2006-01-09_Kidde_Fire_Trainers_v_Dept_of_Finance_Findings_of_Fact_conclusions_of_Law_and_Decision

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.................... . . .. clearly labeled exception to Article 21 of the Special Provisions of the IFB that stated: "Kidde Fire Trainers, Inc. cannot accept an unlimited assessment of liquidated damages. Kidde Fire Trainers will cap the total amount of Iiquidated damages at 10% of the contract value." Article 21 of the Special Provisions provided: Liquidated damages, per Section 6.12 of the General Terms and Conditions for Goods and Services, dated July 1, 1994 shall be assessed at one-tenth of one percent (0.1%) for each day of delay for delivery or installation (if applicable)of any item.. 5. On October 4, 2005 Petitioner sent Respondent a letter withdrawing its exception to potential assessment of liquidated damages, and voiding the exception noted in its bid. 6. On October 5, 2005, Respondent sent a letter to Petitioner informing Petitioner that it could not accept modifications to a bid after the opening date. 7. By a letter dated October 6, 2005, Petitioner stated that they were not requesting a change to the Special Provisions, but requested that the liquidated damage amount be limited, which Petitioner believed was within Respondent's authority to do so. Petitioner also argued that a request to limit liquidated damages to 10% of the contract value is a request for an immaterial change to the bid documents that can be ignored or withdrawn because the IFB allowed the bidder to suggest a delivery date. Petitioner requested that Respondent issue an award to Petitioner as the lowest responsible, responsive bidder or that Respondent cancel the subject procurement and issue a new IFB. 8. By a letter dated October 18, 2005, Respondent informed Petitioner that they had no alternative but to award the bid to Draeger and a notice to that effect was posted on October 18, 2005. 9. By a letter dated October 21, 2005, Petitioner filed a protest to the proposed award to Draeger, contending that: (1) the solicitation did not specify a delivery time, (2) Respondent improperly and inconsistently applied the provision that allowed exceptions to be taken to the General Terms and Conditions and Special Provisions and Specifications, (3) Draeger misrepresented its status to being a compliant non-Hawaii business, (4) the solicitation was a competitive sealed proposal or a hybrid IFB/competitive sealed proposal and so exceptions for discussion purposes were authorized and (5) the sole award basis in the procurement documents was to the lowest responsible bidder. - 3 -