88-003376BID Capital Copy, Inc. vs. University Of Florida Status: Closed Recommended Order on Tuesday, December 27, 1988.

Summary: Bid dispute concerning purchase of copy machines. Price is not always the determining factor in ranking responses to RFP.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPITAL COPY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-3376BID

)

UNIVERSITY OF FLORIDA, )

)

Respondent, )

________________________________)

RECOMMENDED ORDER

Following notice, a hearing was held in this case pursuant to Section

120.57(1), Florida Statutes. The hearing dates were August 25, 1988 and

September 20, 1988. The location of the hearing was Gainesville, Florida.

Charles C. Adams served as Hearing Officer.

Conduct of the hearing was as envisioned by the opinion of the District

Court of Appeal First District, State of Florida, in Capital Copy, Inc., v.

University of Florida, Case No. 87-1842 entered on June 1, 1988. This opinion

reversed the decision of the University to deny the opportunity of Capital Copy,

Inc., to challenge the bid results in the Invitation to Bid, Bid No. 88J- 112YC,

in which Capital Copy, Inc. was a bidder. Under the circumstances, the right to

protest encompasses the opportunity of Capital Copy, Inc. to contest ". . . the

reasonableness and competitiveness of the terms of the bid", as well as the

matter of its entitlement to the award of a contract under the terms of the

Invitation to Bid.

On August 25, 1988, the first day of hearing, a written motion was advanced

by the University of Florida calling for the dismissal of the Petitioner's case

based on the assertion that in accordance with Preston-Carroll Company, Inc. v.

Florida Keys Aqueduct Authority, 400 So2d 524 (3rd DCA 1981), Capital Copy, Inc.

was without the standing to advance its claims in that its substantial interests

were not affected. In particular, the argument was made that should the bidder

who was selected as the choice of the owner, that is, Danka Industries, Inc.,

not be found the successful bidder, a bidder other than the Petitioner would be

entitled to the contract award. This eventuality would inure to the benefit of

University Copy Center, the second ranked bidder under the analysis made by the

University in its bid selection process. The motion was denied following

argument before the hearing commenced. The motion was made again at the

conclusion of Petitioner's case and was denied. Essentially, the basis for

denial concerned the belief that Preston-Carroll, supra did not inhibit the

attempt on the part of this Petitioner to demonstrate that it was the

appropriate bidder to receive the contract, even if that meant that it needed to

establish that those bidders who placed higher in the hierarchy were not

entitled to the bid award and to make that presentation beginning with the

bidder that was next in ranking above it and continuing through that procedure

to the point of disqualifying the bidder who had been selected by the University

to receive the contract.

Danka Industries, Inc. had sought intervention into this case at the

initial hearing session and was granted intervenor status. Subsequently, by

correspondence of September 8, 1988, a request was made to withdraw as

Intervenor. That request was considered on September 30, 1988 at the second

hearing session and was granted.

This Recommended Order is being entered following the receipt and review of

the transcript of proceedings and the exhibits admitted into evidence. In

addition, the Proposed Recommended Order of the University was filed on November

14, 1988, has been considered. That date was the due date for Proposed

Recommended Orders. Next in sequence, a letter was filed with the Division of

Administrative Hearings on November 21, 1988 by counsel for Petitioner in which

he outlines his trial commitments and other matters beginning with November 9,

1988 and ending with November 17, 1988. This is perceived as a request to

extend the time for filing a Proposed Recommended Order. This was met by pone

in opposition by the University which objected to the filing of the Proposed

Recommended Order based upon grounds of untimeliness and the claim of some

advantage to be gained by the Petitioner by this submission beyond the time that

the University had filed its Proposed Recommended Order. On December 2, 1988,

the Proposed Recommended Order of the Petitioner was filed with the Division of

Administrative Hearings. Upon reflection, both Proposed Recommended Orders are

accepted. An Appendix to this Recommended Order describes the instances in

which the fact proposals suggested by those Recommended Orders have been

utilized in the preparation of the Recommended Order: and those occasions where

the factual rendition in the Proposed Recommended Orders have been rejected.

APPEARANCES

For Petitioner: Ainslee R. Ferdie, Esquire

717 Ponce de Leon Boulevard, Suite 215

Coral Gables, Florida 33134-2084

For Respondent: Joseph T. Barron, Jr., Esquire

Associate General Counsel

University of Florida

207 Tigert Hall

Gainesville, Florida 32611

ISSUES

The issues presented concern themselves with whether the University of

Florida (University) in the preparation of its Invitation to Bid, Bid No. 88J-

112YC and examination of the responses to the invitation established a bid

solicitation process which is reasonable and competitive. The other question

for consideration is whether Capital Copy, Inc. (Capital) is entitled to the

contract award under the terms of the Invitation to Bid.

FINDINGS OF FACT

1. The University is part of the State University system in Florida. In

its purchasing activities, it must act in accordance with Chapter 287, Florida

Statutes and Rule 6CI-3.020, Florida Administrative Code. One of the techniques

that may be employed by the University in its purchases is the use of an

Invitation to Bid. On this occasion, it determined to invite bids for the

provision of coin and card operated photocopying machines at various libraries

associated with the University. In addition to the provision of photocopying

equipment, the bid invitation contemplated that the vendor would be responsible

for servicing that equipment and paying the University a commission from profits

derived by the vendor through its copy sales. Arrangements for establishing the

terms of the Invitation to Bid began in the Spring of 1987. The bid invitation

was mailed on July 30, 1987. A copy of the Invitation to Bid with its changes

may be found as University exhibit 13 admitted into evidence. The significant

changes to the Invitation to Bid concerned the movement of the bid opening date

from August 25, 1987 to September 4, 1987 and the replacement of pages 3-9

associated with contract terms and other instructions to the bidders.

2. The purchasing division of the University was responsible for ensuring

that the Invitation to Bid by its terms conformed to acceptable bidding

practices required by law. The individual who had responsibility for that task

was Walter Winstead who was the Associate Director of Purchasing for the

University at times relevant to this cause. He fulfilled that task in a

satisfactory fashion. He left over the matter of the substance of what was

requested and required to a committee of employees of the University who were

affiliated with the library system. This arrangement was not unusual and is in

keeping with the practices of the University and the requirements of law.

3. The members of the library committee who were responsible for deciding

how the bid invitation should be designed in substance and how to evaluate

responses to the bid invitation were Carol Turner, Rich Bennett, Barbara Oliver,

Carrol Drum, and Edward Teague. Carol Turner chaired the committee. Each

member of the committee was aware of the operation of the University library

system, the need to preserve library materials and had a working knowledge of

the use of copying equipment, especially as it contemplates the need for payment

for copies.

4. Among other items considered in the drafting of the Invitation to Bid

used in this case was information provided by the University of South Florida in

bidding for similar photocopying equipment use. A copy of bid materials used by

the University of South Florida in its copying contract may be found as

University exhibit 15 admitted into evidence. Resort to this information was

not an extraordinary arrangement. It is a common practice of the University to

look to the experience of sister institutions in gaining ideas for purchases.

In any event, the University of South Florida's concept differed in significant

ways from the University of Florida's Invitation to Bid in obtaining the use of

photocopying equipment and the servicing of that equipment. Suggestion by

Capital that undue influence was created by reference to the University of South

Florida experience in obtaining photocopying equipment and associated service is

not well founded. The benefit gained from the examination of the University of

South Florida bid materials was not one which has fostered an environment which

was anti- competitive and tended to favor the eventual contract awarded in the

University of Florida contract, Danka Industries, Inc. (Danka). The

relationship between Mr. Winstead and Keith Simmons, Director of Procurement for

the University of South Florida, during the course of the preparation,

examination and decision for contract award in the present case did not stymie

competition in the University of Florida bid circumstance, nor did the remarks

of Mr. Simmons made to Mr. Winstead at a time following the recommended decision

of the library committee to contract with Danka impugn the fairness of this

process. This last comment is in view of those remarks found in the University

exhibit 12 which is a note from Mr. Simmons to Mr. Winstead in which he is

somewhat critical of Capital while singing the praises of Danka. A copy of that

item was admitted into evidence. Prior to the receipt of the Keith Simmons

memorandum, which was given to Jack Winstead on September 30, 1987, Simmons had

not provided any form of evaluation or made any comments to personnel with the

University of Florida concerning Capital Copy or Danka, or any other bidder

participating in this Invitation to Bid. The only contact concerning remarks

about the vendors was between Simmons and Winstead. Although this information

was made known to Winstead before the notice of decision to award to Danka was

made, it was not made known to the library committee members in their

deliberations and it was not inappropriate for Mr. Winstead to accept the

recommendations of the library committee in favor of Danka without a re-analysis

similar to the library committee's analysis of bid responses. In effect, Mr.

Winstead did not participate in substance in the consideration of this bid

process and was not required to. He fulfilled his role in the purchasing

division by insuring that the procedural portion of the Invitation to Bid was

conducted in a neutral fashion without favor to any vendor.

5. Carol Turner discovered the information from Keith Simmons subsequent

to the time that the recommendation for an award to Danka had been sent to the

purchasing division and this did not lead to any further statement on her part

or a change in her position. Other committee members were never made aware of

that information before the decision was reached to award the contract to Danka.

6. On various occasions, library committee members while at the University

and off campus have had the opportunity to speak with vendors; among those

vendors would be representatives of some of the companies who responded to the

Invitation to Bid. These conversations had to do with attempts by some of the

library committee members to make themselves aware of available photocopying

equipment and for the vendors to try to educate library personnel about the

availability and relative merits of their equipment. None of these contacts

were improper or such that they prejudiced the library committee against any

equipment or made the library committee members less than impartial in the

evaluation of the equipment described in the responses to the Invitation to Bid.

7. Seven vendors responded to the Invitation to Bid. In addition to

Capital and Danka, Kodak/McLean, Office Automation, University Copy Center,

Xerox and CDT/OCE responded to the Invitation to Bid.

8. Of the vendors, Capital and Danka, who are the principal protagonists

among the vendors involved in this dispute, both have notable experience in the

photocopying business as vendors and suppliers of coin/card photocopying

equipment.

9. The terms of the Invitation to Bid under general conditions at

paragraph 6 point out that use of manufacturer's names, trade names, brand

names, etc. did not limit the opportunity for the provision of equivalent

material. Moreover, the specific terms of this solicitation do not use

manufacturer's names. Instead, the features desired are described without

reference to a manufacturer's name. In summary the bid was not established to

gain the response of a particular manufacturer to the exclusion of other

manufacturers of photocopying equipment.

10. Under general conditions, it also described that the vendor who

examines the terms of the bid invitation and is concerned about the

reasonableness and competitiveness of the terms and conditions should file a

protest in the form of a petition to the University under Rule 6CI-3.20(19),

Florida Administrative Code and failure to pursue this remedy under the time

lines described in Section 120.53(5), Florida Statutes, would constitute a

waiver of proceedings under Chapter 120, Florida Statutes. None of the vendors,

to include Capital, offered any complaints about the terms of the Invitation to

Bid at any place and time prior to the decision to award to Danka. Nonetheless,

as described in the introductory portion of this Recommended Order, Capital

appealed the denial of its request for hearing and was granted a hearing

opportunity to examine the substance of its claims concerning the specifications

among other contentions.

11. The University, through its Invitation to Bid, specifically referenced

the fact that it had 35,000 students, 4,200 faculty and 6,700 staff members who

looked to the seven libraries to service the needs of those persons. The

University wanted the vendors to provide fifty (50) photocopying machines, four

(4) of which would be dedicated for staff purposes. The bid invitation stated

that:

Providing library users the opportunity to

make legible copies conveniently and at

reasonable cost is an essential component of

preserving library materials and insuring

that they are optimally available for use.

This was under the description of the Background of this Invitation to Bid

found at page three, revision two. Under the category of Award found on that

page, it was stated that:

the award will be based on the best overall

proposal in terms of the following criteria:

equipment offered, quality of copies,

vendor's ability to perform, extent and

reliability of service, coin and card prices,

and commissions paid to the Libraries.

Selection will be based on the best overall

proposal; commission alone will not be the

determinate [sic]. Bids will be evaluated

and the final selection made by a committee

of library staff members who are involved

with photocopy operations.

The comment about commission is further described at page 8 of revision two

under the category Commission in which it states that 500,000 staff copies per

year, plus a reduction in cost on copies above that 500,000 count and cash

commission on the gross receipts in the public use machines is required in the

response to invitation. It allowed the vendors to state the commission as a

flat percentage of gross, a per copy commission, or use a sliding scale of

payments.

12. The requirements of the qualifications of the vendors were

specifically described. The number of pages of copies contemplated on an annual

basis was indicated as being 5,000,000 copies per annum. The equipment

specifications were comprehensively detailed and all these matters were

considered carefully by the library committee in its selection process.

13. On the bid opening date, a specific tabulation in which a bottom line

dollar figure was arrived at and a ranking established of the bidders in terms

of the best response down to the least desirable response was not made. Given

the design of the bid invitation, it is not remarkable that a bid tabulation

could not be made on the date of opening. The terms of this bid invitation

contemplate the comparison of a number of items which do not lend themselves to

a monetary calculation which shows the lowest money quote as a basis for

establishing the hierarchy of bid responses. The inability to arrive at a

tabulation on the bid opening was not due to any mass confusion as suggested by

Capital. The fact that the bids were available for examination by the vendors

is not irregular either. The vendors are entitled to look at the bid responses

upon the opening. The bid documents were protected and secured by the

purchasing division and the comment by Capital that this process was one of

disarray at the time of bid opening such as to thwart the fairness of this

process is rejected.

14. Five different types of machines were bid, excluding reference to

staff copying machines, which if included would bring the types of machines to

eight in number.

15. Alternate bids by a vendor were indicated by the purchasing department

as being undesirable and no decision was reached by the library committee which

utilized an alternate bid as a basis for evaluation and contract award.

Although the purchasing department: through its personnel did not evaluate in

detail the substance of the bid responses, it is not inappropriate to allow this

to be done by the subunit within the University community who will be utilizing

the equipment, in this instance, the libraries at the University. The

purchasing division did fulfill the role of oversight in this process and was

satisfied about the approach taken by the library committee. The bid materials

were forwarded from the purchasing division to the library committee for its

deliberations. Each committee member became generally familiar with the

specific terms of each bid response. Subsequently, the committee members were

assigned one or two vendor responses for a more thorough evaluation, to include

checking references offered by the vendors to ascertain the experience other

institutions had had with use of the vendor's photocopying equipment. In making

these assessments, criteria were utilized as set forth in a worksheet which is

found as part of University exhibit 2 admitted into evidence. That worksheet

corresponded with the basic concept set forth in the specifications of the

Invitation to Bid. Sources of information known as Data Pro research materials

relating to photocopying equipment were also resorted to in trying to analyze

the best response to the Invitation to Bid. See University exhibits 9, 10, and

11 admitted into evidence. The Chair, Carol Turner was responsible for

establishing the evaluation criteria.

16. All vendors were found to basically meet the requirements of the

specifications with exception of McLean which was ultimately rejected based upon

its intention to use remanufactured copying equipment which was contrary to the

bid specifications.

17. Among the-specifications was an indication that the photocopying

machines could hold at least 500 sheets of 8 1/2 x 14" and 1,000 sheets of 8 1/2

x 11" paper. Any number of machines can meet these requirements. Capital had

suggested in its testimony at hearing that only the Konica machine offered by

Danka holds 500 sheets of 8 1/2 x 14" paper. That testimony is rejected in

favor of other testimony which suggested that a number of manufacturers in

addition to Konica, can comply with that requirement; namely, machines

manufactured by Sharp, Mita, Ricoh, Savin, Xerox, Kodak, and A. B. Dick. None

of the bids were rejected because of the inability to meet the requirement of

500 sheets of 8 1/2 x 14" paper. Capital had bid Sharp equipment in its

response to the Invitation to Bid.

18. An item not contemplated by the Invitation to Bid was the ability to

reduce copies and Capital's suggestion that this was a beneficial feature is

rejected. Although the reduction capability of the Capital equipment is not

needed nor beneficial, it is also worthy of note that no mention of this

deduction capability was made in the bid response.

19. As the library committee carried forward its specific evaluation of

bids through the individual assignment process, it had no particular notion of

where this would lead it in terms of arriving at the best bid or that it would

narrow the field to two bidders or that the committee would seek additional

information from the more select group before making its final recommendation.

20. Mr. Teague was involved with the examination of the Capital bid. He

found that bid response, a copy of which may be seen as University exhibit 6

admitted into evidence, to be difficult to assess in that specific details about

the proposal for complying with the bid specifications were lacking. He saw the

response as being somewhat of a reiteration of the bid specifications wording.

He evaluated the Sharp 80/100 copier in conjunction with literature Capital had

provided with its bid response and use of the Data Pro documents. In doing so,

he noticed that the Sharp equipment offered less volume capability than was seen

in the Danka equipment bid. He found a lack of specific information about

service to be provided, and the number of service technicians, and when they

might come to the different locations within the library system. In essence,

everything was seen to be generally stated and not sufficiently specific. He

perceived the Sharp 80/100 control panel as being complicated in its appearance

and was concerned that the user might have trouble with this complexity.

21. In referring the University to other accounts which might verify the

quality of performance of Capital related to these other accounts, comparability

of those accounts to the circumstance of the University as contemplated in this

contract was not particularly apropos.

22. Some criticism is directed t a h t n i l a t i p a C y b e u  t o w a r h d r . T e a g M e

only made one call to Florida International University in trying to verify

performance by Capital on an account related to that University; however, he did

speak to two other references given by Capital and failure to make contact with

Florida International University and the single call to that University does not

lead to the conclusion that Capital was unfairly treated by Mr. Teague in his

evaluation.

23. Capital's response did not identify where it would locate its office

to service the University account which was contrary to the representations by

other vendors who said that they would have an office across the street from the

University or in space on the University campus. No indication was given by

Capital as to the address for its parts and supply inventory. Limited reference

was made to service technicians and no attempt made by Capital to deal with

backup support for a service technician.

24. The strongest feature of Capital's bid response related to the amount

of commission to be earned by the University. In this respect, it ranked first

among vendors while Danka was fifth. On the other hand, the cost to users in

making copies showed that Capital was third while Danka was second.

25. Rich Bennett prepared various documents which show these comparisons

of commissions and user cost and other matters and his opinions correspond With

the attitude of other library committee members. The exhibits in which these

comparisons can be found are University exhibits 1, 3, and 4 admitted into

evidence

26. Barbara Oliver who evaluated the Danka and University Copy bid

responses used the evaluation sheet in reference to the Data Pro materials.

These two vendors were both offering Konica copying equipment.

27. Following the individual assessment process through committee

assignment, the full committee reconvened and discussed their individual

findings. This did not include the submission of the written remarks of the

committee members concerning their individual projects. There is no requirement

for a written submission in order to ensure the fairness of this bid analysis.

Through discussion it was determined to narrow the field to University Copy

Center and Danka, as well as McLean who was eventually eliminated as described

before. This choice to narrow the field was unanimous. On balance in making

its choice to narrow the field, greater deference was given to the cost to

users, ease of operation of the photocopying equipment and service at the

expense of some commission that might be allowed the University if it dealt with

Capital. It was not the express purpose of this contract to make a profit for

the University of Florida. Generation of commission was one among a number of

items that needed to be examined. It was not controlling. A less important

feature, but one that impressed the University with the Danka proposal was that

its staff copying equipment was of a higher quality than had been bid by other

vendors. One final item that the University felt strongly about was the

prevention of destruction of its library materials which were costly and, in

some instances, irreplaceable. In this connection, affordable, higher quality

copies are important to the preservation of those materials because students who

are not satisfied about these issues have been known to damage library

materials.

28. One additional feature of the Danka equipment was a Danyl Tower which

allows a user to add value to their photocopying card at any given copying

machine, as opposed to only at discreet locations. While the specifications do

not indicate how many machines have to have this capability, the fact that the

Danka had it at each machine is a valuable asset. The Danyl Tower was UL

approved at the time of the bid response.

29. On the fourth page of revision two under the category Qualification of

Vendor, it is stated "vendors may, at their own expense, be requested to present

their proposals to assure that the bidder has a full understanding of the

University Libraries' expectation regarding bidder performance and compliance

with contract terms and conditions." In furtherance of this opportunity, Danka

and University Copy Center were invited to answer questions and make

presentations. This is not an unusual arrangement and was not one in which

these vendors were allowed to modify their bid responses. The principal topic

for discussion at these meetings, was how these vendors intended to honor the

service requirements of the contract. Most specifically discussed were

questions associated with the way the system would work when seen in actual

operation, questions concerning the exact service arrangements that were being

proposed, questions regarding particular situations that would come up when the

equipment began to wear out, the provision of backup service in the event the

primary technicians were not immediately available. Danka, in demonstrating the

equipment showed how the photocopying purchase cards were encoded. Other

questions concerned how the signs were going to appear that gave information on

the operation of the machines, how the machines might be protected from

vandalism and how the vendor would assure that the machines were not broken

into. The same basic interrogation process was utilized with both Danka and the

University Copy Center. Following these sessions with the two vendors, the

committee on September 23, 1987 unanimously decided in favor of Danka. This was

followed by a memorandum from Carol Turner to Jack Winstead recommending that

Danka be given the contract award. A copy of that memorandum may be found as

University exhibit 2 admitted into evidence. The purchasing division accepted

this recommendation and a contract was ultimately awarded to Danka and it

remains in effect.

30. While no particular weights were afforded to the review criteria in

terms of points to be assigned for various features, or related to commissions,

or cost to users, or otherwise, the assessment made by the library committee

members was fair and accurate and carried the requisite objectivity expected of

a competitive bid process.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has jurisdiction of the

subject matter and the parties pursuant to Subsection 120.53(5), Florida

Statutes.

32. Capital has sufficient standing to bring this action in that its

substantial interests are being determined. See also, Capital Copy, Inc. v.

University of Florida, Case No. 87-1842, in the District Court of Appeal First

District, State of Florida (June 1, 1988).

33. This opportunity is not prohibited by the holding in Preston-Carroll,

supra. While that case establishes the necessity for a disappointed bidder to

successfully attack all intervening bidders in the hierarchy between it and the

successful bidder, in order to prosecute its claims of the lack of

responsiveness on the part of the successful bidder, it may not be summarily

denied that opportunity based upon an allegation of lack of standing.

34. Although Capital has the necessary standing to pursue its claims of a

lack of reasonableness and competitiveness in the terms of the bid invitation,

and its alternative argument that it is the most responsive bidder, it has

failed in that proof. The process that the University employed was procedurally

and substantively correct. It was a competitive bid process. It was a process

in which the bid invitation was appropriately prepared, the responses fairly

reviewed and the University's choice of vendor an acceptable arrangement. The

process was one of an honest exercise of the discretion granted to the

University in making its decision. Even should others disagree with the

relative value to be placed upon the response offered by Danka, especially given

that it did not derive the greatest amount of income or commission for the

University, it may not be overturned. Moreover, from the observation of an

independent trier of fact, the University's selection is defensible in that it

has chosen the most appropriate bidder. Capital has failed to demonstrate that

there was any form of arbitrariness, illegality, fraud, oppression or any

misconduct and the bid solicitation process must be upheld. See Liberty City v.

Baxter's Asphalt and Son Concrete, 421 So 2d 505 (Fla. 1982) and Department of

Transportation v. Groves-Watkins Constructions, 13 F. L. W. 462 (Fla. 1988).

Again, the dollar amounts of the bid responses are not always determinative. It

was appropriate to look at other factors as well in deciding the outcome. See

Culpepper v. Moore, 47 So 2d 356 (Fla. 1949). Finally, the process of the

preparation of the Invitation to Bid and the analysis of the responses and

decision to award the contract to Danka are in keeping with requirements of

Chapter 287, Florida Statutes, and Rule 6CI-3.020, Florida Administrative Code.

35. Based upon a consideration of the facts found in the Conclusions of

Law reached, it is,

RECOMMENDED:

That a Final Order be entered which dismisses the challenge by Capital to

the contract award to Danka in Bid No. 88J-112YC. Further, it is recommended

that Capital's request for attorney's fees and costs be denied.

DONE AND ENTERED this 27th day of December, 1988, in Tallahassee, Leon

County, Florida.

_________________________________

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3376BID

The following discussion is given concerning the Proposed Findings of Facts

of the parties in those instances where those proposals were not utilized in the

preparation of the Recommended Order:

Petitioner's Facts:

1. Paragraphs 1, 2 and 3 are subordinate to facts found.

2. Paragraph 4 is not necessary to the resolution of the

dispute.

3. Paragraph 5 is subordinate to facts found.

4. Paragraph 6 is irrelevant.

5. Paragraph 8 is subordinate to facts found.

6. Paragraph 9 is not necessary to the resolution of the

dispute.

7. Paragraphs 8, 9, 10, 11, and 12 are subordinate to

facts found.

8. Paragraph 13 is contrary to facts found.

9. Paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,

25, 26, 27, 28, and 29 are subordinate to facts found.

10. Paragraph 30 is rejected as not constituting references

found in the response to bid and therefore irrelevant.

11. Paragraphs 31, 32, and 33 are subordinate to facts

found.

12. Paragraph 34 is redundant or cumulative.

13. Paragraphs 35, 36, 37, and 38 are subordinate to facts

found.

14. Paragraph 39 is contrary to fact finding as this case

relates to service, a relevant factor in the bid

evaluation process.

15. Paragraph 40 in the first sentence is subordinate to

facts found. Paragraph 41, in the second sentence is

contrary to facts found.

16. Paragraphs 41, 42 and 43 are subordinate to facts

found.

Respondent's Facts:

1. Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,

15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27

are subordinate to facts found.

2. Paragraph 28 is subordinate to facts found with the

exception of reference to McLean who was not a

responsive bidder.

3. Paragraph 30 is subordinate to facts found.

4. Paragraph 31 is not necessary to the resolution of this

dispute.

5. Paragraphs 33, 34, and 35 are subordinate to facts

found.

6. Paragraph 36 is not necessary to the resolution of this

dispute.

7. Paragraph 37 is subordinate to facts found.

8. Paragraphs 38, 29, 40, 41, 42, 43, 44, 45, 46, 47, and

48 are not necessary to the resolution of this dispute.

9. Paragraphs 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,

60, 61, 62, and 63, are subordinate to the facts found.

10. Paragraph 64 is not necessary to the resolution of this

dispute.

11. Paragraphs 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, and

75, are subordinate to the facts found.

12. Paragraph 76 is not necessary to the resolution of this

dispute.

13. Paragraphs 77, 78, 79, 80, 81, and 82 are subordinate

to facts found.

14. Paragraph 83 is not necessary to the resolution of this

dispute.

15. Paragraph 84 and the first sentence of paragraph 85 are

subordinate to facts found. The remaining sentence in

paragraph 85 is not necessary to the resolution of this

dispute.

16. Paragraphs 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96,

97, 98, 99, and 100 are subordinate to facts found.

17. Paragraphs 101, 102, and 103 are not necessary to the

resolution of this dispute.

18. Paragraphs 104, 105, 106, 107, 108, 109, 110, 111, 112,

113, 114, 115, 116, 117, 118, 119, 220, 121, and 122

are subordinate to facts found.

19. Paragraphs 123, 124, and 125 are not necessary to the

resolution of this dispute.

20. Paragraphs 126, 127, 128, 129, 130, 131, 132, 133 ,

134, 135, 136, 137, 138, 139, 140, 141, and 142 are

subordinate facts found.

21. Paragraphs 143 and 144 are not necessary to the

resolution of this dispute.

22. Paragraph 145 is contrary to facts found.

COPIES FURNISHED:

Ainslee R. Ferdie, Esquire

Jeffrey Solomon, Esquire

Suite 215

717 Ponce de Leon Boulevard

Coral Gables, Florida 33134

Joseph T. Barron, Jr., Esquire

Associate General Counsel

University of Florida

207 Tigert Hall

Gainesville, Florida 32611

Clerk of the University of Florida

207 Tigert Hall

Gainesville, Florida 32611

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF EDUCATION

DIVISION OF UNIVERSITIES

UNIVERSITY OF FLORIDA

CAPITAL COPY, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 88-3376BID

)

UNIVERSITY OF FLORIDA, )

)

Respondent. )

____________________________)

FINAL ORDER

The University of Florida has received and considered the Recommended Order

from Hearing Officer Charles C. Adams dated December 27, 1988. The undersigned,

as President of the University of Florida, adopts as the Final Order the

Recommended Order, which is attached to this Final Order and by reference made a

part of it, including the Findings of Fact, Conclusions of Law, the

Recommendation and the Appendix in that Order.

Capital Copy, Inc. has filed twelve exceptions to the Recommended Order.

Each exception has been considered and they are all denied for the following

reasons:

1. Exception 1 challenges the findings made in paragraph 2 of the

Recommended Order concerning the duties of the purchasing officer based on Rule

6C1-3.020(b)(2) and Rule 6C1-3.020(3). Although Rule 6C1-3.020(b)(2) does not

exist and Rule 6C1-3.020(3) does not refer to a purchasing officer, this

exception is nevertheless premised on a legal argument rather than a factual

finding. The hearing officer concluded as a matter of law that the process

employed by the University was procedurally and substantively correct and in

keeping with the requirements of Chapter 287, Fla. Stat., and Rule 6C1-3.020,

Florida Administrative Code. The conclusion reached by the Hearing Officer is

correct. This exception is therefore rejected.

2. Exception 2 apparently challenges a portion of the findings made in

paragraph 4 of the Recommended Order. The Exception is based on Capital Copy's

proposed Finding of Fact 41. The Hearing Officer rejected Finding of Fact 41 as

subordinate to facts found and as such the exception is denied. Exception 2

also reargues the contention made in Exception 1 concerning Rule 6C1-

3.020(b)(2), which is addressed in paragraph 1 above.

3. Exception 3 challenges the findings made in paragraph 6 of the

Recommended Order concerning the impartiality of the University in the bid

process. Capital Copy reasserts its proposed Findings of Fact 8 and 9 as the

basis for Exception 3. The Hearing Officer rejected those findings as

subordinate to the facts found and as such the exception is denied. The Hearing

Officer determined that the contacts the committee members had with the vendors

were not improper, did not prejudice the committee members and did not affect

their impartiality. These findings are based on the weight and credibility the

Hearing Officer attached to the testimony of witnesses at the hearing and will

not be disturbed.

4. Exception 4 challenges the findings made in paragraph 12 of the

Recommended Order. The Exception is based on Capital Copy's proposed Findings

of Fact 35 and 36 and its Conclusion of Law 1. The Hearing Officer rejected

proposed Findings of Fact 35 and 36 as subordinate to the facts found and

concluded as a matter of law that the Invitation to Bid was appropriately

prepared, the response was fairly reviewed and the University's choice of vendor

was proper. Capital Copy's factual findings are rejected as subordinate,

immaterial or irrelevant. The Hearing Officer was correct in his legal

conclusions.

5. Exception 5 challenges the finding made in paragraph 13 of the

Recommended Order in which the Hearing Officer determined that the bid process

was fair. Capital Copy reasserts its proposed Finding of Fact 34 which was

rejected by the Hearing Officer as redundant or cumulative. The Hearing Officer

was correct in determining that these findings are subordinate, irrelevant or

immaterial. Capital Copy reargues proposed Conclusions of Law 1 and 2 contained

on page 11 of its Recommended Order. The determination made by the Hearing

Officer that the bid process was fair was within the purview of the Hearing

Officer to make, is in accordance with the law and will not be disturbed.

6. Exception 6 is a reargument of some portions of Exceptions 2 and 5.

Those exceptions were addressed in paragraphs 2 and 5 above.

7. Exception 7 challenges the finding made in paragraph 22 of the

Recommended Order that Mr. Teague was not unfair in his evaluation of Capital

Copy. This exception is based on a restatement of Capital Copy's Findings of

Fact 26 and 29 and Conclusion of Law 1 under the Bid Awards portion of Capital

Copy's Recommended Order. The Hearing Officer was correct in rejecting proposed

Findings of Fact 26 and 29 as subordinate to the facts found. Capital Copy also

implicitly excepts the finding in paragraph 4 of the Recommended Order regarding

contacts with the University of South Florida. The Hearing Officer was correct

in determining that the contacts with the University of South Florida did not

foster an anti-competitive environment and did not tend to favor the eventual

contract award to Danka Industries, Inc. The findings of the Hearing Officer

are in accordance with the law and will not be disturbed.

8. Exception 8 challenges the findings made in paragraph 23 of the

Recommended Order on the basis that the committee improperly weighed service

availability in its review. This assertion is not contradicted by paragraph 23

of the Recommended Order. Further, Capital Copy reasserts its proposed Finding

of Fact 39 which was rejected as contrary to the factual finding made by the

Hearing Officer that service was a relevant factor in the bid evaluation

process. It is within the Hearing Officer's purview to make these

determinations and those findings will not be disturbed.

9. Exception 9 challenges the findings made in paragraph 27 of the

Recommended Order. Capital Copy reasserts its Exceptions 4 and 5. Capital Copy

also argues that based on the provisions of Rule 6C1-3.020(6)(b)(4) the bid

evaluation process was not fair. The Hearing Officer ruled as a matter of law

that the preparation of the Invitation to Bid, the analysis of the responses and

the decision to award the contract to Danka Industries were in keeping with the

requirements of Rule 6C1-3.020, Florida Administrative Code. That decision

follows the totality of findings of the Hearing Officer, is supported by the law

and is correct.

10. Exception 10 challenges the finding made in paragraph 28 of the

Recommended Order that Danka Industries' Danyl Tower was UL approved at the time

of the bid response. The citation to the record made in Exception 10 supports

the finding made by the Hearing Officer in paragraph 28. The exception is

rejected.

11. Exception 11 challenges the finding made in paragraph 29 of the

Recommended Order. Capital Copy reasserts its proposed Findings of Fact 31 and

33 and reargues that the evaluation and solicitation of bids was not in

compliance with Rule 6C1-3.020(2)(c). The Hearing Officer rejected Capital

Copy's paragraphs 31 and 33 as subordinate to the facts found. Those findings

are rejected on such grounds. The statement concerning compliance with Rule

6C1-3.020(2)(c) is not an issue of fact. The Hearing Officer's application of

Rule 6C1-3.020 to the facts of this case is correct.

12. Exception 12 challenges the findings made in paragraph 30 of the

Recommended Order on the basis that the Invitation to Bid did not specify the

weight and criteria for encoding and usage price to the student as a paramount

factor. Capital Copy also asserts that the bid was misleading because it did

not provide a stated price for "coin use by students." Capital Copy reargues

that the Invitation to Bid was not in compliance with Sections 287.001 and

287.012, Fla. Stat. The Hearing Officer's conclusion that the assessment of the

bids was fair and accurate and carried the requisite objectivity of a

competitive bid process is supported by the totality of the findings in the

Recommended Order, is in accordance with the law and is correct.

After having considered the Findings of Fact, Conclusions of Law and the

recommendations made in the Recommended Order, and after having considered and

ruled upon each of the exceptions filed by Capital Copy, the challenge by

Capital Copy to the contract award to Danka Industries in Bid No. 88J-112YC is

dismissed. Further, Capital Copy's request for attorney's fees and cost is

denied.

Section 120.68, Fla. Stat., allows for judicial review of this Order.

Review may be obtained by filing in accordance with the Florida Appellate Rules

a Notice of Appeal in the District Court of Appeal for the First District of

Florida within thirty (30) days of the date of this Order and by filing a copy

of such Notice with the Clerk of the University of Florida.

DONE AND ORDERED this 21st day of March, 1989 in Gainesville, Florida.

___________________________________

Marshall M. Criser, President

University of Florida

File with the Clerk of the

University of Florida this

21st day of March, 1989.

_____________________________

Clerk of the University

cc: Charles C. Adams

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Joseph T. Barron, Jr.

Associate General Counsel

University of Florida

207 Tigert Hall

Gainesville, Florida 32611

Ainslee R. Ferdie, Esquire

Ferdie and Gouz

Suite 215

717 Ponce de Leon Blvd.

Coral Gables, Florida 33134