STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LEON BROOKS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2625BID
) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )
)
Respondent. )
) RAINBOW PROPERTIES, a Florida )
general partnership, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2626BID
) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer, in Tallahassee, Florida. The appearances were as follows:
APPEARANCES
For Petitioner John A. Ratzlaff, Esquire Brooks: TRAMMELL & RATZLAFF
105 South Madison Street Marianna, Florida 32446
For Petitioner John A. Barley, Esquire
Rainbow JOHN A. BARLEY & ASSOCIATES, P.A.
Properties: 400 North Meridian Street
Post Office Box 10166 Tallahassee, Florida 32302
For Respondent: Drucilla E. Bell, Esquire
Assistant General Counsel Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32399-2500
BACKGROUND
This cause concerns a dispute which has arisen concerning the solicitation for bids by the Department of Corrections (Respondent), (Department), concerning lease number 700:0439, regarding procurement of office space in Jackson County, Florida. The bid solicitation was advertised by newspaper on March 27, March 30 and April 6, 1988. In response to the invitation, bids were submitted by the Petitioners C. Leon Brooks and Rainbow Properties ("Brooks" and "Rainbow"). On April 21, 1988, the Department's lease committee met to consider those bids and to make a determination as to which was the best and most responsive bid. The Rainbow Properties' bid was found by the committee to be nonresponsive in two material areas and questionably responsive in a third area. Those areas were the depiction of adequate square footage, the failure by Rainbow to show 77 parking spaces on the site of the building and the failure to show the "Energy Performance Index" (EPI) calculations and certification. The lease committee recommended acceptance of the bid submitted by Petitioner C. Leon Brooks.
The agency accepted that recommendation, and the notice of the Bid Award was posted on May 2, 1988, in accordance with Section 120.53, Florida Statutes. Rainbow Properties consequently filed a letter Notice of Protest of the initial award to Brooks on May 4, 1988. No formal written protest, for purposes of Section 120.53, Florida Statutes, was filed until May 16, 1988.
On May 10, 1988, at the behest of Mr. Jett, of Rainbow, and his counsel, the Department's representatives met with Mr. Jett and his attorney. They met to allow Mr. Jett to explain why he felt the Rainbow bid was responsive and complied with the bid specifications as to the three areas in which it was found initially to be nonresponsive. The Department's counsel explained that the bid could not be amended after the opening but agency personnel listened to Rainbow's arguments concerning its alleged responsiveness. Rainbow was informed that it would be notified of the Department's decision within a few days. In fact, on May 11, 1988, the Department, without notice or any consultation with Mr. Brooks, the "winning bidder," unilaterally rejected both bids withdrawing the award of the bid to Brooks. Mr. Brooks then filed a timely notice of protest and formal written protest of that action. Rainbow Properties had sought to file a formal protest of the initial May 2 action awarding to Brooks through its petition filed May 16 at the Division of Administrative Hearings, one day late. It subsequently filed it with the Department of Corrections on May 17, 1988. By letter of May 17, 1988, Rainbow also noticed its protest of the action of May 11, 1988, with a subsequent formal petition with regard thereto being filed on May 24, 1988.
The cause came on for hearing as noticed, at which Petitioner Rainbow presented the testimony of Robert Jett, its owner, Gary Gargas, an architect retained by Rainbow, Mary Goodman, the Chief of the Bureau of Property Management of the Department of General Services, and three exhibits. The Petitioner Brooks presented the testimony of Wendell Beall, and Leon Brooks, and one exhibit. The Department of Corrections presented the testimony of Wendell Beall and five exhibits. Petitioner Rainbow presented Mr. Jett's testimony in rebuttal.
After the hearing, the parties elected to order a transcript and, after requesting an extended briefing schedule, timely filed Proposed Findings of Fact and Conclusions of Law on or about August 5, 1988. Those proposed findings have been ruled upon in this Recommended Order and once again in the Appendix attached hereto and incorporated by reference herein. The requirements of Rule 28-5.402, Florida Administrative Code have been waived. The issues to be
resolved in this proceeding concern whether Rainbow Properties made a timely, formal, written protest of the Department's decision of May 2, 1988; whether the Department exceeded its authority pursuant to Chapter 120, Florida Statutes, by withdrawing the award of the contract to Brooks prior to the filing of a timely, formal written protest by Rainbow; whether the Department is estopped from rescinding the contract with Brooks due to his detrimental reliance on its existence; whether the Department is estopped from using the Energy Performance Index calculation as a ground for rejection of the bid; and which of the bids submitted by the Petitioners are best and most responsive.
FINDINGS OF FACT
The Respondent, Department of Corrections, by advertisement in a Jackson County, Florida newspaper on March 27, March 30 and April 6, 1988, sought bids for the provision of office space for the Department's offices in Marianna. The bid specifications, including, as pertinent hereto; minimum square footage, a requirement that Energy Performance Index calculations and certification thereof by an architect or engineer be shown, and the requirement that all parking spaces be on site, was made available to potential bidders on March 28. A pre-proposal conference of potential bidders was held on March 31 to explain and clarify the specifications. Bids were submitted by the two Petitioners, and the bids were opened on April 14, 1988. On or about April 19 or 20, Wendell Beall and Robert Sandall evaluated the bid proposals and made a preliminary determination that the Rainbow bid was non-responsive in three areas. It was determined that the required square footage depicted on the Rainbow bid was inadequate; the parking provision was inadequate in that not enough "on-site" spaces were shown on the bid; and the Energy Performance Index calculations and certification by an architect or engineer was not supplied. On April 21, 1988, the lease committee, chaired by Thomas Young, met and reviewed both bid packages submitted by the Petitioners and affirmed Mr. Beall and Mr. Sandall's findings, with the result that the agency decided to award the contract to Brooks.
The bid specifications required a minimum of 12,756 net square feet of rentable office space. Only 11,862 square feet could be identified as net rentable square footage on the Rainbow bid's floor plan, as calculated in compliance with the "standard method of space measurement." This square footage calculation was consistent with the actual measurements of the building made by Mr. Beall himself. The Brooks' bid depicted an adequate amount of square footage in compliance with the specifications. Mr. Beall calculated the net rentable interior square footage by utilizing the standard method of space measurement provided for in the rules of the Department of General Services and, after deducting nonusable, nonrentable space under that standard, rule mandated method, he arrived at the net rentable office space figure of 11,862 square feet. Rainbow at no time has presented any conflicting measurement or alleged any specific errors in Mr. Beall's calculations.
Item A-10 of the bid specifications requires a floor plan to be submitted showing the present configurations of the building, with measurements that equate to the required net rentable square footage. This means that the minimum square footage must be shown in the floor plan attached and submitted with the bid specifications, even if the building may contain more square footage. The Department supplied a specific number of offices of various sizes and a required configuration no floor plan in order to depict work units that should be constructed and/or arranged together, as part of the specifications in the Invitation to Bid documents. The purpose of this agency floor plan was to give potential bidders a guide to calculate the cost of remodeling existing
space to meet the agency's needs so that those potential bidders could amortize that cost as part of the rental amount involved. Therefore, the proposed floor plan included in a bidder's package should not vary substantially from the final plan used to actually remodel the leased space in accordance with the agency's requirements. Accordingly, the only submittal of plans which is permissible subsequent to the bid opening, as contemplated by the bid specifications, are the final plans developed by a successful bidder in consultation with the agency after the bid award. No floor plan may be unilaterally submitted by a bidder after the bid opening since that would constitute an illegal amendment of the bid. Only a floor plan done in consultation with the agency in order to make final adjustments so that all office space and other related space will comply with the agency's precise requirements may be done after the bid is actually awarded, and this must be based upon the floor plan originally submitted in the bid itself in conformance with the bid specifications regarding office layout, square footage and the like. The Rainbow bid simply contained an inadequate amount of square footage necessary to be a responsive bid in this regard.
An additional bid specification at issue concerns the requirement of 77 exclusive use, on-site parking spaces. The Rainbow bid only made provision for
27 on-site exclusive parking spaces, with the remaining 50 spaces of the required 77 being off the proposed building site, approximately 155 feet away, without sidewalk access to the proposed office building. The Brooks' bid incorporated all required parking spaces on the site, as required by the specifications. The Rainbow bid was non-responsive concerning the parking space specification as well.
Mr. Beall prepared the bidding documents as Budget Manager for the Department of Corrections' Region I. He was the person designated in the bidding documents to answer any questions requiring clarification by prospective bidders before bids were prepared and submitted.
Mr. Beall established that the intent of the agency with regard to this parking space requirement was to require all 77 parking spaces to be on-site.
No bidder or prospective bidder asked any questions of Mr. Beall concerning this specification prior to the submittal of any of the bids.
Mr. Brooks, however, did consult with Mr. Beall on the question of the Energy Performance Index specification item before he submitted his bid. Mr. Brooks is a former physics and advanced mathematics teacher with some 20 years experience in construction. He has been a licensed general contractor and master builder for residential, commercial and industrial types of construction for 11 years. He typically designs and draws his own plans, including those submitted with the bid at issue. He spent approximately 100 hours of his time on preparation of this bid. Mr. Brooks had previously been awarded a rid by the Department of Corrections on which he simply invalid the item concerning the Energy Performance Index (EPI) specification. That item was found to be responsive by the Department, and the bid was awarded to Mr. Brooks. On a subsequent bid on a different job, Mr. Brooks again merely initialed the EPI specification, which he intended to mean that he would perform the job at issue such that the EPI requirements would be met. He was not awarded the bid on that particular job, but upon his informally notifying the Department of Corrections that he might protest the decision to award the bid to a different bidder, the Department personnel advised him that they might choose to raise the issue of his responsiveness to the EPI specification in that situation. With this history in mind, Mr. Brooks, before submitting his bid, contacted Mr. Beall to inquire as to what would be considered an appropriate response to the EPI specification on the bidding documents. The EPI has been calculated by Mr.
Brooks on numerous projects in the past, and he is capable of calculating it as to this project. He found, however, that it would be impossible to calculate a precise and accurate EPI specification response, because he would not have the final floor plan from which to calculate it, with all the information that would give him concerning room configurations, size, location and size of windows, size and type of heating and air-conditioning equipment and many other factors. Mr. Brooks could, however, give his certification that the energy performance requirement would be met, once the final plans were completed in conjunction with discussion with the agency after award of the bid, which comports with standard agency policy and practice. Because he was concerned that any energy performance calculations he might supply would not necessarily be accurate in the final analysis, in relation to the final "to be constructed" plans, Mr.
Brooks contacted Mr. Beall to obtain his guidance about what would be considered a proper response to this specification item. Mr. Beall advised him that a letter certifying that he would comply with the specification as to this issue would be an appropriate alternative to simply initialing the specification. The same opinion was also voiced at the lease committee meeting. Mr. Beall's advice to Mr. Brooks in this regard was based upon advice given him by Mr. Edwin Johnson of the Department of General Services and was based upon past agency policy concerning treatment of this issue on previous bids considered by the lease committee. Previous bids had indeed been accepted in the form submitted by Mr. Brooks and had not been found to be nonresponsive as to the EPI issue.
Thus, Mr. Brooks, in addition to initialing the specification concerning the EPI, also supplied the referenced letter certifying that he would comply with that specification and agency requirement. Rainbow, on the other hand, merely initialed that item in the specification and bidding document. Thus, the Brooks' bid is the more responsive on the issue of the EPI than the Rainbow bid.
The bid award to Brooks was posted on May 2, and on May 4, Rainbow filed a Notice of Protest of she award which was received by the Department, timely on May 5. Shortly after that date, counsel for Rainbow requested that the Department's representatives and counsel meet with him and Mr. Jett, his client, of Rainbow Properties, to discuss the agency's award to Brooks and rejection of Rainbow's bid. On May 10, 1988, the Department's regional representatives and its counsel met with Mr. Jett of Rainbow Properties and his attorney, Mr. Barley. Mr. Jett used this opportunity to explain how he felt that the Rainbow bid had complied with the bid specifications in the three specific areas discussed above. The Department's counsel explained on that occasion that the bid could not be amended after opening and posting of the bids. Mr. Jett's bid had only shown 11,862 square feet identifiable as rentable space in the floor plan submitted with the bid, although 12,756 square feet were required by the bid specifications. Additionally, as discussed above, of the 77 required on-site parking spaces, only 27 were provided on site with 50 of them being off site, with Rainbow not establishing that it had ownership or right of control to the off site spaces. Additionally, as discussed above, there was the problem of no calculations or assurances being provided regarding the EPI specification, it merely having been initialed in Rainbow's bid submittal.
At the May 10 meeting, Mr. Jett was given the opportunity to explain how his bid complied with the specifications at issue and to discuss how he felt the Department had misinterpreted his response or made an error in measuring or calculating the square footage available in his building. He provided no alternative calculations or measurements of the building, however, which would depict more than the 11,862 square feet measured by the Department's staff or which would show that measurement was incorrect. He was reminded that the only
possible information he could legally provide the agency after the opening of bids was in the nature of minor clarification concerning how he had calculated the square footage. He was instructed that he could not revise his plans in order to establish that more square footage was available because that would be an illegal amendment of his bid after the bids were open and posted.
At the May 10 meeting Mr. Jett also maintained that the Department had allowed for other than on site parking; however, but the bidding document or Invitation to Bid only contained one blank, and only one subsection on the bidding form, for the bidders to indicate 77 spaces designated as on site spaces. Mr. Jett maintained that since the Department had provided option "(A)" under this on-site parking specification item, that he was therefore free to add other options. Using that logic, however, it would also appear that he could have submitted a bid depicting spaces literally on the other side of town and still had a responsive bid. That clearly is not the correct interpretation of that specification. He also maintained that the EPI was impossible to calculate at the time of bidding, in view of the fact that final plans were not available to support the ultimate calculation.
In any event, at the conclusion of this meeting, Department personnel informed Mr. Jett and his counsel that would inform him of its decision within a few days. The Department did not inform Mr. Jett that he would be permitted to amend his bid after obtaining professional help and redrawing his blueprint in an effort to show that the minimum square footage was available.
Indeed, Rainbow and Mr. Jett did obtain the services of an architect and drew a new floor plan which it offered as PR-1 at the hearing. If the floor plan originally attached to Rainbow's bid, consisting of Exhibit PR-2 in evidence, is compared with the blueprint submitted by the architect after the meeting with the Department representatives on May 10, it can be discerned that the blueprint is not a mere refinement or clarification of the initial floor plan, but rather that major modifications have been made to the initial floor plan submitted with the bid. These consist of walls which have been moved, small rooms in some areas which have been eliminated, restrooms which have been deleted and an existing spiral staircase area which was eliminated, and a hallway enclosed, in order to add additional rentable square footage where new offices could be added. Thus, this blueprint offered at hearing was not a mere refinement or clarification of the original floor plan submitted with the Rainbow bid, but rather sufficiently different from original floor plan as to constitute a material amendment or modification to the bid. It therefore cannot be considered. The floor plan submitted with the bid was nonconforming to the bid specifications as to the square footage item and Rainbow cannot be permitted to rectify and correct that with the architect's new blueprint and floor plan offered at the time of the hearing. 1/ In short, insufficient square footage was depicted and that is not a minor waivable irregularity.
Soon after this May 10 meeting, the Department changed its position, decided that both bids were not responsive and rejected them. Its alleged basis for doing so was that the Brooks bid was nonresponsive as to the energy performance index criteria and that the Rainbow bid was nonresponsive as to that criteria, as well as to those concerning minimum square footage and on-site parking availability; the same as the original grounds for rejecting Rainbow's bid. Timely formal protests of that second agency action were filed by both Brooks and Rainbow. In that connection, Rainbow's formal written protest of the original award to Brooks, which was announced and noticed on May 2, 1988, was untimely. The formal written protest must be filed within ten days of the notice of protest. Rainbow's original notice of protest was filed with the
agency on May 5 and the formal written protest was not filed until May 17. Rainbow, in conjunction with its filing, filed a motion for leave to late-file the formal protest with the agency on the basis that it had mistakenly filed the formal protest with the Division of Administrative Hearings. That petition was filed with the Division on May 16th. The deadline for filing the formal protest was May 15th. Petitioner Rainbow, however, did not learn of the second intended agency action until May 16th, however, and may have been somewhat misled about the necessity of filing its formal protest by May 15th because of the informal discussion of May 10th. It is also true, however, that the informal meeting was improper, as discussed herein and was called at the behest of Rainbow without assurance that the filing time was tolled.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1) and Section 120.53(5)(d)2., Florida Statutes (1987).
The pertinent portions of Section 120.53(5) are as follows:
"The agency shall provide notice of its decision or intended decision concerning a bid solicitation or contract award as follows:
For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery... The notice required by
this paragraph shall contain the following statement: 'Failure to file a protest within the time prescribed in S. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings and Chapter 120, Florida Statutes.'"
Any person who is affected adversely by the agency's decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receiving the notice of the agency decision or intended decision and shall file a formal written protest within ten days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120. The formal written protest shall state with particularity the facts and law from which the protest is based.
Upon receipt of the formal written protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency
action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process.
The agency, on its own initiative or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the parties within seven days, excluding Saturdays, Sundays and legal holidays of receipt of a formal written protest.
The first question that must be dealt with oven the above-quoted portions of the relevant statute, concerns whether Rainbow properties made a timely formal written protest of the action taken by the Department of Corrections on May, 1988. In that regard, pursuant to the above-quoted authority, notice of protest must be filed within seventy-two hours after posting of the bids on May 2, 1988. That was done by Rainbow by its letter dated May 4, 1988, delivered to the agency May 5, 1988. The statute also requires that formal written protest must be filed within ten days after the date of filing of the notice of protest. Failure to file timely constitutes a waiver of Chapter 120 proceedings. In this case, a timely formal written protest was not filed within the ten day statutory period as to the initial agency decision to award the contract to Brooks. Here the only notice of protest filed was the, letter notice filed with the agency on May 5, 1988, which did not state with any particularity the facts and law upon which the protest was based. It cannot, by any theory, be termed a formal written protest. No timely formal written protest was filed as to that agency decision. Rather, the formal protest was filed at the Division, by mistake, one day late, on May 16th. Therefore, the award to Brooks, which had been made after both bids were thoroughly evaluated by the department's evaluation committee, which found Brooks' bid to be responsive, hence the award, should stand because of the failure of a timely, formal written protest thereto.
The Petitioner, Rainbow, seems to contend that because of informal discussions with the department, they forbore from filing a formal protest during the period of the informal discussions. Those discussions, however, consisted of one day, the May 10, 1988 meeting. In any event, Rainbow formally protested the second intended action of the department of May 11, 1988, whereby it sought to withdraw the award to Brooks and rebid the project. The failure, however, to timely assert Chapter 120 procedural and substantive rights, has been held to be jurisdictional. State Department of Health and Rehabilitative Services vs. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979). The formal, written protest must be filed within the ten day statutory period beginning with the filing of the notice of protest and it is not tolled merely because some informal discussions may be proceeding which may or may not be countenanced by Section 120.53, Florida Statutes. See Xerox Corporation v. Florida Department of Professional Regulation, 489 So.2d 1230 (Fla. 1st DCA 1986) and Dickerson Inc. v. Rose, 398 So.2d 922 (Fla. 1st DCA 1981). It is true that the doctrine of "equitable tolling" might be enlisted to support a conclusion that the filing of the first formal protest, one day late, might be deemed timely, especially since the formal proceeding resulting must go to the Division anyway. See Machules vs. Department of Administration, 523 So.2d 1132, (Fla. 1988).
Rainbow, however, failed to demonstrate any real basis for believing that strict adherence to the filing time was unnecessary due to any representation by the
agency and, because of the facts found and conclusions reached herein, the question of timeliness of Rainbow's first protest is not dispositive.
This brings to the forefront the question of the propriety of the Department conducting an informal meeting with one of the two contending bidders, after the bids were opened and the initial award had been made to Brooks. That meeting resulted in the Department changing its position and on May 11, 1988, announcing to the parties that the bids would be rejected for alleged nonresponsiveness, and the project rebid. In this regard, the above quoted statutory language only provides for such an informal meeting with "the parties" presumably meaning all parties to a bid dispute proceeding and not just one of them. That informal discussion, under the terms of the statute quoted above, can only occur within seven days after receipt of the formal written protest which at the point of the meeting of May 10, had not even been filed yet. The language ... "within seven days, excluding Saturdays, Sundays and legal holidays, of receipt of a formal written protest..." can only be interpreted to mean within seven days after receipt of a formal written protest. Thus, the controls no statute here, Section 120.53(5), et. seq., provides no mechanism and authority to the agency to conduct such discussions or meetings with one of two contending bidders, without the presence of the other bidder, and even if the other bidder had been present, the statute provides that such meetings and discussions can only occur after receipt of a formal protest.
The Department, relying on the language quoted in paragraph (c) above, to the effect that upon receipt of the formal written protest the agency shall stop the bid solicitation and contract award process until the subject of the protest is resolved, contends it was free to discuss the bids with Rainbow prior to the filing of a formal written protest and to take further action with regard to the bidding process before any formal written protest was received. It thus maintains it may reject all bids before the protestor formalizes his protest of the proposed award. The Department then cites Caber Systems, Inc. v. Department of General Services, Apple Computers, Inc. and International Business Machines,
13 FLW 1658 (Fla. 1st DCA July 13, 1988), for the proposition that the Department indeed cannot continue the contracting process after it received the timely filed "Notice of Protest" but that the Department was not precluded from rejecting all bids and initiating a new invitation to bid
" ... upon discovery of valid
grounds for doing so. Therefore, when Cabers first protest revealed serious flaws in the ITB which ultimately required the Department to reject all bids (for reasons we hold were neither arbitrary nor capricious), the pendency of that protest did not deprive the Department of authority to act upon this deficiency in rejecting the bids. There is no limitation in the statutory language restricting the Department's power to immediately reject all bids and start the bid process anew with a valid ITB." (emphasis supplied).
Two distinguishing factors may be gleaned from this opinion. That is, that the rejection was due to "serious flaws in the ITB" which were revealed by the filing of the Notice of Protest and further that the agency in that case
would still have been without authority to reject all bids unless it was neither arbitrary nor capricious in doing so.
In the instant situation, the reason for rejecting all bids did not involve any internal flaw in the Invitation to Bid documents, rather, the record reveals that the second decision to reject all bids grew out of the ex parte meeting between Rainbow and the agency and the discussion between them of the proper interpretation to be ascribed to the various items of Rainbow's bid and the bid specifications. The agency maintains that this process merely caused it to "further investigate" both bids as to responsiveness, such that it determined that neither bid was responsive on the energy performance index criteria, with the Rainbow bid also being nonresponsive as to the items concerning square footage and parking. This resulted in its decision of May 11, to reject both bids and rebid the project. This is curious in that the agency's own bid evaluation committee had already determined that the Brooks bid was sufficiently responsive to justify an award by its initial decision in this matter. The evidence reveals that Mr. Brooks had been advised that the answer which he gave concerning the energy performance index item would, in effect, be an appropriate one and, even if not the best response, would least be responsive. Mr. Brooks, accordingly, initialed that item on his bid and filed the explanatory letter concerning his commitment to see that the EPI requirement was met. That was accepted by the agency and the initial award was made to Brooks. Such a response had also been accepted on two occasions in the past, as the above findings of fact reveal. For the agency to suddenly decide, after an ex parte conference with the protesting bidder, that this issue of responsiveness needed to be revisited, with the result that it decided to reject both bids with regard to these same responsiveness is sues smacks of arbitrariness. The above-quoted decision cited by the agency indeed also stands for the proposition that the decision to reject all bids may not be an arbitrary one. The recent (and novel) opinion in Department of Transportation v. Groves-Watkins Constructors, Case No. 71081, Supreme Court of Florida, (Opinion filed August 18, 1988), which also concerned a bid rejection and re-bid situation acknowledges that an agency has broad discretionary authority to reject all bids so long as the agency does not act fraudulently, arbitrarily or illegally. This decision still would not countenance the post bid tabulation actions of the agency herein, however. The agency in this instance had its own committee evaluate the bids, determine that Brooks' bid was sufficiently responsive to justify awarding to it and then merely because its interest was "piqued" as a result of its informal discussion with the protestant, revisited that question and determined that the "winning bidder's" bid should then be rejected also. Such a result, stemming from the agency's conduct of ex parte discussions with the protestant bidder, in a manner not authorized by statute, would clearly be arbitrary. Unrefuted evidence of record shows that the discussion with Rainbow, outside Brook's presence, is what prompted the agency to revisit its initial decision and change its position to Brooks' detriment. The evidence of record and the above findings of fact simply contain no legitimate justification for the rejection of the bids and proposed rebidding of the project. Such an action, if allowed to become final, would clearly be arbitrary and therefore in error, even under the purview of the Groves-Watkins decision. See also, Kinney Systems of Florida, Inc. vs. Dept. of Health and Rehabilitative Services, DOAH Case No. 86-2929; (adopted by Final Order of November 6, 1986).
Finally, in this vein, the agency seems to take a position that the issue of the Brooks' bid responsiveness on the EPI question and the gravity with which that specification and the response to it is considered depends upon whether or not a protest to its bid has been received both in this proceeding, and with regard to the past procurement situations in which Brooks has been
involved, referenced in the above findings of fact. This is an erroneous theory. A bidder is entitled to have its bid considered on its own merits in the responsiveness determination process. There is no sliding scale or varying standard by which responsiveness is determined, based upon whether a protest to a bid is received or not. The bid is either responsive or it isn't. Here the agency's evaluation committee determined that it was and recommended an award of the bid, which the agency's initial decision did. No timely formal protest of that decision was received and, therefore, it should stand. It would be totally arbitrary and unfair for the agency to change its position and reject all bids on the basis that it here espouses.
Even were the agency justified in conducting the post award, pre- formal protest meeting with the "protest" bidder and, as a result, could be deemed to have legitimately rejected all bids and rebid the procurement at issue, the award to Brooks should stand. This is so because the unrefuted evidence of record establishes that Brooks' bid was the most responsive one.
The only area where any question was raised concerning its responsiveness was as to the EPI specification. Even assuming, arguendo, that Brooks' theory that the agency had previously espoused to him a policy of allowing his bids to be deemed responsive, even when the EPI calculations were not performed is in error, the fact remains that, of the two bidders involved in this dispute, Brooks was the most responsive on the EPI criteria at issue. The Rainbow bid was clearly unresponsive as to the parking space item and the square footage requirement.
Thus, even if Brooks had not responded at all on the EPI specification, his bid would still be the most responsive of the two. Furthermore, for the agency representative in charge of evaluating bids to inform Mr. Brooks that the answer that he gave regarding the EPI specification, even if not a complete answer, would be an appropriate one and thus induce Mr. Brooks to submit his bid in that fashion and then for the same agency representatives to later attempt to justify the rejection of that bid on the question of responsiveness to that EPI item would amount to a misleading and arbitrary action.
Be that as it may, in fact, the agency's prior course of dealing with Mr. Brooks with regard to the answers that it would accept for an appropriate response to the EPI specification, reveals that it had a policy of not requiring the complete EPI calculations, and certification, at the bid submittal stage of a procurement. The evidence of record reveals that Mr. Brooks was justified in relying on that course of dealing or policy, as it was reiterated to him by Mr. Beall upon his inquiry prior to submitting his bid with regard to the instant procurement.
Therefore, in summary, even leaving aside the considerations referenced above concerning the lack of a timely protest to the award to Brooks, regarding arbitrariness concerning the rejection of both bids, as well as the legal issue concerning whether the agency had any authority to meet with only one bidder prior to the receipt of a formal protest, but after the initial award; the fact remains that even if the agency's action in rejecting both was permissible in a jurisdictional context, the evidence adduced through the formal dispute of that action clearly reveals that indeed the Brooks' bid was responsive and that the Rainbow bid was not. Accordingly, even if the matter was still within the agency's jurisdiction at the time that it chose to change its intent and reject both bids, the preponderant evidence and the above findings of fact render the conclusion inescapable that the award should be made to Brooks anyway.
In consideration of the above findings of fact and evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor
RECOMMENDED that the petition of Rainbow Properties, a Florida general partnership, should be denied and dismissed for the reasons found and concluded above, and that the petition of C. Leon Brooks be GRANTED and that the subject bid be awarded to C. Leon Brooks.
DONE and ENTERED this 27th day of October, 1988, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1988.
ENDNOTE
1/ Harry Pepper vs. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1977).
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2625BID, 88-2626BID
The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Rainbow Properties
Accepted
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted
Accepted
Rejected as not in accordance with the preponderant weight of the competent substantial evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, but not in itself dispositive of the material issues presented.
Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, C. LEON BROOKS
Accepted
Accepted
Accepted
Accepted
Accepted Paragraph B
Accepted
Accepted
Accepted
Accepted Paragraph C
Accepted
Accepted
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted
Accepted Paragraph D
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted Paragraph E
Accepted
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as not dispositive of the material issues presented and subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted
Specific Rulings on Proposed Findings of Fact Submitted by Respondent, DEPARTMENT OF CORRECTIONS
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Accepted
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as contrary to the Hearing Officer's findings of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as immaterial to disposition of the material issues presented.
Rejected as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and, to some extent, immaterial.
Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected as to its material import.
Accepted
(There is no proposed finding of fact)
(There is no proposed finding of fact)
(There is no proposed finding of fact)
Accepted
Accepted
Rejected as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter.
COPIES FURNISHED:
Drucilla E. Bell, Esquire Assistant General Counsel Florida Department of
Corrections
1311 Winewood Boulevard
Tallahassee, Florida 32399-2500
John A. Barley, Esquire
JOHN A. BARLEY & ASSOCIATES, P.A.
Post Office Box 10166 Tallahassee, Florida 32302
John A. Ratzlaff, Esquire TRAMMEL & RATZLAFF
105 South Madison Street Marianna, Florida 32446
Richard Dugger, Secretary Department of Corrections 1311 Winewood Boulevard
Tallahassee, Florida 32399-2500
Louis A. Vargas General Counsel
Department of Corrections 1313 Winewood Boulevard
Tallahassee, Florida 32399-2500
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF CORRECTIONS
LEON BROOKS, )
)
Petitioner, )
)
vs. ) Case No. 88-2625BID
) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )
)
Respondent. )
) RAINBOW PROPERTIES, a Florida )
general partnership, )
)
Petitioner, )
) Case No. 89-01
vs. ) Case No. 88-2626BID
) STATE OF FLORIDA, DEPARTMENT OF ) CORRECTIONS, )
)
Respondent. )
)
FINAL ORDER
This matter came before the Secretary of the Department of Corrections, pursuant to s. 120.59, F.S., on January 27, 1989, in Tallahassee, Florida, for consideration of a Recommended Order from the Division of Administrative Hearings entered on October 31, 1988 (Attached as Exhibit A), and exceptions filed thereto by Rainbow Properties (Attached as Exhibit B), and response to those exceptions filed by the State of Florida, Department of Corrections (Attached as Exhibit C). Based upon the Department's review of the case, it is hereby ordered that:
The Department adopts and incorporates in this Order the Background statement in the Recommended Order dated October 28, 1988, except regarding the calculation of the ten days for filing the formal written protest with the Department and the waiver of Rule 28-5.402, F.A.C. The ten days expired on a
Sunday which would make the next business day that the pleading could be filed Monday, May 16, 1988. This was the day Rainbow filed the petition with the Division of Administrative Hearings, making the filing with the Department of Corrections on May 17, 1988, untimely. Furthermore, there is no evidence in the record that the parties waived the requirements of Rule 28-5.402, F.A.C., requiring the hearing officer to issue the recommended order within thirty (30) days.
The Department adopts and incorporates in this Order the Findings of Fact set out in paragraphs 1 through 12 in the Recommended Order. Finding of Fact No. 13 is modified to show that the Formal Written Protest to the May 5, 1988, Notice of Protest, would have been timely filed on May 16, because May 15, 1988, was a Sunday. However, it was not filed with the Department until May 17, which was untimely. Finding of Fact No. 13 is also modified to delete the conclusion that the informal meeting with one bidder was improper. The propriety of the informal meeting is properly dealt with hereafter in the conclusions of law.
The Department adopts and incorporates in the Order the Conclusions of Law set out in paragraphs 1 and 2.
The Department adopts and incorporates in the Order the Conclusions of Law set forth in paragraph 3 except that the Formal Written Protest by Petitioner Rainbow was not filed late with the Division of Administrative Hearings on May 16, but was with the Department of Corrections on May 17, 1988.
The Department adopts and incorporates in this Order the Conclusions of Law set out in paragraph 4.
The Department specifically rejects the Conclusions of Law set out in paragraph 5 regarding the impropriety of the Department meeting with one bidder to discuss settlement of the protest by mutual agreement. Although Section 120.53(5)(d), F.S., provides for the meeting to be held after the filing of the Formal Written Protest, it also states that the meeting is to "provide an opportunity to resolve the protest by mutual agreement *between* the parties..." (emphasis added between *) The preposition "between" is utilized when two objects are involved, as in this case where the Department and one bidder would meet and confer. If the statute required the Department to meet with all bidders at the same time, the protest would be resolved by mutual agreement "among" the parties. However, at this point in the protest, the only parties would be the Department and the protesting bidder, regardless of the number of bids submitted. The legislature is presumed to know the meanings of words and rules of grammar. State ex rel Hanbury v. Tunnicliff, 98 Fla. 731, 124 So.279 (Fla. 1929); Allstate Mortgage Corp. of Fla. v. Strasser, 277 So.2d 843 (Fla. 3rd DCA 1973); 286 So.2d 201 (Fla. 1973). Therefore, the legislature by using the word "between" intended that the agency meet with one protester to discuss mutually resolving the subject protest. This is consistent with the remainder of the statute. Any agency decision must be noticed to all bidders by certified mail, just as the proposed rejection was, with an opportunity to protest. At the time of the meeting with Rainbow Properties and counsel, Petitioner Brooks was not a party to any Department action.
The Department adopts and incorporates in this Order the Conclusions of Law set out in paragraphs 6 through 11, regarding the time at which it is legal and proper for the Department to confer with a bidder and make a decision regarding the award of a bid. However, as explained above, the Department may legally meet with one bidder for informal discussions and because of the notice
requirements in the statute, could make a decision that would affect other bidders. Furthermore, it is entirely proper for the Department to gather more information by consulting with experts at the Department of General Services, in deciding whether to proceed with an award, change the award to another bidder or reject all bids. This process does not result in an arbitrary decision.
The Department adopts the Hearing Officer's recommendation that the lease be awarded to Petitioner Brooks as the most responsive bidder.
RULING ON EXCEPTIONS TO RECOMMENDED ORDER BY RAINBOW PROPERTIES
Petitioner's first exception is accepted as far as it concerns the date of the filing of the original Formal Written Protest with the Division of Administrative Hearings. The lateness of this filing is moot because the agency reiterated the grounds for rejecting Petitioner's bid in the May 11, 1988, notice which was timely appealed by both bidders and all issues and evidence were considered in the formal administrative hearing in this cause.
Petitioner's second exception is also accepted and adopted. However, since the Hearing Officer filed his Recommended Order after 120 days, the fact that the 30-day requirement was not waived is now moot.
Petitioner's third exception to the Findings of Fact is denied. The Hearing Officer's Findings of Fact 1, 2, 3, 9 and 12 are supported by competent, substantial evidence in the record.
Petitioner's fourth exception to the Findings of Fact is denied. The Hearing Officer's Findings of Fact 4 and 6 are supported by competent, substantial evidence in the record.
Petitioner's fifth exception to the Findings of Fact is denied. The Hearing Officer's Findings of Fact 5 and 8 are supported by competent, substantial evidence in the record. Furthermore, no information was given to Petitioner Brooks that was not available to Petitioner Rainbow. No economic advantage was gained thereby.
Petitioner's sixth exception to the Findings of Fact is denied. The Hearing Officer's Findings of Fact 9 is supported by competent, substantial evidence in the record.
Petitioner's seventh exception to the Conclusions of Law is denied, except as the Hearing Officer's Conclusions of Law are modified above.
DONE AND ORDERED at Tallahassee, Leon County, Florida, this 26th day of January, 1989.
Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Blvd.
Tallahassee, Florida
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH
THE AGENCY CLERK OF DEPARTMENT OF CORRECTIONS, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES.
Filed with the Clerk of the Department of Corrections this 26th day of January, 1989.
NONA BROWN, Clerk
COPIES FURNISHED TO:
John A. Barley, Esquire
400 North Meridian Street Post Office Box 10166 Tallahassee, Florida 32302
John A. Ratzlaff, Esquire Post Office Box 1562 Marianna, Florida 32446
Drucilla E. Bell, Esquire Department of Corrections 1311 Winewood Blvd.
Tallahassee, Florida 32399-2500
| Issue Date | Proceedings |
|---|---|
| Oct. 28, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 26, 1989 | Agency Final Order | |
| Oct. 28, 1988 | Recommended Order | Informal discussions do not toll time to file formal written protest. Arbitrary for agency to award to protester after ex parte discussion. |
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