96-003774BID Information Systems Of Florida, Inc. vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Thursday, October 10, 1996.

Summary: The agency failed to require vendor to submit names of subcontractors. This caused the response to be materially deficient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INFORMATION SYSTEMS OF FLORIDA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-3774BID

)

STATE OF FLORIDA, DEPARTMENT OF )

BUSINESS AND PROFESSIONAL REGULATION, )

)

Respondent, )

and )

)

HEWLETT-PACKARD COMPANY, )

)

Intervenor. )

_________________________________________)

RECOMMENDED ORDER

Notice was provided and on August 28, 1996 a formal hearing was held in

this case. Authority for conducting the hearing is set forth in Section

120.57(1), Florida Statutes. The hearing location was Tallahassee, Florida.

Charles C. Adams was the Administrative Law Judge.

APPEARANCES

For Petitioner: Timothy G. Schoenwalder, Esquire

John A. Dickson, Qualified Representative

Blank, Rigsby and Meenan, P.A.

204 South Monroe Street

Tallahassee, Florida 32301

For Respondent: R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

For Intervenor: Mary M. Piccard, Esquire

Cummings, Lawrence and Vezina, P.A.

Post Office Box 584

Tallahassee, Florida 32302-0584

STATEMENT OF THE ISSUES

Did Respondent act arbitrarily, fraudulently, illegally, or dishonestly in

its decision related to RFP 96-006 when it deemed the proposal submitted by the

Intervenor to be responsive to the RFP and determined that the Intervenor should

be awarded a contract for software development and consultant services in

association with the RFP?

PRELIMINARY STATEMENT

On July 16, 1996, Petitioner received notice that Respondent intended to

award the contract in RFP 96-006 to the Intervenor.

On July 17, 1996, Petitioner notified Respondent that it intended to file a

written protest of the decision to award to the Intervenor.

On July 29, 1996, Petitioner filed a formal written protest requesting a

Section 120.57(1), Florida Statutes hearing.

August 13, 1996, Respondent forwarded the case to the Director of the

Division of Administrative Hearings for an Administrative Law Judge to be

assigned to conduct the formal hearing. The hearing took place on the

aforementioned date.

Respondent moved for a more definite statement of the allegations in the

formal written protest. That motion was granted. As a consequence Petitioner

filed an amended formal written protest on August 20, 1996.

On August 22, 1996, Intervenor petitioned to intervene. That petition was

granted.

At hearing Petitioner's motion to recognize John A. Dickinson as a

qualified representative was considered and granted.

At hearing the parties submitted joint exhibits 1 through 10. Petitioner

presented the testimony of Cyndy Loomis, Tom Solano and Pam Pilkington.

The August 20, 1996 deposition of Donna Dixon was also admitted as part of

Petitioner's case. The August 21, 1996 deposition of Donna Dixon is not

relevant and has not been considered.

Respondent presented Donna Dixon as its witness.

Intervenor presented the witnesses Donna Dixon and Joe Montesinos.

Respondent's motion to prevent Petitioner from presenting evidence related

to a prior contract awarded to Intervenor under RFP 94-002, was granted subject

to the opportunity for Petitioner to demonstrate that RFP 94-002 formed the

basis for Respondent's evaluators to consider responses to RFP 96-006. No

showing was made that the evaluators considered RFP 94-002 in carrying out their

evaluation in RFP 96-006. Therefore the motion is granted.

A hearing transcript was filed on September 6, 1996.

On September 16, 1996, the parties filed proposed recommended orders.

Those proposals have been considered. The previous obligation to comment on the

fact proposals by the parties through an appendix to the recommended order was

repealed on October 1, 1996 when Chapter 120, Florida Statutes was amended by

Chapter 96-159, Laws of Florida.

FINDINGS OF FACT

The Parties

1. Petitioner is a Florida corporation that provides software development

and consulting services to various commercial entities and state agencies. It

has its principal place of business in Jacksonville, Florida.

2. Respondent is an agency of the State of Florida charged with the

responsibility to regulate various professions and businesses licensed by the

State of Florida. In carrying out its responsibilities it engages the services

of outside vendors through competitive bidding.

3. Respondent's principal business office is at 1940 North Monroe Street,

Tallahassee, Florida.

4. Intervenor is a California corporation that designs, manufactures and

services equipment and systems for measurement, computation and communications,

together with its consolidated subsidiaries.

The RFP

5. In 1993, Respondent was created by legislative action merging the

Department of Professional Regulation and Department of Business Regulation.

Respondent perceives that the merger was intended to improve the efficiency of

the regulatory process and to facilitate accurate and efficient processing of

consumer complaints. To further those purposes, on April 12, 1996 Respondent

issued RFP 96-006.

6. In the executive summary to the RFP prospective vendors who considered

responding to the RFP were informed:

This RFP has been developed in support of

the merger for the purpose of acquiring

contractor consulting service and software

development to support the conversion of

existing computer application systems for

the Division of Florida Land Sales,

Condominiums and Mobile Homes, the Division

of Hotels and Restaurants, the Division of

Pari-Mutual Wagering, and the conversion of

regulatory, inspection, investigation and

complaint processing for all the Business

Regulation divisions, including the Division

of Alcoholic Beverages and Tobacco. Through

this Outcome Based RFP, the Department

intends to contract with a vendor to not

only provide analysis, system design,

development, conversion, and selective

consulting services, but serve as an

integrator and primary contractor on this

project. Contractor responding to this RFP

will be expected to recommend services based

on deliverable specified in this RFP. Since

this is an Outcome Based RFP (see definition

on Page 2), the Department will not be

specifying unique contractor products and/or

services or how the contractor is to design

the system.

7. In the RFP "Outcome Based RFP" was described as:

A Request For Proposal in which the

contractor's client will specify concepts,

technology directions, size/number of things,

and required results (primarily standards

and system deliverables). The contractor

will respond by recommending the design and

proposed solutions -- how to get desired

results, by what means (hardware, software,

process, and contractor services), and for

what cost.

8. The purpose of the RFP was further described as:

The purpose of this Outcome Based Request

for Proposal (RFP) is to contract with a

contractor (serving as integrator as well

as contractor) to recommend (RFP bid

response) and provide consultant services

in conjunction with selected Department staff

to:

(1) conduct an information management

analysis study to identify the business

functions performed as well as the data and

information flows required to support these

functions for the Divisions of Hotels and

Restaurants, Land Sales and Condominiums,

Pari-Mutual Wagering and regulatory,

inspection, investigation and complaint

management for all the Business Regulation

Divisions, including Alcoholic Beverages

and Tobacco,

(2) develop an integrated, data-driven

information systems design that addresses

the needs of the Business Regulation

divisions and their information

requirements,

(3) convert the business functions and

data into the appropriate agency application

system,

(4) develop detailed design and program

specifications,

(5) modify existing applications and develop

new applications necessary to support the

system design,

(6) develop an implementation plan which

provides a phased approach for migrating

from the current environment to the planned

environment, including system testing and

training of agency personnel,

(7) provide post-implementation support for

the resolution of problems.

The contractor will be expected to contribute

(under contract) a predetermined number of

calendar months, not to exceed 26, towards

systems analysis and design, specification

and application development, conversion,

testing, training, implementation and post-

implementation support. The contractor will

be responsible for designing, in detail, the

methodology by which data files are to be

converted from the multiple applications and

various platforms and loaded into predefined

relational data bases. The contractor will

be responsible, under contract, for all

services meeting the requirements of this

RFP. All components proposed by the

contractor must be at a turn-key level with

100 percent compatibility as far as

integrating with installed hardware and

software currently utilized by BPR.

9. The scope of the work contemplated by the RFP through services

performed by the contractor was to this effect:

The Florida Department of Business and

Professional Regulation (BPR) is requesting

contractors to propose consulting services

for system analysis, design, specification

development, application, development,

conversion, training, implementation and post-

implementation support. The contractor will

propose recommendations for products and

services required and serve as an

integrator/contractor. At minimum, this

Business Regulation/Complaint Regulatory

Management Conversion solution shall be

capable of providing those services outlined

within this RFP. The section addresses ten

subject areas that must be addressed in

contractor's proposal. Section III-A

(Contractor Proposal Format) presents the

required "Tab" format and refers backs to

details in this section for the contractor

to use.

10. In the RFP an "Integrator" is defined as:

The contractor who has total accountability,

under contract, for all products and

services being provided to a customer even

those supplied by or acquired from other

vendors and/or sub-contractors.

11. In the RFP the term "Turn-Key" is defined as:

Contractor is solely responsible for

delivering a completed system with sign-

ificant client involvement. Vendor awarded

contract, will be responsible, under bond,

for specified deliverables to the department,

as well as being the integrator and contractor

for the complete system as proposed which will

include the roles of the contractor and

appropriate involvement of BPR personnel.

12. The RFP provided the vendors with instructions concerning the format

for proposals, especially as it related to Tabs 1 through 24 and the need to

complete those tabs consistent with the instructions.

13. The vendors were reminded:

[A]s required by Tab, the proposal will

present specific consulting services that

are recommended, and how these services

will technically meet requirements as stated,

and/or requirements developed and/or

uncovered by the vendor that have been

determined to be necessary for the project

to be successful.

14. Respondent provided a questionnaire to the vendors concerning the

prospective vendors' commitment to the project. Those questions were to be

answered "yes" or "no" with the opportunity for clarifying sentences to

accompany the answers.

15. The RFP instructed the vendors concerning the submission of cost

information. It reminded the vendors that they should "submit firm costs to

provide the state with the required deliverables, found in Section II of the

RFP."

16. The RFP described the manner in which the proposals would be evaluated

through two separate committees, a "technical subcommittee" and a "vendor

evaluation committee." The vendors were also reminded that the proposals would

first be reviewed by the purchasing arm of the Respondent to assure that the

vendors provided all mandatory documentation required by the RFP. In the

instance where required documentation was missing the response would be

determined "non-responsive."

17. The evaluation process contemplated the "technical subcommittee"

evaluating technology sections in responses to the RFP and providing those

results to the "vendor evaluation committee." The latter committee would then

evaluate other subject areas in the proposals and consolidate/finalize results

from both evaluation processes into an overall rating.

18. The RFP explained the subject areas that were to be considered by the

two committees with particularity.

19. The RFP described in detail the assignment of points and set forth the

format for carrying out the evaluation process.

20. The successful vendor would be selected upon the basis of the highest

points awarded.

21. The maximum points that could be received were 1950.

22. The maximum points that could be received for the vendors' proposed

costs were 250.

23. The RFP sets terms and conditions and identifies mandatory

requirements as:

The state has established certain require-

ments with respect to proposals to be

submitted by proposers. The use of "are",

"shall", "must" or "will" (except to

indicate simple futurity) in the RFP

indicates a requirement or condition. A

deviation is material if the deficient

response is not in substantial accord with

this [sic] RFP requirements.

24. Moreover, the RFP reminded the vendors that:

Any proposal which fails to meet the

mandatory requirements stated in this

Request For Proposal shall be rejected.

25. The RFP gives further instructions involving the rejections of

proposals where it is stated:

The department reserves the right to either

make awards or to reject proposals by

individual category, groups of categories,

all or none, or a combination thereof. Any

proposal which fails to meet the mandatory

requirements stated in this Request For

Proposal shall be rejected. Any proposal

that contains material deviations or is

conditional or incomplete shall be rejected.

The department may waive an immaterial defect,

but such waiver shall in no way modify the

RFP requirements or excuse the proposer from

full compliance with the RFP specifications

and other contract requirements if the

proposer is awarded the contract.

26. The RFP refers to subcontracts where it states:

The contractor is fully responsible for all

work performed under the contract resulting

from this RFP. The contractor may, with the

consent of the department, enter into written

subcontract(s) for performance of certain of

its functions under the contract. The sub-

contractors and the amount of the subcontract

shall be identified in the contractor's

response to this RFP. Subcontracts shall be

approved in writing by the department's

Executive sponsor, or designee, prior to the

effective date of any subcontract. The Sub-

contractor shall provide the Executive

sponsor documentation in writing, on company

letterhead, indicating known responsibilities

and deliverables, with timeframes. No sub-

contract which the contractor enters into

with respect to performance under the

contract resulting from this RFP shall in any

way relieve the contractor of any respons-

ibility for performance of its duties. All

payments to sub-contractors shall be made by

the contractor.

27. Tabs 16, 17, 19, 20 and 21 require specific information about sub-

contractors the vendor might employ in meeting the requirements in the RFP

addressed under those tabs.

28. In addition to the specific requirements in the RFP, paragraph 4 to

the general conditions reminds the vendor to submit "firm prices."

29. Paragraph 6 to the general conditions states that contract awards are

made:

As the best interest of the State may require,

the right is reserved to reject any and all

proposals or waive any minor irregularity or

technicality in proposals received.

Proposers are cautioned to make no assumptions

unless their proposal has been evaluated as

being responsive All awards made as a result

of this proposal shall conform to applicable

Florida Statutes.

30. The RFP explained the manner in which addenda to the RFP would be

provided, in which case the addenda would be in writing with the content and

number of pages described and sent to each vendor that received the original

RFP.

31. The RFP also contemplated the possibility that Respondent might

require the vendors to supplement their responses to the RFP with oral

presentations to either of the evaluation committees.

32. The RFP explained that there would be a bidders' conference to discuss

the contents of the RFP, in view of any written inquiries from the vendors and

recommended changes.

33. On April 30, 1996 the bidders' conference was conducted. In this

conference information was presented to the vendors and questions from the

vendors were presented to Respondent, both oral and written.

34. On May 10, 1996, addendum number 1 resulting from the bid conference

was provided to the vendors.

35. Through addendum number 1, Respondent more specifically informed the

vendors concerning its expectations in the vendors' responses to the RFP.

36. Additionally the addendum rescheduled certain events in the bid

process. It changed the proposal due date and public opening of the technology

portion of the proposal to June 7, 1996. The date for opening of proposals in

the cost portion was changed to July 12, 1996. The date for posting of the

intended award was changed to July 17, 1996.

37. Two vendors responded to the RFP. Those vendors were Petitioner and

Intervenor.

38. In addition to the information provided through responses to the RFP,

Respondent propounded written questions to the vendors as attachments A and B.

Attachment A constituted common inquiry to the vendors. Attachment B was

designed to solicit additional information unique to the respective vendors.

Both vendors responded to the questionnaires on July 9, 1996.

39. Both vendors' proposals were found responsive.

40. The two committees performed their respective evaluations. Through

this process Petitioner was awarded 1206.46 points. Intervenor was awarded

1321.39 points. As a consequence, on July 16, 1996 Respondent posted notice

that it intended to award a contract to Intervenor. Respondent also sent a

letter on that date notifying the Petitioner that it intended to contract with

Intervenor.

41. As described in the preliminary statement, and incorporated here,

Petitioner gave notice and formally challenged the decision to award.

42. In its opposition to the decision to award to the Intervenor,

Petitioner does not allege that Respondent failed to implement the procedures

for evaluation in scoring the competitor's. Rather, Petitioner challenges the

results obtained in that implementation. Where Respondent found Intervenor

responsive to certain alleged material requirements in the RFP, Petitioner

asserts that Intervenor was not responsive to those material requirements.

43. In performing their duties the committee members who evaluated the

proposals had a week to prepare themselves to render their input. During that

time they were allowed to review the responses to the RFP. Following that

opportunity the evaluators were allowed to seek clarification on any items where

there might be uncertainty, to include legal advice from the Respondent agency.

44. In carrying out their assignment the evaluators compared the

requirements in the RFP to the responses by the vendors. Through this process

no evaluator indicated that either proposal was unresponsive.

45. In their review function the evaluators also considered the answers to

the questions that had been provided by the vendors on July 9, 1996.

46. The evaluators had been instructed to review the requirements

contemplated by Tabs in the RFP, to read the RFP and the addendum to the RFP.

47. Petitioner specifically challenges Respondent's determination that

Intervenor was responsive in meeting the following alleged requirements in the

RFP:

Did the Intervenor Fail to Submit an Outcome

Based Proposal in Response to the RFP?

48. The RFP contemplates the necessity that a vendor will submit a

proposal that is Outcome Based as defined in the RFP and explained in other

provisions within the RFP. The requirement to submit an Outcome Based Proposal

is a material requirement. If a vendor does not meet that requirement, the

failure to comply is a material deviation from the requirements in the RFP. If

a vendor does not meet the requirement for providing an Outcome Based Proposal

and the evaluators ignored that irregularity, their actions would be arbitrary.

49. Tab 3 discusses:

Business Regulation/Complaint Management

Conversion Project Life Cycle Presentation:

This section will present the overall scope

of the project and the methodology. This

section will need to specifically deal with

how the vendor addressed the technical design

requirements as spelled out in Project Scope.

50. As described, this Tab was designed to have the vendor identify the

overall scope of the proposal and the methodology to be employed in reaching the

outcome required by the RFP.

51. As Section 3-1 to its response Intervenor replied:

Hewlett-Packard's (HP) approach is to provide

BPR with both fixed price and 'time-boxing'.

Time-boxing is defined as an allocation of

consulting hours (3360) which will be

delivered by HP technical consultants or sub-

contractors. HP is proposing to fix price

the Information Management Analysis Study,

Integrated System Design, and Project

Management. The remaining sections (Detail

Design and Program Specification, Data

Conversion Phase, Development, System Testing,

Implementation, Training, Post-Implementation

Support) will be time-boxed with a total of

3360 hours. HP has made suggestions as to

the number of hours to be used for these

sections. However the final allocation will

be mutually agreed upon by HP's project

manager and BPR's project manager.

HP Professional Services Methodology

Moving from a legacy computing model, to a

distributed, open client/server computing

environment, requires the organization to

rethink the process, people, and technology

requirements of the enterprise. Organiza-

tional integration and effective evaluation

of IT solutions tend to get lost in the rush

to develop specific applications. If not

lost, there is rarely a structured logical

process that is followed in defining,

designing, developing, implementing, and

operating the solution.

52. The remaining provisions within Section 3 to the Intervenor's response

to the RFP detail the overall scope of the project and the methodology to be

employed.

53. In other respects the Intervenor's response to the RFP explains the

manner in which it would reach the outcome contemplated by the RFP in all phases

related to its proposed consulting services in this project. Facts were not

presented that proved that the evaluators acted arbitrarily in determining that

the Intervenor's proposal was based upon the required outcome in the project.

Did the Intervenor Submit a Firm Price Proposal?

54. The RFP creates a material requirement that a vendor complete

Attachment "E" to the RFP. Attachment "E" provides cost information from the

vendor. In every respect Intervenor has complied with that requirement. The

evaluators were not arbitrary in determining that the requirement was met.

Notwithstanding the use of "time-boxing" for certain phases in the project, the

cost information submitted in Attachment "E" assigns a money amount for those

phases. By that assignment the consulting hours that are "time-boxed" have an

equivalent dollar figure which constitutes firm costs for those

deliverables/phases in the project.

55. The evaluators did not act arbitrarily in assigning 234 points to the

Intervenor for its cost proposal.

Did the Intervenor fail to Submit a List of Sub-contractors Whose Services

will be used by the Intervenor?

56. Tab 16, Corporate (vendor) qualifications and commitment; makes it

incumbent upon the vendor to indicate the sources committed to the project in

terms of personnel and other resources, to include sub-contractors involved with

the project.

57. Tab 17, Corporate (vendor) financials; requires the vendor to produce

financial information about it and any sub-contractors involved with the

project.

58. Tab 19, Individuals proposed to work on contract; requires resumes of

individuals who work for the vendor or a sub-contractor and information about

key personnel of the vendor and sub-contractors.

59. Tab 20, Contract and support services including post-implementation

plan, requires; the vendor to indicate where its services will be provided by

the vendor or sub-contractors.

60. Tab 21, Contractor questionnaire; solicits information from the vendor

about sub-contractors.

61. As seen, in many provisions the RFP requires a vendor to identify

information about sub-contractor whose services would be used by the vendor.

These are material requirements. If the evaluators ignored the requirements,

their actions would be arbitrary.

62. In addressing intervenor's proposal, the evaluators acted arbitrarily.

The problem is that Intervenor in many places in its response has left open the

possibility that it would use sub-contractors without naming those sub-

contractors and their contribution to the project. Ultimately, the lack of

disclosure could provide the Intervenor with an advantage that Petitioner does

not enjoy and potentially adversely impact the interests of the Respondent.

63. The following are examples in response to the RFP where Intervenor has

maintained its option to use sub-contractors without disclosing information

about the sub-contractors:

A. Section 1-3: "The Regulatory Management

Conversion solution being proposed is comprised

of world-class services from HP and our partners."

The reference to partners is seen to include the

possibility that sub-contractors might be used.

B. Section 3-1, that has been commented on,

referring to time-boxing, describes allocation

of the 3360 consulting hours through delivery

by the intervenor's technical consultants or

sub-contractors.

C. Section 10-2, refers to the implementation

of the management plan which follows-up "sub-

contractor's work."

D. Section 12-2, refers to Intervenor and its

training partners offering "standard and custom

instructor led training, computer based training

and net work based training." Training partners

is taken to mean some persons who reasonably

could be considered sub-contractors.

E. Section 13-1, makes reference to third party

services involved with the Intervenor's custom

solution to the project needs. The reference to

third party is equivalent to a sub-contractor.

F. Section 16-9, referring to the flexibility

in managing the engagement (project) describes

partnering and involvement in sub-contracting.

G. Section 21-2, in responses to the question-

naire to Tab 21, Intervenor refers to its time-

boxing approach for providing services, in which,

according to Section 3-1, Intervenor leaves open

the possibility that it would use sub-contractors

to deliver the services.

64. It is realized that on occasions in which Intervenor was required to

provide contemporaneous and detailed information concerning its intentions to

use sub-contractors, answers that it gave in association with Tabs 16, 17, 19

and 20 did not refer to sub-contractors. Consequently, one might assume that

Intervenor did not intend to employ sub-contractors in this project

notwithstanding references to unnamed sub-contractors found in other places in

the response to the RFP. This raises the issue whether the lack of reference

and response to the more specific questions about the use of sub-contractors

overcomes the implications of the possibility that sub-contractors will be used

that is made in response to other requirements in the RFP. That internal

inconsistency should not favor an interpretation that creates advantage for

Intervenor and potential difficulty for Respondent, which it does. For the

evaluators to allow the conflict to remain is an arbitrary act. To seek to

resolve the conflict would also constitute an arbitrary act as it would require

an amendment to the Intervenor's response. The fact that Respondent must

approve subcontracts before their effective dates does not satisfactorily

mitigate the need to disclose subcontractor information with the response.

Did Intervenor's Proposal Fail to Meet the Requirements in the RFP in the

Technical Categories for Tabs 4 through 7, 10, 12, 14, 15 and 21?

65. Petitioner made allegations concerning those issues associated with

Intervenor's technical responses in those tabs. However, in the proposed

recommended order Petitioner limited its discussion to Tabs 5, 6, 7 and 11. It

is assumed that Petitioner abandoned its contentions concerning the remaining

tabs described in the interrogatory.

66. Tab 5, Integrated system design, states:

In this section the vendor will present

the methodology to be used in support of

the RFP requirements.

The evaluators found that Intervenor had met this requirement. It has not been

shown that the evaluators acted arbitrarily in determining that the Intervenor

had complied with requirements at Tab 5.

67. Tab 6, Detail design and program specifications, states:

In this section the vendor will present

the methodology in support of the RFP requirements.

Petitioner has failed to prove that the evaluators acted arbitrarily in

concluding that the Intervenor met the requirements for Tab 6.

68. Tab 7, Data conversion states:

In this section vendor [sic] will

provide a description of their approach

to the data conversion phase.

Petitioner has failed to prove that the evaluators acted arbitrarily in

determining that the Intervenor met the requirements for Tab 7.

69. Tab 11, Post-implementation support, states:

In this section the vendor [sic] will

provide a description of their approach

to post-implementation support.

Petitioner has failed to show that the evaluators acted arbitrarily in

concluding that the Intervenor had met the requirements for Tab 11.

70. Nor has it been shown in any respect that the evaluators acted

illegally, fraudulently, or dishonestly.

Was the Intervenor a responsible proposer?

71. Petitioner alleged in its petition that the Intervenor was not a

responsible proposer. Petitioner did not offer proof to sustain that

allegation.

CONCLUSIONS OF LAW

72. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding in accordance with Sections

120.53(5) and 120.57(1), Florida Statutes (1995).

73. Petitioner has the burden to prove its allegations challenging the

decision to award a contract to its competitor. Florida Department of

Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

74. To succeed, Petitioner must prove that Respondent acted arbitrarily,

fraudulently or dishonestly in reaching its decision. Department of

Transportation v. Groves-Watkins Construction, 530 So.2d 912 (Fla. 1988).

75. Respondent may waive minor irregularities in a response to its RFP.

It may not waive material departures from the requirements in the RFP which

affect the price of the response to the RFP, give the vendor an advantage or

benefit not enjoyed by its competitor or adversely affect the interests of the

Respondentopabest Foods, Inc., v. State of Florida, Department of General

Services, 493 So.2d 50 (Fla. 1st DCA 1986); and Robinson Electrical Co., Inc.,

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

76. To act arbitrarily is to act in a fashion that is not supported by

fact or logic and is despotic. To act capriciously is to act in a manner which

is lacking in thought or reason or rationality. Agrico Chemical Co v. D.E.R.,

365 So.2d 759 (Fla. 1st DCA 1979).

77. In most respects the Respondent's actions in evaluating responses to

the RFP were consistent with law. Nonetheless, Respondent acted arbitrarily in

allowing the Intervenor to disregard the requirement that precise information be

provided about sub-contractors the Intervenor might use in this project. Such

oversight was a material deviation from the requirements in the RFP. To leave

open the option for the Intervenor to decide between providing the services

itself or selecting a sub-contractor at some future date could reasonably be

seen to give the Intervenor an advantage not enjoyed by the Petitioner and would

have the potential to adversely impact the interests of Respondent. See also

Harry Pepper and Son Associates, Inc. v. City of Cape Coral, 352 So.2d 1190

(Fla. 4th DCA 1977). For this reason the decision to award the contract to the

Intervenor should be overturned. The Intervenor was unresponsive to the bid

requirements in a material manner.

RECOMMENDATION

Upon consideration of the facts found in the conclusions of law reached it

is,

RECOMMENDED:

That a final order be entered which declares Intervenor to be unresponsive

to the RFP and takes such other action as Respondent deems appropriate in

pursuing this project.

DONE and ENTERED this 10th day of October, 1996, in Tallahassee, Leon

County, Florida.

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of October, 1996.

COPIES FURNISHED:

Timothy G. Schoenwalder, Esquire

Blank, Rigsby and Meenan, P.A.

204 South Monroe Street

Tallahassee, Florida 32301

R. Beth Atchison, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

Mary C. Piccard, Esquire

Cummings, Lawrence and Vezina, P.A.

Post Office Box 589

Tallahassee, Florida 32302-0589

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard T. Farrell, Secretary

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Forida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 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.