Findings Of Fact Respondent, Florida Department of Transportation (Department) solicited bids for certain radio and electronic equipment installation repair and maintenance on Florida's Turnpike through two invitations to bid (ITB's): ITB- DOT-95/96-8004 and ITB-DOT-95/96-8004. There was a mandatory prebid conference held for both ITB's, which representatives of Petitioner, American Communication Equipment and Supply Corporation (AmCom), attended. The Department received bids for ITB-DOT-95/96-8004 and ITB-DOT-95/96- 8005 on October 31, 1995. AmCom bid on both projects, and its bid on each project was the lowest of all received. On each bid blank, AmCom listed its address as 990 N.W. 53rd Street, Fort Lauderdale, Florida. AMCOM listed no other address and included no additional information regarding the location of its business premises. The Deparment did not include within the bid package any form, and did not have a space on any existing form, for bidders to list business premises other than their main business address. The Scope of Services, attached to the bid package for ITB-DOT-95/96- 8004 as Exhibit "A," stated in Section II A: All work under this agreement will be performed at the business location of the Contractor, to be located a maximum distance of thirty (30) highway miles from Florida's Turnpike Okeechobee Radio Shop, Milepost 35.5. The Scope of Services attached to the bid package for ITB-DOT-95/96- 8005 as Exhibit "A", stated in Section II A: All work under this agreement will be performed at the business location of the Contractor, to be located a maximum distance of thirty (30) highway miles from Florida's Turnpike West Palm Beach Radio Shop, Milepost 100. AMCOM's premises at 990 N.W. 53rd Street in Fort Lauderdale is more than 30 highway miles from either the Okeechobee Radio Shop at Florida's Turnpike Milepost 35.5 or the West Palm Beach Radio Shop at Florida's Turnpike Milepost 100. The Department measured the highway miles to the Okeechobee Radio Shop by driving the shortest route, and found it to be 31.5 miles. Two employees checked the distance in different vehicles. The West Palm Beach Radio Shop is considerably more than 30 miles from Fort Lauderdale, and there was no need to measure that distance. In each ITB, under Special Conditions, paragraph 3 stated: Bidders may contact Mr. Matt Mitchell at [number] concerning any questions regarding the content of this Invitation to Bid. However, no verbal instructions shall vary the written requirements of the Invitation to Bid, and any modifications to the bid shall be sent to all Bidders in the form of written addenda. There were no written questions and no addendum regarding bidder qualifications. At the prebid conference prospective bidders were told that the Department required the bidders to have a repair facility within 30 highway miles of the applicable Turnpike radio shop. No one from the Department stated that bidders could qualify without having a repair facility within 30 miles of the applicable Turnpike radio shop. At the time the bids were submitted AmCom was negotiating to buy a business located in Miramar. The sale was not completed when Amcom submitted the bid. The business in Miramar would be within thirty miles of the Ockeechobee Radio Shop. At the time the bids were submitted, AmCom did not have a location in the West Palm Beach area. Mr. Wilson, the owner of AmCom, felt that he could secure and open a location in the West Palm Beach area within twenty days after the contract was awarded if it were awarded to AmCom. On November 7, 1995, the Department posted a notice of intent to award ITB-DOT-95/96-8004 to Mobile Communications and to award ITB-DOT-95/96-8005 to Car-Comm, Inc. The Department rejected AmCom's bids because they did not meet the requirement of having a facility within 30 miles of the appropriate Turnpike radio shop. 16 On the day that the proposed contract awards were posted, AmCom sent a document entitled "Letter of Intent" to the Department. The Letter of Intent essentially stated that AmCom and Broward Radio Communications were in negotiations for the purchase of Broward Radio Communications and that AmCom had the use of the Broward Radio Communications' facility in Miramar to conduct business as outlined in ITB-DOT-95/96-8004. Paragraph 7 of the Special Bid Conditions in each of the ITB's at issue states the following: Within twenty (20) calendar days after the date on which the notice of award has been given, the successful Bidder must execute the contract, provide proof of liability insurance, and furnish evidence of compliance and good standing with Worker's Compensation Laws. The Department reserves the right to revoke award of the contract if the Contractor fails to execute the contract documents within the time specified. The ITB did not define the terms "bidder" and "contractor." The Department considers the terms equivalent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AmCom's protests to ITB-DOT-95/96-8004 and ITB-DOT-95/96- 8005 be dismissed. DONE AND ENTERED this 29th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 29th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NOS. 95-6034BID AND 95-6035BID To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted except "Miami" should be "Okeechobee." Paragraphs 3-9: Accepted. Paragraphs 10-11: Rejected as unnecessary. Paragraphs 12-15: Accepted. Paragraph 16: Rejected as unnecessary. Paragraphs 17-22: Accepted in substance. Paragraphs 23-27: Rejected as unnecessary. COPIES FURNISHED: Thomas H. Duffy Assistant General Counsel Florida Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 William J. Wilson President/Chief Executive Officer American Communication Equipment and Supply Corporation 990 Northwest 53rd Street Ft. Lauderdale, Florida 33309-3105 Mr. James R. Wells Contact Coordinator Car-Comm, Incorporation 10111B Ironwood Road Palm Beach Gardens, Florida 33410-4871 Ben G. Watts, Secretary Attention: Diedre Grubbs, Mail Station 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether or not Petitioner (complainant) is entitled to recover $10,134.72 or any part thereof against Respondents dealer and surety company.
Findings Of Fact This cause is governed by the four corners of the November 2, 1993 complaint. It involves only two loads out of twenty loads of potatoes. Petitioners are growers of potatoes and qualify as "producers" under Section 604.15(5) F.S. Respondent A.F. Business Brokerage is a broker-shipper of potatoes and qualifies as a "dealer" under Section 604.15(1) F.S. A.F. Business Brokerage, Inc. is a corporation engaged in the business of brokering (purchasing and re-selling) potatoes and operates under one or more of the following names: A.F. Business Brokerage, Inc., Washburn Corp., and/or Ben Albert Farms. The contract at issue herein listed the name of the broker as "Albert Farms d/b/a Washburn Corporation." Payments made by the Respondent broker to Petitioner for potatoes received under the terms of the contract were in the form of checks drawn on the account of A.F. Business Brokerage, Inc. For purposes of this litigation, "Albert Farms d/b/a Washburn Corporation," and "A.F. Business Brokerage, Inc." will be considered as describing the same party. Although Titan Indemnity Company received notice of the filing of Petitioner's Complaint and failed to request a formal hearing pursuant to Section 120.57(1) F.S., no evidence or admission was presented at formal hearing which would permit a finding that Titan Indemnity Company was surety for Respondent A.F. Business Brokerage at all times material. That is not to say that Titan Indemnity is found not to be the surety for Respondent A.F. Business Brokerage. The foregoing finding only means that this case in the administrative forum cannot resolve the issue of indemnity as between Respondents because insufficient evidence on that issue has been presented, and it may be necessary for that issue to be litigated in Circuit Court pursuant to the surety contract/bond, if any. On or about December 28, 1992, Petitioner and Respondent broker confirmed in writing the terms of a telephoned agreement, whereby Petitioner agreed to sell and the broker agreed to purchase twenty truckloads of potatoes. The agreement/contract, prepared by Respondent broker was titled "Standard Confirmation of Sale". It specified in pertinent parts: "Unless the seller or buyer makes immediate objection upon receipt of his copy of this Standard Confirmation of Sale, showing that contract was made contrary to authority given the Broker, he shall be conclusively presumed to agree that the terms of sale as set forth herein are fully and correctly stated. Sale made (F.O.B. or Delivered): F.O.B. Special Agreement, if any: Potatoes shipped are for potato chipping and must cook on arrival to be subject to this agreement. This confirmation is issued and accepted in agreement with, and subject to the rules and regulations and definitions of terms as recognized and approved by the U.S. Secretary of Agriculture under the Perishable Agriculture Commodities Act. *4 Truckloads chipping potatoes, April $7.75 FOB 16 Truckloads chipping potatoes, May, June $7.00 FOB *Loads not shipped by seller in April apply to May, June portions of agreement." (Petitioner's Exhibit 1) Under Section 672.319 F.S., The Uniform Commercial Code, the abbreviation "F.O.B." means "free on board" and is interpreted differently, dependent upon what words follow the abbreviation. Regardless of what words follow the abbreviation, the term "F.O.B." places shipping responsibility and shipping costs upon a "seller" as opposed to the one accepting delivery, the ultimate buyer. Testimony and arguments by the parties at formal hearing and in their respective proposals suggest that if "F.O.B." had been used by itself, in place of the word "delivered," and without more, the contract would have signified that sale herein occurred at the time of pickup in the field by the broker/shipper, and that title to the produce would have transferred from the producer to the broker/shipper at that point in time as opposed to title transferring at the time the broker/shipper delivered the produce to its ultimate destination. However, here, the Respondent broker elected the term "F.O.B." and rejected the term "Delivered," and also added the requirement that the potatoes cook to chips at their destination. Petitioner made potatoes available for pick up by the broker at Petitioner's fields beginning in May, 1993 in accord with the contract and the price specified therein. Without incident, the broker picked up and accepted the first eighteen loads of potatoes which it had agreed to purchase. All arrangements for shipment of the potatoes at issue were controlled and paid for by the Respondent broker. These arrangements made and controlled by the Respondent broker included the method of transportation, the exact date when the potatoes would be picked-up from Petitioner's fields, the place to which the potatoes ultimately would be transported, and the time during which the potatoes would remain "in transit". This unilateral control by the broker suggests that the parties were treating the potatoes as if title thereto had passed to Respondent broker when it picked them up in Petitioner's field and clearly shows that the broker had control over what condition the potatoes were in when they reached the retailer at their ultimate destination. As of the time Petitioner began to honor the contract by making potatoes available for pick up by the broker, Petitioner could have sold potatoes on the "open market" for $25.00 per hundred-weight instead of the $7.00 per hundred-weight called for under the terms of the contract. Nonetheless, Petitioner honored its contract with Respondent broker by making potatoes available to the Respondent broker and by reserving a sufficient amount of Petitioner's crop so as to fulfill the entire contract with Respondent broker. As of the time the Respondent broker made arrangements for pick up of the last two loads of potatoes, potatoes on the open market were selling for $1.75 per hundred-weight, meaning that the broker was paying Petitioner more for potatoes under the terms of their contract than the broker would have had to pay to purchase similar potatoes on the "open market". Respondent broker contacted Petitioner immediately prior to June 17, 1993 and asked that Petitioner cancel the contract between them because of the reduced price potatoes were yielding on the open market. Petitioner rejected the proposal. This strongly suggests that the Respondent broker felt bound by the contract to pay Petitioner at the rate agreed under the contract regardless of what rate the broker sold the potatoes for upon delivery and also suggests that the parties were treating the potatoes as if title to the potatoes passed to the Respondent broker when the broker picked up the potatoes in Petitioner's field. The date selected by the Respondent broker for pick up of the last two loads of potatoes was unusual. The broker picked up the last two loads of potatoes on Thursday, June 17, 1993. However, the Respondent broker's standard practice was not to pick up potatoes in St. Johns County, Florida on Thursdays because of the increased risk that potatoes loaded in the fields on Thursdays would reach the ultimate retail destination assigned by this particular broker at a time when processing plants in that locale would be closed for the weekend, thereby increasing the time the loaded potatoes would remain enclosed in the transport truck and accordingly increasing the risk of spoilage. The method of transport selected by the Respondent broker for the potatoes loaded June 17, 1993 was also unusual and destined to increase the risk of spoilage. On that occasion, the broker sent "pigs" a/k/a "piggy-back rail cars" rather than conventional trucks or refrigerated trucks. On June 17, 1993, Petitioner also loaded two trucks for H.C. Schmieding Produce, a broker not involved in this litigation. Petitioner's potatoes loaded upon Schmieding's trucks and the potatoes loaded on Respondent broker's trucks came from the same fields and "lot" of potatoes. One of Schmieding's trucks was loaded before Respondent broker's trucks, and one of Schmieding's trucks was loaded after Respondent broker's trucks. The potatoes purchased and loaded by Schmieding on June 17, 1993 were received in good condition in Illinois and Tennessee, respectively, and Petitioner received full payment for them. Respondent broker's loads were ultimately refused in Massachusetts. June 21-23, 1993 were all weekdays, and presumably "work days." The best date that can be reconstructed for the date that the potatoes in question were dumped by the Respondent broker is June 22 or 23, 1993, so their "arrival" in Massachusetts must have preceded dumping. By undated letter postmarked June 28, 1994, the Respondent broker notified Petitioner of the rejection of the two loads of potatoes picked up by the Respondent broker from Petitioner on June 17, 1993. The letter also informed Petitioner of the broker's intent to assess charges for inspection and dumping of the potatoes and of the broker's intention not to pay Petitioner for the potatoes. This letter was the first notice received by Petitioner advising of the rejection of the two loads of potatoes in question, 1/ and contained a copy of a U. S. Department of Agriculture Inspection Report dated June 22, 1993 showing 60-100 percent soft rot. 2/ Petitioner's principal had left his home and place of business on June 24, 1993, a date clearly 24 to 48 hours after dumping had already occurred and probably much longer after arrival of the potatoes in Massachusetts. Petitioner did not learn of the Respondent broker's June 28, 1993 letter or the Inspection until July 4, 1993. By July 4, 1993 Petitioner had terminated all harvest operations and was not able to tender two replacement loads of potatoes to the broker. As of the time that Petitioner received the June 28, 1994 notice that the two loads in question were being rejected, the Respondent broker had already disposed of the potatoes. Consequently, Petitioner had no opportunity to avail itself of any alternative or other option regarding disposition of the potatoes. Prompt notification of the broker's rejection of the two loads of potatoes might have allowed Petitioner to negate its losses by marketing the potatoes at a reduced price to other processing plants in Massachusetts or to tender two replacement loads of potatoes to the Respondent broker. After all deductions and calculations, the rejected two loads of potatoes resulted in damages of $10,135.47 to Petitioner producer.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Agriculture enter a final order that: Awards Petitioners $10,134.42 and binds A.F. Business Brokerage Inc. d/b/a Albert Farms d/b/a Washburn Corporation to pay the full amount to Petitioner. Sets out any administrative recourse Petitioner or Respondent broker may have against Titan Indeminity Co. RECOMMENDED this 19th day of July, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1994.
The Issue Appellant raises three issues on appeal: (1) whether there is competent substantial evidence to support the Resolution; (2) whether the Commission departed from the essential requirements of the law by incorrectly applying and interpreting the law governing the application; and (3) whether the Commission denied Appellant due process by concluding that the application lacked sufficient detail necessary for a complete review. The parties agree, however, that the due process argument need not be addressed in this Final Order.
The Issue The issues presented for decision in this case are: 1) whether DEM’s proposed award of the contract pursuant to Request for Proposals, DEM 06/07-10 “Emergency Notification System Pilot Program” (RFP) to NTI is contrary to DEM’s governing statutes, rules, policies or the solicitation specifications; 2) whether DEM’s failure to reject Roam’s proposal as non-responsive is contrary to DEM’s governing statutes, rules, policies or the solicitation specifications; 3) whether DEM’s failure to disqualify Roam from consideration of a contract award because of Roam’s contact with DEM during the no contact period is contrary to DEM’s governing statutes, rules, policies or the solicitation specifications; 4) whether DEM’s failure to reject NTI’s proposal as non-responsive for failure to include pricing information beyond the seven month pilot period is contrary to DEM’s governing statutes, rules, policies or the solicitation specifications; 5) whether NTI has violated Section 287.075, Florida Statutes, and is ineligible for an award of the contract; and 6) whether pursuant to Section 120.57(3), Florida Statutes, a de novo proceeding to determine whether DEM’s action deeming Roam’s proposal responsive to the RFP by virtue of scoring that RFP is contrary to DEM’s governing statutes, its rules or policies or the solicitation specifications.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, including the Joint Pre-Hearing Stipulation of the parties, the following findings of fact are made: DEM issued a Request for Proposals, entitled DEM 06/07- 10 “Emergency Notification System Pilot Program” (“RFP”) on September 18, 2007, for the purpose of implementing an emergency notification pilot program in Brevard, Pasco, Polk and Orange counties which would deploy unlimited complete, time-sensitive notices to warn citizens, local emergency management entities and state and regional entities against disasters. The deployed system was required to send voice calls to landlines and cell phones; text to cell phones and email accounts; and messages to TTY/TDD receiving devices for the hearing impaired. The pilot program was to be funded through “Specific Appropriation 1621W” for two million dollars in non-recurring funds from the Emergency Management Preparedness and Assistance Trust Fund. The pilot program was to last seven months beginning on December 1, 2007, and ending June 30, 2008. The RFP did not request pricing for the pilot program to extend beyond June 30, 2008. The RFP set forth certain mandatory requirements that could not be waived as minor irregularities by DEM. Specifically, the Evaluation Criteria section of the RFP stated in pertinent part: “A non-responsive proposal shall include, but not be limited to, those that: i) are irregular or are not in conformance with the requirements and instructions contained herein . . .; iii) fail to utilize or complete prescribed forms; iv) are conditional proposals . . .; vi) propose a project that . . . will require additional funding to implement . . .” The RFP further stated with emphasis: “THE RESPONSIVENESS OF A PROPOSAL SHALL BE DETERMINED BASED UPON THE DOCUMENTS SUBMITTED WITH THE PROPOSAL. A NON-RESPONSIVE PROPOSAL WILL NOT BE CONSIDERED.” The RFP further explained: DEM may waive minor irregularities in the proposals received where such are merely a matter of form and not substance, and the corrections of such ARE NOT PREJUDICIAL to other respondents. Variations which are not minor shall not be waived. (Emphasis in original.) The RFP mandated that all proposals comply with the language in the legislative appropriation for the project, which stated as follows: From the funds in Specific Appropriation 1621W, $2,000,000 in non-recurring funds in the Emergency Management Preparedness and Assistance Trust Fund shall be used to implement a pilot program in Brevard, Pasco, Polk and Orange counties for the purpose of deploying unlimited complete, time-sensitive notices quickly and easily to citizens, local emergency management entities, and state and regional entities to warn against disasters and provide community outreach and education notifications. The deployed service should be able to send voice calls to landlines and cell phones; text to cell phones and email accounts; and TTY/TDD receiving devices for the hearing impaired. The RFP further stated in the Scope of Work section: This Pilot Program is subject to Legislative appropriation and as such, all annual subscriber costs and maintenance fees for the life of the project must be anticipated by the responsive bidder when calculating proposal, and will not be billable upon implementation as a separate charge to the State, Counties, or individuals participating in this program. Id. at 25. (Underlining in original.) RFP. DEM proposed to award a “fixed fee contract” under the Respondents were allowed to submit written questions regarding the RFP to DEM in letter or email form on or before October 1, 2007. According to the RFP, Respondents were not permitted to contact DEM between the advertisement of the RFP on September 18, 2007, until the end of the 72-hour period following the agency posting of the notice of the intent to award, except to submit questions regarding the RFP in written form on or before October 1, 2007. The closing date for submission of proposals in response to the RFP was October 9, 2007. Eleven proposals were submitted, with two being rejected upon opening as non- responsive for failure to meet form requirements. Each of the nine remaining proposals was reviewed by the evaluation committee. Of the nine proposals scored, only the proposal submitted by NTI offered unlimited voice and text messages at a fixed price.1 Although the RFP required an unlimited, fixed- price system, and the evaluation committee could not determine what would be the ultimate price to the state for proposals that did not offer a fixed price, the evaluation committee scored all nine proposals, regardless of whether they offered unlimited messages for a fixed price. The evaluation committee did not make a determination of whether the nine remaining proposals were responsive to the RFP, but rather chose to evaluate all proposals, regardless of whether the vendor offered unlimited minutes for a fixed price, so that they “could evaluate all potential technologies” in making a recommendation of what system would be of most benefit to the state. The evaluation committee, however, was unable to perform an “apples-to-apples” comparison of the proposals because they did not all offer unlimited voice and text minutes for a fixed price. Many proposals such as the one submitted by Roam, offered a set number of voice and text minutes at a fixed price, and then offered additional voice and text minutes at a per minute rate above the base price. Although the Roam system had the ability to provide unlimited voice and text messages, Roam did not give the state a firm price for such unlimited usage. Thus, there was no way DEM could determine the ultimate cost to the state of Roam’s system. Since the evaluation committee could not compare pricing proposals among vendors simply by looking at the proposals, the committee decided to compare systems by applying a minimum level of usage to all proposals that did not offer unlimited voice and text minutes to arrive at an estimate of what DEM might spend on testing any given system. This usage assumption by DEM regarding a number of voice minutes and text messages for testing the system is because many vendors, including Roam, did not follow the instructions of the RFP and failed to submit a fixed price for unlimited messages. Had all vendors submitted fixed price unlimited proposals, as required under the RFP, DEM would not have had to engage in estimating how many voice and text minutes it would use to test the system under the pilot program and would not have adjusted vendors’ proposed prices. DEM made a minimum estimate of three million messages to be sent via voice and three million messages to be sent via text over the course of the pilot period simply to test the system. This figure was based on three messages being sent to an estimated one million households in the pilot area. DEM evaluators admitted, however, that there was really no way to tell how many messages would be used in the pilot program and that the actual number could easily exceed the three million message estimate. DEM tests each of its systems at least monthly. Notably, DEM’s estimates did not take into account actual usage of the system apart from testing. As established by testimony at the final hearing, during just one weather event, it is possible that the number of messages offered in Roam’s base proposal would be exceeded and the state would incur additional costs. Roam’s proposal offered 300,000 voice minutes included in its base price. Based on DEM’s minimum usage estimate, the Evaluation Committee added $135,000 to Roam’s proposal for the additional 2,700,000 minutes at five cents per minute to reach an estimated price for voice minutes. Roam admits that DEM has the right to project any number of voice minutes for use in the pilot program and does not contest that DEM could use the three million estimate if applied evenly to all proposals. Roam’s proposal also offered 300,000 “Enhanced SMS” text messages as included in its base price, and indicated that additional messages were available at a rate of five cents per message, “if necessary.” Although Roam’s proposal stated that DEM would only be charged for additional messages over the base 300,000 if the messages did not go through Roam’s free gateway and an aggregator were used, the necessity for usage of such an aggregator is unclear. The evaluation committee could not determine from Roam’s proposal how many messages would go through the free gateway and how many would be charged at five cents per message. DEM was under no obligation to seek clarification from Roam regarding its proposal, and was not allowed to consider any additional information outside of Roam’s proposal in making its award decision. NTI met the RFP’s requirements for unlimited minutes for unlimited voice and text messages at a fixed price. Because NTI’s proposal provided for unlimited voice and text messages, DEM did not add any additional amounts to NTI’s cost proposal. In addition to cost adjustments for voice and text messages, DEM also added an additional $100,000 to the price of Roam’s proposal for implementation of a system in Orange County. Roam asserts in its formal written protest that the reason it did not allocate funds for deployment in Orange County was because “Orange County is an existing fully deployed customer, and that, as a result, implementation of the pilot project in that county presents an opportunity for cost savings.” Although Roam’s proposal stated that there was an existing system in Orange County, this system is owned by Orange County, not by Roam. Roam’s proposal gave no indication whether Orange County had given approval for use of its system in the pilot program. Additionally, DEM could not determine from Roam’s proposal whether the state would incur additional charges for use of Orange County’s system. Roam has nothing in writing from Orange County confirming that the state could use that system in the pilot program without charge. Roam further admits that the Orange County system is currently only set up to provide text notifications. As a result of the cost adjustments made to Roam’s base proposal of $300,000.00 for additional voice and text messages and for deployment of the system in Orange County, DEM assigned Roam’s proposal a cost of $670,000.00. Since NTI had offered unlimited voice and text messages at a fixed price in its proposal, DEM did not need to make any adjustments to its cost proposal of $583,333.00. The RFP required that vendors provide a cost for implementing and operating the proposed system for the seven- month pilot period and that vendors supply a cost analysis referring to cost categories as set forth on page 27 of the RFP. NTI’s proposal provided all cost information required by the RFP. There is no indication that vendors were to provide cost information for any period beyond the seven-month pilot period. Evaluation committee members testified that they only evaluated cost effectiveness of a proposal for the pilot period as was required under the RFP. Roam’s proposal also did not offer pricing beyond the pilot period. Roam’s representative, Richard Tiene, violated the requirement that a vendor not contact the agency during the period of “no contact” as set forth in the RFP. The general prohibition on contact between vendors and the agency issuing a procurement is stated in Section 287.057(24), Florida Statutes, and set forth in the RFP is as follows: No Contact Period: Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72- hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response. Since the RFP was released on September 18, 2007, and the notice of intended award posted on October 17, 2007, the period of no contact between vendors and the agency began on September 18, 2007, and extended through October 20, 2007. The only exception to the general prohibition on contact with the agency during the “no contact” period was that vendors were permitted to send questions in writing to the chair of the evaluation committee, Charles Hagan, relating to the procurement through October 1, 2007. Specifically, vendors were instructed by the RFP as follows: No verbal inquiries will be accepted. Written questions from prospective contractors will be accepted in letter form or by email by the contact person through the date specified above under Proposal Solicitation Schedule/Timetable (refer to Deadline for Submission of Written Inquiries). Responses to written questions timely received by the contact person will be posted as an Addendum to this RFP on the DMS Vendor Bid System website on or before the date specified above under Proposal Solicitation Schedule/Timetable (refer to Deadline for Posting an Addendum on the DMS Vendor Bid System). (Underlining in original.) On October 17, 2007, Roam’s representative, Richard Tiene, telephoned evaluation committee chair, Charles Hagan, on his cell phone after business hours to make inquiries regarding the RFP. Mr. Hagan advised Mr. Tiene that he could not speak with him and advised him to put anything he had to say in writing. On October 18, 2007, Mr. Tiene again contacted Mr. Hagan by sending him an email attempting to persuade the evaluation committee to select Roam’s proposal over NTI’s. The phone call and email to Mr. Hagan were both within 72 hours of DEM's posting its notice of intent to award the contract under the RFP to NTI on October 17, 2007. Roam asserts that NTI should be disqualified for bid award because NTI participated in the drafting of the RFP through involvement in creating the language for Specific Appropriation 1621W that was incorporated by DEM in the RFP. No proof establishes any request by NTI that the appropriations language be included in the RFP, and this assertion by Roam is not credited. The only recorded evidence regards NTI’s participation in the appropriations process and establishes that NTI’s representative simply requested to review the appropriations language prior to submission to the Legislature and Governor for approval. NTI’s substantial interests are affected by Roam’s attempt to overturn DEM’s intended award of the contract under the RFP to NTI.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended the Division of Emergency Management award the contract under Request for Proposals, DEM 06/07-10 “Emergency Notification System Pilot Program” to the NTI Group, Inc. DONE AND ENTERED this 23rd day of April, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2008.
The Issue The central issue in this case is Petitioner's challenge to the request for proposal (RFP) which the Department of Labor and Employment Security (Department) has identified as RFP 94-052-SH. Such protest relates to four specific areas of the RFP.
Findings Of Fact On May 16, 1994, the Department issued RFP 94-052-SH seeking contractor submittals for the maintenance of its Information Management Center (IMC) including IBM, Xerox, and Storagetek mainframe peripherals and standalone printers. The request did not include the mainframe processor. After receiving the RFP and other documents, Petitioner timely filed a notice of intent to challenge provisions of the RFP. On June 6, 1994, Bell timely filed a written formal petition protesting the provisions of the RFP which it alleged favored one prospective bidder over others. Prior to hearing, seven of the eleven challenges to the provisions were resolved by the Department and Bell. Consequently, no findings of fact are submitted as to those provisions. Section 4.4 of the RFP provides, in pertinent part: Staffing--In accordance with the requirement of this Request For Proposal, the proposer shall provide documentation describing the staffing infrastructure to support the requirements listed in this RFP. Documentation should include at a minimum: * * * c. Proposals shall include, 1) the number of experienced, trained staff that will be working on this contract, and 2) the number of additional experienced, trained staff that will be available in the Tallahassee area for backup. More specific than the foregoing, Section 6.2 of the RFP provides: The Contractor shall have Customer Engineers specifically trained for each piece of equipment included in the RFP or maintenance bid located at the IMC in Tallahassee, Florida. These Customer Engineers shall be available to be onsite, 24 hours each day, 7 days each week. There must be a sufficient number of primary Customer Engineers and backups to maintain a minimum staffing level of one primary CE and one backup trained on each component listed in the RFP. Each primary and backup CE must be trained on the equipment to which they are assigned. Training shall be completed before the individual is assigned to service the equipment covered by this proposal. [Emphasis added.] The services specified by this RFP project should require no more than one person devoting two hours per day. Based upon the terms of the RFP, the "number of additional experienced, trained staff that will be available in the Tallahassee area for backup" should be construed to be those who are available for this project, as opposed to those who may be located in Tallahassee but are assigned to other projects. As the language is clear, this provision is not arbitrary or vague. Section 4.6 of the RFP provides: Value Added Services--The Contractor shall provide a detailed list of additional support services available through this contract. These services shall be considered as part of the contract and made available to the Department at no additional cost. The Department will evaluate the services based on their application to the Department's needs. Monthly equipment pricing should take into consideration any services listed in this section. Areas of interest include services such as: Machine monitoring for enhanced corrective and preventative services; Network Problem Resolution Assistance; Equipment relocation. For each service listed by the Contractor, the following information should be provided to assist the Department in the evaluation of these services: Detailed description of the functions, capabilities, and availability of the service including scope and delivery of benefits; The availability of acquiring the services outside the scope of this contract and, if applicable, the published cost of the service; If the service is being subcontracted, subcontractor information will be required as outlined in section 4.3; References of current customers who use the service. The Department has not specified the types of "value added services" that must be included in the contract cost; nor has it disclosed, among the examples listed, the extent to which the vendor will be responsible for same. As there are literally hundreds of services which could be included, this provision fails to specify which are of importance to the agency. Moreover, by requiring that a vendor include in the contract price the amount necessary to provide the service, the contract price is arbitrarily inflated should a vendor not be required to provide the service. Additionally, a current vendor who can more accurately estimate the level a service will be used, has an advantage over those unfamiliar with past levels of utilization who are required to submit a contract price to include "value added services." As the Department has nothing to gain by requiring that the "value added services" be included in the proposed contract price, and as a current vendor aware of the Department's past need for same has an advantage over others who may bid, this provision is arbitrary and without logic. If additional services are to be required, the Department should specify the services needed and an estimate of the level of use for such services. If the Department merely seeks a laundry list of the "value added services" which a vendor could provide, then the cost for same should be separated from the contract price so that all vendors compete on the same basis. Section 7.21 of the RFP provides: At a minimum, critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40 shall be held in the Contractor's Service Center or warehouse in Tallahassee, Florida. This includes, but is not limited to replacement parts for communica- tions controllers and each type of Head Disk Assembly for all installed disk drives (see Appendix C-list of items that must be maintained in Contractor's Service Center or Warehouse in Tallahassee, Florida). All parts stocked in the Contractor's Service Center or warehouse must be deliverable to the IBM within thirty (30) minutes. High usage replacement parts must be identifiable, in part, based on recommendations by the OEM and approved by the Department. The Department obtained the list of "critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40" from the equipment manufacturers. Such vendors are likely to compete for the subject RFP. The Department intended such list to include any parts necessary to assure that the downtime of the system would be minimized. The Department did not consider the failure rate of such parts and, in the past, has not incurred problems with many of the items listed. In fact, fifty percent of the parts listed have no industry history for failure. Additionally, the Department did not consider the price of the part in determining whether it should be warehoused in Tallahassee. As it relates to this provision, section 7.40 only requires that the maintained equipment is to have "diagnostics and corrective actions performed to eliminate equipment failure downtime as soon as possible but not to exceed two (2) hours." Whether that section requires a correction within two hours or that diagnosis and actions be begun within two hours is unclear. However, the cited section is the sole reference for the parts replacement list standard. Curiously, the list of parts required does not include items which, by history, have a high rate of failure and which could result in downtime to the system; such parts include: a cooling fan, a blower fan for the assembly, and a battery backup for the solid state memory. These parts have a minimal cost and could be readily stocked in Tallahassee. In contrast, the parts which are required by the RFP are relatively expensive. Collectively, the cost of such parts exceeds $60,000 and, given the estimate of the monthly price for this contract, it is less likely such parts would be warehoused in Tallahassee by a vendor who did not manufacture same. As a result, this provision arbitrarily favors a vendor who manufactures the part since there is no showing that the part is necessary to minimize downtime. Section 7.31 of the RFP provides: The IMC currently utilizes real-time online retrieval of Engineering Changes for some components under maintenance contract in order to decrease EC procurement and installation time in a remedial maintenance situation. The contractor shall provide a similar method by which Engineering Changes can be acquired expeditiously. The foregoing provision fails to acknowledge that a vendor, other than the manufacturer, can only implement engineering changes as coordinated with the OEM. This provision, if construed to recognize that limitation, would not, based upon the language, arbitrarily favor one bidder over another.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Labor and Employment Security enter a final order amending the provisions of RFP 94-052-SH to either delete the inclusion of the price of "value added services" from the contract cost or to specify more information as to the Department's need regarding such services; and to amend the critical parts list to those items that have an industry history for failure and thus contribute to system downtime. DONE AND RECOMMENDED this 30th day of September, 1994, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3527BID Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1-9, 11-15, 20, and 22-27 are accepted. The first sentence of paragraph 10 is accepted; the remainder rejected as incomplete or irrelevant as it is not clear what the intention of the phrase was. The first sentence of paragraph 18 is accepted; the remainder rejected as argument. Paragraph 19 is rejected as argument. Paragraph 21 is rejected as irrelevant. Paragraph 28 is rejected as argument. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1-3, 8 and 11 are accepted. Paragraph 4 is accepted but is irrelevant. With regard to paragraph 5, the last sentence is rejected as irrelevant; the remainder is accepted. Paragraph 6 is rejected as irrelevant. Paragraph 7 is accepted as to the statement of intent but is rejected as the cited provision does not accomplish the Department's stated goal and is therefore not supported by the weight of credible evidence; consequently, an amendment to the provision is necessary. All references to the Comptroller's RFP are rejected as irrelevant to the extent such comments infer that the record in this case supports the cited provision. Accordingly, such references in paragraphs 9 and 10 are rejected. Additionally, the inference in paragraph 9 that the critical parts list rationally relates to parts necessary to keep the system running is rejected as not supported by the credible weight of the evidence. The Department acknowledged or did not refute that many of the parts do not have an industry record for failure additionally, other parts were not listed which do have a failure history and which could cause the system downtime. Except as noted above, paragraph 10 is accepted. Paragraph 12 is accepted but is irrelevant. COPIES FURNISHED: Gregory P. Borgognoni RUDEN, BARNETT, McCLOSKY, SMITH SCHUSTER & RUSSELL, P.A. 701 Brickell Avenue, Suite 1900 Miami, Florida 33131 Edward A. Dion General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2189 Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0300
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McK.ibben, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing file was predicated upon Respondent's Notice of Voluntary Dismissal. Accordingly, it is hereby ORDERED that the Dealer Agreement between Qlink, LP and Mega Power Sports, Corporation is terminated. DONE AND ORDERED this z/.ayofOctober, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed October 15, 2009 3:41 PM Division of Administrative Hearings. Filed with the Clerk of the Division of Motor Vehicles this day of October, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Mark L. Ornstein, Esquire Killgore, Pearlman, Stamp, Ornstein & Squires, P.A. Post Office Box 1913 Orlando, Florida 32802 David Levison Mega Power Sports, Corp. 921 West International Speedway Boulevard Daytona Beach, Florida 32114 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432-02 Tallahassee, Florida 32399-0504 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License .Section
The Issue The issue in this proceeding is whether the Department of Highway Safety and Motor Vehicles' cancellation of a contract for radar maintenance and repair should be upheld.
Findings Of Fact In 2002, the Department issued an Invitation to Bid 015-02 (ITB) for the maintenance and repair of Florida Highway Patrol (FHP) radar units located throughout the state. As a result of correspondence from Richard White, to the Department, the ITB was amended to include the following: The bidder must have the following minimum qualifications: Be an authorized service center or have on staff certified repair technicians for at least two (2) of the following radar manufacturers, and agree that he will have on staff, within six (6) months, from start of contract, a certified technician(s) for all the following radar manufacturers: Decatur Electronics Kustom Signals MPH Applied Concepts Failure to comply may result in termination of this contract. In response to ITB 015-02, Petitioner submitted a bid and included documents showing that CCJ was included on a list entitled "Stalker Service Centers Private," which was "ACI trained," and that CCJ was an authorized service center for Kustom Signals, Inc. Petitioner was the successful bidder and entered into a contract with the Department for radar maintenance and repair services. The term of the contract was for 36 months with the option to renew for two one-year terms. Applied Concepts, d/b/a Stalker Radar, is a radar manufacturer whose radar units are used by FHP and whose radar units were specifically identified in the ITB. On August 18, 2004, Jim Fink, a sales administration manager for Applied Concepts, wrote to Mr. White informing him that effective September 20, 2004, Applied Concepts would no longer continue the Factory Authorized Service Center agreement with CCJ. The letter also informed Mr. White that all discounts would be rescinded and all parts, drawings, manuals, and schematics must be returned to Applied Concepts within 60 days of the letter. As a result of this termination of agreement between CCJ and Applied Concepts, any warranty repair work submitted by FHP to CCJ would have to be forwarded to another factory authorized repair center instead of being performed at CCJ. Further, no one from CCJ would be allowed to attend any factory training for future or current factory support offered by Applied Concepts. Mr. White called FHP Lt. Jim Wells, a contract manager for this contract, and informed Lt. Wells of the correspondence from Applied Concepts. On September 1, 2004, Lt. Jim Wells, FHP, received an e-mail from Jim Fink of Applied Concepts confirming that CCJ would no longer be an authorized service center for Applied Concepts effective September 20, 2004. Lt. Wells became concerned as to whether CCJ could continue to effectively stay in compliance with the contract. On September 28, 2004, the Department issued a Cancellation of Award of Bid 015-02 for Radar Maintenance and Repair. The explanation given in the letter signed by Stacy Wafford, Chief of Purchasing and Contracts, reads in part as follows: Mr. White: Recently it has been brought to our attention that the business relationship between Communications Corporation of Jacksonville and Applied Concepts, Inc., manufacturer of Kustom Signals Radars1/ has been severed. The Florida Highway Patrol utilizes and relies upon the functionality of Stalker of speed detection radars throughout the State of Florida and it is critical that this equipment be certified for accuracy and maintained to the proper performance standards specified by the manufacturer. Whereas, having been informed by Applied Concepts, Inc., that your certification has been revoked effective September 20, 2004. [sic] This action removes you as an authorized vendor to certify, maintain and repair this brand of radar. The Department of Highway Safety and Motor Vehicles, and the Florida Highway Patrol has no choice but terminate its relationship with Communications Corporation of Jacksonville, by the formal cancellation of Award of Bid 015-02 for Radar Maintenance and Repair. Therefore, in accordance with the Mandatories of Bid 015-02 for Radar Maintenance and Repair in general and specifically the Section entitled TERMINATION IN THE BEST INTEREST OF THE STATE, the Department is herein exercising it(sic) right to terminate, upon 30 day notice to the contractor. Therefore in accordance with Rule 60A-1.006 (3), FAC you are hereby notified that this agency is canceling award of Bid 015-02 for Radar Maintenance and Repair to Communications Corporation of Jacksonville for failure to maintain the certification status to perform all the duties detailed in bid document 015-02. In accordance with the referenced rule, Communications Corporation of Jacksonville is hereby notified that it has 30 days after receipt of this letter to correct such failure to adhere to all terms and requirements of bid document 015-02. In accordance with Rule 60A-1.006(3), FAC if the Contractor fails to provide written proof that he has taken corrective action to reestablish his ability to adhere to all terms and requirements of bid document 015- 02 within this time period, the Department shall find the contractor in default and proceed with the reprocurement of services required in bid document 015-02. (emphasis in original) The cancellation letter also provided a point of entry into the administrative hearing process. On October 7, 2004, the Department posted an Invitation to Bid 010-05 on the Internet for Radar Maintenance, Repair and Laser Calibration. On October 13, 2004, the attorney for Petitioner filed a document entitled Proof of Compliance and Objection to Agency Letter which reads in part as follows: The agency has served CJJ with a Cancellation of Award of Bid 015-02 for Radar Maintenance and Repair letter, (Agency Letter) dated September 28, 2004. The Agency letter included the following provisions: Requirement that CCJ respond, within 30 days, with written proof that corrective action has been taken to comply with Award Bid 015-02, pursuant to Rule 60A-1.006(3), FAC. Notice that the Award Bid 015-02 is cancelled, effective 30 days from receipt of the Agency Letter. Notice that CCJ may elect for a Point of Entry Proceeding for Administrative Proceedings within 21 days from receipt of the Agency Letter. The Agency Letter has taken a three-step process that is designed to provide due process to vendors and merged it into one action for its convenience and to expedite the ultimate conclusion that it has unilaterally arrived at, i.e. termination of CCJ. The agency's action has effectively eliminated the Notice of Default and Corrective Action portions of Rule 60A-1.006 (3) FAC. By combining these three steps, CCJ has been defaulted without due process or an opportunity to be heard. Had the agency followed the provisions of the FAC, CCJ would have been provided time in which to respond with proof that it is not in default of Award Bid 015-02. The attorney's letter then set forth disputed issues of material fact. On October 22, 2004, a telephone conference call took place between Mr. White, his attorney, Lt. Wells, and other personnel of the Department, in an attempt to resolve this matter. The matter was not resolved as a result of the telephone conference. A Notice of Intended Award was posted on November 17, 2004, awarding Bid 010-05 to Communications International, Inc.2/ On November 28, 2004, the Department sent another letter to Mr. White that read in pertinent part as follows: On September 28, 2004 you were notified by letter that our Agency was canceling the award of Bid 015-02 for Radar Maintenance and Repair to your company for failure to maintain certification status to perform all duties detailed in the bid document. Specific reference was made to the September 20, 2004 notice by radar manufacturer Applied Concepts, Inc. that your certification was revoked. In addition, our letter based cancellation on the bid terms that permit termination in the best interest of the state. On October 15, 2004, we received a Petition for Evidentiary Proceeding and Proof of Compliance and Objection to Agency Letter from your attorney, Mark Rubin, that was submitted in response to our letter. On October 22, 2004 you, Mr. Rubin, and representatives from our purchasing office, FHP and legal conducted a telephone conference in an effort to resolve your Petition. We were not advised at that conference or since then that you have cured the loss of certification with Applied Concepts, Inc. and are therefore still not in compliance with bid terms requiring you to be an authorized service center or have staff certified technicians for Applied Concepts radar units. The Department declines to intervene on your behalf with Applied Concepts in an effort to resolve the loss of certification. Following the conference, we sent you a copy of ITB 010-05 that was advertised on October 7 and is intended to replace the contract cancelled with your company. At this point, we are adding an additional ground for cancellation, which is the TERMINATION FOR CONVENIENCE provision on page 6 of the bid/contract and allows the Department to terminate the contract at its convenience. Because this is an added basis for termination, you have an additional 21 day period within which to file an amended petition and request an administrative hearing, as explained below. Therefore, in accordance with the Mandatories of Bid 015-02 for Radar Maintenance and Repair in general and specifically the sections entitled TERMINATION IN THE BEST INTEREST OF THE STATE and TERMINATION FOR CONVENIENCE, the Department intends to terminate the contract. (emphasis in original) The termination clauses referenced in ITB 015-02, read as follows: TERMINATION FOR CONVENIENCE The Department reserves the right to terminate the Contract or any part of the Contract at its convenience. The Department shall incur no liability for materials or services not yet ordered if it terminates for convenience. If the Department terminates for convenience after an order for materials or services has been placed, the Contractor shall be entitled to compensation upon submission of invoices and proper proof of claim, in that proportion which its services and products were satisfactorily rendered or provided, as well as expenses necessarily incurred in the performance of work up to time of termination. TERMINATION IN THE BEST INTERESTS OF THE STATE The Department reserves the right to terminate the Contract or any part of the Contract in the best interests of the state, upon 30 day notice to the contractor. The Department shall incur no liability for materials or services not yet ordered if it terminates in the best interests of the state. If the Department terminates in the best interests of the state after an order for materials or services has been placed, the Contractor shall be entitled to compensation upon submission of invoices and proper proof of claim, in that proportion which its services and products were satisfactorily rendered or provided, as well as expenses necessarily incurred in the performance of work time of termination. The Department reserves the right to cancel this contract upon the Department of Management Services issuing a State contract for this type service for use by the agencies. A 30 day written cancellation notice will be sent to the Vendor. The ITB does not specifically mention warranty work but appears to apply to all work necessary, i.e., warranty and non-warranty work, to conform to the requirements of the contract. Lt. Wells acknowledged that CCJ never failed to perform contracted work on equipment presented for maintenance or repair under the terms of the contract.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a final order canceling the award of the contract arising out of ITB 015-02 effective November 28, 2004, and to compensate Petitioner for any materials or services which had been placed prior to that date in accordance with the provisions of the Termination for Convenience clause. DONE AND ENTERED this 26th day of April, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2005.
Findings Of Fact Since 1976, DHRS has leased two Xerox 9200 copy machines for its Tallahassee headquarters. The two units together rent for a total of $9,945.11 per year. On September 27, 1984, Mr. Charles A. Stryker, account manager for Xerox in Tallahassee, by letter to the director of central general services for DHRS in Tallahassee, proposed several alternative plans for DHRS to obtain the equipment necessary to handle its central reproduction duplicating needs. Among the proposals submitted by Mr. Stryker was a purchase of the present Xerox 9200 units currently being leased from Xerox. This proposal pointed out that the machines in question had reached the maximum equity per machine that they could earn on a rental basis and that among other things, Xerox would be willing, if DHRS were to buy them, to provide nine months free maintenance on the units and a guaranteed 50 percent trade-in value if the units were to be traded in on new units from Xerox within 12 months from date of purchase. DHRS officials, recognizing the fact that maximum equity on the machines had been realized and foreseeing the opportunity to obtain the machines at a substantial dollar saving to the State, by letter dated October 10, 1984, contacted the appropriate officials at the Department of General Services (DGS), requesting authority to procure these particular used units from Xerox on a sole source procurement. On November 1, 1984, DGS responded denying sole source procurement authority, but granting authority to purchase two suitable duplicating systems through the competitive bid process. It was the opinion of DGS that the equipment was available and the fact that the total cost of the acquisition exceeded the upper limit of $2,500.00, the competitive bid process was necessary. Thereafter, a purchase requisition was submitted on November 2, 1984, by Mr. Vick which was approved. On November 7, 1984, Mr. Vick forwarded a memorandum to Mr. Cox which stated: "Please determine how we are going to purchase the (2) Xerox 9200's. Their offer ends December 15, 1984." An Invitation to Bid on Bid No. 85-41 BC for two used high speed, high volume xerographic duplicating systems was mailed to Xerox and Kodak on November 19, 1984. The Invitation to Bid form reflected the bids would be opened on December 7, 1984, at 2 p.m. The Invitation to Bid forms were sent to Xerox and Kodak only because they were the two companies in the area which manufactured and supplied equipment which would meet the specifications required by DHRS. Both Xerox and Kodak submitted their bids on December 6, 1984. Xerox's bid price was $29,764.00 per machine for a total price of $59,528.00 for the used machines that were currently in use at DHRS headquarters. As a part of its bid, Xerox offered a rebate voucher in the amount of $5,990.75 to cover the purchase of 4 620 Memorywriter typewriters and 7 printwheels. This rebate was part of a National promotion to all government customers. Kodak's bid was for $134,280.00 per machine for a total price of $268,560.00 for new Kodak model 250AF machines. Mr. Goodrich admits that Kodak does not manufacture a xerographic which meets the technical qualifications contained on page 5 of the Invitation to Bid. In addition to this, he points to the specifications listed in the special conditions and technical specifications section of the IFB contained on pages 3 and 4, specifically number 3 which calls for full maintenance for a period of 9 months following installation at no expense to the department and a guaranteed 50 percent trade-in allowance within 12 months of purchase. Kodak contends that since as Kodak has its own price specials which it could have offered if the terms of the IFB were not so narrowly defined, and it was thereby precluded from competitively bidding on this contract, the inclusion of those terms mentioned above effectively negated the competitive bidding process. Admittedly, Kodak did not submit a proposal to DHRS at the time Xerox did prior to the issuance of the IFB. It is for this same reason that Kodak's bid referred to new equipment rather than the used equipment called for under the IFB because at the time, Kodak did not have any used equipment which would meet the terms and conditions of the invitation to bid. Mr. Goodrich admits also that Kodak did not compete for the original contract to provide xerographic equipment in 1976 because it, was not in operation in the Tallahassee area at that time and could not have bid competitively. However, they have equipment which can do substantially what the Xerox 9200, in use since 1976, can do and more, and this was the item they offered in their response to the IFB. The IFB in this procurement was developed by Mr. Cox who built the solicitation utilizing the general conditions dictated by DGS for all procurements, the technical specifications developed by DHRS' technical services division, and the special conditions which he developed to satisfy the needs of the department in this procurement. Specifications calling for used equipment was utilized because it was felt that a purchase of the used, in place xerox equipment would permit a substantial monetary savings while still getting equipment which had been proven satisfactory to do the job. Nonetheless, if new equipment from either Xerox or Kodak would have done the job required and still saved money, that would have been the route taken. This was not the case, however. According to Mr. Vick, the request to go sole source on this procurement was prompted by a desire to take advantage of the Xerox proposal of late September 1984 which, it was felt, would result in a substantial dollar savings for the State while still providing equipment which was satisfactory for the task required. DHRS maintains an open door policy toward vendors to encourage them to come in and attempt to sell their product. Mr. Cox has dealt with Kodak on several occasions in the past but never in the area of copying equipment. At the time in question, there was nothing at all to preclude Kodak from coming in with their own offers. DHRS officials do not deny that they wanted to accept Xerox's proposal. Offers by several other vendors had been turned down in the past, but this one looked so good and appeared to have the promise of substantial dollar savings to the State, that a request was made to DGS to go single source procurement so that this proposal could be accepted. However, once this request was turned down, an Invitation for Bids was sent out to competing vendors and while the terms paralleled those offered by Xerox and it was obvious that Xerox's bid would comply with them, there was nothing in the procedure on DHRS' part that would preclude Kodak from offering the same terms. The officials at DHRS had no way of knowing that Kodak's internal policies would not permit the meeting of the same terms as to free maintenance and trade in allowance. If Kodak had been willing to meet those terms, it could thereafter have battled Xerox head to head on the one issue where they could compete - price. DHRS also admits that generally, it is reluctant to make outright purchases of technical equipment, preferring to lease as was done here for several years, because of the changing state of the art. It is for that reason that the invitation to bid specified used equipment here to keep costs down and to allow upgrading in the reasonably near future. To go even further, Mr. Cox admitted that while the bid was open to others, it was aimed at getting the Xerox proposal which would save a total of $76,000.00 on this purchase and trade-in. Considering the evidence in its totality, it is clear that the officials at DHRS were attempting to save state funds in this procurement. Their method of handling this procurement lacks finesse, perhaps, but cannot be said to be ill-motivated, arbitrary, capricious, or unreasonable.
The Issue The issue in this case is whether the decision of the City of Clearwater Community Development Board (the "Board") to deny the application of Petitioner for flexible development approval to erect a telecommunications tower should be upheld pursuant to the City of Clearwater Land Development Code (the "Code"). (All section references are to the Code adopted on January 21, 1999, unless otherwise stated).
Findings Of Fact Petitioner is a Florida corporation engaged in the business of building telecommunication towers for co-location of antennae to send and receive cellular telephone signals. Proper location of telecommunication towers is essential to efficient and effective cellular telephone communications. There must be an available tower to pick up the signal as a user moves from a distant tower to the available tower. Without an available tower, the user would lose signal. It is undisputed that three telephone carriers, identified in the record as GTE, Nextel, and PrimeCo, need an available tower in the vicinity of Clearwater High School (the "high school"). Another telephone carrier, identified in the record as AT&T, shares an existing tower at the high school with the Pinellas County School Board (the "school board"). No reasonable use can be made by GTE, Nextel, or PrimeCo of the existing tower at the high school without modification to the tower. The existing tower is not adequate in height and structural capacity to meet the requirements of GTE, Nextel, and PrimeCo. The school board and AT&T repeatedly rejected efforts by GTE, Nextel, and Petitioner to discuss the possibilities of modification of the existing tower to accommodate co-location. In 1996, AT&T advised GTE that the school board was not interested in co-location activity. The school board repeated that position in a separate meeting with GTE. GTE and PrimeCo searched for over two years for an alternative structure, tower, or location that would provide reasonable use for their technical requirements. In 1997, GTE requested a permit from Respondent to build a new tower approximately two blocks from the existing tower at the high school. Respondent contacted the superintendent of the school board to encourage co-location. Respondent did not issue a permit to GTE for a new tower. Early in 1998, GTE and PrimeCo approached Petitioner to locate a site for construction of a new tower in the vicinity of the high school. Over the next eight months, Petitioner searched for a suitable site for building a new tower. Petitioner found a site surrounded by commercial property and bordered by mature trees which are 20 to 40 feet tall. On October 13, 1998, Petitioner optioned the portion of the property on which Petitioner intended to build the tower, and Petitioner now owns the property. On May 17, 1999, Petitioner filed its application for site plan approval. The application proposed the construction of a 160-foot wireless communications tower for co-location by GTE, Nextel, and PrimeCo (the "proposed tower"). Petitioner sent a notice of the proposed tower to Mr. Kevin Becker at AT&T. The staff for the Board conducted a technical review of the application. The staff recommended approval of the application subject to certain conditions. Petitioner complied with each of those conditions. The staff also recommended approval by the Development Review Committee (the "DRC"). The DRC must review each application before it is submitted to the Board. The staff report to the DRC stated that the existing tower at the high school was the only other tower in the area and was in poor condition. The report found that the tower cannot structurally hold more weight and cannot accept more antennae. Before the Board reviewed the application, Nextel again contacted Mr. Becker at AT&T to discuss modification of the existing tower for co-location of Nextel's antenna. Mr. Becker responded for AT&T with a terse e-mail that stated, "This is the THIRD TIME I have told Nextel that . . . tower is not available for anyone." The Board conducted five hearings to review the application by Petitioner. The hearings spanned six months. The Board conducted the first hearing on July 20, 1999, a second hearing on October 5, 1999, a third hearing on November 16, 1999, a fourth hearing on December 14, 1999, and the last hearing on January 25, 2000. The Board did not follow the staff recommendation at the first hearing. After hearing testimony and receiving other evidence, the Board continued the first hearing, in relevant part, to "allow the City to do whatever it may want to do in terms of addressing that issue." The Board directed Petitioner to contact the school board concerning the condition of the tower and directed the City Planning Director to also contact the school board. After the July hearing, Petitioner contacted the school board concerning the existing tower. Neither the school board nor AT&T had any plans for modification of the existing tower at the high school. The City Planner conducted an independent inquiry and determined that there is not much of a desire on the part of the school board or AT&T to "create other opportunities at this time." Petitioner and the City Planner reported their findings to the Board at the second hearing conducted on October 5, 1999. No one from the school board or AT&T appeared at the hearing. Petitioner presented an engineering study concerning the inadequacy of the existing tower at the high school. One Board member asked whether a new tower could be constructed at the high school to replace the existing tower. Petitioner and the Board's attorney stated that the Code encourages the use of existing towers rather than new towers. The Board continued the hearing over objection from Petitioner so that City representatives could contact school board representatives at a higher level and also allow consideration of a new tower at the high school. After the October hearing, the City Manager contacted the superintendent of schools to discuss the tower at the high school. On November 10, 1999, the superintendent stated that he would meet with city representatives only if AT&T representatives were also present. The superintendent eventually met with the City Manager without the presence of an AT&T representative. The superintendent indicated a willingness to consider modification of the existing tower but no agreement was reached due to the absence of AT&T participation. Another Board member prevailed on the superintendent four times to make a decision without success. The Board conducted the third hearing on November 16, 1999. Representatives from GTE, Nextel, and PrimeCo testified at the hearing. Modification to the existing tower at the high school would accommodate one of the three companies but not the other two. The proposed tower is the only tower that would accommodate all three companies. The proposed tower is necessary to provide effective and efficient service to the customers of GTE, Nextel, and PrimeCo. GTE has been at a competitive disadvantage since 1996. The Board voted to approve Petitioner's application. The Board conducted a fourth hearing on December 14, 1999. At that hearing, the Board voted to reconsider Petitioner's application on the ground that the Board had received timely requests for reconsideration from an interested party. The Board determined that Petitioner had misrepresented the position of the school board and AT&T concerning their willingness to modify the existing tower at the high school. The catalyst for the Board's reconsideration was a letter from Mr. Becker, dated September 16, 1999, stating that AT&T was willing to consider co-location. Mr. Becker sent a copy of the letter to the Board the day after the Board approved Petitioner's application. The letter stated that AT&T was very interested in considering co-location with other carriers but that the existing tower at the high school was inadequate for the purpose. The letter represented that AT&T would be willing to discuss replacement of the tower with other carriers. Petitioner had never seen the letter prior to the Board's approval and had no knowledge of the change in position by AT&T. The Board conducted a final hearing of Petitioner's application on January 25, 2000. The Board considered the letter from Mr. Becker and a letter from legal counsel for AT&T. Both letters stated that the existing tower does not have the structural capacity to add additional wireless antennae. A staff member for the Board again concluded that the term "existing" meant a tower in existence at that time. Respondent's expert confirmed that the existing tower, without reconstruction, was not a reasonable alternative to the tower proposed by Petitioner. Mr. Becker testified that AT&T was not proposing to modify the existing tower to accommodate the proposed antennae needed by GTE, Nextel, and PrimeCo and that the existing tower was beyond reinforcement to accommodate additional loading. The Board denied Petitioner's application. The Board found that the existing tower "can be modified to accommodate carriers and thus reasonable use may be made of the existing tower." The evidence does not support a finding that the existing tower can be modified to accommodate GTE, Nextel, and PrimeCo. To do so, the existing tower would need to be replaced rather than modified. Reasonable use of the existing tower cannot be accomplished by modification. Replacement of the existing tower with a new tower would not provide reasonable use of the "existing" tower. As a threshold matter, an interference study would be necessary before a determination could be made that the replacement tower would accommodate all of the carriers. PrimeCo cannot commit to the replacement tower until the interference study is completed. In addition, there are other problems. AT&T proposes to place seven carriers on the replacement tower. That configuration would not provide adequate coverage to each carrier. A second tower would be required in the "short term." AT&T's proposed location of each antenna on the replacement tower would reduce the amount of coverage that is available to each carrier on the tower proposed by Petitioner. Petitioner's proposal locates GTE at 155 feet to accommodate GTE's technical needs. AT&T would locate GTE no higher than 120 feet thereby substantially reducing the area served by GTE. If GTE is located at 120 feet, GTE would need to construct another tower a mile away in order to obtain the coverage achieved at 155 feet in Petitioner's proposal. The replacement tower proposed by AT&T imposes additional limitations on AT&T's competitors. It requires GTE to reduce the size of its antenna to four feet from the eight-foot antenna in Petitioner's application. AT&T imposes a similar reduction on Nextel and requires Nextel to agree to a "compromising antenna" to co-locate on the replacement tower. The continuances ordered by the Board delayed construction of the tower proposed by Petitioner. If Petitioner had received approval of the application in July 1999, Petitioner could have had its proposed tower in service by January 2000. The delay has placed GTE, Nextel, and PrimeCo at a competitive disadvantage. As of the date of the administrative hearing, AT&T had not begun construction of the replacement tower. The school board has the right to approve any co-location agreements for the replacement tower proposed by AT&T. AT&T has not submitted any co-location agreements for school board approval. Board policy considers the timeliness of a replacement tower as one factor in determining whether the replacement tower is "feasible" or a "reasonable alternative" within the meaning of Section 3-2.001D.1. A replacement tower that would require more than one year to construct is neither feasible nor a reasonable alternative. Neither the Board nor its staff enunciates any intelligible standards for adopting a one-year time limit or for applying a one-year time limit, including any standard for identifying the starting point of the one-year limit. For example, Petitioner first applied for approval on May 17, 1999. The Board began the one-year period for determining feasibility of the AT&T replacement tower on September 10, 1999. Respondent failed to explicate why it started the one-year period on September 10, 1999, rather than the date of application. The limitations imposed by AT&T for co-location on the replacement tower and the continuances imposed by the Board, individually and severally, comprise a "legitimate limiting factor" within the meaning of Section 3-2001D.1.g. The limitations and continuances have the effect of placing GTE, Nextel, and PrimeCo at a competitive disadvantage and also have the effect of discriminating against the three companies in violation of Section 3-2001A.
The Issue The issue in this case is whether the Tallahassee-Leon County Planning Commission should approve, with conditions specified by the Development Review Committee (DRC), a type B site plan submitted by Wright/AT&T for construction of a cell tower at the corner of Buck Lake Road and Pedrick Road.
Findings Of Fact The applicant, Wright/AT&T, seeks approval of a type B site plan for construction of a 150-foot high telecommunications antenna support structure (cell tower) on 4,200 square feet of the commercially-zoned (C-1) Parcel 8 of the Benjamin’s Run planned unit development (PUD) at the southwest corner of Buck Lake Road and Pedrick Road, along with a 230 square-foot building to house electrical equipment, a gated fence surrounding the tower and building, and an access driveway from Pedrick Road. Buck Lake Elementary School is across Pedrick Road from Parcel 8. There are numerous residential land uses in the immediate vicinity, including the rest of Benjamin’s Run, Easton, the Enclave, and Tung Hill. Wright/AT&T demonstrated that there is a need for a cell tower to provide cell phone voice and data services to a coverage hole in the vicinity of Parcel 8 of Benjamin’s Run and that there are no suitable alternative sites. Petitioners did not rebut Wright/AT&T’s demonstration of need and suitability. They questioned whether the search area was broad enough, but the evidence proved that the applicant’s search area was appropriate. They questioned whether there were any co-location opportunities that would be suitable, but the evidence proved that there are none. The Benjamin’s Run PUD is central to determining whether Wright/AT&T’s type B site plan should be approved. The City approved the PUD in August 1998. The approved PUD does not mention telecommunications support structures or cell towers explicitly. Under Section 3.1.2 of the Land Use Concept Plan in the PUD’s Conceptual Development Narrative, it states that the proposed development’s concept plan “[p]rovides outlet for goods and services at a restricted neighborhood scale, serving the immediate surroundings.” Section 3.2.1 states that “Benjamin’s Run is primarily a residential community with the intended conceptual objectives [to] [m]aintain compatibility with the existing neighborhoods[; p]rovide limited commercial and employment opportunities to the proposed development and surrounding neighborhood, at a restricted neighborhood scale[; and d]evelop to the infrastructure capabilities currently available ” It also states: “The neighborhood commercial will generally be located at the intersection of Pedrick Road and Buck Lake Road, depicted as Parcel 8. . . . Office use is intended to serve as a bridge between the commercial and the residential component of parcel 7.” Under section 3.2.2 of the PUD’s Land Use Concept Plan, the residential densities are those allowable for the City’s R-2 and R-3 Zoning Districts. Under section 3.2.3, office use is permitted as minor or major office parks, limited to those permitted in the City’s C-1 Zoning District, and limited to a maximum of 25,000 square feet. Under section 3.2.4, minor to neighborhood commercial uses are permitted, limited to those permitted in the City’s C-1 Zoning District, and limited to neighborhood commercial with a maximum of 25,000 square feet. Section 3.3 of the PUD’s conceptual development narrative provides that uses are limited to those permitted within the R-2, R-3, and C-1 zoning districts of the City Code, as amended November 1997. It also states that permitted uses “will be listed by Standard Industrial Code [SIC] number, where applicable, or specify a definition of other permitted uses not listed by SIC numbers.” Section 7.2 of the PUD lists 64 SICs permitted in C-1, and none cover telecommunications support structures.1/ There also is no SIC for billboards. Section 4.6.2 of the PUD’s general development standards, under signs, specifically prohibits them. There is no similar prohibition of cell towers. Section 4.5.5 of the PUD’s general development standards, under non-residential building and site design, states: “All electrical and telecommunication utilities shall be located underground, except for antennas which may be located on rooftops so long as the roof design screens any rooftop equipment from view from public rights of way.” Section 10-425(c)(1) of the City’s Land Development Code, known as the Telecommunications Siting Ordinance, which governs the siting of cell towers, was adopted in November 1996. The ordinance was amended in 1999; but, from its inception, it allowed cell towers in any zoning district so long as the tower met the requirements of section 10-425.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission approve Wright/AT&T’s type B site plan, with the DRC’s conditions. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 20th day of April, 2011.
