Findings Of Fact On March 15, 1988, the Department of Agriculture and Consumer Services issued an Invitation to Bid (ITB) number DOF-ADM-48. The Invitation to Bid's purpose was to secure a contractor to service and install water filters on private drinking water wells located in eight counties within the State of Florida. The filters were required to be installed by the Department for the removal of ethylene dibromide (EDB) from contaminated drinking water obtained from private wells. EDB is a constituent of pesticides and is a suspected carcinogen. The filter systems operate by running the water through a tank containing a pleated paper filter similar to a coffee filter. The pleated paper filter contains granular activated carbon (GAC). The GAC absorbs impurities such as EDB. The water is also passed through a sterilizer unit. The sterilizer unit disinfects the water by bombarding it with ultraviolet light. For instances of heavy pollution the water may be filtered through a double tank system or require pretreatment with another media filter in order to remove more concentrated impurities from the water. The Department sent its ITB to a number of vendors. The ITB invited the submittal of bids and set a bid ending date of April 27, 1989. The bid included the standard State of Florida Invitation to Bid Bidder Acknowledgment form, number PUR 7028, also referred to as a "yellow sheet." The acknowledgment form provides spaces for the vendor to list identify information and to sign the bid. It also sets forth, general conditions applicable to the bidding process. Among the General Conditions contained on the yellow sheet is General Condition 4(d) which states:,, It is understood and agreed that any item offered or shipped as a result of this bid shall be a new, current standard production model available at she time of the bid. ... Further, General Condition 7 provides: Any Manufacturers' names, trade names brand names, information and or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative which meets or exceeds the specifications for any items(s). If bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. ... The ITB also contained a number of terms, specifications and special conditions geared towards the specific purpose of the contract. These included the following Additional Bid Conditions: PROOF OF EQUIVALENCY: Vendor shall provide written, documented proof of equivalency for their equipment where it differs from the named brands and equipment specified in the bid specifications. EQUIPMENT, COMPONENTS, SPECIFICA- TIONS AND DOCUMENTATION: Vendor shall provide full documentation and specifications on all equipment and components to be used in providing the GAC filter systems and maintenance as specified in the bid. In this case, proof of equivalency of equipment is important to maintain the integrity of the water filter systems, and to insure cost-effectiveness in servicing the system. The bid specification also contained civic requirements for the GAC. The GAC specifications governed such items as moisture content, particle size and distribution absorptive capacity. Absorptive capacity was measured by an iodine number. An "iodine number" reflects the milligrams of iodine absorbed per gram of carbon. The higher thin iodine number, the more absorptive the carbon. In this case, the GAC requirements ware as follows: Granular activated carbon, with thee exception of the standards below, shall comply with the "American Water Works Association Standard for Granular Activated Carbon" (AWWAC B604-54). The GAC standards are as follows: Impurities - No soluble compounds should be present that are capable of causing adverse effects on the health of the consumer. Moisture - Shall not exceed two (2) percent by weight of listed container contents. Apparent Density - Shall be 28.5 - 31.0 pounds/cubic foot. Particle size distribution - should range between U.S. standard sieve size NO. 8 and NO. 30. A maximum of 15% of the particles can exceed 8 in size and a maximum of 4% can, be less than NO. 30 in size. Abrasion Resistance - Retention of average particle size shall not be less than 75 percent as determined by either the stirring abrasion or the RO-Tap abrasion test. Adsorptive Capacity - The "iodine number shall not be less than 950 or equivalent adsorptive capacity. The GAC must be packed and rinsed at the successful vendor's facilities not at the well site. Virgin GAC must be stored in facilities that will protect it from weather and vandalism. The Department had used a GAC manufactured by Ceca Division of Atochem, Inc. The carbon was known as Cecacarbon GAC 30WE. GAC 30WE had consistently met the Department's requirements. Atochem labelled or named the carbon, "GAC 30WE," because it met certain product quality standards and in order to differentiate the carbon from other types of GACs it manufactures, such as GAC 830WE. GAC 830WE is the same size carbon particle as GAC 30WE, but it has a lower adsorptive capacity, i.e., iodine, than 30WE. About two years prior to this bid, Atochem quit intentionally manufacturing she carbon it labelled Cecacarbon GAC 30WE. At that time the current contractor, Continental, unilaterally, and without informing the Department, substituted another GAC for Cecacarbon GAC 30WE. The Department therefore has been using a GAC of unknown manufacture for the past two years without complaint. Section II of the ITB indicated that the UVL disinfectant light source "must be an Aquafine Model NO. DW-400 or its equivalent." It further stated that the water flow meter required as apart of the filter system must be "a badger Model 15 The ITB required that specifications for the individual equipment components "MUST BE PROVIDED WITH YOUR BID OR THE BID WILL BE DECLARED INCOMPLETE AND INELIGIBLE FOR CONSIDERATION." Section III of the ITB, concerning the "Type II" systems (those consisting of two filter tanks), contained the same provisions as to UVL sterilizer units, water meters and component specifications as Section II. The Aquafine DW-400 was the UVL system currently being used by the Department's contractor. The ITB also contained a pricing sheen for vendors to list unit prices on 20 different components of the filter system. By multiplying the unit price by the Department's estimate of the respective numbers needed of each limited component, a total bid price was arrived at by the bidder. On April 17, 1989, the Department issued the first addendum to the ITB. Addendum number 1 changed the estimated number of pleated paper filters on the pricing sheet from 6500 to 10,200. A new bid opening date of May 23, 1989 was bet. On May 23 1989, the Department issued the second addendum to the ITB. In addition to establishing a new bid opening date of June 21, 1989, the second addendum made several substantive changes. It required bidders to submit with their bid an EDB isotherm for the GAC medium being bid by each bidder. An isotherm is a graph showing the adsorptive capability of the GAC. Since the Department would have no knowledge of the performance capabilities of a previously unused carbon, the EDB isotherm was "critical" where the carbon proposed for use had not been used on a Department contract before. For a known GAC, i.e. one the Department had used before, the isotherm was not material. The second addendum also changed the "designated model number for the water meter from the Badger Model 15 or equivalent to the Badger Model 25L or equivalent. The water meter model number was changed because the Badger model 15 was no longer being produced. Additionally, the model number of the freeze housing was changed from the "AMTEK big blue filter" to the "AMTEK NO. 20 or equivalent." The freeze housing was made an optional component of the bid. The third addendum, dated June 13, 1989, reinstated the freeze housing as a required component of the budget but provided that the housing could be of either fiberglass or aluminum construction. It also clarified the testing required to justify installation of a media filter on a system, and clarified that upgrades of systems from Type I to Type II. A new bid opening date of June 28, 1989 was set. Due to the entry of a temporary restraining order by a circuit court judge, the June 28, 1989, bid opening did not transpire. When the restraining order was later lifted, the Department issued Addendum IV, which set a bid opening date of September 28, 1989, and which gave bidders who had submitted bid prior to the June entry of the restraining order the opportunity to submit a new bid. Petitioner, Continental Water Systems, Inc., (Continental) a Florida corporation, timely submitted a bid of $895,877.50 to the Department in response to the Department's Invitation to Bid. Intervenor, Global Marketing, Inc., a North Carolina corporation, doing business in the State of Florida, timely submitted a bid of $784,431.50 to the Department in response to the Department's Invitation to Bid Number DOF-ADN- 48. Petitioner and Intervenor were the only two bids submitted. The Department made a preliminary determination that both bids were responsive, and posted its bid tabulation on October 30, 1989. Global was the apparent low bidder and was awarded the contract by the Department. In its bid, Global indicated that it would use the Aquafine DW-400 UVL sterilizer unit and the Badger Model 15 water meter. It also indicated that it would use Cecarbon GAC 30WE. Global did not include an EDB isotherm with its bid. Continental's bid included specifications for both the Aquafine DW-400 and a UVL system manufactured by "Ultra Dynamics Corporation known as Model Number DW-15. For the GAC, Continental bid Alamo ABG-CWF a GAC medium manufactured by Calgon as Filtrasorb 300 GAC. The bid contained an EDB isotherm for the GAC product. It also included specification sheets showing its intent to use a Badger Model 25L water meter. Unknown to the Department, the Aquafine Corporation no longer produces the DW-400 UVL sterilizer unit as a standard production model. It ceased production of this model in June or July of 1989. It has enough materials on hand to produce another 45 to 50 units. Aquafine is under contract to sell those units to Continental. If requested to produce more DW-400's, Aquafine might again manufacture the DW-400. However, Aquafine would not begin such production unless ban order for at least 1000 units was made. At present, Aquafine manufactures only one model for drinking water systems. The model is the DW-8. No specifications were included in Global's bid for the DW-8 or any other potentially equivalent sterilizer unit from another manufacturer. In this case, the bid specifications clearly list the DW-400 as an acceptable submission. The evidence did not show that the DW-400 was no longer available, even though the model was no longer being produced. There is no newer prototype of the DW-400. A contract, which an ITB constitutes the offer portion of, must be interpreted to give effect to all of its language and clauses. Therefore, the specific reference to the DW-400 as an acceptable submission must be given effect as an exception to the general requirement that "any item offered or shipped . . . be a new, current, standard production model . . . Since Continental did not challenge the bid specifications in regard to the UVL system, the complaint of non-responsiveness. . . cannot be heard now. Global therefore was responsive to the Department's ITB on the UVL component of its bid. When the Department learned that the Badger Model 15 water meter was no longer being manufactured it decided to change its specifications due to the change in production. The specifications were changed from the "Badger Model 15 or equivalent" to the "Badger Model 25 or equivalent." Global's bid did not list the Badger Model 25, but listed she Badger Model 15. However, Continental did not preserve the issue regarding the responsiveness of Global's bid on the water meter in its Formal Written Protest. Therefore, no findings are made regarding the responsiveness of Global's bid on the water meter component. The heart of the whole filter system is the GAC. The carbon proposed to be used by Global, Cecarbon GAC 30 WE, is no longer produced by the manufacturer. It has not been in production since 1987. Global and the Department did Introduce into evidence a faxed copy of a letter from an Atochem sales representative indicating that an amount of GAC 830 carbon would be available "until the end of 1989" to meet the Department's bid specifications. However, GAC 830 is not the same product as that bid by Global and does not have the same manufacturing standards as the GAC 30WE bid by Global. Neither does Atochem now intentionally produce a carbon that meets the specifications for DOF-ADM-48. Specifically, Atochem does not produce a carbon with an 8 x 30 mesh size that has a minimum iodine number of 950. The 8 x 30 mesh size carbon that Atochem produces, GAC 30, has an iodine number of 900 to 920. Due to variation in the capabilities of different lots of GAC 830, some lots may have a 950 iodine number. The evidence did not show whether the company tests its GAC 830 beyond its manufacturing standards. Nor did the evidence show whether a higher adsorpting GAC 830 lot is available. A letter from a sales representative that such a lot is available does not rise to the level of competent evidence which would support the conclusion that Global had materially meet the Department's ITB on the GAC element. At a minimum the Department or Intervenor would have had to bring the Company's documentation, including an isotherm, for that particular GAC lot to demonstrate responsiveness for a product labelled with a name which carries a lower adsorptive standard. The only carbon manufactured by Atochem which has a minimum iodine number exceeding 950 is a different size carbon. This carbon has a mesh size of 12 x 40, and thus does not meet the DOF-ADN-48 specifications. Both the Aquafine sterilizer unit and the Ultra Dynamics units, bid by Continental, meet the specifications for this ITB. The GAC bid by Continental meets the specifications for this ITB. This particular carbon has also been accepted by the Department for use by continental on a previous Department contract in January 1988, where the specifications for the carbon were identical to those applicable here. Continental did submit an EDB isotherm. Global's bid was not responsive to the ITB. It offered a carbon element which is no longer in production. It will have to substitute another GAC not identified in its bid in order to perform under the contract. Global provided no technical literature with its bid to establish the equivalency of any other GAC. Additionally Global did not provide an EDB isotherm for the carbon it planned on using from Atochem. These omissions were material. Global's bid therefore cannot be said to be responsive to the Department's ITB.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department enter a final order awarding the bid to Petitioner as the lowest and best bid. DONE and ENTERED this 17th day of April, 1990, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 17th day of April, 1990. APPENDIX TO CASE NUMBER 89-6372BID The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraph 27 of Petitioner's proposed Findings of Fact are adopted except for the parts pertaining to the UVL systems unresponsiveness. The facts contained in paragraphs 28 and 29 to Petitioner's Proposed Findings of Fact are irrelevant. The facts contained in paragraphs 1, 2, 3 and 5 of Intervenor's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 8 and 9 of Intervenor's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 6 and 7 of Intervenor's Proposed Findings of Fact were not shown by the evidence. COPIES FURNISHED: M. Christopher Bryant, Esquire Oertel, Hoffman, Fernandez, and Cole, P.A. 2700 Blair Stone Road Post Office Box 6507 Tallahassee, Florida 32314-6507 Clinton Coulter, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 James C. Barth, Esquire Callahan, Barth & Dobbins 5374 Highway 98 East, Suite C-1 Destin, Florida 32541 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Mallory Horne General Counsel 515 Mayo Building Tallahassee, Florida 32399-0800 =================================================================
The Issue Whether Respondent properly rejected Petitioner's bid on the grounds that the bid did not meet a fatal item requirement.
Findings Of Fact On April 24, 1992, Respondent published a Request for Proposals (RFP) for the provision of housekeeping services to South Florida State Hospital. Attached to the RFP as Appendix I was a blank copy of Respondent's "Standard Contract" which is also referred to as its "core model contract". Paragraph 1.a. of Section D of the RFP contains the following instructions to bidders: BIDDER RESPONSE a. State of Florida Request for Proposal Contractual Services Acknowledgment Form, Pur 7033 The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, Appendix II must be signed and returned ... with the proposal or submitted by itself if you choose not to submit a proposal and wish to remain on the department's active vendor list. Paragraph 1.g. of Section D of the RFP, contains the following instructions to bidders: Required Bidders Certification Contract Terms and Conditions The proposal must include a signed statement in response to the RFP indicating acceptance of the terms and conditions of provisions of service as specified in the RFP and contained in the core model contract. Bidders were provided a copy of the RFP rating sheet which contained the following under the heading of Fatal Items: The following criteria must be met in order for the proposal to be considered for evaluation, failure to receive a "Yes" response for any time [item] will result in automatic rejection of the proposal. * * * Does the proposal include a statement agreeing to terms and conditions set forth in the core model contract and the RFP? Petitioner was represented at a "Bidders' Conference" held May 15, 1992, at which the fatal items were discussed. Bidders were advised that it would be necessary for the responses to contain a statement agreeing to the terms and conditions set forth in the core model contract. The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, contains the following certification: I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency for the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, assign or transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, was signed by Richard A. Cosby on behalf of Petitioner and submitted as part of Petitioner's response to the RFP. Upon receipt of all responses, Respondent convened an evaluation committee to evaluate the responses. The evaluation committee determined that the response submitted by Petitioner did not contain the required statement agreeing to the terms and conditions set forth in the core model contract and the RFP. Consequently, the evaluation committee rejected Petitioner's proposal from further consideration. Petitioner does not challenge the specifications of the RFP, but, instead, asserts that Mr. Cosby's execution of the State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, was sufficient to meet the requirement the evaluation committee found lacking. The language of the Contractual Services Acknowledgment Form, PUR 7033, that most closely approximates the certification that the bidder accepts the terms and conditions set forth in the core model contract and of the RFP is as follows: I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. The proposal submitted by Petitioner did not contain any other statement which could be construed as accepting the terms and conditions set forth in the core model contract and the RFP. The broad language of the Contractual Services Acknowledgment Form, PUR 7033, upon which Petitioner relies does not state that the bidder accepts the terms and conditions set forth in the core model contract and the RFP. The evaluation committee properly determined that Petitioner's response failed to meet this fatal item. In this proceeding, there was evidence that the Respondent routinely inserts in its Request for Proposals the fatal item requirement that the bidders agree in writing to accept the terms and conditions set forth in the core model contract and the RFP, and that Respondent has never waived that fatal item requirement. There was no evidence that Respondent was using this fatal item requirement to discriminate against or in favor of any bidder.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is hereby RECOMMENDED that the Respondent dismiss Petitioner's bid protest. DONE AND ENTERED this 18th day of August, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of August, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4311BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. 1. The proposed findings of fact submitted by Petitioner are accepted in material part by the Recommended Order. Petitioner's conclusions based on those facts are rejected for the reasons discussed in the Recommended Order. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Richard A. Cosby, Vice President National Cleaning of Florida, Inc. 1101 Holland Drive, #32 Boca Raton, Florida 33487 Colleen A. Donahue, Esquire District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact In July 1988, the Department of Health and Rehabilitative Services issued an Invitation to Bid (ITB) seeking proposals to lease approximately 26,000 square feet of space for offices and client services in Ft. Walton Beach, Florida. The ITB was the second issued, following the Department's determination that the first ITB did not result in an acceptable bid. Page 15 of the 16 page bid submittal form is entitled "Evaluation Criteria" and contains a list of weighted factors which are to be used in the evaluation of bids. In the second ITB, paragraph 3(b) of the criteria stated, "[P]rovisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied) At approximately the same time as the Department's issuance of the second ITB, several meetings occurred related to concerns generated by the response to the first ITB. One meeting took place between Nelson P. Davis (the unsuccessful bidder in ITB #1) and Department representatives, including James Peters, HRS's District One Manager for Administrative Services. Davis currently leases to the Department, two adjacent buildings sited at 417 Racetrack Road, Ft. Walton Beach which comprise approximately 4,000 square feet less than the Department is now seeking. Davis' bid in response to the first ITB included utilization of a third building to meet the Department's space needs. 1/ During the meeting which included Peters, Davis, and others, it became apparent that there was confusion over the meaning of the word "location" in paragraph 3(b) of the evaluation criteria. Peters understood the word to mean "building" while Davis understood the word to mean an area which could be the site of more than one building. Following the Davis-Peters meeting, other meetings occurred at which Department officials considered the issue. While some representatives of the Department believed that the word "location" was synonymous with "building," others believed the use of "location" to be ambiguous. To clarify the Department's preference related to number of buildings, an amended page 15 of the bid submittal form was issued on July 2, 1988. The amended form, entitled "Evaluation Criteria" states in paragraph 3(b), "[P]rovisions of the aggregate square footage in a single building... Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two buildings provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied.) The amendment was issued at the direction of James Peters and was approved by Charlene Schembera, the District I Administrator. The amendment to page 15, paragraph 3(b), is a reasonable effort by the Department to clarify their intent in previous use of the word "location." The assertion by Davis that the change was made at the instigation of James Peters in order to prohibit Davis from successfully submitting a responsive bid of three buildings is not supported by the evidence. While James Peters has expressed on at least one occasion a desire to avoid entering into further business arrangements with Davis, he has stated that his personal opinion would not influence his participation in the bid solicitation process. The evidence did not indicate that his participation in the decision to issue an amended paragraph 3(b) of the evaluation criteria was based on his negative personal opinion regarding Davis, nor did the evidence indicate that any other person involved in the process had negative opinions about Davis. Further, although some Department officials testified that a bid which contained more than two buildings would be deemed non-responsive and disqualified from consideration by operation of the amended paragraph 3(b), such a position probably is not tenable, but is not at issue in this proceeding in that the Department has not yet acted on bids submitted in response to the second ITB. The Department has valid reasons for attempting to concentrate its personnel and client services in a single building, or in as few buildings as is possible, 2/ however the Invitation to Bid does not restrict bidders in such a manner. The sole expression of the preference for a single building, or for not more than two buildings, is expressed in paragraph 3(b) of the evaluation criteria on page 15. The amendment to page 15 of the bid submittal form does not appear to bar the submission by Davis or by any other bidder of a responsive proposal containing more than two buildings. Page 15 is clearly entitled "Evaluation Criteria." The criteria are nine weighted "award factors" upon which "all bids will be evaluated." Paragraph 3(b), as one factor for consideration in the evaluation process, expresses a preference for a single building containing the required aggregate square footage. The paragraph further advises that proposals will be considered but fewer points awarded for proposals containing not more than two buildings closely located. The weighting factor for paragraph 3(b) of the evaluation criteria is five percent of total possible points. The clear indication of the amended paragraph is that proposals which contain more than two buildings will receive no points under 3(b). The Department's position would disqualify as non-responsive a bid of three buildings based solely on an evaluation factor worth five percent of the total available points. On the other hand, a bid containing two buildings, separated by not more than 100 yards, would apparently be responsive and would be evaluated, even if the two buildings were divided by a major highway or other substantial obstacle. The Department's proposed position is not logical, but is not raised herein since it has not yet been applied in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order dismissing Case No. 88-4392BID. DONE and ENTERED this 12th day of October, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1988.
Findings Of Fact On or about February 9, 1983, the State of Florida, Department of General Services, Division of Construction and Property Management, Bureau of Property Management ("DGS"), received a certification of need from the Department of Corrections ("DOC") requesting authority for DOC to advertise for competitive bids from private persons interested in providing leased office space needed to house DOC's Bureau of Industries. The Bureau of Industries was then located in leased space with leases which were scheduled to expire June 30, 1983. The Bureau of Industries has been located in DOC's central office area since its creation in 1957. The DOC central office includes the Secretary and Deputy Secretary; the Assistant Secretaries for Operations, Programs, Management, and Budget. All these officials, together with subsidiary bureaus, staff, and other subordinates are located in two adjacent buildings of the Winewood Office Complex on Blair Stone Road in Tallahassee. The prison industry program is under the supervision of the industries administrator who reports directly to the Assistant Secretary for Operations. DOC sought approval from DGS to enter into a lease for privately owned office space because of its perceived need to locate within walking distance of its central office. Programs administered by the Bureau of Industries work closely with other DOC personnel and functions located in the central office in the Winewood Office Complex. Moving any distance from the central office would create problems for the DOC mailing system and would require extra time spent traveling to and from the central office. Personnel in the Bureau of Industries utilize central office files, and confer often with staff located in the central office. Locating outside the general area of the central office would require additional expenses with regard to availability of vehicles, pick up of mail and supplies, and duplication of support services. Accordingly, DGS and DOC determined, and the record in this cause establishes, that it would not be in the state's best interest to require DOC to locate its Bureau of Industries program either in state-owned buildings in the Capitol Center, or in any area beyond walking distance of the central office location. On March 21 and 31, 1983, respectively, DOC published an advertisement in the Tallahassee Democrat inviting all interested persons to submit sealed bids at or before 2:00 p.m. on April 19, 1983, in accordance with the Invitation to Bid and Specifications prepared by DOC for the office space needed to house the Bureau of Industries. A portion of the bid specifications required that office space to be leased be located within a circle drawn on a city map of the City of Tallahassee, Florida, which could roughly be described as the southeastern portion of the city, in the vicinity of the Winewood Office Complex. There were four possible bidders in the area within the circle on the map attached to the bid specifications. Of these four possible bidders, two within the area actually submitted bids--Blairstone Center Partners and Washington Square, Ltd. One of the general provisions of the bid specifications provided as follows: The Department of Corrections reserves the right to reject any and all bids, waive any minor informality or technicality in bids received and to accept that bid deemed to be the lowest and best. . . At or before 11:00 a.m. on April 19, 1983, DOC received sealed bids from Petitioner and Intervenors in response to the aforesaid advertisement, and at 11:00 a.m. on April 19, 1983, DOC opened, tabulated, and published each of the bids. The bid submitted by Petitioner was not responsive to the requirements of the Invitation to Bid and Specifications because the property offered by Petitioner in its response was outside the area indicated on the map annexed to the Invitation to Bid. The bid submitted by Intervenor, Blairstone Center Partners, failed to offer the full services specified in paragraph six of DOC's Bid Submittal Form; failed to offer the exclusive parking specified in the paragraph seven of the Bid Submittal Form; failed to supply the photographs specified in paragraph ten of Respondent's Bid Submittal Form; and failed to supply the information specified in paragraphs one through eight of the Bid Submittal Form. Accordingly, the record in this cause fully establishes that the bids submitted by Petitioner and by Intervenors Blairstone Center Partners, failed to comply with the requirements of the Invitation to Bid and Bid Submittal Form, and that the deficiencies in the bids of Petitioner and Intervenor, Blairstone Center Partners, were so material as to require their rejection. The Invitation to Bid and Bid Submittal Form required that bidders offer for lease 2,683 square feet, plus or minus three percent. The bid submitted by Intervenor, Washington Square, Ltd., offered 2,797 square feet, which is approximately 34 square feet more than allowed in the Invitation to Bid. After this fact was discovered upon opening the bid, DOC personnel contacted a representative of Washington Square, Ltd., and advised the net square footage offered in the bid submitted by Washington Square, Ltd., exceeded the net square footage of space that DOC was authorized to lease and pay for under the Invitation to Bid. Washington Square, Ltd., subsequently agreed to modify its proposal by relieving DOC from any obligation to pay for the extra 34 square feet, and reducing the annual rental for the first year from $26,012.10 to $25,695.90, and for the second year from $27,576.60 to $27,243.18. The record in this cause does not establish any misconduct or collusion between Washington Square, Ltd., and DOC personnel obtaining this modification, nor does the record in this cause establish that any actual or prospective bidders suffered any competitive disadvantage as a result of this modification. The effect of Washington Square, Ltd.'s modification of its proposal rendered that proposal the only bid which was responsive to the Invitation to Bid. On August 18, 1983, Washington Square, Ltd., executed a deed to the property which was the subject matter of its bid to Ben Grace. Washington Square also executed an assignment of the proposed bid award to Grace.
The Issue Whether the Department of General Services should award state contracts for "walk-up convenience copiers" to Xerox Corporation in categories where Xerox was the only responsive bidder, or should reject Xerox's bid and solicit new bids on grounds that competitive bids were not received and there is no basis or excepting the award from competitive bid requirements; Whether the Department should disqualify Xerox's bid in one category for alleged material deviation from bid specifications where Xerox failed to initial a change in its bid price.
Recommendation Based on the foregoing, it is RECOMMENDED: That DGS reject Xerox's single responsive bids and readvertise; and That Xerox's bid for category Group-I, Type 3, Class 12, monthly rental acquisition plan, be rejected as nonconforming. DONE and ENTERED this 11th day of July, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of July, 1984.
Findings Of Fact On February 28, 1990, Respondent issued an invitation to bid (ITB) on a construction project referred to as Florida Atlantic University Modulars. The ITB required a base bid and bids on five alternates to the base project. Each bidder was instructed that it must bid on the base project and on each alternate for its bid proposal to be considered responsive. On March 19, 1990, Addendum 1 to the ITB was issued to all prospective bidders. This was an informational addendum and advised the date, time, and location of the posting of the award recommendation. Addendum 1 was not required to be returned by the bidder as a part of the response to the ITB. On March 21, 1990, Addendum 2 to the ITB was issued to all prospective bidders. This was also an informational addendum and advised as to a non- mandatory, pre-bid conference to be held March 27, 1990. Addendum 2 was not required to be returned by the bidder as a part of the response to the ITB. On March 30, 1990, Addendum 3 to the ITB was issued to all prospective bidders. This addendum advised that the date and time for the bid opening had been changed to April 9, 1990, at 2:00 p.m. Addendum 3 also contained modifications, explanations and corrections to the original drawings and specifications which impacted the cost and scope of the project. Immediately above the signature line on the cover page of Addendum 3 was the following: This document must be returned in it's [sic] entirety with the bid. Please sign below to verify that you have read and understand all the changes. Item 2 on page ADD-1 of Addendum 3 required each bidder to submit its per unit price structure with its response to the ITB and provided, in pertinent part, as follows: ... The unit price shall not be included in Base Bid. Submit a separate sheet with bid package. The following instructions are given in Paragraph 1(c) of the Instructions to Bidder: NO ERASURES ARE PERMITTED. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids or corrections not initialed will not be tabulated. The instructions are repeated in Paragraph 1 of the General Conditions of the ITB: EXECUTION OF BID: ... No erasures are permitted. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids, or corrections not initialed will not be tabulated. The following is contained as part of the Instructions to Bidder: Failure to complete, sign, seal and return the required documents will result in rejection of your bid. Any questions should be directed to Susan Kuzenka, (305) 761-7460, Purchasing Department, Broward Community College. (Emphasis in the original.) Paragraph 8 of the General Conditions portion of the bid package provided, in pertinent part, as follows: 8. AWARDS. As the best interest of Broward Community College may require, the right is reserved to reject any and all bids and to waive any irregularity in bids received ... On April 9, 1990, Petitioner submitted a bid to Respondent in response to the ITB. Petitioner had received the complete bid package, including all instructions and addenda to the bid package. At the pre-bid conference held March 27, 1990, an employee of Respondent emphasized to the attendees that it was necessary for the bidders to return Addendum 3 in its entirety. Petitioner did not attend the non-mandatory, pre-bid conference. The base bid submitted by Petitioner was $1,085,790.00. The base bid of Double E Construction Co., the next low bidder and the bidder to whom Respondent intends to award the contract, was $1,113,300.00. Petitioner's bid for each of the alternates was lower than that of Double E Construction Co. Petitioner failed to return the entire Addendum 3 as instructed. On page four of the bid package Petitioner acknowledged that it had received Addendum 3, and it signed and returned the cover sheet to Addendum 3 under the language quoted in the foregoing Paragraph 4. Respondent considered this an important requirement because it wanted to prevent a bidder from later claiming that it had not received Addendum 3 or that it had received information different than that contained in Addendum 3. Petitioner made a correction to its bid for Alternate Number 3 found on page 5 of 13 of Petitioner's bid. Petitioner's bid for this alternate was $88,000. In the space for the written amount of the bid, Petitioner's president inserted by hand the words "Eighty-eight Thousand". In the space for the numerical insertion of the bid he initially wrote the sum $125,000 (which was the amount of Petitioner's bid for Alternate 4). He struck through the figure $125,000 and wrote above the stricken figure the figure $88,000. He did not initial his change. Respondent has never accepted changes to price quotations which were not initialed because it is concerned that uninitialed corrections on bids may result in challenges to the integrity of the bid process and may expose its staff to charges of collusion from a disgruntled bidder. Pioneer did not include a unit price structure in its bid as required by Addendum 3. The unit price structure is an informational item that is not separately considered by Respondent to determine the lowest bidder on this project. On April 6, 1990, Petitioner's estimator on this bid telephoned Susan Kuzenka regarding the unit price structure sheet to inquire as to the format that should be followed in submitting the unit price structure. Ms. Kuzenka is named in the Instructions to Bidder as the person in Respondent's purchasing department to whom questions about the bid process should be directed. Petitioner's estimator was told that the unit prices would be required to be submitted by the successful bidder at the pre-construction meeting after the bids were opened, but that the unit price structure need not be submitted with the bid. Petitioner's president verified this information on April 9, 1990, prior to the bid opening, during a telephone conference with the project engineer employed by Respondent for this project. In reliance on the information that was supplied by Respondent's agents, Petitioner did not submit its unit price structure sheet with its bid. Following its examination of all bids, the bid of Petitioner was disqualified on three grounds. The first reason cited by Respondent was that Petitioner failed to return the entire Addendum (3) as required. The second reason was that Petitioner did not initial a correction to a quoted price figure. The third reason was that Petitioner did not include the unit price structure as required in Addendum (3). Petitioner thereafter timely protested its disqualification and the intended award of the contract to Double E Construction Co. Petitioner contends that the reasons cited by Respondent for its disqualification are minor irregularities that should be waived by Respondent. Additionally, Petitioner contends that the third reason should not disqualify it because Petitioner acted in reliance upon the instructions of Respondent's agents in not submitting the unit price structure along with its bid package. This proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Broward Community College, enter a final order which denies the bid protest of Petitioner, Pioneer Contracting, Inc. DONE AND ENTERED this 29th day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1, 2. 6 and 7 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 10. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings in the last sentence of paragraph 4 are rejected as being unnecessary to the conclusions reached because of the clear instructions contained in Addendum 3. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order. The proposed findings in the last two sentences of paragraph 5 are supported by the evidence, but are not adopted as findings of fact because they are unnecessary to the conclusions reached. All proposed findings of fact submitted on behalf of the Respondent are adopted in material part. Copies furnished: Eric L. Dauber, Esquire Beyer & Dauber Suite 5300 2101 W. Commercial Boulevard Ft. Lauderdale, Florida 33309 James D. Camp III, Counsel Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301 Janet Rickenbacker Director of Purchasing Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301
The Issue This case concerns a challenge to the validity of Rules 13A-1.001(12), 13A- 1.002(1)(b) and 13A-1.002(3) , Florida Administrative Code, pursuant to Section 120.56, Florida Statutes.
Findings Of Fact In the fall of 1988, the State of Florida, Department of Transportation (DOT) put out a Request for Proposals (RFP) as RFP-DOT-88-0l. Through this RFP the agency sought to acquire a new barrier and ticket toll collection system which would automate the toll collection operations and retrieval of audit data, having in mind increased reliability and performance. The project is principally one which envisions the purchase of commodities. It has an associated service component. Section 287.062(1)(e), Florida Statutes together with Section 287.073(3), Florida Statutes, established the basic authority for the award of RFP-DOT-88-01. The agency received responses in March, 1989, from three companies. The offerors were Petitioner and Intervenor and one other concern. The other company was AGS Informations, Inc. (AGS). Following evaluation DOT determined on May 18, 1989 to reject the Intervenor's proposal as nonresponsive. This rejection was followed by the Intervenor's notice of protest on Nay 25, 1989. A formal written protest was made on June 6, 1989. On July 31, 1989, Intervenor filed a notice of voluntarily dismissal of the formal written protest. This was addressed by the DOT final order of August 2, 1989 which dismissed the formal written protest. On November 21, 1989, DOT posted its intent to award a contract to Petitioner. This statement of intent to award was met by a notice of protest filed by Intervenor on November 27, 1989, followed by a formal written protest on December 6, 1989. The case was sent to the Division of Administrative Hearings for consideration and through response to a motion to dismiss the Hearing Officer in that case, DOAH Case NO. 89-6926B1D, entered a recommended order of dismissal. On January 22, 1990 DOT entered a final order dismissing Intervenor's petition and stating its intent to award the contract to Petitioner. An amendment to the January 22, 1990 order was made on February 21, 1990 reminding all concerned that the contract award was subject to review and approval by the Governor and Cabinet sitting as the State of Florida, Department of General Services to decide the propriety of the subject purchase which was an information technology resources purchase under Section 287.073, Florida Statutes. On February 21, 1990, DOT sent notice to the three offerors that it was rejecting all proposals submitted. As described in the notice of agency decision, DOT was operating on the basis that a further review of the proposals revealed that the proposals by AGS and Intervenor were nonresponsive. It went on to say that to have competitive offerors there must be two or more offers submitted by responsive and qualified offerors. In this instance DOT felt that it did not have two acceptable proposals and did not have a competitive offer. Because the commodities sought were available from more than one source, it had decided to withdraw its notice of intent to award which was contingent upon the approval of the Governor and Cabinet. On February 27, 1990, Petitioner gave a notice of protest of the DOT decision to reject all bids. This was followed by a formal written protest on March 9, 1990. Although the decision to reject all proposals was not opposed by Intervenor, the motion by the Intervenor to intervene in DOAH Case No. 90- 1583BID was granted allowing limited participation in support of the DOT decision to reject all proposals. That outcome tended to create the opportunity for Intervenor to participate in any re-advertisement for proposals. As revealed in the final hearing in DOAH Case No. 90-1583BID, DOT utilizes Chapter 13A, Florida Administrative Code, in the procurement process. Intervenor participated in the final hearing in DOAH Case NO. 90- 1583BID. The DOT decision to reject all proposals in which reliance upon the rules under challenge are perceived to support that decision has an adverse impact on Petitioner. By that arrangement Petitioner loses the opportunity for the contract. Additionally, it is placed in a disadvantaged position in that the particulars of its method of responding to the RFP have been revealed and are now known to the competitors who might be expected to utilize that information in a setting where a re-advertisement takes place. Under the circumstances, Petitioner filed its challenge to the existing rule on March 28, 1990. Intervenor sought the opportunity to intervene in this case on April 4, 1990, and that opportunity was granted on April 6, 1990. Intervenor intends to participate in any re-advertisements of the RFP. In his testimony at hearing William Monroe, Director of the Division of Purchasing for Respondent, established that in governmental purchasing the terms "offers" and "proposals" are synonymous. This opinion is accepted. Mr. Monroe also established that Respondent believed that it was implementing Section 287.012(15), Florida Statutes, when promulgating Rule 13A- 1.001(12), Florida Administrative Code. Through the promulgation of Rules 13A- 1.002(1)(b), and 13A-1.002(3), Florida Administrative Code, Respondent believed that it was implementing Section 287.062, Florida Statutes. Respondent interprets Section 287.062, Florida Statutes, to require an agency making a commodity purchase to use competitive sealed proposals in instances where invitations to bid are not used. Mr. Monroe in speaking for Respondent indicated that this interpretation gained support from the language set out in Section 287.001, Florida Statutes. According to Mr. Monroe the circumstance in which less than two responsive and qualified offerors respond to an RFP is one in which the procuring agency must reject all proposals or seek the approval from Respondent to negotiate with the one responsive offeror or where no responsive offerors were received to negotiate with someone whom the agency has chosen. Likewise, a sole source purchase negotiation must be approved by Respondent. Mr. Monroe's testimony, in speaking for Respondent, indicates that Respondent interprets the terminology within Section 287.062(2), Florida Statutes, "no competitive" to modify the words "bids" and "proposals." Thus, it is incumbent upon an agency to receive authority to negotiate in those instances where it receives less than two proposals submitted by responsive and qualified offerors who are responding to a RFP in acquiring commodities.
The Issue Whether the Department of Transportation can reject all bids on State Project No. 37906-9007?
Findings Of Fact In response to an invitation to bid, petitioner C & S Chemical Company (C&S) submitted a bid, No. 9059-86, offering to undertake complete maintenance operations to ensure Rest Area facilities located on State Road 93 (1-75) in Suwannee and Hamilton Counties are maintained in a safe, attractive, clean and sanitary manner." Respondent's Exhibit No. 1. Invitations to bid were mailed in October of last year, (T.9), and bids were to have been opened on December 2, 1987. C&S's bid price was $14,860.76 monthly or $178,329.12 for the year. By letter dated December 9, 1986, however, the Department of Transportation (DOT) advised C&S that all bids had been rejected, stating that the "Department reserved the right to reject any/or all bids when it is determined to be in the best interest of the Department. Petitioner's Exhibit No. 1. C&S mailed notice of protest the same day it received the Department's advice that all bids had been rejected. C&S's formal written protest took the form of a letter, dated December 18, 1986, in which C&S inquired: [H]ow can the Department of Transportation offend and deprive legitimate contractors of this work by negotiating a Contract with a non-profit organization after the bid prices have been made public knowledge? Petitioner's Exhibit No. 2. In this letter, C&S took the position that DOT should not reject all bids: We feel that if the non-profit organizations are going to get Department of Transportation contracts, they should either bid compet[i]tively with private enterprises, or that certain contracts should be set aside for them well advance of the bidding process. At hearing, Mr. Sperring narrowed or clarified the grounds of the protest when he stated, "I have no objection to the concept of the nonprofit organizations as long as they are set aside," (T.12) before bids are invited. The parties agree that, after bids were solicited, DOT decided to award the contract for Project No. 37906-9007 to intervenor Florida Association of Rehabilitative Facilities, Inc. (FARF), even though FARF never bid on the project. By agreement dated August 21, 1985, the Commission for Purchase for the Blind and other Severely Handicapped designated FARF "the central nonprofit agency of the Commission . . . [and its] sole agent." Intervenor's Exhibit No. 2. The day before, DOT Secretary Thomas E. Drawdy had signed a policy statement proclaiming DOT's intention "to procure commodities or services from qualified nonprofit agencies for the blind or other severely handicapped when feasible unless otherwise restricted by budgetary constraints." Intervenor's Exhibit No. 1.
Findings Of Fact Respondent issued an invitation to bid on March 13, 1992. Bid number SB 92-244I involved the disassembly and removal of an existing walk-in freezer and the furnishing and installation of a new walk-in freezer at Coral Sunset Elementary School. The invitations to bid provided in paragraph Y of the Special Conditions: Failure to file a specification protest within the time prescribed in Florida Statutes 120.53 3.(b) shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (sic) Bid specifications were included in the invitations to bid issued on March 13, 1992. Twenty-three bids were solicited. There were five responses. One of the responses was submitted by Choice Restaurant Equipment, Inc. ("Choice"). Choice is a vendor for equipment manufactured by Petitioner, Nor-Lake, Inc. ("Nor-Lake"). Nor-Lake is an out-of-state corporation with manufacturer's representatives in numerous states including Florida. 4, Petitioner, CHD Marketing Group ("CHD"), is the manufacturer's representative for Nor-Lake in Florida. CHD represents no other manufacturer of the product included in the bid response. Choice is a sales agent for CHD and other manufacturer's representatives in Florida. Choice sells the products of a variety of manufacturers but is the exclusive sales agent for CHD pursuant to a verbal agency agreement. Choice timely submitted a bid for bid number SB 92-244I on April 8, 1992, prior to the bid deadline of 2:00 p.m. on the same day. The successful bidder submitted its bid by Federal Express at 4:51 p.m on April 8, 1992. Respondent's Department of Purchasing and Stores (the "Department") had stated on March 13, 1992, when the invitations to bid were issued, that bid responses must be received by the Department no later than 2:00 p.m. on April 8, 1992, at the Department's address at 3980 RCA Boulevard/Suite 8044, Palm Beach Gardens, Florida, 33410-4276. Prior to April 8, 1992, the Department relocated to a new facility at 3326 Forest Hill Boulevard, West Palm Beach, Florida. The new address was posted at the old location and Department representatives were present at the old address to accept walk-in bids. Federal Express first attempted to deliver the successful bid at the Department's old address at 10:30 a.m. on April 8, 1992. Federal Express delivered the successful bid to the Department's new address at 4:51 p.m. At 2:00 p.m. on the same day, The Department announced that all bids were in and opened the bids that had been delivered. The successful bid and one other bid were delivered on April 8, 1992, after the public opening conducted at 2:00 p.m. on the same day. Bids were tabulated on April 9, 1992. Bid tabulations were posted on April 13, 1992, and the successful bid was announced. The successful bid was for $8,174.00. Three bids were lower than the successful bid. Choice's bid was for $7,742.56. The other two lower bids were for $8,020.00 and $6,620.00. All three lower bids were rejected as non- responsive. Choice's bid was rejected because it did not meet bid specifications for 22 gauge steel, thermostatically controlled door heaters, and reinforced steel door panels. CHD filed a Notice of Protest on April 14, 1992, and a Formal Written Protest on April 24, 1992. CHD's protest alleges that: Choice's bid was lower than that of the successful bidder; the successful bid was not timely made; the bids were not opened publicly in violation of bidding procedure requirements; and the bid specifications were arbitrary and capricious, favored one bidder, and that Choice's bid was responsive. Neither a notice of protest nor a formal written protest was submitted by Choice or Nor-Lake. Neither Choice nor Nor-Lake attended the informal protest conference conducted on April 30, 1992. On May 7, 1992, Respondent's Office of General Counsel issued its written notice of proposed agency action. The written notice recommended that the bid be awarded to the successful bidder and that CHD's protest be dismissed for lack of standing. CHD requested a formal hearing on May 14, 1992, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 15, 1992. The bid submitted by Choice was prepared by CHD but signed by the president of Choice. Neither Nor-Lake nor CHD signed a bid or were otherwise bidders of record for bid number SB 92-244I. Neither Choice, CHD, nor Nor-Lake, filed a notice of protest concerning the bid specifications within 72 hours after Choice received the notice of the project plans and specifications on March 13, 1992. The sole basis upon which CHD claims it is substantially affected is the adverse economic impact caused to it by the proposed agency action. The proposed agency action will result in lost sales from this and future transactions. CHD will lose commissions from this and future transactions. The dealer relationship between CHD and Choice will be damaged because Choice will not want to sell a freezer that is not acceptable to Respondent. The marketing strategy developed between CHD and Nor-Lake will be damaged because it is conditioned upon the award of public contracts.
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-030, and therefore entitled to the contract award.
Findings Of Fact The invitation to bid in Bid No. 88-030 contains specifications for two separate pieces of equipment which are to be used in the Respondent's print shop. These two items are: a) an offset duplicator with a "swing away," second color printing unit, and b) a camera/platemaker capable of processing silver masters. The Petitioner timely submitted bids on both items. On June 14, 1988, when the bids were opened, the Petitioner was the low bidder upon the equipment. The Petitioner's bids were disqualified by the Respondent, because the equipment offered did not meet the minimum specifications set forth in the bidding documents. A comparison of the minimum specifications for the duplicator and the manufacturer's specifications for the A.B. Dick #9850 duplicator that was bid by the Petitioner reveals the following differences: The specifications require the bidder to provide the Respondent with a duplicator that contains a 1 horsepower, D.C., drive motor. The A. B. Dick #9850 duplicator contains a 3/4 horsepower, A.C., drive motor. A 1/2 horsepower pump motor is required by the specifications. The literature attached to the Petitioner's bid does not reveal whether the A.B. Dick #9850 duplicator contains a pump motor. During the administrative hearing, Charles K. Hill testified that the A. B. Dick #9850 duplicator does have a pump motor. However, the size of the pump motor was not given. The specifications require a conveyor board with a jogging registration system. The A.B. Dick #9850 duplicator does not contain that type of paper feed system. Instead, the Petitioner's duplicator has a direct feed with a registration board. The paper travels only one-half of an inch in the duplicator so a conveyor board and joggers are not needed. Grippers accurately control the paper during the short travel distance. The Respondent specifically chose to require a conveyor board with a jogging registration system on a duplicator because the Respondent wants to have all of the controlling mechanisms it is possible to obtain on a duplicator within a certain price range. The conveyor board with a jogging registration system is a feature that is provided on duplicators in addition to a gripper margin adjustment and feeder bar system. The failure to provide this additional system is an omission as opposed to an alternate provision of a comparable system. The Petitioner submitted a bid upon a duplicator that did not conform in all material respects to the minimum bid specifications. The Petitioner' substituted a less expensive product with fewer features that ran on a different electrical current than the product sought in the invitation to bid. The comparison of the minimum specifications for the camera/platemaker and the A.B. Dick #148 camera manufacturer's specifications reveals the following differences: The specifications state that a reduction range of 60 percent and a magnification range of 125 percent are required. The A. B. Dick #148 camera has a reduction range of 64 percent and a magnification range of 105 percent. The specifications require a copy size of 20 1/2" x 33". The A. B. Dick #148 camera has a copy size of 23 1/2" x 26". The Petitioner submitted a bid upon a camera that did not conform in all material respects to the minimum bid specifications. The Respondent seeks a camera with a greater, and consequently more expensive, resizing range than the one bid upon by the Petitioner. The invitation to bid was liberal enough in its minimum bid specifications to allow competitive responsive bidding on comparable products from various vendors for the equipment and features sought by the Respondent. The bid posted by the Respondent from Standard Graphics, Inc., the apparent responsive low bidder, conforms in all material respects to the invitation to bid.
