07-001266RU Ikon Office Solutions, Inc. vs. Pinellas County School Board Status: Closed DOAH Final Order on Monday, May 14, 2007.

Summary: Petitioner failed to demonstrate that the Agency`s misapplication of its duly-adopted rule constituted a new, unpromulgated rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IKON OFFICE SOLUTIONS, INC., )

)

Petitioner, )

)

vs. ) Case Nos. 07 - 1266RU

)

PINELLAS COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

)

XEROX CORPORATION, )

)

Intervenor. )

)

FINAL ORDER

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

on April 18, 2007, in Tampa, Florida, before Lawrence P.

Stevenson, a duly - designated Administrative Law Judge of the

Division of Administrative Hear ings.

APPEARANCES

For Petitioner: David S. Hendrix, Esquire

Gray Robinson, P.A.

201 North Franklin Street, Suite 2200

Tampa , Florida 33602

Christine A. Donoghue, Esq uire

Gray Robinson, P.A.

201 North Franklin Street, Suite 2200

Tampa , Florida 33602

William E. Williams, Esquire

Gray Robinson, P.A.

301 South Bronough Street , Suite 600

Tallahassee, Florida 32302

For Respondent: John S. Vento, Esquire

Robert Mitchell, Esquire

Trenam, Kemker, Scharf, Barkin,

Frye, O'Neill & Mullins, P. A.

101 East Kennedy Boulevard, Suite 2700

Tampa, Florida 33602

James A. Robinson, Esquire

Pinellas County School Board

301 Fourth Street Southwest

Post Office Box 2942

Largo, Florida 33779

For Intervenor: Lewis J. Conwell, Esquire

DLA Piper US LLP

101 East Kennedy Bouleva rd, Suite 2000

Tampa, Florida 33602 - 5148

STATEMENT OF THE ISSUE

The issues in this proceeding are whether the Pinellas

County School Board ("PCS") acted pursuant to an unadopted,

unwritten and unpromulgated rule in violation of Subs ections

120.54(1)(a), 120.52(15) and 120.57(3)(f), Florida Statutes

(2006), 1 by allowing Xerox Corporation ("Xerox") to withdraw

portions of its proposal after bid opening, after evaluation,

and after a Notice of Intent to protest had been filed, and

wheth er Petitioner IKON Office Solutions, Inc. ("IKON") waived

its right to challenge the rule by failing to timely file its

protest.

PRELIMINARY STATEMENT

On December 15, 2006, Respondent Pinellas County School

Board ("PCS") issued Request for Proposals No. 0 7 - 015 - 040 - RFP

(the "2007 RFP") to procure copier service for the Pinellas

County School District. The 2007 RFP followed a previous RFP,

No. 06 - 015 - 117 - RFP (the "2006 RFP"), in which all bids were

rejected. On January 18, 2007, bids were submitted by

Inte rvenor, Xerox Corporation ("Xerox"), and Petitioner, IKON

Office Solutions, Inc. ("IKON"), among other potential vendors,

for consideration in the 2007 RFP. The bid was to be awarded

according to a two - step procedure. The proposals would first be

substan tively scored by an evaluation committee or "focus group"

composed of principals, teachers and other employees of the

Pinellas County School District. Those proposals receiving a

minimum of 80 points would qualify for the second step, in which

the cost pr oposals would be opened. The contract would be

awarded to the lowest cost proposal among the qualifying

vendors, regardless of their scores in step one.

IKON and Xerox were among four vendors obtaining the

minimum qualifying score of 80 points, allowing t heir cost

proposals to be considered. The cost proposals were opened on

January 26, 2007. On January 30, PCS posted a bid tabulation

indicating that Xerox was the low bidder and presumptive awardee

of the contract. IKON's bid was the second lowest. On

February 1, 2007, IKON filed a Notice of Intent to Protest with

PCS. On February 5, 2007, PCS posted the Notice of Intent to

Award the contract to Xerox. IKON filed an Amended Formal

Written Protest and Petition on February 7, 2007. The case was

forwar ded to the Division of Administrative Hearings ("DOAH") by

notice on March 1, 2007, though the actual protest documents

were not received by DOAH until March 6, 2007. The case was

given DOAH Case No. 07 - 1055BID. On March 9, 2007, Xerox filed a

Petition t o Intervene which was granted by Order dated March 13,

2007.

On March 16, 2007, IKON filed a Petition Seeking an

Administrative Determination of the Invalidity of an Agency

Statement Defined as a Rule (the "Petition"), alleging that the

procedure followed by PCS in awarding the contract pursuant to

the 2007 RFP violated the rulemaking requirements of Subsection

120.54(1), Florida Statutes, because PCS has not adopted that

procedure as a rule. That case was given DOAH Case No. 07 -

1266RU. The bid protest an d rule challenge were consolidated by

Order dated March 27, 2007. PCS moved to dismiss Case No. 07 -

1266RU on March 28, 2007. This motion was denied by Order dated

April 5, 2007. On April 3, 2007, Xerox filed a Response to

PCS 's Motion to Dismiss and/or Motion to Dismiss IKON's Petition

in Case No. 07 - 1266RU. IKON filed a Motion to Strike that

Response on the ground that Xerox had not formally moved to

intervene in the rule challenge proceeding. IKON's Motion to

Strike and Xerox's Motion to Dismiss were both denied at the

outset of the final hearing.

After one continuance, the consolidated cases were heard on

April 18, 2007. At the final hearing, IKON presented the

testimony of Mark Lindemann, the purchasing director for PCS.

Xerox presented the testim ony of Mr. Lindemann and Geri

Pomerantz, the major account contract manager for public sector

operations for Xerox. Xerox also entered without objection the

deposition testimony of Brian Chepren, the supervisor of central

printing for PCS. PCS presented the testimony of Mr. Lindemann

and Colin Castle, a productions systems specialist for IKON.

The parties stipulated to Joint Exhibits 1 through 53, which

were received into evidence.

An expedited Transcript was received by the undersigned via

electronic ma il from the court reporter on April 18 and 19,

2007. The official Transcript was filed at DOAH on April 26,

2007. Pursuant to stipulation, the parties filed their Proposed

Final Orders in Case No. 07 - 1266RU on April 26, 2007. The

parties' submissions ha ve been considered in the preparation of

this Final Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of the proceeding, the

following findings of fact are made:

1. PCS is an agency within the meaning of Subsection

120.52(1)(b)7, Florida Statutes , and has been granted rulemaking

authority by the Florida Legislature. Pursuant to Florida

Administrative Code Rule 6A - 1.012, the Florida Department of

Education requires PCS to adopt purch asing rules governing its

acquisition of products and services. In accordance with this

requirement, on or about February 25, 2003, PCS adopted Part A

of its Purchasing Handbook as a rule pursuant to Section 120.54,

Florida Statutes. This duly adopted PC S rule consists of the

General Terms and Conditions which were included in the Request

for Proposals ("RFP") at issue in these consolidated cases.

2. On December 15, 2006, PCS issued the 2007 RFP, entitled

"Copier Program -- Request for Proposals." The 200 7 RFP was

intended to provide a comprehensive copier program for the

entire Pinellas County School District from the award date of

the bid, then anticipated to be February 20, 2007, through

June 30, 2012. The purpose of the 2007 RFP was stated as

follows in Section 3.1 of the General Information section:

[PCS] requests proposals from experienced

and qualified vendors to provide a

comprehensive copier program countywide

which fulfills the priorities and needs

expressed by district focus groups. PCS

wishes to partner with a qualified vendor

who will continue to improve information

sharing, right size number of assets, and

reduce the number of device types while

lowering the district's cost. Vendors may

propose whatever program they feel best

meets the dist rict's needs and are not

restricted in any way other than to meet the

basic equipment specifications, terms and

conditions outlined in this bid. . . .

[Emphasis added]

3. A statement of the 2007 RFP's "scope" set forth in the

Special Conditions similarl y provided:

[PCS] requests proposals from experienced

and qualified vendors to provide a

comprehensive copier program countywide

which fulfills the priorities and needs

expressed by district focus groups. Vendors

may propose whatever program they feel bes t

meets these needs and a district evaluation

committee made up of participants from the

focus groups will evaluate proposals and

make the selection it feels best meets these

needs based upon a set of criteria published

in this document. . . . [Emphasis a dded]

4. The 2007 RFP provided for proposals to be received no

later than January 18, 2007, at 3:00 p.m.

5. The 2007 RFP contained General Terms and Conditions,

setting forth the standard boilerplate terms common to all PCS

procurements, and Section 1 o f "Special Conditions" particular

to this contract. 2 These were followed by: Section 2,

"Personnel Matrix"; Section 3, "General Information"; Section 4,

"Program Specifications"; Section 5, "Equipment Specifications";

Section 6, "Cost Proposal"; and Sect ion 7, "Contractor

Response."

6. Paragraph 3 of the General Terms and Conditions,

"Acceptance and Withdrawal of Bids," provided:

A bid (or amendment thereto) will not be

accepted by the purchasing department after

the time and date specified for the bid

o pening, nor may a bid (or amendment

thereto) which has already been opened in

public be withdrawn by the bidder for a

period of sixty (60) calendar days after the

bid opening date and time, unless authorized

by the purchasing department. By written

reques t to the purchasing department, the

bidder may withdraw from the bid process and

ask to have their sealed bid proposal

returned at any time prior to the closing

date and time for the receipt of bid

proposals.

7. Paragraph 14 of the General Terms and Cond itions,

"Variance to Bid Documents," provided:

For the purpose of bid evaluation, bidders

must clearly stipulate any or all variances

to the bid documents or specifications, no

matter how slight. If variations are not

stated in the bidder's proposal, it s hall be

construed that the bid proposal submitted

fully complies in every respect with our bid

documents.

8. Paragraph 30 of the General Terms and Conditions,

"Errors and Omissions," provided:

In the event an error or obvious omission is

discovered in a bidder's proposal, either by

the purchasing department or the bidder, the

bidder may have the opportunity of

withdrawing their bid, provided they can

produce sufficient evidence to document that

the error or omission was clerical in nature

and unintentiona l . . . This privilege

shall not extend to allowing a bidder to

change any information contained in their

bid proposal; however, in the event of a

minor omission or oversight on the part of

the bidder, the purchasing department (or

designee) may request w ritten clarification

from a bidder in order to confirm the

evaluator's interpretation of the bidder's

response and to preclude the rejection of

their bid, either in part or in whole. The

purchasing department will have the

authority to weigh the severity of the

infraction and determine its acceptability.

9. Paragraph 31 of the General Terms and Conditions,

" Basis of Award of Bids," provides: "A Bidder who substitutes

its standard terms and conditions for the district's, or who

qualifies its bid in such a manner as to nullify or limit its

liability to the district will be considered nonresponsive."

10. The standard form cover sheet to the both the 2006 and

2007 RFPs contained a "Note to Bidder" that stated: "A signed

bid submitted to the School Board ob ligates the bidder to all

terms, conditions and specifications stated in this bid

document, unless exceptions are taken and clearly stated in the

bidder's proposal ." (Emphasis added)

11. The Special Conditions of the 2007 RFP included a

provision titled "Acceptance of Vendor Responses," which stated:

"The purchasing department reserves the right to accept

proposals from multiple vendors, and to accept or reject

portions of a proposal based upon the information requested .

Vendors may be excluded from fur ther consideration for failure

to fully comply with the requirements of this RFP solely at the

purchasing department's discretion." (Emphasis added)

12. The Special Conditions of the 2007 RFP also included a

provision entitled "Integrity of Bid Documents ," which stated:

Bidders shall use the original Bid Proposal

Forms provided by the Purchasing Department

and enter information only in the spaces

where a response is requested. Bidders may

use an attachment as an addendum to the Bid

Proposal form if suffi cient space is not

available on the original form for the

bidder to enter a complete response. Any

modifications or alterations to the original

bid documents by the bidder, whether

intentional or otherwise, will constitute

grounds for rejection of a bid. Any such

modifications or alterations that a bidder

wishes to propose must be clearly stated in

the bidder's proposal response and presented

in the form of an addendum to the original

bid documents.

13. Both Xerox and IKON timely submitted proposals in

response to the 2007 RFP. Evaluations of the responses to the

RFP were based on a two - step procedure. First, a focus group of

individuals from the Pinellas County School District would

analyze the bids and award points based on the specifications

and the Proposal Evaluation Form set forth in the RFP. The

maximum award was 100 points, with 80 points constituting the

threshold for further consideration. Second, those vendors

which met the 80 - point threshold would compete solely on price.

Those bidders wh o did not score 80 points in the first stage

would not have their price bids opened.

14. By January 24, 2007, the focus group had finalized its

evaluations, and the cost proposals were to be opened on

January 26, 2007. Both IKON and Xerox scored above t he 80 - point

level. IKON received a score of 87 points from the focus group

and Xerox received a score of 81 points.

15. Xerox's proposal included, among 15 unnumbered

appendices, an appendix titled "Xerox Clarification Addendum to

the RFP." This Addendu m contained four "clarifications" of

portions of the General Terms and Conditions, seven

"clarifications" regarding the Program Specifications portion of

the Special Conditions, and 12 items under the heading "Other

Xerox Service Terms" that purported to s et forth contractual

provisions regarding service, personnel, risk of loss,

limitations on liability, payment schedules, and other standard

contract terms.

16. These proposed "clarifications" are reviewed in detail

in the Recommended Order for Case No. 07 - 1055BID, issued on

May 10, 2007. The Recommended Order found that the Xerox

Addendum materially deviated from the requirements of the 2007

RFP in several respects and that these deviations rendered the

Xerox proposal nonresponsive.

17. PCS's purchasing department conducted a responsiveness

review of the proposals prior to sending them to the focus group

for substantive evaluation, but did not notice the Xerox

Addendum. Mark Lindemann, the director of purchasing for PCS,

testified that it is not customa ry for bidders to submit such an

addendum, and therefore his staff was not looking for it when

conducting their responsiveness review.

18. On January 30, 2007, after the focus group had

performed its evaluation of all the bids, and the cost proposals

had been opened and the bid tabulations had been posted on the

PCS website, Colin Castle of IKON brought to the attention of

the PCS purchasing department the presence of the Xerox

Addendum.

19. After learning of the Xerox Addendum from Mr. Castle

on January 30, 2007, PCS reviewed the Addendum and concluded

that it included material deviations to the terms and conditions

of the RFP solicitation and that either the Addendum or Xerox's

bid must be withdrawn. Negotiations commenced between PCS and

Xerox. On Feb ruary 2, 2007, Xerox offered PCS a revised

Addendum. PCS rejected the revised Addendum and informed Xerox

that the Addendum must be withdrawn in its entirety. On

February 5, 2007, Xerox notified PCS by letter that it was

withdrawing the Addendum from its proposal. Also, on

February 5, 2007, PCS posted its notice of intent to award the

contract to Xerox.

20. In its Petition, IKON alleges that PCS's decision to

allow Xerox to withdraw the Addendum from its response to the

RFP after the proposals were ope ned was based on an unwritten

PCS policy. That alleged policy, generally applicable to all

PCS procurements, allows potential vendors who submit

procurement responses containing material deviations from the

requirements of bid documents the option of eith er confirming

their responses without the material deviations, or withdrawing

their responses entirely even after PCS receives a notice of

intent to protest under Subsection 120.57(3), Florida Statutes.

IKON alleges that this policy is not contained in PC S

procurement rules, has not been adopted by PCS as a rule, and

is, in fact, contrary to many of the PCS's duly adopted rules.

21. PCS has freely stated its position that it has the

authority to reject an addendum without rejecting the entire

proposal, an d that it has done so on at least one previous

occasion, during the review of proposals submitted under the

2006 RFP. However, PCS insists that this position is based on

its adopted rules, not on an unadopted rule as alleged by IKON.

PCS argues that the withdrawal of the Xerox Addendum was

entirely in keeping with its procurement rules as reflected in

paragraph 3 of the General Terms and Conditions, quoted in full

above and relevant portion of which provides:

A bid (or amendment thereto) will not be

accep ted by the purchasing department after

the time and date specified for the bid

opening, nor may a bid (or amendment

thereto) which has already been opened in

public be withdrawn by the bidder for a

period of sixty (60) calendar days after the

bid opening d ate and time, unless authorized

by the purchasing department. [Emphasis

added]

22. PCS contends that the emphasized language grants the

purchasing department authority to allow a bidder to withdraw a

portion of its bid after the bids have been opened. PCS here

equates the terms "amendment" and "addendum," assuming that the

Xerox Addendum could be withdrawn as an "amendment" to the Xerox

proposal. However, for reasons fully explained in the

Recommended Order for Case No. 07 - 1055BID, the Xerox Addendum

w as not an amendment to the Xerox proposal, but an integral part

of that proposal. The Addendum did not amend anything contained

in the Xerox proposal; rather, it attempted to "amend" the terms

of the 2007 RFP itself.

23. The underscored portion of paragr aph 3 anticipates the

late withdrawal of an entire bid or an amendment to a bid, not a

wholesale grant of authority to the purchasing department to

allow a bidder to save a nonresponsive proposal by withdrawing

the objectionable provisions. IKON correctly notes that the

clauses of paragraph 3 are independent: the first clause

provides that PCS cannot allow bids or amendments, thereto, to

be submitted after the time and date for bid opening; the second

clause provides that a bid or an amendment to a bid th at has

already been opened may not be withdrawn for at least 60

calendar days after the bid opening date and time, unless

authorized by the purchasing department. In this case, Xerox's

proposal was clearly amended after bid opening by the withdrawal

of th e Addendum, in violation of paragraph 3 of the General

Terms and Conditions and in violation of Subsection

120.57(3)(f), Florida Statutes .

24. Subsection 120.57(3)(f), Florida Statutes, provides,

in relevant part:

In a protest to an invitation to bid or

r equest for proposals procurement, no

submissions made after the bid or proposal

opening which amend or supplement the bid or

proposal shall be considered . . .

25. The PCS rules and RFP provisions, correctly

understood, do not contravene this statutory r equirement. They

grant the purchasing department the flexibility to allow a

bidder, under special circumstances, to withdraw from a given

procurement after submitting a bid and they allow PCS to waive

slight variations or minor irregularities in a bid. T o the

extent that PCS interprets its rules and RFP to allow Xerox to

substantially amend its proposal after the opening, as occurred

in this procurement, then PCS has violated its governing

statutes in a fashion that is clearly erroneous, contrary to

compe tition, arbitrary, or capricious. PCS has not acted in

accordance with an unadopted rule, but has misread and

misapplied its adopted rules.

26. PCS is correct that the "Integrity of Bid Documents"

paragraph of the Special Conditions of the 2007 RFP allow s

bidders to submit addenda that clearly state "modifications or

alterations that a bidder wishes to propose." However, contrary

to PCS's treatment of Xerox in this procurement, the RFP does

not state that the bidder may propose modifications of the RFP

t erms without risk . The cited paragraph clearly warns bidders

that proposed modifications or alterations constitute grounds

for rejection of a bid. The paragraph does not, and under

Subsection 120.57(3)(f), could not, state that bidders will be

given the opportunity to withdraw those portions of their

proposals deemed nonresponsive after bid opening.

27. PCS also emphasizes the first sentence of the

"Acceptance of Vendor Responses" paragraph of the Special

Conditions: "The purchasing department reserves the right to

accept proposals from multiple vendors, and to accept or reject

portions of a proposal based upon the information requested."

However, the next sentence of that paragraph states that the

remedy is not after - the - fact withdrawal of the rejected portion

of the proposal, but rejection of the proposal: "Vendors may be

excluded from further consideration for failure to fully comply

with the requirements of this RFP solely at the purchasing

department's discretion."

28. In summary, the evidence pre sented at the hearing

established that PCS engaged in a strained and ultimately

untenable application of its duly adopted rules in connection

with the evaluation of the proposals submitted under the 2007

RFP, not in the application of an unadopted rule. S ubsection

120.57(3), Florida Statutes, provided IKON and any other

adversely affected bidder with an adequate remedy for the

agency's misapplication of its rules.

29. Contrary to the contentions of PCS and Xerox, IKON's

Petition was timely filed. Regardl ess of the outcome of the

case, the Petition on its face dealt with an alleged unwritten

and unadopted rule, and, thus, was brought properly under

Subsection 120.56(4), Florida Statutes. The 72 - hour limit for

filing a notice of protest, or the ten - day lim it for filing a

formal written protest set forth in the RFP, in PCS Policy

7.15(7), 3 and in Subsection 120.57(3)(b), Florida Statutes, is

not applicable to the instant case, which is not a protest of

the specifications contained in the RFP. 4

CONCLUSIONS O F LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Subsection 120.56(4), Florida Statutes.

31. PCS is an "agency" within the meaning of Subsection

120.52(1)(b)7, Florid a Statutes, and is, thus, subject to the

rulemaking requirements of Section 120.54, Florida Statutes.

32. Subsection 120.52(15), Florida Statutes, defines a

"rule" as follows:

"Rule" means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term a lso includes the amendment or

repeal of a rule. The term does not

include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application out side the agency issuing the

memorandum.

(b) Legal memoranda or opinions issued to

an agency by the Attorney General or agency

legal opinions prior to their use in

connection with an agency action.

(c) The preparation or modification of:

1. Agency budget s.

2. Statements, memoranda, or instructions

to state agencies issued by the Chief

Financial Officer or Comptroller as chief

fiscal officer of the state and relating or

pertaining to claims for payment submitted

by state agencies to the Chief Financial

Of ficer or Comptroller.

3. Contractual provisions reached as a

result of collective bargaining.

4. Memoranda issued by the Executive Office

of the Governor relating to information

resources management.

33. In the absence of a statutory directive to the

c ontrary, IKON, as the Petitioner, has the burden of

establishing by a preponderance of evidence that the agency

statements challenged herein constitute unpromulgated rules.

Dravo Basic Materials Co., Inc., v. Department of

Transportation , 602 So. 2d 632 ( Fla. 2d DCA 1992); Florida

Department of Transportation v. J.W.C. Company , 396 So. 2d 778

(Fla. 1st DCA 1981).

34. Once the Petitioner establishes that the cited

statements constitute rules, the burden then shifts to the

agency to establish that rulemakin g is not feasible and

practicable under Subsection 120.54(1)(a), Florida Statutes.

§ 120.56(4)(b), Fla. Stat.

35. Subsection 120.54(1)(a), Florida Statutes, provides as

follows:

(1) GENERAL PROVISIONS APPLICABLE TO ALL

RULES OTHER THAN EMERGENCY RULES. --

(a) Rulemaking is not a matter of agency

discretion. Each agency statement defined

as a rule by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

1. Rulemaking shall be presumed feasi ble

unless the agency proves that:

a. The agency has not had sufficient time

to acquire the knowledge and experience

reasonably necessary to address a statement

by rulemaking;

b. Related matters are not sufficiently

resolved to enable the agency to addre ss a

statement by rulemaking; or

c. The agency is currently using the

rulemaking procedure expeditiously and in

good faith to adopt rules which address the

statement.

2. Rulemaking shall be presumed practicable

to the extent necessary to provide fair

not ice to affected persons of relevant

agency procedures and applicable principles,

criteria, or standards for agency decisions

unless the agency proves that:

a. Detail or precision in the establishment

of principles, criteria, or standards for

agency decisi ons is not reasonable under the

circumstances; or

b. The particular questions addressed are

of such a narrow scope that more specific

resolution of the matter is impractical

outside of an adjudication to determine the

substantial interests of a party base d on

individual circumstances.

36. An agency statement that is the equivalent of a rule

must be adopted according to the rulemaking procedures of

Chapter 120, Florida Statutes. Environmental Trust, Inc. v.

Department of Environmental Protection , 714 So. 2d 493, 498

(Fla. 1st DCA 1998).

37. It is concluded that PCS gave vendors who submitted

procurement responses containing material deviations from the

RFP the option of either withdrawing the material deviations, or

withdrawing their responses entirely a fter bid opening. This

practice was conducted pursuant to a misapplication of PCS's

duly adopted rules, not pursuant to an unadopted rule.

Subsection 120.57(3), Florida Statutes, provided IKON, as an

adversely affected bidder, with an adequate remedy for the

agency's misapplication of its rules.

38. The Administrative Law Judge in Medimpact Healthcare

Systems, Inc. v. Department of Management Services , Case No. 00 -

3553RU (DOAH November 21, 2000) aptly concluded:

12. In the final analysis, an agency must

follow its own rules. Marrero v. Department

of Professional Regulation , 622 So. 2d 1109,

1112 (Fla. 1st DCA 1993). Statements

confirming the failure to do so do not

constitute unpromulgated rules. The

statements are not ones of general

applicability. They are statements with no

applicability.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

ORDERED that:

IKON's Petition Seeking an Administrative Determination of

the Invalidity of an Agency Statement Defined as a Rule is

DISMISSED.

DONE AND ORDERED this 14th day of May, 2007, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee 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 14th day of May, 2007.

ENDNOTES

1/ Unless otherwise indicated, all references are to the 2006

edition of the Florida Statutes.

2/ The 2006 RFP contained the same General Terms and Conditions

as the 2007 RFP.

3/ The cited policy adopts the timing provisions of Subsection

120.57(3), Florida Statutes, for bid protests. The PCS Policy

Manual may be found at http://www.pinellas.k12.fl.us/planning/

html/chapters/toc.htm

4/ PCS's position is that IKON knew that PCS interpreted its

rules and RFP to allow the withdrawal of addenda, because PCS

had allowed IKON to withdraw its own addenda during the 2006 RFP

process. Thus, possessed of direct knowledge of PCS's

interpretation, IKON should have protested the bid

specifications at the time of their release. However, IKON

contends that it emerged from the 2006 RF P process with the

understanding that PCS would no longer allow addenda to be

withdrawn. In any event, it would be fundamentally unfair to

charge IKON with foreknowledge that PCS would continue to

misread and misapply its rules and bid specifications.

COP IES FURNISHED :

David S. Hendrix, Esquire

GrayRobinson, P.A.

201 North Franklin Street, Suite 2200

Tampa, Florida 33602

Christine A. Donoghue, Esquire

GrayRobinson, P.A.

201 North Franklin Street, Suite 2200

Tampa, Florida 33602

William E. Williams, Es quire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Tallahassee, Florida 32302

John S. Vento, Esquire

Trenam, Kemker, Scharf, Barkin,

Frye, O'Neill & Mullins, P. A.

101 East Kennedy Boulevard, Suite 2700

Tampa, Florida 33602

James A. Robin son, Esquire

Pinellas County School Board

301 Fourth Street Southwest

Post Office Box 2942

Largo, Florida 33779

Lewis J. Conwell, Esquire

DLA Piper US LLP

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 33602 - 5148

Scott Boyd, Executive Director/G eneral Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Dr. Clayto n M. Wilcox, Superintendent

Post Office Box 2942

Largo, Florida 33779 - 2942

Honorable Jeanine Blomberg

Interim Commissioner of Education

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Debor ah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judici al review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administr ative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.