STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNBURST URETHANE SYSTEMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-1482BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A public hearing was held in this case on July 2, 1984, in Naples, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Robert M. Grguric, Esquire

900 Sixth Avenue South, Suite 201

Naples, Florida 33940

For Respondent: Anthony N. DeLuccia, Esquire

Post Office Box 06085 Fort Myers, Florida 33906

The issue is whether the bid submitted by Petitioner in response to Respondent's invitation to bid for Lease No. 590:1590 was the lowest and best bid.

The Petitioner called no witnesses on its behalf at final hearing.

Petitioner did submit two exhibits. Respondent presented the testimony of William Samford, Frank Last, Frances Clendenin, John Cato, and Ed Gauthier. Respondent Department of Health and Rehabilitative Services (DHRS) introduced eight exhibits.

The parties filed proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions, and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

In approximately November, 1983, DHRS issued its notice of intent to accept competitive bids for the lease of office space in Immokalee, Florida.

Petitioner, Sunburst Urethane Systems, Inc. (Sunburst), submitted a bid in response to the Request for Proposal (RFP). By letter dated March 7, 1984, DHRS gave notice of its intent to award the bid to Chuck Bundschu, Inc. Sunburst

filed a timely protest and a request for formal hearing, alleging that its bid was lowest and best that it should have been awarded the contract in question. It further alleged that Chuck Bundschu, Inc., did not have the proper zoning at its proposed facilities and should have received a lower evaluation for failure to meet the specifications.

At hearing the parties stipulated that the issues and evidence in this proceeding are limited to the application by the evaluation committee of criteria 1, 2, 4 and 6, and whether zoning should have been considered in evaluation of the bids.

FINDINGS OF FACT

1. Respondent provides services to the residents of Immokalee from office space which it is currently leasing from Sunburst. The lease of the present facilities expires on August 31, 1985. DHRS is in need of more office space than it currently fills in order to meet the growing demand for its services in the Immokalee area. Therefore, DHRS issued an invitation to bid, inviting interested persons to submit bids for its required office space. Three bidders responded: Badcock Furniture Corporation, Sunburst Urethane Systems, Inc., and Chuck Bundschu, Inc. Badcock Furniture Corporation is not a party to these proceedings in that it did not seek an administrative remedy under Section 120.53(5), Florida Statutes. The bid acquisition has been designated by DHRS as Lease No. 590:1590.

   
   

2. DHRS formed a bid evaluation committee to evaluate the bids which were submitted. The committee, consisting of William Samford, Residential Service's Director for Development Services, Frank Last, Senior Human Services Program Manager for Economic Services, Frances H. Clendenin, Administrative Services Director, John S. Cato, General Services Manager, and Ed Gauthier, Human Services Program Administrator for the Immokalee programs, visited the three prospective bid sites and evaluated the bid proposals. Each member individually reviewed and rated the bids and recorded his or her ratings on a form entitled Evaluation Criteria (Award Factors). The individual ratings were admitted into evidence as HRS Exhibits 2, 3, 4, 5 and 6. After the individual review, the committee met together for purposes of reaching a consensus evaluation. Based on that consensus, the committee generated a memorandum to the Department of General Services outlining the twelve evaluation criteria used and the points awarded to each bidder. On or about March 7, 1984, DHRS published its notice of intent to award Lease No. 590:1590 to Chuck Bundschu, Inc., as the successful bidder.

   
   

3. By stipulation, only four of the evaluation criteria are in dispute as to the points awarded to each bidder. Those criteria resulted in the following ratings:

   
   

   Criteria 1 - Rental rate including projected operating expenses to be paid by lessor.

   Out of a total rating of 30 points, Sunburst received 30 points because it had the lowest rental rate during the term of the lease and the option years. Chuck Bundschu, Inc., received 27 points based on a formula designed by the committee. Under the formula, the

   maximum of 30 points was awarded to the low bidder if that bid was below the rent that had been set as the area rate and the other bidders then received points based on a ratio between their bid and the low bidder.

   
   

   Criteria 2 - Conformance of space offered to the specific requirements contained in the invitation to bid.

   A total of 20 points was available to each bidder in this criteria. Sunburst received 18 points and Chuck Bundschu, Inc., received the entire 20 points. The basis for the lower point award to Sunburst was that some of the proposed office space was in a residential building and the second floor of the two-story building was being and would be used for migrant farm housing. The property of Chuck Bundschu, Inc., was totally suitable and was well located.

   
   

   Criteria 4 - Provision of the aggregate square footage in a single building. Proposal will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other.

   Both Sunburst and Chuck Bundschu, Inc. would provide space in not more than two locations. However, Sunburst's buildings did not have a covered walkway connecting the buildings and the Bundschu property did. Therefore, Sunburst received 8 points and Chuck Bundschu, Inc. received the maximum 10 points.

   
   

   Criteria 6 - The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space.

   Sunburst received two points and Bundschu received the maximum of five points because the characteristics of the neighborhood and the actual layout of the property was more conducive to the conduct of Departmental operations. Specifically, Sunburst's property had a congested parking lot where many people gathered including some undesirable persons.

   These people and their activities resulted in a higher crime rate in the area. Further, migrant housing would exist on the floor above the offices that would house valuable food stamps, thereby creating a security threat.

   Finally, a proposed additional parking site would result in cars traveling across a walkway where clients and employees might be injured. Bundschu's property had none of these drawbacks.

   
   

4. The memorandum from the bid evaluation committee to the Department of General Services stated the committee's findings and point award totals for the twelve criteria. That memorandum indicated that Badcock Furniture Corporation received a total of 59 points, Sunburst received 79 points and Chuck Bundschu, Inc., received 93 points. It is undisputed that a clerical error occurred in the memorandum and the totals as reported were incorrect. At hearing, testimony was given that the corrected totals should have been 91 points for Sunburst and

   95 points for Chuck Bundschu, Inc. However, even these totals do not agree with simple addition of the points as they are listed separately by criteria. It is found that the correct totals for the separate points awards as stated in the memorandum is 90 points for Sunburst and 95 points for Chuck Bundschu, Inc.

   
   

5. Despite the discrepancy in the actual point totals is reported in the memorandum, a review of the individual evaluation forms shows that each evaluator independently awarded Sunburst fewer points than Bundschu. While there was contradictory evidence regarding the actual total points awarded and the method by which the consensus was reached, the clear and convincing evidence is that Bundschu was evaluated to be the best bidder by every evaluator and the evaluators properly applied the criteria.

   
   

6. It is undisputed that the property offered by Chuck Bundschu, Inc., is on property partially zoned "VR", and before offices could go into the building, a provisional use variance must be approved by the Board of Zoning Appeals of Collier County. The bid evaluation committee did not consider zoning in evaluating the bids because zoning was not an element specified in the invitations to bid. The invitation to bid does not require the proposed site to be compatibly zoned in order for the bid to be valid and responsive. If the contract is awarded and the successful bidder fails to make the space available as agreed, whether because of zoning or otherwise, the successful bidder shall be liable to DHRS for liquidated damages for each day that the property is unavailable. Zoning is not an element to be considered in the award of the bid.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdictions over the parties and the subject matter of this proceeding.

   
   

8. The specifications set forth in the invitation to bid are in compliance with the rules of the Department of General Services related to leasing facilities as found in Chapter 13D-7, and more specifically, Rule 13D-7.092, Florida Administrative Code. In this case, the specifications were sufficient to satisfy Rule 13D-7.092(4). Clearly, this rule does not require that zoning be one of the specifications. In fact, Rule 13D-7.092(4)(a) requires:

   
   

   1. Specifications shall be drawn by the user Agency in general terms. They shall afford each prospective lessor interested in submitting a proposal, knowledge of the agency's space requirements. They shall not be structured to favor any specific location or lessor.

9. Additionally, Rule 13D-7.092(6) does not require zoning to be evaluated or weighed when comparing different proposals. The burden is on the bidder to do all acts necessary to make the site available after award of the lease or suffer the liquidated damages penalty set forth in the invitation to bid. The specifications and weighted evaluation criteria are to relate to the agency's space requirements. Zoning considerations are beyond this scope.

   
   

10. Sunburst also challenges the method and correctness of the evaluation.

    Rule 13D-7.092(6) details the evaluation process in relevant part as follows:

    
    

    1. The user agency alone shall reserve the the right to accept or reject any or all bids submitted and if necessary reinitiate procedures for soliciting competitive proposals.

    2. The user agency, in conjunction with preparing specifications, shall develop weighted evaluation criteria. The criteria items most significant to the user agency's needs should bear the highest weight. The cost of relocation, if any; consolidation of activities, if desirable; and any other factors deemed necessary should be weighted.

    3. The evaluation shall be made by the user agency.

    4. Selection (deemed to be the lowest and best bid) shall be made by the user agency.

       
       

       The evidence is clear that DHRS complied with these requirements in evaluating the bids. The fact that a clerical error occurred in the final tabulation of point totals is not significant. The agency did develop and use weighted evaluation criteria. The uncontroverted evidence was that Sunburst was evaluated second by every evaluator and by the consensus report of the committee. Chuck Bundschu, Inc., was consistently found to be the lowest and best bidder under the weighted evaluation criteria. To reject that bid based solely on a clerical error would be a useless elevation of form over substance.

       
       

11. Finally, it is concluded that the lowest and best bid submitted in response to the invitation to bid for lease No. 590:1590 is the bid submitted by Chuck Bundschu, Inc.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that a final order be entered which awards the contract for Lease No. 590:1590 to Chuck Bundschu, Inc., as having submitted the lowest and best bid proposal.

DONE and ORDERED this 26th day of July, 1984, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1984.

COPIES FURNISHED:

Robert M. Grguric, Esquire 900 Sixth Avenue South Suite 201

Naples, Florida 33940

Anthony N. DeLuccia, Esquire Post Office Box 06085

Fort Myers, Florida 33906

Docket for Case No: 84-001482

Orders for Case No: 84-001482