Findings Of Fact Background On May 6, 1988, Respondent, Department of Insurance and Treasurer (Department), issued an invitation to bid (ITB), numbered DIT-87/88-26, whereby it sought to establish a 12-month germ contract for the purchase of Unisys personal computers, peripheral equipment and accessories. On May 9, 1988, Petitioner, Palm Beach Group, Inc., requested a copy of the ITB from the Department, and was mailed a copy of the ITB that day. Petitioner received its copy of the ITB on May 14, 1988, and filed its bid with the Department on May 19, 1988. By May 20, 1988, the bid opening date, three bids had been filed with the Department. Pertinent to this case are the bids of Unisys Corporation, which bid total unit prices of 140,792.00, and petitioner, which bid total unit prices of 16, 753.002 On May 23, 1988, the bid results were posted by the Department. The bid results revealed that the bid of petitioner had been rejected as nonresponsive to the ITB because it did not include page 13 of the ITB, and therefore did not include a bid on the 14 items listed on that page of the ITB. The bid results further revealed that the Department proposed to award the contract to Unisys Corporation. Petitioner timely filed its notice of protest and formal protest with the Department. On May 24, 1988, petitioner submitted to the Department page 13 of its bid, and proposed to supply the 14 items listed on that page at "no charge." The bid documents The ITB consisted of 18 consecutively numbered pages. Page 1 included the bidder acknowledgment form an some of the general conditions of the bid. Page 2 Included the remainder of the general conditions. Notably, page 1 of the ITB conspicuously provided that it was "Page 1 of 18 pages." Pertinent to this case, the ITB contained the following general conditions: SEALED BIDS: All bid sheets and this form must be executed and submitted in a sealed envelope....Bids not submitted on attached bid form shall be rejected. All bids are subject to the condition specified herein. Those which do not comply with these conditions are subject to rejection. * * * BID OPENING:...It is the bidder's responsibility to assure that his bid is delivered at the proper time and place of the bid opening. Bids which for any reason are not so delivered will not be considered....A bid may not be altered after opening of the bids... PRICES, TERMS, AND PAYMENT * * * (c) MISTAKES: Bidders are expected to examine the specifications, delivery schedule, bid prices, extensions and all instructions pertaining to supplies and services. Failure to do so will be at a bidder's risk.... INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No Interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness necessity or competitiveness of the terms and conditions of the Invitation to bid, bid selection or contract award recommendation shall file such protest in form of a petition in compliance with Rule 13A-1.006 Florida Administrative Code. Fail to file a protest within the time prescribed in Section 120.53(5), Florida statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. NOTE ANY AND ALL SPECIAL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FRONT THESE SPECIAL CONDITIONS SHALL HAVE PRECEDENCE. ATTACHMENTS: Special Conditions-Page 3 Bid sheets-pages 4-16 Minority Certification-Page 17 Attachment to all bids, etc.-page 18 Among the special conditions which appeared on page 3 of the ITB were the following The purpose of this bid is to obtain competitive prices per unit for the purchase of UNISYS personal computers, peripheral equipment and accessories for the Department of Insurance. * * * No substitutes or equivalents will be acceptable to the Department. The bid shall be awarded on an "all or none" basis using the low total bid price comprised of the total of all sections. Following the special conditions of the ITB appeared the bid sheets; pages 4-16 of the ITB. These sheets were divided into 10 sections: processors, displays, display controllers, keyboards, diskette drive, hard disk drives, memory, operating systems, miscellaneous devices, and lan options. Under each section the Department listed by part number and description the items that must be bid. The last page of the bid sheets, page 16, provided space to total the prices bid on sections 1-10. Notably, the following language appeared at the bottom of page 16: NOTE. RETURN ENTIRE UNIT PRICING, SECTION 1 THRU 10, PAGE 4 THRU 15 WITH THIS BID SHEET FOR EVALUATION AND AWARD PURPOSES. Petitioner did not protest the bid specifications or conditions within 72 hours after receipt of the ITB, nor did it raise any question or seek any interpretation of the conditions or specifications. The bid protest At hearing, petitioner contended that it should be excused for failing to include page 13 of the ITB in its bid and to bid those items, because such page was not included In the ITB forwarded to it by the Department or, alternatively, that its to include page 13 and to bid those items was a minor irregularity that could be cured by its submittal, after bid opening, of page 13 with an offer to supply the items on that page at "no charge." Petitioner's contentions and the proof offered to support them are not persuasive. First, the proof failed to establish that page 13 was not included in the ITB forwarded to the petitioner. Second, there was no ambiguity in the ITB. Rather, the ITB clearly provided as discussed supra, that the bid sheets consisted of pages 4-16, and that the bid sheets must be submitted to the Department for evaluation and award purposes. Under such circumstances, even if page 13 had been missing from the ITB forwarded to the petitioner, petitioner can not be excused for its failure to include page 13 and to bid the items on that page, and the Department's invalidation of petitioner's bid for such failure cannot be deemed arbitrary, capricious, or an abuse of discretion. A minor irregularity? Minor irregularity is defined by Rule 13A-1.002(10), Florida Administrative Code, as: ...a variation from the invitation to bid... which does not affect the price of the bid..., or give the bidder... an advantage or benefit not enjoyed by other bidders..., or does not adversely impact the interests of the agency. Variations which are not minor can not be waived. The items listed on page 13 of the ITB were an integral part of this bid, which was to be awarded on an "all or none" basis. Under such circumstances, the deficiency cannot be deemed minor, because it could affect the price of the bid or give petitioner an advantage not enjoyed by other bidders. Succinctly, petitioner could revisit its bid after the bids had been made public and, considering how badly it wanted the contract, bid or not bid the omitted items. If it elected not to bid the items, petitioner could effectively disqualify itself and withdraw its bid. The other bidders who timely submitted their bids would not have an opportunity to revisit their bids to the Items listed on page 13 or to withdraw their bids, but would be held to the provision of the ITB that prohibited such withdrawal for 45 days after bid opening.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by Palm Beach Group, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1988. WILLIAM J. KENDRICK 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 24th day of June, 1988.
The Issue Whether the Respondent, School Board of West Palm Beach County, Florida, (School Board) should reject the bid of the Petitioner, Copyco, Inc. d/b/a Toshiba Business Solutions Florida (Copyco or Petitioner), and approve a contract with the Respondent, Ikon Office Solutions, Inc. (Ikon), should reject the bid of Ikon and approve a contract with Copyco, or should reject all bids and re-bid the contract.
Findings Of Fact On August 5, 2005, the School Board issued an Invitation to Bid (ITB) Number 06C-10B entitled “Term Contract for Copier on a Fixed Cost-Per-Copy. ” The School Board sought to award the Contract to the lowest responsive bidder. The School Board sought several different copiers with different copying rates. All rates were for copies per minute. The School Board did not guarantee any level of use for the copiers. Ikon is the current vendor for copiers provided to the School Board. Ikon and the School Board have enjoyed an amicable and successful working relationship. The subject ITB was available to vendors in an electronic format through a company known in this record as “RFP Depot, LLC.” RFP Depot, LLC is a private company located outside the State of Florida that posts invitations to bid, receives responses from vendors, and transmits information to entities seeking vendors. In this case, they contracted with the School Board to electronically present and respond to the instant ITB. No potential vendor timely protested the terms or specifications of the ITB when it was posted. That is to say, all of the terms of the ITB were accepted by the parties to this action. To prepare the ITB specifications, the School Board utilized information submitted by Ikon for the copiers it provides (manufactured by Canon) to draft the ITB. Karen Brazier exchanged e-mails with Ikon to obtain specifications and used information available from Buyers Laboratory, Inc. (BLI) to complete the ITB. Ms. Brazier did not ask any other vendor or manufacturer to submit data regarding its copiers before completing the ITB. Vendors and manufacturers other than Ikon and Cannon do produce copiers that can meet or exceed the copier requirements of the ITB. Ikon did not draft the instant ITB. Ms. Brazier was solely responsible for the terms of the ITB. The original due date for responses to the ITB was extended from August 29, 2005 to August 31, 2005, due to Hurricane Katrina. Vendors interested in the Contract submitted questions regarding the ITB to RFP Depot, LLC, which then transmitted the inquiries to the School Board. All questions with the answers were posted by RFP Depot, LLC so that all vendors were privy to the information posted for this ITB. Only three bidders timely submitted responses for this ITB: Axsa Document Solutions, Inc. (Axsa); Copyco; and Ikon. The Axsa bid is not at issue in this proceeding. Although it was the lowest bid received, it was disqualified and was not considered for the award. Axsa did not protest that finding. Copyco was the second lowest bidder. John Gans, a major account executive with Copyco, was the primary author of the bid submitted by the Petitioner. Mr. Gans had never used the RFP Depot, LLC system before but personally completed the information for the ITB and submitted it for consideration in a timely manner. The ITB included a chart entitled “Bid Summary Document.” That chart required the vendors to list the copiers proposed for each category by manufacturer and model number. All of the “Group 1” copiers were required to meet certain specifications. The “Estimated Yearly Total” was derived by multiplying the cost-per-copy for each of the Group 1 copiers times 400,000,000 (the number of estimated copies per year). For purposes of computing a cost the estimate for the number of copies was fixed but not guaranteed. In an attached section to the ITB, vendors were required to include additional information regarding the copiers proposed in the Group 1 categories. That information noted the copier proposed with a separate cost-per-copy rate for each of the three different Group 1 categories. Although the price computed for the award was based on the aggregate cost of the copiers, the ITB required that the individual copier breakdown costs be disclosed in the addendum material. When he submitted the bid proposal to RFP Depot, LLC, Mr. Gans believed he had listed a Toshiba e600 copy machine for the category 3 machine of Group 1. In fact, the information attached in the separate information required by the ITB identified the Toshiba e600 and noted its cost per copy in the individual copier breakdown. The Toshiba e600 meets or exceeds all specifications for Group 1, category 3 of the ITB. Group 1, category 3 of the ITB required a machine capable of producing 55 copies per minute. The Toshiba e520 copier is rated at 52 copies per minute. When Copyco’s proposal for this ITB was transmitted by RFP Depot, LLC to the School Board, the proposal identified the Toshiba e520 as the copier listed under the Group 1, category 3 chart. Without considering the attached information provided in the addendum to the proposal, the School Board determined that Copyco’s bid must be disqualified since the Toshiba e520 is not rated to produce 55 copies per minute. Accordingly, the Copyco bid was disqualified and Ikon (the highest bidder of the three submitted) was deemed the only responsive bidder to the ITB. All of the Ikon copiers bid met the specifications of the ITB. At the time the School Board determined to award the bid to Ikon, it did not deem material to the instant award Ikon’s debarment by Hillsborough County, Florida. In April 2005, Ikon was awarded a contract in Hillsborough County to provide copiers and related services based upon another bid solicitation. In that bid, Ikon failed or refused to execute an agreement for the copiers. As a result, the Board of County Commissioners for Hillsborough County, Florida decided to debar Ikon for a period of two years. The debarment precludes Ikon from doing business with Hillsborough County for a two-year term. On August 31, 2005, the date the proposals were due in this case, Ikon knew or should have known that Hillsborough County had decided to debar it from doing business with Hillsborough County. The instant ITB required every bidder to certify that “neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any State or Federal department/agency.” It is undisputed that Ikon did not notify the School Board that it was debarred by Hillsborough County. Ikon has challenged Hillsborough County and filed suit against it for the debarment. As of the time of hearing in this cause, that suit was unresolved and remained pending in federal court. The electronic listings for debarred companies maintained for the State of Florida and the federal government does not include any of the bidders for this ITB. The School Board did not consider the erroneous listing of the Toshiba e520, instead of the Toshiba e600 as the Group 1, category 3, listing to be a minor irregularity of the bid submission. The School Board did not consider the erroneous omission of the debarment from Hillsborough County a disqualifying offense for Ikon. When compared to the Copyco submission, the award of the ITB to Ikon will result in higher copier costs incurred by the School Board. Copyco did not refuse to execute an agreement with the Toshiba e600 as the Group 1, category 3 copier. In fact, Copyco has represented it will do so as that was the machine clearly identified in the addendum materials. In researching the debarment, the School Board made a telephone call to Hillsborough County to ascertain facts pertinent to the debarment. Any negative information related to Ikon was deemed irrelevant to the instant ITB. The Copyco protest to the intended award to Ikon was timely filed. Copyco intended to bid the Toshiba e600 in Group 1, category 3 of the instant ITB. The Toshiba e600 is identified throughout the bid submittal including the proposed transition plan. To have awarded the contract to Copyco with the Toshiba e600 noted as the Group 1, category 3 copier would not have afforded the Petitioner a competitive advantage as that machine was clearly denoted. The cost to the School Board would not have changed but would have been less than the cost proposed by Ikon. Even before a final decision was reached on this contract and before the posting of the award, Ms. Brazier was exchanging e-mails with Ikon regarding the transition under the new contract. Ms. Brazier did not make her supervisor fully aware of the Copyco proposal (as supported by the addendum materials) and did not believe the Ikon bid should be rejected for the failure to disclose the debarment. The School Board’s purchasing manual provides, in pertinent part: The following are reasons a bidder may be declared nonresponsible: * * * D. The bidder does not have a satisfactory record of integrity, or the bidder is currently debarred or suspended by the District or other State of Florida jurisdiction... Ms. Swan did not investigate Ikon’s debarment until after the posting of the award. The School Board has taken the position that the Hillsborough County debarment does not preclude the award of the contract to Ikon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a Final Order that rejects all bids for the contract. S DONE AND ENTERED this 9th day of February, 2006, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of February, 2006. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northwest Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael J. Glazer, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 James F. Johnston GrayRobinson, P. A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802 Michael E. Riley, Esquire Gray, Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189 Steven A. Stinson, Esquire School Board of Palm Beach County Post Office Box 19239 West Palm Beach, Florida 33416
Findings Of Fact In early 1984, the Florida Department of Law Enforcement in its Fingerprint Identification Section decided to replace some equipment used for purposes of analyzing finger prints. That equipment was three Kodak PR-1's, known as readers. The reason for the replacement concerned the fact that these machines had been in operation since 1969 and Kodak was no longer willing to undertake the service of the machines through a service agreement. Initially, the staff favored the idea of replacing the Kodak equipment with other Kodak equipment, having in mind the idea that Kodak was the only manufacturer that could meet the needs of this function within the Florida Department of Law Enforcement. If this suggestion had been accepted, then it would have been on the basis of a request to the Department of General Services to be given permission to enter into a contract with a sole source, namely Eastman Kodak. Indeed, preliminary steps were taken to purchase the Kodak IMT-50 reader-printer to substitute for the three PR-1's, as a noncompetitive purchase from the single source, Kodak. There had also been some discussion about the purchase of Kodak IMT-100's, a reader-printer which allowed multilevel blipping. That type of feature, i.e., multilevel blipping, was determined not to be necessary. Ultimately, the Florida Department of Law Enforcement determined to meet their needs for replacement of the PR-1 machines through a' competitive bidding, Bid No. 83-50. A copy of the invitation to bid may be found as Petitioner's Exhibit 14. This particular item is a response on the part of Lanier Business Products to the invitation to bid. Among the instructions in the invitation to bid was general condition Number 7 which reminded the prospective vendors to direct questions concerning the conditions and specifications set forth in the bid invitation to the Florida Department of Law Enforcement no later than ten days prior to the bid opening. Bid opening was scheduled for May 31, 1984. None of the vendors who offered bid responses questioned the meaning of any of the general conditions or specifications set forth in the invitation to bid related to the purchase of microfilm reader-printers as contemplated in the bid invitation. Eastman Kodak Company also submitted a bid. The bid response by Lanier Business Products was for the provision of a reader-printer known as the 900 Page Search manufactured by 3M. The Kodak product which was bid was the IMT-50 reader-printer. Another prospective bidder, Office Systems Consultants, submitted a "no bid," signifying the inability to meet the specifications of the invitation to bid. On May 31, 1984, the bid opening was held and a tabulation was made as to the bid responses offered by Lanier and Kodak. The unit price for each of the three microfilm reader-printers was $8,650 by Lanier and $9,040 by Kodak. Therefore, Lanier was the apparent low bidder on the project. Within the bid specifications are requirements which set forth specific needs for this project. One of those items pertains to film retrieval capability, and that provision states: Unit will retrieve, by automated means, 100 feet 16mm rolls of 5.4 mil film or 215 feet 16mm rolls of 2.5 mil film (such as Recordak AHU microfilm). Retrieval unit must be able to read, randomly, and ANSI standard document reference (Blip), and must have an advance-- return transport speed of 12 feet per second minimum. Related to lens requirements, the bid specifications indicated: Lens magnification must be 24:1 to be compat- operation. ible with present standards and be designed so that additional lens can be interchanged without interrupting the reader-printer Under the heading of general requirements the invitation to bid stated: By nature of the work requirements and pro- duction schedule, the equipment may be gener- ally described as a 16mm reader-printer capable of retrieving microfilm images by means of ANSI Standard Blips, and will be compatible with existing system. Prior to bid consideration, potential bidders will review, on site, typical production required as part of the overall routine of the finger- print section. Appointment for this inspec- tion will be made by calling (904) 488-9953. The Department will not alter the current production system. After bid opening and prior to award, vendors will conduct tests and provide demonstrations to personnel of the Department to assure a quality product compatible with the existing system. Where applicable, the film retrieval unit will conform to Florida Administrative Code, Chapter 1A-26. At the time the decision was made to replace the three PR-1 microfilm readers, the Identification Section within the Florida Department of Law Enforcement had four other machines which had reading capability. Those machines were also Kodak and are referred to as Starvue. As can be seen, neither the PR-1 nor the Starvue referred to had the capability to print. A review of Petitioner's Exhibit 3 reveals that the ability to print identification cards was accomplished through another Starvue type machine in operation prior to the bid invitation. When processing fingerprint cards within the Identification Section of the Respondent agency, the task of fingerprint identification and verification is addressed. Over and above this reading function, prints are sometimes made of fingerprint identification cards or documents related to a given subject. These prints either are made from the positive film being reviewed, the copy appearing as a negative image of that film, or in the alternative, the positive film is replaced with negative film and a positive print is made through the copying process. Copies were reproduced on the separate printer which the agency had available to it, prior to bidding for the purchase of three reader-printers contemplated by the invitation to bid under discussion. This required removing the film from the reader or substituting the film before printing. In addition, some lens changes within the readers would be necessary, on average a couple of times a day. The PR-1 machine had a telescoping lens which would allow magnification without lens replacement. The Starvue reader requires the replacement of the lens to gain greater magnification. This Kodak machine, following the lens substitution, would not lose contact with the image which had been on the screen prior to the substitution. The fingerprint analysis operators or technicians, at the time that the bid was prepared, used a 30:1 lens in performing their function of reading the fingerprint microfilm image. A 24:1 lens was needed for printing. Under these circumstances the Respondent indicates that in the bid specifications reference should have been made to a 30:1 lens as opposed to a 24:1 lens in describing lens requirements. The PR-1 machines that were being replaced did not have the capability to read blips on the given frames or images within the microfilm cartridges, thus automatic access of the roughly ten per cent of microfilm cartridges that contained the blips was not possible. Both the 3M 900 Series and the IMT-50 microfilm reader-printers allow for automatic retrieval of the image within the microfilm cartridge, as stated before, a required feature set forth in the invitation to bid. The operation of the Fingerprint Identification Section at the time of the bid invitation dealt with approximately forty-eight hundred reels of microfilm, 90 per cent of which could only be accessed manually. Most of the microfilm cartridges contained one hundred feet of microfilm. When reference is made in the bid document to the fact that the proposed equipment should allow for the changing of lenses without interrupting the operation of the reader-printer, this is a literal impossibility. While the first lens is being removed and the second lens is being placed, no reading or printing may occur. As a consequence, when officials with Lanier read this requirement, they perceived it as being some form of inconsequential mistake and did not seek clarification as contemplated by clause Number 7 of the general conditions to the invitation to bid. While it is not apparent from the reading of this requirement, the Florida Department of Law Enforcement intended this provision pertaining to lenses to mean that once the second lens had been placed in the machine, the image that had been being examined prior to the lens replacement would be immediately available for reading or printing. The IMT-50 Kodak equipment allows for that, the Starvue equipment by Kodak allows for that, and the PR-1 did not require lens replacement. By contrast, either in the manual mode or in the automated mode, the 3M 900 Series equipment might require a slight adjustment to recapture the image once the lens had been changed. This adjustment would take approximately two seconds to achieve. The reason for the differences between the 3M equipment and Kodak equipment concerns the fact that the power source in the 3M equipment is turned off when the lens is out of the machinery and the power source within the Kodak equipment remains constant even when the lens is removed. When the lens requirement is considered in the context of the idea expressed in the general requirements, that the Department did not intend by the replacement of its equipment to alter its current production system, use of the 3M equipment at times of lens interchange is not found to be out of compliance with that general requirement or condition. That determination is made realizing that the lens requirement was ambiguous, at best, and the more important fact that the amount of delay caused in using the 3M equipment in a lens change posture amounts to three operators x two occasions per day x two seconds per occasion or 12 seconds per day. This delay is inconsequential. On this topic, in its position in justifying its choice to reject Lanier's equipment as not complying with the lens requirement, suggestion has been made by the Florida Department of Law Enforcement that eight to ten lens changes per hour might be necessary in the "hard" identification of prints. This comment as offered as a justification for rejecting the Lanier bid as nonresponsive to the lens requirement is not borne out in the record of the hearing by competent proof. This information was imparted in Petitioner's Exhibit 45 which is information that the Florida Department of Law Enforcement submitted to the Department of General Services, having determined that the Lanier bid was not responsive because of a failure to comply with the lens requirement and the requirement for film retrieval capability, which will be discussed subsequently. That information in the exhibit was hearsay and was contradicted by the comments by two of the operators who utilized the reader-printers in the Fingerprint Identification Section. They are the source of the idea that lens changes occur once or twice a day, and their position has been accepted as factually correct. In summary, Lanier is found to have complied with the specific requirements for lens compatibility with existing needs of the Fingerprint Identification Section and future needs of that section. An official within the Florida Department of Law Enforcement had been informed by Kodak that the Starvue equipment in use by the Fingerprint Identification Section at the time that the bid invitation was prepared had a capability of performing the retrieval function at a pace of twelve feet per second. This pertained to both the forward and the return phase of that operation. Having this in mind, the previously described requirement for film retrieval capability was included within the bid specifications. Again, it was the intention of the Department, as expressed in that provision and the general requirements, that the replacement equipment maintain the same efficiency of production as existed. The manufacturers of the equipment which was offered in response to the bid have described their equipment in this fashion: The Kodak IMT-50 is described as having a speed advance of up to fourteen feet per second. The 3M 900 Series which was offered by Lanier carried a "rating" of twelve feet per second. The author of the bid specifications pertaining to film retrieval speed included within that section the phrase ". . . advance--return transport speed " This phrase is not used in the microfilm industry to describe film retrieval capability. Officials at Lanier perceived this as a manufacturer's speed "rating." Officials with Kodak who offered testimony at the hearing had various ideas about what advance and return transport speed meant, which opinions were not constant. Likewise, the author of this provision within the bid specifications offered variety in his explanation of the meaning of that phrase, that variety ranging from the idea of maximum speed when the machine was operating at full capacity in terms of the advancement or return of the microfilm within the machine, to the idea of maximum speed as ascertained shortly after the machine had started to advance or return the microfilm. In any event, he states that it did not mean transport speed as an average of time for a given length of film to move through the machine. Nothing about the specifications suggests that return transport speed equates to the idea of average speed, meaning the amount of time necessary to transport a given length of film through the machine either in the forward or reverse mode. When this requirement of transport speed is seen as a function of protecting against the acquisition of equipment that would not be as efficient as existing equipment, a further dilemma is presented. Edward E. Ricord, author of the specification related to film retrieval speed testified that testing had been done, unrelated to the present hearing, with the intention of describing the transport capabilities of preexisting equipment within the Florida Department of Law Enforcement. The recount of that testing was not offered as evidence by way of documentation. Nonetheless, the equipment that was existing is depicted as having the capability of transporting a ninety-six foot length of microfilm through the older machine, Starvue, in a shorter length of time than could be achieved by the 3M 900 Series. The Starvue was four seconds faster in the forward mode and ten seconds faster in the reverse or rewind phase than the 3M 900 Series, according to Ricord. The old machine was also described as being slower at one end and a little bit faster at the other end in transporting the ninety-six foot length of microfilm when contrasted with the IMT-50 Kodak. (The transport of ninety-six feet of film becomes significant in a later paragraph describing the basis for rejecting the Lanier bid offering as being unresponsive.) On the other hand, Carl Durian, one of the operators or technicians who has used the PR-1, the Starvue, the 3M 900 Series and the IMT-50 machines had these observations, in terms of a subjective analysis of speed. He felt that the Kodak IMT-50 was a subjectively faster operating machine when performing the retrieval function related to the movement of the microfilm through the machine when compared to the 3M 900 Series; however, the 3M 900 Series was found to be subjectively faster than either the Starvue or the PR-1. Finally, Durian felt that the Starvue was faster than the PR-1 when considering the retrieval capabilities of the various machines. Again, this firsthand information, though subjective, is of a better quality than the information offered by Ricord who recounted test results not produced at hearing. Looking at this problem in the most favorable light, there is conflict within the agency as to the issue of whether the 3M 900 Series equipment is as capable in the retrieval of microfilm, as a function of speed, as existing equipment within the Fingerprint Identification Section at the time that the bid invitation went out. This is significant, because, having no industry standards related to return transport speed and having no clear indication of what that term meant at the point of the preparation of the bid specification which is separate and apart from the capabilities of existing machines, it is taken to mean the capabilities of those existing machines, and the uncertainty about those capabilities must be resolved in favor of Lanier. Moreover, on this occasion the Florida Department of Law Enforcement cannot point to Lanier's obligation to ask the question about the meaning of return transport speed as a reason to reject the bid response, in that such a theoretical inquiry would not have elicited a satisfactory answer to the question and alerted Lanier that it was potentially incapable of satisfying the bid specifications related to microfilm retrieval. In accordance with the bid document, the vendors Lanier and Kodak were required to present one of their machines to the Department following the bid opening for purposes of evaluation. Once the machines were in place, some concerns were expressed about the difference in operating capabilities in the retrieval function of the two machines. To gain some understanding of those differences, a test was devised to measure the responsiveness of the two machines. The test, by its terms, measured the average time necessary to move ninety-six feet of microfilm through the machines in a forward and reverse mode. The tests were conducted, forward and reverse on each machine, by using a person holding a wrist watch and gaining an average of the time necessary to accomplish the functions, after an operator switched the machine into the fast forward and reverse positions to commence the test. The tests forward and reverse were executed three times. It was revealed that in the forward mode, the best performance by the 3M 900 Series was a speed of 5.99 feet per second and in the reserve mode 8.30 feet per second. By contrast, the speed of the Kodak IMT-50 was, at best, 12.80 feet per second in the forward mode and 16.16 feet per second in the reverse mode. No comparison was made at the time of that testing between the two proposed machines and the existing Starvue or PR-1 equipment. For that reason it is not graphically depicted whether the 3M 900 Series machine would slow down the operation of the Fingerprint Identification Section because of its inability to comply with the requirement for film retrieval. A description of the testing that was done between the 3M 900 Series and the IMT-50 cannot be found as a requirement within the bid specifications, nor does it comport with any expressed statement of what transport speed meant as described in the bid specification document. While it does point out a remarkable difference between the film retrieval capabilities of the Kodak IMT-50 and the 3M 900 Series, it does not establish that Lanier failed to comply with the bid specification related to film retrieval when offering the 3M 900 Series machine in response to the bid invitation. Lanier has met the requirement for film retrieval. In support of this finding, the scope of this inquiry as stipulated to between the parties does not allow for the discussion of the implications of the greater film retrieval capability of the Kodak IMT-50 when compared to the 3M 900 Series as it might pertain to work efficiency within the Fingerprint Identification Section. More significantly, even should it be demonstrated that this difference in film retrieval speed has a profound influence on work efficiency, it could not be said that the Lanier bid failed to meet specifications. The only consequence of this revelation might be that the agency would rebid the project, when examined in the abstract. Given what the agency considered to be a lack of responsiveness on the part of Lanier related to the lens requirement and film retrieval requirement, it was determined to seek permission from the State of Florida, Department of General Services to obtain the IMT-50 equipment from Kodak as a sole source. This is under the theory that in a competitive bid setting where only one responsive bidder has responded, a sole source purchase opportunity must be sought from the Department of General Services. Following some explanation, that authority was granted. When the authority was granted, the Department of General Services did not realize that Lanier had not been given a point of entry to question the rejection of its bid. When this circumstance was discovered, the Department of General Services recanted its stated permission pending the opportunity for Lanier to have due process concerning its claim of compliance with bid specifications. The decision by Department of General Services to change its position on permission for sole sourcing occurred on October 2, 1984. In the face of that statement and the advice by the Department of General Services that the Florida Department of Law Enforcement should give a point of entry to Lanier to contest the question of a determination that Lanier's bid was unresponsive, the Florida Department of Law Enforcement on December 17, 1984, officially noticed Lanier of the choice to award the contract to Eastman Kodak. Given this notification, a letter of protest was filed by counsel for Lanier on December 21, 1984. Kodak had been awarded the contract through the issuance of a purchase order from the Florida Department of Law Enforcement at a time when the Department of General Services had initially indicated the acceptability of a sole source arrangement, but before the October 2, 1984, decision by Department of General Services to rescind its permission to go sole source. As a part of the arrangement with Eastman Kodak, $262 per machine was allowed in the way of trade-in of the three PR-1 machines which were being replaced. The IMT-50 equipment is presently in place in the Fingerprint Identification Section of the Florida Department of Law Enforcement. Had Lanier placed the 3M 900 Series machines with the Florida Department of Law Enforcement, it would have made a profit of $5,700. This is offset by the cost of $4,080 which would have been necessary to convert the existing microfilm reels to fit the 3M equipment. With that deletion, the total profit from the sale becomes $1,620. The effective life of the 3M 900 Series of equipment is five years, and service revenues from those three reader-printers averages $2,940 per year x five years = $14,700 as total service revenues. The loss of revenues over the five-year span for the three reader-printers related to paper supplies is $24,300 based upon three reader-printers $4,860 per year. The figures given relate to gross charges for paper supplies. That paper has not been supplied, and no indication has been given on the difference between the vendor's cost for producing the paper and the retail price of the paper, giving a net figure as to profit. In view of the fact that the paper has not actually been delivered and in the absence of some indication as to the amount of net profit, this item of damages is not allowed. Finally, no indication was made as to the amount of labor cost and net profit related to the overall service charge, and, as with the paper supplies, this claim is disallowed. These items of damages are disallowed because the Petitioner would only be entitled to claim net profits, having never actually offered the services or supplies. An additional $810 is lost in interest income at a rate of ten per cent per year over the five-year effective life of the equipment, pertaining to use of the profits realized in selling the machines. The proven total damages to Lanier is $2,430. Claims by Lanier for loss of future earnings related to the sale of unrelated machines are not found to be convincing, in that they are too speculative in nature. The related claim for past damages if the 3M machines are installed is rejected in that the effective life of the machines starts from the time of their installation. Therefore, profits for sale, supplies and service would commence at that moment. Lanier is the lowest responsive bidder on Bid No. 83-50.
Findings Of Fact Lee County School District (District) Invitation to Bid #4908 (ITB) was provided to the vendors on December 9, 1992. The ITB sought bids for 61 hardware and tool items to be used in the District Supply Department. The District maintains an inventory of hundreds of miscellaneous hardware items. Quantities of available materials are monitored through a computerized system which is used to generate a list of items which need to be replenished. The District has historically utilized ITB's to acquire hardware items in order to maintain appropriate inventory levels. Eight sealed bids were opened on January 6, 1993 at 2:00 p.m. Bids were submitted by Parker-Mahn Ace Hardware, W.W. Grainger, Action Bolt & Tool, Biscayne Electric & Hardware Distributors, Bob Dean Supply, Scotty's, Shadbolt & Boyd, and the Petitioner. The ITB states that the School District of Lee County: reserves the right to waive minor variations to specifications, informalities, irregularities and technicalities in any bids; to reject any and all bids in whole or in part with or without cause, and/or to accept bids that in its judgement will be in the best interest of the District. The District further reserves the right to make awards on a multiple, lump sum, or individual item basis or combination as shall best serve the interest of the District unless otherwise stated. Three of the vendors bid on all 61 items. The remaining vendors bid on some but not all of the items. The bids were tabulated by personnel in the Purchasing Department. The information in the bids is set forth in tabulation sheets which facilitate comparison of buds. On January 7, 1993, the Petitioner sent a letter to the Respondent stating that there were only "two authentic submissions: Ace Hardware and S.W. Supply, Inc." The tabulation sheets and additional materials included in the bid responses were forwarded to the Supply Department where supply personnel reviewed the submissions and made recommendations to the Purchasing Department as to which vendors should receive awards. As part of the evaluation of the bid proposals, the District determined that the cost of the total bid award would be lower if the awards were made on an individual item basis. The District considered prompt payment discounts in making this determination. The total amount of the proposed awards to the eight vendors is $7,104.55. Were the Petitioner to receive awards for all items, the total amount of the award would be $7,965.00, accounting for the Petitioner's proposed prompt payment discount. The Purchasing Department posted a Notice of Intention to Award on January 15, 1993. The proposed awards were made on an individual item basis. All eight vendors received awards. The parties have stipulated that the Petitioner timely filed a notice of protest. Subsequent to the January 15 posting, the Petitioner discovered several errors in determining the proposed awards. In the Petitioner's formal protest, four awards are identified as incorrect. Despite the Petitioner protest, the first item identified was correctly awarded because the Petitioner failed to account for the prompt payment discount offered by the winning vendor. A second item protest was based on clerical error and was withdrawn by the Petitioner. The two remaining items were resolved and were addressed in a corrected Notice of Intention to Award posted February 16, 1993. There is no evidence that the errors were other than mistakes made in calculation or transcription of bid data from the vendor's documents to the bid tabulation form. No further specifically challenged items were identified by the Petitioner prior to the hearing. General condition 1.d. of the ITB states as follows: For purposes of evaluation, the bidder must indicate any variances from specifications, terms and/or conditions regardless of how slight. If variations are not stated in the proposal, it will be assumed that the product or service fully complies with the specifications, terms and conditions herein. (emphasis supplied) General condition 6 of the ITB states as follows: Use of brand names, trade names, make, model, manufacturer, or vendor Catalog Number in the specifications is for the purpose of establishing a grade or quality of material only. It is not the District's intent to rule out other competition; therefore, the phrase OR APPROVED EQUAL is added. However, if a product other that specified is bid, it is the vendor's responsibility to submit with the bid brochures, samples and/or detailed specifications on item(s) bid. The District shall be the sole judge concerning the merits of bids submitted. If a bidder does not indicate what he is offering in the proper blank and if the bidder is successful in being awarded the item(s) then the bidder shall be obligated to furnish the specified item(s). If packing is different from that specified, the bidder must note manner and amounts in which packing is to be made. (emphasis supplied) Only one vendor, Parker-Mahn Ace Hardware, proposed to supply all items exactly as specified in the ITB. The remaining vendor proposals included at least some items which varied in some respects from the items identified in the ITB. Where a vendor fails to identify that a product bid is "not as specified", the proposal is evaluated as if all specifications have been met, in which event, price is the determining factor in determining the award. Where a vendor identifies a variance related to a specified item, the proposal is evaluated as if all specifications other than the identified variance are met. If the product is determined by the Supply Department to be the equivalent of the product identified in the ITB, price is again the determining factor in determining the award. Where the ITB specifies a brand name followed by the word "ONLY", the vendor may not bid another brand. Where the ITB does not qualify the brand name as "only", the vendor may propose an equivalent product. Where a vendor does not identify the brand name of the item to be supplied, the vendor presumed to be bidding an item which will meet the specifications. If the vendor delivers goods which are not as specified, the District rejects delivery and cancels the order. The evidence establishes that, where bid items were not as specified in the ITB, the District had access to sufficient information to permit a determination of equivalency and an award of bids. The evidence fails to establish that, except as stated herein, the Petitioner should have received an award other that as set forth in the February 16, 1993, Notice of Intent to Award. General condition 5 of the ITB states as follows: Cash discount for prompt payment of invoices will be considered in making awards. The District prefers cash discount items which allow at least twenty (20) days for approval and payment of invoices. Four vendors included proposals for prompt payment discounts in the responses. One vendor offered a 2 percent discount for payment within 20 days, one offered a 1 percent discount for payment within 15 days and one offered a 1 percent discount for payment within 10 days. The Petitioner offered a 12 per cent discount for payment within five days, but only if the Petitioner received the award for all items bid. The District preference for a 20 day payment period reflects the time needed to accept delivery, process invoices and make payment for goods received. The District has accepted a five day prompt payment discount when the purchase was for a single item and the delivery date was specified. Such payment is otherwise difficult and results in other vendor payments being delayed. There is no evidence that based on the costs of goods involved in this bid, the savings are of such event as to warrant such extraordinary treatment of deliveries and invoices. General condition 16 of the ITB states as follows: Any and all special conditions that may vary from these General Conditions shall have precedence. Special condition 1 of the ITB states as follows: A SAMPLE OR COMPLETE SPECIFICATION SHEET MUST ACCOMPANY EACH BID ITEM THAT IS NOT "AS SPECIFIED." IF AN ITEM CANNOT BE EVALUATED, IT WILL BE DISQUALIFIED. Parker-Mahn Ace Hardware submitted product brochures or other materials related to items bid. The Petitioner submitted an extensive selection of photocopies pages from a hardware product catalog. W.W. Grainger submitted an index of part numbers and identified where such parts could be located in the Grainger catalog, which was on file with the District. Action Bolt and Tool included product information by brand name and model number in the ITB response. The remaining four vendors (Biscayne Electric & Hardware Distributors, Bob Dean Supply, Scotty's, and Shadbolt & Boyd) attached no specification sheets or other descriptive materials for items bid. As stated previously, the ITB directed vendors to submit specification sheets for "not as specified" items. The request for such information was intended to facilitate the review of the bids by eliminating the need for District personnel to consult vendor product catalogs already in the District files. The ITB also provided for disqualification where an item could not be evaluated. The Petitioner asserts that the failure to submit such product information materials with the bids is a material defect which cannot be waived and which renders the bids nonresponsive. The evidence fails to support the assertion. Of the four vendors which included no specification sheets, all four had product catalogs on file in the Purchasing and/or Supply Departments of the Lee County School Board. The District had sufficient information to evaluate the bids submitted by the vendors with catalogs on file. The Petitioner asserts that it was disadvantaged by the District's decision to waive the failure to attach specification sheets where catalogs were on file, because it was allegedly not possible to compare his bid to those submitted by the other vendors. The evidence does not support the assertion. The relevant catalogs are on file in the Purchasing and Supply Departments of the District and are available for public inspection. There is no evidence that the Petitioner sought at any time to reference the materials on file. The fact that the omitted specification sheets made such a comparison less convenient than it would have been had such sheets been attached to the bids does not render the bid proposals nonresponsive. At hearing, the Petitioner challenged many of the individual intended awards announced by the District. Prior to the hearing, the Petitioner had not asserted that such items were inappropriately awarded. The evidence fails to establish that the Petitioner would be entitled to an award of any of the additional items challenged at hearing. In the case of individual items, a bidder other than the Petitioner would be entitled to the award if the Petitioner's challenge succeeded. None of the other bidders challenged the proposed bid awards. No vendors intervened in this proceeding. Accordingly the Petitioner is not affected by such individual awards and is without standing to challenge the items first identified at hearing. The Petitioner asserted that if the low bidder for each identified product is disqualified, and the next lowest bid included in the total bid calculation, the Petitioner's total bid, including the prompt payment discount, would be lower than the total of individual bids, and that accordingly, he would be entitled to an award of all items. The evidence fails to support the assertion. The Petitioner identified one item at hearing for which the Petitioner should have received the award. The ITB sought bids to supply 24 galvanized one quart metal funnels, item #58115. One of the vendors proposed to supply a plastic funnel at a cost of .56 each. The next lowest bidder was the Petitioner which proposed to supply the metal funnel requested at a cost of $1.44 each. On a previous bid, a plastic funnel was proposed by a vendor and rejected by the District as not meeting the specifications. Although in the instant case, purchasing personnel were informed by supply personnel that a plastic funnel would serve the same purpose and was acceptable, the vendors were not provided the opportunity to bid on the provision of the plastic funnels. General condition 9.c. of the ITB states as follows: If the material and/or services supplied to the District is found to be defective or does not conform to specifications, the District reserves the right to cancel the order upon written notice to the seller and return the product to the seller at the seller's expense. In other words, the District has the right to reject delivery and cancel orders for items which are not as specified in the ITB and for which no variance was identified by the successful vendor. A vendor delivering goods which are not as specified in the vendor's proposal will not be invited to participate in the ITB process for an indeterminate period of time. At hearing, the Petitioner asserted that item #58800 (a plastic sheet of twelve garden hose washers) was mistakenly awarded to a vendor whose proposal was for individual washers rather than the sheet. The Respondent acknowledged that accordingly the proposed vendor's bid was not the lowest. The next two lowest bids (one of which is an "as specified" bid) were received from vendors other than the Petitioner. The Petitioner therefore would not receive this award. The Petitioner asserts that some bidders did not complete "drug-free workplace" forms. Although correct, the assertion is irrelevant. Such forms are used to determine award winners where there are identical bids ("ties"). There were no tie bids related to this case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: The School Board of Lee County enter a Final Order directing that the District Purchasing Department refrain from purchasing item #58115 pending the next invitation to vendors to submit bids for miscellaneous hardware supplies and otherwise DISMISSING the Petitioner's Notice of Bid Protest. DONE and RECOMMENDED this 2nd day of June, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of June, 1993. APPENDIX TO CASE NO. 93-1260BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 7. Rejected, irrelevant. Item #58038 does not require that ONLY an Ace Hardware item may be bid. Based on the ITB, it is clear that the item bid by Action Bolt & Tool meets the specifications set forth in the proposal. 11-12. Rejected, irrelevant. 14. Rejected, irrelevant. The evidence fails to establish that the Petitioner attempted to obtain the materials used by District personnel to evaluate the bids. 16-17. Rejected, irrelevant. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 9. Rejected, immaterial. 23. Rejected, irrelevant. 28. Rejected, unnecessary. COPIES FURNISHED: Dr. James A. Adams Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Garey F. Butler, Esquire Humphrey & Knott 1625 Hendry Street Fort Myers, Florida 33907 Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988
Findings Of Fact On September 4, 1984, the Department issued its initial Request for Proposal (RFP), RFP No. 2695-84, for office automation equipment to be used in a one-year pilot project at nine locations within the Neil Kirkman Building, Tallahassee, Florida. Under the terms of the RFP the Department had the option, based on the success of the pilot project and contingent upon future legislative fundings, to expand the system over a four year period to 254 locations statewide. Pertinent to this case is an understanding of the nature of the Request for Proposal (RFP) procedure. Under Section 287.057(3), Florida Statutes, where, as here, an agency determines that the use of competitive sealed bidding, an Invitation for Bids (IFB), is not practicable, contractual services shall be procured by an RFP. Section 287.057(3) provides: A request for proposals which includes a statement of the services sought and all contractual terms and conditions applicable to the procurement of contractual services, including the criteria, which shall include, but need not be limited to, price, to be used in determining acceptability of the proposal shall be issued. . . . To assure full understanding of and responsiveness to the solicitation requirements, discussions may be conducted with qualified offerors. The offerors shall be accorded fair and equal treatment prior to the submittal date specified in the request for proposals with respect to any opportunity for discussion and revision of proposals. The award shall be made to the responsible offeror whose proposal is determined in writing to be the most advantageous to the state, taking into consideration the price and the other criteria set forth in the request for proposals. . . . Whereas consideration of an IFB is controlled by cost, consideration of an offer to an RFP is controlled by technical excellence as well as cost. System Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982). Of further import to a resolution of this case, is a provision of the RFP which states: The Bidder's Equipment Agreement Form, Licensed Software or Services Form, or any other Form provided by the bidder, shall not be used since the bidder's proposal and the State's acceptance thereof shall constitute the complete agreement. Bids containing terms and conditions conflicting with those contained in this Request for Proposal may be rejected. The foregoing provision of the RFP, as well as Section 287.057(3), Florida Statutes, renders it clear that upon the State's acceptance the bidder's offer establishes the terms of the contract. Consequently, a responsive and unambiguous proposal is imperative under the RFP procedure. The RFP required that vendors submit their sealed technical and cost responses separately. If technically responsive, the vendor's cost response would be opened and evaluated; if not responsive, the cost response would be returned to the vendor unopened. The RFP granted vendors the opportunity to suggest changes to the RFP and to submit written inquiries. A bidders' conference, held September 26, 1984, was attended by twenty prospective bidders, including Petitioner. Petitioner submitted one written question regarding the bid bond, but submitted no further written inquiries regarding the RFP. The other vendors submitted approximately 160 questions. By Addenda I, dated October 1, 1984, the Department provided its written response to vendor inquiries, as well as certain changes to the RFP. Three subsequent addenda were also issued. The RFP, and addenda, constitute the bid document. Petitioner acknowledges receipt of all addenda. By October 19, 1984, the deadline established in the RFP, seven proposals and thirty no-bids had been filed with the Department. An evaluation committee consisting of Randolph Esser, chief of the Bureau of Information Services for the Department, and primary drafter of the RFP, Randy Walford, the Department's Systems and Programming Manager, and James K. Knerr, a data processing procurement consultant with the Department of General Services, reviewed the technical proposals of the seven vendors. The committee found the technical proposals of five vendors, including Petitioner, to be non-responsive. Accordingly, their cost proposals were returned unopened. The technical proposals of two vendors, Honeywell and Mohawk Data Systems (MDS), were found responsive. On October 24, 1984, the cost bids of Honeywell and MDS were opened. The committee found the cost proposal of MDS to be non-responsive. Accordingly, since only one bidder remained, the bid process was terminated. During the committee's review of the technical responses, it used a checklist which had been prepared by Mr. Esser to facilitate the committee's evaluation of the responsiveness of the various proposals. The checklist consisted of a list of bid requirements, according to RFP page number, followed by a "yes" or "no" space to be checked, as appropriate, if the proposal contained, or failed to contain, a particular requirement of the RFP. If the bidder's response was found technically unqualified, a narrative sheet was attached to the checklist explaining any shortcomings the committee had identified at that time. The committee did not purport to undertake an analytical critique of each vendor's proposal. The checklist and narrative sheet were collectively referred to as a "Technical Qualification Summary." Although the committee members considered the checklist an internal working document designed solely to assist them in evaluating the vendor's technical proposals, a copy of the Petitioner's checklist was released by the Department to Petitioner. Petitioner contends it relied on this checklist in preparing its responses to the rebid, and since the deficiencies found in its rebid were not reflected on the checklist for its initial bid, that the Department should be estopped from raising such deficiencies. On October 31, 1984, the Department issued its rebid, RFP No. 2695-84 (Rebid), which is the subject of these proceedings. The rebid documents were identical to those which comprised the initial bid documents with three exceptions. First, the deadline for filing bids was changed to November 19, 1984. Second, the special provision of the RFP which provided for a bidders' conference and the submission of proposed written changes was deleted. General Condition 5, however, which permitted a vendor to submit written inquiries up to ten days before the bids were opened, remained. Finally, accompanying the rebid documents, was a cover letter to the vendors from Merelyn Grubbs, the Department's chief of the Bureau of General Services. That letter, dated October 31, 1984, provided: Due to failure to receive responsive competitive proposals to this Department's Request for Proposal No. 2695-84 filed October 19, 1984, a rebid is being released. Attached is information reflecting the reasons bidders were found to be non- responsive. Bidders are encouraged to carefully examine their proposals submitted in response to the original Request For Proposal and to rectify any oversights within their responses. The Department will not accept changes to the Request For Proposal or contract. The attachment to Ms. Grubb's letter consisted of a composite of the narrative sheets prepared by the committee on each technically non-responsive proposal. The checklists were not, however, distributed with the rebid documents. On November 19, 1984, the deadline established in the RFP-Rebid, six proposals and fifteen no-bids had been filed. The evaluation committee, comprised of the same membership as the initial committee, first reviewed the technical proposals of the six vendors. The committee found the technical proposals of four vendors, including Petitioner, to be non-responsive, and their cost proposals were duly returned unopened. Petitioner's cost proposal was delivered to it on November 30, 1984. On November 21, 1984, the cost proposals of Honeywell and MDS, who were found technically responsive, were opened and each was fully evaluated. Honeywell emerged the apparent successful bidder. On November 29, 1984, after Honeywell had successfully passed a benchmark test for the proposed equipment, the Department posted its recommended award of the bid to Honeywell. On December 3, 1984, Petitioner filed its notice of intent to protest the award to Honeywell. Petitioner's Petition for Formal Hearing was filed with the Department December 12, 1984, and with the Division of Administrative Hearings on January 16, 1985. As part of its technical evaluation of the six rebid vendors, the committee again utilized its "Technical Qualification Summary," which consisted of the checklist and narrative previously described. The rebid evaluation was performed without reference to the initial technical evaluations or bid responses. The initial and rebid RFP required that a proposal include eleven separate tabs, each tab to describe specifically designated aspects of the proposal. Failure to meet any of the mandatory requirements of the RFP subjected the bid to rejection. On the technical evaluation of the initial bid, Petitioner was found non-responsive by the committee as to Tab 5 (Equipment Maintenance), Tab 6 (Application Support), Tab 7 (Training Support), and Tab 9 (Benchmark). The evaluation of Petitioner's rebid found Petitioner non-responsive as to Tab 4 (Licensed Software), Tab 5, Tab 6, Tab 7, and Tab 10 (Manuals). Petitioner's rebid varied from its response to the initial bid as to Tabs 5, 6, 7 and 9, with minor changes to Tabs 1, 2 and 3. Petitioner did not alter its response to Tabs 4 and 10. Rebid, Tab 4 -- Description of Licensed Software Special condition 4 of the RFP-Rebid required that the vendor include a complete description of each Licensed Software package bid under Tab 4. Petitioner's Tab 4 was found non-responsive because it did not include a description of the UNIX System V Application Processor which it had described in the Management Summary (Tab 1). Tab 1, Management Summary, was required to contain a brief synopsis of the vendor's proposal. Petitioner's Tab 1 proposal specifically stated: IMS (Petitioner) believes the proposed configuration, consisting of a megaframe acting as both a shared resource processor and a UNIX System V-based applications processor, provides the DHSMV with the latest in computer technology while offering substantial expansion capability in both memory and processing power. [Emphasis supplied.] UNIX is an item of software necessary to operate the UNIX applications processor. Petitioner's president, Russell Kelly, and senior consultant, William Childers, testified that the applications processor and UNIX software were only included in the proposal as an option. Therefore, Petitioner argues, Tab 4 was not unresponsive for failing to include UNIX as an item of software. Whatever Petitioner's "intent" may have been, Tab 1 clearly describes the UNIX System V application processor as part of the "proposed configuration," and UNIX is an item of software necessary to operate the application processor. Rebid, Tab 5 -- Equipment Maintenance The RFP contemplated an ultimate system comprised of 145 "locations" within the Neil Kirkman Building, Tallahassee, Florida, and 100 remote "locations" throughout the State of Florida. Consequently, the RFP required that a vendor's proposal include an agreement to provide on-site maintenance statewide. Petitioner's proposal provided: IMS will provide, in accordance with the RFP, on-site maintenance at all DHSMV locations for the Host Office Automation equipment, workstations and peripherals. [Emphasis supplied.] Petitioner's proposal was found non-responsive because it did not specify on- site maintenance was available for remotely located equipment. The "Host Office" was the Neil Kirkman Building. Therefore, the clear import of Petitioner's proposal was that it would provide on-site maintenance for the proposed 154 "locations" -- the automation equipment, workstations and peripherals -- to be located in Tallahassee. Petitioner's proposal did not specify on-site maintenance at the proposed 100 remote "locations." Petitioner asserted that its proposal contemplated on-site maintenance at all Department locations statewide. While that may have been Petitioner's intention, the language it selected to convey its proposal limits on-site maintenance to the Neil Kirkman Building. Rebid, Tab 6 -- Application Support Special Condition 6 of the RFP, Application Support, required that the: Bidder shall present and explain the methods and procedures to be employed by the bidder. "Addenda I" further defined application support to mean: . . . that any software acquired from the successful bidder and installed as a result of this RFP shall be supported by that bidder regardless of the type of software provided. . . . If third party software is involved, bidder shall be the State's primary contact for problem resolution. Petitioner's proposal provided: The Department shall be responsible to appoint a coordinator who will instruct the DHSMV remote sites on the unpacking and installation of the NGEN microcomputer, letter quality printer and modem. These personnel should be capable of loading the software at each remote site. Petitioner's Tab 6 was found non-responsive by the Department since it failed to describe any application support. Petitioner sought to avoid the import of its failure to respond to Tab 6 by suggesting that such failure was not material because certain matters of a support nature could be gleaned from other sections of its proposal. While a detailed review of Petitioner's proposal does reveal some items which could be considered application support, Petitioner's response was not in substantial accord with the RFP mandatory requirement that bids be submitted in the Tab format. Rebid, Tab 7 -- Training Support The RFP, and addenda, required that 12-15 persons be trained. Petitioner's proposal provided: IMS will provide user training in Tallahassee during the Pilot Project for 12 to 15 people. This training will cover the following aspects of the system: Word Processing two 4-hour sessions with 4 persons per session Multiplan two 12-hour sessions R : base two 8-hour sessions Workstation Software Overview one 16-hour session Workstation Operations two 2-hour sessions During years 2 through 4 IMS will conduct the above training courses once every four months at a location mutually agreed upon by the State and IMS. Except where indicated differently, sessions will be held for a maximum of 12 people. [Emphasis supplied.] Petitioner's proposal was found non-responsive since it failed to agree to provide training support for the required 12-15 persons. Specifically, Petitioner's proposal limited word processing training to 8 persons, not the 12- 15 required for the nine workstations/microprocessors to be installed. Rebid, Tab 10 -- Manuals Special condition 10 of the RFP required that: The bidder shall list all the Equipment and Licensed Software manuals required. Petitioner's response did contain a list of all manuals. However, Petitioner also inserted in Tab 10 a three-page "Software Licensing Overview " which, among other things, required a CTIX object code license agreement be signed before UNIX could be delivered. The RFP precluded the signing of any agreements not previously approved by the State. Accordingly, Petitioner's Tab 10 was found technically non-responsive. Petitioner asserted that Tab 10 was responsive and that the "Software Licensing Overview" was merely supplemental information for the UNIX "option." However, since UNIX was not clearly an "option," the Department was justified in interpreting the additional requirements set forth in the "Software Licensing Overview," as additional terms and conditions which it was precluded from accepting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the relief requested by Petitioner, Integrated Microsystems, Inc., be denied, and its petition dismissed with prejudice. DONE AND ENTERED this 15th day of March 1985 at Tallahassee, Florida. WILLIAM J. KENDRICK 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 15th day of March 1985. COPIES FURNISHED: Gary R. Rutledge, Esquire Sparber, Shevin, Shapo & Heilbronner, P.A. 315 South Calhoun Street, Suite 348 Tallahassee, Florida 32301 Judson M. Chapman, Esquire Paul A. Rowell, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 W. Douglas Smith, Esquire Office of General Counsel Honeywell Information Systems, Inc. 6 West Druid Hills Drive, Northeast Atlanta, Georgia 30329 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
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 Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In March of 1993, the Department issued an Advertisement for Bids (hereinafter referred to as the "Advertisement") through which it solicited the submission of bids on a construction project (Department Project No. NV-30A, which is hereinafter referred to as the "Project") involving the expansion of the water treatment facility at the Martin Correctional Institution. The Advertisement, along with the other bid documents issued in conjunction with the Advertisement, including, but not limited to, the Instructions to Bidders (hereinafter referred to as the "Instructions") and the Proposal Form, were compiled in a two-volume Specifications Manual (hereinafter referred to as the "Manual") that was made available for public inspection. Section B of the Manual's first volume contained the Instructions. Section B-2 2.A.(11) thereof provided that "Section 01420 as contained in the Technical Specifications must be submitted and the qualifications listed therein must be satisfactory to the Owner and the Engineer. " "Section 01420 as contained in the Technical Specifications" was a "Bidder's Qualification Form, Reverse Osmosis Treatment System Component" (hereinafter referred to as the "R.O. Form"), on which the bidder was to provide "R.O. [Reverse Osmosis] System Supplier" information. The R.O. Form repeated the directive that the bidder was to "[r]eturn [the] [c]ompleted [R.O.] Form [w]ith [its] proposal." Section B-14 of the Instructions addressed the subject of "preparation and submission of bids" and provided, in pertinent part, as follows: Each Bidder shall copy the proposal form on his own letterhead, indicate his bid prices thereon in proper spaces, for the Base Bid and for alternates on which he bids. . . . Proposals containing . . . . items not called for or irregularities of any kind may be rejected by the Owner. Section B-16 of the Instructions addressed the subject of "disqualification of bidders" and provided, in pertinent part, as follows: More than one bid from an individual, firm, partnership, corporation or association under the same or different names will not be considered. Reasonable grounds for believing that a Bidder is interested in more than one proposal for the same work will cause the rejection of all proposals in which such Bidders are believed to be interested. The subject of "contract award" was addressed in Section B-21 of the Instructions, which provided, in pertinent part, as follows: . . . The recommendation for contract award will be for the bidder qualified in accordance with Section B-2 and submitting the lowest bid provided his bid is responsible and it is in the best interest of the Owner to accept it. The qualified bidder submitting the lowest bid will be that bidder who has submitted the lowest price for the base bid, or the base bid plus additive alternates or less deductive alternates, taken in the numerical order listed in the bid documents in an amount to be determined by the Owner. The Order of the alternates may be accepted by the Owner in any sequence so long as such acceptance does not alter the designation of the low bidder. The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. Section C of Volume I of the Manual contained the Proposal Form that all bidders were required to use to indicate their bid prices. The following statement appeared at the bottom of the second page of the Proposal Form: There is enclosed: A certified check, cashier's check, treasurer's check, bank draft or Bid Bond in the amount of not less than five (5) percent of the Base Bid payable to the Department of Corrections, as a guarantee. An executed Trench Excavation Safety Certification, Section F-13. An executed Experience Questionnaire and Contractor's Financial Statement and Public Entity Criminal Conviction Form, Section L. An executed Bidder's Qualifications Form (Reverse Osmosis), Technical Specification Section 01420. While one completed R.O. Form had to accompany each bid, there was no provision in any of the bid documents issued by the Department requiring a bidder to submit only one such completed form and no more. Petitioner, McMahan and R.J. Sullivan Corporation (hereinafter referred to as "Sullivan") were among the contractors that timely submitted bids in response to the Advertisement. McMahan's and Sullivan's bids were each accompanied by more than one completed R.O. Form. Petitioner, on the other hand, provided the Department with only one completed R.O. Form along with its bid. Of the bids submitted, McMahan's was the lowest, Sullivan's was the second lowest and Petitioner's was the third lowest. McMahan's base bid price was $857,000.00. Petitioner's was $905,000.00. McMahan's total price, including the nine additive alternates accepted by the Department, was $948,000.00. Petitioner's was $1,032,600.00, $84,600.00 more than McMahan's. By letter dated July 1, 1993, the Department advised McMahan of its intent "to award the contract [for Department Project No. NV-30A] to [McMahan] as the lowest responsive bidder." On July 9, 1993, Petitioner filed a formal written protest of the preliminary determination to award the contract to McMahan alleging that McMahan was not a responsive bidder inasmuch as McMahan "submitted Reverse Osmosis ("R.O.") Qualifications Forms for more tha[n] one vendor." According to Petitioner, "[t]his [was] not in conformance with the Bid Documents and gave [McMahan] an unfair advantage."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Corrections enter a final order finding Petitioner's bid protest to be without merit and awarding McMahan, as the lowest responsive and qualified bidder, the contract for Department Project No. NV-30A. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of September, 1993. STUART M. LERNER 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 2nd day of September, 1993.
The Issue The issues concern the question of the responsiveness of Intervenor's bid to the invitation to bid (ITB) 92-66BC. If the Intervenor is not responsive, then Petitioner asserts that it should be awarded the contract as the second ranked bidder. In particular Petitioner alleges that there are certain irregularities in the response by the Intervenor and that they constitute material deviations from the bid requirements. They are in turn: Whether Intervenor failed to submit its price on the second addendum bid sheet as required or to acknowledge that its bid was being submitted in accordance with Addendum No. 2. Whether Intervenor failed to include its references with its bid response. Whether Intervenor failed to fill in the space on the bid form calling for cash discount terms. Whether Intervenor failed to fill in the space on the bid form calling for delivery days. Whether Intervenor failed to initial changes or corrections to its price quotation.
Findings Of Fact On September 14, 1992, Respondent mailed ITB No. 92-66BC to prospective bidders. The ITB called for "A bid for supplied items related to HRS data processing operations-Florida Project." Within the ITB was given the following explanation concerning bid items and bid prices: ITEM Unit Bid NO. Quantity Description Price 1 each IBM 4234 Print Ribbon (per month) (no substitutes) $ ea. 30 each IBM 4202 Ribbon (per month) (no substitutes) $ ea. 50 each IBM 4019 Laser Toner (per month) (no substitutes) $ ea. 650 each IBM 2380/2381 Print Ribbon (per month) (no substitutes) $ ea. 5 boxes Continuous Self-adhesive (per month) Labels $ ea. (labels are blank with no printing) overall size 5 3/4" x 6" including pin feed holes, label size 5" x 17/16", white labels, 1,000 per box $ per 1 each IBM 6262 Mylar Film Ribbon (per month) (no substitutes) $ ea. 650 each IBM 6262 5 Mil. Ribbon (per month) (no substitutes) $ ea. 8 boxes IBM 3800 Toner (3/box) (per month) (no substitutes) $ ea. 1 roll IBM Splicing Tape (per month) (no substitutes) $ ea. 2 boxes IBM 3800 Developer (2/box) (per month) (no substitutes) $ ea. On September 24, 1992, Addendum No. 1 was prepared related to the items that were being bid. It stated: The purpose of this Addendum #1 to the above referenced HRS bid invitation is to: (a) Clarity the individual IBM product specifications with IBM stock numbers (b) increase the quantity for item #1, and (c) extend the bid opening date. These changes are as follows: ITEM Unit Bid NO. Quantity Description Price Increase quantity IBM 4234 Print Ribbon of IBM 4234 Print Auto-Inking Ribbon (Auto-Inking) IBM Stock #1380160 from 1 ea./mo. to "30 ea./mo.". $ ea. Same Quantity IBM 4202 Ribbon as previously IBM Stock #1040150 specified $ ea. Same Quantity IBM 4019 Laser Toner High Yield IBM Stock #1380200 $ ea. Same Quantity IBM 2380/2381 Print Ribbon IBM Stock #1040930 $ ea. Same Quantity Continuous Self-Adhesive Labels $ ea. Same Quantity IBM 6262 Mylar Film Ribbon IBM Stock #1040400 $ ea. Same Quantity IBM 6262 5 Mil. Ribbon High Contract IBM Stock #1040300 $ ea. Same Quantity IBM 3800 Toner IBM Stock #1669122 $ ea. Same Quantity IBM Splicing Tape IBM Stock #4165880 $ /cn. of 72 rolls Same Quantity IBM 3800 Developer 2/box IBM Stock #1162223 $ /box Addendum No. 1 also moved the bid opening date from September 24, 1992, until September 30, 1992. Addendum No. 2 was issued on September 28, 1992, concerning bid items. It stated: The purpose of this 2nd Addendum to the above referenced bid invitation is to incorporate the "packaging" (3 per box) on item #8 and to add/clarify the individual "units" on which "Unit Bid Prices" shall be based. These changes are as follows: ITEM Unit Bid NO. Quantity Description Price Increase quantity IBM 4234 Print Ribbon of IBM 4234 Print Auto-Inking Ribbon (Auto-Inking) IBM Stock #1380160 from 1 ea./mo. to "30 ea./mo.". $ ea. Same Quantity IBM 4202 Ribbon as previously IBM Stock #1040150 specified $ ea. Same Quantity IBM 4019 Laser Toner High Yield IBM Stock #1380200 $ ea. Same Quantity IBM 2380/2381 Print Ribbon IBM Stock #1040930 $ ea. Same Quantity Continuous Self-Adhesive Labels $ ea. Same Quantity IBM 6262 Mylar Film Ribbon IBM Stock #1040400 $ ea. Same Quantity IBM 6262 5 Mil. Ribbon High Contract IBM Stock #1040300 $ ea. Same Quantity IBM 3800 Toner IBM Stock #1669122 $ ea. Same Quantity IBM Splicing Tape IBM Stock #4165880 $ /cn. of 72 rolls Same Quantity IBM 3800 Developer 2/box IBM Stock #1162223 $ /box The second addendum changed the bid opening date to October 9, 1992. Petitioner and Intervenor received the addenda. Notwithstanding the attempts at clarification concerning the bid items, Item No. 6 continued to be problematic in that the description of the ribbon type was Mylar Film; however, the stock number shown opposite the item identified was for nylon ribbon. Respondent intended to purchase Mylar ribbon. Intervenor was made aware that the agency desired Mylar ribbon by its Item No. 6. This information was imparted before the bid opening. Although William F. Cox, Respondent's employee who was responsible for the ITB has no specific recollection of discussing the problem about Item No. 6 with a representative from Petitioner's corporation, John C. Lyons, a representative for Petitioner's corporation does recall a discussion. Lyons' understanding in conversation with Cox was that disposition would be made concerning item 6 after a winning vendor had been selected, that disposition having to do with rectification of the confusion surrounding the item description and stock number. Prior to bid opening Cox had reached as many bidders as he felt time would allow him to contact concerning the problem with Item No. 6. Time was of the essence in that the contract which Respondent had with the existing vendor who supplied the items sought by the ITB was expiring and the federal government from whom funding for this activity was being received was insisting on moving the project forward. This reason for bidding was to change from a sole source purchasing arrangement to a purchase under competitive bidding. The existing vendor was a sole source and the ITB was designed to substitute competitive bidding for that approach. Cox was unsure how he would deal with responses pertaining to Item No. One alternative was that if he had two responsive bids which included reference to Mylar ribbon that would suffice. Another option would be to throw out Item No. 6 and consider the award on the basis of the other nine items. Intervenor bid Mylar ribbon on Item No. 6 together with a number of other vendors who submitted responsive bids for Mylar ribbon on Item No. 6. Petitioner bid nylon ribbon on Item No. 6. All ten vendors who submitted responses were found responsive to the ITB. Because Intervenor had bid Mylar ribbon on Item No. 6 and other vendors had also bid Mylar ribbon on Item No. 6, Cox elected the option to leave Item No. 6 in the price quotation for determining the ranking for vendors. The decision to award the overall contract was decided on the basis of price in the aggregate for the ten items in question. Although Petitioner had bid nylon ribbon on Item No. 6, this was to the Petitioner's advantage in comparison to other vendors concerning the price competition. The reason for this finding is that nylon ribbon is a less expensive ribbon than Mylar ribbon. When the bids were opened on October 9, 1992, the basis for assessing compliance with the terms of the ITB was controlled by the terms of the ITB; Chapter 287, Florida Statutes; Chapter 13A, Florida Administrative Code, and Chapter 13A, Florida Administrative Code, as interpreted by Mr. Cox without benefit of any additional guidelines which Respondent may have established for assessing responsiveness. That approach was not irregular. The price quotations for line items within the bid blank offered by Intervenor were set out in the ITB and Addendum No. 1. Addendum No. 2 was not attached. Petitioner attached both addenda to its response and set out the prices on the addenda. Petitioner did not set out the prices on the ITB. Notwithstanding the failure to submit Addendum No. 2 with its response, Intervenor was aware of its requirements when submitting its response. While it is the ordinary expectation that Addendum No. 2 would have been submitted, this oversight does not constitute a material deviation from the requirements set out in the ITB. The basic description of the ten items that were being bid remained consistent beginning with the ITB and continuing through the addenda. An examination of the price responses by the Intervenor when compared to Petitioner's responses and those made by other vendors does not lead to the conclusion that the failure to use the blank for Addendum No. 2 compromised the Intervenor's response. This finding is made with the knowledge of the language under general conditions to the ITB referring to sealed bids where it says "all bid sheets and this form must be executed and submitted in a sealed envelope. . . . Bids not submitted on attached bid form shall be rejected. All bids are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection." Because of what Mr. Cox perceived as possible confusion by the vendors concerning the number of attempts to clarify the terms of the items to be bid, he did not feel that a vendor should be penalized for not recording the price quotations on the addenda. This perception is acceptable. Finally, additional evidence concerning the underlying similarities between the initial invitation to bid and the addenda is borne out by the fact that both the Petitioner and Intervenor in recording the price quotations in two places in their responses were consistent in those quotations. Included within the ITB was a section entitled "Background Statement." It stated: The computer related supplies which will be purchased from this bid/contract will be used by the department's data center in Tallahassee and statewide district service centers in the timely provision of a range of critical client services. The ability of the department's statewide data processing network to deliver these services in a responsive manner is critical to the very livelihood of many of these individuals. For this reason, the department will require that responding vendors provide a minimum of three (3) company references and provide other pertinent information, as required, to substantiate that the company is capable by experience and resources, to fulfill the provisions of this contract in a timely, competent and professional manner. The requirement for providing three company references was not one which made it incumbent upon the vendor to submit the references with the response to the ITB. The ITB is silent on the use of the information concerning references, that is to say the verification of those references and how that might be achieved. The vendor is only responsible for providing the information. Respondent may then use the information in any manner it desires. Although it is the ordinary practice of the Respondent to check the references prior to posting the intent to award, nothing in the ITB makes it incumbent upon the Respondent to do so and the vendor will not be held accountable for the Respondent's failure to comply with its customary practice by not checking the references prior to the posting of the intent to award. Intervenor did not provide the references with its response to the ITB. When Cox reminded Intervenor that it had not provided the references, the references were faxed to Cox on the day that the results concerning the ITB were posted. Two of the three references were checked on the day of posting following the posting. The third reference was not available to confirm the suitability of this vendor to supply the bid items in question. Moreover, the items being bid were from a single manufacturer, IBM. The vendors who were participating in the response, including Petitioner and Intervenor, were companies who had business affiliations with IBM that allowed necessary access to the bid items being sought. In summary, there was no requirement to provide references with responses and Intervenor did supply information about its references in a timely manner and the treatment of those responses by Respondent was appropriate. Within the general conditions to the bid is language to the affect that "all corrections made by bidder to his bid price must be initialled." Intervenor in Item No. 5 found within the basic bid blank and Addendum No. 1 changed bid by obliterating information and substituting the price $3.95 per box. This was an irregularity. The manner in which the irregularity was addressed by Mr. Cox minimized its influence and caused it to be other than a material deviation from the terms of the ITB. When Mr. Cox opened the Intervenor's response and discovered this change to Item No. 5 which had not been initialled he held up the response and said, "I have a bid with a change here I want to show it." This was presented in front of other vendors who were in attendance at the bid opening. Petitioner was not in attendance. A member of Respondent's staff other than Cox also saw this display and heard the remarks. This approach demonstrated that the Respondent had not made the changes in the person of its employee and by inference verified that the change had been made by the Intervenor. The nature of the change does not leave ambiguity concerning the intention by the Intervenor in that the prior entry on Item No. 5 within the basic invitation to bid blank and Addendum No. 1 had been obliterated leaving only the price quotation in the amount of $3.95 thus this problem is a minor irregularity and not a material deviation from the terms concerning the ITB. The delivery time contemplated for providing the bid items was ten working days by shipment FOB destination. This was as announced in Paragraph Although the front page to the ITB carries with it a blank for recording the delivery date where it says "delivery date will be days after receipt of purchase order", it was not necessary for a vendor to fill that number of days in. The reason is that the number of days had already been established by the terms of the ITB and no latitude was presented to a vendor to suggest otherwise. If a vendor chose to fill in the ten days required by Paragraph 11 by placing the number ten on the lead sheet to the ITB, this was a redundant act. Likewise on the lead sheet to the ITB is found a blank for recording the "cash discount terms". Reference to cash discount terms was not a specific requirement within the ITB, especially as it relates to a comparison of responses by the vendors in deciding who would be awarded the contract. Therefore, the failure by the Intervenor to record its cash discount terms on the lead sheet to the ITB in a setting in which Petitioner had offered such information is not a deviation from the requirements set out in the ITB. Under general conditions at Paragraph 4.b. concerning discount, it is stated "cash discounts for prompt payment shall not be considered in determining the lowest net cost for bid evaluation purposes." Nothing in the remaining text found in the ITB was contrary to that statement. The price difference between the responsive bid by the Intervenor and the responsive bid by the Petitioner was $102 in a setting in which Intervenor had the lowest price and Petitioner had the second lowest price.
Recommendation Upon consideration of the findings of facts found and the conclusions of law reached, it is, recommended that a Final Order be entered which dismisses the bid protest of the Petitioner and awards the contract to Intervenor, together with costs in the amount of $764. RECOMMENDED this 14th day of January, 1993, in Tallahassee, Florida. CHARLES C. ADAMS 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 14th day of January, 1993. APPENDIX CASE NO. 92-6824BID The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts Paragraphs 1 through 5 with the exception of the last subparagraph to Paragraph 5 are subordinate to facts found. The last subparagraph to Paragraph 5 is rejected as the reason for deciding that the Intervenor had complied with the requirements for references. Paragraph 6 is subordinate to facts found with the exception of the discussion related to Mr. Lyons and his understanding of what must be done in making changes through the initialling process. Mr. Lyons insights do not set aside the perception that the failure to initial by Intervenor was a minor irregularity. Paragraph 7 is subordinate to facts found. As to Paragraph 8, the fact that Mr. Cox did not make a specific determination about Item No. 6 related to the response by the Petitioner did not disadvantage the Petitioner in a way that should cause a change in the outcome. Paragraphs 9 through 11 are subordinate to facts found. Respondent's Facts Paragraphs 1 through 8 are subordinate to facts found. Paragraph 9 is not necessary to the resolution of the dispute. Paragraphs 10 through 28 are subordinate to facts found. COPIES FURNISHED: John C. Pelham, Esquire Pennington, Wilkinson & Dunlap, P.A. 3375-A Capital Circle, N.E. Tallahassee, Florida 32308 Robert L. Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 James Cody, Jr. IT Products, Inc. 5303 East Colonial Drive Orlando, Florida 32807 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John C. Lyons, Senior Account Manager 321 West Exchange Street Akron, OH 44302 Associated Computer Stipulations 1801 North Meridian Road Tallahassee, FL 32303 SAI/Delta, Inc. Suite 1014 670 North Orlando Avenue Maitland, FL 32751 Best Line Office Machines, Inc. Post Office Box 37381 Pensacola, FL 32526-0381 FRC Office Products Post Office Box 10163 Jacksonville, FL 32247-0163 Matrix Data Corporation Post Office Box 36150 Cleveland, OH 44136 Center Office Products 625 West Gaines Street Tallahassee, FL 32304 Computer Solutions/Connecting Point 4405 Bayou Boulevard Pensacola, FL 32503 Forms Management, Inc. Post Office Box 4004 Tallahassee, FL 32315
Findings Of Fact American Asphalt, Inc., a bidder fully qualified to bid on this project, did not include a printed hard copy (paper copy) along with its bid diskettes when it timely submitted its bid on State Project No. 92130-3423 before 10:30 a.m. on July 28, 1993. (Prehearing Stipulation) The bid blank included with this bid (Exhibit R8) showed on the front of the document the total amount of the bid as $2,526,335.16 which is $201,662.70 below the next lowest bid. However, the various items to be included in the bid which totalled the amount shown on the front were left blank on Exhibit R8. A hard copy run from the bid diskette included with the bid package was filed with the Department at 10:38 a.m. on July 28, 1993, eight minutes after the deadline for bid submissions, and a copy was admitted into evidence as Exhibit P1. The total of the items listed on Exhibit P1 and on the diskette is $2,526,335.16, the same as shown on the front page of Exhibit R8 timely submitted with the bid. In October 1988, the Department instituted Contract Electronic Bidding (CEB) where the Department supplies bid proposal forms and a computer diskette designed to operate on IBM personal computers or IBM compatible computers. The only entries into the CEB program by the bidder that are permitted are the company name, vendor number, base codes, reason code, addendum number, and the unit or lump sum prices for items that must be bid in order to produce an official bid item list (Exhibit R2 Section 2-2). The CEB program is intended to simplify the bidding process for both the Department and bidder. Changes made in unit prices while using this program are immediately reflected in the overall bid. Diskette Bidding Instructions (Exhibit R6) was received by Petitioner with its bid package. Item 1 under instructions for submission of computer generated bids provides: The printed hard copy returned form (sic) contractor is the only acceptable bid and must be accompanied by the diskette from which it was printed. Supplemental Specifications (Exhibit R4) which accompanied the standard bid specifications submitted with the bid package provides in pertinent part: The computer-generated bid item sheets that are submitted must be printed from the diskette that is returned. When a diskette other than the one furnished by the Department is utilized to generate the official bid, the diskette submitted must have a label attached indicating the Contractor's Name, Vendor Number, Letting Date, Revision Date (if applicable) and the State Project Number. When a bid is submitted with hard copy but without a diskette or a diskette unreadable or containing a virus, the Department prepares a diskette from the hard copy which can be entered into the Department's mainframe computer. Last minute changes to a bid may be made by the bidder on the hard copy by interlining or whiting out the changed figure and writing in the new figure which must be initialled by the bidder. When such an altered bid is received, both of the Department's first and second checkers of the bid initial the change. Because the bid submitted by Petitioner did not contain a completed hard copy at the time specified for bid opening the Technical Review Committee voted unanimously and the Contract Awards Committee voted two to one to recommend the apparent low bid submitted by American Asphalt, Inc. be declared irregular for failure to turn in a completed computer generated bid item sheet with their bid package; and that the bid be awarded to the next lowest bidder (Exhibit R9 and R10). Item 3-1 of the standard bid specification (Exhibit R3) provides in pertinent part: Until the actual award of the contract, however, the right will be reserved to reject any and all proposals and to waive technical errors as may be deemed best for the interest of the State.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a final order be entered rejecting American Asphalt, Inc.'s challenge to the award of State Project No. 92130-3423 to Hubbard Construction Company. DONE AND RECOMMENDED this 2nd day of December, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 2nd day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5855BID Petitioner's proposed findings are accepted except: 15. Rejected. See Hearing Officer Conclusion of Law #20.-21. 17. Rejected. See Hearing Officer Conclusion of Law #22. Respondent's proposed findings are accepted. COPIES FURNISHED: Charles G. Gardner Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 James W. Anderson, Esquire SAVLOV & ANDERSON, P.A. Post Office Drawer 870 Tallahassee, Florida 32302 Ben G. Watts, Secretary Attn: Eleanor F. Turner, Mail Station #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Respondent advertised for bids for work to be performed on the Statewide Regional Juvenile Detention Center located in Pasco County identified as Project Number HRS 85-300000. In response to this advertisements Petitioner and Intervenor timely submitted bids on January 23, 1966. According to calculations performed by Respondent, Petitioner was low bidder and Intervenor was the next lowest bidder. The construction budget for this job is $1.5 million, and both bids are considered by Respondent to be within budget. Depending on the alternatives chosen within each bid, Petitioner's bid is lower than Intervenor's by between approximately $6,000 and $40,000. Section B-14 of the advertisement for bids requires each bidder to submit a list of the subcontractors who will perform work on the job for him and specifies that only one subcontractor shall be listed for each phase of the work. Section D of the advertisement for bids specifies the work areas for which a subcontractor must be listed and states that said list is an integral part of each bid submitted. The subcontracting areas include electrical plumbing, mechanical, roofing security control systems, food service equipment and fire protection. Petitioner's bid was rejected on February 4, 1986, because its bid failed to include a roofing subcontractor's name as required in the advertisement for bids. Petitioner does not dispute that its bid was incomplete when submitted since it failed to identify a roofing subcontractor. However, Petitioner contends this omission was a result of clerical error in typing the bide and that, in fact, it had selected Republic Roofing as its subcontractor. John Breen, Petitioner's project manager, testified that it was his intent to use Republic Roofing when he submitted the bide that he had a firm bid from Republic Roofing, and that when this omission was brought to his attention after bids were opened, he identified Republic Roofing in writing on January 24 and 29, 1986, to Brian Seufert an intern architect working for Respondent's project architect. Seufert confirms Breen's testimony through affidavit jointly filed by the parties. Seufert indicates that the project architect has no reason to believe that Petitioner could not perform the work required by the project. By affidavit jointly filed by the parties, Joyce Kleja secretary for Petitioners also supports Breen's testimony about her clerical error in omitting the roofing subcontractor when she typed the bid. Ray Scerbo, an estimator for Republic Roofing, disputes the testimony of Breen through jointly filed affidavit. Scerbo indicates it was not until a couple of days after the bid opening that he was told by Petitioner that Republic Roofing "had the job" if Petitioner was awarded the contract. This conflicts with the first written notice from Breen to Seufert dated January 24, 1986, as well as Seufert's affidavit that Petitioner told Seufert on January 24, 1986, that Republic Roofing had been selected. Scerbo is no longer employed by Republic Roofing. After considering all of the evidence, it is specifically found that Petitioner's omission of Republic Roofing from its list of subcontractors was through clerical error and that Petitioner had firmly decided to use Republic Roofing for subcontracting work prior to submission of its bid. The advertisement for bid required all subcontractors to be listed in any bid in order to allow Respondent to review prior performance and licensure of subcontractors, and also to prevent "bid shopping". Bid shopping is a practice which inflates a general contractor's bid and therefore the actual award by encouraging subcontractors to initially submit high bids to the general contractor and then negotiate a lower price with the general contractor who has received the award. The general contractor's bid remains inflated however and in this way the cost to the state is increased.
Recommendation Based upon the foregoing it is recommended that Respondent enter a Final Order awarding Project Number HRS 85-300000 to Intervenor. DONE and ENTERED this 1st day of April 1986, at Tallahassee Florida. DONALD D. CONN 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 1st day of April 1986. APPENDIX (DOAH CASE NO. 86-0495B1D) Petitioner has submitted a memorandum and a Proposed Recommended Order, both of which appear to set forth proposed findings of fact in unnumbered paragraphs. For purposes of ruling thereon, the unnumbered paragraphs which appear to set forth proposed findings have been consecutively numbered. Memorandum: Introductory material and not a proposed finding of fact. Adopted in part in Findings of Fact 1, 2, 3, 4, but otherwise rejected as cumulative and unnecessary. Adopted in Findings of Fact 5, 7. Rejected as simply a summary of testimony and evidence and not a proposed finding of fact. Rejected as irrelevant. Adopted in part in Findings of Fact 5, 6. Adopted in part in Finding of Fact 4, but rejected in part in Finding of Fact 2 and otherwise rejected as not based on competent substantial evidence. Proposed Recommended Order: Adopted in part in Findings of Fact 1, 3, but otherwise rejected as unnecessary and irrelevant. Rejected as irrelevant. Adopted in part in Finding of Fact 2, but otherwise rejected as contrary to Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 5, 7. Adopted in Finding of Fact 4. Rulings on Respondent's and Intervenor's jointly filed Proposed Findings of Fact: Adopted in Findings of Fact 1, 3. Adopted in Findings of Fact 1, 2. Adopted in Findings of Fact 4, 5. Adopted in Finding of Fact 8. , 6. Adopted in Findings of Fact 6, 7. COPIES FURNISHED: Dennis R. Long Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 Sam Powers Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 William Page; Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 John P. Fons Esquire Post Office Drawer 11307 Tallahassee, Florida 32302
