08-005079BID Morse Communications, Inc. vs. Brevard County School Board Status: Closed Recommended Order on Tuesday, February 10, 2009.

Summary: School correctly waived minor irregularities. Protester was not responsive to ITB for discontinued telephone systems.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORSE COMMUNICATIONS, INC., )

)

Petitioner, )

)

vs. ) Case No. 08-5079BID

)

BREVARD COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

)

BREVARD BUSINESS TELEPHONE )

SYSTEMS, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

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

on December 15, 2008, in Viera, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Maurice Arcadier, Esquire

Allen & Arcadier, P.A.

2815 West New Haven, No. 304

Melbourne, Florida 32904

For Respondent: Harold T. Bistline, Esquire

Stromire, Bistline & Miniclier

1037 Pathfinder Way, Suite 150

Rockledge, Florida 32955

For Intervenor: Douglas D. Marks, Esquire

Boyd & Marks, L.L.C.

360 North Babcock Street, Suite 104

Melbourne, Florida 32935

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent’s intended

award of a contract for telephone systems maintenance and

installation services pursuant to Bid #09-005/LH is contrary to

Respondent’s governing statutes, Respondent’s rules or policies,

or the solicitation specifications.

PRELIMINARY STATEMENT

On June 17, 2008, Respondent, the Brevard County School

Board (School Board), issued an invitation to bid (ITB) for

telephone systems maintenance and installation services.

Petitioner Morse Communications, Inc. (Morse), submitted a bid

in response to the ITB. On July 31, 2008, the School Board

posted its intended award of the contract to Intervenor, Brevard

Business Telephone Systems, Inc. (BBTS). Morse protested the

award to BBTS.

The case was received by the Division of Administrative

Hearings on October 14, 2008. BBTS filed a motion to intervene

on October 22, 2008. The motion was granted by order dated

October 24, 2008. The parties agreed to have the final hearing

on December 15, 2008.

At the final hearing, Morse called the following witnesses:

Steven Koller, Raymond Jones, Kathy Arvonio, and Michael

Costello. Petitioner’s Exhibits 1 through 7 were admitted in

evidence. The School Board did not call any witnesses or submit

any exhibits. BBTS called John Fisher as its witness and did

not submit any exhibits.

The one-volume Transcript was filed on January 12, 2009.

On January 9, 2009, the School Board and BBTS filed a Motion for

Extension of Time to Serve Proposed Recommended Order and Notice

of Filing Transcript of Hearing. The motion was heard by

telephonic conference call on January 13, 2009. An Order was

entered on January 13, 2009, extending the time for the parties

to file proposed recommended orders to February 2, 2009, and

establishing the date for the issuance of the recommended order

as 30 days after the filing of the Transcript. The parties

timely filed their Proposed Recommended Orders, which have been

considered in the writing of this Recommended Order.

FINDINGS OF FACT

1. On June 17, 2008, the School Board issued an ITB for

telephone systems maintenance and installation services. The

ITB was identified as Bid #09-005/LH.

2. Section 2.2 of the ITB described the scope of work as

follows:

Bids will be requested for the following

types of work from the qualified and awarded

Contractors: Upgrades and installation of

various types of Telephone Systems,

including but not necessarily limited to the

following: wiring, cabinet, control, and

conduit installation and upgrades to

existing system components, programming

panels/switches, testing telephone systems,

installation, replacement of devices and

system components, power supplies, all other

projects directly related to telephone

systems, including new installations

(material and labor), at any designated SBBC

[School Board] site and certification of

various telephone systems. The School Board

of Brevard County will have salvage rights

if requested for all parts and material that

is [sic] removed from each project. All

work/materials shall be in accordance with

State Requirements for Educational

Facilities (SREF), the Florida Building

Code, SBBC Facilities Standards and Guide

Specifications.

3. Section 2.4 of the ITB set forth the qualifications of

the contractor and required the following:

2.4.1 The successful “Telephone System

Contractor” shall be a person whose business

includes the execution of contracts

requiring the ability, experience, science

and knowledge, and skill to lay out,

fabricate, install, maintain, alter, repair,

monitor, inspect, replace, or service

telephone systems for compensation,

including all types of telephone systems,

for all purposes. The business shall be

self-proprietary, will provide service with

company employees, company owned and insured

vehicles and company owned equipment.

Subcontracting of Telephone System Services

will not be allowed.

* * *

2.4.4 The bid will be awarded only to

responsible bidders that are factory

authorized dealers of the systems bid and

qualified to do the work specified with

manufacturer trained and certified

technicians. The successful “Telephone

System Contractor” shall have a minimum of

two certified/trained technicians for each

of the installed system [sic] bid. For

systems that are manufacturer discontinued,

contractor shall have a minimum of tow [sic]

trained technicians, with five or more years

of experience in maintaining such systems.

Awarded bidder(s) shall be capable of and

responsible for testing each wire, landing

all wire, mounting all devices, programming

panels, trouble shooting and certifying

telephone system installations. In

addition, the successful bidder(s) must be

certified to provide support for existing

structured cabling system (SCS)

infrastructure. If the SCS has an existing

warranty, the successful bidder(s) shall

provide warranty coverage on the SCS as

defined by the manufacturer. The School

Board has existing SCS warranties from

either Molex or Siemens [1] certified

solutions. The successful bidder(s) must

also be qualified and authorized by a

manufacturer to design, configure, and

maintain an IP telephony multiservice

network solution using QoS, Call Control

clustering, H.323, MGCP, or SIP signaling

protocols and shall be able to integrate

legacy TDM Telephone Systems and voice mail

systems into an existing data network.

Awarded bidder(s) must install telephone

systems to meet all State of Florida

Department of Education (SREF), NFPA and NEC

requirements. The bidder shall submit the

following information in ‘Envelope B’:

A. Experience record and proof that bidder

is a certified factory trained dealer for

the system(s) being bid with at least five

(5) years experience in telephone service

work.

B. Evidence that all field supervisory

employees are certified manufacturer and SCS

technicians.

C. List and a brief description of similar

work satisfactorily completed with location,

dates of contracts, names, phone numbers and

addresses of owners.

D. List of equipment and facilities

available to do the work.

E. Names and evidence of level of

competency of all personnel who will be used

in District projects. The District must

recognize competency certification and

employees (names must appear on invoices

with number of hours worked).

F. Name(s) of project manager(s) and

evidence of current “Certificate of Factory

Training” of system(s) bid. Provide resume

of Project Managers.

G. Evidence that bidder’s support team is

located within a 75 mile radius of Brevard

County.

H. Evidence of ability to supply as-built

drawings as needed.

I. Evidence of occupational license

(business tax receipt) and State of Florida

Low voltage license.

J. Letter from manufacturer stating that

you are an authorized dealer/service

provider for systems bid.

Failure to submit the above requested

information (in Envelope ”B” with Price

Sheet and Questionnaire) may be cause for

rejection of the proposal. (Emphasis in

original)

2.4.5 The Contractor must complete the

enclosed questionnaire which will be used to

evaluate capabilities to perform the work

during the contract period. The

questionnaire must be completed and contain

sufficient and specific information which

directly responds to the request. The

School Board reserves the right to reject

bids which do not provide sufficient

information to evaluate the qualifications

of the Contractor and where information

provided does not demonstrate a proven past

record (such as negative references, failure

to complete projects, etc.).

4. Section 1.2 of the ITB stated:

THE INTENT of this bid is to establish a

contract for a period of one year from date

of award during which time; the successful

bidder(s) shall guarantee firm-fixed pricing

for telephone system maintenance and

materials and firm-fixed labor, equipment

and material prices for minor and major

installation of the District’s Telephone

systems as awarded to him/her as specified

in this bid. The bid shall be based on an

‘All-Or-None” format per system

manufacturer.

This bid will be awarded to a minimum of one

contractor for each manufacturer of systems

used by the District. In the best interest

of the District two or more contractors may

be awarded a specified system. The “lowest

and best” bid will be the primary contractor

and the next “lowest and best” bids will be

alternate or secondary contractors. The

primary contractor may be requested to

perform the maintenance and work required

for minor upgrades and installation projects

with an estimated cost of $6,000.00 or less.

Each project estimated to be over $6,000.00

will be given to all contractors awarded the

specific system to quote as specified. At

the discretion of The School Board of

Brevard County, Florida the contractor

providing the lowest quote meeting

specifications will be awarded the project.

5. Section 8.1 of the ITB clarified the meaning of “lowest

and best bid” as follows:

SCHOOL BOARD intends to accept the “lowest”

and “best” bid(s) submitted to it. The term

“lowest” aforesaid shall be interpreted to

mean the lowest “ALL OR NONE” Total Net Bid

Price for all required tasks for each system

manufacturer. In determining which is the

“lowest” and “best” bid received, the SCHOOL

BOARD shall also consider and weigh (a) the

experience, qualifications and reputation of

each BIDDER, and (b) the quality of products

and services proposed by each BIDDER.

SCHOOL BOARD reserves the right to:

a. reject any and all bids received by it,

b. waive minor informalities in any bid,

c. accept any bid or part thereof that in

its judgment will be for the best interest

of the School Board of Brevard County,

Florida.

6. The ITB listed the following telephone systems for

which bids were to be submitted: Hitachi, IWATSU, NEC, Nortel-

BCM, Premier, Prostar, Starplus, and Toshiba. Nortel-BCM and

IWATSU are systems that are currently supported by the

manufacturer. Xeta Technologies had acquired the distribution

rights for Hitachi and was providing support for the Hitachi

systems. The School Board considered the following systems to

be discontinued systems, which were not currently supported by

the manufacturer: NEC, Premier, Prostar, Starplus, and Toshiba,

collectively referred to as the discontinued systems.

7. Morse and BBTS were among the bidders which submitted

bids in response to the ITB. BBTS bid all systems. Morse bid

all systems with the exception of Nortel-BCM. Morse was not an

authorized/certified dealer for Nortel-BCM systems. BBTS was

the low bidder for the IWATSU system. Morse was the low bidder

for the discontinued systems and Hitachi.

8. In its bid, BBTS stated that it was a factory-

authorized dealer for Hitachi, Nortel Networks, and IWATSU Voice

Networks. BBTS submitted a letter from IWATSU stating that BBTS

was an authorized IWATSU distributor in good standing. Contrary

to the ITB specification 2.4.4J, BBTS did not submit a letter

from Nortel stating that BBTS was an authorized dealer/service

provider for Nortel. Instead, BBTS advised the School Board to

contact Jon Gain, a field channel manager for Nortel, for

information regarding the Nortel networks. BBTS provided

Mr. Gain’s mailing and e-mail addresses and his telephone

number. BBTS submitted a letter from XETA Technologies, which

stated:

Please be advised that XETA Technologies,

Inc., acquired the distribution

relationships of Hitachi Telecom (USA), Inc.

for the HCX5000/HCX5000® product line,

effective May 5, 2006.

Per correspondence dated May 11, 2006,

Orlando Business Systems was notified of

XETA’s assumption of Hitachi’s obligations

under their Authorized Distributor

Agreement, and Orlando Business Systems

remains an Authorized Hitachi Distributor.

9. Kathyrn Arvonio, a telecommunication specialist

employed by the School Board for over four years, helped to

evaluate the bids submitted in response to the ITB. Ms. Arvonio

spoke with a field channel manager from Nortel on July 23, 2008.

She was advised by the field channel manager that BBTS could

service, maintain, and buy parts necessary for all repairs on

Nortel-BCM products. Based on the information provided by

Nortel, Morse was authorized by Nortel to service and maintain a

Nortel system.

10. Prior to making a recommendation for contract award,

Ms. Arvonio called personnel at XETA and was advised that BBTS

was also an authorized distributor of Hitachi.

11. Morse included with its bid a letter from IWATSU

stating that Morse was an authorized dealer for IWATSU. Morse

did not include a letter from either Hitachi or XETA that Morse

was an authorized dealer for Hitachi or XETA.

12. BBTS stated in its bid that it had trained/certified

technicians for the discontinued systems and had maintained the

discontinued systems for 20 years. In its bid, BBTS identified

Arthur Love as a technician who had been employed with BBTS

since 1992. The bid stated that Mr. Love “has certifications on

the Hitachi PBX, Iwatsu Adix, Nortel BCM 1648 and many more. He

is trained on the Premier NC616, Prostar Plus, and the Starplus

Key Systems.” Included with the bid were certificates from

Hitachi, IWATSU, and NEC.

13. In its bid, BBTS identified Doug Chamberlin, who had

been employed by BBTS as a technician since 1994, and stated

that Mr. Chamberlin “has certifications on the Hitachi PBX,

Iwatsu Adix, Iwatsu Enterprise CS (IP System), Nortel BCM, Mitel

SX2000 PBX and the Mitel 3300 ICP (IP System), Starplus 616,

Prostar and the Toshiba DK280 and many more. He is trained on

the Premier NC616, and the NEC 16/48.” The bid included

certificates for Mr. Chamberlin from Hitachi, IWATSU, Toshiba,

and Starplus.

14. BBTS identified Troy Gaskins in its bid as being

employed, as having 11 years' experience as a technician, and as

having “certifications on the Iwatsu Adix, Prostar and the

Norstar Key Systems.” BBTS stated that Mr. Gaskins was trained

on the Iwatsu ZTD, Premier NC616, Starplus, and the NEC 16/48

Key Systems. A certificate from IWATSU was included with the

bid.

15. In its bid, BBTS identified Gustavo Beltran as having

12 years' experience in the telecommunications industry. BBTS

stated that Mr. Beltran was “certified on the Mitel SX-200ICP

(IP PBX).” The bid also stated that Mr. Beltran was trained on

the Iwatsu Adix, Prostar, Premier NC616, Starplus, and the

NEC 16/48.

16. In its bid, BBTS identified Kevin Krise as having over

28 years' experience in the telecommunications industry. BBTS

stated that Mr. Krise was “certified on the Mitel SX-2000, Mitel

SX-3300 ICP (IP PBX), Siemens, Telrad, Macro Voice and many

others” and that he was “trained on the Iwatsu Adix, Toshiba

DK280, Iwatsu ZTD, Prostar, Premier NC616, Starplus and NEC

16/48 Key Systems.”

17. Morse indicated in its bid that Kevin Joyce, Dale

Koehler, and Jeff Pitt had successfully completed technical

training through IWATSU. Morse stated in its bid that Gary Gage

had in-depth knowledge of the Toshiba telephone system. Morse

did not establish in its bid that it had two trained technicians

with five years' or more experience in maintaining Hitachi,

Prostar, Premier, Starplus, Toshiba, or NEC systems.

18. The School Board has eight to ten portable classrooms

that have Siemon structured cabling. The remainder of the

structured cabling used by the School Board is manufactured by

Molex. Molex is the standard for the School Board, and, when

the portable classrooms with Siemon structured cabling are

moved, the structured cabling will be switched to the Molex

brand.

19. The ITB required the bidders to be certified to

provide support for existing structured cabling system (SCS)

infrastructure and to provide warranty coverage on the SCS for

systems under warranty. Clearly based on the ITB, the

contractor awarded the contract was to be able to and expected

to provide work on the SCS infrastructure when warranty work was

involved. Ms. Arvonio interpreted the ITB to mean that the

bidder awarded the contract was not to work on the structured

cabling, but was to be able to test the SCS and notify the

School Board if there was a problem. She also was of the

opinion that the ITB did not require the bidders to be certified

by Molex or Siemon. According to Ms. Arvonio, if there was a

problem with the structured cabling, the manufacturer would be

contacted if warranty work was involved, and, if the system was

not under warranty, the work would be done by separate contract.

No explanation was given why the language requiring

certification was included in the bid specifications.

20. In response to the ITB requirement that the contractor

be certified to provide support for the School Board’s existing

SCS, BBTS stated in its bid:

BBTS has been a structured cabling system

contractor for 20 years and currently holds

installer certifications for the following

manufacturers. See attached Installer

Certifications.

a. Molex

b. Hubbel

c. Siemons

BBTS is not a “Certified Installer” through

Siemons, but we do maintain current

individual designer/installer certifications

for Siemons. BBTS commits to providing the

manufacturer’s warranty per the

manufacturer’s specifications.

BBTS included a certificate with its bid, certifying that BBTS

was a certified installer for Molex. Also included with the bid

were certificates for four individuals showing that they were

certified Molex installers. As part of its bid, BBTS submitted

certificates showing that one employee of BBTS had

“satisfactorily completed the recertification requirements as a

Siemon Cabling System Authorized Designer/Installer” and that

another BBTS employee had “completed the required training and

satisfactorily met all requirements to become a Siemon Cabling

had employees who could perform warranty work on the SCS, if

required to do so.

21. Morse included with its bid a certificate from Molex

certifying that Morse was a Molex-certified installer. Morse

also included with its bid a certificate from the Siemon Company

that Morse was a certified installer for the design,

installation, and administration of Siemon Cabling Systems.

22. Section 3.1.3 of the ITB required the bidders to

include a catastrophic failure plan with each bid. The plan was

to “provide interim service for totally replacing any system(s)

to be maintained if a catastrophe should occur during any

applicable maintenance period.” BBTS provided a catastrophic

failure plan in its bid, which stated, in part:

In the event of a Catastrophic Failure,

Brevard Business Telephone Systems, Inc.

(BBTS), and Orlando Business Telephone

Systems, Inc. (OBTS) are in a position to

assist the Brevard County Public Schools in

its telecommunications requirements. We

currently maintain a system capable of

100 stations and 24 trunks that could be

installed in the event of a catastrophic

failure.

* * *

Brevard County Public Schools would identify

the sites that are priorities for continued

operation of their telephone systems. BBTS

would work with Bell South in restoring

service to these facilities.

All supplies necessary for replacement would

be moved inland to OBTS should the need

arise in order to maintain the

serviceability of the parts.

23. Orlando Business Telephone Systems, Inc. (Orlando

Business Systems), and BBTS are separate business entities.

Orlando Business Systems did not submit a bid in response to the

ITB, and the bid submitted by BBTS was not a joint bid of BBTS

and Orlando Business Systems. In its bid, BBTS identified

Orlando Telephone Company/Orlando Business Systems as an

affiliate of BBTS. In her evaluation of BBTS’s bid, Ms. Arvonio

did not consider Orlando Business Systems as part of the bid and

made her evaluation on the services which were to be provided by

BBTS.

24. BBTS is the current contractor providing telephone

maintenance services to the School Board. Based on

Ms. Arvonio’s previous experience with BBTS, she was aware that

BBTS could maintain a telephone system consisting of

100 stations and 24 trunks during a catastrophic event.

25. On July 31, 2008, the School Board posted an intended

award of all systems to BBTS as the primary contractor and an

intended award of the IWATSU system to Morse as the secondary

contractor. BBTS was the lowest, conforming bidder for all

systems.

26. Ms. Arvonio received an e-mail dated August 19, 2008,

from Jason Harrison from Nortel. The e-mail concerned the

relationship between Nortel and BBTS and stated:

Brevard Business Telephone Systems, Inc. is

a contracted Nortel Authorized Reseller.

They have a long standing relationship with

Nortel in [the] Brevard County, FL area with

a dedicated Nortel Field and Inside Support

Team.

When the BCM was launched BBTS was one of

the first reseller’s to get fully

accredited. As the platform has evolved,

Nortel has modified the Accreditation

requirements. BBTS is in the process of

completing the latest requirements and will

be finished with them by August 22 nd 2008.

If service is required before the completion

of the exams, Nortel Support Services may be

implemented by BBTS. Nortel Support

Services are available to BBTS as part of

their contract with Nortel.

27. After the intended award was posted, staff from the

School Board met with personnel from Morse to discuss Morse’s

protest to the intended award. Personnel from Morse were asked

if Morse had trained technicians for any of the discontinued

systems. They responded that Morse had trained technicians for

Hitachi, but did not provide any support for their claim. At

the meeting, Steven Koller, a project manager for Morse,

indicated that Morse did have trained technicians for some of

the discontinued systems. He did not identify the systems nor

did he identify the technicians.

28. At the final hearing, Mr. Koller testified that he had

more than five years' experience with systems manufactured by

Toshiba, NEC, and Hitachi. He could not identify other

technicians at Morse who had more than five years' experience

with the discontinued systems and deferred to Michael Costello,

the owner of Morse, for that information.

29. At the final hearing, Mr. Costello, who controlled all

aspects of the technician side of Morse, testified that he had

over five years’ experience with some of the discontinued

systems and that he had two or more technicians with over five

years’ experience with the discontinued systems with the

exception of Hitachi. Mr. Costello further testified that he

could not identify the technicians without looking at their

resumes. No resumes were produced at the final hearing.

Finally, Mr. Costello said that Gary Gage, a long-time employee

of Morse, had experience with the discontinued systems.

Mr. Costello’s testimony is not credible. As the person in

charge of the technician side of Morse, he had very little

knowledge of exactly what experience his staff had in working

with the discontinued systems at issue. If he had staff with

the requisite experience, it would have been very simple for him

to submit resumes of those employees in its bid or to attach

certificates of training as did BBTS. Morse chose not to do

that. Additionally, after the intended award was posted, Morse

was given an opportunity at meetings with the School Board to

identify personnel with the experience with the discontinued

systems, and it failed to take advantage of that opportunity.

30. Petitioner has argued that the School Board and

Ms. Arvonio, in particular, were biased toward BBTS.

Ms. Arvonio had worked for BBTS for seven years prior to

becoming employed by the School Board. No evidence established

that either Ms. Arvonio or the School Board was biased in favor

of Morse. Ms. Arvonio called companies listed by other bidders

to verify the bidders’ credentials. Within the last two years,

the School Board has awarded a bid to Morse for structured

cabling for over $200,000.00. The School Board staff gave Morse

an opportunity after the bids were opened to provide information

which would establish that Morse had sufficient trained staff to

service the discontinued systems.

CONCLUSIONS OF LAW

31. 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. (2008).

32. Subsection 120.57(3)(f), Florida Statutes (2008),

provides:

Unless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. In a

competitive-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 agency'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.

33. A decision is arbitrary if it is not supported by fact

or logic. A decision is capricious if it is taken without

thought or reason. In determining whether an agency has acted

arbitrarily or capriciously, consideration should be given to

the following factors: (1) has the agency considered all

relevant factors; (2) has the agency given actual, good faith

consideration to those factors; and (3) has the agency used

reason rather than whim to progress from consideration of those

factors to its final decision. Adam Smith Enterprises, Inc. v.

State Department of Environmental Regulation , 553 So. 2d 1260,

1273 (Fla. 1st DCA 1989). A decision is neither arbitrary nor

capricious if the decision is justifiable under any analysis

that a reasonable person would use to reach a decision of

similar importance. Dravco Basic Materials Co., Inc. v. State

Department of Transportation , 602 So. 2d 632, 634 n.3 (Fla. 2nd

DCA 1992).

34. An act is contrary to competition if it offends or

subverts the fundamental policies underlying competitive

procurement. In Wester v. Belote , 138 So. 721, 723-24

(Fla. 1931), the court described the object and purpose of such

policies:

[T]he object and purpose of [the policies

underlying competitive procurement] is to

protect the public against collusive

contracts; to secure fair competition upon

equal terms to all bidders; to remove not

only collusion but temptation for collusion

and opportunity for gain at public expense;

to close all avenues to favoritism and fraud

in its various forms; to secure the best

values for the [governmental agency] at the

lowest possible expense, and to afford an

equal advantage to all desiring to do

business with the [governmental agency] by

affording an opportunity for an exact

comparison of bids.

35. The ITB provided that the School Board could waive any

“minor informalities in any bid.” A variance from the bid

specifications is considered minor if it does not give a bidder

a competitive advantage over another bidder. See

Intercontinental Properties, Inc. v. Department of Health and

Rehabilitative Services , 606 So. 2d 380 (Fla. 3d DCA 1992);

Trobabest Foods, Inc. v. Department of General Services , 493 So.

2d 50 (Fla. 1st DCA 1986); and Robinson Electrical Co., Inc. v.

Dade Co. , 417 So. 2d 1032 (Fla. 3d DCA 1982).

36. Morse has protested the intended contract award on the

following grounds:

1. The criteria used to evaluate Bidder

Qualifications were misinterpreted by the

evaluator.

2. The requirement for certified

technicians on discontinued systems was

misapplied.

3. The Brevard Business Telephone Systems,

Inc. bid is noncompliant with section 2.4.1.

The last sentence in the section reads:

“Subcontracting of Telephone System Services

will not be allowed.”

4. The Brevard Business Telephone Systems,

Inc. bid is noncompliant with section 2.4.4

which specifically states: “In addition,

the successful bidder(s) must be certified

to provide support for existing structured

cabling system (SCS) infrastructure. If the

SCS has an existing warranty, the successful

bidder(s) shall provide warranty coverage on

the SCS as defined by the manufacturer. The

School Board has existing SCS warranties

from either Molex or Siemens (misspell

Siemon) certified solutions.”

5. Brevard Business Telephone Systems, Inc.

willingly provided false and misleading

information when they addressed the lack of

Siemon Certification by special reference to

a written commitment.

6. Section 2.4.5 makes reference to a

questionnaire the Contractor (bidder) must

complete. Specific reference to the use of

the questionnaire indicates “the enclosed

questionnaire will be used to evaluate

capabilities to perform the work during the

contract period.” Brevard Business

Telephone Systems, Inc. is noncompliant with

section 2.4.5.

7. Section 2.4.4 requires bidders to be

factory authorized dealers of the systems

bid. Subsection J makes specific reference

to and requires a “Letter from the

manufacturer stating that you are an

authorized dealer/service provider for

system bid.” Brevard Business Telephone

Systems, Inc. is noncompliant with

section 2.4.4.

37. Morse has failed to establish that BBTS violated

Section 2.4.1 of the ITB by intending to subcontract part of the

contract to Orlando Business Systems. BBTS’s bid was evaluated

without consideration of references to Orlando Business Systems.

38. Morse contends that BBTS is not in compliance with

Section 2.4.4 of the ITB because BBTS did not submit a letter

from Nortel, but submitted the name, address, and telephone

number of a person employed by Nortel who could provide the

requested information. Ms. Arvonio contacted Nortel and was

given information concerning BBTS’s ability to service and

maintain Nortel equipment. The submission of contact

information rather than a letter is a minor informality which

can be waived. See Bobick v. Florida Keys Aqueduct Authority ,

648 So. 2d 1263 (Fla. 3d DCA 1995).

39. The information supplied by Nortel was sufficient to

establish that BBTS was authorized by Nortel to service and

maintain Nortel equipment. Thus, BBTS was responsive to the ITB

regarding its relationship to Nortel.

40. The letter from XETA regarding certification to

service Hitachi equipment referenced Orlando Business Systems

rather than BBTS. However, Ms. Arvonio was able to verify that

BBTS was also authorized to service and maintain Hitachi

equipment by calling XETA. The failure to include a letter

concerning Hitachi certification is a minor informality that can

be waived.

41. Morse contends that BBTS submitted false and

misleading information concerning its ability to service Siemon

equipment. BBTS did not submit false or misleading information

concerning its ability to service Siemon equipment. BBTS did

not claim to be certified by Siemon, but it did submit

information that it had two employees who were certified

installers for Siemon equipment. No evidence was presented that

if work was performed by these two employees on Siemon equipment

that it would void any warranty by Siemon.

42. The ITB did require that the bidders be certified by

Molex and Siemon and to be able to perform warranty work on

either system. However, the ITB did not accurately reflect what

the School Board intended regarding the SCS. The School Board

was going to rely on the manufacturers to provide the warranty

work on the structured cabling. If the contractor found a

problem with the structured cabling, the School Board wanted the

contractor to contact the School Board and arrangements would be

made through the manufacturer to have the work done. If the

work was not covered by a warranty, the School Board would have

the work done through a separate contractor than the one at

issue. The School Board waived the requirement that the

contractor be certified by Molex and Siemon. Based on the

School Board’s intentions not to contract for work on the SCS

through the contract at issue, the failure to have Siemon

certification was a minor irregularity, which could be waived.

43. The ITB required that the winning bidder have two

technicians with five years' or more experience in maintaining

the discontinued systems. BBTS provided sufficient information

with its bid to establish that it met this requirement. Morse

did not establish that it met this requirement at the time it

submitted its bid, when it was given an opportunity to do so at

meetings with the School Board staff after the bids were opened,

or at the final hearing. Thus, Morse was not responsive to the

ITB regarding the discontinued systems.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered dismissing

the bid protest filed by Morse.

DONE AND ENTERED this 10th day of February, 2009, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of February, 2009.

ENDNOTE

1/ The ITB referred to the cabling system as "Siemens." In

their Proposed Recommended Orders, the parties have referred to

the cabling system as "Siemon." For the purposes of this

Recommended Order, they are considered to be the same cabling

system.

COPIES FURNISHED :

Maurice Arcadier, Esquire

Allen & Arcadier, P.A.

2815 West New Haven, No. 304

Melbourne, Florida 32904

Harold T. Bistline, Esquire

Stromire, Bistline & Miniclier

1037 Pathfinder Way, Suite 150

Rockledge, Florida 32955

Douglas D. Marks, Esquire

Boyd & Marks, L.L.C.

360 North Babcock Street, Suite 104

Melbourne, Florida 32935

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Richard A. DiPatri, Superintendent

Brevard County School Board

2700 Judge Fran Jamieson Way

Viera, Florida 32940-6601

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.