STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL CENTER IV, )

)

Petitioner, )

)

vs. ) CASE No. 89-3034B1D

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Anyers, held a public hearing in the above- styled case on June 14, 1989, at Clearwater, Florida.

APPEARANCES

For Petitioner: James C. Hartley, Pro Se

4200 Fourth Street, North

St. Petersburg, Florida 33703

For Respondent: Drucilla E. Bell, Esquire

1311 Winewood Boulevard

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUES

Whether Rutenberg Corporation submitted the lowest responsive bid to provide some 7500 square feet of office space to the Department of Corrections.

PRELIMINARY STATEMENT

By letter dated May 12, 1989, James C. Hartley, President of Professional Center IV, Petitioner, filed a formal protest to the award of lease No. 700:0490 to the Rutenberg Corporation. As grounds for the protest it is alleged that the Rutenberg bid is unresponsive because it failed to provide the 60-70 parking spaces for the exclusive use of the employees and clients of the Respondent, department of Corrections.

At the hearing, Petitioner presented the bid package submitted by Rutenberg Corporation and rested, contending the bid was facially non-responsive.

Thereafter, Respondent called four witnesses and one additional exhibit was admitted into evidence.

There is no dispute as to the facts here involved, and, due to a discrepancy in the bidding process unrelated to the issue raised in this case, Respondent intends to rebid this project when this protest is resolved. There being no dispute of the facts, all of Respondent's proposed findings are accepted.

FINDINGS OF FACT

1. Petitioner and Rutenberg Corporation were the only bidders on lease No. 700:0490 to provide approximately 7500 square feet of office space to Respondent.

   
   

2. Item 7 of the bid proposal relating to parking spaces is the only portion of the Rutenberg bid proposal challenged by Petitioner. That section specifies that 60-70 off-street parking spaces must be provided by the lessor for the exclusive use of the employees and the clients of the lessee at no additional charges to the lessee. The parking spaces so provided must be under the control of the bidder and suitably paved, lined, etc.

   
   

3. The bid response, to be completed by the bidder, provided three options for the bidder to meet the 60-70 parking spaces requirements. Rutenberg's bid was:

   
   

   1. 30 exclusive spaces available on site and no cost to the lessee;

   2. exclusive spaces available off- site at no cost to the lessee; or

      
      

      As An Option

      
      

   3. 133 non-exclusive spaces available at no cost to lessee. Space located

      adjacent to building from proposed facility. (distance)

      
      

4. Item 7 is a standard provision of bid proposal forms utilized by State of Florida agencies in leasing office accommodations. This item provides three options for the bidder to provide parking so long as the space so provided is under the control of the bidder. These are the three listed in finding 3 above. So long as the bid proposal provides the required parking space utilizing the available options the bid is responsive.

   
   

5. Accordingly, the bid submitted by Rutenberg is a responsive bid.

   
   

6. Further, the Rutenberg bid was substantially below the bid submitted by Petitioner. In fact, Petitioner's bid exceeded the Respondent's budget by a considerable sum and, even if the Rutenberg bid was found to be unresponsive, it is doubtful the bid could have been awarded to Petitioner due to budgetary limitations. Here Petitioner does not contend that the bid should have been awarded to him.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. The sole issue raised by Petitioner in this case is whether the bid submitted by Rutenberg Corporation was a responsive bid.

9. Section 287.016(12), Florida Statutes, provides:

   
   

   "Responsive bidder" or "responsive offeror" means a person who has submitted a bid which conforms in all material respects to the invitation to bid or request for proposals.

   
   

10. By showing 30 exclusive parking spaces available on site and an additional 133 non-exclusive parking space adjacent to the building and under the control of the offeror, the bid submitted by Rutenberg satisfies the requirement that the successful bidder provide 60-70 off-street parking spaces for the exclusive use of employees and clients of the department at no extra cost. Accordingly, the bid is "responsive."

    
    

11. By motion for attorney's fees and costs submitted by Respondent at the hearing Petitioner requests the award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes. That section provides that the hearing officer shall impose sanctions, including attorney's fees and costs, upon a party who submits a frivolous petition to harass or cause unnecessary delay or needlessly increase the cost of the proceedings.

    
    

12. Here, although the pleading of Petitioner had no validity as a matter of law, it resulted from an honest misinterpretation of paragraph A7 of the Bid Proposal by Petitioner and not for the purpose of harassing or causing unnecessary delay or frivolous purposes or to needlessly increase the cost of litigation. Accordingly, the motion for attorney's fees and costs is denied.

    
    

13. From the foregoing, it is concluded that the bid submitted by Rutenberg Corporation to lease premises to the Department of Corrections was a responsive bid and the lowest bid submitted.

RECOMMENDATION

It is RECOMMENDED that the petition of Professional Center IV to have the bid of Rutenberg found to be unresponsive be denied.

DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989

COPIES FURNISHED:

Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard

Tallahassee, FL 32399-2500

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, FL 32399-2500

James C. Hartley, Pro Se 4200 Fourth Street, North St. Petersburg, FL 33703

Drucilla E. Bell, Esquire 1311 Winewood Boulevard

Tallahassee, FL 32399-2500

Docket for Case No: 89-003034BID

Orders for Case No: 89-003034BID