STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WINCHESTER PROPERTIES, )
)
Petitioner, )
)
vs. ) CASE NO. 89-6125BID
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent, )
) LINDER/FUNK/FREGLY/OERTEL ) PARTNERSHIP, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings in Tallahassee, Florida, on November 27, 1989.
APPEARANCES
For Petitioner: D. Thomas Brushwood, Esquire
Post Office Box 1017 Tallahassee, FL 32302-2117
For Respondent: D. Clay McGonagill, Jr., Esquire
Haydon Burns Building, MS 58 605 Suwannee Street
Tallahassee, FL 32399-0458
For Intervenor: Linder/Funk/Fregly/Oertel Partnership
M. Christopher Bryant, Esquire
Oertel, Hoffman, Fernandez & Cole P.A. 2700 Blairstone Road, Suite C
Post Office Box 6507 Tallahassee, FL 323l4-6507
STATEMENT OF THE ISSUES
This cause concerns whether the proposal of Petitioner, Winchester Properties, in response to a request for proposal (RFP) by the Department of Transportation (DOT) for lease of office space, is the lowest and best response, based upon the evaluation criteria and weighting enumerated in that RFP.
PRELIMINARY STATEMENT
This case concerns a request for proposal (RFP) issued by the Respondent agency whereby it seeks to lease 13,100 square feet of office space (plus or
minus 3 percent) for a period of five years for Respondent's Information Resources Division (Division). The Division has approximately 55 employees, in
3 sections, who design, develop, test and run computer programs and applications for Respondent's needs. In the daily performance of their duties, Division personnel need to consult with other employees and supervisors in direct face- to-face verbal communication. Since vacating a separate building early in 1989, the Division's personnel have been scattered through the DOT headquarters in the Haydon Burns Building on various floors. It needs to obtain office space in a more contiguous location and layout, so as to enhance productivity and efficiency. In this regard, proposals were solicited for available office space by DOT's office of support services. It published a newspaper notice of the solicitation and issued a request for proposal and bid proposal submittal form, for lease #550:0189.
In response to that RFP, it received proposals from four potential venders.
After evaluation by a review committee set up by the agency, the Linder partnership was chosen for the contract award. Winchester Properties thereupon filed a notice of protest and followed-up with a timely formal protest. The matter was then referred to the Division of Administrative Hearings and the undersigned Hearing Officer for conducting a final hearing concerning the dispute as to whether the Petitioner made the lowest and best response to the RFP. The Intervenor timely filed a petition for leave to intervene, which was granted. A formal written protest filed by TCS Associates, another disappointed potential vendor, was assigned DOAH Case No. 89-6124BID. It was withdrawn prior to final hearing.
At the final hearing, Petitioner presented the testimony of Mr. Jon Winchester, and introduced Petitioner's Exhibit 1. Respondent presented the testimony of Mr. Jim Dolson, Acting Director of Respondent's Information Resources Division and chairman of the evaluation committee which reviewed the proposals. The Respondent also introduced the testimony of Greg Waddell and Rebecca Poggie, of the Respondent's Information Resources Division and members of the review committee; and Eloise Frost, a lease coordinator in Respondent's office of support services. The Respondent introduced Exhibits 1 throuqh 6.
The Intervenor presented the testimony of Mr. Dolson and Mr. David Hulsey, the Intervenor's authorized agent for leasing purposes, and introduced Intervenor's Exhibits 2, 5(a) through 5(f), and 6(a) through 6(e).
FINDINGS OF FACT
The Department wishes to lease 13,100 square feet of office space to house the division for a period of 5 years. The Division has approximately 55 employees in 3 sections who design, develop, test and run the computer programs and applications for Respondent's requirements. In the daily performance of their duties, Division personnel often need to consult with other Division employees and supervisors in face-to-face verbal communication in order to resolve highly technical programming and application questions. Because of this consideration, they require offices in the same building and in a contiguous area of a building.
The Division formally occupied a single separate building, until early in 1989 when it moved out of the "IBM Building" in Tallahassee. Since that time, its personnel have been scattered through various offices in the DOT's headquarters building, the Haydon Burns Building, on several different floors. This arrangement has reduced the Division's efficiency and productivity. Therefore, it seeks new, unified office space so its various office operations
and employees may be reunited in one location. It is also desirable that this location be in fairly close proximity to the DOT headquarters building.
In order to solicit proposals for the required office space, the Department's Office of Support Services published a newspaper notice of this solicitation and issued a Request for Proposal and Bid Proposal Submittal Form, for lease #550:0189. This RFP was on a standard form prepared and used by the Bureau of Property Management of the Florida Department of General Services.
Ms. Eloise Frost is the lease coordinator in the Respondent's Office of Support Services, and has handled approximately 20 solicitations for office space leasing in the past two years. All of these have been conducted through the use of request for proposals (RFP's). She oversees and consults with the Department's district offices around the state who also typically use the RFP process for office space leasing. Winchester Properties has submitted proposals in the recent past in response to RFP's issued by DOT for office space, and Mr. Winchester and Ms. Frost have communicated on occasion during the solicitation stages of past RFP office space procurements. The specific requirements of the RFP used in the instant case were prepared by Ms. Frost and Mr. Dolson.
That RFP document advised prospective bidders that the evaluation criteria for the proposal at issue were as follows:
EVALUATION CRITERIA (AWARD FACTORS)
The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below:
Rental, using total present value methodology for basic terms of lease (see number d, general provisions items 1 and 2) applying the present value discount rate of
8.91 percent. (weighting:30)
Conformance of and susceptibility of the design of the space offered to efficient layout and good utilization and to the specific requirements contained in the invitation to bid. (weighting:25)
Provision for the aggregate square footage in a single building. Proposals 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. (weighting:15)
The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of department operations planned for the requested space. (weighting:20)
Proximity of offered space to other department activities as well as other public services. (weighting:10)
Total award factors 100
Ms. Frost in her testimony established that the weightings assigned to various evaluation criteria in an RFP may differ from one RFP to another. An assignment of 30 to 50 percent weighting for the rental rate component of an RFP leasing situation is not at all uncommon in the Department's procurement procedures. The assignment in this case of a 30 percent weighting to the rental rate factor is not unusual nor unreasonable. Further, in that regard, the percentum assignments of weight depicted on the face of the RFP for rental rate, and the other factors quoted above, were not timely challenged by the Petitioner and are, therefore, waived. It thus must be determined in this proceeding whether Petitioner can establish that the scores accorded the Petitioner, out of the total possible scores enumerated in the RFP, are in error.
Mr. Dolson maintained in his testimony that, because of the nature of the Division's activities, it must directly compete with the private sector in recruiting and hiring persons educated and trained in computer programing. For this reason, he states the Department places emphasis on an attractive, secure and efficient working environment in order to insure recruitment and retention of high quality personnel. This emphasis on the desired working environment is borne out to some extent in the manner in which the evaluation criteria are assigned weight in the RFP.
Other provisions of the RFP contain requirements for approximately 80 exclusive parking spaces on site; certain electrical, telephone, lighting and air conditioning arrangements; security and access requirements; and particular numbers of offices, conferences, a training room, break rooms, storage areas and other areas to approximate the required square footage. The RFP also contains a suggested floor plan (Attachment H) as a guide for the configuration of offices, rooms and other areas. That suggested floor plan depicted the co- location of those areas on a single floor. These various requirements in the RFP were agreed to by the Petitioner and the Intervenor in their response submittals, as shown by the initials of the representatives of those two parties. Both parties indicated on their proposals that they submitted a suggested floor plan to the agency. Intervenor's floor plan is not in evidence, however.
The Department conducted a pre-proposal conference with prospective bidders on September 19, 1989, which several bidders attended, including Linder. Representatives of Winchester Properties did not attend. The pre-proposal conference provided bidders the opportunity to ask questions concerning specific criteria upon which the proposals would be evaluated and to get more detailed information concerning the nature and characteristics of the Department's office space needs.
Four bidders ultimately submitted proposals. Petitioner Winchester Properties for a building located at 305 Blount Street in Tallahassee; TCS Associates for the Capitol Hill Building located at 1700 South Gadsden Street; Parkway/Oakland building located at 2002 Old St. Augustine Road; and Intervenor/Linder/Fregley/Funk/Oertel Partnership for the Blairstone Center building, located at 2601 Blairstone Road and still under construction. In terms of rental costs, the Winchester property represented the lowest cost proposal, and the Blairstone Center Building the highest rental cost proposal.
The Blairstone Center Building is a new building, not yet occupied, and at the time of the proposal, not yet finally completed in terms of interior finish details. It consists of four floors of offices or potential offices, a street level parking floor with adjacent uncovered parking. Access to the offices would be through internal stairwells and internal elevators which descend to the parking level. That building contains a total of approximately 75,000 square feet of office space. If the lease was awarded to Blairstone Center, the Department's offices would be located on the first floor of the office space or the second floor of the building. The Blairstone Center Building is approximately 2 miles from the DOT headquarters. The Blairstone Building is located on Blairstone Road, a main thoroughfare and is surrounded by landscaped grounds, the parking lot which serves the building and, in the rear, by a golf course.
The Winchester Building is a 3-story office building with approximately 5,000 square feet of office space per floor. Each floor has eight doors opening onto an external walkway or breezeway, with external stairwells and elevators connecting the floors. It has been owned by Winchester Properties or its predecessor partnership for approximately 10 years. Until recently, the building was leased to the Florida Department of Education. That agency was in the process of moving out when members of the Department's proposal evaluation committee visited and inspected the building. The building has a parking lot on site, and the site is bounded by railroad tracks to the south or rear side of the building, and to the north approximately one block is the new, high-rise, Department of Education building.
Both buildings were visited by various members of the evaluation committee for the Department, charged with evaluating the various vendor proposals. Mr. Waddell and Ms. Poggie toured the interior of the Winchester Building with Mr. Winchester.
Each building was scored independently by the committee members on all the various evaluation criteria. This was not necessary to do as to the rental rate criteria, however, because the difference in rental rates was obvious and concrete. After each committee member independently scored both buildings, the committee met as a whole, discussed their scoring and in a collegial manner arrived at a score for each building for each of the four evaluation criteria, excluding rental rates. When the scoring of each individual committee, for each evaluation criteria, was added together, the totals for each committee member demonstrated that each member had independently rated the Blairstone Center Building with the highest score and the Winchester Building with the lowest score. The Blairstone Center Building received a total score of 88.1 points. The Winchester property received a score of 70 points.
Twenty-five points were available for the criteria "performance of and susceptibility of the space to efficient layout and good utilization." This total available point total or weighting for this criteria and the others was not timely contested by the Petitioner. The Winchester Building was awarded 8 points out of the total 25 points available for this category. In this respect, it was penalized 4 points for a "split floor" arrangement and penalized 13 points for "unsuitable arrangement of offices."
Twenty points were assigned for the criteria for "the effect of environmental factors... on the efficient and economical conduct of Department operations." As to this category also, the Winchester Building received a total of 8 points. It was penalized 7 points for "security risk." It was penalized 2 points for not having 80 parking spaces and 3 points for "general condition."
Ten total points were available for the proximity of the space to the Haydon Burns Building. In this regard, the Winchester Building received the most points, or 9 points, out of a possible 10. It lost one point for being 1/4 to one mile from the Burns Building, according to the evaluation standards set in the RFP. The Winchester proposal also received the maximum of 30 points for the rental rate since it was clearly the lowest in rental costs of all the proposed vendors. It also received the maximum of 15 points for the location of all the office space proposed in a single building, according to the standards set in the RFP, for a total of 70 points.
The Blairstone Center Building received the maximum of 20 points for environmental factors and the 15 point maximum for its location in a single building. It received a score of 24 out of 25 possible points for "conformance of and susceptibility of the space design... to efficient layout...." Since it is approximately two miles away from the Burns Building, it lost three points on the proximity criteria, out of a possible 10, for a total of 7 points. It lost
7.9 points out of a possible thirty points for its proposed rental rate, which was the highest of any of the four vendors.
After considering the bids and scoring the various responses to the five evaluation categories, the Respondent agency posted notice of its intent to award the lease to Linder for its Blairstone Center Building. The Petitioner, Winchester, timely filed its notice of protest and, additionally, a formal written protest.
In addition to raising the disparity in the quoted rental rate between the Winchester proposal and the Linder proposal, Winchester properties asserted in its petition that there was no specific requirement contained in the request for proposal that all office space to be leased should be located on a single floor. As to the agency's assertion that Winchester's building offered an "unsuitable arrangement of offices," Winchester asserts that it explained to the evaluation team that the Department of Education, the former tenant, was in the process of moving out, and that the offices it had used would be renovated to meet DOT's needs, and that they anticipated working with the appropriate persons from DOT to produce a layout to best meet DOT's requirements."
Concerning the category regarding "environmental factors...," Winchester denied that an above-average security risk existed, asserted that there was in excess of 80 parking spaces on site and that additional space could be made available on the adjacent vacant lot owned by Winchester Properties. Winchester professed to not understand the three-point penalty set forth in the agency's evaluation and intended award for the category "general conditions." Winchester also asserted its building is the closest one to the Burns Building of all those offered, as to that specific requirement in the RFP. The Blairstone Building of Linder is 2.1 miles away, and the Winchester Building being .85 miles away, from the Haydon Burns Building.
Concerning category two in the RFP, related to "the conformance of and susceptibility of the space offered to efficient layout and good utilization...," the Winchester proposal was penalized 4 points for the "split floor" arrangement, whereby the Division would be located on all three floors of that building, if Winchester's proposal was accepted, rather than on a single floor. While it is true that the RFP does not contain a specific requirement for all space being located on a single floor, under the portion of the RFP which contains the evaluation criteria and award factors, that consideration legitimately is a part of evaluation criteria two concerning susceptibility of the design of the space to efficient layout and good utilization, and further,
the Department included a suggested floor plan, as Attachment H to the RFP, which depicts all space located on a single floor. Thus, given the Department's interest in ease of communications between offices, the reduction of scoring points for the split-floor arrangement, attributable to the Winchester Properties building, is a legitimate concern of the Department, and the point reduction was shown to be reasonable.
25 points were available for "conformance of and susceptibility of the space to efficient layout and good utilization". The Winchester building was awarded 8 points for this category (rounded up from 7.6 points obtained by averaging the individual scores accorded it by each evaluation committee member). Seventeen points were deducted from Winchester's proposal for this evaluation criterion, of which 13 were subtracted for "unsuitable arrangement of offices". The agency's criterion in this particular, as shown by DOT witnesses, Dolson's and Waddell's, testimony, stems from the arrangement of internal walls and offices which they perceived caused traversal of a given floor of Petitioner's building to be inconvenient, without resorting to use of the exterior doors and breezeways surrounding each floor.
After submission of their RFP responses, both the Intervenor and the Petitioner were accorded the opportunity to meet with representatives of the Department's evaluation team in a "walk-through" inspection of their respective buildings. During this inspection tour, and in response to inquiry by the evaluation committee members, as shown by the testimony of Messrs. Dolson and Waddell, as well as the Petitioner; Mr. Winchester stated, by way of clarification of his RFP response, that he would conform the office space to meet the Department's needs "within reason". He reiterated this assurance in his testimony. The Department representatives testified that they were unsure of what he meant by "within reason" and were uncertain that he would really alter the office space so as to mollify their concern about ease of interior access or traversal between offices on a given floor. After close scrutiny of the Petitioner's response to the RFP and his testimony, and in consideration of his candor and demeanor in testifying, it is found that "within reason" means that the office space, walls, and means of traversal within each floor of Petitioner's building would be arranged to accommodate any need of the agency related to the appropriate governmental functions it proposes to conduct in the sought office and other space to be leased.
Both proposed vendors were accorded the opportunity to confer with agency representatives, who were evaluating their proposals, at the inspection tours and, given the circumstances under which it was made, it is deemed that Winchester's statement concerning proposed configuratlon of the space involved did not constitute a material deviation or amendment of the Petitioner's RFP response. It was in keeping with the purpose of agency procurement through this RFP process, which is designed to help the agency learn how its space needs can be best accommodated when it does not have a rigid set of specifications which, when not timely challenged, would have to be strictly adhered to by the agency and all proposed vendors. This is why the RFP procedure is commonly used for procurement of office space, rather than the more inflexible Invitation to Bid process. Because both proposed vendors were accorded this "inspection and comment" opportunity, and because the Intervenor has at least an equal opportunity to configure its partitions and offices to accommodate the agency's needs since its proposed space is not yet finished, it has not been shown that the fairly competitive nature of this RFP process was upset nor that either the Petitioner or the Intervenor gained an undue competitive advantage over the other.
Further, in addition to the above facts, the Petitioner established, upon cross-examination of Mr. Dolson, his concession of the fact that the Petitioner's interior space, to which the 13 point deduction related, could be re-configured to alleviate the Department's concern with the efficient layout of the offices and partit ions and the matter of ease of traversal throughout the various floors of the building.
Given the above facts, neither the Respondent agency nor Intervenor presented countervailing evidence of a competent, substantial, preponderant nature to justify or explain the scoring accorded to the Petitioner's proposal as to this category of the evaluation criteria or how the point score was truly arrived at. The evaluation committee chairman, Mr. Dolson, merely testified that each committee member independently scored the Petitioner's proposal and then the committee met and collegially arrived at an overall score to accord the proposals for each evaluation category. The total score arrived at, and points to be deducted, was calculated by averaging the individual scores awarded by each committee member.
The problem with this lies in the fact that no unrefuted evidence of a reasonable basis for the individual member's point scores was presented. It was entirely a subjective performance. This is borne out by the fact that the individual scores were so disparate, as shown on the face of Respondent's Exhibit 4, in evidence. The committee members arrived at scores of 10, 3, 10, 0 and 15 points, out of a possible 25. This equates to a percentum scoring range, from lowest to highest, of 0%, 12%, 40%, 40% and 60% of the total points available. Such a 60% deviation range in scoring by these committee members shows a lack of a consistent, reasonable, logical rationale for the scoring and thus that it was arbitrarily determined. 1/ This is corroborated, to some extent, by Mr. Dolson's testimony to the effect that they felt, in a general, overall sense, that the Blairstone building was just a more desirable property.
In summary, competent, substantial, preponderant evidence in support of the 13-point deduction from the score to be accorded the Petitioner's proposal has not been established. Therefore, the 13-point deduction is inappropriate. Inasmuch as a four-point deduction was shown and found to be reasonable for the multi-floor arrangement of the Petitioner's building, a problem of a related nature in the same evaluation category which cannot be corrected, it logically follows that some lesser point deduction should be attributed to the criticism concerning "unsuitable arrangement of offices". Since the Intervenor's proposed space, theoretically at least, can be configured precisely to the agency's taste, since no interior walls have yet been erected, it legitimately should score higher in this regard; the one-point deduction for location of elevators and stairwells having been shown to be reasonable.
Because the perceived problem or criticism of the Petitioner's office arrangement is of a less serious nature than the incorrectible multi-floor situation, and is also largely correctible to meet the agency's needs, a three- point deduction in this particular is logical and reasonable and would be non- arbitrary. Thus, three points should be deducted for "unsuitable arrangement of offices".
Evaluation criteria No. 4 in the RFP at page 7 concerns "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". Full credit for complying with this criteria would accord 20 points to a bidder. Using this evaluation standard, the Department deducted 7 points from the Winchester proposal for "security risks". Security requirements are treated at paragraph
10 of page 6 of the RFP, however, and provide that "security shall include but not be limited to the following:
locks on all outside doors and interior doors of training room
area.
locks on all outside windows.
night lights on all outside doors.
night lights in parking areas nearest building.
provision for Sonitrol card security system to be connected to
Sonitrol system in the information resource section in the Burns Buildings.
These were the only security requirements mentioned as a requirement in the RFP, and Winchester agreed, by initialing this requirement, to comply with it, as did Linder. The requirement at paragraph 4 of the evaluation criteria on page 7 of the RFP is really related to environmental factors involving the physical nature of the proposed building and area surrounding it, as that relates to the efficient and economical conduct of the agency's operations, that is, the functions which the agency plans to conduct in the proposed leased space. The only requirement in the RFP expressly concerned with security arrangements and crime prevention has been fully complied with by both the Petitioner and the Intervenor. The agency's attempt to include a perceived "security risk" in its consideration of the vendor's responses with regard to evaluation criterion No. 4 on page 7 of the RFP is a convoluted, inappropriate interpretation of that criterion, which was not noticed to the vendors receiving and responding to the RFP. The element of security requirements was addressed specifically in the RFP at paragraph 10 on page 6; and the proposed vendors, including Winchester Properties, were not on notice that any other security requirements would be imposed by the agency.
The agency is not entitled to vary from its RFP by labeling the perceived security risk as an environmental factor allegedly impinging on efficient and economical conduct of departmental operations planned for the proposed office space. That criterion really refers to the physical capabilities of the building and surrounding grounds to accommodate the actual functions which the agency proposes to conduct in the performance of its duties at the proposed office space and building. That evaluation criteria does not demonstrate to proposed vendors that the crime experience or perceived propensity of a building or building site for a lack of security, in terms of possible criminal activity in the future, is a consideration which they must address in their responses to the RFP. The agency, just like the vendors, is bound by the evaluation criteria and other specifications in the RFP, which by its issuance, has placed the vendors on notice that it will be the actual standards by which their proposals are judged. This is especially true when the agency has inserted a specifically defined security requirement in the RFP which the vendors are thus on notice to respond to. They were on no notice to respond to any other agency "security risk" standard. Thus, Winchester Properties cannot be penalized 7 points, or any points, for a perceived "security risk" attendant to its building and grounds of which it had no notice by the requirements published in the RFP.
Moreover, it has not been factually established that the Winchester Properties is characterized by any heightened security risk. Winchester demonstrated that no criminal activity had occurred on the premises during 1989, as shown by the police report in evidence. That same police report, although it demonstrated that three commercial burglary-type incidents had occurred on the same street in 1989, does not demonstrate nor does any other evidence show that that is related in any way to the location or condition of the Winchester
building and premises. Such incidents can occur in proximity to any proposed office space location. Moreover, although a breaking and entering occurred on the premises some years ago during the occupancy of the Department of Education, in response to that incident, Winchester installed security bars on all first floor windows. DOT personnel, inspecting the premises after the proposal was submitted, indicated that that raised some suspicion of a security risk in their minds. It just as easily could alleviate a security risk by making the building more secure. Further, the fact that beer and liquor bottles, refuse and other evidence showing that vagrants might have frequented the premises was not shown to be a chronic situation, as opposed to merely being incident to the fact that the building was vacant when DOT personnel inspected it, the Department of Education having recently vacated the premises.
Winchester will be obligated to conduct and insure maintenance of the premises and grounds in accordance with the requirements which are set forth in the RFP, which would alleviate the perceived security problem involving overgrowth of weeds and underbrush in the rear of the building and which witness Dolson acknowledged would minimize any security risk. The observed beer and liquor bottles on the premises and evidence that vagrants have camped on the rear of the site near the railroad tracks was not shown to be other than a temporary condition caused by the vacant nature of the premises at the time they were observed. The perceived security deficit attendant to the proximity of the railroad tracks in the rear of the licensed premises is no different in degree than the proximity of the same railroad line immediately in the rear of the DOT headquarters building. The Winchester building is within the Capital Center complex boundaries and one block south of the new Department of Education building, and it simply was not demonstrated that any higher degree of security risk is attendant to this location than to other locations occupied by state agencies. No evidence was offered by Department witnesses nor Intervenor concerning the security risk or crime reporting experience of the area immediately surrounding the Blairstone property at issue either.
In any event, however, because the question of "security risk" was not included as a standard which vendors had to comply with in responding to the RFP and about which they were not on notice; and because the security risk element is addressed elsewhere in the RFP and does not relate to the actual efficient and economical conduct of the agency's business planned for the proposed premises, the 7 point scoring penalty assessed against Winchester is inappropriate. The scoring attributable to its proposal should be increased accordingly.
The same considerations apply to the agency's three-point penalty ascribed to the Winchester proposal for "general condition". The agency deducted three points for general condition by attributing that perceived deficit in the Winchester building and grounds to evaluation category No. 4 in the RFP concerning the effect of environmental factors, including physical characteristics of the building and area surrounding it, on the efficient and economical conduct of Department operations. The RFP, in terms of this evaluation criterion, nor any of the other criteria, contains no notification to prospective vendors that the issue of "general condition" would be a measure by which the agency would determine the responsiveness or level of responsiveness of a proposed vendor. There has been no proof to show how the general condition deficit DOT ascribes to the Winchester property bears any relationship to the efficient and economical conduct of the Department's operations planned for the requested office space. While it is understandable that an agency or any lessee would want a building in good condition, the requirement for rating of the "general condition" of such a building must be noticed in the RFP by the agency
in order for vendors to know that they will be held accountable for complying with such a standard. Even had the standard concerning "general condition" been a published standard in the RFP, it has not been demonstrated that the Winchester property would fail to comply therewith.
Mr. Dolson, testifying for the Department and the Intervenor, cited conditions involving deteriorated doors, overgrown areas behind the building, and bars on the windows of the building which created a perception of an unsafe condition, along with beer and liquor bottles on the premises. This concern in reality, according to his testimony, appears to be more related to the perceived security or safety risk already discussed and dealt with above; but it was not demonstrated how that would have any effect on actual efficient and economical performance of the functions the Department personnel would use the office space for.
Further, in consideration of the security requirements that Winchester has agreed to comply with concerning locks on doors and other building security arrangements required at paragraph 10, page 6 of the RFP, and the requirements concerning maintenance and janitorial service, among which is the stipulation that painting of the building should be accomplished every two years at minimum, or as needed; the vendor to be awarded the lease would be required to maintain the doors, grounds and other aspects of the property criticized under the heading "general condition" in good repair on pain of rescission of the lease for failure to do so. In any event, because the standard imposed by the agency for "general condition" is not encompassed within any evaluation criteria in the RFP, which was noticed to the proposed vendors, no vendor can be penalized in the consideration of its proposal for the perceived level of its compliance with such a condition.
The RFP, at page 2, paragraph 7, requires approximately 80 off-street on-site marked spaces for DOT use only, for employees and clients. The parking spaces are required to be under the control of the bidder and to be suitably paved and lined, with bumper pads installed. Although the RFP requirement only refers to approximately 80 spaces being available, both the Petitioner and Intervenor responded to this requirement by assuring that 80 exclusive spaces were available on site at no cost to the proposed lessee, DOT. Although the Intervenor makes mention in its testimony of the fact that the Blairstone Center offers in excess of 80 lined, paved parking spaces on site and off-street and that some of them are covered spaces (approximately 10), there is no requirement in the RFP for in excess of 80 spaces, but rather approximately 80. There is no requirement in the RFP that any of the spaces be covered parking. Mr. Dolson, testifying for DOT, indicated that he counted approximately 72 to 73 spaces on the Winchester site. Mr. Dolson never visited the site during the evaluation process, however. Other witnesses for DOT indicated that they were not convinced that 80 spaces existed on site and that Mr. Winchester indicated that parking could be made available on an adjacent, unpaved vacant lot owned by Winchester.
In fact, however, it was established by Winchester Properties that the required 80 lined, paved, bumper-equipped parking spaces were available on site and that parking on the adjacent vacant lot could be made available in addition to the 80 spaces referenced in the RFP. Although the Respondent Department mentioned at paragraph 26 of its proposed findings of fact that Winchester's formal written protest admitted that parking could be made available on such "adjacent vacant lot", in fact, the referenced portion of Winchester's formal written protest asserts that there are in excess of 80 parking spaces. In addition, Winchester states in its petition that the team (meaning the
evaluation team) was advised that the adjacent vacant lot is owned by Winchester Properties and that more parking could be made available on that lot.
In summary, it is found that Winchester never represented that the 80 spaces would include spaces available on the adjacent, unpaved vacant lot, but rather that the 80 paved, lined, bumper-equipped parking spaces would be those on the building site, as required by the RFP, and that additional parking, if necessary, could be made available on the adjacent lot. Consequently, there is no justification for the subtraction of two points in the evaluation calculations attributable to the Winchester Properties' proposal, as to the evaluation criteria concerning the effect of environmental factors, including the physical characteristics of the building and area surrounding it on the efficient and economical conduct of Department operations, as it relates to parking.
There is no dispute that the Winchester proposal represents the lowest rental rate which would be charged for the requested office space and that the Blairstone/Linder proposal represents the highest rental charge of the offering vendors. The terms of the RFP require that the annual rental rates proposed by the vendors be for a five-year lease, reduced to present value for comparison purposes. The RFP also requested rental rates for a subsequent three-year option period which, according to the terms of the RFP, was not included in the present value analysis or comparison between the vendors. The response of the vendors and Respondent's Exhibits 1, 2 and 5 indicate that the present value of the Winchester building rental rate is $568,820.86 for the five years and is the low bid. It was thus appropriately awarded the maximum of 30 points for the rental rate category of the RFP. The present value of the Blairstone Center rental rate was $719,169.87 or $150,349.11 more than the lowest Winchester bid. Its point ranking for rental charge was thus reduced proportionately by 7.9 points to 22.1 points. If the additional cost for the three-year option period were considered, the Blairstone proposal is some $348,000.00 more expensive than that proposed by Winchester Properties. The method of calculation of the rental rate comparison and the points assigned to the Petitioner and Intervenor by the department's method of scoring was shown to be reasonable and appropriate, given the terms of the RFP.
In summary, it has been demonstrated that both the Petitioner and Intervenor made responsive bids; and the Department does not take the position that either bid was unresponsive. The above Findings of Fact reveal that, indeed, Winchester Properties' proposal is the best bid. There is no dispute that it is the lowest cost bid. The Winchester proposal was shown to comport with the requirements of the RFP in light of the above Findings of Fact which demonstrate that the 13 point deduction for unsuitable arrangement of offices was not justified as found above nor was the 7 point deduction for security risk, the 2 point deduction for parking-space requirements, and the 3 point deduction for general condition. The 4 point deduction for the split-floor arrangement of the Winchester property was appropriate, given that the RFP standard concerning conformance of and susceptibility of the design of the space offered to efficient layout and so forth does constitute sufficient notification that the layout of offices on multiple floors or alternatively, on one floor, would be an evaluation consideration. Thus, it has been demonstrated that the Winchester proposal, under the Department's point-scoring system, should, in reality, be accorded a score of 92 points, which demonstrates, given the above Findings of Fact, that it is the lowest, best and most responsive bid.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding, pursuant to Section 120.57(1), Florida Statutes (1987).
This cause stems from Winchester Properties' challenge of the Department of Transportation's proposed selection of Linder as an entity from whom it proposes to lease 13,100 square feet of office space, pursuant to a lease agreement which it proposes to enter into with that entity as a result of its response to the RFP involved herein.
Section 255.25(3)(a), Florida Statutes, provides that "no state agency shall enter into a lease as lessee for the use of 2,000 square feet or more of space in a privately owned building except upon advertisement for and receipt of competitive bids and award to the lowest and best bidder". Section 255.25(2)(a), Florida Statutes, then provides "except as provided in paragraph (b), no state agency may lease a building or any part thereof unless prior approval of the lease conditions and of the need there for is first obtained from the Division of Facilities Management". The Division of Facilities Management of the Department of General Services is the agency charged with regulating procurement procedures for the leasing of office space for state agencies, which rules carrying out that statutory authority are embodied in Chapter 13M-1, Florida Administrative Code. Rule 13M-1.015(2)(a), Florida Administrative Code, concerning solicitation, provides "a public solicitation for proposals will be widely publicized using newspapers...and personal contact with owners, developers or realtors in the city or area in which space is desired...". Paragraph (e) of that Rule provides "suggested format (BPM form number 4136 incorporated by reference in this rule) and guidelines for specifications may be obtained from the Bureau of Property Management, Department of General Services". This Rule elsewhere makes repeated reference to "proposals" to be submitted by vendors or bidders and invites reference to the specific form actually used in the Department's leasing effort involved in this proceeding. The Rule clearly contemplates that the RFP method is an appropriate way to carry out the leasing arrangements under the procedures mandated by the above-cited statute and rule. It was thus reasonable for the Department to employ the RFP method and form prepared and used by the Department of General Services Bureau of Property Management, incorporated by reference in the rules of the Division of Facilities Management of that department. These rules govern all state agency leases of property in excess of 2,000 square feet and require prior approval by the Division of Facilities Management for all such leases.
The invitation for bid process is a rigid one and identifies the solution to the agency's problem by concretely defined specificatibns. The RFP process, however, is more flexible and identifies the problem the agency seeks to address and requires the proposers then to find the agency a solution to the problem. See, System Development v. Department of Health and Rehabilitative Services and EDS Federal Corporation, 423 So.2d 433 (Fla. 1st DCA 1982). Here, the DOT has chosen to lease office space through the RFP process and thus invite the bidders to produce a solution to the agency's office space requirements within limitations set by the agency in the RFP docunent. See, Westinghouse Electric Corporation v. Jacksonville Transportation Authority, 491 So.2d 1238, 1242 (Fla. 1st DCA 1982). The RFP process encourages interaction and development between the agency and the bidder regarding a solution to the agency's procurement problem. See, Westinghouse at 1242.
Thus, the RFP process differs from a strict invitation to bid process which is more controlled by the issue of cost, that is, the lowest responsible bid, whereas consideration of a response to an RFP is controlled by a measure of the technical excellence of the proposal, as well as the cost. See, System Development at 434.
Winchester does not specifically challenge the Respondent Department's decision to procure office space by the RFP process; rather than by the more strict invitation to bid procedure, rather the Petitioner attempted to establish through cross-examination that the lease invitation was not clear in defining the process as an RFP, as opposed to an invitation to bid. That contention is rejected.
First, there was no evidence that Winchester was confused during the bidding process by any perceived distinction between RFP's and ITB's as that might relate to his perceived opportunity to obtain clarifications of the terms of the agency's proposal request. To the contrary, his prior participation in Department RFP procurements and his having availed himself in the past of the right to ask questions and seek clarification suggests that he was familiar with the RFP process and the flexibility it provided for both the agency and the vendors. Specifically, he did not raise this issue in his formal written protest in any event, which precludes it being raised at hearing and which affirms that, in fact, there was likely no confusion on this point.
Secondly, the RFP was expressly labeled "Request for Proposal and Bid Proposal Submittal Form". This document was, indeed, the specific form authorized to be used by the above- cited rule and serves two purposes; to notify prospective bidders of the terms of the lease solicitation at issue; and to provide a blank form document for bidders to execute and return to the Department as their proposals. There is no inconsistency between these two functions served by the document at issue and no prejudicial ambiguity in the names ascribed to the document as to these two functions.
Thirdly, the RFP expressly indicated that the rental rate accounted for only a 30% weighting of the criteria under which the proposal would be evaluated. Since consideration of factors other than price assume more importance in an RFP situation, as opposed to an ITB as envisioned in the System Development opinion, supra, the solicitation at issue can only reasonably be concluded to be an RFP, regardless of any perceived ambiguity in its labeling. In any event, Winchester did not demonstrate that it was prejudiced by any perceived ambiguity. The Petitioner did not indicate that any different approach would have been taken in the preparation or submittal of its proposal if, indeed, the solicitation had been an ITB. Nor is any evidence adduced by the Petitioner that its ability to ask questions or seek clarifications or provide them to the agency would have been any different if the procurement had been specifically noticed in the newspaper ad in question as a "Request for Proposals". It is thus concluded that the procurement at issue is an RFP and that it was reasonable under the circumstances, and the above-cited decisional authority for the Department to employ the RFP process for the office space procurement at issue.
Further, to the extent that Petitioner seeks to show that there was no rational basis for the weighting of the evaluation criteria used by the Department, particularly the allotting of only a total of 30 points for the cost factor, that challenge is untimely. Any challenge a bidder has to the relative weighting of various review criteria must be made within 72 hours of the time the RFP is issued, not when an intended award has been noticed. See, Capeletti
Brothers, Inc. v. Department of Transportation, 499 So.2d 855, 857 (Fla. 1st DCA 1986); Answer Phone of Florida, Inc. v. Department of Health and Rehabilitative Services, 11 FALR 1413, 1419 (Final Order entered January 30, 1989). Thus, any contention the Petitioner has concerning the weighting of the various evaluation criteria is untimely and has been waived.
Although there is no statutory or rule requirement that an RFP be evaluated based on points or percentum increments, Rule 13M-1.015(5)(b) does require the development and use of weighted evaluation criteria. That Rule states that the criteria items most significant to the agency should bear the highest weight. Rental and any other specification deemed necessary by the agency should be weighted and such criteria are required to be used in the evaluation of proposals. The Department clearly set out its evaluation criteria and the weighting or order of relative importance of them in the RFP and thus in the promulgation of the RFP has clearly met the statutory and rule requirements of the RFP process.
The RFP process encourages the exchange of information between the agency and proposed vendors. Westinghouse, supra. The exchange of information between the agency and the vendors at the walk-through inspections herein were proper in light of the fact that the purpose of the inspections and the questions and discussions had during them was for the agency to obtain clarification of the different proposals.
Section 287.012(12), Florida Statutes, defines a "responsive offeror" as a person who has submitted a bid or proposal which conforms in all material respects to the RFP. Responsiveness is determined as of the time a proposal is made public, but there is no prohibition to an agency seeking clarification of a proposal, as submitted, after it is made public and including that clarification in its evaluation process. There is competent, substantial evidence in this record and, indeed, it is undisputed, which shows that the responses of both the Petitioner and the Intervenor conform in all material respects to the RFP.
A material variance is unacceptable and must be disqualified. A variance is material if it gives a bidder a substantial advantage over other competing bidders, changes the price of the bid, or stifles the competitive process. Non- material variations in a bid, however, may be waived so long as the integrity of the bidding process is not violated. TropaBest Foods Inc v. State Department of General Services, 493 So.2d 50 (Fla 1st DCA 1986). In the instant proceeding, although Winchester made clarification to the effect that it would configure the space in accordance with the agency's needs "within reason", as that is defined in the above Findings of Fact (based upon the competent, substantial evidence of record), the evidence reveals that this clarification was not a material variance, but was a permissible clarification within the ambit of the RFP process and, indeed, it is a response made in a question and answer session or open discussion between Mr. Winchester and the members of the committee who inspected the Winchester premises. The same opportunity was afforded the Intervenor during the walk-through of its premises. Accordingly, the clarifications obtained from the vendors by the agency were non-material variances from their proposals and did not upset the integrity of the bidding process.
The Respondent agency, in discussing the "standard of review" for agency decisions for competitive bidding situations, including RFP acquisitions, cites a number of cases for the proposition that a public agency has wide discretion in soliciting and accepting bids for public improvements and that its decision, when based on an honest exercise of that discretion, will not be
overturned by a court even if it appears erroneous and if reasonable persons may disagree. The Respondent agency cites Systems Development Corporations v.
Department of Health and Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982), for the proposition that an agency's decision under these circumstances will be reviewed by courts only so far as to determine whether the decision was arbitrary, capricious or beyond the scope of its discretion, which the court in that case acknowledges is a very broad discretion. See, also, Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982); Satellite Television Engineering v. Department of General Services, 522 So.2d 440 (Fla.
1st DCA 1988); and Capeletti Brothers, Inc. v. State Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983). The agency cites Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), for the proposition that an agency's decision, based upon an honest exercise of its discretion, cannot be overturned unless it has acted arbitrarily, fraudulently, illegally or dishonestly.
Thus, there is without doubt a strong judicial deference paid to an agency decision in a competitive bidding situation, including an RFP procurement effort. The agency's position that this standard of review should apply in the instant proceeding is misplaced, however. These are de novo proceedings. The Hearing Officer's function is not solely to review the agency's initial decision regarding the procurement at issue to determine whether the agency acted arbitrarily, fraudulently, illegally or dishonestly, for which proposition the agency cites the Grove-Watkins opinion. The standard of review represented by the decisional law cited by the Respondent department in its proposed conclusions of law is, in reality, an appellate standard designed to set forth the judicial deference courts will pay to an agency's final action taken through the entry of its Final Order in a competitive bidding situation. As shown by the opinion of the District Court of Appeal for the First District in Agrico Chemical Co. v. State, etc., 365 So.2d 759 (Fla. 1st DCA 1978), administrative discretion must be reasoned and based upon competent, substantial evidence. The court then indicated that an arbitrary decision would be determined to exist there the decision was not supported by facts or logic or was despotic. If such a decision will be weighed for the existence of arbitrariness, and if the exercise of the agency's discretion must be based upon competent, substantial evidence, then, obviously, that manner of review of an agency decision was contemplated by the court to apply at the review of Final Order stage of a proceeding, since no competent, substantial evidence has yet been adduced and no facts have been proven (in order to weigh the existence of arbitrariness) at the initial agency action stage where an agency has noticed its intended action, but before, in a case such as this, a Section 120.57 proceeding has not yet commenced.
Although the Respondent Department cites the Agrico decision as support for the definition of arbitrariness as being a decision not supported by facts or logic, etc., that very definition in the Agrico opinion shows that facts must be established and competent, substantial evidence must be adduced before the question of arbitrariness or the proper exercise of agency discretion can be reviewed and adjudicated. The Section 120.57 hearing proceeding is not the proper stage of the proceeding to review an agency's initial intended action; rather it is the stage where the facts and competent, substantial evidence contemplated by the Agrico court must be adduced and established, after which the agency makes its final decision, which then brings into play the review standard enunciated in the cases cited by the Respondent.
Although Capeletti Brothers, Inc. v. State Department of General Services, 432 So.2d 1359, does, indeed, reference the review standard enunciated
by the agency in its proposed conclusions of law, that decision most pointedly states, at page 1363, the proper scope and purpose of a Section 120.57 hearing in a competitive bidding situation such as this, wherein the court stated:
Capeletti also contends that the hearing officer erred in not imposing upon Burgeron (one of two petitioners) the burden at hearing to prove that DGS' previously announced intention to reject all bids was arbitrary, capricious and unreasonable. Capeletti misconceives the purpose of the Section 120.57 hearing.
The rejection of the bids (here, the rejection of Petitioner Winchester's bid) never became final agency action. As we have previously held, APA hearing requirements are designed to give
affected parties *an opportunity to change the agency's mind*. Couch Const. Co. v.
Department of Transportation, 361 So.2d 172, 176 (Fla. 1st DCA 1978); MacDonald
v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979). Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily. MacDonald, supra, at 584. [Emphasis supplied between *.]
Thus, the agency's position regarding its view of the appropriate standard of "review" herein is inapposite, particularly its statement to the effect that an administrative Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally or dishonestly, citing the Groves-Watkins opinion. The instant bid protest type of proceeding is clearly a de novo proceeding, as envisioned in the Capeletti and Couch opinions, as well as, implicitly, in the Agrico opinion. The Hearing Officer does not merely conduct a review of whether the agency's intended action was an arbitrary, fraudulent, illegal or dishonest exercise of its discretion. Since the agency's final action, to which the enunciated review standard must apply, turns on the competent, substantial evidence adduced and the facts thus determined, the facts established hereinabove will be examined.
It was clearly established and, indeed, undisputed that the Winchester property had the lowest rental rate proposed and that it lost no points in the evaluation process for that criterion. The agency adhered to the mathetical present value formula provided for in the rules cited above and enunciated in its RFP document noticed to all vendors. The relative point ratings for the rental rate were established by the evidence to be correct, as shown by the above Findings of Fact.
So, too, the loss of points by the Winchester building for the split- floor arrangement was supported by the evidence, as shown by the above Findings of Fact. The agency's RFP document, especially to the extent that it included a suggested single- floor arrangement of offices, showed an agency preference, announced to the vendors in advance, to place the space on one floor, although the agency conceded that, in an attempt to be fair, it did not want to confine its RFP's to only single-floor office space. The agency's evidence established
that its efficiency and productivity in carrying out the operations proposed for the subject office space would be enhanced by locating it on a single floor.
Thus, the competent, substantial evidence, culminating in the above Finding of Fact in this regard, shows that the 4 point deduction for the split-floor space attributable to the Winchester building is an appropriate evaluation of its RFP response in this regard.
The deduction of one point from the Winchester building and three points from the Blairstone Center building for their relative distances from the headquarters of the Department at the Haydon Burns Building is an appropriate evaluation of both proposals. The RFP contained a concrete standard by which the distance from the headquarters building, which was a specific evaluation requirement in the RFP, would be evaluated. The Department's evaluation of this distance requirement, as it relates to the two proposals, is in accordarce within the standard enunciated in the RFP concerning distance from the DOT headquarters; and competent, substantial evidence has been adduced in support of the above Findings of Fact in this regard, showing that the one-point deduction for the Petitioner's building and the three-point deduction for the Intervenor's building is appropriate.
The deduction of points for the Petitioner's building for allegedly having fewer than 80 parking spaces has not been supported by competent, substantial evidence, as shown by the above Finding of Fact to the effect that no deeduction should be made for this category. Firstly, the RFP requirement only required approximately 80 parking spaces. That consideration aside, however, the competent, substantial evidence adduced by the Petitioner, coupled with the revelation upon cross-examination of Respondent's witnesses that they were not really sure how many parking spaces were available, even though witness Dolson indicated that he counted 72 to 73, reveals that, in reality, 80 parking spaces are available on the Winchester site. Winchester merely asserted to the Department that additional parking spaces, in excess of 80, could be installed on the adjacent vacant lot. In consideration of Winchester's candor and demeanor in testifying to this effect, his testimony is accepted over that of the Department's witnesses, who were vague and uncertain as to the exact number of parking spaces present. Thus, no point deduction should be made on the issue of the required number of parking spaces.
The competent, substantial evidence adduced, of a preponderant nature, culminating in the above Findings of Fact, shows that no points should be deducted on the issue of "security risk" or "general condition" for the Petitioner's bui1ding. The issue of security risk and general condition is not established in this record to be encompassed within the evaluation criteria standards noticed to the vendors in the RFP document, as delineated in more detail in the above Findings of Fact. Vendors, such as the Petitioner, were on notice that security requirements existed which were enunciated elsewhere in the RFP at the page and paragraph number referenced above, which Winchester and the Intervenor both agreed to comply with. The above Findings of Fact reveal that Winchester was not on notice that the issue of "security risk" or "general condition" were building evaluation considerations encompassed within the evaluation criterion regarding "Environmental factors...". A reasonable interpretation of this evaluation criterion dictates the conclusion that these considerations are not encompassed within it. Thus, these two considerations cannot be the basis for a point reduction; and Winchester's proposal should not be reduced by 7 points and 3 points, respectively, for security risk and general condition.
In fact, the evidence establishes that no security risk has been proven to exist in any event, when it is considered that the security requirements in the RFP will have to be and are agreed to be complied with by the Petitioner. The indicia of vagrants occupying the premises, particularly the rear of the premises, were not shown to be other than a transitory condition attributable to the vacant status of the premises at the time the inspection was made. So, too, the condition of the doors and other items criticized under the heading of "general condition" by the evaluation personnel will be refurbished and maintained in good repair by the Petitioner's required compliance with the security requirement provision in the RFP and with the janitorial and maintenance provisions, upon pain of rescission of the lease if he fails to comply. The proposal of the Petitioner was appropriately responsive to these items of which it had notice, and the competent, substantial evidence supportive of the above Findings of Fact in this regard demonstrates that no point reduction in the evaluative process should be assessed against the Petitioner's proposal for the reasons enunciated in the above Findings of Fact.
Finally, it has been demonstrated that it would not be reasonable nor in accordance with the preponderant evidence adduced, and the above Findings of Fact, to reduce the Petitioner's proposal by the 13 points initially sought to be assessed its proposal for "unsuitable arrangement of offices". The above Findings of Fact, based upon the preponderant evidence, demonstrate that the Winchester facility can be conformed to suit the Department's needs "within reason" which term has been defined in the above Findings of Fact to mean that such re- configuration will be accomplished as will allow the agency to efficiently and economically perform any and all governmental functions it proposes to perform in the requested office space, given the Hearing Officer's observation and acceptance of Winchester's candor and demeanor in testifying in this regard; and given the acknowledgment, upon cross-examination, by Mr. Dolson, that, indeed, the Petitioner's office space could be configured to eliminate the perceived problem with ingress and egress and traversal between offices and other rooms upon a given floor. In summary, for the reasons enunciated in the above Findings of Fact, which are based upon competent, substantial, preponderant evidence, a three-point reduction for this evaluation category should be assessed against the Petitioner.
In summary, it must be concluded that, given the preponderant, competent, substantial evidence of record and the above Findings of Fact, the Winchester proposal is entitled to an evaluation point rating, based upon the evaluation criteria properly noticed to all vendors in the RFP, of 92 points. In this respect then, it has been established that the Petitioner's response to the RFP is the lowest, best and most responsive of the proposals submitted and that award should be granted to the Petitioner.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that the Respondent, Department of Transportation, enter a Final Order awarding lease #550:0189 to Winchester Properties for the lease of office space, as more particularly described in the Petitioner's response to the RFP, and in the record herein, for the building owned by the Petitioner located at 305 Blount Street, Tallahassee, Florida.
DONE AND ENTERED this 6th day of February, 1990, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1990.
ENDNOTES
1/ It is appropriate to observe at this juncture that the lack of a consistent, reasonable rationale for the scoring of the Petitioner's submittal in this regard is brought into sharper focus when one considers the fact that there was essentially no range of deviation shown by the uniform, essentially maximum scores accorded the Intervenor's proposal by these committee members.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6125BID
Petitioner's Proposed Findings of Fact
Subparagraphs (a) through (e) are accepted; (f) is rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter; (g) is rejected for the same reason; (h) is accepted.
Subparagraphs (a) through (e) are accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter.
Accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter.
Subparagraphs (a) through (c) are accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter.
Subparagraph (a) is accepted, but not dispositive of any material issue; (b) is rejected, as contrary to the preponderant weight of the evidence;
(c) is accepted.
Subparagraph (a) is accepted; (b) is accepted; (c) is accepted; (d) is rejected, as contrary to the preponderant weight of the evidence.
Respondent's and Intervenor's Joint Proposed Findings of Fact
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and is not entirely in accordance with the preponderant weight of the evidence.
Accepted.
Accepted, but not, itself, materially dispositive.
Accepted.
Accepted.
Accepted.
Accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter.
Accepted, but not as to the factual or legal efficacy of the ratings assigned to the Petitioners building.
Accepted, but not as to the factual or legal efficacy of the ratings assigned to the Petitioner's building.
Accepted, except as to the last paragraph, which is immaterial. Any failure by the Petitioner to file a bond to cover agency costs has been waived as any condition precedent to the filing of the petition by its transmittal to the Division of Administrative Hearings for formal proceeding and by the failure to raise it as an issue in the pleadings or at hearing.
Rejected, as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter although the split-floor 4-point reduction was shown to be appropriate.
Accepted, except that the proposed floor plan of the Blairstone property is not in evidence.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and is not entirely in accordance with the preponderant weight of the evidence.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and is not entirely in accordance with the preponderant weight of the evidence.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and is not entirely in accordance with the preponderant weight of the evidence.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and is not entirely in accordance with the preponderant weight of the evidence.
Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter and is not entirely in accordance with the preponderant weight of the evidence.
Accepted, but not materially dispositive.
Accepted, but not materially dispositive.
Rejected, as subordinate the Hearing Officer's findings of fact on the subject matter and as not in accordance with the preponderant weight of the evidence.
Accepted.
Accepted.
Accepted.
COPIES FURNISHED:
E. Thomas Brushwood, Esquire Post Office Box 1017 Tallahassee, FL 32302-2117
E. Clay McGonagill, Jr., Esquire Haydon Burns Building, MS 58
605 Suwannee Street
Tallahassee, FL 32399-0458
Linder/Funk/Fregly/Oertel Partnership
M. Christopher Bryant, Esquire
Oertel, Hoffman, Fernandez & Cole P.A. 2700 Blairstone Road, Suite C
Post Office Box 6507 Tallahassee, FL 32314-6507
Mr. Ben G. Watts, Secretary Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, FL 32399-0458
Thomas H. Bateman, III, Esq. General Counsel
Department of Transportation
562 Haydon Burns Building Tallahassee, FL 32399-0458
| Issue Date | Proceedings |
|---|---|
| Feb. 06, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 02, 1990 | Agency Final Order | |
| Feb. 06, 1990 | Recommended Order | Clarification from petitioner vendor was "nonmaterial because both vendors had equal opportunity to do so; some evaluation standards not in Request For Proposal more points should be given |
