The Issue Whether the petition should be dismissed for failure to comply with Section 120.53(5)(b), Florida Statutes.
Findings Of Fact The Petitioner filed bids for ITB No. 4-600-370-K which, if responsive, were the apparent low bid for the Class 3 bid and next to lowest for Class 4 and 5 categories of copier equipment listed in the ITB. [Petition, page 8] On October 16, 1995, the Department posted the intended awards and disqualified all three of Petitioner's bids as nonresponsive. [Petitioner's memorandum in opposition to Respondent's motion for summary recommended order (MEMO), paragraph 1] The Petitioner filed a notice of protest against the disqualification of its bids on October 19, 1995. [MEMO, paragraph 1] The petition for formal hearing was filed with the Department on October 30, 1995. [MEMO, paragraph 1] The petition for formal hearing alleged, in part: SUMMARY OF GROUNDS FOR PROTEST ...The Division of Purchasing ("Division") disqualified all three of Petitioner's bids on vague grounds identified by three words: "Disquality -- Manufacturers Certification. " See Ex. 3 hereto at 1. There are two provisions in the ITB that require the "certification" of the Original Equipment Manufacturer ("OEM"). See Ex. 1 hereto at 3 and 32. Since the State has not seen fit to adequately identify which provision(s) are at issue, Petitioner is required to address both provisions that might apply. Both of these requirements are completely arbitrary, irrational and, most importantly, anticompeti- tive, for the reasons described further in Section 3 below. The "certification" require- ments are arbitrary and irrational because they are not designed to obtain the equipment at issue for the lowest price. Indeed, they ensure that the State will pay higher prices than it would without the requirements. Neither are the "certification" requirements rationally related to the quality of the equip- ment that was bid by Petitioner or the other bidders, including the OEMs. Finally, these requirements are blatantly anticompetitive be- cause they place the right to exclude all other competitors in the hands of the OEMs, which can deny such certification with impunity, ensuring that only those OEM bidders will prevail, as was the outcome here. This preferential treat- ment not only runs counter to the express intent of the legislature to promote free and open competition, it also raises serious anti- trust concerns. Disqualification of Petitioner's bids on the grounds presented by the Division should be reversed and the contract awards should be adjusted accordingly. * * * The preferential treatment provided to Xerox, Kodak, and other OEMs by insertion of the "certification" requirements in this ITB is consistent with a longstanding history of such anticompetitive treatment of independent providers of the equipment and service at issue, resulting in higher prices (but not necessarily higher quality) for the State's taxpayers. Petitioner's recent experience in dealing with the State on these matters is also consistent with this pattern of bias toward OEMs. * * * 3. BASIS OF PROTEST A. The Division of Purchasing Has Acted Arbitrarily and in Restraint of Trade * * * Petitioner has identified two potentially applicable provisions that the Division could be relying on for its disqualification decision. First, in the ITB's definition of "acceptable equipment" it states that bids for classes 3, 4, 5 and 6 shall be for "new and newly remanu- factured equipment only," and that "newly remanufactured equipment must be certified by the manufacturer." Ex. 1 at 3. This pro- vision also states that "remanufactured" equip- ment is not acceptable. Second, the ITB requires certification by the manufacturer as to the copy speed, recommended monthly copy volume, and other basic specifications of the equipment models being bid. Ex. 1 at 32. Both of these provisions are irrational, arbitrary, and clearly anticompetitive. * * * The Division's definition of acceptable equipment bears no relationship to the actual remanufacturing processes used by Petitioner or Xerox. Even if Xerox certifies its own "remanufactured" equipment, the State only receives assurances that the remanufacturing process used by Xerox meets certain standards. Petitioner certifies that its equipment meets certain quality and performance standards, just like Xerox does. There is no rational reason why self-certification of the equipment at issue would provide any different assurances of quality for the State. * * * 2. Certification by the OEM of Copy Speed and Other Basic Specifications Petitioner provided a sworn verification that its equipment meets the copy speed, recommended monthly copy volume, and other minimum specifications for each category of equipment for which it submitted bids. Its certification is based on the same procedures used by Xerox to certify its own equipment. There is no rational reason why that certifi- cation cannot meet the needs of the State. To insist upon certification only from the OEM is an arbitrary and anticompetitive requirement not related to quality or designed to achieve the lowest price. * * * This requirement also is blatantly anticompet- itive. Petitioner is in direct competition with Xerox for the sale and maintenance of the equipment at issue. It is irrational for the Division to expect Xerox to provide such certification to its competitors, even as to this type of uncontroversial information unless award to Xerox is the intended goal. The ITB required a manufacturer's certification which specified a notarized certification of the copy speed, recommended monthly copy volume, and other minimum specifications for the equipment bid. [Exhibit 1 to the Petition] The bids submitted by Petitioner included a certification executed by Advantage's president, Jane Beekmann. [MEMO, paragraph 3] The equipment specified by Advantage was manufactured by Xerox but was remanufactured by Advantage. [MEMO, paragraph 3, and as represented by Petitioner's counsel] Advantage maintains it may certify its remanufactured equipment in the same manner that Xerox certified its equipment. [MEMO, paragraph 5] The ITB provided, in pertinent part: ACCEPTABLE EQUIPMENT ...Bids for Classes 3, 4, 5 and 6 shall be for new and newly remanufactured equipment only. In Classes 3, 4, 5 and 6 newly remanu- factured equipment must be certified by the manufacturer. The ITB further provided, at page 32: This is to certify the manufacturer's recommended monthly volumes and certified copy speed (specify from the glass or document feeder) for the machines listed below. Monthly volume indicates the number of copies which can be made per month by the machine without causing excessive downtime. It does not necessarily denote the maximum number of copies that can be made by that particular machine. NOTE: This must be executed by the manu- facturer and must be notarized. Dealers are not authorized to sign this certification form. Failure to submit this certification with your bid shall result in disqualification of bid. The certifications provided by Petitioner identified the machines proposed by Advantage as the Xerox 5100, the Xerox 1090 w/finisher; and the Xerox 1075 w/finisher. Each of these certifications identified Advantage as the name of the manufacturer. [Exhibit C to the motion not disputed by Petitioner] Petitioner did not manufacture the Xerox 5100, the Xerox 1090 w/finisher; or the Xerox 1075 w/finisher. [Petitioner represents it is the remanufacturer, MEMO, paragraph 2] Petitioner maintains, and for purposes of this order it is accepted, that Advantage is the remanufacturer of the Xerox 5100, the Xerox 1090 w/finisher; or the Xerox 1075 w/finisher. [MEMO, paragraph 2] Petitioner did not timely challenge the specifications for ITB No. 4- 600-370-K.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of General Services enter a final order dismissing the petition of Advantage as an untimely challenge to the ITB specifications. DONE AND ENTERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 5th day of January, 1996. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Cindy Horne Assistant General Counsel Department of General Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 J. Daniel Leftwich Berry & Leftwich 2000 K Street, Northwest. Suite 450 Washington, D.C. 20006 James Leech Post Office Box 7473 Fort Lauderdale, Florida 33338 Lawrence P. Stevenson Hume F. Coleman HOLLAND & KNIGHT Post Office Drawer 810 Tallahassee, Florida 32302
Findings Of Fact On or about December 29, 1981, the College solicited sealed bids for construction of alterations and additions to the Technical and Gymnasium Buildings located on its campus in Madison, Florida. In response, seven general contractors submitted bids. (P-1, P-2, P-3.) Bids were publicly opened on February 9, 1982. Griffin Construction, with a bid of $536,575, was the apparent low bidder; the second lowest bidder was Long Contractors, with a bid of $539,512. (Testimony of Griffin, Sims, Rutherford; P-3, P-4, P-5.) After the low bid was identified, Tom McClanahan, representing Long Contractors, asked that the subcontractor list accompanying the low bid be opened. Griffin Construction's subcontractor list was then opened. McClanahan asked if the license and charter numbers of the subcontractors were listed. 2/ Upon learning that these numbers were not included on Griffin Construction's subcontractor list, McClanahan protested. (Testimony of Sims, Rutherford, Griffin.) At its February 15, 1982, meeting, the College District Board of Trustees ("Board") rejected the low bid of Griffin Construction on the sole ground that the omission of subcontractor license and charter numbers constituted a failure to comply with the conditions of the bid documents. 3/ The Board then voted to award the contract to Long Contractors, the second lowest bidder, on the ground that it was the lowest bid conforming to the bid documents. In so doing, the Board followed the College president's recommendation--a recommendation based on his belief that the non-complying bid must be rejected, that it did not involve a matter of Board discretion. (Testimony of Sims, Rutherford, Griffin; Stipulation of Parties; P-41.) The bid specifications contain instructions to bidders requiring "each Bidder . . . [to] submit with his proposal a list of the subcontractors who will perform the work . . . as indicated by the `List of Subcontractors' form." (P-1, P-2.) The instructions further provide: The applicable subcontractor license registration or certification number must be noted on the bid opposite his name, and in the event that the subcontractor is a corporation, his State Corporate Charter number shall also be noted. If the subcontractor is an out of state firm, their Charter number with the Secretary of State to do business in the State of Florida should also be noted. The "Listing of Subcontractors" form provided with the specifications contains column headings for the names and addresses of the subcontractors but does not contain a separate heading for the requested license or corporate charter numbers. 4/ The form states that the subcontractor list "is an integral part of the bid." (P-1, P-2.) The bid instructions further require bidders to evaluate and determine the qualifications of their listed subcontractors. The bidder shall have determined to his own complete satisfaction that a listed subcontractor has been successfully engaged in this particular type of business for a reasonable length of time, has successfully completed installations comparable to that which is required by this agreement and is qualified both technically and financially to perform that pertinent phase of the work for which he is listed. (P-1, P-2.) The bid documents expressly reserve to the College the right "to reject any or all bids, and to waive informalities." (P-1 P-2.) No bidder correctly listed the required license and corporate charter numbers on its "Listing of Subcontractors" form. Griffin Construction. Griffin failed to include any license or corporate charter numbers. However, by subsequent letters dated February 9 and February 18, 1982, and at hearing, it supplied the required subcontractor license and charter numbers. Long Contractors. Long listed for its roofing subcontractor a sheet metal registration number, not the required roofing license number. [A sheet metal registration does not qualify a contractor for roofing work. See, 489.105, 489.113, Fla. Stat. (1981).] For its electrical subcontractor, Long omitted the prefix, "ER" from the listed number. For its plumbing subcontractor, Long listed a mechanical registration number instead of the required plumbing certification or registration number. [A mechanical registration does not qualify a contractor to perform plumbing work. See, 489.105, 489.113, supra.] Of the four areas requiring state licenses--roofing, heating and air conditioning, electrical, and plumbing--Long listed correctly only the registration number for its heating and air conditioning subcontractor. Long incorrectly listed No. FO6962 as the corporate number of Gandy Enterprises, its painting subcontractor. This is the number of a related corporation, Industrial Coatings, Inc. Remaining Bidders. Of the five other general contractors submitting bids, two-- Richard Walker Construction Company and GRC Contracting, Inc.--omitted all subcontractor license and charter numbers. The other three bidders failed to completely list all the required numbers. (Testimony of Rutherford; P-11, P-12, P-13, P-14, P-15, P-16, P-17, P-34, P-37, R-1, R-5.) The project architect testified that the submittal of incorrect or incomplete subcontractor license and charter numbers was a deficiency which a bidder should be allowed to cure after bid opening. But the failure to submit any required "number" was a deficiency which, in his opinion, could not be similarly corrected. He failed, however, to supply a reasonable basis for drawing such a distinction. Therefore, his opinion on this question is given little weight. 5/ (Testimony of Rutherford.) Subcontractor license and charter numbers are readily obtainable and can be verified by contacting the pertinent state agency--the Florida Department of Professional Regulation, Construction Industry Licensing Board, or the Florida Department of State. (Testimony of Griffin, Rutherford; P-32, P-33, P- 34, P-35, P-36, P-37.) The project architect, William Rutherford, routinely requires the listing of subcontractor license and charter numbers on bids for public construction projects. The main purpose it serves is that it would enable him to identify the listed contractor, since sometimes subcontractors have similar business names. Although if he was uncertain about the qualifications of a subcontractor, he would ordinarily question the general contractor. (Testimony of Rutherford.) Although Mr. Rutherford has customarily required the listing of subcontractor "numbers" on public projects, he has never made any use of those numbers in the past. (Testimony of Rutherford.) The general contractor who is awarded the contract is responsible to Mr. Rutherford and the College for construction of the project in accordance with the bid specifications. If, after bid opening, a listed subcontractor is unable to perform, Mr. Rutherford would ordinarily arrange for substitution of a new subcontractor acceptable to the general contractor and owner. (Testimony of Rutherford.) Griffin Construction's failure to list the license and charter numbers of its listed subcontractors, and its subsequent curing of that failure, did not affect the amount of its bid 6/ by giving it an advantage or benefit not enjoyed by other bidders. The bid omission did not allow Griffin Construction the opportunity to change any material element of its bid after bid opening. The inclusion or exclusion of subcontractor "numbers" at bid opening does not affect the ability of a contractors to obtain the required bond, the quality of bidding general contractors, the quality of listed subcontractors, the quality of work performed, or any material feature of the competitive bidding process. (Testimony of Griffin, Rutherford.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the construction contract in question be awarded to Vick Griffin Construction Company, the lowest responsible bidder. DONE AND RECOMMENDED this 29th day of April, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1982.
Findings Of Fact The Department of General Services, Division of Purchasing, is the state agency responsible for establishing standards and specifications and term contracts for purchase by the State of commodities used in volume. Generically, term contracts are established for fixed periods of time, usually one year, with no predetermined quantities or guarantees of purchase. The current ITB contemplates $38,000,000 in annual expenditure. During the fixed period, vendors agree to sell commodities at the prices established through the competitive bidding process. Term contracts permit concentration of the State's entire purchasing power so as to obtain price advantages through anticipated large volume purchases, through reduced administrative costs, and through standardized terms and conditions of sales, warranties, and service. History of DGS and Department of Education collaboration in drafting of a term contract for microcomputers dates back at least to 1982. Purchases have, of course, been made under those contracts. Continuity in successive state microcomputer term contracts serves the significant purposes of supporting microcomputer equipment already in place with various governmental users (the "embedded State base") and supporting expansion of that embedded base by meeting users' emerging needs. On October 30, 1987, DGS issued Invitation to Bid 462-250-040B, microcomputers. Potential bidders (including among them both manufacturers and dealers) were notified of a bidders' conference to be held on November 16, 1987, and were asked to submit written questions concerning the ITB by November 9, 1987. At the November 16, 1987 conference, written answers to the pre-submitted questions were read aloud and distributed to all in attendance. Caber had submitted written questions, but no Caber representative attended the conference. On November 17, 1987, an Addendum to Invitation to Bid 462-250-040B was issued, incorporating selected suggested changes, thereby completing Invitation to Bid 462-250-040B (hereafter, "ITB-462"). A simultaneous bid submittal deadline and bid opening was scheduled for 2:00 p.m., December 3, 1987. Caber timely filed its Notice of Protest on November 23, 1987, within 72 hours (excluding weekends and holidays) of receipt of completed ITB-462. Following uneventful and unsuccessful informal procedures, Caber timely filed its Formal Written Protest on December 2, 1987. Pursuant to Section 120.53(5)(c), Florida Statutes, and Rule 13A-1.006(3)(d), Florida Administrative Code, DGS stopped the bid solicitation process at that point, one day prior to the bid submittal/bid opening deadline of December 3, 1987. At the time of Caber's filing its Formal Written Protest, Apple, along with approximately 72 other dealers and manufacturers had already submitted bids. IBM was en route to DGS with IBM's bid, but IBM's bid submittal was refused by DGS because of the statutory "freeze." MCA had filed no Notice of Protest, no bid, and no Formal Written Protest. The purpose of ITB-462 was to establish a 12 month term contract for the purchase of microcomputers, which term contract could be extended for each of two successive 12-month terms. As a term contract, all state agencies would be required to purchase microcomputers from the contract. The state university system, counties, municipalities, local school districts, and political subdivisions would have the option of doing so. The format of ITB-462 reflects major substantive changes in DGS' policies for the microcomputer term contract from what those policies had been previously. Last year, when intended awards by DGS under its last previous (1986) microcomputer bid solicitation (ITB-545) for the proposed 1987 term contract were protested by Caber, DGS had decided to reject all bids arising thereunder and to rewrite ITB-545 to correct certain flaws. The DGS' decision to reject all bids under ITB-545 was upheld over Caber's protest in consolidated cases Caber Systems, Inc. et al. v. DGS, et al., DOAH Case No. 87-0836BID and Microage Computer Stores, Inc. v. DGS, DOAH Case No. 87-0837BID. As a result of the flaws in ITB-545 revealed during that formal protest, DGS finally abandoned ITB-545 entirely, extended the 1985 microcomputer contract (hereafter, "contract 621" or "621") for one year to January 26, 1988, embarked on serious reevaluation of its users' needs, and commenced the drafting process that resulted in the ITB-462 format which is the subject of the instant specification protest. In order to assure that the new specifications would meet the needs of its embedded base, DGS consulted the Department of Education (DOE), other state agencies, the Information Resources Commission (IRC), user groups such as the Government and Education Microcomputer User Group (GEMUG), and various manufacturers of microcomputers. DOE operated partly as a conduit for user need information from school boards and the state university system. IRC acted partly as a conduit for user need information from other state agencies and partly as a consultant providing technical information and bid specification evaluation to DGS. The format of ITB-462 contains four tables. Table I identifies 353 microcomputers of 21 manufacturers arranged by brand and model and includes product descriptions supplied by the respective manufacturers. Table II consists of forms for bidders to list microcomputer options and accessories. Table III consists of forms for bidders to list microcomputer software. Table IV contains a set of separate generic specifications of IBM compatible clones. Tables I through IV were combined with DGS' General Conditions and Certain Special Conditions. The Special Conditions of ITB-462 provide that, in the case of Table I, brand name and models, "[n]o additional micro- computer brand names and models will be considered for this bid;" and that third party components (products of one manufacturer installed in the larger system or computer of another manufacturer) are not acceptable for Table I unless they are used by the manufacturer in normal production and supported by the manufacturer for warranty and maintenance service, and they further provide that: EVALUATION AND AWARD Any contract resulting from this bid shall be awarded for specific microcomputers listed in Table I by brand name and model number to the low qualified bidder. A single award shall be made for each IBM- compatible clone configuration listed in Table IV to the low qualified bidder for that configuration. Options, `Accessories and Operating System/Programing Language/Utility Software placed on any contract resulting from this bid shall be limited to those products applicable to microcomputer models awarded to each low qualified bidder. Technical Specification 3.2 of the Specifications Nos. 250-040 and 250-041 of the ITB identifies fourteen "acceptable" hardware options/accessories and provides that these "are the only peripherals or components that are acceptable for this bid and any award." Unlike prior microcomputer ITBs, there is no place in Table I of ITB- 462 for a vendor to bid systems that are equivalent to (meet or exceed) any brand system listed in Table I. The list of 353 systems in Table I is designated a Qualified Product List (QPL). DGS intends to make one award to the lowest responsive bidder for each system. Responsiveness of bids will be determined by ascertaining that a bid is in the proper form, properly executed, and correctly identifies the item bid. Award by low price will be faster than the evaluation process that had been employed with the 1986 ITB-545, which took far in excess of the time allotted. Improving the former evaluation process and attaining a speed factor were identified and evaluated as positive goals in the course of the ITB-545 bid protest and in the drafting process for ITB-462. DGS intended that there should be no technical evaluation (i.e. benchmarking) for Table I of ITB-462 because the QPL has eliminated that need. Microcomputer Models were selected for inclusion in the ITB-462 Table I QPL based on four criteria listed specifically in the ITB itself as "placement on the current microcomputer contract, review of contract exceptions, demand by State contract users, and experience of prior usage by the State." DGS formulated the four criteria as a means to achieve the objective of supporting the State's embedded base of microcomputers and applied a volume of usage measurement to all four criteria. Although Caber and MCA urged that meeting just one of these four criteria was insufficient to get on the QPL and that there was in place an unpromulgated "50 sales" threshold rule or policy with regard to volume of usage, the credible competent substantial evidence as a whole does not support their inference. Rather, the evidence shows that DGS personnel wanted to apply a "50 sales" policy but abandoned it in favor of merely requiring hard proof through sales reports or sales receipts, purchase orders, or similar documentation or by user requests that there was a current embedded base of more than one sale of one model by each potential supplier. This is reasonable for a term contract. Each of the four criteria has the same intent and purpose, that is, to determine the true current embedded base. Caber originally protested that DGS should be precluded from requiring any proof of volume sales by way of sales reports and similar documentation without first promulgating a formal rule or enunciating a clear policy. The agency has wide discretion in how it implements its statutory duties, and requiring proof of volume usage is a reasonable method of determining the true current embedded base and serving it. Requiring proof of the true current embedded base does not exceed DGS' statutory authority and is not arbitrary or capricious. It is reasonable for DGS to require potential suppliers to prove past sales instead of merely accepting, without further proof, self-serving letters from them alleging that they have made such sales. DGS cannot legitimately ignore that if potential suppliers' allegations of sales are taken at face value, some potential suppliers will be tempted to falsify their claim of sales in the hope of gaining an advantage. Also, as set out in Finding of Fact 19, infra, such proof has been anticipated and provided for in prior contracts. Neither Caber or MCA filed a Section 120.54 or 120.56, Florida Statutes, rule challenge, with regard to either a volume policy of "50 sales" or the policy above- described. In the course of formal hearing and in their posthearing proposals, however, Caber and MCA suggested unequal application of the policy of volume usage and the number needed to be proved. Although it was shown that an indefinite volume usage scale was applied, to various manufacturers, Caber and MCA were unable to show that any legitimate party to this instant protest was treated unequally. See, infra. Findings of Fact 22-26 and the Conclusions of Law. During the course of the 621 contract, DGS had, pursuant to General Condition 25, revised that contract on at least a quarterly basis, to reflect, among other things, deletions of discontinued products and additions of new products by actual sales to the state. 4/ Therefore, DGS did not question volume of current usage of recently added suppliers or require those suppliers which had been recently added to the 621 contract revisions to demonstrate anew a need for their products by State users so as to get on the ITB-462 QPL. Rather, DGS broadened the ITB-462 QPL by all models of any manufacturer listed on the 621 contract revisions up to the date of mailing ITB-462. If DGS already possessed proof of volume usage by the embedded base either by proof of sales or by user requests, it added any supplier listed on the basic 621 contract to the ITB-462 QPL, without further inquiry or proof requirements. However, if DGS had reason to question the volume of current usage by the State embedded base of products from suppliers listed on the basic 621 contract, DGS then required those particular suppliers to come forward with proof of current true volume usage of their products by the State embedded base, before DGS would add that particular supplier's products to the ITB-462 QPL. DGS only questioned volume of current State embedded base usage of the products or potential suppliers listed on the basic 621 contract if two situations converged. First, DOE, IRC, and the state contract users would have to have given no indication that a 621 listed supplier's products were still in demand and DGS would have to have had no independent record of sales above a single unit single sale. No potential supplier in this dual category is a legitimate party to this Section 120.53, 120.57, Florida Statutes, ITB-462 protest, and none submitted to DGS satisfactory proof of sales to an embedded state user base sufficiently in advance of the ITB-462 mailing to be placed on the ITB-462 Table I QPL. See, infra., Findings of Fact 22-26 and the Conclusions of Law. If a brand/model could not qualify under the first of the four ITB-462 QPL criteria, "listing on the revised 621 contract," DGS would still place it on the ITB-462 QPL if it met one of the other three criteria. Criterion one was not demonstrated to be arbitrary or capricious either in concept or in application to any party with standing in this proceeding. Together with the other three criteria, it is a reasonable component of a method of achieving the agency's statutory goal of competitive bidding, and does not exceed the agency's statutory authority. Criterion two, "review of contract exceptions", refers to DGS' role in approving or disapproving State agencies' requests to acquire microcomputers and equipment which is not on a state contract. See, Rule 13A-1.008(4), Florida Administrative Code. DGS personnel reviewed the 621 contract exceptions that had been granted previously, but did not consider a contract exception for a single unit sufficient to qualify a brand/model for the ITB-462 Table I QPL. However, Table IV, the IBM clone category, was drafted in response to DGS' review of contract exceptions. DGS demonstrated that this standard was reasonable. Caber and MCA did not affirmatively demonstrate any significant competitive bidding benefit or any substantial and compelling embedded user base that was overlooked in requiring more than a single unit exception, nor did they show that a multiple unit standard was unreasonable, arbitrary, capricious, exceeded statutory authority or showed favoritism. Criterion three, "demand by state users", refers to oral and written requests from State contract users for certain products. DGS reasonably added Datamaxx brand products to the 462 Table I QPL as a result of such a request from the Department of Health and Rehabilitative Services, and Caber and MCA failed to demonstrate any significant competitive bidding benefit or substantial and compelling embedded user base that was overlooked in this process or that Datamaxx should be deleted from Table I due to any overreaching of statutory authority, unreasonableness, arbitrariness, capriciousness, or favoritism employed by DGS. Criterion four, "experience of prior usage by the State" was a catchall category by which DGS sought to ultimately capture all potential suppliers needed by its embedded base. In practice, it overlapped criterion one and was not arbitrary or capricious and did not exceed the agency's statutory authority. DGS again would not accept a single unit sale as proof of a significant embedded users base. DGS' initial knowledge of volume sales can come from sales reports and purchase orders and from DGS personnel's oral and written contact with various state agencies. Also, suppliers on contract 621 are required to furnish to DGS quarterly sales reports and the contract notifies them in advance that furnishing these quarterly sales reports will be considered in awarding future contracts, but there has not been uniform supplier compliance with that 621 contract requirement, and DGS admits its figures in this regard are not entirely accurate. If no contract user had specifically requested a microcomputer product, rather than simply striking those suppliers which had not properly provided adequate sales documentation under contract 621, DGS allowed listed suppliers to submit proof of a current embedded base of state users of their products in the form of receipts, invoices, sales records, and similar documentation. DGS expected the supplier listed to make initial contact with DGS to supply this volume usage information, but where first contact had been initiated by such a potential supplier, DGS would actively continue to solicit such proof. DGS reasonably and logically required that the proof be submitted sufficiently in advance of the mailing of the ITB-462. If DGS already had proof or an embedded user base through proof of sales or had contract user requests for suppliers listed on contracts predating contract 621, DGS also added those potential suppliers to the ITB-462 QPL without requiring further proof. This broadening of the ITB-462 QPL could fall in either criterion three or four and demonstrates no offense against competitive bidding even if it does not precisely fit criterion one. In every application of the criteria, the intent of DGS' actions has been to responsibly broaden the QPL, not limit it. Caber's protest suggests adding specific name brands to the ITB-462 Table I QPL: Toshiba, Wyse, Tandon, NEC, and Convergent Technologies. DGS had not included these brands in the QPL because DGS had no requests and no independent proof of an embedded base, and because these brands submitted no documentation of volume usage prior to the ITB-462 mailing. At no time prior to the conclusion of formal hearing in this cause was Caber an authorized dealer for Tandon, NEC or Convergent Technologies, and therefore Caber could not have bid products of those brands by December 3, 1987, the bid submittal/opening date. Nor did Caber have any standing to represent these manufacturers during the crucial 72 hour "window" provided for filing notices of protest. Caber's connections with these manufacturers is "hopeful" at worst and speculative at best. Caber is an authorized dealer for Toshiba and Wyse. At formal hearing, Caber proved up a one unit sale of a Toshiba product under a contract exception, but Caber's principal witness stated that a similar single unit bid would not be in Caber's best interest. At formal hearing, Caber presented no proof through supporting sales receipts, invoices, or similar sales documentation of any Wyse sales to an embedded state user base. NEC does not sell directly, but only through third party dealers. Its products appear on the expired 621 contract but neither NEC nor its dealer, who is the supplier listed on the 621 contract, filed a protest or sought to intervene in this proceeding. NEC knew about the required proof of sales, but submitted no supporting documentation of sales to an embedded state user base when requested to do so by DGS prior to the ITB-462 mailing, and prior to that date there was no direct request for NEC products by contract users. Intervenor MCA is the sole authorized distributor of Convergent Technologies products in Florida. MCA sells such microcomputers to state contract users through an arrangement with Integrated Microsystems, Inc. Integrated Microsystems is listed on the 621 contract as providing Convergent Technologies equipment. MCA provided quarterly sales reports to Integrated Microsystems but neither MCA nor Integrated Microsystems filed them with DGS. Neither MCA nor Integrated Microsystems met DGS' deadline for submitting similar documentation of such sales prior to the mailing of ITB-462, although MCA had requested that Convergent Technologies be added to the ITB-462 QPL. Neither MCA, Integrated Microsystems, Inc., or Convergent Technologies timely filed a Notice of Protest or Formal Written Protest. MCA made a conscious decision not to do so. Neither Integrated Microsystems, Inc. nor Convergent Technologies sought to intervene. Caber and MCA proposed that if ITB-462 is not modified to allow addition by name brands or equivalent bids for Table I models, then it should be modified to allow potential suppliers reasonable notice and opportunity to submit proof of State user demand for any brands/models not currently listed on Table I. Implementing such a proposal would only be providing an additional chance for these potential suppliers to submit the proof DGS required prior to the ITB mailing and which was not supplied then. Pursuant to General Condition 25, DGS intends to add new brands to the new microcomputer contract resulting from ITB-462 by competitive bidding. DGS intends to develop criteria for addition to the Table I QPL to be published and mailed to potential vendors in the future. Once a microcomputer meets the criteria, there will be an ensuing bid and award. DGS then plans to continue to add replacement models without competitive bidding when they meet or exceed specifications at the lower prices. New brands will then be added by specific make and model only. If DGS is required to fulfill its intention, the protestants' goal will be achieved without sacrificing additional time in getting out ITB-462 and the goal of further expansion of the embedded base will be served quarterly within the contract's life. In drafting ITB-462, DGS worked closely with DOE and the Information Resources Commission (IRC) beginning approximately in June 1987 and provided each with a draft or "specimen" copy of the ITB at a conference held October 7, 1987 and requested their comments at a conference held October 16, 1987. The IRC is the centralized management authority for all information technology (computer) use within State agencies. With the exception of the Department of Community Affairs, no state agency suggested equivalency bidding, and the IRC did not recommend this substantial change in the specimen ITB-462 format when it presented its review of agencies' needs and its own recommendations to DGS. DOE expressed no need for an "all other" or "equivalent" category/goal because it was felt that Table I contained a broader range of models which would meet the majority of their users' needs and the Table IV clones would meet any state needs not met by Table I. DGS' position was that reopening Table I to "all other" or "equivalent" categories would be to return to the 1986 ITB-545 format that Caber previously protested and that DGS had abandoned because it was vague and because it was impractical to administer. Caber and MCA proposed that DGS develop specifications (an "all other" category) which bidders would attempt to meet by assembling their own systems of components. Specifically, Caber and MCA proposed deleting the provisions of the Special Conditions of ITB-462 which prohibit bidding of equivalents, and allowing potential vendors to bid models that are "equivalent" to (meet or exceed the specifications of) Table I models, either by creating a new Table V form on which vendors may bid a model equivalent to any specified model on Table I or by creating a set of "other low qualified bid" categories involving generic specifications based on Table I models. However, Caber and MCA did not affirmatively demonstrate any compelling competitive bid advantage to the State's embedded user base in doing so. Neither did they present any substitute specifications by which an "equivalent" goal/category could be successfully bid, evaluated, and awarded, whether it be added to existing Table I or placed in a "created" Table V. The 1986 ITB-545 bid protest resulted in part from a failed attempt to draft generic specifications and Caber and MCA only suggested in the present formal hearing that DGS should advertise for someone to come forward and write such specifications and other methods more reminiscent of a "request for proposal", (RFP) than of a firm specification for an ITB to meet a known embedded user base with definite parameters of need. Evaluation by benchmarking to establish functional equivalency would be necessary to implement Caber's and MCA's proposals even if generic specifications could be drafted, due to the myriad combinations possible. The alternatives to benchmarking proposed by the Caber and MCA witnesses are impractical and demonstrably not in the best interests of the State, based on time considerations associated with benchmarking literally hundreds of potential combinations, time considerations rendered even more compelling by the termination of the 621 contract on January 26, 1988. Moreover, Caber's and MCA's suggestions that the State rely solely on default provisions of the ensuing contract clearly would not be in the best interests of the State in that such a practice would inherently subvert all the price benefits sought through term contracting. Moreover, as it stands now, a degree of equivalent bidding is permitted in Table IV of ITB-462. Although third party components (products of one manufacturer installed in the larger system or computer of another manufacturer) may be bid in other tables, DGS has excluded them from Table I by the following language, Third party components are not acceptable within a system designated by a manufacturer's model number on Table I unless they are used by the manufacturer in normal production and supported by the manufacturer for warranty and maintenance service. The purposes behind this exclusion are to avoid the same problems inherent in bidding equivalents and the necessity for benchmarking of all possible variations, and because manufacturers will generally not provide maintenance contracts on altered equipment, because of the need for contract users to know exactly what they are getting, because of enunciated safety reasons, and because of the need for specificity in bid solicitations, administration, and award. By their prehearing stipulation, Caber, MCA, DGS, IBM, and Apple stipulated that the Manufacturer's Certificate called for in ITB-462 should be modified so as to delete the following language "AND IS OFFERING EQUIPMENT THAT IS IN COMPLETE COMPLIANCE WITH THE BID SPECIFICATIONS." No reason was shown why this stipulation should not be accepted and given effect, provided all the potential bidders have an opportunity to resubmit bids to comply with ITB-462 as reformed on this point. An IBM-compatible clone is a computer marketed by a manufacturer other than IBM, having an operating system that will run IBM programs and which has the capability to be expanded with IBM-compatible devices. DGS established such a category in Table IV to meet demonstrated needs of an embedded base of State microcomputers which perform the same functions as IBM equipment but which can be obtained at significantly lower prices. The clone category specifications are already at least "semi-generic" or "semi-equivalent" in that any combination of components which meets those specifications is acceptable to DGS, regardless of manufacturer or dealer. Third party components are acceptable in the IBM- compatible clone systems, provided that all such components are warranted by the bidder and maintenance subsequent to the warranty period is available from the bidder. There are hundreds of manufacturers of IBM compatible clones in the microcomputer marketplace today, and there are many third party components offered for use in IBM computers and/or IBM compatible clones of widely varying features and prices. There has never before been an IBM clone category awarded on a State contract, but a clone category involving two models was proposed in the ITB-545 abandoned last year, and the new ITB-462 contemplates that there will be a single award to the lowest bidder for each of the four IBM compatible clone configurations in its Table IV. There is nothing in the specifications which would prevent Caber from bidding many models on Table IV. Determining compliance of clones with the ITB-462 specifications as now drafted will involve DGS performing benchmark testing of at least two systems in each configuration, or at least 8 tests. DGS has allotted 10 days to perform these tests and it is estimated that it will take one person approximately one day to test each clone. The purpose of the benchmark test is to certify that the computers bid are IBM compatible and actually work as represented. Benchmarking is done by setting up the machines, formatting disks, and running the application's software to ensure that the machines can create, retrieve, update, and manipulate files, and can generally perform all the functions of IBM compatible machines. Caber and MCA propose that there be multiple awards for each configuration. The majority of state agencies do not favor multiple awards for the clone category because the four configurations on Table IV represent the basic equipment they need. DOE opposed multiple awards for itself and its constituency. IRC did not recommend multiple awards for clones. Multiple awards are the least desired method of contracting in State government and are reserved for situations where a specification cannot be written. DGS was able to draft specifications for the clone configurations that the State embedded base of users indicated were most needed. DGS' intent in the Table IV category was to capture the single lowest bid through competitive bidding, not to produce a catalogue of manufacturers/dealers willing to do business with State users, which latter goal seems to be the thrust of the ITB amendments proposed on this point by Caber and MCA, who demonstrated no cost advantage to the State in making multiple awards for clones. Multiple awards for clones would result in the benchmark testing criticized in the orders of consolidated cases Caber Systems Inc. et al. v. DGS, et al., DOAH Case No. 87-0836BID and Microage Computer Systems Stores, Inc. v. DGS, DOAH Case No. 87-0837B1D. Again, Caber and MCA witnesses proposed several alternatives to benchmarking the literally thousands of configurations possible under their proposal. All proposed alternatives were overwhelmingly discredited by credible testimony as impractical and subject to enormous time delays. Historically, DGS has not limited the number or type of related options/accessories that a winning bidder could have placed on the microcomputer term contract. ITB-462 limits the number and types of options/accessories to 14 acceptable items. The Special Conditions restrict the options to the models with which they function, require bidders to identify the options' list prices, percentage discounts, and net delivered prices in Table II. In developing the list of acceptable options, DGS drew on what it had learned from the last bid protest and considered the volume of State usage of the options, prices of the items, and the need to support equipment in place. Information supporting the usage of the options which were eventually listed included sales reports, purchase orders, sales summaries, and input from State users. The IRC, DOE, and GEMUG concurred in the limited list of options which finally resulted. DGS proved a reasonable need for these items by an embedded State user base. Caber and MCA did not demonstrate any need by an embedded State user base which was left unmet by DGS' procedure or which is not otherwise addressed by other existing State contracts or by the state contract exception provisions. In the case of certain accessories/option additions proposed by Caber and MCA, the cost of such proposed additions fell below the vanishing point for unit price savings through volume purchases.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that DGS enter a Final Order providing: That MCA be dismissed as an intervenor in this cause. That Caber's Petition as it addresses products of Tandon, NEC, and Convergent Technologies be dismissed. That ITB-462 be amended to delete the following language in the Manufacturer's Certificate: "and is offering equipment that is in complete compliance with the bid specifications," and amended in no other way. That a date certain for completion of bid submittals (and resubmittals as necessary for those bidders who responded before the statutory freeze) be established, which date will allow sufficient time for all those eligible to submit bids that comport with the ITB-462 as amended pursuant to paragraph 3. That the Division of Purchasing develop procedures to be included in the contract resulting from ITB-462, providing for additions to the Table I QPL at every General Condition 25 revision and requiring that copies of these procedures be published and mailed to all potential vendors prior to the first revision of the ensuing contract. DONE and RECOMMENDED this 29th day of April, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of April, 1988.
The Issue The issue is whether Respondent (“Ricky Lee Diemer”) offered to engage in unlicensed contracting as alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for regulating the practice of contracting pursuant to section 20.165, Florida Statutes, and chapters 455 and 489, part I, Florida Statutes. The Department initiated an undercover operation by gaining access to a house needing numerous repairs. The Department employees then utilized websites, such as Craigslist and HomeAdvisor, to identify people offering unlicensed contracting services. The Department employees found an advertisement posted by “RLD Handyman Services” on December 26, 2017, offering to perform multiple types of contracting work. This advertisement caught the Department’s attention because it did not list a contracting license number. Section 489.119(5)(b), requires every advertisement for contracting services to list such a number.2/ The advertisement listed a phone number, and the Department utilized the Accurint phone system to ascertain that the aforementioned phone number belonged to Mr. Diemer. The Department examined its records and ascertained that Mr. Diemer was not licensed to perform construction or electrical contracting in Florida. The Department contacted Mr. Diemer and approximately 12 other people offering contracting services and scheduled appointments for those people to discuss contracting work with an undercover Department employee at the house mentioned above. An undercover Department employee told Mr. Diemer and the other prospective contractors that he had recently bought the house and was hoping to sell it for a profit after making some quick repairs. An undercover Department employee met Mr. Diemer at the house and described their resulting conversation as follows: A: We looked at remodeling a deck on the back, the southern portion of the home. We looked at cabinets, flooring and painting that are nonregulated in nature, but also plumbing and general contracting services such as exterior doors that needed to be replaced, and the electrical, some appliances and light fixtures. Q: All right. So was there any follow-up communication from Mr. Diemer after your discussion at the house? A: Yes. We walked around the house. He looked at the renovations that we were asking. He took some mental notes as I recall. He didn’t make any written notes as some of the others had done. He did it all in his head, said that he was working on another project in the Southwood area at the time and just left his work crew there to come and visit with me and was rushed for time. So he was in and out of there in 10 to 15 minutes. It was pretty quick. Q: Okay. A: But he took the mental notes and said that he would go back and write something up and send me a proposal through our Gmail. . . . On February 7, 2018, Mr. Diemer transmitted an e-mail to the Department’s fictitious Gmail account offering to perform multiple types of work that require a contracting license: kitchen sink installation, bathroom remodeling, construction of an elevated deck and walkway, installation of light fixtures, and installation of front and back doors.3/ Mr. Diemer proposed to perform the aforementioned tasks for $13,200.00.4/ The work described in Mr. Diemer’s e-mail poses a danger to the public if done incorrectly or by unlicensed personnel.5/ The Department incurred costs of $118.55 for DOAH Case No. 18-6578 and $91.45 for DOAH Case No. 18-6579. The Department proved by clear and convincing evidence that Mr. Diemer advertised or offered to practice construction contracting without holding the requisite license. The Department also proved by clear and convincing evidence that Mr. Diemer practiced construction and electrical contracting when he transmitted the February 7, 2018, e-mail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order requiring Ricky Lee Diemer to pay a $9,000.00 administrative fine and costs of $210.00. DONE AND ENTERED this 1st day of April, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2019.
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
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a seller of business opportunities registered with the Petitioner, holding registration number 2000-054, and located at 3101 Twenty-Second Avenue South, St. Petersburg, Florida 33712. The Respondent was the successor in interest to American Cash Machine, Inc., and is responsible for fulfilling the obligations of the previous company. At all times material to this case, Gilbert B. Swarts was the president and chairman of the board of the Respondent. On July 8, 2005, the Respondent entered into a contract with Bonnie Campbell as trustee of the Campbell Family Trust (purchaser) under which the purchaser agreed to purchase 36 "CardPayment" machines from the Respondent, and the Respondent agreed to place the machines in appropriate business locations on behalf of the purchaser. As required by the contract, the purchaser paid a total of $135,000 by check to the Respondent. At the time of the sale, the Respondent provided a disclosure form to the purchaser which stated that 200 "CardPayment Business Opportunities" had been sold by the Respondent to other purchasers by the end of 2005 and that 25 "Internet Kiosk Business Opportunity [sic]" had been sold by the Respondent to other purchasers by the end of 2002. The disclosure form also stated that the Respondent would provide to the purchaser, the names, addresses, and telephone numbers of the ten purchasers located closest to the purchaser; however, the disclosure form did not include the information, and the Respondent did not otherwise provide the information to the purchaser. The Respondent stocked the 36 CardPayment machines, but failed to acquire business locations for all of the machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 36 CardPayment machines identified in the contract to 18 Internet Kiosk machines. The Respondent was subsequently unable to acquire business locations for all of the Internet Kiosk machines. The Respondent has asserted that after discussions with the purchaser, the parties agreed to "upgrade" the 18 Internet Kiosk machines to 18 "Smart Terminal" machines. The CardPayment machines, Internet Kiosk machines, and Smart Terminal machines are different types of machines, and each type has a usage different from the others. The terms of the contract executed between the parties did not provide for the substitution of various machines upon failure by the Respondent to place the machines into operation. The contract required the Respondent to rebate a portion of the sales price for each month during which each CardPayment machine was not placed for operation. No contract for the purchase of either the Internet Kiosk or the Smart Terminal machines was executed by the parties. The disclosure information provided by the Respondent to the purchaser related to the Internet Kiosk machines was insufficient to comply with the statutory requirements addressed herein. No disclosure information related to the Smart Terminal machines was provided by the Respondent to the purchaser.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding that the Respondent has violated Subsections 559.803(11)(a) and (b) and 559.809(11), Florida Statutes (2005); imposing an administrative fine of $10,000; and placing the Respondent on probation for a period of three years subject to such conditions as the Department deems appropriate. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2008. COPIES FURNISHED: Eric H. Miller, Esquire Department of Agriculture and Consumer Services 2005 Apalachee Parkway Tallahassee, Florida 32301 Gilbert B. Swarts American Cash Machine, LLC 535 Twenty-Second Street South St. Petersburg, Florida 33712 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact In June 1987 The School Board of Lee County, Florida invited the submission of sealed bids for grading and drainage improvements at the new Multipurpose Building at Fort Myers High School. In addition to requiring grading, the project involves the erection or placement of structures in the nature of a drainage system consisting of culverts, pipes, and concrete inlets with grates, to be tied into the existing drainage system off School Board property across a county right-of-way into a culvert for discharge across the street, and which on School Board property attaches to and becomes a part of an existing building. Sealed bids were submitted by Systems Technologies Co. of Ft. Myers, Inc. (hereinafter "Systems Technologies") and by Ledo Lines, Inc. Respondent determined Systems Technologies to be the lowest responsible bidder and advised Ledo Lines, Inc., that it would be awarding the contract to Systems Technologies. Warren W. Hunt is the president and the qualifying agent of Systems Technologies. Hunt has an underground utilities contractor's license which has been inactive since it was obtained by him in March, 1986, being inactive therefore both at the time that Hunt submitted the bid on behalf of Systems Technologies and at the time of the final hearing in this cause. The inactive status results from Hunt's failure to complete the license process with the State of Florida. Since Hunt's license was inactive due to being incomplete at the times material to this cause, neither Hunt nor Systems Technologies was a licensed contractor and Systems Technologies was not a responsible bidder at the time that the bid was submitted. The contract specifications set forth the method by which the bids would be evaluated. Paragraph numbered 2.9 on page PD-4 provides as follows: Comparison of Proposals - Proposals will be compared on the basis of total computed price for each division of work. Total computed price equals the sum of the prices for the lump sum Contract Item, plus the sum of the total prices for the unit price Contract Items for each Division of work. The total price for each unit price Contract Item will be obtained by multiplying the estimated quantity of each item by the correspond- ing unit price set forth in the Proposal form[.] That provision, accordingly, requires that the bids be evaluated based upon the sum of all line items rather than based only upon their total or "bottom line" figure. Respondent's Director of Facilities Planning admitted that he failed to comply with this provision of the contract specifications in evaluating the two bids submitted to him and in determining that the bid should be awarded to Systems Technologies. In Systems Technologies' bid, the sum of the prices for the lump sum contract items plus the sum of the total prices for the unit price contract items amounts to $30,109.60. However, in submitting its bid Systems Technologies incorrectly added its column of figures and incorrectly computed its Total Contract Price (Estimated) to be $29,768. Since the contract specifications envision a unit price bid rather than a lump sum bid, the amount of the bid of Systems Technologies is in fact the amount of $30,109.60. The bid of Ledo Lines, Inc., is for $29,913.84. Ledo Lines, Inc., is, therefore, the low bidder on this project. The contract specifications when read in their entirety clearly require that the low bid be determined by adding the unit price and lump sum components rather than relying on the lump sum "bottom line" figure shown for Total Contract Price (Estimated). Employees of the consultant who Prepared the specifications testified that they expect to be able to hold the bidders to the unit prices but not to the Total Contract Price (Estimated) because the estimated quantities may change. Thus, the evidence is uncontroverted that the determination of low bidder pursuant to the contract specifications is based upon the total of the unit price provisions and not by the single figure at the bottom of the page which adds those individual prices and which was added erroneously in this case by Systems Technologies. In their Prehearing Stipulation, the parties stipulated that the School Board is subject to mandatory competitive bidding for this project. They further stipulated that where there is mandatory competitive bidding, the contract must be awarded to the lowest qualified, responsive bidder. Since Systems Technologies is neither a qualified, responsive bidder nor the lowest bidder, it is clear that Ledo Lines, Inc., is the lowest responsive bidder for the project in question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered determining Ledo Lines, Inc., to be the lowest responsive bidder and awarding the contract for grading and drainage improvements to the Multi- purpose Building at Fort Myers High School to Ledo Lines, Inc. DONE and RECOMMENDED this 25th day of September, 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 25th day of September, 1987. COPIES FURNISHED: James E. Melvin, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901 E. G. Couse, Esquire Post office Drawer 1647 Fort Myers, Florida 33902 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
Findings Of Fact Pursuant to agreement of the parties, this case was submitted to the undersigned Hearing Officer upon the filing of briefs and proposed final orders. There are no disputed issues of material fact. The legal issue in this case is whether Rule 13A-1.002(3), Florida Administrative Code, is an invalid exercise of delegated legislative authority. The parties were represented as follows: Petitioner: Richard A. Lotspeich, Esquire Post Office Box 271 Tallahassee, Florida 32302 Respondent: Sandra E. Allen, Esquire Room 452, Larson Building Tallahassee, Florida 32399-0955 Intervenors: Charles S. Ruberg, Esquire Knott Building Tallahassee, Florida 32399 (Department of Education) Paul W. Lambert, Esquire Post Office Box 11189 Tallahassee, Florida 32302 (Microdyne Corporation) The parties' proposed final orders were filed on June 25, 1987 and a ruling on each proposed finding of fact is included in the Appendix to this Final Order.
Findings Of Fact The Petitioner is Ellis I. DeGroff. He is president of DeGroff Business Machines, Inc. The Respondent is the School Board of Palm Beach County, Florida. On September 17, 1987, the Respondent issued Invitation for Bid number SB-88C-120B for the potential acquisition of electronic cash registers. Bids were opened by the Respondent on October 14, 1987. Five bids were received. The monetary amounts of the bids were listed and Petitioner's bid was the lowest. Respondent then reviewed the bids to determine compliance with bid specifications contained in the Invitation for Bid. The Respondent determined the bid of the Petitioner was not in compliance with bid specifications as follows: The system bid by the Petitioner did not have cassette tape recorder interface for programming as required by bid specifications. The system bid by the Petitioner did not have the capacity of keeping an inventory of 700 bulk items as required by bid specifications. The system bid by the Petitioner did not have a communication board for interface with a personal computer as required by bid specifications. The Petitioner did not provide literature to document that the system bid by the Petitioner met or exceeded the brand name system designated in the bid specifications. The system bid by the Petitioner did not have a cassette tape recorder interface for programming as required by bid specification number 18, set forth on page 6 of the Respondent's invitation to bid. The equivalent, as argued by the Petitioner, is a portable "transpack" which can be plugged into machines to accomplish virtually the same purpose. Petitioner did not include the "transpack" in the price quoted in his bid. It would have to be purchased separately. The Petitioner's bid was nonresponsive as to this specification. The Petitioner initially testified that the machine bid by him could not manage more than 512 bulk inventory items. On further examination, he alleged his machine would handle over the 700 inventory items required by bid specification number 24, on page 7 of Petitioner's invitation to bid. The additional inventory would result from an upgrade to the machine. The Petitioner's bid is not responsive to this bid specification. Petitioner's machine as bid does have the ability for communication with a personal computer through a communications wire or telephone modem. Petitioner's bid included a software (floppy disk) program for computer assimilation of data from the electronic cash register. Petitioner's bid was responsive to this specification set forth in item 1b on page 11 of the invitation to bid. The Respondent's bid specified an electronic cash register known as National Semiconductor Model 2170 or acceptable equivalent. Paragraph number 6 on the first page of the bid specification package emphasizes that use of such a brand name is simply for the purpose of establishing a grade or quality. Under requirements of special condition K on page 4 of the bid package, a bidder submitting a different brand name must also submit information, including the manufacturer's latest literature on the machine being offered, as may be necessary to verify that the bid item meets or exceeds the requirements of the brand name machine set forth in the bid package. The submission of such additional information must be made within three days of notification by the Respondent. Since the Petitioner had bid a machine of a different brand than that set forth in the bid package and was also the low bidder, Respondent requested and timely received additional information from the Petitioner which was to have verified the specifications of the Petitioner's machine. Notably, the electronic cash register bid by the Petitioner and demonstrated for the Respondent during the process of bid evaluation was a machine produced by Sharp Electronics Corporation and designated on page 11 of Petitioner's bid as model number 4230M-ES. The Petitioner provided Respondent with additional information in the form of a glossy brochure detailing the advantages of a machine made by the same corporation and designated in the brochure as model ER-4230F. Petitioner also included literature on a circuit module with a model designation of 4050. A cover letter with these two publications from the Petitioner pointed out that the model number in the bid package was a typographical error and should be corrected to read 4230F-ES. The assertion of Petitioner in this letter and reaffirmed in testimony at hearing is not supported by the evidence which establishes Petitioner did indeed bid the model 4230M-ES and did subsequently demonstrate that machine to Respondent. It is further established that the 4230M-ES does not possess a flat liquid resistant keyboard as required in specification number 1 on page 6 of the bid package. Petitioner's bid was nonresponsive in its failure to comply with the requirement of special condition K.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter a final order finding the bid of the Petitioner to be unresponsive. DONE AND RECOMMENDED this 25th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. Respondent Included in finding number 3. Included in finding number 4. Included in finding number 4. Included in finding number 4. Included in findings numbered 4, 5, 6, 8, and 9. Included in findings numbered 4, 5, 6, 8, and 9. Rejected as unnecessary. Rejected as unnecessary. Petitioner The Petitioner submitted a post hearing document which is divided into three sections. The second section entitled "Statement of Petitioner's Position" is presumed to be proposed findings. The proposed findings, designated by letters A through D, have been renumbered as paragraphs 1 through 4 and are treated as follows: Not supported by the evidence. Not supported by the evidence. Adopted in part in finding number 7. Not supported by the evidence. COPIES FURNISHED: Thomas J. Mills Superintendent of Schools 3323 Belvedere Road P.O. Box 24690 West Palm Beach, FL 33416-4690 Ellis I. DeGroff DeGroff Business Machines, Inc. 2745 U.S. #1 Riviera Beach, FL 33404 Vladimir R. Martinez, Esq. 3323 Belvedere Road Building 503, Room 232 West Palm Beach, FL 33416-4690
The Issue Whether respondent should award the contract for the reroofing of Rickards High School, Project No. LCS-33016, to petitioner or reject petitioner's bid as unresponsive because it was not accompanied by a specimen copy of a manufacturer's roofing system guarantee?
Findings Of Fact By advertisement to bid prepared after February 8, 1991, and before March 21, 1991, the School Board advised prospective bidders where they could find drawings and specifications for reroofing James S. Rickards High School, Project No. LCS-33016. Petitioner's Exhibit No. 5. The advertisement to bid announced the bid deadline and stated that the School Board reserves the right to waive irregularities and/or information in any Bid and to reject any or all Bids in whole or part, with or without cause, and/or accept the Bid that in its judgment will be for the best interest of the School Board. Petitioner's Exhibit No. 5. The invitation to bid, Section B, 7., also addressed rejection of bids, stating: The Bidder acknowledges the right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding document, or if the bid is in any way incomplete or irregular; to reject the bid of a bidder who is not in a position to perform the contract; and to readvertise for other or further bid proposals. The Owner reserves the right to reject any or all bids when such rejection is in the interest of the Owner, and to reject the Bid of a Bidder who is not in a position to perform the Contract, or whose List of Subcontractors is improperly prepared, or not included in the Bid proposal. Failure to complete the Form PUR 7068 Sworn Statement under Section 287.133(3)(a), Florida Statutes on Public Entity Crimes and submit it with your bid or proposal will result in immediate disqualification of your bid or proposal. Petitioner's Exhibit No. 7. Only the failure to submit a completed Form PUR 7068 was identified as grounds for automatic rejection of a bid. The invitation to bid specified three different types of shingles that would meet the School Board's requirements. All three (including GAF 75) are of a premium grade, and guaranteed by their manufacturers for 20 years. The invitation to bid, Section Q, 4., entitled "Guarantees and Warranty," states: 4.01 Upon completion of the work, and before final payment, contractor shall furnish owner an unlimited ROOFING SYSTEM GUARANTEE with flashing endorsement covering all workmanship and materials issued by the roofing materials manufacturer for a period of 20 years from date of substantial completion. Petitioner's Exhibit No. 7. Earlier on, the invitation to bid, Section B, 3.05, states: (d) Contractor shall submit with his bid, proposal or quotation a specimen copy of the ROOFING SYSTEM GUARANTEE with flashing endorsement applicable to the project. Petitioner's Exhibit No. 7. According to Paul Byrd, respondent's Director of Construction, the purpose of requiring a specimen copy beforehand is twofold: the primary reason is to permit the evaluation of exclusion clauses, and, of less significance, he said, a specimen warranty shows that the bidder has a relationship with a manufacturer of roofing materials. Eight roofing contractors bid on the job, including Register Contracting Co., Inc. (Register). Petitioner Southeast's bid was low at $644,400, and Register was second low at $655,000. Petitioner's Exhibit No. 3. Southeast was the only one of the eight bidders who did not include a specimen copy of a manufacturer's roofing system guarantee with its bid. Register submitted two such specimens, one from Manville Products Corporation and one from GAF Building Materials Corporation (numbered 10446 9/88.) The LCS-33016 bid form proposal executed by Southeast and Register alike recites that the bidder has "examined carefully the . . . specifications . . . and if awarded the contract . . . will contract . . . to furnish all necessary . . . materials." Petitioner's Exhibits Nos. 1 and 2. The successful bidder may elect to use GAF 75, the Johns-Manville, or a third shingle specified in the invitation to bid. Well after the deadline for submitting bids, petitioner furnished the School Board a specimen copy of GAF Building Materials Corporation's guarantee, Petitioner's Exhibit No. 4, another form 10446 9/88 with wording identical to the copy Register submitted on time. Warranties differ depending on the grade of shingle, but this is the manufacturer's current form for all GAF 75 shingles. The form has blanks for "TYPE OF GUARANTEE," "PERIOD OF COVERAGE," "TYPE OF FLASHING," "AREA OF ROOF" and the like, none of which either Register or Southeast filled in. Form 10446 9/88 sets out exclusions from coverage and states that the guarantee "becomes effective only when bills for installation and supplies have been paid in full to the roofing contractor and materials suppliers, and the Guarantee charge has been paid to GAF. . . . [and] upon the satisfactory completion of the roof and GAF's execution of the Guarantee." Petitioner's Exhibit Nos. 2 and 4. The form also states, "The roofing contractor is NOT an agent of GAF." Id. (Emphasis is in original.) Mr. Byrd testified at hearing that the exclusion clauses in Form 10446 9/88 might be consistent with the unlimited guarantee required by the invitation to bid, Section Q, 4.01, but that he had not determined that they were consistent. On the other hand, he also testified that Register's bid is responsive and that, if Register is awarded the contract, Register will be free to use GAF 75 shingles, upon approval of submittals.
Recommendation It is, accordingly, RECOMMENDED: That respondent award petitioner the contract to reroof James S. Rickards High School, Project No. LCS-33016. DONE and ENTERED this 23rd day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 23rd day of May, 1991. COPIES FURNISHED: Fred C. Isaac, Esquire Lewis, Paul & Isaac, P.A. 2468 Atlantic Blvd. Jacksonville, FL 32207 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, FL 32302 Mr. Bill Woolley, Superintendent Leon County School Board 2757 W. Pensacola Street Tallahassee, FL 32304
