06-004449BID The Nti Group, Inc. vs. Department Of Education Status: Closed Recommended Order on Tuesday, January 9, 2007.

Summary: The protestor`s proposal was not responsive to the Request for Proposal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE NTI GROUP, INC., )

)

Petitioner, )

)

vs. ) Case No. 06 - 4449BID

)

DEPARTMENT OF EDUCATION, )

)

Respondent , )

)

and )

)

TECHRADIUM, INC., )

)

Intervenor. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on December 6 , 200 6, in Tallah assee , Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Karen D. Walker, Esquire

Elizabeth L. Bevington, Esquire

John Treadwel l, Esquire

Holland & Knight, LLP

315 South Calhoun Street

Suite 600

Tallahassee, Florida 32301

For Respondent: Jason M. Hand, Esquire

Department of Education

325 West Gaines Street, Suite 1244

Tallahassee, Florida 32399 - 0400

For Intervenor: Mary F. Smallwood, Esquire

V. James Dickson, Esquire

M atthew Cogburn, Esquire

Ruden, McClosky, Smith, Schuster

& Russell, P.A.

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301 - 1858

Ri chard J. Oparil, Esquire

Patton Boggs, LLP

2550 M. Street, Northwest

Washington, D.C. 20037 - 1350

STATEMENT OF THE ISSUES

The issues in this case are: w hether Respondent's intent

to award a contract to Intervenor for an immediate response

notification system pursuant to Request for Proposal 2007 - 01

(the RFP) was contrary to Respondent's governing statutes,

rules, policies, and solicitation specifications and whether

Petitioner has standing to protest the intended award.

PRELIMINARY STATEMENT

On September 29, 2006, the Respondent, Department of

Education (Department) posted its intended award of a contract

pursuant to the RFP for an immediate response notification

system. The inten ded award was to TechRadium, Inc.

(TechRadium). Petitioner, The NTI Group, Inc. (NTI), filed a

protest to the intended award. The protest was forwarded to

the Division of Administrative Hearings on November 7, 2006.

US Netcom, Inc. (US Netcom) also filed a protest to the

intended award. On November 1 6, 2006, US NetCom filed a

voluntary dismissal withdrawing its protest.

On November 15, 2006, TechRadium filed a M otion to

I ntervene, which was granted by order dated November 27, 2006.

On November 28, 20 06, NTI filed a Motion for Leave to File

Amended Formal Written Protest, which was granted by an order

dated December 6, 2006. NTI's Amended Petition was deemed

filed as of November 30, 2006.

At the final hearing, NTI called the following witnesses:

Mart ha K. Asbury, Regina Johnson, Julie Andrea Collins, Paula

Gail Wolgast Shea, Tom Motter, and Ross Gonzalez. Joint

Exhibits 1 through 11 were admitted in to evidence.

Petitioner's Exhibits 1 through 2 8 were admitted in to

evidence. Petitioner was given lea ve to file the deposition

of Harold R. Rowe as a late - filed exhibit. The deposition was

filed on December 7, 2006, and is admitted into evidence as

Petitioner's Exhibit 29. The Department and TechRadium did

not call any witnesses or offer any exhibits fo r admission

in to evidence.

The parties filed a Joint Pre - Hearing Stipulation, in

which they agreed to certain facts contained in Section E of

the Joint Pre - Hearing Stipulation. To the extent relevant,

those facts are incorporated in the Findings of Fact o f this

Recommended Order.

The two - volume Transcript was filed on December 12, 2006.

On December 22, 2006, the parties filed their proposed

recommended orders, which have been considered by the

undersigned in rendering this Recommended Order.

FINDINGS OF FACT

1. The Florida legislature designated funds in the

amount of $1,500,000 in Specific Appropriation 116 of House

Bill 5001, the 2006 General Appropriations Act (Specific

Appropriation 116) for pilot implementation of an immediate

response notification system in seven Florida school

districts. The appropriation provided:

Funds for School Safety/Emergency

Preparedness are provided for pilot

implementation of an immediate response

information system in one large, two

medium, and four small school distric ts.

The system will serve to enhance the safety

of school children in emergency situations,

such as impending hurricane and severe

weather, fire, bomb threat, homeland

security and other critical school safety

events. The system must be real - time and

mul ti - lingual with the ability to notify

parents of emergency and non - emergency

situations in at least ten different

languages through email, telephone, and

other communication devices. The

Department of Education shall competitively

bid this project in acco rdance with the

provisions of chapter 287, Florida

Statutes. To allow for early

implementation, all funds shall be under

contract no later than September 15, 2006.

2. The Department issued the RFP on or about September

1, 2006. Pertinent portions of th e RFP provided:

PROPOSALS ARE DUE BY: 2:30 EST, ON

SEPTEMBER, 15, 2006. ESTIMAT ED POSTING

BEGINS SEPTEMBER 25, 2006, AND ENDS

SEPTEMBER 28, 2006. [C over S heet ]

The Department is see k ing qualified vendors

to provide pilot implementation of an

immediate response notification system to

be piloted in seven (7) Florida school

districts. Additional school districts may

be added in subsequent years based on

appropriations and periodic performance

reviews. The Proposer must have a

notification system that cur rently exists.

The system must have undergone rigorous

field testing and evidence must be provided

to demonstrate successful implementation

for similar school districts. The Proposer

must have demonstrated the ability to

coordinate and integrate all comp onents of

the system. The proposed system shall not

require the school districts to purchase or

lease any additional hardware or software

or infrastructure upgrade to obtain the

service. The pilots will be in one large,

two medium, and four small distric ts. For

purposes of this proposal a large district

would be any district with over 150,000

students, a medium would be any district of

50,000 - 100,000 students and a small

district would have up to 50,000 students.

[Page 29]

The State's performance and o bligation to

pay under this contract are contingent upon

an annual appropriation by the Legislature.

[Page 11]

Any protest concerning this solicitation

shall be made in accordance with Sections

120.57(3) and 287.042(2) of the Florida

Statutes and chapter 28 - 110 of the Florida

Administrative Code. Questions to the

Procurement Office shall not constitute

formal notice of a protest. It is the

Buyer's intent to ensure that

specifications are written to obtain the

best value for the State and that

specificat ions are written to ensure

competitiveness, fairness, necessity and

reasonableness in the solicitation process.

[Page 16]

Any person who is adversely affected by the

specifications contained in this RFP must

file the following with the Department . .

.

1 . A written Notice of Intent to Protest

within seventy - two (72) hours after posting

of this RFP specifications, and

2. The Formal Written Protest by petition

and Protest Bond in compliance with Section

120.57(3), Florida Statutes, within ten

(10) days af ter the date on which the

written Notice of Protest is filed.

Failure to file a protest within the time

prescribed in Section 120.57(3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bo nd shall

constitute a waiver of proceedings under

Chapter 120, Florida Statutes. [Page 19]

A responsive proposal is a proposal

submitted by a responsive and responsible

vendor which conforms in all material

respects to the solicitation. A responsive

and responsible vendor is a vendor that has

submitted a proposal that conforms in all

material respects to the solicitation and

who has the capability in all respects to

fully perform the contract requirements and

the integrity and reliability that will

assure good - faith performance. Material

requirements of the RFP are those set forth

as mandatory, or without which an adequate

analysis and comparison of proposals is

unreasonable or impossible, or those which

affect the competitiveness of proposals or

the cost to the State. Proposals may be

rejected if fou nd to be irregular or non -

responsive by reasons that include, but are

not limited to, failing to utilize or

complete prescribed forms, modifying the

proposal requirements, submitting

conditional proposals or incomplete

proposals, submitting indefinite or

ambiguous proposals, or executing forms or

the proposal sheet with improper and/or

undated signatures. Proposals found non -

responsive will not be considered.

Proposers whose proposals, past performance

or cur rent status do not reflect the

capacity, integrity or reliability to

perform fully and in good faith the

requirements of the Contract may be

rejected as non - responsible. The

Department reserves the right to determine

which proposals meet the material

requ irements of the RFP, and which

proposers are responsible.

A responsive proposal is an offer to

perform the scope of services called for in

this Request for Proposal in accordance

with all requirements of this Request for

Proposal and receiving seventy (70) points

or more on the Technical Proposal. [ P age

21]

The Department will determine whether the

Proposer is qualified to perform the

services being contracted based upon their

proposal demonstrating satisfactory

experience and capability in the work area.

[Page 25]

REFE R ENCES: (ATTACHMENT 3)

Provide at least three (3) references,

which demonstrate efforts comparable to the

one described in the RFP. Provide a list

of school districts and other venues where

this technology is currently in use. The

Depar tment reserves the right to contact

the references regarding the services

provided. [Page s 27 - 28]

ATTACHMENT '3'

WORK REFERENCES

Provide the following reference information

for a minimum of three (3) similar school

districts or other venues where servic es of

similar size and scope have been completed.

[Page 37]

Proposals will be evaluated and graded in

accordance with the criteria detailed

below.

a. Technical Proposal (100 Points)

Technical evaluation is the process of

reviewing the Proposer's Executi ve Summary,

Management Plan, and Technical Plan for

understanding the project, qualifications,

approach and capabilities, to assure a

quality product. Only those proposals that

are found to meet the verification of

Section 4.2 Mandatory Submittal Document s

will have the technical proposal evaluated.

For this purpose, evaluators will consider

a Proposer's description and explanation of

the proposed products and services as

described in the proposal and the

supporting documents. The proposal

evaluation com mittee, acting independently,

will assign ratings of the quality of the

proposed technical solutions to the work

tasks specified in the RFP. Of these

ratings the high and the low score will be

discarded and the remaining scores

averaged.

The following po int system is established

for scoring the technical proposals: . . .

a. Qualifications and Experience including

rigorous testing of the system (10

[points]). . .

b. Price Proposal

Price analysis is conducted through the

comparison o f price qu otations submitted.

By submitting a proposal, Proposers agree

to serve the seven (7) districts selected

by the Department even if the total cost

for the districts selected will exceed the

amount of the Appropriation.

Only proposals that are found to meet the

mandatory minimum requirements and which

receive an average rating of seventy (70)

or more points for the Technical Proposal

will have the cost proposal evaluated. The

Department will determine if a cost

proposal is sufficiently responsive to the

requ irements of this RFP to permit a

complete evaluation. Any cost proposal

that is incomplete may be rejected by the

Department.

Cost analysis is conducted through the

comparison of price quotations submitted.

A total of 20 points is possible. The

fracti onal value of points to be assigned

will be rounded to two decimal points.

The criteria for price evaluation shall be

based on the following formula:

(Low Price/Proposer's Price) x Price

Points=Proposer's Awarded Points

[Page s 32 - 33]

The price proposal mu st be submitted on the

form provided as Attachment '4'. [Page 29]

ATTACHEMENT '4'

VENDOR'S BID SHEET

We propose to provide the services being

solicited within the specifications of RFP

2007 - 01. All work shall be performed in

accordance with this Reques t for Proposal,

which has been reviewed and understood. It

is also understood that the Proposer will

serve the seven (7) districts selected by

the Department even if the total cost for

the districts selected will exceed the

amount of the Appropriation.

DE SCRIPTION___________________TOTAL

COST____

PRICE PER STUDENT $________/per

student

[Page 38]

3. NTI did not file a protest concerning any of the

specifications of the RFP within 72 hours of the issuance of

the RFP.

4 . Addendum No. 1 to the RFP wa s issued on or about

September 8, 2006, to provide answers to questions submitted

by vendors during a question and answer period. Addendum No.

1 was the only ad dendum to the RFP and provided an answer to a

question submitted by Roam Secure, Inc. (Roam Sec ure)

regarding pricing. The question and answer provided:

Q. Our pricing is based on total number of

users. Because there is a significant

amount of up front work involved, i.e.

server setup, network optimization, data

import, registration customizatio n, and

training, it is not feasible for us to

supply a solution based on a few users. As

such we are hoping that [the Department]

will allow us to provide a total price for

this RFP based on unlimited number of users

for the 7 districts. Would that be

ac ceptable to [the Department]?

A. This would be acceptable, as the RFP

states the vendor will serve the entire

population of the seven districts chosen by

the Department of Education. The large

district will have more than 150,000

students, the two mediu m districts will

range between 50,000 students and 150,000

students and four small districts will

include districts with student populations

of up to 50,000. See page 29.5.0 Scope of

Services in the RFP.

5. Addendum No. 1 did not address how the Departm ent was

going to compare a total price with a per student price as set

out in the original RFP. The RFP does not specify what

process the Department would have used to determine whose cost

proposal would be the lowest or how the Department would

determine the number of cost points to be awarded when there

is a mix of per student prices and total prices. The

Department had not determined which school districts would

participate in the pilot program prior to the submission of

the proposals and, as of the da te of the final hearing, it was

still not determined which school districts would participate.

6 . The deadline for receipt of proposals in response to

the RFP was September 15, 2006, at 2:30 p.m. The Department

received ten proposals in response to the RFP. The Department

determined that six of the ten proposals submitted did not

meet the mandatory requirements of the RFP. The Department's

Selection Committee evaluated proposals submitted by NTI, US

Netcom, TechRadium, and Roam Secure.

7 . Based on the RFP tabulation posted by the Department

on September 29, 2006, NTI received the highest technical

points of all the proposers. The technical points that were

awarded by the Department's Selection Committee were as

follows:

NTI 89 points

US N etcom 84.4 points

TechRadium 80.6 points

Roam Secure 67.4

8 . Roam Secure's proposal was disqualified, and its cost

proposal was not evaluated because it failed to receive an

average rating of 70 or more points for its technical proposal

as required by Section 6.1 of the RFP.

9 . By submitting a proposal, all proposers agreed to

provide the services being procured through the RFP for a

price of no more than $1,500,000 regardless of the districts

selected by the Department or the number of st udents in such

districts.

10 . TechRadium submitted a proposal to provide the

requested services for $1.95 per student. US Netcom submitted

a cost proposal of $3.00 per student and included a charge of

$135.00/hr for [a]dditional customization [that] may be

required to meet some of the application requirements." NTI

submitted a cost proposal as follow s:

PRICE PER STUDENT

Large District shall not exceed $2.60/per

student

Medium District shall not exceed $3.00/per

student

Small District shall not exceed $3 .00/per

student.

SUPPORT FEE $1,000/per district

$100/per site/per district

1 1 . The Department determined that NTI's cost proposal

was non - compliant. The Department awarded TechRadium 20 cost

points for a total score of 100.6 and awarded US Netcom 13

cost points for a total score of 97.4. At the final hearing,

the Department represented that it now considered US Netcom's

cost proposal as non - compliant, but, as of the date of the

final hearing, the Department had not posted its intent to

determine US Netcom's proposal non - compliant.

1 2 . In response to the RFP requirement that the

proposers provide at least three references, "which

demonstrate efforts comparable to the one described" in the

RFP, TechRadium listed the Klein Indep endent School District,

Northwest Indiana Educational Service Center, and Goose Creek

CISD. The Klein Independent School District has a total

population of less than 50,000 students. The software license

agreement between TechRadium and the Klein Indepen dent School

district states that the authorized number of seats is

37,000. 1 The Goose Creek Consolidated Independent School

District has a total student population of less than 25,000.

The contract between TechRadium and Goose Creek Consolidated

Indepen dent School District provides for 21,500 authorized

seats. The contract between TechRadium and the Northwest

Indiana Educational Service Center provides for 185 authorized

seats, but TechRadium has provided services to approximately

90 individuals annuall y in the Northwest Indiana Educational

Service Center.

13 . The Department reserved the right to contact the

references listed in the proposals. None of the references of

any of the proposers was contacted by Department during the

evaluation process to ve rify the experience of the proposers

with systems comparable to the one required by the RFP. The

Department considered the listing of the references sufficient

if the references included some school districts.

1 4 . On September 29, 2006, the Department po sted its

intent to award the contract arising out of the RFP to

TechRadium. On October 4, 2006, NTI filed a Notice of Intent

to Protest the Department's intent to award the contract to

TechRadium. NTI filed its Formal Written Protest and Petition

for For mal Administrative Hearing on November 7, 2006. The

protest was accompanied by a bond which sat isfied the

requirements of applicable statutes and the RFP.

15. NTI is not contesting whether TechRadium has the

infrastructure or capacity to fulfill the pilo t program

requested in the RFP.

1 6 . No funds allocated for School Safety/Emergency

Preparedness in Specific Appropriation 116 were under contract

on or before September 15, 2006. NTI was aware of Specific

Appropriation 116 prior to the Department's issua nce of the

RFP. NTI did not object to the time limitations for opening

bids or posting the rankings until it filed its formal written

protest on October 13, 2006. NTI was aware of the time

limitation of which it now complains more than 72 hours prior

to the filing of its formal written protest.

17. Prior to the issuance of the RFP, Michael Arnim, the

Director of Sales at TechRadium , sent e - mails to school

districts in Florida containing multiple untrue

r epresentations regarding the pilot project. Mr. Ar nim had

misunderstood some conversations he overheard at the

TechRadium office in Texas and thought that TechRadium had

been awarded the pilot project. He sent e - mails to some of

the school districts stating that the Commissioner of

Education could verify that TechRadium would be providing the

notification systems for the pilot project and requesting the

school districts to send letters of intent on the school

districts' letterhead indicating the school district s wanted

to participate. When the Department brought the e - mails to

the attention of others at TechRadium, Mr. Arnim was

reprimanded, and no further representations were made.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2006) 2

19. Subsection 120.57(3)(f), Florida Statutes, provides:

Unless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. In

a compe titive - procurement protest, other

than a rejection of all bids, proposals, or

replies, the administrative law judge shall

conduct a de novo proceeding to determine

whether the agency's proposed action is

contrary to the agency's governing

statutes, the age ncy's rules or policies,

or the solicitation specifications. The

standard of proof for such proceedings

shall be whether the proposed agency action

was clearly erroneous, contrary to

competition, arbitrary, or capricious.

20. A protester who is seeking the award of a contract

must demonstrate that it would have been awarded the contract

but for the decision to award the contract to another. In

other words, the protestor must demonstrate that its proposal

is responsive, that it is a responsible proposer, and that it

had the second highest ranked proposal. Intercontinental

Properties v. Department of Health and Rehabilitative

Services , 606 So 2d . 380 (Fla. 3rd DCA 1992); Preston Carroll

Co. v. Florida Keys Aqueduct Authority , 400 So. 2d 524 (Fla.

3d DCA 1 981). NTI has failed to establish that its proposal

was responsive to the RFP.

21. NTI submitted a cost proposal that did not conform

to the requirements of the RFP, which required a single cost -

per - student price as set out in the original RFP or a tot al

price as allowed by Addendum No. 1. NTI submitted one price

for students in large school districts and another price for

students in medium and small school districts. Additionally,

NTI also included a support fee for each district and for each

site. NTI does not have standing to bring a protest in which

it seeks the award of the contract pursuant to the RFP.

22. NTI argues that Addendum No. 1 would require the

Department to do some calculations to determine the per

student price when a total price w as included; therefore, a

price other than a single price per student could be used as

long as the Department could figure out a way to calculate the

average cost per student so that it could be compared with the

other cost proposals. NTI does not address how the support

fees were to be calculated in determining a cost per student

for evaluation purposes. NTI's argument is without merit.

Nothing in the RFP or Addendum No. 1 allows for the submission

of more than one price per student or for support fees.

Addendum No. 1 did allow for a total price to be submitted,

but none of the cost proposals that were evaluated contained a

total price. Thus, the procedure for submitting a cost

proposal and the evaluation method for cost proposals set out

in the RFP we re applicable. The proposers were to submit a

single price per student, and the points to be awarded were to

be calculated using the formula in the RFP.

23. NTI does have standing to bring a protest in which

it is seeking the rejection of all proposals. Capelletti

Brothers v. Department of General Services , 432 So. 2d 1359

(Fla. 1st DCA 1983). NTI has two bases for i ts claim that all

proposals be rejected: 1) T he Department is without

authority to award a contract because Specific Appropriation

116 re quired that the funds appropriated be under contract by

September 15, 2006, and the Department failed to do so ; and 2)

n o proposals were responsive to the RFP.

24. The RFP stated that the proposals would be submitted

on September 15, 2006, and the eval uation results would be

posted beginning September 25, 2006. This timeline was part

of the conditions of the RFP. NTI was aware of Specific

Appropriation 116 prior to the posting of the RFP on September

1, 2006. NTI did not file a notice of protest with in 72 hours

of the posting of the RFP and did not protest the timeline

until it filed its written formal protest on October 13, 2006,

after it learned that the Department intended to award the

contract to TechRadium.

25. Subsection 120.57(3)(b), Florida S tatutes, provides

Any person who is adversely affected by the

agency decision or intended decision shall

file with the agency a notice of protest in

writing within 72 hours after the posting

of the notice of decision or intended

decision. With respect to a protest of the

terms, conditions, and specifications

contained in a solicitation, including any

provisions governing the methods for

ranking bids, proposals, or replies,

awarding contracts, reserving rights of

further negotiation, or modifying or

amendi ng any contract, the notice of

protest shall be filed in writing within 72

hours after the posting of the

solicitation. The formal written protest

shall be filed within 10 days after the

date the notice of protest is filed.

Failure to file a notice of pr otest or

failure to file a formal written protest

shall constitute a waiver of proceedings

under [Chapter 120].

26. Having failed to timely file a protest to the

timeline in the RFP, NTI has waived its right to protest

whether a contract must be awarded by September 15, 2006.

Additionally, the RFP provides that the Department's

performance and obligation to pay under the contract are

contingent upon an annual appropriation by the Legislature.

If the funds are not available, the Department has no

obligat ion to perform the contract.

27. In order to have all proposals rejected, NTI must

demonstrate that the proposals submitted by US Netcom and

TechRadium are not responsive to the RFP or that the proposers

are not responsible vendors. US Netcom's cost pr oposal is not

responsive to the RFP. In addition to submitting a price per

student, US Netcom included a customization fee of $135 per

hour. There is no definite number of hours included in the

cost proposal. Additionally, the RFP does not provide that

additional charges may be allowed and does not provide for a

method of evaluating such costs.

28. NTI seeks to have TechRadium's proposal deemed

nonresponsive because the three references submitted by

TechRadium were for school districts or other venues t hat were

serving less than 50,000 individuals. NTI does not challenge

TechRadium's capacity to perform the contract, only that the

references did not include systems that were serving over

50,000 individuals.

29. The RFP did not require the Department to check the

references listed in Attachment '3.' The Department did not

use the information contained in Attachment '3' to determine

the qualifications of any of the proposers other than to

determine that on its face the attachment included some

referenc es for school systems. The references were not

checked for any of the proposers. Thus, the references

contained in all the proposals were evaluated in the same

manner. Whether there was a reference for a large, a medium,

and a small school district woul d go to the number of points

that would be assigned for experience in evaluating the

technical proposals, if the Department had considered the

references in determining the qualifications of a proposer.

30. NTI has not established t he Department 's

determi nation that TechRadium's Attachment '3' met the

requirement in the RFP for submission of references is clearly

erroneous, contrary to competition, arbitrary, or capricious.

"Clearly erroneous" means the Department's interpretation will

be upheld if it fal ls within the permissible range of

interpretations. Colbert v. Department of Health , 890 So. 2d

1165 (Fla. 1st DCA 2004). The Department's interpretation

that submission of references pertaining to school districts

meets the requirement for submission of references is within

the permissible range of interpretations of the RFP.

31. "A capricious action is one which is taken without

thought or reason, or irrationally. An arbitrary decision is

one not supported by facts or logic." Agrico Chemical Co. v.

D epartment of Environmental Regulation , 365 So. 2d 759, 763

(Fla. 1st DCA 1978), cert. denied , 376 So. 2d 74 (Fla. 1979).

The Department's decision to accept TechRadium's Attachment

'3' as satisfying the reference requirement is neither

capricious no r arbi trary.

32. The determination that Attachment '3' was responsive

was not contrary to competition. None of the references of

the proposers were contacted. All the proposers were

evaluated in the same manner. If the proposers listed school

districts in th eir references, their proposals were deemed to

meet the reference requirements.

33. NTI contends that TechRadium was not a responsible

vendor because of the actions of its Director of Sales p rior

to the issuance of the RFP. The actions of Mr. Arnim were a

result of his misunderstanding a conversation between two

other employees of TechRadium. Once the problem was brought

to the attention of officials at TechRadium,

misrepresentations ceased and Mr. Arnim was reprimanded. The

evidence did not show that M r. Arnim knew at the time he made

the representations to the school districts that they were

untrue.

34. In its evaluation of TechRadium's proposal, the

Department did not consider the actions of Mr. Arnim to be a

basis for rejecting TechRadium as a propo ser based on

integrity or reliability. The evaluation was not clearly

erroneous, arbitrary, capricious, or contrary to competition.

Mr. Arnim's actions resulted from a misunderstanding and were

promptly corrected.

35. The Department's intended decision to award the

contract to TechRadium is not contrary to the Department's

governing statutes, the Department's rules or policies, or the

RFP.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that a Final Order be entered

awarding the contract for an immediate response notification

system pursuant to RFP 2006 - 01 to TechRadium.

DONE AND ENTERED this 9 th day of January , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative

Hearings

this 9 th day of January, 2007 .

ENDNOTES

1/ As used in TechR adium's contracts, the number of seats

means the number of persons who are eligible to receive

notification.

2/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2006 version.

COPIES FURNISHED:

Jason M. Hand, Esquire

Depart ment of Education

325 West Gaines Street, Suite 1244

Tallahassee, Florida 32399 - 0400

Karen D. Walker, Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Tallahassee, Florida 32301

Mary F. Smallwood, Esquire

Ruden, McClosky, Smith, Schus ter

& Russell, P.A.

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301 - 1858

Richard J. Oparil, Esquire

Patton Boggs, LLP

2550 M. Street, Northwest

Washington, D.C. 20037 - 1350

Honorable John L. Winn

Commissioner of Education

Department of E ducation

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lynn Abbo tt, Agency Clerk

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to sub mit written exceptions within

10 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.