmidt, President Management Concepts

2562 Southwest 27 Place Cape Coral, Florida 33914

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their 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: 95-005803BID

Orders for Case No: 95-005803BID