91-001879BID Banknote Corporation Of America, Inc. vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Tuesday, June 11, 1991.

Summary: Low bid for title certificates properly disqualified as nonresp.; bid specs not timely challenged; one resp. bid rcvd; no oblig. to award to sole bid

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BANKNOTE CORPORATION OF )

AMERICA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91- 1879BID

)

DEPARTMENT OF HIGHWAY )

SAFETY AND MOTOR VEHICLES, )

)

Respondent. )

)

and )

)

AMERICAN BANKNOTE COMPANY, )

)

Intervenor. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April

10, 1991, in Tallahassee, Florida, before J. Stephen Menton, a duly designated

Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Laura Patallo, Esquire

HUGHES, HUBBARD & REED, P.A.

801 Brickell Avenue, Suite 1100

Miami, Florida 33131

For Respondent: Enoch J. Whitney

General Counsel

Michael J. Alderman

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

For Intervenor: Robert S. Cohen, Esquire

Haben, Culpepper, Dunbar & French, P.A.

306 N. Monroe Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Banknote Corporation Of America, Inc.'s

challenge to the Department of Highway Safety and Motor Vehicle's proposed award

of a contract to American Banknote Company pursuant to Invitation to Bid No. 84-

91 should be upheld. Necessarily involved in the resolution of this issue is a

determination of whether the bid proposal submitted by Banknote Corporation of

America should be rejected as non-responsive.

PRELIMINARY STATEMENT

On February 11, 1991, the Department of Highway Safety and Motor Vehicles

(the "Department") released Invitation To Bid No. 84-91 (the " ITB"). The ITB

requested bids for the manufacture of printing plates for certain motor vehicle

title certificates and the printing of the certificates. After the bid opening,

the Department announced its intention to award the bid to the Intervenor,

American Banknote Company ("ABC"). The Department deemed a lower bid submitted

by Banknote Corporation of America, Inc., (" BCA") to be non-responsive to the

ITB.

BCA timely filed a Notice of Intent to Protest the award on March 5, 1991.

BCA's formal written protest was filed on March 11, 1991. BCA's protest

challenged the anti-competitive nature of the bid and the Department's decision

to disqualify BCA as a bidder and the Department's intent to award the bid to

ABC. The case was referred to the Division of Administrative Hearings (" DOAH")

which noticed and conducted a hearing pursuant to Section 120.53(5), Florida

Statutes. Prior to the hearing, ABC filed a Petition to Intervene in the

proceeding. That Petition was granted during a telephone hearing on April 1,

1991.

At the time the case was transferred to DOAH, the Department filed a Motion

to Dismiss. Hearings on that Motion were conducted on April 1, 1991 and April

2, 1991. As a result of those hearings, BCA was directed to serve an Amended

Petition which was filed on April 3, 1991. As part of its Motion To Dismiss,

Respondent pointed out that the ITB required a prospective bidder to raise any

questions concerning the conditions and specifications of the bid in writing at

least ten days prior to the bid opening. The ITB also provided that any

prospective bidder who disputed the reasonableness of the terms and conditions

of the ITB was required to file a Petition in accordance with Section 120.53(5),

Florida Statutes and that the failure to file a protest within the applicable

time limits would constitute a waiver of the right to a formal proceeding under

Chapter 120. In view of these provisions in the ITB, the requirements of

Section 120.53(5) and the applicable case law, the parties were advised during

the telephone conference hearing on April 2, that Petitioner's failure to file a

written Notice of Protest with respect to the bid specifications within the time

frame set forth in the statute was deemed to be a waiver of its right to a

formal proceeding to challenge the reasonableness of those bids specifications.

This issue is addressed in more detail in the conclusions of law below. The

parties were advised during the telephone hearing that the Motion to Dismiss was

otherwise denied without prejudice to the ability of the Respondent to renew its

legal arguments in opposition to the protest at the conclusion of the final

hearing.

At the hearing, four joint exhibits were accepted into evidence. In

addition, the parties requested that official recognition be taken of the

following rules and statutes: Rules 13A-1.001(13)(a) and (35), 13A-1.002(10),

13A-1.006, and 13A-1.011-.015, Florida Administrative Code; Rule 15-2.003,

Florida Administrative Code; and Sections 287.012(13), (16) and (17),

287.057(1), 283.33(1), 319.23 and 319.32, Florida Statutes.

Petitioner presented the testimony of Martin Ferenczi, the President and

Chief Executive Officer of BCA, and Gordon Hutton, the group president of the

Market Division of Canadian Banknote Company. Respondent presented the

testimony of William Russell Rothman, the Chief of General Services for the

Respondent, who was accepted as an expert in purchasing procedures, and Harlan

Moore, the Assistant Bureau Chief with the Bureau of Title and Lien Services for

the Department. Respondent offered one composite exhibit into evidence which

was accepted over Petitioner's objection. The Intervenor presented the

testimony of Paul Amatucci, Executive Vice President in charge of sales and

marketing for ABC.

On April 29, 1991, the Petitioner filed a Motion To Supplement Record.

Attached to that Motion were two additional exhibits which Petitioner has

requested be included as a supplement to the record in this case. These

exhibits address an issue raised by one of the Department's witnesses during the

formal hearing in this cause. Exhibit A to that Motion was a letter dated July

30, 1990 from the Department to BCA explaining the procedures for registering

with the Florida Division of Purchasing. Exhibit B to that Motion was a Vendor

Registration Application filed by BCA on November 5, 1990 with the State of

Florida Department of General Services.

On May 3, 1991, the Intervenor filed a Response to Petitioner's Motion To

Supplement Record. On May 6, 1991, Petitioner filed a Reply to Intervenor's

Response to Petitioner's Motion to Supplement Record. On May 6, 1991 Intervenor

filed a Motion to Strike Reply to Intervenor's Response to Petitioner's Motion

to Supplement Record. On May 7, 1991, the Respondent filed a Memorandum in

Opposition to Motion to Supplement Record. All of those Motions and Replies

have been reviewed and considered. Petitioner has offered the supplemental

exhibits in response to certain testimony at the hearing by Mr. Rothman on

behalf of the Department indicating that BCA was not listed on the State's

Vendor Data Base. Mr. Rothman's testimony in this regard was offered as an

additional basis for disqualifying the bid submitted by BCA. This alleged basis

for disqualification had not been cited by the Department prior to the hearing

in this matter. At the hearing, BCA's representatives were unsure as to the

company's status with respect to this registration. In view of the extremely

short time frames involved in a proceeding under Section 120.53, the limited

time for discovery and the lack of prior knowledge of the Department's position,

the Petitioner's Motion To Supplement Record is granted and the exhibits

attached to that Motion are accepted into evidence. The relevancy of these

documents is discussed in the Conclusions of Law below.

A transcript of the proceeding has been filed. All of the parties have

timely filed proposed recommended orders which include proposed findings of fact

and conclusions of law. A ruling on each of the parties' proposed findings of

fact is included in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing

and the entire record in this proceeding, the following findings of fact are

made.

1. On February 11, 1991, the Department of Highway Safety and Motor

Vehicles (the "Department") released Invitation to Bid 084-91 (the " ITB")

seeking bids for the printing of certain motor vehicle title certificate forms.

The ITB was promulgated by the Division of Purchasing of the Department of

General Services (" DGS") after the Department received an authorized request

for a purchase order from the Department's Division of Motor Vehicles. The

request for a purchase order contained certain specifications indicating how the

Division of Motor Vehicles wanted the title certificates to be manufactured.

2. The title documents which are the subject of the ITB are used in

Florida as proof of ownership of a motor vehicle or mobile home. The Florida

Statutes require the Department to provide a secure title document to protect

the public from counterfeiting and to provide some confidence in the title

documents for lenders and others who rely upon the documents as proof of

ownership. See, Section 319.23(10), Florida Statutes.

3. The Department has been issuing a "secure" title or banknote type title

since approximately 1982. The basic specifications for the contract for printing

these documents have been virtually unchanged since that time.

4. The company to whom the Department proposes to award the contract, ABC,

has held the contract for the production of automobile title certificates in

Florida since 1982, with the exception of one year when the award went to United

States Banknote Company. United States Banknote Company has subsequently merged

with ABC and is now the holding company for ABC.

5. ABC is the second largest security printing company in the world and

the largest in North America. ABC produces secure documents for the federal

government, including U.Seasury checks, as well as all other checks issued

by the United States Government, Social Security Cards, postage stamps and food

stamps. The company also prints gas rationing coupons for NATO Forces in

Europe, travelers checks for major issuers around the world such as American

Express, stocks and bonds, foreign currency and other documents that require

high security in their production. ABC produces motor vehicle title

certificates in at least twenty one states. The company was founded in the late

1700's and has been continuously involved in the printing of government

documents and high security documents since that time. It is one of only a few

high security printing companies in the world. The unique characteristics of

the security printing industry are discussed in more detail below.

6. The form of the ITB had been used by the Division of Purchasing of DGS

on at least two occasions in the past. The evidence did not establish how many

responsive bids had been received in previous years when the contract for

printing title certificates was let out for bid.

7. The Department's procedure for issuing a title are highly automated and

require the use of a continuous form document. The items of bid specified by

the ITB are two series of motor vehicle title forms, denominated "A" and "B".

Both of these items are to be "One part; regular pin-feed marginal punched

continuous strip".

8. To authorize the release of the ITB, the Department checked the

availability of funding with the Department's Bureau of Budget to determine

which fiscal year would qualify for the additional printing of title

certificates within the budget. Advertising was purchased in the Florida

Administrative Weekly and a bidders' list was obtained from the Division of

Purchasing. BCA was not on the list of registered bidders obtained from the

Division of Purchasing. At the hearing, BCA's absence from the State Vendor

Data Base was cited by the Department's representatives as an additional reason

for the disqualification of BCA's bid. It does not appear that BCA's absence

from this list was known and/or considered at the time the Department decided to

disqualify BCA's bid. 1/

9. Paragraph 23 of the General Conditions of the ITB provided as follows:

PUBLIC PRINTING: A bidder must have at the

time of the bid opening a manufacturing plant

in operation which is capable of producing the

items of the bid, and so certify upon the

request of the agency.

* * *

(a) CONTRACTS NOT TO BE SUBLET: In accordance

with Class B Printing Laws and Regulations

printing contracts cannot be sublet.

10. General Condition 23 of the ITB is part of the form document prepared

by DGS and applies to all public printing contracts that are set out for bid in

the state. It is clear that this General Condition does not take into account

the very unique characteristics of high security printing industry which are

discussed in more detail below.

11. The second paragraph of the Special Condition of the ITB entitled

"Security Markings" provided:

All bidders must submit with their bid a

letter stating that they will insert their

own secret markings and will be able to prove

titles were produced in their own plant.

(emphasis added.)

12. General Condition 8 of the ITB provided as follows:

Any questions concerning conditions and

specifications shall be directed in writing

to this office for receipt no later than ten

(10) days prior to the bid opening. Inquiries

must reference the date of bid opening and bid

number. No interpretation shall be considered

binding unless provided in writing by the

State of Florida in response to requests in

full compliance with this provision. Any

actual or prospective bidder who disputes the

reasonableness, necessity or competitiveness

of the terms and conditions of the Invitation

to Bid, bid selection or contract award

recommendation, shall file such protest in

form of a petition in compliance with Rule

13A-1.006, Florida Administrative Code.

Failure to file a protest within the time

prescribed in Section 120.53(5), Florida

Statutes, shall constitute a waiver of

proceedings under Chapter 120, Florida

Statutes.

13. A separate paragraph of the Special Conditions entitled

"Interpretations/Disputes" provided as follows:

In addition to General Condition 8, the

following shall prevail.

Failure to challenge the specifications of

the Invitation to Bid within the time

prescribed in Section 120.53(5), Florida

Statutes (1985),[sic] and Rule 15-2.003(2)(b),

[sic] Florida Administrative Code, will

constitute a waiver of proceedings under

Section 120, Florida Statutes.

14. The 1985 version of Section 120.53(5) did not specifically address the

deadline for filing a protest of the specifications in an invitation to bid.

However, in 1990 the legislature amended the statute to clearly state that a

protest of the specifications had to be filed within 72 hours after receipt of

the specifications. No questions regarding the specifications or general

conditions were received by the Department within the time frame set forth in

General Condition 8. No formal protest of those conditions was filed within the

timeframe set forth in Section 120.53(5), Florida Statutes (1990 Supp.).

15. The ITB contained the following Special Conditions:

Security

Due to the nature of these forms, the

successful bidder must maintain strict

security on the premises by a recognized

security force. The minimum in-plant security

must be maintained while producing forms and

until turned over to the common carrier.

The following minimum security shall prevail:

(A) 24 hour guard service must be maintained

by a certified security firm approved by this

Department. Said security can be of vendor's

employees or outside security force, but must

be approved by the Department. If bidder uses

a type of security system other than guard

service, this should be outlined in an

affidavit and if satisfactory with the

Department will be approved.

(B) Each production run must be made under

close supervision and initialed by supervisor.

(C) All press pull-ins, trim and waste must

be shredded immediately in an electric

shredder at press.

(D) All negatives and plates must be

maintained under lock and key by plant

supervisor when not in use.

(E) Unauthorized personnel must not be

permitted in "Restricted Areas" within the

plant.

(F) Upon expiration of contract, plates must

be destroyed. This will be done in the

presence of a representative from this

Department if we make prior request.

(G) This Department reserves the right to

spot check the running of the forms to see if

proper security is being carried out.

EACH BID MUST CONTAIN AN OUTLINE OF SECURITY

BIDDER PROPOSES TO FURNISH. THIS MUST BE IN

AFFIDAVIT FORM ON VENDOR'S LETTERHEAD, SIGNED

WITH SIGNATURE NOTARIZED. LOCATION OF

PRINTING PLANT MUST BE INCLUDED IN THIS

CERTIFICATION. (Emphasis and capitalization

in original)

* * *

Bid Award. It is anticipated award will be

made to the responsive lowest bidder on an

"all or none" basis. The Department of

Highway Safety and Motor Vehicles reserves

the right to reject any or all bids and to

waiver [sic] any minor irregularity or

technicality in bids received.

* * *

Minor Bid Exceptions. This Department

reserves the right to waive minor deviations

or exceptions in bids providing such action

is in the best interest of the State of

Florida. Minor deviations/exceptions are

defined as those that have no adverse effect

upon the State's interest and would not affect

the amount of the bid by giving a bidder an

advantage or benefit not enjoyed by other

bidders.

16. Thirteen Bidder Acknowledgments were returned to the Department in

response to the ITB, but only two actual bids were received. Those two bids

were submitted by BCA and ABC. At least seven of the other eleven companies

that returned Bidder Acknowledgments indicated the reason they did not submit a

bid was their inability to manufacture the title documents in accordance with

the specifications.

17. Each of the bids included a certification that the bidder "agree[s] to

abide by all conditions of this bid... and that the bidder is in compliance with

all requirements of the Invitation to Bid, including but not limited to

certification requirements in submitting a bid to an agency for the State of

Florida. ..." Each bidder had to submit a bid bond and be prepared to provide

a performance bond upon award of the contract.

18. BCA's bid was in the amount of $429,502.08. ABC's bid was in the

amount of $451,000.00.

19. At the bid opening on March 5, 1991, the Department was notified by

ABC that BCA did not have the ability to manufacture the items of bid at its own

plant. As a result, ABC suggested that BCA was not in compliance with the

requirements of the ITB and BCA's bid should be deemed non-responsive. Mr.

Rothman of the Department telephoned BCA and spoke with Philip Hurwitz, a Vice

President of Manufacturing and the person who signed the Bidder Acknowledgment

on behalf of BCA. Mr. Hurwitz informed Mr. Rothman that while BCA had the

ability to produce the required printing plates, BCA did not presently have the

in-house ability to print the items of bid in the form required. After learning

these facts, the Department issued its Notice of Intended Award and Bid

Tabulation, naming ABC as the successful bidder.

20. BCA filed a Notice of Protest on March 5, 1991 and a Formal Written

Protest on March 11, 1991.

21. In order to properly evaluate the evidence in this case, it is

important to understand certain characteristics of the security printing

business. The creation of a "secure" document requires highly specialized

personnel and elaborate security measures. There are very few security printing

companies in the world.

22. The objective of creating a "secure" document is to make it as

difficult as possible for that document to be counterfeited. The intaglio

method of printing is used because of the difficulty of creating intaglio

printing plates. An intaglio document is a document that when printed has a

raised or embossed surface. The engraving or creation of intaglio plates is the

key to security printing. Without the intaglio plate, a security document

cannot be produced.

23. In order to create "secure" documents such as the Series A and Series

B motor vehicle certificates requested by the ITB, a security printer first

creates the artwork, then creates an intaglio printing plate, then produces the

offset printing plates. All these plates are then used with an intaglio press

to produce a high security document.

24. There are two types of output by intaglio printers (in other words,

two types of intaglio documents,) sheet intaglio and web intaglio. Sheet

intaglio are documents printed in separate sheets. Web intaglio is when a

document is printed in a continuous form. Since the ITB calls for a continuous

form document, web intaglio printing is required.

25. There are very few web intaglio printing presses in the world. While

there is apparently one other company in the United States that has such a

press, that company, Midwest Banknote, only recently acquired its web intaglio

press and did not bid on this project. Other than ABC, no other company with

web intaglio printing capabilities bid on this project. In fact, the evidence

indicates that there only a couple of other companies in the world that have web

intaglio presses.

26. Because of the highly technical processes necessary for security

printing and the costly and specialized equipment involved, it is very common in

the security printing business for security printers to work with each other.

This cooperation has been accomplished without any compromising of security.

For example, ABC has worked with BCA and Canadian Banknote Company Ltd.

("Canadian Banknote") often in the past.

27. BCA is a Delaware corporation which began its operations upon taking

control of an old ABC plant, called the Ramapo Plant, in Suffern, Rockland

County, New York, on April 19, 1990.

28. BCA was created when, in the Fall of 1989, the United States

Department of Justice required the creation of a stand-alone security printer as

a condition to approval of the merger between United States Banknote and ABC. A

stand-alone security printer means a security printer that is capable of

producing all items of high security printing. BCA was specifically established

to maintain competition in the security printing industry.

29. BCA is a full fledged stand-alone security printer, with both

origination capability and production capability. Origination capability is the

ability to create or manufacture intaglio printing plates from which intaglio

documents can be printed.

30. BCA does not currently have a web intaglio press. Therefore, it

contracts with another high security printer when web intaglio documents are

required.

31. BCA has printed and continues to print high security documents using

the intaglio process and has produced, among other things, stocks and bonds,

gift certificates, automobile titles, and certificates of origin. BCA has also

done work for the United States Department of State on visas as well as work on

consular birth certificates. BCA has printed automobile titles at its Suffern,

New York Ramapo Plant for the State of New Hampshire and has recently been

awarded a three year printing contract for automobile titles for the State of

Kansas. The automobile titles for Kansas will be continuous form documents and

Canadian Banknote will do the actual printing of the certificates based upon

plates produced by BCA.

32. BCA is capable of creating the artwork as well as the intaglio plates

from which the Series A and Series B title certificates would be printed. All

of this work would be done at its Suffern, New York plant.

33. The security provided at BCA's Ramapo plant in Suffern, New York,

conforms to the security requirements contained in the ITB. The Department has

inspected the Ramapo Plant and found security conditions there were acceptable.

34. Under BCA's proposal, the Series A and Series B title certificates

would be printed by Canadian Banknote from intaglio plates created by BCA.

Canadian Banknote has one of the few web intaglio presses in North America.

BCA's intent to have the printing of the title certificates done by Canadian

Banknote was not set forth in its response to the ITB. Canadian Banknote's

name, address, qualifications and abilities were not included as part of BCA's

response and BCA did not submit any affidavits or statements from Canadian

Banknote regarding security. No written contract exists between BCA and

Canadian Banknote for the printing of the motor vehicle title certificates in

the event that BCA is awarded the bid.

35. In its response to the ITB, BCA provided a description of the security

system at its Suffern, New York plant. No explanation or details were given

regarding security at Canadian Banknote.

36. At the hearing in this cause, a representative of Canadian Banknote

testified. He confirmed the unique characteristics of the high security

printing business. He also provided information indicating that Canadian

Banknote can meet the security requirements necessary to produce secure

documents. However, that evidence was not presented to the Department as part

of BCA's response to the ITB and, therefore, is an improper supplement to BCA's

bid proposal.

37. At the time of the submission of a response to the ITB by BCA,

Canadian Banknote was unaware that BCA was submitting a proposal. No requests

had been made of Canadian Banknote to supply details regarding the security of

its plant for purposes of the ITB. Canadian Banknote never reviewed the plan of

security that was part of the response to the ITB submitted by BCA nor was

Canadian Banknote consulted concerning the plan of security prior to the

submission of a price by BCA.

38. If Canadian Banknote undertook to print the title certificates for

BCA, it is conceivable that Canadian Banknote would subcontract some of

nonsecurity aspects of the printing from BCA to other printing companies.

39. BCA's intention to have the title certificates printed by Canadian

Banknote is contrary to the provisions of General Condition 23 of the ITB and

the Special Condition entitled "Security Markings".

40. Canadian Banknote was formed in 1897 and has been in operation almost

100 years. The Canadian Banknote plant used to be owned by ABC. Canadian

Banknote was affiliated with ABC until 1976.

41. Canadian Banknote is a high security printer and has in place the

surveillance, employment standards, and physical security that are typical of

the high security printing business. In addition, high security is provided in

the accountability of documents. Canadian Banknote produces banknotes,

passports, traveler's checks, bonds, stock certificates, vital statistic

documents and a variety of other documents where security is required. Canadian

Banknote has printed banknotes for the Central Bank of Canada for many years.

42. The evidence established that BCA can arrange for secure shipment of

the plates to Canadian Banknote in a sealed crate by either dedicated or bonded

courier. The offset and intaglio plates would be sent separately. This method

of transporting plates is in keeping with industry standards. BCA has

contracted with at least one other state for the printing of automobile title

certificates using continuous form (web intaglio) printing where the plates are

prepared by BCA and the printing is done by Canadian Banknote. There is no

indication of any security problems in this arrangement.

43. The Department contends that in order to meet the conditions of the

ITB, a bidder must own the plant where the certificates are to be printed. The

Department also contends that the terms of the ITB prevent the subletting of any

portion of the contract. The evidence demonstrates that, aside from ABC, none

of the other companies from whom bids were solicited could comply with these

conditions. In fact, there is at most one other company in the United States

and only a couple of companies in the entire world who could possibly produce

the intaglio plates and print continuous form (web) intaglio certificates. None

of the other companies with that capability were solicited to submit a bid on

this project.

44. The ITB requirements that a bidder have a plant capable of producing

the items of bid and that no portion of the contract can be sublet have been

included as conditions in the ITB since at least 1982. It was not until

sometime after the bid opening in March of 1991 that the Department's

representatives became aware that only ABC and perhaps one other company in the

United States had the in-house capability to print web intaglio documents.

45. After BCA's bid proposal was determined to be non-responsive, the only

responsive bid to the ITB was from ABC.

46. ABC's bid proposal anticipates that ABC would do all of the work. If

subletting of the contract were allowed, ABC may have been able to reduce the

amount of its bid proposal by subletting the continuous form web lithographic

printing (the first part of the production of motor vehicle title certificates)

to a non-security printer that had lower overhead costs. ABC did not explore

such possibilities prior to submitting its proposal because of the provisions of

General Condition 23 in the ITB.

47. ABC actually prints the automobile title certificates at a location

that is different from the site where the plates are engraved. Therefore, when

new plates are prepared, they must be transported and appropriate security is

arranged for the transportation of the plates to the printing plant. Such

transportation is in accordance with industry standards and does not violate the

security provisions of the ITB.

48. After BCA was disqualified and the Department determined that only one

responsive bid was received, the Department requested permission from DGS to

award the bid to the one responsive bidder, ABC. DGS halted their evaluation of

the request when BCA filed its Notice of Intent to Protest. DGS has indicated

that it will not take any further action on the request until the protest is

resolved.

49. While the Department contends that it examined the reasons why only

one responsive bid was received, no formal report was prepared. The evidence at

the hearing in this cause established that the reason why only one responsive

bid was received is because of the extremely limited number of high security

printing companies and the even fewer number of companies with the ability to

print web intaglio documents in-house.

50. The Department is concerned that permitting any portions of the

contract to be sublet could compromise the security of the title documents

and/or reduce the accountability of the successful bidder. When a contract is

issued for the production of title certificates, the Department inspects the

plates and places its markings on the documents involved. If printing of the

documents was allowed to be sublet, the Department would also have to inspect

the security of the company doing the printing and verify the security of the

transportation methods.

51. The evidence established that the security of the title documents

could be maintained even if a bidder were permitted to sublet the actual

printing of the documents to another high security printer.

CONCLUSIONS OF LAW

52. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings. Section 120.53(5) and

Section 120.57(1), Florida Statutes.

53. The purpose of competitive bidding was explicated in Hotel China &

Glassware Co. v. Board of Public Instruction, 130 So.2d 78,81 (Fla. 1st DCA

1961), where the court stated as follows:

Competitive bidding statutes are enacted for

the protection of the public. They create a

system by which goods or services required by

public authorities may be acquired at the

lowest possible cost. The system confers upon

both the contractor and the public authority

reciprocal benefits, and exacts from each of

the reciprocal obligations. The bidder is

assured fair consideration of his offer, and

is guaranteed the contract if his is the

lowest and best bid received. The principal

benefit flowing to the public authority is

the opportunity of purchasing the goods and

services required by it at the best price

obtainable. Under this system, the public

authority may not arbitrarily or capriciously

discriminate between bidders, or make the

award on the basis of personal preference.

(emphasis added)

54. Competitive bidding statutes should be construed to advance their

purpose and to avoid their being circumvented. Webster v. Belote, 103 Fla. 976,

138 So. 721 (1931).

55. Section 120.53(5), Florida Statutes, establishes a statutory framework

for resolution of protests arising from the contract bidding process.

56. A formal administrative proceeding under Section 120.53(5) is a de

novo proceeding which is intended to formulate final agency action and is not

aimed at merely reviewing the agency's preliminary action or decision. The

hearing officer's function is to help formulate what the agency's final action

should be and not merely to review whether the agency's preliminary action or

initial decision is arbitrary, capricious or departs from the requirements of

law. In a de novo proceeding such as this, the hearing officer assists in

formulating agency action by considering all the evidence presented, resolving

conflicts therein, drawing permissible inferences from the evidence and reaching

ultimate findings of fact and recommending legal conclusions to be drawn

therefrom. See, Beverly Enterprises-Florida Inc. v. Department of Health and

Rehabilitative Services, 512 So.2d 1011, 101515 (Fla. 1st DCA December 14,

1990); Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st

DCA 1985). The hearing officer does not function as a reviewing tribunal which

considers an agency's preliminary decision in a review capacity, while according

that preliminary decision a presumption of correctness. McDonald v. Department

of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

57. The case of Department of Transportation v. Groves-Watkins, 530 So.2d

912 (Fla. 1988) is not apposite because the wide discretion accorded to the

decisions of public agencies to reject all bids and re-bid a project is not at

issue here. The facts of this case are clearly distinguishable from those in

Groves-Watkins. In this case, the issues involve the Department's decision to

reject one bid as non-responsive and award the contract to the only other

bidder. Groves-Watkins involved a decision by the Florida Department of

Transportation (DOT) to reject all bids on a highway construction project

because the bids exceeded the pre-bid estimate. The court noted that DOT was

granted statutory discretion to award the bid to the lowest responsive bidder or

to reject all bids. 530 So.2d at 914. The Groves-Watkins court adopted the

majority view that, where an agency is authorized to reject all bids and does

so, judicial intervention should be limited to cases where the purpose or effect

of the agency action is to defeat the integrity of competitive bidding.

58. The narrow standard of review adopted by the court in Groves-Watkins

does not apply here. In this case, the Hearing Officer should sit on behalf of,

and in the place of, the agency head and should examine the evaluation process

de novo. Capeletti Brothers, Inc. v. Department of General Services, 423 So.2d

1359 (Fla. 1st DCA 1983); Couch Construction Company v. Department of

Transportation, 361 So.2d 172 (Fla. 1st DCA 1978). The undersigned has

conducted a de novo review of the facts and has independently reviewed the

relevant and material aspects of the evaluation of the bids in this case.

59. The first issue to be resolved in this case is whether the

Department's decision to reject the bid submitted by BCA was justified. Section

287.057, Florida Statutes requires all contracts for the purchase of commodities

or contractual services to be awarded by competitive sealed bidding to the

lowest responsive bidder. Section 287.057(1), Florida Statutes, (1990 Supp.),

provides "...The contract shall be awarded... to the qualified and responsive

bidder who submits the lowest responsive bid. This bid must be determined in

writing to meet the requirements and criteria set forth in the invitation to

bid." The legislative intent behind the enactment of Chapter 287 is to foster

"fair and open competition" which the legislature recognizes as "a basic tenet

of procurement." Section 287.001, Florida Statutes.

60. Section 283.33(2), Florida Statutes (1990 Supp.) provides that "that

all printing of publications that cost in excess of the threshold amount

provided in s.287.017 for Category Two and purchased by agencies shall be let

upon contract to the lowest responsive bidder, who shall furnish all materials

used in printing."

61. Section 287.012(13), Florida Statutes (1990 Supp.), provides:

"Qualified bidder," "responsible bidder,"

"qualified offeror" or "responsible offeror,"

means a person who has the capability in all

respects to perform fully the contract

requirements and has the integrity and

reliability which will assure good faith

performance.

62. Section 287.012(16), Florida Statutes (1990 Supp.), provides:

"Responsive bid" or "responsive proposal"

means the bid or proposal submitted by a

responsive, and responsible or qualified,

bidder or offeror which conforms in all

material respects to the invitation to bid or

request for proposals."

63. The ITB in this case clearly required that a bidder have a

manufacturing plant in operation which was capable of producing the items of

bid. The bidder had to be able to prove that the titles would be produced in

its own plant. Moreover, the ITB required each bid to set forth the location of

the printing plant and provide a certification as to the security that would be

furnished. BCA's bid proposal did not meet these requirements. BCA does not

have a web intaglio printer and, therefore, it can not print the title

certificates in its own plant. As a result, BCA cannot meet the requirements of

the ITB and is not a qualified bidder. Furthermore, BCA's proposal was non-

responsive because there was no mention of Canadian Banknote, the location of

the printing plant and/or the security that would be furnished at the plant.

BCA's response only described the security at its New York plant. It was silent

as to the security and location of the Canadian Banknote plant.

64. BCA argues that, since it would manufacture the intaglio plates,

supervise the printing and assure that necessary security measures are taken,

its failure to disclose the location of the actual printing plant should be

considered a non-material deviation. The standard for determining whether a

deviation in a bid proposal is "material" was set forth in Robinson Electrical

Company, Inc. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3rd DCA 1982) as

follows:

... First, whether the affect of a waiver

would be to deprive the municipality of

assurance that the contract would be entered

into, performed and guaranteed according to

its specified requirements, and second,

whether it is of such a nature that its waiver

would adversely affect competive bidding by

placing a bidder in a position of advantage

over other bidders or by otherwise undermining

the necessary common standard of competition.

65. Applying this standard, it is clear that BCA's failure to disclose the

location of the printing plant and its failure to fully set forth the security

surrounding the printing were material deviations for which its bid was properly

deemed non-responsive. In order to evaluate the bids, the Department had to

have assurances that the bidder would be providing adequate security throughout

the manufacturing process. BCA's response failed to provide the information

necessary for the Department to reach this conclusion. BCA should not be

allowed to supplement its proposal after the fact to provide this information.

Furthermore, if BCA alone is exempted from General Condition 23, the evidence

indicates that it may be granted some advantage vis-a-vis ABC which might have

been able to submit a lower bid if it could have subcontracted out some of the

lithographic printing to a non-security printing company, and over other

potential bidders who would have submitted similar bids had they been deemed

acceptable to the Department.

66. The Department and the Intervenor argue that Rule 13A-1.013(14),

Florida Administrative Code (formerly 13A-1.013(5)) provides an additional basis

for disqualfying BCA. That Rule provides for the registration of "new bidders"

as follows:

Any printing firm desiring to bid on State

Agencies' requirements of printing shall first

file a request with the Division of Purchasing,

who shall investigate the request to determine

that the firm's resources, service reputation,

manufacturing capability and experience are

accurate for performing on contract with the

State to supply the printing and services in

the classification on which it submits bids.

67. The evidence did not establish that BCA's alleged failure to comply

with this rule was a basis for the Department's determination that BCA's bid was

non-responsive. In any event, the supplemental exhibits filed by BCA

established that BCA filed its request with DGS prior to submitting its proposal

in this case. It is not clear whether DGS completed its investigation of BCA.

The wording of the rule does not make completion of the DGS investigation a

prerequisite to submitting a bid or being awarded a contract.

68. In this proceeding, BCA has sought to challenge the provisions of

General Condition 23 and the prohibition against subletting as being anti-

competitive. However, General Condition 8 and the Special Condition entitled

"Interpretation/Disputes" provided a clear point of entry to challenge the terms

and conditions of the ITB. Having failed to file a protest of the terms and

conditions within the appropriate time frame, BCA has waived its right to a

hearing on the fairness of the conditions and specifications of the ITB.

Section 120.53(5)(b), Florida Statutes; Rule 15-2.003, Florida Administrative

Code; Capeletti Brothers Inc. v. Department of Transportation, 499 So.2d 855

(Fla. 1st DCA 1986), reviewed denied 509 So.2d 855.

69. Although BCA's bid was properly deemed non-responsive, the Department

is not obligated to award the contract to ABC. Indeed, Section 287.057(3)

provides that, except in certain specified situations, an agency may not award a

contract except through "competitive sealed bids."

70. Section 287.012(5) defines competitive sealed bids as follows:

"competitive sealed bids" or "competitive

sealed proposals" refers to the receipt of

two or more sealed bids or proposals

submitted by responsive and qualified bidders

or offerors.(emphasis added)

This definition was added to the statute in 1988 apparently in response to

the First District Court of Appeals decisions in Satellite Television

Engineering Inc. v. Department of General Services, 522 So.2d 440 (Fla. 1st DCA

1988) and Harris/3M v. Office Systems Consultants, 533 So.2d 833 (Fla. 1st DCA

1988). Under the statutes in effect at the time of those decisions, the term

"competitive bids" was not defined in the statute. The court rejected the

Department of General Services interpretation that competitive bids required two

or more responsive bids. The court held that where there were "two or more bids

only one of which 'conforms in all material respects to the Invitation To Bid,'

the competitive bidding requirement has been met and the Division may authorize

the agency involved to award the contract without instituting a second round of

bidding." By adding the "competitive sealed bids" definition to the statute,

the legislature has implicitly rejected this interpretation and required that

two responsive bids be received in order for the bidding to be deemed

competitive and the contract awarded.

71. Section 287.057(4) (1990 Supp.) provides as follows:

(4) If less than two responsive bids or

proposals for commodity or contractual

services purchases are received, the division

may negotiate or authorize the agency to

negotiate on the best terms and conditions.

The "division" is defined in Section 287.012(a) as the Division of

Purchasing of the Department of General Services. In sum, because there was

only one responsive bid to the ITB, this contract cannot be awarded without

authorization from DGS to negotiate on the best terms and conditions.

72. In Harris/3M, supra, the Court held that under the prior statute, an

agency was not required to obtain authority from DGS prior to awarding a

contract to the only responsive bidder. In 1990, the legislature added the

above provision which made it clear that, if only one responsive bid is

received, an agency must obtain permission from DGS prior to entering into a

contract. That provision clearly implies that the agency is not bound to accept

the one responsive bid it received. Instead, DGS (or the agency if authorized)

is empowered to negotiate a contract so as to achieve the best price possible

for the state.

73. It is not clear what factors DGS will consider in evaluating an

agency's request to enter into a contract with a sole responsive bidder. 2/

Arguably, DGS will apply the criteria set forth in Rule 13A-1.002(6) in reaching

its determination as to whether to permit the Department to enter into

negotiations with the sole responsive bidder. Pursuant to this rule, DGS will

require the Department to review the circumstances surrounding the bid in order

to determine the reasons, if any, why only one responsive bid was received.

74. As indicated above, BCA has waived the right to directly to challenge

the conditions set forth in the ITB. Thus, there is no basis for automatically

discarding the ITB and ordering the contract to be rebid. Nonetheless, the

facts surrounding the bid process, including the reasons why only one responsive

bid was received, are relevant to an evaluation as to whether the contract

should be awarded or negotiations initiated with ABC. While there is no

evidence that the bid conditions and specifications were deliberately drafted to

favor ABC and/or preclude competition, the evidence is clear that, at the time

the ITB was developed, the Department's representatives were not aware of the

peculiarities of the security printing industry and the extremely limited number

of companies with the in-house capability to produce web intaglio documents.

75. The facts in this case indicate that ABC was well aware of its unique

and privileged position as the only bidder that could possibly meet the

qualifications set forth in the ITB. Indeed, at the bid opening, ABC's

representative immediately alerted the Department's representative that BCA

could not meet the conditions set forth in the ITB. It is possible, indeed

likely, that ABC was aware of its position prior to submitting its bid. Under

these circumstances, it does not appear that the bid process has worked to

ensure competition and the resultant best price for the state which are the

goals of Chapter 287. Assuming that DGS authorizes the Department to begin

negotiations with ABC regarding the award of a contract, the Department should

attempt to obtain a better price for the contract or, in the alternative,

consider rebidding the contract under a new ITB in order to obtain a more

favorable price.

76. The Department's main concern, which should be the security of the

title certificates, could be met if some of the requirements set forth in the

ITB are relaxed or modified. While the Department cites to the statutory

prohibition against subletting printing contracts, it is not at all clear that

the prohibition set forth in that statute applies to contracts for the printing

of secured documents. Furthermore, the ITB could be structured in a manner to

avoid this conflict and further the intent of the bidding statutes which is to

ensure competition and the best possible price for the state.

77. Respondent has filed a Motion to Tax Costs and Charges. Attached to

Respondent's Motion was documentation to support its claims for costs.

Respondent seeks to recover $440.00 for court reporter appearances and

transcript copy fees. In addition, the Department seeks an award of $1040.00

for the emergency purchase of title certificate forms. This purchase was made

in order for the Department to continue issuing title certificates during the

pendency of this proceeding.

78. The Motion was filed pursuant to Section 287.042(2)(c), Florida

Statutes (1990 Supp.). That Statute provides as follows:

If, after completion of the Administrative

Hearing process and any appellate court

proceedings, the agency prevails, it shall

recover all costs and charges which shall be

included in the final order or judgement,

excluding attorneys' fees.... If the person

protesting the award prevails, he shall

recover from the agency all costs and charges

which shall be included in the final award of

judgement, excluding attorneys' fees.

79. Petitioner has filed Petitioner's Response to Respondent's Motion to

Tax Costs and Charges. That Response argues that it is premature to award

costs. Respondent also objects to the award of costs relating to the appearance

by a court reporter at the two hearings on Respondent's Motion to Dismiss and

for the emergency costs of purchasing the title certificates.

80. Since the statute provides that an award of costs should be set forth

in the Final Order, it is appropriate to address the issue of costs in this

proceeding. Because Respondent is the prevailing party in this action, it is

entitled to an award of costs pursuant to the statute. The costs of the

appearances by the court reporter and the cost of the transcript are appropriate

and the Final Order should assess these costs against Petitioner. However, the

$1040.00 charge for title certificates should not be awarded. This expense was

not incurred in Respondent's defense of the bid protest. It was an

administrative expense which served no direct role in the defense of this

proceeding. Respondent has not provided any authority to justify the award of

this cost.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department enter a Final Order finding the bid submitted by

BCA to be non-responsive to the ITB and assessing costs in the amount of $440.00

against Petitioner. In addition, the Department should seek approval from DGS

to enter into negotiations with ABC regarding the award of the contract. In the

absence of a favorable negotiation, the Department should enter a Final Order

rejecting all bids and opening the contract up for new bids under terms and

conditions that will encourage competitive bids from several sources.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of

June, 1991.

__________________________________

J. STEPHEN MENTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of June, 1991.

ENDNOTES

1/ Although the Department's representative testified that BCA was not an

approved vendor, BCA had in fact filed a vendor registration application with

the Department of General Services on November 1, 1990. It is not clear whether

that application was accepted, rejected or still under consideration at the time

BCA submitted its bid.

2/ Rule 13A-1.002(6) applies when "no competitive sealed bids/proposals" have

been received. The term "competitive sealed bids" is defined in Rule 13A-

1.001(38) to refer to the receipt of two or more sealed bids by responsive and

qualified bidders. Thus, when only one bid has been received, the provisions of

Rule 13A-1.002(6) would appear to apply. This interpretation is consistent with

Rule 13A-1.018(b).

APPENDIX TO RECOMMENDED ORDER

All parties have submitted Proposed Recommended Orders. The following

constitutes my rulings on the proposed findings of fact submitted by the

parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact

1.

2. Adopted in substance in Findings of Fact

1.

3. Adopted in substance in Findings of Fact

9.

4. Adopted in substance in Findings of Fact

15.

5. Rejected as overbroad and vague.

6. Adopted in substance in Findings of Fact

16 and 19.

7. Adopted in substance in Findings of Fact

16.

8. Adopted in substance in Findings of Fact

18.

9. Adopted in substance in Findings of Fact

19.

10. Adopted in substance in Findings of Fact

20.

11. Adopted in substance in Findings of Fact

27.

12. Adopted in substance in Findings of Fact

28.

13. Adopted in substance in Findings of Fact

28.

14. Adopted in substance in Findings of Fact

29.

15. Adopted in substance in Findings of Fact

22.

16. Adopted in substance in Findings of Fact

23.

17. Adopted in substance in Findings of Fact

31.

18. Adopted in substance in Findings of Fact

24.

19. Adopted in substance in Findings of Fact

26.

20. Rejected as overbroad and subordinate to

Findings of Fact 26.

21. Adopted in substance in Findings of Fact

26.

22. Subordinate to Findings of Fact 8.

23. Rejected as vague and as a

mischaracterization of the testimony.

24. Adopted in substance in Findings of Fact

32.

25. Adopted in substance in Findings of Fact

33.

26. Adopted in substance in Findings of Fact

17.

27. Adopted in substance in Findings of Fact

34.

28. Adopted in substance in Findings of Fact

40.

29. Adopted in substance in Findings of Fact

40.

30. Adopted in substance in Findings of Fact

41.

31. Adopted in substance in Findings of Fact

41.

32. Subordinate to Findings of Fact 41.

33. Rejected as unnecessary and irrelevant.

This subject matter is addressed in part

in Findings of Fact 36 and 41.

34. Rejected as unnecessary and irrelevant.

This subjct matter is addressed in

Findings of Fact 36 and 41.

35. Rejected as unnecessary and irrelevant.

This subject matter is addressed in

Findings of Fact 36 and 41.

36. Rejected as irrelevant and unnecessary.

This subject matter is addressed in part

in Findings of Fact 36 and 42.

37. Subordinate to Findings of Fact 42.

38. Rejected as irrelevant and subordinate to

Findings of Fact 34 and 39.

39. Rejected as irrelevant and subordinate to

Findings of Fact 9, 43 and 39,

40. Rejected as irrelevant and unnecessary to

Findings of Fact 39.

41. Rejected as irrelevant and subordinate to

Findings of Fact 34.

42. Adopted in substance in Findings of Fact

31.

43. Subordinate to Findings of Fact 38.

44. Subordinate to Findings of Fact 42.

45. Rejected as irrelevant and subordinate to

Findings of Fact 39.

46. Rejected as constituting legal argument.

47. Rejected as irrelevant and subordinate to

Findings of Fact 39.

48. Rejected as constituting legal argument.

49. Rejected as constituting legal argument

and subordinate to Findings of Fact 50 and

51.

50. Subordinate to Findings of Fact 36 and 41.

51. Rejected as unnecessary and subordinate to

Findings of Fact 39.

52. Rejected as constituting arguments and as

subordinate to Findings of Fact 39.

53. Rejected as irrelevant.

54. Adopted in substance in Findings of Fact

16.

55. Rejected as irrelevant. This subject

matter is addressed in Findings of Fact 4.

56. Rejected as irrelevant. This subject

matter is addressed, in part in Findings

of Fact 25.

57. Subordinate to Findings of Fact 48 and 49.

58. Subordinate to Findings of Fact 48 and 49.

59. Subordinate to Findings of Fact 48 and 49.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact

1.

2. Adopted in substance in Findings of Fact

7.

3. Adopted in substance in Findings of Fact

9.

4. Adopted in substance in Findings of Fact

11.

5. Subordinate to Findings of Fact 12 and

13.

6. Subordinate to Findings of Fact 14.

7. Adopted in substance in Findings of Fact

16 and 18.

8. Adopted in substance in Findings of Fact

16.

9. Adopted in substance in Findings of Fact

16.

10. Adopted in substance in Findings of Fact

18 and 19.

11. Adopted in substance in Findings of Fact

19.

12. Adopted in substance in Findings of Fact

19.

13. Adopted in substance in Findings of Fact

19.

14. Adopted in substance in Findings of Fact

19.

15. Rejected as irrelevant and unnecessary.

16. Adopted in substance in Findings of Fact

19.

17. Adopted in substance in Findings of Fact

30.

18. Adopted in substance in Findings of Fact

34.

19. Adopted in substance in Findings of Fact

37.

20. Adopted in substance in Findings of Fact

34.

21. Subordinate to Findings of Fact 38.

22. Rejected as irrelevant and unnecessary and

subordinate to Findings of Fact 26.

23. Suborindate to Findings of Fact 34 and 39.

23. [sic] Adopted in substance in Findings of Fact

15.

24. Adopted in substance in Findings of Fact

35.

25. Adopted in substance in Findings of Fact

35.

26. Adopted in substance in Findings of Fact

34.

27. Adopted in substance in Findings of Fact

34.

28. Rejected as irrelevant and unnecessary.

29. Subordinate to Findings of Fact 8. This

subject matter is also addressed in

Conclusions of Law 16 and 17.

30. Subordinate to Findings of Fact 25 and 49.

31. Subordinate to Findings of Fact 51.

32. Subordinate to Findings of Fact 46.

The Intervenor's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact

of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact

1.

2. Adopted in substance in Findings of Fact

6, 9 and 10.

3. Adopted in substance in Findings of Fact

1 and 6.

4. Adopted in substance in Findings of Fact

8.

5. Adopted in substance in Findings of Fact

8.

6. Adopted in substance in Findings of Fact

1, 12 and 19.

7. Adopted in substance in Findings of Fact

14.

8. Adopted in substance in Findings of Fact

16.

9. Adopted in substance in Findings of Fact

19.

10. Adopted in substance in Findings of Fact

17.

11. Adopted in substance in Findings of Fact

19 and 35.

12. Rejected as irrelevant and unnecessary and

subordinate to Findings of Fact 26.

13. Rejected as unsupported by competent

substantial evidence and as constituting a

legal conclusion. This subject matter is

addressed in Findings of Fact 25, 44 and

Conclusions of Law 19-24.

14. Rejected as not established by competent

substantial evidence. This subject matter

is addressed in Findings of Fact 48, 49

and Conclusions of Law 19-24.

15. Rejected as irrelevant and unnecessary.

This subject matter is addressed to some

extent in Findings of Fact 42, 47 and 50.

16. Adopted in substance in Findings of Fact

2.

17. Subordinate to Findings of Fact 15, 50 and

51.

18. Subordinate to Findings of Fact 34..

19. Subordinate to Findings of Fact 50 and 51.

20. Subordinate to Findings of Fact 42.

21. Adopted in substance in Findings of Fact

5.

22. Adopted in substance in Findings of Fact

16 and 18.

23. Rejected as irrelevant and unnecessary.

24. Subordinate to Findings of Fact 26, 50 and

51.

25. Subordinate to Findings of Fact 46.

26. Subordinate to Findings of Fact 46.

27. Adopted in substance in Findings of Fact

47.

28. Adopted in substance in Findings of Fact

47.

29. Rejected as irrelevant and not established

by competent substantial evidence.

30. Rejected as irrelevant and unnecessary and

subordinate to Findings of Fact 51.

31. Adopted in substance in Findings of Fact

18 and 27.

32. Adopted in substance in Findings of Fact

32.

33. Adopted in substance in Findings of Fact

34.

34. Adopted in substance in Findings of Fact

35.

35. Adopted in substance in Findings of Fact

22 and 30.

36. Adopted in substance in Findings of Fact

31.

37. Adopted in substance in Findings of Fact

34 and 35.

38. Rejected as irrelevant.

39. Adopted in substance in Findings of Fact

34.

40. Adopted in substance in Findings of Fact

34.

41. Subordinate to Findings of Fact 17.

42. Adopted in substance in Findings of Fact

34.

43. Subordinate to Findings of Fact 8. This

subject matter is also addressed in the

Preliminary Statement and Conclusions of

Law 16 and 17.

44. Rejected as irrelevant and unnecessary and

not established by competent substantial

evidence.

45. Rejected as unnecessary and speculative.

46. Adopted in substance in Findings of Fact

37.

47. Adopted in substance in Findings of Fact

37.

48. Subordinate to Findings of Fact 38.

COPIES FURNISHED:

Laura Patallo, Esquire

HUGHES, HUBBARD & REED, P.A.

801 Brickell Avenue, Suite 1100

Miami, Florida 33131

Enoch J. Whitney, Esquire

General Counsel

Michael J. Alderman

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

Robert S. Cohen, Esquire

Haben, Culpepper, Dunbar & French,

P.A.

306 N. Monroe Street

Tallahassee, Florida 32301

Leonard R. Mellon

Executive Director

Department of Highway Safety

and Motor Vehicles

Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.