Findings Of Fact Based on the record transmitted to the Division of Administrative Hearings by the Petitioner, the following are found as the relevant facts: The Respondent, Hinson Oil Company, owns four outdoor advertising signs in Gadsden County, Florida, located on the south side of I-10, in the proximity of County Road 270-A. On October 3, 1984, the Department of Transportation notified the Respondent in writing that these signs violated Section 479.11, Florida Statutes, in that they were alleged to be located in an area which is not a zoned or unzoned commercial or industrial area. The return receipt was signed by E. W. Hinson, Jr., on October 9, 1984. Paragraph 2 of the notices of violation served on October 3 and received on October 9, 1984, sets forth the following procedural requirements: You must comply with the applicable provisions of said Statute(s) and Cede(s) within thirty (30) days from the date of this notice, . . . or in the alternative, an administrative hearing under Section 120.57, Florida Statutes, must be requested by you within thirty (30) days of the date of this notice . . . E. W. Hinson, Jr., on behalf of the Respondent, requested an administrative hearing by letter dated November 16, 1984. This request was received by the Department of Transportation clerk on November 19, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing with prejudice the Respondent's request for an administrative hearing in each of these cases. THIS RECOMMENDED ORDER entered this 24th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire and Maxine Fay Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 E. W. Hinson, Jr. Hinson Oil Company P.O. Box 1168 Quincy, Florida 32351 John Curry, Esquire P.O. Drawer 391 Quincy, Florida 32351
The Issue Whether the changes to the Department's Invitation to Bid (Rebid II) suggested by Polaroid and/or NBS should be made? GENERAL. The Parties. The Department is the state agency charged with, among other things, the responsibility to adopt and implement a program for the production of color photographic drivers' licenses for the State of Florida, pursuant to Chapter 322, Florida Statutes. Polaroid and NBS are the two major suppliers of equipment and materials used in the majority of states to produce color photographic drivers' licenses. Both serve approximately 50 percent of the States. NBS is the current supplier of color photographic drivers' licenses in the State of Florida. Definitions. Florida's color photographic drivers' license is essentially a picture of the driver and a data card containing pertinent information about the driver. A camera takes a picture of the driver and the data card simultaneously. The picture is developed in a relatively short period of time and the resulting picture is laminated with a clear plastic. The size of the portion of the driver photographed and the data card are reduced, obviously, when the picture is taken. The terms reduction factor refer to the size of the resulting license compared to the original data card. For example, a requirement that the license not have a reduction factor of greater than 40 percent means that the resulting size of the picture of the data card photographed must be a least 60 percent of its original size. The resulting picture of the driver and the data card is referred to as the core. The core consists of a picture of the driver's face, neck and shoulders, the data card and a "header bar" which is the area above the data card containing "Florida Driver License" on the currently used drivers' license in Florida. The core may be fully laminated with clear plastic. If so, the laminate may be sealed in two ways: "flush-cut" or "lip-seal." If the lamination goes just to the edges of the core, this is referred to as a flush- cut design. If the laminate goes beyond the edges of the core and the front and back lamination is sealed together, this is referred to as a lip-seal design. The type of film used generally is referred to as either "paper-based film" or "plastic or polyester-based film." If the core consist of paper-based film the core will consist of a layer of plastic on the front and back and a paper center. If the core consist of plastic-based film the core will be all plastic. An ultraviolet or black-light security feature means that letters or an image of some kind can be seen with the naked eye only under an ultraviolet or black-light. HISTORY OF FLORIDA'S COLOR PHOTOGRAPHIC DRIVERS' LICENSE. The Initial Contract. Color photographic drivers' licenses (hereinafter referred to as "License" or "Licenses"), have been used in the State of Florida since December 3, 1973. The initial contract entered into by the Department for the provision of Licenses (hereinafter referred to as the "Initial Contract") was with DEK Processes Division of Scott & Fetzer Company. The DEK Processes Division of Scott & Fetzer Company was acquired by NBS in March of 1985. The Initial Contract was entered into for the period 1973 to 1977. The Licenses produced pursuant to the Initial Contract were laminated with a lip seal, measured 3-3/8" x 2-1/8", had a paper-based film core which measured 2-3/4" x 1-3/4" and cost the State 37.98 cents per License. The Initial Contract was renewed in 1977. The renewed contract was valid through 1981 and provided for Licenses which measured 3-3/8" x 2-1/8", flush-cut sealed lamination, a polyester-based film core and cost the State 36.725 cents per License. By using a flush-cut seal, the size of the film core increased to the same size as the License. This increase in size was instituted because of negative reactions to the legibility of the Licenses produced under the Initial Contract raised by law enforcement, merchants and the public. The 1982 Contract. In 1981 the Department solicited bids for a new four-year contract with a four-year extension option (increasing the length of the contract to June 30, 1990). The 1981 Invitation to Bid allowed a large or small license and the use of a paper-based or plastic-based film core. Both Polaroid and NBS submitted bids on the 1981 Invitation to Bid. NBS was awarded the contract, which it entered into with the Department on February 22, 1982 (hereinafter referred to as the "1982 Contract"). The 1982 Contract contained the following relevant provisions: The initial term of the contract was through June 30, 1986; Licenses were to be lip-sealed; The Licenses were to measure not less than 2-3/4" wide and 1-3/4" high and not more than 3-3/8" x 2-1/4" before lamination; A paper-based film core measuring 2-3/9" x 2-3/4"; The price per License to the State during the first four years was to be 42.9 cents; The price per License to the State during any extension was to be 42.9 cents plus or minus the increase or decrease in the cost of material; and The contract could be extended for an additional four years through June 30, 1990. The laminate had to be bonded to the License in such a way that it would be impossible to remove the laminate without destroying the License; and The License had to have an ultraviolet or "black- light" security feature. The current Florida License is produced pursuant to an extension of the 1982 Contract. The First Invitation to Bid - 1985. In June of 1985 the Department decided to issue an invitation to bid seeking to let a new License contract rather than exercising the option to renew the 1982 Contract. This decision was made because of a desire to improve the legibility, security and durability of the currently produced License. In June, 1985, Major Clay W. Keith, former Director of the Department's Division of Drivers' Licenses, proposed the appointment of a task force to study the License in use in 1985 under the 1982 Contract and possible improvements thereto. Major Keith proposed the task force in anticipation of the June, 1986, expiration of the initial four-year term of the 1982 Contract. Three major concerns were raised by the Department with regard to any License the State issued: legibility, durability and security. The Department had received complaints from law enforcement and merchants concerning eligibility of the existing License and previous Licenses. The Department had also received complaints concerning the ability to counterfeit or alter the existing License and previous Licenses. The Department had also had problems with the durability of previous Licenses. Additionally, current law allows renewal of Licenses for six year terms and up to eight or ten years in some cases. On July 3, 1985, Major Keith advised Mr. Leonard R. Mellon, the Director of the Department, and Mr. Fred Dickinson, Deputy Director of the Department, by memorandum that a task force of persons with the expertise believed to be needed to study the existing License was being formed to decide what type of License to use in the future. 0n July 10, 1985, Mr. Mellon wrote a note to Major Keith indicating the following: I do not want a task force established for this purpose. Please see me as soon as possible to discuss this matter. Major Keith, as directed, saw Mr. Mellon. Mr. Mellon gave Major Keith a sample License and told Major Keith that the sample License was what the Department wanted. The sample License was an all-plastic License, similar in design and thickness to a credit card. It had embossed letters, like a credit card, of certain information. Mr. Mellon explained that the sample License would meet the Department's desire to provide a License which was durable, legible and secure. Mr. Mellon obtained the sample License he gave to Major Keith from representatives of NBS, including Barry Horenbein, during a demonstration of identification cards made by DEK sometime during 1985. The 1985 demonstration was attended by Mr. Mellon, Mr. Horenbein, Mr. Vince Toffany, Mr. Carlos Urrutia and Mr. Bobby Bowick. Mr. Toffany, Mr. Urrutia and Mr. Bowick are representatives of NBS. Mr. Horenbein is the legislative liaison of NBS in Florida and has been a close personal friend of Mr. Mellon for over 27 years. The Department ultimately learned that the sample License given to Major Keith by Mr. Mellon could not be produced in the manner that Licenses are produced in Florida. The sample License was produced in a laboratory-type setting and it would be too costly to produce "over the counter" as Licenses are produced in Florida. In the Fall of 1985 the Department issued an invitation to bid instead of renewing the 1982 Contract with NBS and decided not to attempt to produce a License identical to the sample License given to Major Keith by Mr. Mellon. The Department decided to issue an invitation to bid in order to obtained a more legible, durable and secure License. The Department issued an Invitation to Bid on November 27, 1985 (hereinafter referred to as the "First ITB"). Among the specifications contained in the First ITB, were the following: The film core of the License was to be a plastic-based film core; Lamination: flush-cut seal; The License was to measure 3-3/8" x 2-1/8"; and An ultraviolet security system. No requirement as to the maximum reduction factor was contained in the First ITB. At the time the First ITB was issued, Polaroid did not yet have plastic-based film. The Department was not aware of this fact at the time. NBS did have plastic-based film. Based upon information provided to the Department by Polaroid representative, the Department believed that Polaroid could provide a plastic-based film. In fact, Christ Rousseff, an employee of Polaroid, sent a letter dated August 2, 1985, to Mr. Mellon informing him that Polaroid could provide an all plastic-based License. Polaroid and NBS submitted bids in response to the First ITB in January, 1986. Polaroid's bid cost per License was 49.9 cents and NBS's bid cost per License was 56.6 cents. On January 27, 1986 the first bid tabulations indicated that Polaroid's bid was non-responsive as a result of Department of Agriculture testing of the License bid by Polaroid. Polaroid had used a paper-based film core which was revealed in the testing and was contrary to the specifications of the First ITB. NBS's bid to the First ITB was also rejected because the Department of General Services determined that there had not been two responsive bids submitted. The rejection of bids on the First ITB became final agency action. The Department began to prepare a new invitation to bid. On March 6, 1986, Polaroid, at the request of the Department, conducted a demonstration of the type of License it could provide to the Department. Polaroid demonstrated a fully-laminated, lip-sealed, paper-based film core License. The demonstration was attended by Major Keith, Mr. James W. McInnis and other employees of the Department. Mr. Mellon spent about 5 minutes at the demonstration. On March 12, 1986, Major Keith sent a memorandum to Mr. Mellon through Mr. Dickinson concerning the Polaroid demonstration. The Memorandum indicated that Division of Drivers' License personnel agreed that Polaroid had demonstrated the ability to provide an acceptable License. Extension of the 1982 Contract. On March 23 1986, a Sunday, Mr. Mellon and Mr. Dickinson spent the afternoon at the home of Mr. Horenbein. Present were Mr. Horenbein, Mr. Toffany and Mr. Bowick, all of whom represented NBS. A buffet dinner was served. Discussions occurred on this date concerning the price which would be charged for Licenses and whether additional cameras could be provided if the 1982 contract was extended for an additional four years pursuant to the renewal option contained in the 1982 Contract. Mr. Mellon, on behalf of the Department, and the representatives of NBS agreed at the Sunday dinner that the 1982 Contract would be extended. Agreement was reached on a price per License to be paid and on the provision of additional cameras. Other discussions had taken place concerning whether to extend the 1982 Contract. On Monday, March 24, 1986, Mr. Dickinson met with Department personnel and informed them that the 1982 Contract would be extended. A Renewal of Color Photographic Driver License Agreement was prepared. This agreement provided that the price per License for the extended term would be a set price of 42.9 cents instead of the 42.9 cents per License adjusted for any increase or decrease in the cost of sensitized photographic materials and laminates as specified in the 1982 Contract. The renewal also provided that NBS would provide additional camera equipment. The Department executed and tendered to the Department of General Services its proposed exercise of the option to renew the 1982 Contract. This action by the Department extended the 1982 Contract through June, 1990. Major Keith was not aware of the renewal until after the renewed agreement had been executed. At the time the Department exercised its option to extend the 1982 Contract, the Department only had one week left in which to exercise its option. The option to renew had to be exercised at least ninety days prior to the expiration of the initial term of the 1982 Contract. Because of the lack of time remaining during which the Department could exercise its option, Mr. Mellon decided that renewing the 1982 Contract was in the best interest of the Department. The Department was able to obtain a License at no substantial increase in cost for an additional four years. Following the execution of the renewal of the 1982 Contract, Polaroid filed two Notices of Protest which were filed with the Division of Administrative Hearings by the Department. The Protests were assigned case numbers 86-1337 and 86-1372. On May 6, 1986, Polaroid, the Department and NBS entered into an agreement settling the dispute in case numbers 86-1337 and 86-1372. Pursuant to the settlement agreement, NBS agreed to continue providing Licenses at a cost of 49.58 cents per License. The term of the renewal was shortened to expire on August 31, 1987 and the parties agreed that there would be no further extensions of the 1982 Contract agreed upon without the approval of the Governor and the Cabinet. Finally, the parties agreed that a new invitation to bid would be issued to obtain a provider of Licenses beginning September 1, 1987. The Governor and Cabinet approved the settlement in May of 1986. The settlement became final agency action. Licenses currently being produced in Florida pursuant to the renewal agreement approved by the Governors and the Cabinet contain a core slightly smaller than 1-3/4" x 2-3/4", are enclosed in lip-sealed lamination and use ultraviolet security markings on the back of the Licenses. The data card reduction factor is 42 percent. Rebid I. On June 6, 1986, the Department issued a Request for Information in an effort to preclude the development of noncompetitive specifications for future invitations to bid. In response to this request, Polaroid informed the Department that it could not provide an all-plastic License and NBS indicated that it could. On July 22, 1986, Mr. McInnis circulated the first draft of the specifications for the next invitation to bid to Department personnel. It specified a License with full lamination, lip-seal and a plastic-based or paper- based film core. The draft provided that the core of the License was to measure 3-1/8" x 1-7/8" prior to lamination. Ultraviolet light security markings were also required. For the first time, the draft of the specifications included a reduction factor requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall not be less than 60 percent of the size of the photographed document. Section 4.8.1 of the draft invitation to rebid. This provision was included partially because of the responses to the Request for Information submitted to the Department by Polaroid and NBS. Major Keith was told by Mr. Dickinson that "the front office" wanted Rebid I to require a plastic-based film core. Major Keith understood the "front office" to mean Mr. Mellon. In developing the next invitation to bid, the Department determined that enhanced security was a critical concern that needed to be addressed. At least in part, the Department's concern for security was based upon questions raised about security from the Governor's office, the Cabinet and law enforcement. The Department attempted to determine what security features were available. The Department received sales and promotional brochures for various security products from Polaroid, 3M and Armstrong World Industries, Inc. Polaroid, NBS and 3M were all invited to demonstrate their security features to the Department and they made presentations. Polaroid demonstrated "Polasecure" and 3M demonstrated "Confirm." These products and Armstrong's "Armstrong Advantage" are security markings contained in laminating materials which change appearance when the viewing angle of a License changes. Polaroid and NBS made their presentations to the Department, at the Department's request, in September of 1986. The primary emphasis of the demonstrations was security. On October 3, 1986, the Department issued Invitation to Bid (Rebid I) (hereinafter referred to a "Rebid I"). In Rebid I, the Department included the same overall size requirement (3-3/8" x 2-1/8") included in the First ITB. The requirement that the film core be plastic (polyester, polycarbonate or an equivalent plastic) included in the First ITB was also included in Rebid I. The Department changed the seal specified in Rebid I to a lip-seal, added a requirement that the reduction factor should not exceed 40 percent and required a new security feature. Because lip-seal was specified, the Department also provided that the core of the License should measure 3-1/8" x 1-7/8." Rebid I also included the following security requirement which was not included in the First ITB: The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. Section 4.8.3. of Rebid I. The new security feature specified in Rebid I provided for the following: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core ... The security marking feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security marking must be easily discernible with the naked eye, requiring no auxiliary reading devises for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. [Emphasis added]. Section 4.8.4 of Rebid I. Although the Department did not intend to provide any competitive advantage to Polaroid in specifying the security feature of Section 4.8.4 of Rebid I, NBS informed the Department that the description of the security feature underlined in finding of fact 65 was a generic description of "Polasecure." In fact, the language used came out of a speech given by a Mr. DeKeiver at a conference held in Washington D.C. Although Mr. DeKeiver apparently had no connection with Polaroid, the copy of the speech relied upon in drafting Section 4.8.4 of Rebid I was provided to the Department by Mr. Weer, a Polaroid representative. Rebid I provided that potential bidders could submit written changes to the specifications recommended by a potential bidder. In a letter dated October 16, 1986, NBS recommended that "the state require a specific security feature or security product... " other than Polasecure which would be available to both Polaroid and NBS. NBS also recommended that Section 4.8.3 of Rebid I be changed to require a full-cut seal instead of a lip-seal. Polaroid, in a letter dated October 16, 1986, recommended that paper- based film be allowed. On October 21, 1986, the Department rejected Polaroid's recommended change to allow paper-based film and NBS's recommendation to require a full-cut seal. The Department, because of its concern that Section 4.8.4 of Rebid I contained a description of Polasecure, accepted, in part, NBS's recommendation concerning the security feature. The Department changed the security requirement to provide that "Armstrong Advantage or Polaroid Polasecure or department approved equivalent pre-applied security markings ... " be affixed to the inside of the laminate. The Department made this change in an effort to eliminate any competitive advantage to potential bidders. Polaroid and NBS both submitted bids in response to Rebid I. On December 10, 1986, the Department's committee which evaluated the bids submitted in response to Rebid I reviewed the results of tests conducted on the License bid by Polaroid and NBS. NBS's bid was rejected because its License failed to disintegrate, as required by Rebid I, when the laminate was separated from the core. The committee therefore rejected NBS's bid without considering the price it had bid. Although NBS had recommended that the Department specify Armstrong Advantage as a security feature, this security feature was incompatible with the requirement that the photographic image be destroyed upon removal of the laminate. NBS was aware of this and so informed the Department. NBS did not timely inform the Department, however. NBS's proposed License failed to satisfy the test performed on the License because of this incompatibility. Polaroid's bid met the specifications of Rebid I and, upon opening the cost proposals, it was determined that Polaroid's bid price was 71.804 cents per License. On December 10, 1986, the evaluation committee prepared a memorandum in which it indicated that the Polaroid bid should be accepted. Major Keith approved the recommendation and sent the recommendation to Mr. Dickinson. Mr. Dickinson also recommended approval of Polaroid's bid and sent the recommendation on to Mr. Mellon. Mr. Mellon rejected Polaroid's bid because the Department had only budgeted 60.9 cents per License and Polaroid's bid of 71.804 cents was too far in excess of the budgeted amount. The amount budgeted by the Department was based in part on Polaroid's bid in the State of Ohio in September of 1986. Polaroid had bid 55.9 cents per license in Ohio. The Department arrived at 60.9 cents per License by adding approximately 5 cents to the amount bid in Ohio for the additional requirement contained in Rebid I of Polasecure. The product bid in Ohio was not, however, sufficiently similar to the License being sought by the Department to arrive at a budgeted amount for the Florida License. Ohio, unlike Florida, was not seeking a License with full lamination. Therefore, Ohio did not include the cost of laminating equipment, laminating materials or die cutters. There were other differences in Ohio's program which affected the cost bid by Polaroid in Ohio. The Department was not aware of the differences with the License bid in Ohio and the License the Department was seeking in Rebid I. The Department posted its tabulation on December 16, 1986. The Department indicated its decision to reject Polaroid's bid because "cost exceeds budget request." The Department's action with regard to Rebid I is final agency action. Rebid II. In January, 1987, the Department began drafting specifications for the next invitation to bid. Mr. McInnis was one of the primary technical drafters of the invitation to bid. Under the normal "chain-of-command" in the Department, Mr. McInnis received his instructions through or from Major Keith. In early January of 1986, Mr. McInnis was given a note on Mr. Dickinson's note paper by Mr. McCaskill containing the following: Plastic Size Security - Negotiable Maintenance/Serviceability Number of Cameras Mr. McCaskill explained to Mr. McInnis that the first two items, plastic and size, were not negotiable and that the 16 other items were to be studied further. Mr. McCaskill explained that the next invitation to bid was to provide for a License with a plastic- based film core and was to be the same size as in Rebid I, 3-1/8" x 1-7/8". The note from Mr. Dickinson was not received through Major Keith, which was the normal way that Mr. McInnis received instructions from Mr. Dickinson. Mr. McInnis prepared draft specifications and showed them to Major Keith along with the note from Mr. Dickinson. Major Keith instructed Mr. McInnis to submit the revised specifications back to Mr. Dickinson in the chain that he had received the note since Major Keith had not been involved in the instructions Mr. McInnis had received. Mr. Mellon's decision to instruct Mr. McInnis to specify plastic and to stick to the larger size License was made because Mr. Mellon believed that those items would insure a License that was durable, readable and had some security to it. The Department asked for the assistance of the Department of General Services in reviewing the draft of the invitation to bid. The Department of General Services reviewed the draft primarily with regard to the special conditions and not the technical specifications of the draft invitation to bid. On January 27, 1987, the Department issued its third invitation to bid, Invitation to Bid (Rebid II)(hereinafter referred to as "Rebid II"). Rebid II specified that the License was to have a plastic-based film core, lip seal, no more than a 40 percent reduction factor and was to measure 3- 1/8" x 1-7/8". These were the same specifications contained in Rebid I. The security feature contained in Rebid I was replaced with the ultraviolet light requirement of the First ITB. The decision to continue to require plastic-based film core was made by the Department because of Mr. Mellon's belief that it would result in a more durable, readable and secure License. The elimination of the security feature to be contained in the laminate was based upon the Department's desire to obtain a cost bid within the Department's budget. Potential bidders were required to submit any suggested changes to Rebid II in writing. On February 3, 1987, Polaroid timely submitted recommended changes in writing to the Department. The relevant recommended changes included the following: That the requirement of Section 4.8.1 of Rebid II that "photo sensitized polyester, polycarbonate, or an equivalent plastic material be changed to "photo sensitized material Polaroid recommended this change based upon its argument that sealing the photo core in a sealed and bonded polyester laminate would provide the necessary security and durability the Department was seeking and that paper-based film offered substantial cost savings; That the requirement of Section 4.8.1 of Rebid II as to the size of the photo core be changed to allow a range of sizes from 2-3/4" x 1-3/4" to 3-1/8" x 1-7/8". Polaroid recommended this change based upon its argument that the 40 percent maximum reduction factor could be met on a smaller film core and therefore reduce the cost of Licenses; That the ultraviolet light security feature be replaced with a requirement that Polasecure, Armstrong Advantage or equivalent security laminate be provided. Polaroid recommended this change based upon its argument that security would be enhanced at relatively little cost. The recommended changes in the size of the License and the film-core material are similar to the current License specifications. NBS did not submit any written recommended changes to Rebid II. By letter dated February 4, 1987, Secretary of State George Firestone asked Mr. Mellon about the Department's response to the suggested changes from Polaroid and requested an explanation of the specifications of Rebid II. In response to the Secretary of State's inquiry, Mr. Mellon submitted a letter and report to the Secretary of State. In part, Mr. Mellon told the Secretary of State the following: Both Polaroid and NBS have demonstrated their ability to provide a plastic core license. However, NBS informed the Department in a presentation made on September 17, 1986, that it will be unable to obtain paper film after the conclusion of their current contract with the State of Florida (August 31, 1987). They will be unable to bid on any contract for paper-based licenses after that date. In order to provide the State of Florida with the most durable license at the lowest cost, at least two bids providing the same durable core must be considered. Allowing vendors to bid two unlike products, either paper or plastic, would create a situation in which the products could not be objectively evaluated. That type of specification would also give a built-in price advantage to the vendor bidding a paper core, thereby prohibiting a competitive bid for the license, and increasing the price for the State. Mr. Mellon also suggested that the Department's decision to require a large license would make the License more legible and that requiring only an ultraviolet light feature for security was designed to reduce cost. In the draft of the response to the Secretary of State, the Department indicated that Polasecure, Armstrong advantage or similar security laminate would improve security and was preferred by the Department. This language was not contained in the final letter. On February 17, 1987, a meeting was conducted by the Department. It was attended by Mr. Mellon, Mr. Dickinson, Major Keith, Jim Cox and Mr. McCaskill. As a result of this meeting the Department decided to amend the specification contained in Section 4.8.1 of Rebid II pertaining to the film-core of the License. The Department decided to allow a paper-based or plastic-based film core in the hope that the cost bid by the vendors would come within the Department's budgeted amount. Polaroid's other suggested changes were rejected. On February 19, 1987, the Department issued Addenda III to Rebid II. Addenda III amended Rebid II by deleting the requirement that the core be plastic-based film and substituted the requirement that the core be "full color photosensitized material", i.e., paper-based or plastic-based. Addenda III also amended the requirements pertaining to samples. 0n February 20, 1987, Polaroid submitted a Notice of Protest to Rebid II, as amended. NBS submitted a Notice of Protest to Rebid II, as amended, on February 23, 1987. Polaroid and NBS both subsequently timely filed Formal Protests and Requests for Administrative Hearing. THE ALLEGED DEFICIENCIES OF REBID II, AS AMENDED. General Requirements of Rebid II, as Amended. A successful bidder to Rebid II would be required to furnish the Department with camera systems, photographic backdrops, film, laminating materials and equipment, training, support, maintenance and all other equipment and supplies necessary to produce Licenses and identification cards at License issuing offices of the Department throughout Florida. For each License or identification card produced, three film negatives must also be produced. The Department's License examiners will operate the equipment and produce Licenses. Approximately 1,000 examiners will have to be trained and supported. A fixed price for each License actually issued will be paid. Licenses not issued because of equipment problems or defective materials are not paid for by the Department. The driver, data card and header bar are photographed simultaneously and the images are optically combined by the camera system on a single piece of instant photographic film. The film is trimmed to the appropriate size in a "die cutter." The combined image recorded on the film core is simultaneously recorded on color negative roll film. Each negative is imprinted with a number. Two black and white, 16 millimeter roll film negative copies are made. A "rapid retrieval system" including two microfilm reader/printers, to retrieve copies of the negatives must be furnished by the successful bidder. The film core is to be laminated with a 1/8" lip seal. The License is to be the same size as a credit card, 2-1/8" high by 3-3/8" wide. This is the size of Licenses issued in most states. The License must be sufficiently durable to last seven years without deteriorating to the point that its functions are compromised. Printed data on the License should be sufficiently legible for law enforcement officers and others who rely on the License as a form of identification. The License should be secure it should be difficult to alter a License or to product a counterfeit License without the altered or counterfeit License being detectable. The primary goal of the Department in issuing Rebid II, as amended, was to provide a License at a reasonable cost which is legible, durable and secure. Polaroid's and NBS's Challenge to Rebid II, as Amended. Rebid II, as amended, represents the Department's third attempt to let a new contract for the issuance of Licenses. The Department's rejection of the first two attempts, the First ITB and Rebid I, have become final agency action. The extension of the 1982 Contract has also become final agency action. In this proceeding NBS has challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that the film core is to be "full color photo sensitized material." NBS has contended that the film core should be composed of "polyester, polycarbonate or equivalent plastic material." The requirement of Section 4.8.1 of Rebid II that the "document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the date card shall be not less than 60 percent of the size of the photographed document." NBS has contended that a 30 percent reduction factor should be specified. The requirement of Section 4.8.3 of Rebid II that a lip-seal lamination design be used. NBS contends that a flush-cut design should be required. Polaroid challenged the following portions of Rebid II, as amended: The requirement of Section 4.8.1 of Rebid II, as amended by Addendum III that the film core be "3-1/8 inches wide and 1-7/8 inches high prior to lamination." Polaroid contends that a range of sizes should be specified, from 2-7/8 to 3-1/8 inches wide and from 1- 3/4 to 1-7/8 inches high. The requirement of Section 4.8.4 of Rebid II which requires a black-light security feature. Polaroid contends that the Department should specify a security marking applied to the inside of the front laminate which is visible in ordinary light and is alternately visible and invisible as the angle of viewing the License is changed. The requirement of Section 4.10.4 of Rebid II that no applicant be required to wait for a second applicant before the first applicant's License is processed. The parties stipulated that this challenge arose as a result of a misunderstanding of the requirements of Section 4.10.4 of Rebid II. Based upon a clarification of this Section by the Department Polaroid agreed not to pursue this portion of its challenge to Rebid II. At the final hearing, Polaroid and NBS maintained that the Department had evidenced a bias in favor of the other. Film Core; Section 4.8.1 of Rebid II, as Amended by Addendum III. Section 4.8.1 of Rebid II, as amended by Addendum III, provides, in pertinent part: The finished color photo core of the driver license or identification card shall be full color photo sensitized material .... This provision replaces the requirement of Rebid II before amendment that the License be "full color photosensitized polyester, polycarbonate, or an equivalent plastic material Other pertinent provisions of Rebid II which affect the type of film- core material include the following: The Color photographic image must remain stable and survive intact under conditions of strenuous wear and tear and the photographic image must not significantly deteriorate or become illegible during the life of the license (seven years). The Contractor shall bear the cost of materials and supplies for the reissuance of each license or identification card which must be reissued due to failure to meet these requirements. The license or identification card shall be fully laminated, front and back, with a 1/3 inch lip seal. The laminate shall be not less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the side of the laminate. The finished license shall be 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed. The finished license shall be not less than .021 inch and not more than .062 inch thick after lamination. The contractor shall be responsible for the supply of laminating equipment, materials, support services (e.g. training) and all other commodities necessary to assure that driver licenses have appropriate protection and security laminates. As a part of their equipment demonstration, bidders shall submit with their bid twenty- five (25) sample licenses and ten (10) sample identification cards for testing and evaluation by the State of Florida. The samples must be identical to the proposed license and identification cards. If the proposed samples submitted for testing do not fulfill the requirements of this ITB, the State may reject the bid solely on this basis. Samples must be submitted at no additional cost to the State and additional quantities specified by the Department for further testing after opening of the bid must be supplied as long as said quantity does not exceed 100. Sample licenses and identification cards will be tested by the Division of Chemistry, Department of Agriculture and Consumer Services of the State of Florida. These tests will include a tear test, an abrasion test, a tensile test, the use of a fadeometer, and a test of the ease of alteration. The tear test must exhibit a strength of at least 100 lbs., while the license must have a tensile strength of at least 250 lbs/in of width. The abrasion resistance must show either no or only a slight dulling of the surface after 300 strokes with a dry nylon brush and there should be no or only slight fading visible with the use of the fadeometer. The provision of Rebid II pertaining to the film-core material used cannot be reviewed in a vacuum. The provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II quoted above have not been challenged by Polaroid or NBS and must be considered when reviewing the film-core material requirement of Rebid II. When the provisions of Sections 4.8.2, 4.8.3 and 4.8.7 of Rebid II and the film-core requirement of Rebid II, as amended, are taken into account, the Department's goal of providing a legible, secure and durable License should be insured. The effect of Addendum III is to allow potential vendors to bid a License which contains a paper-based or plastic-based film core. NBS has contended that the Department is restricting competition by allowing a paper-based film core License to be bid. The evidence fails to support this contention. Polaroid is the primary manufacturer of paper-based instant photographic film, producing as much as 85 percent of such film. There is, however, at least one other manufacturer of paper-based film. That manufacturers is currently supplying paper-based film to NBS for use in producing the current License used in Florida. NBS has been notified by its current supplier of paper-based film that the film cannot be produced and supplied to NBS at the current price because it is only being manufactured for NBS's use in Florida. The evidence did not prove whether the statements made to NBS are true. Even if it is assumed that NBS cannot obtain paper-based film except at a higher price, the evidence did not prove that NBS cannot obtain paper-based film. Nor did the evidence prove that only one of the potential bidders could produce a License with "full color photo sensitized material." In the response to Rebid I, Polaroid and NBS produced a license which would meet this requirement. NBS's plastic-based film which it uses to produce Licenses has better contrast and resolution than Polaroid's paper-based film. NBS's Dekachrome polyester material, which is manufactured by Ciba-Geigy, will resolve in excess of 100 lines per millimeter, and may resolve up to 140 lines per millimeter, resulting in the ability to render a high degree of resolution for smaller items, including type or letters. Polaroid's film generally resolves at approximately 14 lines per millimeter, with a maximum resolution of 20 lines per millimeter. The NBS Dekachrome film has approximately a five to one factor of sharpness and clarity over Polaroid film. The contrast ratio of NBS Dekachrome material is approximately 77 percent and the contrast ratio of Polaroid film is approximately 73 percent. The difference in contrast and resolution can be measured in the laboratory. The evidence failed to prove that the differences significantly affect the legibility of Licenses actually produced using the film of Polaroid or NBS. The evidence also failed to prove that there is any significant difference in the legibility of Licenses produced with plastic-based film or paper-based film. There is no difference between Polaroid's plastic-based film and its paper-based film with regards to contrast and resolution. The difference in Polaroid film and NBS film is caused by the instant development process used by Polaroid and not by the difference in the material it uses. Therefore, the differences in contrast and resolution would exist even if Polaroid bid a plastic-based film. The evidence failed to prove that plastic-based alterations to Licenses or counterfeiting of Licenses. Rebid II, as amended, provides that sample Licenses are to be produced under the Department's supervision after bids are submitted. Those Licenses then must pass tests for tear strength, tensile strength, scratch resistance and resistance to fade. These provisions of Rebid II have not been challenged. These provisions will test the durability of the Licenses whether paper-based film or plastic-based film is used. Rebid II, as amended, allows the laminate to be a minimum of 0.007 inches to a maximum of 0.062 inches thick. The thickness of the laminate selected and the film core will affect the tear strength and tensile strength of Licenses. Use of a lip-seal laminate will also affect the durability of the License and eliminate the durability problems of paper-based film. Both Polaroid and NBS can bid in response to the requirement of Section 4.8.1 of Rebid II, as amended by Addendum III, that plastic-based or paper-based film be used. Reduction Factor; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, provides, in pertinent part, the following requirement: The document to photograph reduction factor shall not exceed 40 percent so that the size of the photograph of the data card shall be not less than 60 percent of the size of the photographed documents. The above quoted portion of Section 4.8.1 of Rebid II was contained in the original Rebid II issued by the Department on January 27, 1987, and was not amended by the Department. Section 4.8.1 of Rebid II also requires that the License core is to be 3-1/8 inches wide and 1-7/8 inches high prior to lamination. Section 4.8.3 of Rebid 11 requires that the finished License is to measure 3-3/8 inches wide by 2-1/8 inches high including lip-seal lamination. These requirements were contained in the original Rebid II issued by the Department on January 27, 1987, and were not amended by the Department. Sections 3.2 and 3.3.2 of Rebid II provide for consideration by the Department of proposed changes to Rebid II. Section 3.3.2 of Rebid II provides the following requirements with regard to the manner in which changes were to proposed by potential bidders: The bidder, who requests changes to the State's specifications, must identify and describe the bidder's difficulty in meeting the State's specifications, must provide detailed justification for a change, and must provide recommended changes to the specifications. Requests for changes to the Invitation to Bid must be received by the state not later than 5:00 p.m., February 3, 1987. A Bidder's failure to request changes by the date described above, shall be considered to constitute bidder's acceptance of State's specifications. NBS's challenge to the 40 percent reduction factor requirement of Section 4.8.1 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that the maximum 40 percent reduction factor be changed to a maximum 30 percent reduction factor. Sections 3.2 and 3.3.2 of Rebid II have not been challenged by Polaroid or NBS. At the commencement of the final hearing of this case the Department announced that it intended to change the reduction factor requirement of Section 4.8.1 of Rebid II to require a maximum reduction factor of 30 percent instead of the maximum of 40 percent contained in Rebid II as challenged in this proceeding. Lip Seal; Section 4.8.3 of Rebid II, as Amended. Section 4.8.3 of Rebid II requires, in pertinent part, the following: The license or identification card shall be fully laminated, front and back, with a 1/8 inch lip seal. The laminate shall be no less than .007 inches thick per side and the back must have a surface which can be written upon. Data to be specified by the Department shall be printed on the inside of the laminate. The finished license shall be 3- 3/8 inches wide by 2-1/8 inches high including lip-seal lamination. The laminate shall be bonded to the finished license in such a way that the photographic image will be destroyed or defaced if the laminate is removed... [Emphasis added]. NBS's challenge to the lip-seal lamination requirement of Section 4.8.3 of Rebid II was not suggested as a change to Rebid II by NBS prior to February 3, 1987. NBS did not, therefore, comply with the requirements of Sections 3.2 and 3.3.2 of Rebid II in suggesting that a flush-cut seal be substituted for a lip-seal method of sealing the lamination. The estimated cost per unit of lip-seal lamination for NBS's Licenses is six to eight cents per License. The requirement of a lip-seal laminate contained in Rebid II was intended to provide additional security and durability. Lamination tends to prevent moisture, which causes deterioration of the License, from penetrating the photo emulsion of the photo-core. Whether plastic-based or paper-based film is used, the film emulsion layer may be scratched off if no lamination is used. Emulsion can also be removed from plastic-based film by moistening the film surface. The Department used a plastic, unlaminated License in 1978. The photo emulsions of this License came unattached from the license core and had to be laminated. The Department tried to use a flush-cut seal on paper-based film as a result of the problems it had with deterioration of the License produced by NBS in 1978. Flush-cut sealing of a paper-based film License does not stop the deterioration problems caused by water damage. The requirement of Section 4.8.3 of Rebid II that the License be lip- sealed is reasonably calculated to enhance the security and durability of the License. It will also enhance legibility by eliminating deterioration of the License. The requirement of Section 4.8.3 of Rebid II concerning lip-seal lamination does not restrict competition. Both Polaroid and NBS can bid a License with lip-seal lamination. F. Security; Section 4.8.4 of Rebid II, as Amended. Section 4.8.4 of Rebid II provides: The finished license or identification card shall contain security markings to be specified by the Department. The security markings shall be printed in fluorescent dye or a similar process so that they become visible when exposed to ultraviolet light. The security markings may be a part of the laminating process. Section 4.8.4 of Rebid I, as amended by Addenda III, provided: The finished license or identification card shall contain pre-applied security markings affixed to the inside surface of the front of the laminate which, when laminated to the film core, will become an integral part of the core. The graphic design of the pro- applied security markings must be approved by the Department. The security markings feature shall utilize a process which will render the security markings alternately visible and invisible as the viewing angle changes. Any alteration of the security markings must be easily discernible with the naked eye, requiring no auxiliary reading devices for verification. The pre-applied security markings must be secure against being photographically reproduced or copied. The First ITB contained the same security feature contained in Rebid II. A security feature like Polasecure, which changes appearance when the viewing angle changes, would provide a bettor deterrent to alterations and counterfeiting of Licenses than ultraviolet light. Such a security feature can be seen by law enforcement and others without any auxiliary viewing devices or special lighting. Although the security feature contained in Rebid I would enhance the security of Licenses, it was eliminated from Rebid II because of the inability of NBS to bid a License which contains such a feature and is consistent with the adhesion of the lamination specifications contained in Rebid I and Rebid II and because of the additional cost of such a feature. Polaroid had represented to the Department that Polasecure would increase the cost of a License by approximately five cents per License. The evidence failed to prove that this information is correct. The evidence suggests that additional cost of Polasecure is in excess of five cents per License. The ultraviolet security feature will provide security against unsophisticated counterfeiters and ensure the security goal of the Department is met. The Department is attempting to provide security against amateurs. Given enough time, any security feature can be counterfeited. Even products like Polasecure can be stolen from driver license offices and used to produce counterfeit Licenses. The Department properly weighed the need for a security feature for Licenses and the cost of such security features and has provided a reasonable security feature in Rebid II. Polaroid and NBS can produce a License which meets the security requirement of Rebid II. License Size; Section 4.8.1 of Rebid II, as Amended. Section 4.8.1 of Rebid II, as amended, requires that the core of Licenses measure 1-7/8 inches by 3-1/8 inches. Polaroid has suggested that this provision be changed to allow a range of 1-3/4 inches by 2-3/4 inches to 1-7/8 inches by 3-1/8 inches. The smaller size core suggested by Polaroid is used in 26 of the 27 states presently served by Polaroid and by various agencies of the federal government. If the smaller size core is allowed, Polaroid can produce two Licenses from one sheet of its film. If the larger size core is required Polaroid can only make one License from each sheet of film. The Department has required a larger License size in order to improve the legibility of Licenses. The Department is concerned about complaints it has received from law enforcement officers and others about the legibility of the currently used License. The current License is legible by anyone who meets the vision requirements for employment by the Florida Highway Patrol, given good lighting and proper lenses to correct any vision problems the person may have. Not everyone, however, meets the vision requirements for employment by the Florida Highway Patrol. More importantly, law enforcement officers are sometimes required to read Licenses under poor lighting conditions. It is therefore reasonable for the Department to attempt to improve License legibility. Factors which affect the legibility of a License include the quality of the printing on the data card used, the degree of contrast on the data card, the optical-reduction factor in the camera, and the quality of the photographic image produced by the camera and the film. The evidence did not prove that the difference in the size of the License specified in Section 4.8.1 of Rebid II, as amended, and the size suggested by Polaroid will affect the legibility of the License. Although evidence was presented during the final hearing concerning plans of the Department to improve the method in which the data card is printed, Sections 3.18 and 4.6.5 of Rebid II, as amended, specify that the Department's existing and currently used data card is to be used in submitting bids to Rebid II, as amended. These provisions have not been challenged. Legibility will be affected by the extent of the maximum reduction factor allowed. The smaller the maximum reduction factor allowed, the better the legibility will be. Once reduced, the data card must fit into the size specified for the License core. Therefore, the reduction factor specified and the size of the License core must be consistent. In the current License produced in Florida, the data card is reduced by 42 percent from its original size. The License produced in 1978 featured a 33 percent reduction factor. The requirement as to the size of the License core and the maximum 40 percent reduction factor contained in Rebid II, as amended, are inconsistent. Mr. McCaskell conducted a study which indicated that if a 40 percent reduction factor is used there will be a considerable amount of unused space on a License core which measures 1-7/8 inches by 3-1/8 inches. If the size of the License core is reduced to allow a License core measuring 1-3/4 inches by 2-3/4 inches, a data card reduced by 40 percent will not leave unused space. The specification as to the maximum 40 percent reduction factor was included in Rebid II as a compromise between what Polaroid and NBS had informed Mr. McInnis they could produce. It was not based upon any scientific analysis by Mr. McInnis. Although a data card reduced by a maximum 40 percent reduction factor will fit on the smaller License suggested by Polaroid, the legibility of the License will not be improved. If the maximum reduction factor is reduced from 40 percent to 30 percent, however, the legibility of the License will be enhanced. A data card reduced by a maximum reduction factor of 31 percent will fit into the space for the data card specified for a License core of the size specified in Section 4.8.1 of Rebid II, as amended. If the header bar is reduced slightly a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the size specified in Section 4.8.1 of Rebid II, as amended. A data card reduced by a maximum reduction factor of 31 percent will also fit into the space for the data card specified for a License core of the smaller size suggested by Polaroid. If the header bar and the area for the driver's picture are reduced slightly, a data card reduced by a maximum reduction factor of 30 percent will fit onto a License core of the smaller size suggested by Polaroid. The size specified by the Department in Rebid II, as amended, will not directly affect the goal of improving the legibility of the License. Reducing the maximum reduction factor to 31 percent will improve legibility and will be consistent with the other requirements of Rebid II, as amended, as to the size of the header bar and the size of the photograph of the driver. Allowing the range of sizes in the License core suggested by Polaroid is consistent with a reduction of the maximum reduction factor. Allowing the suggested range of sizes may also result in a cost savings to the Department since Polaroid would be able to produce two Licenses from one sheet of film. The Department's actions with respect to the License core size and the reduction factor have been arbitrary. Reducing the maximum reduction factor and allowing the Polaroid's suggested range of sizes for the License core are more reasonable specifications. Both Polaroid and NBS can bid a License meeting a 31 percent maximum reduction factor requirement and the Polaroid suggested range of License core sizes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department add a paragraph to its invitation to bid informing potential bidders that failure to challenge the specifications of the invitation to bid within the time prescribed in Section 120.53(5), Florida Statutes (1985), and Rule 15-2.003(2)(b), Florida Administrative Code, will constitute a waiver of proceedings under Chapter 120, Florida Statutes. It is further RECOMMENDED that NBS's suggested changes to Rebid II, as amended, concerning the film core material specified in Section 4.8.1 of Rebid II, as amended, and lip-seal lamination specified in Section 4.8.3 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow a maximum reduction factor of 30 percent. It is further RECOMMENDED that Polaroid's suggested changes to Rebid II, as amended, concerning the type of security feature specified in Section 4.8.4 of Rabid II, as amended, and the specification of Section 4.10.4 of Rebid II, as amended, be denied. It is further RECOMMENDED that Section 4.8.1 of Rebid II, as amended, be amended to allow the film core to measure 2-7/8 to 3-1/8 inches wide and 1-3/4 to 1-7/0 inches high. It is further RECOMMENDED that the size of the header bar and the space for the drivers' photograph be modified to accommodate a maximum 30 percent reduction factor and the smaller size License core. DONE and ENTERED this 4th day of June, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 4th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1125BID The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in, the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Polaroid's Proposed Findings of Fact Proposed Finding RO Number of Acceptance of Fact Number or Reason for Rejection 1. 1. 2. This proposed finding of fact is irrelevant except to the extent that Polaroid and NBS serve about half of the states. See paragraph 2. 3. 103. 4. 104. 5. 105. 6. 4 and 6. 7. 106. 8. 107. 9. 7 and 108. 10. 109. 11. 7. 12. 108. 13. 113. 14. 110. 15. 111. 16. 112. 17. Not supported by the weight of the evidence. 18. 114. 19. 116 and 117. 20-22 116. The portion of proposed finding of fact 22 which begins "but careful ..." is rejected as argument. 23-25. 117. 26. 114. 27. 118. 28-31. 20. 32. 52. 33-36. Hereby accepted. 37-38. Irrelevant. 39. 22-24. 40. 28. 41. 29. 42. 30-31. 43. 32-33. 44. 34-35. The last sentence is not supported by the weight of the evidence. 45. 36. 46. 37 and 40. 47. 40-41. 48. 42. 49. 43. 50. 44. 51. 45-46. 52. 45 and 48-49. 53. 48. 54. Hereby accepted. 55. 56. 49. The fact that "the Department did not approach Polaroid Corporation to determine if Polaroid could temporarily supply driver license systems during the same interim period is irrelevant. Irrelevant. 57. 50. 58. 51. 59-60. 53. 61. 54. 62. 54 and 63. 63. 54. 64-65. 55. 66. Not supported by the weight of the evidence. 67. 56. 68-69. 57. 70-71. 58. 72. 60. 73. 158. 74. 60. 75. 61. 76. 160. 77. Irrelevant. 78. 62. 79. 63. 80. 64. 81. 65. 82. 66. 83. Irrelevant. 84. 67. 85. 70. 86. 68. 87. 69. 88-90. 71. 91. 72. 92. 73. 93. 75. 94. Irrelevant. 95. Hereby accepted. 96. 75. 97. 76. 98-99. 77. 100. 82. 101. 78. 102. 79. 103. 80. 104. Irrelevant. 105. 83. Mr. McInnis was one of the 106. primary technical drafters. 84-85. The last sentence is not 107-108. supported by the weight of the evidence. 84. 109. 86. The last sentence is irrelevant. 110-111. 88. 112. 89. 113. 90. 114. 91-92. 115. 90. 116-117. Irrelevant. 118. 93. 119. 94. 120. 96. 121. 97. 122-123. 98. 124. Not supported by the weight of the evidence. 125-126. 99. 127-132. Not supported by the weight of the evidence. 133-134. 100. Irrelevant. Not supported by the weight of the evidence. 137. 101. 138. Not supported by the weight of the evidence. 139. 101 and 119. 140. 138. 141. 126. 142-144. Statements of law. 145. 128 and 133. 146. 132. 147. 134. 148. 135. 149. 136. 150. 137. 151. 153. 152. 150 and 153. 153. 151. 154. 164-165. 155. 166. 156. 157. 167. The last two sentences are not supported by the weight of the evidence. 168. 158. 169. 159. 170. 160. 161-165. Not supported by the weight of the evidence. Irrelevant. 166. 174-175. 167. Irrelevant. 168. 174. 169. Irrelevant. 170. 180. 171. 179. 172. 181. 173. Not supported by the weight of the evidence. 174-175. 183. 176. 184. 177. Hereby accepted. 178. Not supported by the weight of the evidence. 179. 159. 180. Not supported by the weight of the evidence. NBS's Proposed Findings of Fact 1. 1. 2. 2. The last-sentence is irrelevant. 3. 10-14. 4. 15. The last sentence is not supported by the weight of the evidence. 5. 16-18, 20-21 and 51. 6. 19. 7. 23. 8. 24. 9. 25-27. 10. Not supported by the weight of the evidence. 11. 37. 12. 35. 13. 36. The last sentence is irrelevant. 14. 38-40. 41. The second sentence is uncorroborated hearsay. 47-48. The last sentence is not supported by the weight of the evidence. 46. The last sentence is not supported by the weight of the evidence. 18. 49. 19. 50. 20. 51. 21. 43-44. Polaroid did not request permission to conduct a demonstration Polaroid was requested by the Department. The opinion expressed by Major Keith was the opinion of his office. 22. 53, 61-63, 65-68 and 71. 23. 72 and 74. 24. 73 and 75. 25. 76. 26. 76-77. 27. Irrelevant. 28. 77. 29. 89-90 and 93. 30. 94. 31. 97. 32. 98. 33. 100. 34. 101. 35. 102. 36. 139, 141 and 164. 37. 144. 38. Hereby accepted. 39. 177. 40. 174. 41. 179. 42. 175-176. 43. 175. Hereby accepted. Hereby accepted. 46. 145. 47. 7. Not supported by the weight of the evidence. Irrelevant. Not supported by the weight of the evidence. 51. 147. 52-56. Not supported by the weight of the evidence. 57. Irrelevant. 58. 155. 59. 156. 60. 157. 61. 162. 62-63. 66. 64-65. Irrelevant. 66-67. 74. 68. Not supported by the weight of the evidence. 69. 160. 70. 163. 71. 101 and 119. 72. 119. Not supported by the weight of the evidence. 125. The evidence failed to prove that "there exists virtually no other economical source for a similar paper based instant photographic product." 75. 126. 76-80. Not supported by the weight of the evidence. 81. 134. 82. Irrelevant. 83-86. Not supported by the weight of the evidence. 87. 128. 88. 129. 89. 130. 90. 131. 91. Irrelevant. 92. 133. The last sentence is not supported by the weight of the evidence. 93. 138. 94. 113. 95-96. Irrelevant. 97-102. Not supported by the weight of the evidence, irrelevant or statement of law. The Department's Proposed Findings of Fact 1. 4. 2. 119. 3-5. 120. 6. 121-122. 7. Statement of position. 8. 128. 9. 145. 10. 148-149. 11. 152. 12. 151-152. 13. Hereby accepted. 14. 154. 15. 139 and 144. 16-17. 168. 18. 173. 19. 179. 20. 172-173. 21. 22. 172. The last sentence is not supported by the weight of the evidence. 164. 23. 24. Not supported by the weight of the evidence. 113. 25. Irrelevant. 26. 27. Not supported by the weight of the evidence. 180. 28. 185. 29. 155. 30. 156. 31-32. 74 and 81. 33. 159. 34. 160. 35-38. 161. 39. 163. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Enoch J. Whitney, Esquire General Counsel Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 H. Michael Madsen, Esquire Douglas J. Rillstone, Esquire Messer, Vickers, Caparello, French & Madsen Post Office Box 1876 Tallahassee, Florida 32302-1876 Keith C. Tischler, Esquire Parker, Skelding, McVoy & Labasky Post Office Box 669 Tallahassee, Florida 32302 Robert G. Holderness, Esquire Robert G. Holderness & Associates 925 L. Street, Suite 1490 Sacramento, California 95814
Findings Of Fact On five dates in June and July, 1988, Respondent advertised in The Orlando Sentinel newspaper its Invitation to Bid for the project known as High School "BB." The advertisement announced that bids would be received at 2:00 p.m. on August 4, 1988, at which time all bids would be publicly opened. The advertisement stated that Respondent reserved the right to waive irregularities. The Invitation to Bid stated that bids received after the deadline "will be returned unopened" and bids "received on time" will be opened publicly. The Invitation to Bid also stated: "The Owner reserves the right to waive any informality or irregularity in any bid received when such a waiver is in the best interest of the Owner. The contract would be awarded, according to the Invitation to Bid, within 45 days after the opening of bids. The location designated for the opening of the bids was the Facilities Services building located at 6200 Chancellor Drive, Orlando, Florida. The bids were opened in a conference room within the building. Robert Gallardo, who is Respondent's Director of School Planning and Construction, was in charge of the bidding process. Mr. Gallardo has been in this position for six years. During this time, he has been responsible for the majority of school construction bids for Respondent. He estimates that he has supervised ten such bids. On August 4, 1988, Mr. Gallardo worked in his office in the Facilities Services building until 1:55 p.m. At that time, he asked his secretary if the bid tabulation forms had been prepared, and, with the forms, he left his office for the conference room where the bids were to be opened. Mr. Gallardo entered the conference room, which was occupied by a number of bidders' representatives, at 1:58 p.m., according to the clock on the wall. At a few seconds before 2:00 p.m., he first spoke, asking that all bids be handed in. He then asked his secretary to call the front desk to see if any bids had been turned in there and needed to be brought down the hall into the conference room. This was a normal procedure. In past bids, some bidders left their bids with the receptionist at the front desk. Prior to obtaining any response from his secretary who was talking on a phone in the conference room, Mr. Gallardo announced his name and position and announced that he was going to open bids. He then picked up a sealed bid from the pile of sealed bids in front of him. As he was about to open the envelope, at or about 30 seconds past 2:00 p.m., a man entered the conference room and said that he had a bid to deliver. The man disclosed the bidder which he represented, but Mr. Gallardo did not clearly hear the name and did not know whose bid was being offered to him. Mr. Gallardo accepted the bid and placed it at the bottom of the pile. The late bid was from Intervenor. A few seconds after it was accepted Mr. Gallardo opened the first bid. A few seconds after that, another man entered the conference room and attempted to deliver a bid. Mr. Gallardo refused to accept the bid because, as he explained, the first bid had already been opened. Mr. Gallardo's practice has consistently been to accept late bids, provided they are delivered prior to the opening of the first bid. Mr. Gallardo had not previously known of Intervenor, which had never previously even submitted a bid on a school job being let for bid by Respondent. Mr. Gallardo's only prior contact with Intervenor's representative who delivered the bid was seeing the man in the building, along with other bidders' representatives, prior to the opening of the bids; however, Mr. Gallardo did not know who the man represented. There was no fraud or collusion in the acceptance of the late bid. There was no evidence that, under the facts of this case, Respondent abused its discretion in accepting Intervenor's late bid. Petitioner's bid was lowest among the bids delivered prior to 2:00 p.m. However, Intervenor's bid was over $500,000 lower than Petitioner's bid on a project costing in excess of $25 million. Respondent has confirmed Mr. Gallardo's decision not to reject Intervenor's bid as late. On August 16, 1988, Respondent published the agenda for the next school board meeting, which was scheduled for August 23, 1988. One of the items to be taken up was the award of the contract for High School "BB." By letter dated August 18, 1988, Petitioner declined Respondent's invitation to participate in what the parties referred to as an informal hearing at the August 23 school board meeting. Threatening unspecified sanctions under state and federal law if Respondent awarded the contract at the August 23 meeting, Petitioner demanded a formal hearing and asserted that the bidding process should be stayed until resolution of the protest, under Section 120.5361 [sic -- apparently referring to Section 120.53(5)(c)]. By memorandum dated August 23, 1988, Respondent's attorney opined that Rule 6A-2.016(7) did not require Respondent to utilize the Section 120.53(5) bid protest procedures, but, out of an abundance of caution and in the interest of expediting resolution of the dispute, recommended the referral of Petitioner's protest to the Division of Administrative Hearings. By letter dated August 23, 1988, Respondent referred the protest to the Division of Administrative Hearings for a formal hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the bid protest of Petitioner. DONE and RECOMMENDED this 15th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4078BID Treatment Accorded Petitioner's Proposed Findings of Fact 1. Adopted except to the extent that "timely" implies that Intervenor's bid was improperly accepted. Such an implication is rejected as legal argument. 2 and 4. Adopted in substance. 3. Rejected as irrelevant. 5-7. Rejected as not findings of fact except that the inference of Intervenor's efficient utilization of time following the deadline is rejected as unsupported by the evidence and irrelevant. 8-9. Adopted to the extent relevant. 10-11. Rejected as irrelevant. 12-15. Rejected as subordinate to the procedures set forth in the Invitation to Bid and advertisement, especially concerning the waiver of irregularities. First sentence adopted. Second sentence rejected as recitation of testimony through semicolon and irrelevant as to remainder except that the basis for Mr. Gallardo's decision is adopted and modified to add that he accepted the late bid in accordance win his past practice. Petitioner proved all of the facts in this proposed finding except that it could have used effectively any additional time. In any event, all of the facts in this paragraph are irrelevant and are rejected for this reason. The theory of Petitioner's case, as well as the evidence that it offered, was that in this and every other major bid, the last minutes before the deadline are critical due to the unwillingness or inability of subcontractors to supply critical numbers substantially before the deadline. This theory proves too much because, if true, the Hewitt court would have been constrained to consider such a universal fact and thereby would have prevented the agency in that case from accepting the late bid. The Hewitt case stands for the proposition that, in general, an agency may accept late bids before the first bid is opened. It is incumbent upon a frustrated bidder to show that the agency abused its discretion, under the circumstances of the individual case. Petitioner has in essence suggested that the burden is upon the agency to show that it did not abuse its discretion, at least once the frustrated bidder shows that it spent a lot of time and money in preparing its bid and could have used more time. To the contrary, Hewitt tells the frustrated bidder that it must find evidence of impropriety, such as fraud or collusion, in the agency's acceptance of the late bid. This mandate is especially clear in light of the recent Groves-Watkins decision. 18-19 and 22. Rejected as irrelevant. See Paragraph 17. Adopted. 20A-20F. Rejected as legal argument. First sentence rejected as subordinate and recitation of testimony. Second sentence rejected as speculative. Rejected as speculative and unsupported by the evidence. Rejected as irrelevant and unsupported by the evidence. 24A-27. Rejected as legal argument. Adopted in substance. Rejected as not finding of fact. Treatment Accorded Respondent/Intervenor's Joint Proposed Findings of Fact 1-2. Adopted. 3-4. Rejected as not finding of fact. 5-6. Adopted in substance. Rejected as irrelevant. 8. Adopted in substance. 9-12. Adopted in substance except that Mr. Gallardo did not arrive in the conference room "several minutes" before 2:00 p.m. and Intervenor's representative arrived about 30 seconds after 2:00 p.m. 13. Rejected as irrelevant. 14-15. Adopted in substance. Rejected as unnecessary. Adopted. Rejected as irrelevant. See Paragraph 17 in Petitioner's proposed findings. COPIES FURNISHED: Joseph G. Thresher, Esquire Dykema Gossett Ashley Tower Suite 1400 100 South Ashley Drive Post Office Box 1050 Tampa, Florida 33601-1050 William M. Rowland, Jr., Esquire Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue Orlando, Florida 32803 Scott H. Johnson, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, Florida 32801 James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 North Tampa Avenue Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact The adult education department of the Lee County School Board received an appropriation to purchase night vision surveillance equipment in connection with their adult education program. Information was requested from various manufacturers of this type equipment and bids were solicited in December, 1978. Only two bidders submitted bids. Standard Equipment Company's bid for their Ni-Tec equipment was $4,790 and Petitioner's bid for their Astrolite viewer was $3,775. Although there had been sufficient funds appropriated to purchase the Astrolite viewer, the price for Ni-Tec exceeded the sum appropriated so both bids were rejected. The specifications were modified to be more specific and new bids solicited from five suppliers. Only three of these companies responded. Petitioner's bid at $3,775 with two years warranty on parts and labor was low bid; Standard Equipment Company offered the Ni-Tec for $4,100 with one year warranty on parts and labor; Javelin Electronics submitted a bid for $6,324; and the two other suppliers solicited did not bid. Still not satisfied with accepting the low bid Respondent's Trade Extension Coordinator, C. W. Cawlfield, set up a test of the two units for which bids had been received. This test was conducted on the evening of March 1, 1979 by the Punta Gorda Chief of Police, the Fort Myers Airport Chief of Police, a fireman and one or two others. Some of those conducting the test had previously purchased the Ni-Tec equipment for their department's use and preferred this equipment. None of those conducting the test knew the difference between the monocular eye viewer which is standard equipment on the Astrolite and the biocular eye viewer which is standard equipment on Ni-Tec. Those conducting the test thought both eye viewers were the same although the eye piece on Ni-Tec was slightly larger. Following the test Chief Bennett of the Punta Gorda police force advised Cawlfield that the Ni-Tec equipment provided a clearer and larger image, that the equipment was more rugged, and that the Ni-Tec was the best equipment to buy for the school. Based upon what he was told by Bennett, Cawlfield, on Match 2, 1979 wrote a memorandum (Exhibit 4) to the Director of Purchasing in which he listed seven categories in which the Ni-Tec viewer was superior to the Astrolite viewer. Some of the seven items listed involved specification requirements and some involved non-specification Comparisons. With respect to those items which indicate the Astrolite did not meet specifications, all are wrong. As a matter of fact each and every numbered item in Exhibit 4 which indicates the Ni-Tec viewer to be superior to the Astrolite viewer was predicated on false and erroneous information, or was based on a characteristic not included in the specifications upon which the bids were submitted. An example of this latter comparison based upon a factor not included in the specifications was No. 7 which indicates Ni-Tec meets military specifications while the Astrolite does not. Military specifications was not a bid requirement. After acknowledging that each and every comparison listed on Exhibit 4 was erroneous or predicated upon erroneous information, both the author of Exhibit 4 and the recipient thereof, Wayne McSpadden testified they would still recommend the purchase of the more expensive Ni-Tec viewer because those conducting the test reported having observed a clearer and larger image through the Ni-Tec viewer. None of those conducting the test appears to have more than a very rudimentary knowledge of optics. None appeared to recognize that during the test the Ni-Tec viewer was equipped with a biocular eye piece while the Astrolite viewer was equipped with a monocular eye piece. The biocular eye viewer is large enough to view with both eyes and the viewer sees a larger image than is seen with the monocular eye viewer. Exhibit 2 states that the bid submitted on Astrolite included a biocular eye viewer. Exhibit 3 shows the biocular eye viewer as an accessory and Cawlfield testified he had not seen Exhibit 2, which was addressed to McSpadden, and thought the biocular viewer would cost extra. The Ni-Tec viewer comes with a f/2.8 lens while the Astrolite lens is f/l.3. In any optical equipment a f/l.3 lens is approximately twice the diameter of an f/2.8 lens and will therefore admit approximately four times as much light because it has approximately four times the area. Accordingly, from a lens comparison alone the Astrolite viewer should be superior to the Ni-Tec viewer.
Findings Of Fact By Advertising Sign Permit dated March 4, 1985 (Exhibit 3), Clear Vu Media was authorized to locate a sign with both east and west facing boards on State Road 52, 2- 1/2 miles east of Plaza Drive (Little Road). The permit was issued by Linda K. Brown, outdoor advertising inspector for DOT. Prior to issuing the permit Brown visited the proposed site and approved the location as meeting the requirements for an outdoor advertising sign. Subsequent to the erection of the sign Brown inspected the sign and found the sign to be located on a site other than the approved site. The existing structure is located 890 feet from another existing and permitted sign. The approved site is located at least 1,000 feet from this existing sign and from any other permitted sign along State Road 52. State Road 52 is a federal-aid primary highway. A Notice of Hearing was sent to Clear Vu Media, Post Office Box 2038, New Port Richey, Florida 33552, by U.S. Mail and was not returned as undelivered.
The Issue The issue is whether the School Board’s action in awarding the contract for the sale of declared surplus to Develyn M. Smith was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On October 17 and 24, 1996, respondent, Putnam County School Board (Board), published a notice in the Palatka Daily News soliciting bids on a five-acre parcel of surplus property in Putnam Hall, a small rural community in northwestern Putnam County. The notice provided that “(s)ealed bids should be submitted . . . by 1:00 p.m. on November 4, 1996,” and that the bids would be opened at 1:30 p.m. the same day. In response to that notice, petitioner, Positive Images Alternative Enrichment Group, Inc. (petitioner or PIAEG), and respondent, Develyn M. Smith (Smith), submitted offers of $10,000.00 and $3,500.00, respectively. On November 25, 1996, the Board awarded the contract to PIAEG, the highest bidder. When PIAEG failed to provide a binder and sign a contract for sale and purchase by the Board’s January 13, 1997 meeting, the Board rescinded its earlier action and awarded the contract to Smith, the next highest bidder. On January 24, 1997, petitioner filed its written protest of the Board’s action. The facts underpinning the Board’s action are set forth below. On November 4, 1996, the two bids were opened by assistant superintendent Anthony C. Thompson. On November 6, 1996, Thompson submitted a memorandum to the Board in which he recommended that PIAEG’s bid be accepted. This recommendation was formally approved by the Board at a meeting held on November 25, 1996. Whether notice of this intended award was posted is not of record. On November 25, 1996, or the Monday before Thanksgiving, the Board’s general counsel, Joe Pickens, telephoned PIAEG’s representative, Lawrence Hutcherson, and advised him that, as the successful bidder, PIAEG must give the Board a $1,000.00 binder and execute a contract to purchase the property. He was further told that after doing so, the Board would commence title work on the land. Hutcherson asked if he could delay providing a binder and signing the contract until after the holidays, or until the week of December 2. Pickens orally agreed to this request. Pickens heard nothing from Hutcherson until he received a copy of a letter to the Board’s superintendent dated December 23, 1996, in which PIAEG’s secretary, Jonathan Williams, asked that “any action on said property (be) withheld until our meeting with the Rural Development Agency in Ocala January 7, 1997.” The letter added that the “request is made to allow our organization to seek resources for the planned community facility.” The delay was sought after PIAEG learned of possible federal grant moneys available through the State, and decided to use that source of money for financing the acquisition rather than relying upon its own funds. Hutcherson made no inquiry with the superintendent or Pickens to determine if the extension of time had been granted. Rather, he just assumed that his request would be approved since he was unaware of any time constraints on purchasing the property. By the same token, neither Pickens nor the superintendent responded to the letter. Pickens, however, discussed the matter with a Board representative, and the two agreed an extension of time would be satisfactory since the next Board meeting was not until January 13, 1997, or after PIAEG’s meeting on January 7. While Pickens expected Hutcherson to contact him before the next meeting, he did not convey this advice to Hutcherson. At the January 7 meeting in Ocala, PIAEG learned that until rules were adopted by the Department of Community Affairs, no grant applications could even be considered. At that time, Hutcherson was led to believe that such rules would not be adopted before May 1997. At hearing, he stated that this time had subsequently been extended, and he is now unsure when the rules will be adopted. Hutcherson did not report this information to Pickens before the January 13 Board meeting because he says he needed several weeks to prepare an appropriate report. Also, until the afternoon of January 10, he was unaware of the meeting. Finally, he had received no response to his letter of December 23 requesting a delay, and he reasonably assumed that no action would be taken until after he filed his report. After receiving no advice, oral or written, from Hutcherson regarding PIAEG’s January 7 meeting in Ocala, Pickens recommended to the Board at its January 13 meeting that it rescind its earlier award of the contract to PIAEG and that Smith’s bid be accepted. The Board approved this recommendation. The Board acknowledges that it did not post notice of this intended action. On January 17, 1997, and without knowledge that its award had been rescinded, PIAEG’s secretary sent a letter to the Board’s superintendent asking that a further extension be granted. The letter explained that PIAEG planned “to have a pre- application (for grant moneys) ready within the next 45 days.” Shortly thereafter, Hutcherson learned of the Board’s action, and PIAEG filed its protest on January 24, 1997. After settlement negotiations failed, this proceeding was begun. Except for the notice pertaining to the date on which sealed bids had to be filed, there were no other specifications governing this bid solicitation. Thus, there was no written requirement that a binder had to be filed by a date certain, or that the successful bidder had a specified period of time in which to close on the property or risk loss of the contract. When PIAEG filed its sealed bid, it erroneously used the name “Positive Images Alternative Group, Inc.” instead of its correct name. After its bid was submitted, PIAEG sent a letter to the Board’s general counsel and superintendent on December 23, 1996, using its correct name. The Board has represented that this change was immaterial, did not affect the outcome of the case, and would not be a disqualifying factor.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Putnam County School Board enter a final order rescinding its action taken on January 13, 1997, and awarding the contract to petitioner. DONE AND ENTERED this 8th day of May, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997. COPIES FURNISHED: Geri Melosh, Superintendent Putnam County School Board 200 South Seventh Street Palatka, Florida 32177 Lawrence Hutcherson Post Office Box 2186 Palatka, Florida 32178-2186 Joe H. Pickens, Esquire 222 North Third Street Palatka, Florida 32177-3710 Develyn M. Smith 1116 Bellamy Road Melrose, Florida 32666
The Issue The issue is whether Respondent's outdoor advertising sign on State Road 200, 5.37 miles east of U.S. Highway 17, should be removed because it does not have a permit for said sign.
Findings Of Fact Ronald L. Peacock, owner of Peacock Electric Company, had his employees erect a two-sided sign on State Road 200, 5.37 miles east of U.S. Highway 17. Mr. Peacock acknowledges that he did not have a permit for the sign and that he knew he needed a permit at the time he had the sign erected. He testified that he just hoped he would not get caught. State Road 200 is a federal aid primary road. After he was first notified that the sign was erected without a permit, Mr. Peacock filed an application for a permit. The application was rejected because it did not contain the necessary fees, the permission of the landowner, or the local building permit. Additionally, the location of the sign is 942 feet from an existing permitted sign. The sign is five feet from the right-of-way. Mr. Peacock removed the sign after this action was filed by DOT. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes. As relevant to this case, Section 479.105, Florida Statute, states: Any sign which is located adjacent to the right-of-way of any highway on the State Highway System outside an incorporated area or adjacent to the right-of-way on any portion of the interstate or federal-aid primary highway system, which sign was erected, operated, or maintained without the permit required by S. 479.07(1) having been issued by the department, is declared to be a public nuisance and shall be removed as provided in this section. * * * (d) If, after a hearing, it is determined that a sign has been wrongfully or erroneously removed pursuant to this subsection, the department, at the sign owner's discretion, shall either pay just compensation to the owner of the sign or reerect the sign in kind at the expense of the department. In this case, the sign was erected without a permit and Mr. Peacock has correctly been denied a permit. The sign has been removed as required. The sign owner has not proven that the sign was erroneously removed. Hence, the sign cannot be reerected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order and therein order the removal of the sign in question and deny any request for reerection of the sign without a permit. DONE and ENTERED this 16th day of March, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1990. COPIES FURNISHED: Charles Gardner Attorney at Law Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0450 Ronald L. Peacock Peacock Electric Company Route 1, Box 137-D Fernandina Beach, FL 32034 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
The Issue Whether, when making a recommendation to award ITB No. 15C-26K (Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment, and Uniforms) to (1) Matty's Sports (Matty's), (2) Simmons Team Sports (Simmons), (3) D&J Commerce Solutions, Inc., d/b/a OLC Team Solutions (D&J), and (4) Palm Beach Sports (PB Sports), Respondent, School Board of Palm Beach County (School Board), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact ITB No. 15C-26K and the Bid Process On November 4, 2015, the School Board issued Invitation to Bid (ITB) No. 15C-26K entitled "Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment and Uniforms" for the provision of athletic equipment (hard goods) and athletic clothing, including uniforms (soft goods). The ITB offered prospective vendors the opportunity to bid on 26 items but did not require that a vendor offer a bid for each of the 26 identified items. The odd-numbered items were for hard goods and the even-numbered items were soft goods. Paragraph G,
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 adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by BSN Sports, LLC, and upholds the awards of contracts ITB No. 15C-26K to Matty's Sports, Simmons Team Sports, D&J Commerce Solutions, Inc., and Palm Beach Sports. DONE AND ENTERED this 22nd day of July, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2015.
The Issue Whether the decision by the State of Florida, Department of Corrections (DOC) to reject all bids received in response to Request For Proposal 93-RIVHSD- 075 (RFP) was arbitrary, capricious, fraudulent, illegal or dishonest. Additionally, Intervenor challenges Petitioner's standing to bring this proceeding since Bio-Medical Applications, Petitioner's wholly-owned subsidiary corporation, submitted the bid at issue and because Petitioner would not be a party to any contract awarded pursuant to the RFP.
Findings Of Fact Standing In its response to the Request For Proposal at issue in this proceeding, Bio-Medical Applications of Florida, Inc. (BMA) provides the following regarding vendor name and address: Vendor Name: Bio-Medical Applications of Florida, Inc. Vendor Mailing Address: c/o National Medical Care, Inc. 1601 Trapelo Road Walthem, Massachusetts 02154 In the bidder acknowledgment and ownership interest portion of its response to the RFP, BMA disclosed the following: ... This bid is presented in good faith without collusion or fraud and Ernestine M. Lowrie, as signer of the bid from Bio-Medical Applications of Florida, Inc. has full authority to bind as the principal bidder. All stock of Bio-Medical Applications of Florida, Inc. is held by Bio-Medical Applications Management Company, Inc. and all the stock of the latter corporation is held by National Medical Care, Inc., 1601 Trapelo Road, Walthem, Massachusetts 02154. All of the stock of National Medical Care, Inc. is held by W. R. Grace and Company. The Dialysis Services Division of National Medical Care, Inc. (NMC) is the largest division of NMC. In each state in which NMC has an interest in dialysis services operations, Bio-Medical Applications is organized as a corporate entity and is part of the Dialysis Services Division of the parent corporation, NMC. Petitioner in this proceeding, NMC, is not currently organized and registered as a corporation under the laws of the State of Florida. At the final hearing in this case, NMC's representative testified that he was not aware that NMC was registered to do business in the State of Florida but thought NMC had been operating in Florida for about 20 years. BMA is wholly owned by NMC. The Respondent agency originally expressed its intent to award the contract at issue to BMA. NMC has a substantial interest in the RFP and the contract at issue, therefore, its substantial interests will be affected by the agency's proposed action to reject all bids. NMC has alleged that the agency's decision to reject all bids was arbitrary, illegal, dishonest, and fraudulent. Further, Petitioner also contends that the agency decision to reject all bids, after BMA's bid proposal has been disclosed to competitors, undermines the competitive purpose of the bid process. The Request for Proposal On August 27, 1993, the DOC issued RFP No. 93-RIVHSD-075. The RFP requested bidders to submit bids for a contract to perform peritoneal dialysis and hemodialysis treatment at the Department's Broward Correctional Institution and its South Florida Reception Center. The RFP required that bid proposals be filed with the DOC by September 30, 1993. The RFP provided that a bidder would receive up to 50 points for its price proposal and up to 50 points for its qualitative proposal for a total of 100 possible points. The RFP also provided that the DOC reserved the right to reject all bids when the DOC determined it was in its best interest to do so. The Bid Evaluation Upon initial review of the proposals submitted in response to the RFP, the DOC originally calculated that Petitioner's subsidiary, BMA, had received 49 out of 50 possible points from its price, as well as qualitative proposal for a total of 98 points. On October 22, 1993, the DOC sent written notice to all proposers of its intent to award the contract to National Medical Care, Inc. (Petitioner). At the time it mailed its notice of intent, the DOC believed that the difference between the Bio-Medical and the lowest price proposal (received by HealthInfusion) was $156,780 over the five year term of the proposed contract. HealthInfusion and an additional disappointed bidder filed protests contesting the DOC's notice of intent. Based upon input from the protestors, the DOC learned that it had miscalculated the cost of Bio-Medical's proposal. When the DOC corrected its initial error in calculation, BMA's proposal was $340,000 higher over the first three years of the proposed contract and $972,000 higher than the lowest bidder for the entire five year contract term. The Decision to Reject All Bids On November 24, 1993, the DOC notified all bidders of its intent to reject all bids. In addition to the initial miscalculation of price in the bid, the DOC discovered what it considers to be other irregularities in the evaluation in this case. BMA was the existing provider at the time the RFP issued. The bid evaluators worked closely on a day to day basis with Petitioner's employees. The DOC believes the evaluators preferred that Petitioner be awarded the contract and that the evaluators were not objective. During the process of evaluation, the evaluators were provided a letter from a party representing one of the bidders which contained allegations regarding negative background information on other bidders. The DOC believes that the letter should not have been given to the evaluators and that access to the letter further affected the evaluator's ability to be objective. Admitted Facts NMC and the Respondent DOC filed a Prehearing Stipulation in which the following facts are admitted by those parties: The DOC issued Request for Proposal No. 93-RIVHSD-075 ("RFP"). The RFP requested bidders to submit bids for peritoneal dialysis and hemodialysis treatment at Broward Correctional Institution and South Florida Reception Center. Bid proposals had to be filed with the DOC by September 30, 1993. On November 24, 1993, the Department notified all bidders of its intent to reject all bids. The Department rejected all bids due to significant irregularities in the bid evaluation process and the price difference between the winning bid and the low bid was too great. (Emphasis supplied.) On December 3, 1993, National Medical Care, Inc. filed its notice of intent to protest the DOC's decision to reject all bids. On December 13, 1993, National Medical Care, Inc. filed its formal written bid protest. Burden of Proof Petitioner has failed to prove, by the preponderance of evidence, that the DOC acted arbitrarily, illegally, fraudulently or dishonestly in making its decision to reject all bids.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Respondent enter a final order dismissing NMC's protest of its decision to reject all bids in response to request for Proposal No. 93-RIVHSD-075. RECOMMENDED this 16th day of March, 1994, at Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7111BID The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's PFOF 1 is adopted in paragraph 8 of the Recommended Order (RO). Petitioner's PFOF 2 is adopted in paragraph 9 of the RO. Petitioner's PFOF 3 is hereby adopted. Petitioner's PFOF 4 is hereby adopted. Petitioner's PFOF 5, to the extent not conclusory, is adopted in paragraph 1 of the RO. Petitioner's PFOF 6 is hereby adopted. Petitioner's PFOF 7 is adopted in paragraph 2 of the RO. 8-9. Petitioner's PFOFs 8 and 9 are hereby adopted. Sentence 1 of Petitioner's PFOF 10 is hereby adopted. Sentence 2 of this proposed finding is rejected as conclusory. Petitioner's PFOF 11 is adopted in paragraph 14 of the RO. 12-14. Petitioner's PFOFs 12, 13 and 14 are hereby adopted. Petitioner's PFOF 15 is adopted in paragraph 2 of the RO. Petitioner's PFOF 16 is hereby adopted. Petitioner's PFOF 17 is adopted in paragraph 26 of the RO and is a fact, in effect, stipulated to by Petitioner and Respondent. Petitioner's PFOF 18 is adopted in substance in paragraph 21. To the extent not adopted in the RO, the remainder of Petitioner's PFOF 18 is hereby adopted. Petitioner's PFOF 19 is adopted in paragraph 13 of the RO. Petitioner's PFOF 20 is adopted, in substance, in paragraph 16 of the RO. 21-24. Petitioner's PFOFs 21-24 are hereby adopted. Petitioner's PFOF 25 is rejected as a conclusion. Petitioner's PFOF 26 is rejected as conclusory and argumentative. This proposed finding is also irrelevant based upon facts admitted by Petitioner. Petitioner's PFOF 27 is rejected as irrelevant based upon facts admitted to by Petitioner. 28-34. Petitioner's PFOFs 28-34 are hereby adopted to the extent relevant. Based upon Petitioner's admission that the Respondent rejected all bids based on "significant irregularities," these proposals are for the most part irrelevant and unnecessary to the conclusions reached. 35. Petitioner's PFOF 35 is hereby adopted. 36-39. Petitioner's PFOFs 36-39 are adopted. 40-44. Petitioner's PFOFs 40-44 are cumulative and not necessary to the conclusions reached. Respondent's PFOF: 1-19. Respondent's PFOFs 1-19 are adopted in the RO. 20. Respondent's PFOF 20 is rejected as conclusory. 21-22. Respondent's PFOFs 21 and 22 are adopted in the RO. 23. Respondent's PFOF 23 is rejected as argument. 24-26. Respondent's PFOFs 24-26 are adopted in the RO. 27. Respondent's PFOF 27 is rejected as conclusory. 28-29. Respondent's PFOFs 28 and 29 are adopted in the RO. 30-32. Respondent's PFOFs 30-32 are rejected as conclusions and argument. Respondent's PFOF 33 is hereby adopted. Respondent's PFOF 34 is rejected as argument. Intervenor's PFOF: 1-21. Intervenor's PFOFs 1-21 are adopted in substance in the RO. Intervenor's PFOF 22 is adopted, in substance, in paragraph 4 of the RO. Intervenor's PFOF 23 is hereby adopted. Intervenor's PFOF 24 is adopted in substance. Intervenor's PFOF 25 is hereby adopted. However, Intervenor has failed to prove that the activity of NMC is not within one of the several exceptions to the requirements of Section 607.1501, Florida Statutes. COPIES FURNISHED: Seann M. Frazier, Esquire Jennifer Kujawa-Graner, Esquire PANZA, MAURER, MAYNARD & NEEL, P.A. 3081 East Commercial Avenue Fort Lauderdale, Florida 33308 R. Beth Atchison, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Timothy G. Schoenwalder, Esquire BLANK, RIGSBY & MEENAN, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
