95-002648BID Amdahl Corporation vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Tuesday, June 6, 1995.

Summary: Where Request For Proposal specifications provided for three phases of bid evaluation; a protest filed after tabulation of only two phases was premature.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMDAHL CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2648BID

)

FLORIDA DEPARTMENT OF HIGHWAY )

SAFETY AND MOTOR VEHICLES, )

)

Respondent, )

and )

)

UNISYS CORPORATION, )

)

Intervenor. )

__________________________________)

RECOMMENDED ORDER OF DISMISSAL

Upon due notice, on June 1, 1995, this cause came on for oral argument by

telephonic conference call upon Unisys Corporation's Petition to Intervene and

Motion to Dismiss. Thereafter, Amdahl Corporation filed a written response

which, together with all other advices, has been considered by Ella Jane P.

Davis, a duly designated Hearing Officer of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: David K. Miller

M. Stephen Turner

Jay Adams

BROAD AND CASSEL

Post Office DRAWER 11300

215 South Monroe Street, Suite 400

Tallahassee, Florida 32302

For Respondent: Enoch J. Whitney

Judson Chapman

Office of the General Counsel

Department of Highway Safety and

Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 32399-0524

For Intervenor: Mary Piccard

W. Robert Vezina III

CUMMINGS, LAWRENCE & VEZINA, P.A.

1004 DE SOTO PARK DRIVE

Post Office Box 589

Tallahassee, Florida 32302-0589

STATEMENT OF THE ISSUE

Whether the protest herein is premature under the terms of the Request for

Proposals and Section 120.53(5) F.S.

PRELIMINARY STATEMENT

This cause arises from a Request for Proposal (RFP) issued by the

Department of Highway Safety and Motor Vehicles (DHSMV). Petitioner Amdahl

Corporation (Amdahl) is ranked as the number two bidder if the bid process

proceeds no further. Unisys Corporation (Unisys) is ranked as the number one

bidder if the bid process proceeds no further.

The case was referred to the Division of Administrative Hearings on May 25,

1995. Unisys' motion to intervene was already filed. The undersigned hearing

officer received the file on May 26, 1995. A notice of formal hearing for June

8-9, 1995 was issued the same day.

Unisys filed its motion to dismiss on May 30, 1995. Oral argument occurred

on June 1, 1995, as recited above. This recommended order addresses that

motion.

There was no opposition to the intervention of Unisys. Intervention was

orally ordered. This order also memorializes that ruling. The style of this

case is hereby amended as set out above.

FINDINGS OF FACT

1. This proceeding concerns a protest by Amdahl regarding DHSMV's "notice

of intent to benchmark" with Unisys pursuant to RFP 046-95 REBID.

2. The RFP was issued on April 5, 1995. Meetings concerning the

specifications were held on April 14 and 18, 1995. No protests were timely

filed with regard to the specifications. On May 4, 1995, the agency issued its

notice of intent to benchmark as more specifically described below.

3. The RFP is divided into three sections: the technical proposal, the

price proposal, and the benchmark. So far, all proposals have been evaluated

and ranked by DHSMV based on technical and price criteria. At this stage,

Unisys is ranked first, and Amdahl is ranked second.

4. When it had determined that Unisys had received the highest combined

score on the technical and price proposals, DHSMV posted the tabulated scores of

all proposers and notified them of the agency's intent to proceed to the

benchmark evaluation phase of the RFP with Unisys. In an abundance of caution,

the agency included in its notice of intent to benchmark, to which was attached

the final point tabulation for all competing vendors, the notice of a right to

protest within 72 hours pursuant to Section 120.53 (5) F.S.

5. Amdahl timely filed its notice of protest and its formal protest.

Without unnecessary elaboration, the thrust of Amdahl's protest is directed to

Sections 3.23 and 6.0 of the RFP and DHSMV's scoring of the technical and price

proposals. That protest includes, but may not be limited to, an accusation that

the agency improperly permitted Unisys to manipulate its certified minority

business enterprise compliance after the submittal of its response to the RFP.

6. Amdahl further asserted that since a tabulation was attached to the

notice of intent to benchmark and due to the wording of Section 120.53(5)(b)

F.S., DHSMV Rule 15-2.003(2), and RFP General Condition 5 and Special Condition

3.5, Amdahl was required to challenge the DHSMV scoring and tabulation at this

point in time or be presumed to have waived its right to protest.

7. Pursuant to Sections 4.1 and 4.2 of the RFP, the highest ranked

proposer (as determined by the scoring system thus far) next must participate in

a month-long benchmark designed to demonstrate the highest ranked proposer's

ability to perform. If the highest ranked proposer fails the benchmark, DHSMV

will eliminate the highest ranked proposer and the next ranked proposer will be

given the opportunity to perform the benchmark. If the second ranked proposer

fails, the third can try benchmarking, and so on. Once some proposer passes the

benchmark tier of evaluation, the recommendation to award will be posted.

Specifically, RFP specifications 4.1 and 4.2 which were not challenged by a

protest within 72 hours of the last explanatory meeting thereon, read as

follows:

4.1 CONTRACT AWARD

It is the intent of the DHSMV to require the

qualified proposer scoring the highest number

of points after the Technical evaluation, and

Costs evaluation of the proposals to benchmark

all proposed hardware and software on the

configurations proposed . The Benchmark will

be performed at the DHSMV, Kirkman Data Center,

Tallahassee, Florida. Upon successful completion

of the Benchmark described in ATTACHMENT-B ,

a recommendation to award the contract resulting

from RFP 046-95-REBID will be submitted to the

Governor and Cabinet of the State of Florida.

Final award of a contract for this RFP will be

contingent upon the agency obtaining third party

financing.

4.2 MANDATORY BENCHMARK REQUIREMENT

The hardware and software proposed in this RFP

shall be benchmarked using the performance criteria

set forth in ATTACHMENT-B. This benchmark shall

be performed utilizing ORACLE asw the DHSMV data-

base standard. It is the responsibility of the

proposer to insure that all hardware and software

proposed meet this requirement. In the event any

non conformity or noncompatibility is encountered

at any time, the proposer will be eliminated from

further consideration and the next highest points

scoring proposer will be given the opportunity to

perform the benchmark. (Emphasis in the original)

8. DHSMV asserted unequivocally that in the present case, if Unisys does

not pass the benchmark, then Unisys will be eliminated and Amdahl will be

permitted to benchmark. It is equally clear that if Unisys passes the

benchmark, then a recommendation to award will be issued.

9. All concerned seem to recognize the foregoing as the natural flow of

the RFP award procedure as contemplated by the RFP. Even the prayer for relief

contained in Amdahl's petition states, in pertinent part,

". . . Amdahl requests that DHSMV suspend further

action with respect to the contract award process

until this protest is resolved by final agency

action; . . . That a DOAH recommended order and a

DHSMV final order be entered selecting Amdahl as

the winning proposal for benchmarking and ultimate

award of the contract; . . . .

10. Amdahl asserts that it is both fairer and more efficient to score the

competing proposals and resolve all scoring issues pertaining to the technical

and price portions before benchmarking the interim winner, rather than providing

an opportunity for the interim winner to negotiate the manner in which its

products can be integrated to achieve conformance and compatibility with the

agency's purposes; that the benchmarking procedure directed to Unisys cannot be

monitored by Amdahl for possible protest purposes at a later stage; and that

benchmarking permits Unisys to make further adjustments towards qualifying a

minority enterprise that was not certified at the time Unisys submitted its

proposal. Amdahl did not raise any of these issues prior to submitting its own

bid.

CONCLUSIONS OF LAW

11. Any jurisdiction the Division of Administrative Hearings derives

herein is pursuant to Sections 120.53(5) and Section 120.57 (1), F.S,

12. Bid protests are governed by Section 120.53(5) F.S. The statute

requires agencies to establish rules regulating protests of their decision or

intended decision concerning a bid solicitation or a contract award. There are

two types of agency action giving rise to the right to protest. These are

decisions concerning the solicitation specifications and an intended decision to

award a contract.

13. The motion to dismiss asserts two grounds for dismissal. First, that

Amdahl's protest in effect untimely challenges the specifications, and second,

that the protest is premature until the agency completes all phases of its

evaluations, including the benchmark tier of evaluation.

14. Agencies understandably must be circumspect in advising potentially

affected parties of statutory time limits, because, absent notice, an agency

cannot reject a protest as untimely. See, Capital Copy, Inc. v. University of

Florida, 526 So. 2d 988 (Fla. 1st DCA 1988). Here, the agency, in an effort to

accommodate all possible interpretations of the statute, has confused the

priorities of its own RFP by providing a notice and window of opportunity to

protest which is not normally contemplated by the statute. Accordingly, it is

not surprising that Amdahl thought it had better protest now to avoid being

deemed to have waived all protestable issues now apparent.

15. The statute is designed to protect parties and the administrative

process from unduly burdensome and wasteful litigation. Amdahl's argument that

the case of Xerox Corp. v. DPR, 489 So. 2d 1230 (Fla. 1st DCA 1986) requires

that a protest be filed any time a tabulation is announced, however non-final

that tabulation may be, is not persuasive. That case essentially addressed

timeliness for filing a formal protest after a notice of protest has been filed

or, in effect, explained the methodology for perfecting a protest toward formal,

independent hearing before the Division of Administrative Hearings. It does not

control this situation, which is one of filing a premature notice of protest and

premature formal protest.

16. The current proceeding is not authorized. Section 120.53(5) F.S. and

Rule 15.2003(3) and (4) F.A.C. are controlling. The two categories of intended

agency action set out above (decisions concerning the solicitation

specifications and an intended decision to award a contract) are all that may be

protested, not a notice of intent to proceed to the third phase or tier of the

proposal evaluation process.

17. If DHSMV proceeds to benchmark and Unisys fails to perform, Amdahl

will be invited to benchmark and this current proceeding will have been a

fruitless, but expensive and time-consuming exercise. If DHSMV proceeds to

benchmark and Unisys performs satisfactorily, Amdahl and all other proposers

will have another window of opportunity to protest all three tiers of evaluation

when the agency's recommendation (intent) to award is noticed.

18. To adhere to Petitioner's reasoning would be to invite premature

protests at each tier. To adhere to Petitioner's reasoning would be to open the

door to sequential protests by each proposer who flunks the benchmark test.

Either result would be unduly burdensome on the agency's resources and the

administrative forum. Neither result would facilitate Section 120.53 F.S.'s

goal to resolve all bid protests in the shortened time frame provided therein.

While minds outside the agency may assess the tier system contained in the RFP

specifications as increasing, rather than decreasing, costs associated with

bidding, evaluating, testing (benchmarking), awarding, and protesting, that is

not a viable issue under Section 120.53(5) F.S. The agency has wide discretion

to establish its own bid procedure, and it is entitled to the orderly pursuit of

its design and implementation. While the three tier evaluation process may be

awkward, it is not ambiguous and it was not timely challenged when the

specifications were subject to challenge. The motion to dismiss should be

granted.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

recommended that the Department of Highway Safety and Motor Vehicles enter a

final order dismissing the current petition without prejudice to its appropriate

issues being raised within the statutory time frame after the agency's

recommendation to award contract described in Section 4.1 of the RFP is issued

and prior to that recommendation to award being sumitted to the Governor and

Cabinet.

DONE and RECOMMENDED this 6th day of June, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of June, 1995

COPIES FURNISHED:

David K. Miller

M. Stephen Turner

Jay Adams

BROAD AND CASSEL

P.O. DRAWER 11300

215 South Monroe St. Ste 400

Tallahassee, Florida 32302

Enoch J. Whitney

Judson Chapman

Office of the General Counsel

Department of Highway Safety and

Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 32399

Mary Piccard

W. Robert Vezina III

Cummings, Lawrence & Vezina, P.A.

1004 De Soto Park Drive

PO Box 589

Tallahassee, Florida 32302

Charles J. Brantley

Office of the General Counsel

Department of Highway Safety and

Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

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

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

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

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

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

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