The Issue The issue for determination in this proceeding is whether a contract for a perimeter security system at Calhoun Correctional Institution and Holmes Correctional Institution should be awarded to Intervenor.
Findings Of Fact On January 19, 1994, Respondent issued an Invitation To Bid, Bid No. 94-INST-6197, the ("ITB"). The ITB requested bidders to submit bids to supply materials for perimeter security systems and to provide training for the installation and maintenance of the systems at Calhoun Correctional Institution and Holmes Correctional Institution. Responsive bids had to include materials and training necessary for Respondent to install and maintain the security systems. Bids had to be filed no later than February 10, 1994. Petitioner and Intervenor submitted bids along with three other bidders in a timely manner. The ITB required bidders to hold a Florida alarm contractor's license. Intervenor does not hold such a license. However, the ITB defines the term "bidder" to include an individual, firm, partner, or corporation. Intervenor's bid contemplated that it will supply the materials required in the ITB. Another company that holds a Florida alarm contractor's license will provide the training required for Respondent to install and maintain the security systems. Intervenor and the other company responded to the ITB as partners in a single bid that provides a single price for all materials and training required by the ITB. Intervenor's bid complies with the terms of the ITB and is responsive. Respondent notified Intervenor of its intent to award the contract to Intervenor as the lowest responsive bidder. Intervenor's bid is approximately $14,000 less than Petitioner's bid. Petitioner is the second lowest bidder. Respondent's interpretation that the ITB allows materials and training to be supplied separately by Intervenor and its partner is a reasonable interpretation that is neither arbitrary nor capricious. The intent and purpose of such an interpretation is to encourage flexibility that may result in savings to the state. The provision of materials and services by separate companies in Intervenor's bid will, in fact, result in substantial savings to the state. The terms of the bid does not create an unfair advantage for Intervenor. The term bidder is defined in the bid documents to include a partner and a corporation. Florida law expressly exempts Intervenor from the requirement for an alarm contractor's license if Intervenor merely supplies materials and does not fabricate or consume the materials in performing the work of a contractor. Section 489.503(10), Florida Statutes. Therefore, only Intervenor's partner is required to hold an alarm contractor's license, and, in fact, Intervenor's partner holds the requisite license. Respondent's interpretation of the ITB is consistent with applicable law. Any other interpretation of the ITB by Respondent would have purported to impose a stricter licensing requirement than that imposed by the legislature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 26th day of April, 1994. DANIEL 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 26th day of April, 1994. APPENDIX Petitioner's Proposed Findings of Fact 1.-5., 7-8. Accepted in substance 6. Irrelevant and immaterial Rejected as recited testimony Accepted in substance 11.-13. Rejected for the factual and legal reasons stated in the Recommended Order Respondent's Proposed Findings of Fact All of Respondent's proposed findings of fact are accepted in substance. COPIES FURNISHED: Beth Atchison, Esquire Assistant General Counsel Florida Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 Teresa Hurtado Schaefer, CEO FSM, Inc. 3559 S. W. 69th Way Miramar, FL 33023 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Michael G. Kanche, Jr. Southwest Microwave 2922 South Rosevelt Street Tempe, Arizona 85282-2042
The Issue The issues are whether the bids submitted by Daffin and Gulf Coast were responsive, and whether the failure by the Department of Corrections to evaluate each proposal at the time the proposals were opened to determine if the proposal was responsive is fatal to consideration of the bids under the terms of the ITB.
Findings Of Fact The Department issued Invitation to Bid No. 94-DC-6279 (the ITB) on May 27, 1994. The ITB requested bidders to submit proposals to provide receipt, storage and delivery of frozen and non-frozen food products. The bid was separated into five distinct regions and vendors could bid on any or all of the regions. Proposals had to be filed with the Department by July 20, 1994, and were opened on that date. The bid was divided into two parts for purposes of point distribution. Sixty (60) points were allotted for price criteria, and forty (40) points were allotted for additional, non-price criteria. [Joint Exhibit A.] The Additional Criteria, which related to non-costs issues and were not mandatory criteria, were listed in Section 4.8.2. of the ITB as follows: Additional Criteria 40 Points Prior experience and history of timely deliveries Condition of equipment/type - # (number of) trucks-conditions Location of contractor's facilities Personnel/staffing [Joint Exhibit A.] Addendum 2 to the ITB further provided that: 4. Direct your attention to the additional criteria used for evaluation. The low bid will be 60 points (Note: 4.3 states erroneously 50 percent; 60 is correct). Forty [40.] will be for additional criteria listed in the ITB. We suggest that you list the information in additional criteria for consideration and evaluation. Jim Morris, Bureau Chief of General Services for the Department of Corrections, was the individual responsible for monitoring the ITB. [R. pg. 66, line 14-16; pg. 75, line 5-12.] Bill Bowers, Chief of Food Services for the Department of Corrections, participated in defining the scope of the contract, and assembled the criteria for the ITB. [R. pg. 108, lines 10-25; pg. 117, lines 18-21.] The Department's evaluations were conducted by Howell L. Winfree, III, J.L. (Joe) Murphy; Fred J. Boyd; Robert Sandal and Chris Dennard. [Joint Exhibit M and N.] The criteria used by the Department's evaluator were as follows: Prior experience and history of timely deliveries (15) (Length of time in distribution business and any known complaints by customers) Condition of Equipment/type (10) Task- related experience (Age of trucks/with freezer) Location of Contractor's facilities (10) (Location of distribution points in relation to regions being served) Personnel/Staffing (5) (Is sufficient staff available) [Joint Exhibit L.] The criteria scoring sheet used by the Department in evaluating the bids submitted, specifically Joint Exhibit L, was not included in the ITB. [Joint Exhibit A.] Six vendors submitted bids on the Department's five regions. Pride submitted a bid for all five (5) regions requested by the Department's ITB. [Joint Exhibit D.] After the evaluation of the bids was conducted by the Department, the following awards were made: Region I - Daffin Region II - C & W Region III and V - Gulf Coast Region IV - Pride [Joint Exhibit F.] COMPETITIVE BID PROCEDURE At the time the bids were publicly opened the Department did not make a determination that the bids were responsive. [R. pg. 73, lines 4-8.] No one in the legal office made a determination that the bids were responsive to the ITB. [R. pg. 77, lines 2-6; pg. 85, lines 2-17.] No one made a determination, written or otherwise, that the bids submitted in response to Invitation to Bid No. 94-DC-6279 were responsive to the ITB. [R. pg. 76, lines 6-10; pg. 97, lines 13 The Department transmitted the bids and evaluation materials to the evaluators after the bids were opened. There is no evidence that any of the bids failed to meet technical qualifications. [R. pg. 78, lines 4-8; pg. 79, line 17 through pg. 80 line 2; pg. 83, lines 18-25; pg. 85, lines 2-17.] Paragraph 4.11 of the ITB permitted the Department to obtain from a vendor information by questioning the vendors if necessary to resolve questions which might arise about the vendors' responses. None of the vendors controverted this provision in the ITB. The Department did seek and consider such additional information from Daffin during a site visit. [R. pg. 141, line 21 through 147.] Daffin's bid response included the following documents: Signed Invitation to Bid Cover Sheet Signed Public Entity Crimes Form One page memo re: Requested Criteria Signed Addendum #1-4 to the Invitation to Bid Signed Price Quote Sheet [Joint Exhibit C.] Daffin Supply Company (Daffin) and Pride were the only vendors that submitted bids for Region I in response to the ITB. [Joint Exhibit F and H.] Daffin's price was $1.389 per case for receipt, storage and delivery of the food items, and Pride's price was $2.5296 per case for receipt, storage, and delivery of the food items. Daffin received a total of 69.26 on its evaluation, and Pride received 46.49 on its evaluation for Region I. Daffin received the highest point score for its bid for Region I, and Pride received the second highest point score for its bid for Region I. [Joint Exhibit H.] In response to the Additional Criteria requirements, Daffin included only the following information: As additional criteria, we have been in the Supply and Distribution business for over twenty Drive in Panama City, Fla. The warehouse has three receiving docks and a large enclosed staging area. [Joint Exhibit C.] Howell L. Winfree, III, indicated regarding Daffin's bid that no information was available regarding the condition or type of Daffin's equipment or its personnel. J.L. Murphy's evaluation of Daffin's bid states, "Insufficient detail to evaluate properly." Chris Dennard's evaluation of Daffin's bid states, "This bidder did not provide sufficient information about their experience, equipment, personnel to give this evaluator an indication they could handle this bid if awarded." Fred Boyd's evaluation of Daffins bid states, "This vendor did not supply information which shows qualification for this bid." [Joint Composite Exhibit L.] Only one of the five evaluators gave Daffin points for these criteria, and Daffin received only 9.26 points of the 40 available non-costs criteria points. Pride received a significant number of the total points awarded for the non-costs criteria. However, Pride trailed Daffin by 23 points overall because Pride's cost was almost a dollar more per case. Subsequent to the bid evaluations, Mr. Morris and Mr. Bowers made a site visit to Daffin Supply Company. The purpose of the visit was to become familiar with the vendor, and to determine the company's capacity to store and transport the food items. R. pg. 75-76, lines 22-25; 1-2; pg. 85, line 18 through pg. 86, line 7; pg. 118, lines 4-14.] Until Mr. Morris and Mr. Bowers spoke to Mr. Daffin, the Department was not certain whether Daffin had facilities, truck and staff to carry out the bid. [R. pg. 114, lines 19-23.] After the site visit, the Department determined that Daffin could provide the services required by the bid for Region I. [R. pg. 118, lines 4- 18.] On September 1, 1994, subsequent to the bid opening, the Department received a letter from Daffin evidencing that they had an agreement with Ryder Truck Leasing company to lease trucks to carry out the services requested in the ITB; the letter is dated September 1, 1994. The Department did not conduct a site visit of Pride or any other bidder's facilities. Pride had been providing the services being bid upon to the Department prior to the ITB. The Department awarded Gulf Coast Food Service (Gulf Coast) the highest point score for its bid for Regions III (90.60 points) and V (90.60), and awarded Pride the second highest point score for its bid for Regions III (59.56 points) and V (59.56 points). Gulf Coast bid $1.63 per case and Pride bid $2.5296 per case to receive, store, and deliver the food items in both Regions III and V. [Joint Exhibit H.] Gulf Coast's bid response included the following documents: Signed Invitation to Bid Cover Sheet Signed Public Entity Crimes Form One page Letter re: Company Criteria Signed Addendum #1-4 to the Invitation to Bid Signed Price Quote Sheet Annual Report - Suncoast [Joint Exhibit B.] Gulf Coast's bid included the following information relating to the non-cost criteria: The Condition of the Equipment. The Bid stated "15 fully equipped [sic] temperature controlled trucks." [Joint Exhibit B; R. pg. 129, lines 1-3.] Prior Experience/Timeliness of Deliveries. The bid stated "8 years of excellent service to Foodservice Industry." [Joint Exhibit B; R. pg. 59, lines 9-13; pg. 129, lines 7-21.] Personnel/staffing attributed to the bid. The bid stated "Fully trained delivery staff with 5 years no accident safety record," and "Fully trained senior staff of buyers with over 90 years combined experience." [Joint Exhibit B; R. pg. 129, lines 7-21.] Pride's bid response included the following documents: Signed Invitation to Bid Cover Sheet. Unsigned Public Entity Crimes Form (Pride exempt.) Signed Addendum #1-4 to the Invitation to Bid. Signed Price Quote Sheet 29 page attachment covering the requirements of the bid and the additional criteria listed in Section 4.8.2 of the ITB. [Joint Exhibit D.] Pride listed the type of equipment by model name, size, and the quantity, as well as the condition of such equipment utilized for transportation and for the other requirements of the project [Joint Exhibit D; R. pg. 59, lines 18-21]; listed information regarding its shipping and receiving procedures; customer surveys to indicate prior experience and history of timely deliveries [Joint Exhibit D]; the staff positions that would be dedicated to the project for each location, and the location of all its facilities. [Joint Exhibit D; R. pg. 59, line 25 through pg. 60, line 5.] Pride submitted information relating to each of the criteria listed in the ITB. The total savings on the award of these three contracts to Daffin and Gulf Coast as opposed to Pride is $228,548.09. Pride filed a timely challenge to the award of the contracts for Regions I, III and V.
Recommendation It is, accordingly, RECOMMENDED, That the Petition of Pride be dismissed, and the bids be awarded to Gulf Coast and Daffin. DONE and ENTERED this 8th day of February, 1995. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1995. APPENDIX The parties submitted proposed findings of fact which were read and considered. The following states which of those facts were adopted and which were rejected and why: PETITIONER'S FINDINGS RECOMMENDED ORDER Paragraph 1 Paragraph 1 Paragraphs 2,3 Paragraphs 7,8 Paragraph 4 Paragraph 4 Paragraph 5 Rejected as contrary to facts Paragraphs 7,8 Paragraphs 5,6 Paragraphs 6,9 Subsumed in 5,6 Paragraphs 10-19 Paragraphs 9-17 Paragraphs 20,21,22 Conclusions of Law Paragraphs 23-26 Paragraphs 18-21 Paragraph 27 Conclusion of Law Paragraph 28 Subsumed in 22 Paragraph 29 Paragraph 22 Paragraph 30 Irrelevant, and subsumed in 15 Paragraphs 31,32,34 Paragraph 23 Paragraph 33 Irrelevant. Although information may have been provided about staff, the evaluations had already been completed and there is no evidence that this added information changed the already completed evaluations. Paragraphs 35-37,39-41 Paragraphs 24-29 Paragraph 38,42 Contrary to facts. Paragraph 43-47 Paragraphs 30-33 RESPONDENT'S FINDINGS RECOMMENDED ORDER Paragraphs 1-3 Paragraphs 1-3 Paragraphs 4,5 Paragraph 12 Paragraph 6 Subsumed in 12 Paragraph 7 Paragraph 19 Paragraph 8 Subsumed in 35 Paragraph 9 Paragraph 20 Paragraph 10 Paragraph 27 Paragraph 11 Paragraph 35 Paragraphs 12,13 Paragraph 27 Paragraph 14 Subsumed in 35 Paragraph 15 Paragraph 27 Paragraphs 16,17 Paragraphs 34,35 Paragraph 18,19 Respondent's order deleted 18,19 Paragraph 20 The evaluation was proper; however, the Department did not follow Rule 60A-1.001, F.A.C. Paragraph 21 There was no evidence of fraud or dishonesty. See comments to Paragraph 20, above, and Conclusions of Law. Paragraph 22 Paragraph 22 Paragraph 23 Subsumed in 22 Paragraph 24 Paragraph 23 Paragraphs 25,26 Paragraph 22 Paragraph 27 Subsumed in 22 Paragraph 28 Paragraph 33 Paragraph 29 Subsumed in 22 and 27 Paragraph 30 Conclusions of Law Paragraph 31 Paragraph 12 Paragraphs 32,33 Conclusions of Law Paragraphs 34,35 Paragraph 23 Paragraph 36 Paragraph 24 Paragraph 37 Conclusion of Law Paragraph 38 Argument Paragraph 39 Conclusion of Law Paragraph 40 Paragraph 23 Paragraph 41 Conclusion of Law COPIES FURNISHED: Wilbur E. Brewton, Esquire I. Ed Pantaleon, Esquire 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Louis A. Vargas, General Counsel Steven Ferst, Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
Findings Of Fact Respondent issued an Invitation To Bid (ITB) for Bid No. 91-04, entitled "Granular Activated Carbon (GAC) Filter Installations and Exchanges" in September, 1990. Two bids were received in response to Respondent's ITB 91-04; one from Petitioner for a composite total price of $748,355.00 and one from Continental Water Systems, Inc. (Continental), for a total composite price of $904.475.00. An intended contract award was delayed until the bids were evaluated. Subsequently, Respondent determined to award the bid to Continental on October 12, 1990. The issue in the ensuing bid dispute in Division of Administrative Hearings Case No. 90-6962BID was the responsiveness of Petitioner's bid on carbon specifications to be used in water filters. The bid document did not require manufacturers' specifications, requiring instead only generic specifications or a description of the product to be used. Respondent awarded the bid to Continental after determining Petitioner's bid to be nonresponsive, although the bid appeared facially responsive. In the course of evaluating the bids, Respondent's personnel went beyond the bid submissions and telephoned the manufacturer of the carbon proposed to be used in Petitioner's bid submittal. The manufacturer confirmed the content of Petitioner's bid that a lot analysis and hand selection could be done to select lots of carbon of a specified iodine number of 950 or greater in satisfaction of Respondent's specifications. Absent such a selection process, no manufacturer in this country produces a standard carbon which meets Respondent's bid specifications. While the ITB required bidders to submit specifications for products, it did not require submission of manufacturer's specifications. However, Petitioner's bid submittal included the manufacturer's specification sheet for an activated charcoal product known as GAC 30. The iodine number 950 appeared on the sheet with an asterisk next to it. At the bottom of the page was a typed note explaining that lots with this iodine rating would be specifically selected to meet or exceed all bid requirements. In reviewing Petitioner's bid, Respondent's personnel were aware that Petitioner had been using selected lots of GAC 30 in fulfilling a previous bid award for the same project from the Department of Agriculture and Consumer Services which specified carbon with an iodine number of 950. Further, Respondent's personnel knew that lot analyses were provided to the Department of Agriculture and Consumer Services to confirm the carbon's standards. As a result of that knowledge, a provision for an analysis of each carbon lot to be used was included in Respondent's ITB. On October 9, 1990, when Respondent's employee telephoned the manufacturer whose specification sheet was submitted by Petitioner, he was orally informed that while the iodine number for GAC 30 is 900, the actual iodine number for GAC 30 is often above 950 and that lot selections of carbon could be made meeting or exceeding 950. Later, per the employee's request for written confirmation, he received a facsimile letter dated October 10, 1990, from the manufacturer. Without regard for these findings, Respondent rejected Petitioner's bid because the actual manufacturer's specification for the carbon proposed by Petitioner did not meet bid requirements. 1/ While Respondent's personnel deemed it appropriate to consider information from the manufacturer of GAC 30 that its actual specifications were different from those submitted by Petitioner, the manufacturer's confirmation of Petitioner's explanation that lots would be selected to meet bid requirements was rejected. Petitioner is a corporation which, at the time of the bid submittal, had its principal office in Winter Haven, Florida. At that time, Petitioner had 12 employees. Petitioner is a prevailing small business party and was awarded the bid by Final Order of Respondent dated February 18, 1991. In the course of the administrative litigation culminating in Respondent's Final Order, Petitioner incurred attorney's fees in excess of $15,000.
The Issue The issue in this case is whether the bid of Kimball International Marketing, Inc., and Corporate Interiors, Inc., (Petitioners) is the lowest responsible bid which was received by the Pinellas County School Board (Respondent) for systems furniture (partitions) for the New District Administration Building, or in the alternative, whether all bids should be rejected as urged by The Harter Group (Intervenor).
Findings Of Fact On or about February 27, 1990, the Respondent sought competitive bids for systems furniture (partitions) for the New District Administration Building. In response thereto, Respondent timely received three bids, including those of the Petitioners and Intervenor, and one no bid. The bid opening occurred on April 17, 1990, and neither Petitioners nor Intervenor were determined to be the lowest responsible bidder. However, the Petitioners' bid was lower than that of the bidder to whom the Respondent proposes to award this contract. Petitioners' bid was $932,502.39, Intervenor's bid was highest at $1,101,509.90, and the bid of lowest responsible bidder, Haworth, Inc., was $1,072,286.50. The first reason given by Respondent for its determination that Petitioners' bid was not responsive to the bid specifications is that it did not include an amount for sales tax. Intervenor also did not include sales tax in its bid, but Haworth, Inc., which was determined by Respondent to be the lowest responsible bidder, did include sales tax. However, there was no dispute at hearing that the Respondent does not pay sales tax on transactions involving the acquisition of furnishings for the Pinellas County School System, and that Section 9.2.2 of the bid specifications erroneously stated that this contract would not be exempt from sales tax. The second reason given by Respondent for rejecting Petitioners' bid was that it omitted a required page from the approved form which was to be used to list those items in the bid proposal that were not in strict compliance with the Respondent's specifications. Petitioners admit that the required page numbered 00310-7 was not included in their bid, but maintain that it was not necessary to include this exact page since all items in their bid do meet specifications, and since a statement to this effect was included elsewhere in the bid. The lowest responsible bidder, as determined by the Respondent, did include this required page with a statement thereon that "all items comply". Intervenor also included this page listing 11 items in its bid which differed from the specifications. The purpose of this required page is to allow the Respondent to have a uniform, clearly identifiable place in each bid proposal where it can look to determine if the items in that bid meet specifications, without having to check every page of each bid. The third reason given by Respondent for rejecting Petitioners' bid was that it included numerous pages of unit costs which were not called for in the specifications, without any explanation as to their meaning or the purpose for which they were included in the bid. Section 4.1.1 of the bid specifications, found at page 00100-11, makes it clear that no bid form other than that which is set forth in the specifications will be accepted, and specifically states that bidders are not even to retype the form on their letterhead, but are to simply fill-in a copy made from the form in the specifications. The Petitioners admit that their bid includes additional, unexplained information that was not called for in the specifications. A final reason given by Respondent at hearing for rejecting Petitioners' bid was that it was accompanied by a bid bond, required by Section 4.2.4 of the specifications, in the name of Kimball International Marketing, Inc., while the public entity crime affidavit, required by Section 2.1.5, was subscribed to by Corporate Interiors, Inc. Petitioners' bid did not include a resolution or other evidence of authority that Corporate Interiors, Inc., had authority to submit a public entity crime affidavit on behalf of Kimball International Marketing, Inc., or that the affidavit submitted was valid as to Kimball. Thus, while Petitioners maintain that their bid was jointly filed on behalf of the manufacturer, Kimball, and the vendor, Corporate Interiors, their bid includes a bond from the manufacturer only, and a crime affidavit from the vendor only. Section 1.8 of the specifications, found at page 00100-2, specifies that the bidder is the person or entity that submits a bid. Petitioners urge that theirs is a joint bid, but they have failed to submit a joint bond or affidavit. Section 5.2.1 of the specifications allows the Respondent to reject any bid which fails to include a required security, or other required data. The bid which was determined by the Respondent to be the lowest responsible bid contains no technical flaws, errors or omissions, and the proposal meets all specifications for this project. The Respondent properly posted notice of its intent to award this contract to Haworth, Inc., the lowest responsible bidder. Under Section 5.3.1 of its bid instructions, the Respondent has the right to waive "any informality or irregularity in any Bid or Bids received and to accept the Bid or Bids which, in (its) judgment, is in (its) own best interest." Respondent chose not to waive any of the irregularities in the Petitioners' bid. This decision was made, in part, because of Respondent's previous experience with Petitioners in their installation of similar systems for Respondent at the Walter Pownall Service Centers in which there had been problems involving service during installation, coordination of the installation work, and verification that invoices received from Corporate Interiors did not exceed the bid base price, and that all items being paid had actually been received.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioners' and Intervenor's protests of its intent to award a contract for systems furniture (partitions) for the New District Administration Building to Haworth, Inc., as the lowest responsible bidder. DONE AND ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 6th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2863BID Petitioner and Intervenor filed letters, but no proposed findings of fact upon which rulings could be made. Rulings on Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 3. 3. Adopted in Findings 4-6. 4. Adopted in Finding 6. 5. Adopted in Findings 4-6. 6. Adopted in Finding 6. 7. Adopted in Findings 6, 8. 8. Adopted in Finding 1. 9. Adopted in Findings 2, 3. 10-12. Adopted in Finding 6. 13. Adopted in Finding 4. 14. Adopted in Finding 3. 15. Adopted in Finding 5. 16-17. Adopted in Finding 7. 18. Adopted in Finding 1. 19. Adopted in Finding 8. COPIES FURNISHED: Allen D. Zimmerman, President Corporate Interiors, Inc. 1090 Kapp Drive Clearwater, FL 34625 Bruce P. Taylor, Esquire P. O. Box 4688 Clearwater, FL 34618-4688 Sue Olinger 1284 West Fairbanks Avenue Winter Park, FL 32789 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618
The Issue The issues are (1) Whether the response of TRAK Engineering, Inc., (TRAK) to the Request for Proposal (RFP) No. SP1587T1 is responsive; and (2) Whether TRAK should be awarded the contract for RFP No. SP1587T1; and (3) If not TRAK, then which vendor should be awarded the contract. Petitioner, Howden Coloney, Inc., (HCI) requested a formal hearing pursuant to Section 120.53(5), Florida Statutes, in order to challenge the Department of Transportation's (DOT) decision to award the contract for RFP No. SP1587T1, for procurement and installation of an Automated Fuel Dispensing System (AFDS), to TRAK. HCI presented the testimony of Douglas Coleman, Terry Cappellini, and William Douglas. Petitioner's Exhibits 1-7 and 9-13 were admitted in evidence. TRAK presented the testimony Larry Weinstein, who was accepted as an expert in designing and programming of fuel management systems, which use electrical cable as well as fiber optics. TRAK had Intervenor's Exhibits 1 and 2 admitted in evidence. DOT presented the testimony of Mark Sawicki and William Douglas, together with DOT's Exhibit 1 which was admitted in evidence. The transcript of the proceedings was filed on November 12, 1987. The parties each filed proposed findings of fact and conclusions of law on November 23, 1987. All proposed findings of fact have been considered and a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact The address of Respondent, DOT, is 605 Suwannee Street, Tallahassee, Florida 32399-32301. The address for the Petitioner, Howden Coloney, Inc., is Post Office Box 5258, Tallahassee, Florida 32314. The address for the Intervenor, TRAM Engineering, Inc., is Post Office Box 20325, Tallahassee, Florida 32316. RFP No. SP1587T1 comprises the subject of the protest filed by the Petitioner. This RFP is entitled "Automated Fuel Dispensing System" and it involves a contract for commodities for the installation of an Automated Fuel Dispensing System at 73 DOT maintenance facilities throughout the State of Florida as well as for the procurement by DOT of 20 mobile AFDS units to be used by DOT in the field at job sites. On July 31, 1987, DOT issued a RFP for an AFDS which stated that submissions in response to the RFP would be opened by DOT on September 15, 1987, at 2:30 p.m. Special conditions of the RFP explained the format that the responses to the RFP should take. The responses were to be divided into a "Technical Proposal" and a "Cost Proposal." The technical proposal by the vendor would consist of three parts: Detailed information of the proposed equipment and software; a work plan for installing and implementing the system; vendor qualifications and experience references. Cost data was not to be supplied in the technical proposal. The cost proposal would be divided into three parts: A bid sheet, showing the cost of each item and the total cost of the system; a vendor's warranty statement; the vendor's proposed service contract which would include a cost quotation for one year covering all parts and labor. The RFP apprised all vendors of how their proposals were to be evaluated. Technical proposals were to be evaluated) by a committee established by DOT. The technical proposals were to be evaluated based upon three categories: Completeness and quality of proposed system hardware and software (50 points); Understanding of the project as demonstrated by the narrative work plan and schedule (25 points); Experience of vendor in installing similar automated fuel systems (15 points). Only technical proposals receiving an overall score of 75 points or higher were to be considered. The highest possible score for the technical proposal could be 100 points. In evaluating the cost proposal, the "net low bid" would receive a score of 100 points. All other cost proposals would receive a score of less than 100 points based on their relationship to the low bid. Cost proposals would be returned unopened to the vendor if the technical proposal score was below 75. The award would be made "...to the responsive and responsible vendor whose proposal received the highest overall score" when the score for the technical proposal and the cost proposal were combined. A tabulation of the submitted proposals for the recommended award was to be posted in the Bureau of Purchasing on September 25, 1987. Five vendors submitted responses to the RFP, including HCI and TRAK. The technical proposals were split into three sections: Section I- Technical; Section II-Work Plan; and Section III-Company Experience. These categories were further subdivided. The "Technical" section of the technical proposal was further subdivided into four parts: Part I- Equipment; Part 2 - System Capabilities; Part 3 - System Features; and Part 4 - Reports and Software. These Parts were comprised of numerous individual items of evaluation, e.q. Central Controller, Pump Island Controller, Encoders, Oil Dispenser, Mobile Controller, etc. Under Section I, Technical, which was divided into four parts, there were 33 individual items of evaluation. DOT's Technical Review Committee ranked these items from 1 to 5, with a 1 being the poorest grade and the 5 being the best grade, unless the Committee could not grade the item at all, in which case it was given a question mark and scored as a O. The scores were tallied for each of the items graded. A perfect score on each item in every category would result in 165 raw points." The actual points received by the vendor in the Technical Section would then be divided by the total number of raw points (165) and multiplied by 50 (the total technical points possible) in order to compute the vendor's grade. For instance, TRAK, which received the highest score in the Technical Section, had 148 raw points. The 148 raw points divided by 165 raw points, multiplied by the 50 maximum possible points resulted in TRAK's score of 45 points. One of the 33 items in the Technical Section of the Technical Proposal was "wiring." For this item, the RFP specification provided: (b) Wiring-the Department shall supply the main source of power for the system. The vendor shall provide all wiring and conduit from the main power source to the system. All data communication lines between the pump island controllers to the or modems [sic] will be supplied by the vendor. Attachment B shows conduit specifications. All wire and cable to be installed underground in conduit. Attachment B to the bid specification shows (by drawings) that the conduit in which "wires and cables" were to be enclosed was to be PVC (plastic) conduit except where conduit was to run under railroad tracks. TRAK provided in its technical proposal the following: XI.b. Trak will provide all wiring and conduit for the routing of power to the pump controllers. Trak will provide all communication cables. Some non-electrical cables (Fiber Optic) may be direct buried. All wiring will be done in accordance with the National Electric Code. HCI provided in its technical proposal that the installation crew will "pull all necessary power conductors and communication cables..." through conduit. Of the five vendors who submitted proposals to the RFP, TRAK received the highest score on the technical proposal. TRAK received 93 out of 100 possible points on their technical response to the RFP and HCI received 85 points on their technical response to the RFP (the lowest of the vendors who met the minimum required score of 75 points in order to be considered as a possible successful bidder). On Section I-Technical of the technical proposal to the RFP, TRAK received 45 out of 50 points which was the highest score received by any vendor. Under the category of "Wiring" in Section I, TRAK received a 5 (the highest possible score for that individual category) and HCI received a 3 (the lowest score given in that category, which all vendors other than TRAK received). Mark Sawicki, Professional Engineer with DOT, was involved in the development of the AFDS specifications and was part of the technical committee which evaluated the vendors' responses to the technical proposals of the RFP. Sawicki believed that this last sub-part of the wiring specification ("All wire and cable to be installed underground in conduit") was a relatively minor point. According to Sawicki, this is "especially" a "relatively minor point" on the pump islands. On April 20, 1987, before this RFP was issued, Douglas Coleman, Program Manager of HCI, wrote Sawicki and among other questions asked the following questions: 8. Do all power communication conductors have to be enclosed in conduits? Does this include fiber optic conductors? How deep should conduits be? The RPF bid specifications provide, in pertinent part the following: No negotiations, decisions, or actions shall be initiated or executed by a vendor as a result of any discussions with any Department employee. Only those communications which are in writing from the Department may be considered as a duly authorized expression on behalf of the Department. Sawicki does not recall seeing the HCI letter of April 20, 1987, nor does he recall whether the RFP specifications regarding conduit were drafted before or after the letter. William E. Douglas, Professional Engineer and Engineer of Central Support Operations for DOT, was involved in the evaluation of the technical proposal on the RFP involved in this case. Before this bid protest, if someone had asked Mr. Douglas about wire and cable, he would not have thought of fiber optics. TRAK was the only company which submitted a proposal which involved the use of fiber optics. Fiber optics is solid plastic or glass encased plastic with the property of total internal reflection, which means that light passes through it even if it is bent or twisted around. In TRAK's system, fiber optics is used to run control and communication lines on fuel islands and connect various aspects of the system. TRAK uses fiber optics because it is safe to use on a fuel pump island and avoids electrical damage and electrical noise. Its advantages over electrical wire or electrical cable are that it is not subject to receiving radiation which would disrupt electrical wire and that it can be run on a fuel pump island safely. Mark Sawicki was aware of the advantages of fiber optics and rated fiber optics more favorably because of its technical advantage over the traditional electrical wiring systems. According to DOT Engineer William E. Douglas, DOT specifically chose to issue a Request for Proposal as opposed to an Invitation to Bid. The AFDS that DOT sought was "highly technical" and the Department: ...felt that it was better to take advantage of the state of the art by asking for Requests for Proposals where we could evaluate the various vendors and their ability to give us a workable system, and thereby hopefully pick the best system for the least price. Because of the issuance of the RFP, the rating or scoring criteria discussed previously was developed. TRAK's bid was $891,061, without the service contract. With the service contract, TRAK's bid was $959,141. On the cost proposal ranking, TRAK received the highest possible score of 100 points due to its being the lowest bid amount. When combined with the Technical Proposal rating of 93 points, TRAK's total score was 193 points. HCI's bid was $947,696, without the service contract. With the service contract, its bid was $1,048,421. On the cost proposal, HCI received 94 points. HCI received a total of 179 points on the bid tabulation, which represented 94 points on its cost proposal and 85 points on its Technical Proposal. Engineering Systems, Inc., received a total point score of 179, which included 90 points for its cost proposal and 89 points for its Technical Proposal. Tech 21 Inc., received 67 points on its Technical Proposal. Pursuant to the rules of the RFP, its cost proposal was not opened because it received less than 75 points on its Technical Proposal. The Technical Proposals were opened on September 15, 1987. The bid tabulation with the cost proposals were posted on September 25, 1987. On September 30, 1987, HCI transmitted to DOT a formal protest letter. DOT employee Terry Cappellini called representatives of TRAK to tell them that DOT had received a protest from HCI, explained the nature of the protest, and suggested that TRAK send DOT "something in writing to assure [DOT] that [TRAK] would put all cable in conduit...." This action was taken by Mr. Cappellini after conferring with Mr. Douglas. Mr. Douglas interpreted TRAK's response to the wiring category to be the amount of conduit under the pump islands. Hence, DOT interpreted this to be "a very minor amount of conduit." TRAK responded with a letter dated October 2, 1987, which indicated that TRAK would include under the heading of "Wire and cable to be installed underground in conduit," fiber optic lines referenced in its response to the RFP. At the formal hearing on October 26, 1987, Douglas Coleman was HCI's chief witness, but was not qualified as an expert in any area or field of expertise. Mr. Coleman testified that he only "gathered" or "coordinated" figures and data, but that he did not originate them. All of the figures testified to by Mr. Coleman were based on the cost or price of metal conduit, not PVC (plastic conduit) as Attachment B requires. HCI does not direct bury wire. Coleman also stated that in some instances (where telephone lines were available) HCI "reserved the option" to not "lay conduit in those particular situations." HCI's experience is limited to the installation of one electric cable fuel management system for the United States Air Force in and around 1981. HCI did not bid a fiber optic system and has no "current" system using fiber optics. In testifying to the figures that Mr. Coleman "gathered," such figures included HCI's overhead. No expert witnesses testified at the hearing on behalf of HCI as to the costs of laying conduit or cable. According to Mr. Coleman's testimony, $40,000 in special equipment was included in the figures he testified to as HCI's costs of placing electrical cable in underground conduit. The RFP did not call for the purchase of equipment by a vendor in order to respond to the RFP. Mr. Coleman, testifying on behalf of HCI, did not provide dollar figures for the costs of fiber optic line. Mr. Coleman's figures for the installation of fiber optic cables were based on estimated costs for HCI to place fiber optics in metal conduit, albeit HCI has no experience with fiber optics. According to Mr. Coleman, neither he nor technicians at HCI inspected TRAK project sites to determine TRAK's method of installing fiber optics. However, Mr. Coleman "guessed" that it would cost HCI approximately $80,000 to direct bury fiber optics as compared to $236,000 to place its electrical cable in metal conduit underground. According to Mr. Douglas, even if wire were direct buried, the labor costs associated with such direct burial would be "fairly close to the same" costs that would be incurred in burying conduit because it would still be necessary to dig down to approximately the same depth and engage in the same labor. TRAK's Vice President, Larry Weinstein, was qualified as an expert in the design and programming of Fuel Management Systems which use electrical cable as well as fiber optics. Mr. Weinstein prepared TRAK's response to the DOT RFP. Article 770 of the National Electric Code allows fiber optic cables or lines to be run in the same conduits as power or electrical cables. In responding to the RFP specifications regarding wiring, Mr. Weinstein had to interpret the language relating to the wiring requirement. In TRAK's situation, because TRAK was the only company using fiber optics, Mr. Weinstein had to interpret whether the statement related to fiber optics since there was no reference therein to fiber optics. Mr. Weinstein testified that in TRAK's Technical Proposal, in response to DOT's RFP and Bid Specification regarding wiring, he "literally wanted to avoid indicating that TRAK wasn't going to meet the specifications." TRAK's cost proposal included the costs of placing all wiring, i.e., fiber optics and electrical, in conduit pursuant to DOT's statement regarding wiring. Mr. Weinstein testified that TRAK calculated its price based on the assumption that [TRAK] would have to run everything, including the on-the- island work, in conduit. [TRAK] hoped to avoid it. It did not make a large cost difference, but [TRAK] assumed that [it] would, and it is part of [TRAK's] standard installation. TRAK's cost proposal included its full installation price. Mr. Weinstein testified that the difference in placing all the fiber optics lines in conduit and placing "some" fiber optics lines that "may" be direct buried would be approximately $10,000. In arriving at its unit installation price, TRAK, based upon its experience, has arrived at an installation charge which it applies universally. Because of TRAK's experience and the manner in which they determine the costs of their installations, there was no need to visit the individual job sites, particularly since DOT supplied a layout of each fuel pump island. TRAK did not have to purchase any equipment in order to perform the installations required for this RFP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying the protest of Howden Coloney, Inc., and awarding the contract for RFP No. SP1587T1 to TRAK Engineering, Inc. DONE AND ENTERED this 8th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4423BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Howden Coloney, Inc. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(5); 4(4); 5(22); 7(16); 9(18); 10(28 & 29); 12(28 & 29); 18(44); and 27(33). Proposed findings of fact 1, 2, 8, 14-17, 19-24, and 26 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 6 and 13 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 11 and 25 are rejected as being unnecessary and/or irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5 (1-4); 6- 23(5-22); 24-33(24-33); 34-39(35-40); 40(41-43); 41(44); and 42(45). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, TRAK Engineering, Inc. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3 (5); 4(6); 5(7); 6 & 7 (8); 8 & 9 (9); 10-12(10); 13 & 14(11); 15 (12); 16 18(13); 19(14); 20 & 21(15); 22 & 23 (16); 24(17); 25(18); 26(19); 27(36); 29(36); 30(16); 31-35(20); 36 (21); 37 (16); 38 & 39 (21); 40 & 41(22); 42 & 43 (23); 45-47(24); 48-52(25); 53 & 54(26); 55(27); 56-58(28); 59-61(29); 62(30); 63(31); 64(32); 65-67(33); 68(36); 70(35); 71-78(36); 79(37); 80 & 81(38); 82(39); 86(36); 87 & 88 (39); 89(40); 90-92(41); 93-94(42); 97-99(43); 100 & 101 (44); 102(45); and 103 & 104(44). Proposed findings of fact 28, 44, 69, 83-85, and 95 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 96 and 105 are rejected as being unnecessary. COPIES FURNISHED: Thomas J. Cassidy, III Senior Litigation Attorney Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 William E. Williams, Esquire 111 North Calhoun St. Tallahassee, Florida 32302 David P. Gauldin, Esquire Post Box 142 Tallahassee, Florida 32302 Kaye North Henderson, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Department of Health and Rehabilitative Services (Department or HRS) drafted and published an Invitation to Bid (ITB) DCPHU-93-02, inviting bids for laboratory services for the ten medical clinics located in Duval County, Florida. ITB DCPHU-93-02 provided that prospective bidders could submit written questions prior to the bidders' conference and make verbal inquiries at the bidders' conference regarding the terms of the ITB. The ITB provided that "no change, modifications or additions to the bids submitted will be accepted by the Department after the deadline for submitting bids has passed." The ITB provided that any prospective bidder could file a written protest of the provisions of the ITB as outlined in the Item 5 of the General Conditions. See Joint Exhibit 1, Page 13. The ITB provided that the vendor was responsible to develop the bid as clearly and succinctly as possible to avoid misinterpretations of the information presented, and that the bids would be reviewed and evaluated solely on the basis of the information contained therein. The ITB provided that the contract would be awarded to the bidder who satisfied the requirements of the evaluation criteria in Section E and who provided the lowest overall valued bid. The ITB specifically invited the attention of the prospective bidders to Section E of the ITB which contained fatal criteria, i.e., requirements which if the prospective bidders failed to meet would result in the rejection of their bid. Contained in Section E among the various fatal criteria was the specific requirement that bids were to include proof of registration with the Department of State to do business in the State of Florida. Section E, "Bid Evaluation Criteria," provided, "listed below are the minimum requirements (Fatal Criteria) that all bids must satisfy," and that "a bid given a 'no' response to one or more of these requirements will be removed automatically from further consideration." See Joint Exhibit Page 14. The Petitioner did not challenge bid specifications or designation of "proof of registration with the Department of State to do within business in the State of Florida" within 72 hours of receiving the ITB. No bidders provided written questions concerning the meaning of "proof of registration with the Department of State to do business within the State of Florida." Representatives of the Petitioner attended the bidders' conference on August 11, 1993. Although representatives of the Petitioner asked certain questions at the bidders' conference, they did not question the meaning of the term, "proof of registration with the Department of State to do business within the State of Florida." Shortly before the bid opening on August 18, 1993, a representative of the Department emphasized to a representative of the Petitioner the need to fully comply with the Fatal Criteria contained in the ITB. The Petitioner submitted its bid to the Department ten minutes prior to the bid opening scheduled for 10:00 a.m. on August 18, 1993. The bid opening was conducted in public with representatives of the various prospective bidders in attendance. Among those attending were three representatives of the Petitioner. The Department's representative opened four responses which appeared to be, and were, "no bids." The representative then opened SmithKline's bid and reviewed the Intervenor's submittal to determine if it complied with the Fatal Criteria. Upon review, it was determined that SmithKline complied with the Fatal Criteria. SmithKline's bid contained a certification from the Department of State of the State of Florida certifying that SmithKline Beecham Clinical Laboratories, Inc., was authorized to transact business in the State of Florida and that it had paid all fees and penalties due the State of Florida through December 31, 1993, filing its most recent annual report on May 1, 1993, and that its status was active. This certificate was dated the 13th day of August 1993 under the seal of the Secretary of State of the State of Florida. The Department's representative next opened the proposal of the Petitioner and evaluated it to determine whether it complied with the Fatal Criteria. This review of the Petitioner's proposal revealed that the Petitioner had not included in its submittal any specific document or paper showing that the Petitioner was registered with the Department of State to do business in the State of Florida. The Petitioner had not filed a certificate of the Secretary of State or a copy of its annual report required to be filed with the Department of State. The Department rejected the Petitioner's bid for failure to comply with the Fatal Criteria concerning proof of registration with the Department of State to do business in the State of Florida. Because of its rejection, the Department did not consider whether the Petitioner's bid complied with any of the remaining Fatal Criteria and did not consider any amount of the Petitioner's bid in considering which of the proposals was the lowest bid. At 4:30 p.m. on August 18, 1993, the Petitioner provided the Department a 1975 certificate from the Secretary of State indicating that the Petitioner was authorized to do business in the State of Florida and a copy of an annual report the Petitioner had submitted to the Secretary of State on March 10, 1993. These were filed too late to cure the fatal defect. The Department also determined that three other bidders, including Consolidated/St. Vincent's failed to comply with Fatal Criteria. Subsequent to its disqualification of Consolidated/St. Vincent's bid, said bidder brought to the Department's attention of the that its proposal included a copy of a corporate report filed with the Secretary of State and dated August 3, 1993. The Department determined that this was sufficient proof that the bidder was registered to do business in the State of Florida with the Secretary of State. On August 25, 1993, the Department awarded to the contract to SmithKline Beecham, Intervenor. On August 28, 1993, the Petitioner formally protested this award. The Petitioner did include in its proposal the following: a sworn statement of public entity crimes; a clinical laboratory certificate of licensure from the Department of Health and Rehabilitative Services of the State of Florida; a Federal Health Care and Finance Administration number issued pursuant to Federal law; and a College of American Pathology number.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: that the Department dismiss the Petition of National Health Laboratories, Inc., and award the contract to the Intervenor, SmithKline Beecham Clinical Laboratories. DONE and ENTERED this 17th day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5552BID The Petitioner filed proposed findings which were read and considered. The Intervenor filed proposed findings which were read and considered. The Respondent adopted the findings of the Intervenor. The following states which of the proposed findings were adopted, and which were rejected and why. Intervenor's Recommended Order Proposed Findings Paragraph 1 Adopted in paragraph 1. Paragraph 2 Adopted in paragraphs 2 - 9. Paragraph 3 Adopted in paragraph 10. Paragraph 4 Adopted in paragraph 11. Paragraph 5 Adopted in paragraph 12. Paragraph 6 Rejected, argument. Paragraph 7 Adopted in paragraph 13. Paragraph 8 Adopted in paragraph 14. Paragraph 9 Adopted in paragraphs 15, 16 and 20. Paragraph 10 Adopted in paragraph 19. Paragraph 11 Adopted in paragraph 20 and 21. Paragraph 12 Adopted in paragraph 22. Paragraph 13 Adopted in paragraph 23. Paragraph 14-25 Arguments and ultimate findings contained in conclusions of law. Petitioner's Recommended Order Proposed Findings Paragraph 1 Adopted in paragraph 1. Paragraph 2, 3 Rejected, irrelevant. Paragraph 4 Adopted in paragraph 4. Paragraph 5 Adopted in paragraph 8. Paragraphs 6-13 Rejected, irrelevant. All argument based upon attack on criteria. Paragraph 14 Adopted in paragraph 13. Paragraph 15, 16 Rejected, irrelevant. Paragraph 17, 18 Adopted in paragraph 13. Paragraphs 19-31 Rejected. See comments to paragraph 6, et seq. above. Also see paragraphs 15, 16, 17 and 18. Paragraph 32 Adopted in paragraph 23 Paragraph 33-45 See comments to paragraph 19 above. COPIES FURNISHED: Thomas F. Panza, Esquire 3081 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 Scott D. Leemis, Esquire Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083 SmithKline Beecham Clinical Laboratories Donald E. Hemke, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler Post Office Box 3239 Tampa, Florida 33601 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The adult education department of the Lee County School Board received an appropriation to purchase night vision surveillance equipment in connection with their adult education program. Information was requested from various manufacturers of this type equipment and bids were solicited in December, 1978. Only two bidders submitted bids. Standard Equipment Company's bid for their Ni-Tec equipment was $4,790 and Petitioner's bid for their Astrolite viewer was $3,775. Although there had been sufficient funds appropriated to purchase the Astrolite viewer, the price for Ni-Tec exceeded the sum appropriated so both bids were rejected. The specifications were modified to be more specific and new bids solicited from five suppliers. Only three of these companies responded. Petitioner's bid at $3,775 with two years warranty on parts and labor was low bid; Standard Equipment Company offered the Ni-Tec for $4,100 with one year warranty on parts and labor; Javelin Electronics submitted a bid for $6,324; and the two other suppliers solicited did not bid. Still not satisfied with accepting the low bid Respondent's Trade Extension Coordinator, C. W. Cawlfield, set up a test of the two units for which bids had been received. This test was conducted on the evening of March 1, 1979 by the Punta Gorda Chief of Police, the Fort Myers Airport Chief of Police, a fireman and one or two others. Some of those conducting the test had previously purchased the Ni-Tec equipment for their department's use and preferred this equipment. None of those conducting the test knew the difference between the monocular eye viewer which is standard equipment on the Astrolite and the biocular eye viewer which is standard equipment on Ni-Tec. Those conducting the test thought both eye viewers were the same although the eye piece on Ni-Tec was slightly larger. Following the test Chief Bennett of the Punta Gorda police force advised Cawlfield that the Ni-Tec equipment provided a clearer and larger image, that the equipment was more rugged, and that the Ni-Tec was the best equipment to buy for the school. Based upon what he was told by Bennett, Cawlfield, on Match 2, 1979 wrote a memorandum (Exhibit 4) to the Director of Purchasing in which he listed seven categories in which the Ni-Tec viewer was superior to the Astrolite viewer. Some of the seven items listed involved specification requirements and some involved non-specification Comparisons. With respect to those items which indicate the Astrolite did not meet specifications, all are wrong. As a matter of fact each and every numbered item in Exhibit 4 which indicates the Ni-Tec viewer to be superior to the Astrolite viewer was predicated on false and erroneous information, or was based on a characteristic not included in the specifications upon which the bids were submitted. An example of this latter comparison based upon a factor not included in the specifications was No. 7 which indicates Ni-Tec meets military specifications while the Astrolite does not. Military specifications was not a bid requirement. After acknowledging that each and every comparison listed on Exhibit 4 was erroneous or predicated upon erroneous information, both the author of Exhibit 4 and the recipient thereof, Wayne McSpadden testified they would still recommend the purchase of the more expensive Ni-Tec viewer because those conducting the test reported having observed a clearer and larger image through the Ni-Tec viewer. None of those conducting the test appears to have more than a very rudimentary knowledge of optics. None appeared to recognize that during the test the Ni-Tec viewer was equipped with a biocular eye piece while the Astrolite viewer was equipped with a monocular eye piece. The biocular eye viewer is large enough to view with both eyes and the viewer sees a larger image than is seen with the monocular eye viewer. Exhibit 2 states that the bid submitted on Astrolite included a biocular eye viewer. Exhibit 3 shows the biocular eye viewer as an accessory and Cawlfield testified he had not seen Exhibit 2, which was addressed to McSpadden, and thought the biocular viewer would cost extra. The Ni-Tec viewer comes with a f/2.8 lens while the Astrolite lens is f/l.3. In any optical equipment a f/l.3 lens is approximately twice the diameter of an f/2.8 lens and will therefore admit approximately four times as much light because it has approximately four times the area. Accordingly, from a lens comparison alone the Astrolite viewer should be superior to the Ni-Tec viewer.
Findings Of Fact In early 1984, the Florida Department of Law Enforcement in its Fingerprint Identification Section decided to replace some equipment used for purposes of analyzing finger prints. That equipment was three Kodak PR-1's, known as readers. The reason for the replacement concerned the fact that these machines had been in operation since 1969 and Kodak was no longer willing to undertake the service of the machines through a service agreement. Initially, the staff favored the idea of replacing the Kodak equipment with other Kodak equipment, having in mind the idea that Kodak was the only manufacturer that could meet the needs of this function within the Florida Department of Law Enforcement. If this suggestion had been accepted, then it would have been on the basis of a request to the Department of General Services to be given permission to enter into a contract with a sole source, namely Eastman Kodak. Indeed, preliminary steps were taken to purchase the Kodak IMT-50 reader-printer to substitute for the three PR-1's, as a noncompetitive purchase from the single source, Kodak. There had also been some discussion about the purchase of Kodak IMT-100's, a reader-printer which allowed multilevel blipping. That type of feature, i.e., multilevel blipping, was determined not to be necessary. Ultimately, the Florida Department of Law Enforcement determined to meet their needs for replacement of the PR-1 machines through a' competitive bidding, Bid No. 83-50. A copy of the invitation to bid may be found as Petitioner's Exhibit 14. This particular item is a response on the part of Lanier Business Products to the invitation to bid. Among the instructions in the invitation to bid was general condition Number 7 which reminded the prospective vendors to direct questions concerning the conditions and specifications set forth in the bid invitation to the Florida Department of Law Enforcement no later than ten days prior to the bid opening. Bid opening was scheduled for May 31, 1984. None of the vendors who offered bid responses questioned the meaning of any of the general conditions or specifications set forth in the invitation to bid related to the purchase of microfilm reader-printers as contemplated in the bid invitation. Eastman Kodak Company also submitted a bid. The bid response by Lanier Business Products was for the provision of a reader-printer known as the 900 Page Search manufactured by 3M. The Kodak product which was bid was the IMT-50 reader-printer. Another prospective bidder, Office Systems Consultants, submitted a "no bid," signifying the inability to meet the specifications of the invitation to bid. On May 31, 1984, the bid opening was held and a tabulation was made as to the bid responses offered by Lanier and Kodak. The unit price for each of the three microfilm reader-printers was $8,650 by Lanier and $9,040 by Kodak. Therefore, Lanier was the apparent low bidder on the project. Within the bid specifications are requirements which set forth specific needs for this project. One of those items pertains to film retrieval capability, and that provision states: Unit will retrieve, by automated means, 100 feet 16mm rolls of 5.4 mil film or 215 feet 16mm rolls of 2.5 mil film (such as Recordak AHU microfilm). Retrieval unit must be able to read, randomly, and ANSI standard document reference (Blip), and must have an advance-- return transport speed of 12 feet per second minimum. Related to lens requirements, the bid specifications indicated: Lens magnification must be 24:1 to be compat- operation. ible with present standards and be designed so that additional lens can be interchanged without interrupting the reader-printer Under the heading of general requirements the invitation to bid stated: By nature of the work requirements and pro- duction schedule, the equipment may be gener- ally described as a 16mm reader-printer capable of retrieving microfilm images by means of ANSI Standard Blips, and will be compatible with existing system. Prior to bid consideration, potential bidders will review, on site, typical production required as part of the overall routine of the finger- print section. Appointment for this inspec- tion will be made by calling (904) 488-9953. The Department will not alter the current production system. After bid opening and prior to award, vendors will conduct tests and provide demonstrations to personnel of the Department to assure a quality product compatible with the existing system. Where applicable, the film retrieval unit will conform to Florida Administrative Code, Chapter 1A-26. At the time the decision was made to replace the three PR-1 microfilm readers, the Identification Section within the Florida Department of Law Enforcement had four other machines which had reading capability. Those machines were also Kodak and are referred to as Starvue. As can be seen, neither the PR-1 nor the Starvue referred to had the capability to print. A review of Petitioner's Exhibit 3 reveals that the ability to print identification cards was accomplished through another Starvue type machine in operation prior to the bid invitation. When processing fingerprint cards within the Identification Section of the Respondent agency, the task of fingerprint identification and verification is addressed. Over and above this reading function, prints are sometimes made of fingerprint identification cards or documents related to a given subject. These prints either are made from the positive film being reviewed, the copy appearing as a negative image of that film, or in the alternative, the positive film is replaced with negative film and a positive print is made through the copying process. Copies were reproduced on the separate printer which the agency had available to it, prior to bidding for the purchase of three reader-printers contemplated by the invitation to bid under discussion. This required removing the film from the reader or substituting the film before printing. In addition, some lens changes within the readers would be necessary, on average a couple of times a day. The PR-1 machine had a telescoping lens which would allow magnification without lens replacement. The Starvue reader requires the replacement of the lens to gain greater magnification. This Kodak machine, following the lens substitution, would not lose contact with the image which had been on the screen prior to the substitution. The fingerprint analysis operators or technicians, at the time that the bid was prepared, used a 30:1 lens in performing their function of reading the fingerprint microfilm image. A 24:1 lens was needed for printing. Under these circumstances the Respondent indicates that in the bid specifications reference should have been made to a 30:1 lens as opposed to a 24:1 lens in describing lens requirements. The PR-1 machines that were being replaced did not have the capability to read blips on the given frames or images within the microfilm cartridges, thus automatic access of the roughly ten per cent of microfilm cartridges that contained the blips was not possible. Both the 3M 900 Series and the IMT-50 microfilm reader-printers allow for automatic retrieval of the image within the microfilm cartridge, as stated before, a required feature set forth in the invitation to bid. The operation of the Fingerprint Identification Section at the time of the bid invitation dealt with approximately forty-eight hundred reels of microfilm, 90 per cent of which could only be accessed manually. Most of the microfilm cartridges contained one hundred feet of microfilm. When reference is made in the bid document to the fact that the proposed equipment should allow for the changing of lenses without interrupting the operation of the reader-printer, this is a literal impossibility. While the first lens is being removed and the second lens is being placed, no reading or printing may occur. As a consequence, when officials with Lanier read this requirement, they perceived it as being some form of inconsequential mistake and did not seek clarification as contemplated by clause Number 7 of the general conditions to the invitation to bid. While it is not apparent from the reading of this requirement, the Florida Department of Law Enforcement intended this provision pertaining to lenses to mean that once the second lens had been placed in the machine, the image that had been being examined prior to the lens replacement would be immediately available for reading or printing. The IMT-50 Kodak equipment allows for that, the Starvue equipment by Kodak allows for that, and the PR-1 did not require lens replacement. By contrast, either in the manual mode or in the automated mode, the 3M 900 Series equipment might require a slight adjustment to recapture the image once the lens had been changed. This adjustment would take approximately two seconds to achieve. The reason for the differences between the 3M equipment and Kodak equipment concerns the fact that the power source in the 3M equipment is turned off when the lens is out of the machinery and the power source within the Kodak equipment remains constant even when the lens is removed. When the lens requirement is considered in the context of the idea expressed in the general requirements, that the Department did not intend by the replacement of its equipment to alter its current production system, use of the 3M equipment at times of lens interchange is not found to be out of compliance with that general requirement or condition. That determination is made realizing that the lens requirement was ambiguous, at best, and the more important fact that the amount of delay caused in using the 3M equipment in a lens change posture amounts to three operators x two occasions per day x two seconds per occasion or 12 seconds per day. This delay is inconsequential. On this topic, in its position in justifying its choice to reject Lanier's equipment as not complying with the lens requirement, suggestion has been made by the Florida Department of Law Enforcement that eight to ten lens changes per hour might be necessary in the "hard" identification of prints. This comment as offered as a justification for rejecting the Lanier bid as nonresponsive to the lens requirement is not borne out in the record of the hearing by competent proof. This information was imparted in Petitioner's Exhibit 45 which is information that the Florida Department of Law Enforcement submitted to the Department of General Services, having determined that the Lanier bid was not responsive because of a failure to comply with the lens requirement and the requirement for film retrieval capability, which will be discussed subsequently. That information in the exhibit was hearsay and was contradicted by the comments by two of the operators who utilized the reader-printers in the Fingerprint Identification Section. They are the source of the idea that lens changes occur once or twice a day, and their position has been accepted as factually correct. In summary, Lanier is found to have complied with the specific requirements for lens compatibility with existing needs of the Fingerprint Identification Section and future needs of that section. An official within the Florida Department of Law Enforcement had been informed by Kodak that the Starvue equipment in use by the Fingerprint Identification Section at the time that the bid invitation was prepared had a capability of performing the retrieval function at a pace of twelve feet per second. This pertained to both the forward and the return phase of that operation. Having this in mind, the previously described requirement for film retrieval capability was included within the bid specifications. Again, it was the intention of the Department, as expressed in that provision and the general requirements, that the replacement equipment maintain the same efficiency of production as existed. The manufacturers of the equipment which was offered in response to the bid have described their equipment in this fashion: The Kodak IMT-50 is described as having a speed advance of up to fourteen feet per second. The 3M 900 Series which was offered by Lanier carried a "rating" of twelve feet per second. The author of the bid specifications pertaining to film retrieval speed included within that section the phrase ". . . advance--return transport speed " This phrase is not used in the microfilm industry to describe film retrieval capability. Officials at Lanier perceived this as a manufacturer's speed "rating." Officials with Kodak who offered testimony at the hearing had various ideas about what advance and return transport speed meant, which opinions were not constant. Likewise, the author of this provision within the bid specifications offered variety in his explanation of the meaning of that phrase, that variety ranging from the idea of maximum speed when the machine was operating at full capacity in terms of the advancement or return of the microfilm within the machine, to the idea of maximum speed as ascertained shortly after the machine had started to advance or return the microfilm. In any event, he states that it did not mean transport speed as an average of time for a given length of film to move through the machine. Nothing about the specifications suggests that return transport speed equates to the idea of average speed, meaning the amount of time necessary to transport a given length of film through the machine either in the forward or reverse mode. When this requirement of transport speed is seen as a function of protecting against the acquisition of equipment that would not be as efficient as existing equipment, a further dilemma is presented. Edward E. Ricord, author of the specification related to film retrieval speed testified that testing had been done, unrelated to the present hearing, with the intention of describing the transport capabilities of preexisting equipment within the Florida Department of Law Enforcement. The recount of that testing was not offered as evidence by way of documentation. Nonetheless, the equipment that was existing is depicted as having the capability of transporting a ninety-six foot length of microfilm through the older machine, Starvue, in a shorter length of time than could be achieved by the 3M 900 Series. The Starvue was four seconds faster in the forward mode and ten seconds faster in the reverse or rewind phase than the 3M 900 Series, according to Ricord. The old machine was also described as being slower at one end and a little bit faster at the other end in transporting the ninety-six foot length of microfilm when contrasted with the IMT-50 Kodak. (The transport of ninety-six feet of film becomes significant in a later paragraph describing the basis for rejecting the Lanier bid offering as being unresponsive.) On the other hand, Carl Durian, one of the operators or technicians who has used the PR-1, the Starvue, the 3M 900 Series and the IMT-50 machines had these observations, in terms of a subjective analysis of speed. He felt that the Kodak IMT-50 was a subjectively faster operating machine when performing the retrieval function related to the movement of the microfilm through the machine when compared to the 3M 900 Series; however, the 3M 900 Series was found to be subjectively faster than either the Starvue or the PR-1. Finally, Durian felt that the Starvue was faster than the PR-1 when considering the retrieval capabilities of the various machines. Again, this firsthand information, though subjective, is of a better quality than the information offered by Ricord who recounted test results not produced at hearing. Looking at this problem in the most favorable light, there is conflict within the agency as to the issue of whether the 3M 900 Series equipment is as capable in the retrieval of microfilm, as a function of speed, as existing equipment within the Fingerprint Identification Section at the time that the bid invitation went out. This is significant, because, having no industry standards related to return transport speed and having no clear indication of what that term meant at the point of the preparation of the bid specification which is separate and apart from the capabilities of existing machines, it is taken to mean the capabilities of those existing machines, and the uncertainty about those capabilities must be resolved in favor of Lanier. Moreover, on this occasion the Florida Department of Law Enforcement cannot point to Lanier's obligation to ask the question about the meaning of return transport speed as a reason to reject the bid response, in that such a theoretical inquiry would not have elicited a satisfactory answer to the question and alerted Lanier that it was potentially incapable of satisfying the bid specifications related to microfilm retrieval. In accordance with the bid document, the vendors Lanier and Kodak were required to present one of their machines to the Department following the bid opening for purposes of evaluation. Once the machines were in place, some concerns were expressed about the difference in operating capabilities in the retrieval function of the two machines. To gain some understanding of those differences, a test was devised to measure the responsiveness of the two machines. The test, by its terms, measured the average time necessary to move ninety-six feet of microfilm through the machines in a forward and reverse mode. The tests were conducted, forward and reverse on each machine, by using a person holding a wrist watch and gaining an average of the time necessary to accomplish the functions, after an operator switched the machine into the fast forward and reverse positions to commence the test. The tests forward and reverse were executed three times. It was revealed that in the forward mode, the best performance by the 3M 900 Series was a speed of 5.99 feet per second and in the reserve mode 8.30 feet per second. By contrast, the speed of the Kodak IMT-50 was, at best, 12.80 feet per second in the forward mode and 16.16 feet per second in the reverse mode. No comparison was made at the time of that testing between the two proposed machines and the existing Starvue or PR-1 equipment. For that reason it is not graphically depicted whether the 3M 900 Series machine would slow down the operation of the Fingerprint Identification Section because of its inability to comply with the requirement for film retrieval. A description of the testing that was done between the 3M 900 Series and the IMT-50 cannot be found as a requirement within the bid specifications, nor does it comport with any expressed statement of what transport speed meant as described in the bid specification document. While it does point out a remarkable difference between the film retrieval capabilities of the Kodak IMT-50 and the 3M 900 Series, it does not establish that Lanier failed to comply with the bid specification related to film retrieval when offering the 3M 900 Series machine in response to the bid invitation. Lanier has met the requirement for film retrieval. In support of this finding, the scope of this inquiry as stipulated to between the parties does not allow for the discussion of the implications of the greater film retrieval capability of the Kodak IMT-50 when compared to the 3M 900 Series as it might pertain to work efficiency within the Fingerprint Identification Section. More significantly, even should it be demonstrated that this difference in film retrieval speed has a profound influence on work efficiency, it could not be said that the Lanier bid failed to meet specifications. The only consequence of this revelation might be that the agency would rebid the project, when examined in the abstract. Given what the agency considered to be a lack of responsiveness on the part of Lanier related to the lens requirement and film retrieval requirement, it was determined to seek permission from the State of Florida, Department of General Services to obtain the IMT-50 equipment from Kodak as a sole source. This is under the theory that in a competitive bid setting where only one responsive bidder has responded, a sole source purchase opportunity must be sought from the Department of General Services. Following some explanation, that authority was granted. When the authority was granted, the Department of General Services did not realize that Lanier had not been given a point of entry to question the rejection of its bid. When this circumstance was discovered, the Department of General Services recanted its stated permission pending the opportunity for Lanier to have due process concerning its claim of compliance with bid specifications. The decision by Department of General Services to change its position on permission for sole sourcing occurred on October 2, 1984. In the face of that statement and the advice by the Department of General Services that the Florida Department of Law Enforcement should give a point of entry to Lanier to contest the question of a determination that Lanier's bid was unresponsive, the Florida Department of Law Enforcement on December 17, 1984, officially noticed Lanier of the choice to award the contract to Eastman Kodak. Given this notification, a letter of protest was filed by counsel for Lanier on December 21, 1984. Kodak had been awarded the contract through the issuance of a purchase order from the Florida Department of Law Enforcement at a time when the Department of General Services had initially indicated the acceptability of a sole source arrangement, but before the October 2, 1984, decision by Department of General Services to rescind its permission to go sole source. As a part of the arrangement with Eastman Kodak, $262 per machine was allowed in the way of trade-in of the three PR-1 machines which were being replaced. The IMT-50 equipment is presently in place in the Fingerprint Identification Section of the Florida Department of Law Enforcement. Had Lanier placed the 3M 900 Series machines with the Florida Department of Law Enforcement, it would have made a profit of $5,700. This is offset by the cost of $4,080 which would have been necessary to convert the existing microfilm reels to fit the 3M equipment. With that deletion, the total profit from the sale becomes $1,620. The effective life of the 3M 900 Series of equipment is five years, and service revenues from those three reader-printers averages $2,940 per year x five years = $14,700 as total service revenues. The loss of revenues over the five-year span for the three reader-printers related to paper supplies is $24,300 based upon three reader-printers $4,860 per year. The figures given relate to gross charges for paper supplies. That paper has not been supplied, and no indication has been given on the difference between the vendor's cost for producing the paper and the retail price of the paper, giving a net figure as to profit. In view of the fact that the paper has not actually been delivered and in the absence of some indication as to the amount of net profit, this item of damages is not allowed. Finally, no indication was made as to the amount of labor cost and net profit related to the overall service charge, and, as with the paper supplies, this claim is disallowed. These items of damages are disallowed because the Petitioner would only be entitled to claim net profits, having never actually offered the services or supplies. An additional $810 is lost in interest income at a rate of ten per cent per year over the five-year effective life of the equipment, pertaining to use of the profits realized in selling the machines. The proven total damages to Lanier is $2,430. Claims by Lanier for loss of future earnings related to the sale of unrelated machines are not found to be convincing, in that they are too speculative in nature. The related claim for past damages if the 3M machines are installed is rejected in that the effective life of the machines starts from the time of their installation. Therefore, profits for sale, supplies and service would commence at that moment. Lanier is the lowest responsive bidder on Bid No. 83-50.
Findings Of Fact In July 1988, the Department of Health and Rehabilitative Services issued an Invitation to Bid (ITB) seeking proposals to lease approximately 26,000 square feet of space for offices and client services in Ft. Walton Beach, Florida. The ITB was the second issued, following the Department's determination that the first ITB did not result in an acceptable bid. Page 15 of the 16 page bid submittal form is entitled "Evaluation Criteria" and contains a list of weighted factors which are to be used in the evaluation of bids. In the second ITB, paragraph 3(b) of the criteria stated, "[P]rovisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied) At approximately the same time as the Department's issuance of the second ITB, several meetings occurred related to concerns generated by the response to the first ITB. One meeting took place between Nelson P. Davis (the unsuccessful bidder in ITB #1) and Department representatives, including James Peters, HRS's District One Manager for Administrative Services. Davis currently leases to the Department, two adjacent buildings sited at 417 Racetrack Road, Ft. Walton Beach which comprise approximately 4,000 square feet less than the Department is now seeking. Davis' bid in response to the first ITB included utilization of a third building to meet the Department's space needs. 1/ During the meeting which included Peters, Davis, and others, it became apparent that there was confusion over the meaning of the word "location" in paragraph 3(b) of the evaluation criteria. Peters understood the word to mean "building" while Davis understood the word to mean an area which could be the site of more than one building. Following the Davis-Peters meeting, other meetings occurred at which Department officials considered the issue. While some representatives of the Department believed that the word "location" was synonymous with "building," others believed the use of "location" to be ambiguous. To clarify the Department's preference related to number of buildings, an amended page 15 of the bid submittal form was issued on July 2, 1988. The amended form, entitled "Evaluation Criteria" states in paragraph 3(b), "[P]rovisions of the aggregate square footage in a single building... Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two buildings provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied.) The amendment was issued at the direction of James Peters and was approved by Charlene Schembera, the District I Administrator. The amendment to page 15, paragraph 3(b), is a reasonable effort by the Department to clarify their intent in previous use of the word "location." The assertion by Davis that the change was made at the instigation of James Peters in order to prohibit Davis from successfully submitting a responsive bid of three buildings is not supported by the evidence. While James Peters has expressed on at least one occasion a desire to avoid entering into further business arrangements with Davis, he has stated that his personal opinion would not influence his participation in the bid solicitation process. The evidence did not indicate that his participation in the decision to issue an amended paragraph 3(b) of the evaluation criteria was based on his negative personal opinion regarding Davis, nor did the evidence indicate that any other person involved in the process had negative opinions about Davis. Further, although some Department officials testified that a bid which contained more than two buildings would be deemed non-responsive and disqualified from consideration by operation of the amended paragraph 3(b), such a position probably is not tenable, but is not at issue in this proceeding in that the Department has not yet acted on bids submitted in response to the second ITB. The Department has valid reasons for attempting to concentrate its personnel and client services in a single building, or in as few buildings as is possible, 2/ however the Invitation to Bid does not restrict bidders in such a manner. The sole expression of the preference for a single building, or for not more than two buildings, is expressed in paragraph 3(b) of the evaluation criteria on page 15. The amendment to page 15 of the bid submittal form does not appear to bar the submission by Davis or by any other bidder of a responsive proposal containing more than two buildings. Page 15 is clearly entitled "Evaluation Criteria." The criteria are nine weighted "award factors" upon which "all bids will be evaluated." Paragraph 3(b), as one factor for consideration in the evaluation process, expresses a preference for a single building containing the required aggregate square footage. The paragraph further advises that proposals will be considered but fewer points awarded for proposals containing not more than two buildings closely located. The weighting factor for paragraph 3(b) of the evaluation criteria is five percent of total possible points. The clear indication of the amended paragraph is that proposals which contain more than two buildings will receive no points under 3(b). The Department's position would disqualify as non-responsive a bid of three buildings based solely on an evaluation factor worth five percent of the total available points. On the other hand, a bid containing two buildings, separated by not more than 100 yards, would apparently be responsive and would be evaluated, even if the two buildings were divided by a major highway or other substantial obstacle. The Department's proposed position is not logical, but is not raised herein since it has not yet been applied in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order dismissing Case No. 88-4392BID. DONE and ENTERED this 12th day of October, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1988.
Findings Of Fact On April 1, 1985, Respondent, Florida Department of Law Enforcement (FDLE), gave notice to thirty vendors that it would receive competitive sealed bids on Bid Number 84-67 for the following commodities: eight computer binder cabinets 36x18 5/8x71 Putty/Black, three hundred single point binder hooks, six hundred 10" steel reinforced binder posts. The bids were to be filed in Tallahassee, Florida, no later than 11:00 a.m., April 16, 1985. The Invitation to Bid included General Conditions, Special Conditions and technical specifications describing the dimensions and capacities of the desired equipment. Of special significance was the technical specification that the single point binder hooks be "[c]apable of supporting up to 6 inches of llx14 7/8 20 lb. computer paper." Paragraph 6 of the General Conditions provides as follows: 6. MANUFACTURERS' NAMES AND APPROVED EQUIVALENTS: Any manufacturers' names, trade names, brand names, information and/or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative, which meets or exceeds the specification for any items(s) [sic]. If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. Bidder shall submit with his bid, cuts, sketches and descriptive literature and or complete specifications. Reference to literature submitted with a previous bid will not satisfy this provision. The bidder shall also explain in detail the reason(s) why the proposed equivalent will meet the specifications and not be considered an exception thereto. The State of Florida reserves the right to determine acceptance of items(s) [sic] as an approved equivalent. Bids which do not comply with these requirements are subject to rejection. Bids lacking any written indication of intent to bid an alternate brand will be received and considered in complete compliance with the specifications as listed on the bid form. The purchaser is to be notified of any proposed changes in (a) materials used, (b) manufacturing process, or (c) construction. However, changes shall not be binding upon the State unless evidenced by a Change Notice issued and signed by the purchaser. (Emphasis added.) Paragraph 7 of the General Conditions imposed the following duty upon all bidders: 7. INTERPRETATIONS: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Of the thirty vendors given an opportunity to submit bids, only two did so. They were Petitioner, Pro Tech Data (PTD or Petitioner), and Office Systems Consultants (OSC). Their bids were in the amounts of $4,645 and $5,244, respectively. After reviewing the bids, and consulting with both bidders, the director of the agency's Division of Criminal Justice Information Systems, Mark Scharein, determined that Petitioner's bid was nonresponsive for not meeting specifications and was accordingly rejected. The bid was then awarded to OSC, the second lowest bidder, on May 3, 1985. That precipitated the instant proceeding. In its bid response, PTD listed "Dennison Monarch #7830" as manufacturer and model number for the single point binder hooks. Petitioner also submitted a Dennison Monarch catalogue with its bid response. When FDLE examined the catalogue to ascertain the specifications of the hooks, it found no model number 7830. Indeed, the closest item matching this number was model number 7830-22 which referred to shelf supports, an item not solicited in the bid proposal. After consulting with PTD, it was determined that the use of model number 7830 was in error, and that Petitioner had intended to use model number 7802-30. Its request to amend the bid response was denied. Even if the bid proposal had contained the correct model number, the binder hooks in model number 7802-30 did not meet specifications. The product description of that model carries the following limitation: "Can accommodate a few sheets of paper or a stack of data 4" thick." In addition, at hearing PTD's representative conceded that the manufacturer did not recommend hanging six inches of paper from that model binder hook. This was inconsistent with FDLE's specific requirement that such hooks be "[c]apable of supporting up to 6 inches of . . . computer paper." OCS submitted product designations which conformed in all material respects to the specifications and conditions required by the bid proposal. Although PTD suggests that OCS's binder hooks do not support six inches of computer paper, .OCS's bid response reflects that they do, and there was no evidence to contradict this representation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Bid No. 84-67 be awarded to Office Systems Consultants, and that Petitioner's bid protest be DENIED. DONE and ORDERED this 16th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this l6th day of August, 1985.
