STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI INTERNATIONAL COMMERCE CTR., )

)

Petitioner, )

)

vs. ) CASE NO. 89-3688BID

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent, )

and )

)

LUIS SANCHEZ, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 24, 1989, in Miami, Florida, before J. Stephen Menton, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles Fritz, Designated Representative 8181 Northwest 14th Street

Miami, Florida 33126-1899

For Respondent: Drucilla E. Bell, Esquire

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

For Intervenor: Luis Sanchez, Pro Se

Post Office Box 34021

Coral Gables, Florida 33134 STATEMENT OF THE ISSUES

The issue in this case is whether the Department of Corrections' Proposed Award to Luis Sanchez of Lease No. 700:0487 pursuant to Bid No. 89-CIR-11-7-011 should be approved.

PRELIMINARY STATEMENT

This case involves a dispute regarding the solicitation for bids by the Department of Corrections concerning Lease Number 700:0487 for the procurement of office space in Dade County, Florida. In response to the bid solicitation by the Department of Corrections bids were submitted by the Petitioner (Miami International Commerce Center), and the Intervenor, (Luis Sanchez). There were no other bidders for the lease. The bid opening took place on June 27, 1989.

Although Petitioner's bid was apparently the lowest bid, the Department rejected Petitioner's bid as being non-responsive and indicated its intention to award the lease to Intervenor. Miami International Commerce submitted a letter of protest dated June 28, 1989, contesting the rejection of its bid. By letter dated July 7, 1989, the Intervenor, Luis Sanchez, sought to intervene in the bid protest. The entire matter was referred to the Division of Administrative Hearings by letter from the Department of Corrections on July 11, 1989.

At the hearing, Petitioner presented the testimony of Roberto Smith of First Commercial Realty who represented Miami International Commerce Center in submitting the bid. Petitioner did not introduce any exhibits at the hearing. By letter dated August 1, 1989, (which was filed with the Division of Administrative Hearings on August 2, 1989,) Petitioner submitted a Proposed Recommended Order attached to which were two exhibits. Exhibit 1 to the Proposed Recommended Order was a copy of the blank Request for Proposal and Bid Proposal Submittal forms.

Exhibit 2 was a copy of the bid submitted by Intervenor, Luis Sanchez. The August 1, 1989 letter from Petitioner did not reflect that copies were provided to the other parties in this action. Pursuant to Section 120.66, Florida Statutes (1987), a Notice of Ex-parte Communication was filed on August 16, 1989, placing the above referenced documents of record.

The Department of Corrections presented the testimony of Mark Shupp, the budget manager for the regional Department of Corrections office, and Mary Goodman, the Chief of the Bureau of Property Management for the Department of General Services. The Department of Corrections introduced five exhibits which were accepted into evidence. No transcript of the proceedings was ordered. As noted above, the Petitioner filed a Proposed Recommended Order on August 2, 1989. A ruling on the proposed findings of fact in that Proposed Recommended Order is included in the Appendix to this Recommended Order. The Department of Corrections and the Intervenor, Luis Sanchez, did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. The Respondent, Department of Corrections ("Department"), conducted the bid opening for the proposed award of lease number 700:0487 on June 27, 1989.

   
   

2. The bids submitted by Petitioner, Miami International Commerce Center ("MICC"), and Intervenor, Luis Sanchez ("Sanchez") were the only two timely responses received to the bid solicitation for this lease.

   
   

3. At the bid opening, the Department rejected MICC's bid on the grounds that it was unresponsive.

   
   

4. The Department contends that MICC's bid was not responsive because:

   
   

   1. The map included in the proposal form on which the bidder was supposed to depict the location of the project was not included as an attachment to the package submitted. However, the MICC bid package did include a map from which the location of the project could easily be determined.

      
      

   2. The package submitted did not include adequate evidence of compliance with the energy performance index.

   3. The package submitted did not include a clear photo of the building demonstrating that the building was "dry and measurable".

   
   

5. Mary Goodman, the Chief of the Bureau of Property Management for the Department of General Services, was called as a witness by the Department to testify regarding MICC's bid submittal. Ms. Goodman has been Chief of the Bureau of Property Management for 18 years and has been involved in leasing for state projects since 1958. She drafted the proposal form and the schedule of required attachments thereto. In September of 1988, she sent a letter to the state agencies involved in leasing (including the Department) advising them as to the mandatory nature of the proposal form and the need to insist upon strict adherence to the requirements set forth in the proposal. This directive was applied by the Department in rejecting MICC's bid. After testifying regarding the deficiencies in the MICC's bid submittal, Mrs. Goodman reviewed the energy performance certification included as part of the Intervenor's submittal package. Mrs. Goodman testified that the certification letter included in that package was inadequate, and therefore, the Intervenor's bid was also nonresponsive.

   
   

6. Both the bid submitted by Petitioner and the bid submitted by Intervenor failed to include acceptable energy performance certifications and were therefore nonresponsive.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

8. The evidence established that both the bid submitted by Petitioner and the bid submitted by Intervenor failed to include acceptable energy performance certifications and both bids should have been rejected as being nonresponsive.

RECOMMENDATION

Based upon the foregoing, it is

RECOMMENDED that both bids submitted in connection with the proposed award of Lease No. 700:0487 be deemed nonresponsive and the Department of Corrections rebid the lease.

DONE and ENTERED this 25th of August, 1989, at Tallahassee, Florida.

J. STEPHEN MENTON 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 25th day of August, 1989.

APPENDIX

The Petitioner has filed a Proposed Recommended Order which does not comply with the format anticipated in Rule 221- 6.031, Florida Administrative Code.

However, the undersigned has reviewed the Proposed Recommended Order and it has been considered in the preparation of this Recommended Order. The first two pages of the Proposed Recommended Order consist of background information and quotes from the bid documents. These two pages do not constitute proposed findings of fact. Page three of the Proposed Recommended Order includes proposed findings of fact and they have been adopted in the Findings of Fact set forth above. Page four of the Proposed Recommended Order constitutes legal argument.

COPIES FURNISHED:

Charles Fritz, Designated Representative 8181 Northwest 14th Street

Miami, FL 33126-1899

Luis Sanchez, Pro Se

P. O. Box 34021 Tallahassee, FL 33134

Drucilla E Bell, Esquire Department of Corrections 1311 Winewood Boulevard

Tallahassee, FL 32399-2500

Docket for Case No: 89-003688BID

Orders for Case No: 89-003688BID